212 / 736
number of directors to the required number or
for calling a general meeting. Clause 19 provided
that if the directors refused to register any trans
fer, notice of the refusal should be sent to the
transferee within two months of the lodgment of
the transfers. On 3rd August 1967 of the 10,000
authorised and issued £1 shares in the company,
5,000 stood in the name of H, 4,000 in that of
Major S, 500 in that of A, deceased, and 500 in
the name of the applicant. At that date two trans
fers in favour of the applicant had been executed
by the administrators of H and A deceased re
spectively. On 3rd August a combined directors
and annual general meeting was held, the two
directors being Major S and the applicant. The
applicant was not re-elected a director and there
fore there was no quorum. According to a minute
prepared by Major S registration of the transfer
was formally requested and refused. No resolution
was passed on the matter.
On llth December 1967 the applicant moved
for rectification of the register of the company
under Section 16 of the Companies Act, 1948
(see Section 122, Companies Act, 1963). On 18th
December Major S appointed an additional direc
tor and thereafter the two directors purported
formally to refuse to register the transfers. In the
first instance it was held that there had been
unreasonable delay in notifying the applicant of
the refusal of the registration of the transfers and
the power to refuse as a result being lost and it was
ordered that the register be rectified by the regis
tration of the applicant as holder of the shares
which had been lodged for transfer.
On appeal it was held, dismissing the appeal :
1. That since Section 78 (1) of the Companies
Act, 1948 (corresponding to Section 84 (2), Com
panies Act, 1963, in Ireland), required a company
refusing a registration of transfers of shares to
notify the transferee within two months of the
refusal the four months in the present case was
an unreasonable delay.
2. That prima facie a shareholder had an abso
lute right to transfer his shares so that any power
of veto on the transfer of shares vested in the
directors must be exercised within a reasonable
time, that in the present case the directors veto
was lost by reason of unreasonable delay and that
the register would be rectified accordingly.
[in re Swaledale Cleaners Ltd. (1968) 1. W.L.R.
p. 1710].
Solicitor's negligence—assessment of damages
The plaintiff was injured in a road collision in
West Germany on the 13th September 1958, the
68
plaintiff instructed West German lawyers to act
In 1959 he also
instructed the defendant, an
English firm of solicitors. The negotiations took
place with regard to a settlement and in 1961
the German lawyer wrote to the defendant warn
ing them that in Germany such actions have to
be brought within three years of the date in which
the right of action accrued. Owing to the defen
dant admitted negligence on failing to have certain
letters from the Stutgard lawyers translated and in
not acting upon them the plaintiff's claim became
barred. In 1965 the defendant negligence was dis
covered. The plaintiff brought an action claiming
damages against the defendant.
It was held that the plaintiff was entitled to
the lost fruits of the action which would have
taken place in Germany and that the quantum
of damages had to be assessed as if the action had
been tried in Germany and at the time it would
have been tried, which would have been in 1962.
The plaintiff had only proof that he had lost the
fruits of an action in which he would have estab
lished liability to the extent of 50 per cent because
both drivers were equally to blame. He was entitled
to damages for his injuries and for the adverse
effect of the accident upon his business up to the
time the action would have come to trial in Ger
many. He was also entitled to damages for the
defendant's subsequent acts of negligence up to
1965. The solicitor's obligation was a continuing
one while his retainer remained in operation and
the defendant had admitted negligence. It must
have been obvious to them that the plaintiff's ner
vous condition was getting worse through their de
lay and so the plaintiff was entitled to damages in
respect of that. He was also entitled to damages
for further business lost up to the time he should
have mitigated that loss by closing the business
down. Interest was payable by the defendant at
7 per cent on the amount awarded in respect of
the German claim. Judgment for the plaintiff
with costs.
[Malyon v Lawerence Messer and Co., 112
SJ 31, page 623].
Practice, striking out for delay
In January 1962 the plaintiff had a dental opera
tion in the course of which a nerve was damaged
or cut and this affected, inter alia, her control of
her tongue and her ability to speak. She instructed
solicitors who took steps to find if there was medi
cal evidence to support her case. In the corres
pondence, the hospital's solicitors strongly denied
liability, stating that the damage to the nerve was