136 / 228
(4) but a division of opinion arose as regards the
propriety of allowing the solicitor's costs and the
ad valorem stamp duty in connection with
the
second purchase. Lord Justice Evershed took the
view that the purchaser obtained what he agreed
to buy and that he had been compensated for the
loss in value of the house purchased by reason of the
vendor's failure to give vacant possession.
The
second purchase was wholly distinct from the first
and the solicitor's costs and ad valorem stamp duty
in respect of that purchase could not be held to
be a loss or damage flowing from the vendor's
breach of the terms of the first contract, or if they
could were too remote. Lord Justice Tucker and
Lord Justice Somervell disagreed with Lord Justice
Evershed on this point. They held that as
the
result of the vendor's breach of contract the pur
chaser had to find somewhere else to live, and was
compelled to purchase another house. He must be
assumed to have received full value for the price
which he paid for the second house, but the stamp
duty and legal costs were not part of the purchase
price. They were no doubt items which were
necessarily payable on the purchase, and might thus
be described as part of the costs of the purchase
but they were outgoings necessitated by the vendor's
breach for which the purchaser had received no
countervailing
benefit.
In
the
result
the
full
amount was allowed as part of the damages.
The Lord Chief Justice, in the Northern Ireland
High Court last week, commented strongly against
the common practice in the making of affidavits of
inserting at the end of the affidavit, a paragraph
in the terms that " save where otherwise appears,
I am aware of the above facts of my own know
ledge," when, he said, " It was quite apparent that
matters in the affidavit could not possibly be within
the deponent's personal knowledge, and yet,
it
was not stated that such matters were deposed to on
information and belief."
His Lordship said that he had spoken on previous
occasions about the laxity in the drawing of affidavits.
He was determined to put a stop to it, for, strictly
speaking, it involved the deponent in the com
mission of perjury.
In the case before him, the Lord Chief Justice,
in refusing a motion to remit an action, costs of the
motion to be costs in the cause, gave a special
direction that no costs whatever should be allowed
in respect of the affidavit referred to.
The Disciplinary Committee recently pronounced
their Findings and Order in a case which may be of
general interest.
The respondent was charged with professional
misconduct in that he had, notwithstanding the
provisions of Rule 2 of the Solicitors' Practice Rules,
1936—
(a)
held himself out as being prepared to do
professional business in a non-contentious
matter, namely,
the sale of (Blackacre),
at less than the scale of charges prevailing
in the district in which he practised; and
(b)
allowed himself to be held out as being
prepared to do professional business in the
said non-contentious matter at l&ss than the
scale of charges prevailing in the district
in which he practised.
The respondent was a member of a local Law
Society which had passed a resolution stating that
the scale of charges prevailing in the district of that
Society for conveyances of property payable by
both vendor and purchaser, whether separately
represented or not, was the scale prescribed by the
Solicitors' Remuneration Order, 1936, without any
percentage additions allowed by subsequent Orders.
The respondent was instructed by the purchaser
of Blackacre. The house agent concerned told the
respondent that the vendor would probably instruct
him also but asked what, in that event, would be
the cost to the vendor. The respondent replied
that his fee to the vendor would be between £17 and
£20. The vendor (unknown to the respondent)
had already asked another firm of solicitors what
their charges would be for acting for him on the
sale and they had quoted £28 135. 4d,, being the
appropriate fee according to the resolution of the
local Law Society mentioned above. On learning
the respondent's quotation the vendor took the
deeds away from the other solicitors, whom he had
already instructed, and instructed the respondent
in their place.
Subsequently the vendor withdrew
the respondent's retainer and the sale was completed
by the other solicitors. The respondent completed
the matter for the purchaser alone, to whom he
charged the full scale fee approved by the local
Law Society.
At the hearing before
the Committee the re
spondent admitted the above facts and did not seek
to deny that he had committed an offence under
Rule 2 of the Practice Rules. He stated, however,
that at the material times he had neither known nor
suspected that the vendor had already instructed
other solicitors and that when quoting the reduced
fee he had been under the impression that the vendor
would instruct him in any case. The respondent
further stated that he had had it in mind that, acting
for both parties, he would not have to do so much
work for both clients as would substantially justify
him in charging two scale fees, even at the reduced
rate approved by the local Law Society. He had,
therefore, thought it proper at the time to give in
advance an estimate
less
than the scale fee so