145 / 244
having discovered the mistake in the bills drew
fresh bills and furnished them to the defendant
claiming the full scale fee in each case. By consent
the matter was referred by the Taxing Master for
determination by the Court. Counsel for the
plaintiff argued that under the implied contract of
retainer the full scale fees were payable by the
defendant and that no fresh contract was created
by the furnishing and acceptance of the bills at a
later stage. Counsel for the defendant submitted
that the furnishing and acceptance o f the bills
constituted offer and acceptance. It was held by
Mr. Justice Kingsmill Moore that it was an implied
term of the contract that the full scale fees should
be paid by the defendant and that there was no
accord and satisfaction.
The judgment as reported does not disclose the
costs which were recovered by the solicitor from
the purchaser of the several holdings, who was not
a party to the proceedings, but it would seem that
in the bills as furnished he was charged with half
the scale costs.
Negligence by Firm o f Accountants
The-case o f Candler
v.
Crane Christmas & Co.
(1951, I. A ll E .R . 42b), although concerned with
negligence by a firm of accountants in preparing
client’ s accounts, is of interest to solicitors. The
facts were that the managing director o f a private
company, which was seeking fresji capital, instructed
the defendants to prepare the company’s accounts
and balance sheet. The immediate object o f the
accounts, which was known to the defendants’
clerk who was dealing with the matter, was for
production to an intending subscriber o f capital to
satisfy him as to the financial stability of the com
pany. The clerk concerned, who was held to be
acting within the scope o f his employment, prepared
the accounts and they were shown to the plaintiff,
who was the intending subscriber of capital, in the
clerk’s presence, and the plaintiff subsequently
subscribed £2,000 for shares relying on the accuracy
of the accounts.
The accounts were subsequently certified by the
defendant firm in the form in which they had been
shown to the plaintiff. It was admitted that,
without any fraud on his part, the accounts were
completely misleading due to the failure o f the
clerk of the defendant firm to check and verify
information supplied by the managing director of
the client company, and negligence ^vas admitted.
The company went into liquidation and the plaintiff
lost the money which he had invested. The question
was whether the defendant firm in preparing the
accounts owed any duty to a third party beyond
their duty towards their own clients. It was held
by the English Court o f Appeal (Lord Justice
Denning dissenting), that in the absence o f a con
tractual or fiduciary relationship between the
parties, the defendants owed no duty to the plaintiff
to exercise care in preparing the accounts and giving
their certificate and that the plaintiff could not
maintain against them an action for negligence.
The case will probably rank as a leading decision on
the principles laid down by the House of Lords
in Donoghue
v.
Stevenson (1932, A.C. 502), the
“ snail in the bottle ” classic, in which the manu
facturers o f mineral waters, which were sold already
bottled to wholesalers and ultimately consumed
by persons with whom they were not in privity,
were liable to the consumers for damage due
to foreign matter introduced through the manu
facturers’ negligence. In that case Lord Atkin
suggested the following as the test o f liability:
“
You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would
be likely to injure your neighbour. Who, then, in
law, is my neighbour ? The answer seems to be—
persons who are so closely and directly affected
by my act that I ought reasonably to have them in
contemplation as being so affected when I am
directing my mind to the acts or omissions which
are called in question.”
This principle has, however, never been applied
where the damage complained of was not physical
damage either to person or property, and the Court
in the present case refused to extend it in the manner
sought by the plaintiff. Lord Justice Asquith said
that in the present state of the common law different
rules still seem to apply to negligent misstatement
on the one hand, and negligent circulation or
repair o f chattels on the other, and that Donoghue’s
case did not seem to him to have abolished these
differences.
Instructions to Sue for Gaming Debt
What is the duty of a solicitor on receiving
instructions to sue in respect o f a gaming debt ?
Since Hill
v.
Hill (1949), A.C. 530, it is no longer
possible to succeed on an allegation of consideration,
such as a promise not to report default to a union
or sporting organisation, and apart from limited
classes o f cases in which gaming debts are indirectly
enforceable, as in the case o f loans to pay betting
losses already incurred, it would seem to be impos
sible to give full particulars on a writ of a gaming
debt without disclosing that there is no cause of
action. The Lord Chief Justice expressed the
opinion, in giving evidence before the Royal
Commission on Betting in June, 1950, that it was
a contempt of court to endorse a writ for a gaming
debt as for “ an account stated.” He added that
73