213 / 736
due to an extremely unusual circumstance which
would not have been disclosed by x-rays. Writs
were issued against the surgeon and against the
hospital authority, in January 1965. The writ was
not served until 12th January 1966. The defen
dants entered appearance in due time. No state
ment of claim was delivered.
May 1968 the plaintiff's solicitors gave notice
of intention to file a statement of claim to the
defendants' solictors who applied for the action to
be dismissed for want of prosecution. The plaintiff
appealed against the order of Browne, J., of 21st
June 1968 upholding the order of the district
registrar dismissing the action for want of prose
cution.
Lord Denning, in his judgment, said that there
was inordinate and inexcusable delay. A good deal
of it was in the office of legal stationers employed
by the plaintiff's solicitors and was due to cricum-
stances, illness and loss, in the solicitors' office.
The whole delay had to be considered. Was there
any serious prejudice to the defendants so that a
fair trial was impossible? The answer was that the
lapes of time was so much that the probability
was that a fair trial was not possible. The appeal
dismissed.
[Strong v Rastell and Anr. 112 S.J. 842].
Conveyencing, Mortgage, Solicitor's Duty
Harmon, Salmon, L.L.J., and Baker, J.A., held
that a solicitor is not under a duty to ensure that
his client has procured a mortgage before
asking him to exchange contracts for the sale
of a house and dismissed an appeal from the
County Court which held that the solicitor was
not negligent. At the same time Court reversed
the County Court Judge's decision in the case
against Mr. Edward Watt, a chartered surveyor,
who was also acting for him. This defendant
being held negligent and the appellant being
awarded £161 damages.
Mr. Buckland, shopkeeper living over his shop,
heard from a customer that his house down the
road was for sale at £4,500. An estate agent
recommended him to Mr. Mackesy as a good
solicitor and Buckland subsequently instructed
Mackesy to act for him. Mr. Mackesy sent Mr.
Buckland a booklet by a solicitor on buying a
house and referred him to the pages in it on the
need to have a survey. The solicitor recommended
Mr. Watt as a good surveyor.
Mr. Watt the surveyor attended on the house,
took measurements, made drawings and then
wrote to Mr. Buckland indicating the living ac
commodation available in the house. The letter
added that, as a matter of interest, there were one
or two matters which needed attention such as
that the staircase was not sufficiently enclosed to
guard against fire and also two other minor mat
ters. A fee of 40 guineas later reduced to £33-0-0
was charged and the bill indicated that the fee
was for "attending the property for the purpose
of surveying and preparing drawings".
Buckland in evidence said that he read the
letter as showing all that was wrong with the
house. In fact it was riddled with wet rot, dry rot,
and woodworm, and had cracked foundations.
Another surveyor said in evidence that he would
have advised a building society not to touch the
property.
The solicitor deferred the exchange of contracts
for sometime, then sent a draft contract to Mr.
Buckland for signature at a time when the appli
cation to a building society for a mortgage had
not been determined, he told Mr. Buckland that
the most that could happen would be that he
would lose his £100 deposit and that if one wan
ted to get on one had to take a risk because if
nothing was ventured nothing was gained. The
solicitor was well aware that a mortgage was re
quired and that the purchaser was not even in a
position to put 10 per cent of the purchase money
but only a maximum £100. Mr. Buckland took
the risk, signed the contract and when the mort
gage was refused the deal fell through and he lost
his £100 deposit.
Mr. Buckland contended that Mr. Macksey was
negligent in allowing him to exchange contracts
without seeing that he had the necessary finance
for the purchase of the property. His Lordship
could not accept that contention. The solicitor
was not under a duty to insist that his client had
a mortgage and fulfilled his duty if he warned
the client of the risk which he incurred. Neither
professional man could be proud of his part in the
present case but nonetheless negligence had not
been established against Mr. Mackesy.
The surveyor stood on a different footing, he
was instructed to make the survey, charged for
making the survey and yet failed to give Mr.
Buckland a proper survey report. Mr. Watt was
negligent and must reimburse Mr. Buckland his
lost deposit, £40 of Mr. Mackesy's bill of costs of
£47 being the costs incurred after the date of
Mr. Watt's letter, and £21 of his own fee, the
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