CHANCERY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
Chief Land Registrar |
Claimant |
|
- and - |
||
Caffrey & Co |
Defendant |
____________________
The Defendant did not appear and was not represented
Hearing dates: 2 November 2015
____________________
Crown Copyright ©
Master Matthews :
Introduction
Procedure
Factual allegations
The causes of action
First cause of action: negligence
"[33] In a situation such as the present where (to the knowledge of both parties) a solicitor is retained by one party and there is a conflict of interest between the client and the other party to a transaction, the court should be slow to find that the solicitor has assumed a duty of care to the other party to the transaction, for such an assumption is ordinarily improbable. But the special circumstances of a particular case may require a different conclusion to be reached."
"If instructions come to a solicitor not from the client himself but from a third party claiming to represent the client, the solicitor needs to take special care to satisfy himself that the client wishes him to act, by seeing the client personally or obtaining written confirmation from the client or taking some other step which is sufficient, in the circumstances, to show that the client wants the solicitor to act fro him in the manner in question…
Here [the solicitor] purported to act on behalf of [the claimant] in a transaction in which [the claimant] was selling property to the very person who was giving instructions on behalf of [the claimant] and who was instructing [the solicitor] to act on his own behalf as well. In such circumstances it was imperative that [the solicitor] should obtain confirmation of his instructions from [the claimant] himself. He did not do so."
"The breach [by the solicitor] lay in failing to confirm with [the claimant] the instructions which [the defendant] was purporting to give on his behalf. The judge accepted that [the defendant] had no authority to give those instructions on behalf of [the claimant]; and it is, I think, implicit in his judgment that he accepted, also, that, if confirmation of those instructions had been sought by the respondents from [the claimant], that confirmation would not have been forthcoming."
"should start with assumption of responsibility. This should be judged objectively, and is a sufficient but not necessary condition of liability."
"It appears to me that when the Registrar undertakes to alter the status of a company on the Register which it is his duty to keep … he does assume a responsibility to that company (but not to anyone else) to take reasonable care to ensure that the winding-up order is not registered against the wrong company. This does not impose a duty to verify information supplied by a third party such as an Insolvency Practitioner, but only to ensure that the information is accurately recorded on the Register …" (at [111], emphasis supplied; see also at [118]).
"on the detailed circumstances of the particular case and the particular relationship between the parties in the context of their legal and factual situation as a whole."
Mr Trompeter refers to a number of factors which he says are all present in this case, including: (1) acts or omissions capable of causing harm to a particular person if done carelessly; (2) responsibility for the act being entirely placed on that actor; (3) ease of avoidance of the act or omission; (4) no other remedy available.
Second cause of action: negligent misrepresentation
"The law of England does not impose any general duty of care to avoid negligent misstatements or to avoid causing pure economic loss even if economic damage to the plaintiff was foreseeable. However, such a duty of care will arise if there is a special relationship between the parties. Although the categories of cases in which such special relationship can be held to exist are not closed, as yet only two
categories have been identified, viz. (1) where there is a fiduciary relationship and (2) where the defendant has voluntarily answered a question or tenders skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice. In both these categories the special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff's affairs or by choosing to speak."
"a professional man or an artisan who undertakes to exercise his skill in a manner which, to his knowledge, may cause loss to others if carelessly performed, may thereby implicitly assume a legal responsibility towards them. The fact that he is doing so in pursuance of a contractual duty or a statutory function cannot of itself exclude that responsibility. The most that can be said is that it may be one of the circumstances to be taken into account in determining the nature and extent of the responsibility."