62 / 244
Notwithstanding this case, however, it would
seem that a solicitor may be liable for negligence
if he omits to safe-guard his client in regard to
various matters which may arise after he has
received instructions but before the contract has
been signed, and not necessarily connected with
the title.
Town planning and other legislation has imposed
so many restrictions on the development o f property
that it is difficult to say where the solicitor’s duty
ends, and the client’ s duty to safeguard himself
begins.
Solicitors’ privilege
I
n
Bostock
v.
Bostock (1950 I. All E .R ., 25), there
were cross petitions for divorce on the ground
o f alleged desertion. At a certain stage o f the
proceedings, the parties and their solicitors met
at a conference at which a reconciliation was
discussed. Counsel for the husband, at a subsequent
stage of the proceedings, tendered evidence o f
events which took place at the meeting, but counsel
for the wife objected to the evidence being called
on the ground that the conversations at the meeting
were privileged. There had been no agreement
between the parties before the conference that
the proceedings would be conducted without
prejudice. It was held that what took place at the
meeting was not to be taken as without prejudice
and, consequently, privileged, in the absence o f a
specific declaration to that effect, and the evidence
tendered was admissible.
DECISIONS AFFECTING THE
PROFESSION
B
eeston
& S
tapleford
U.D.C.
v
.
S
mith
L
ocal
A
uthority
. U
nqualified
clerk
DRAWING MORTGAGE
M
ortgagor
’
s
liability
for
costs
B
efore
the Lord Chief Justice, Mr. Justice
Humphreys, and Mr. Justice Finnemore.
A Divisional Court, on an appeal by way of case
stated, affirmed on different grounds, the decision
of Nottingham justices convicting Beeston and
Stapleford Urban District Council and Mr. Charles
Harold Wragg, the clerk o f the council, o f an offence
against section 47 o f the Solicitors Act, 1932.
At a Court o f summary jurisdiction sitting at
Nottingham informations were preferred by the
respondent, Mr. Robert James Tull Smith, a solicitor
acting on behalf of the Law Society under section 47
o f the Solicitors Act, 1932, as amended by section 23
o f the Solicitors Act, 1941, against the appellant
urban district council and the appellant, Mr. Wragg,
their clerk. The Council were charged on each of
four informations with having, although not a
barrister or duly certificated solicitor, law agent,
writer to the signet, notary public, conveyancer,
special pleader, or draftsman in equity, either
directly or indirectly prepared a mortgage deed
relating to a mortgage by a named person. The
clerk was on the same facts charged on four informa
tions with drawing a mortgage deed, also contrary
to section 47 o f the Act o f 1932 as amended by
section 23 o f the Act o f 1941.
At the hearing o f the informations the following
facts,
inter alia
, were proved or admitted :—
The clerk received a salary from the council.
The council had passed a resolution undertaking
to act under the Small Dwellings Acquisition Act,
1899. By section 2 o f that Act the council had to be
satisfied that the title to property on which they
proposed to make an advance was one which an
ordinary mortgagee would be willing to accept,
and that the repayment o f the advance was secured
by an instrument vesting the property in the council,
subject to the right o f redemption.
In December, 1946, the council resolved to under
take investigation o f title and preparation of
mortgages themselves, and decided that it should
be done by their clerk. In 1947 four advances were
made to residents, and the mortgages were pre
pared by the clerk, for which work a bill was in
each case rendered. Sums thus paid to the council
by mortgagors were credited to the council’s general
rate fund.
For the clerk and the council it was contended,
inter alia,
that they had not acted for fee, gain, or
reward, and so were within the proviso to section 47
o f the Act o f 1932 ; and that the clerk was a public
officer drawing or preparing instruments in the
course o f his duty within the meaning o f section 47
(3) so that section 47 (1) did not apply to him.
The justices held that the clerk and the council
were acting
ultra vires
, and they accordingly con
victed them and fined them 10s. each on each of
the informations. They further held that the clerk
was a public officer and that, had he not been acting
ultra vires,
they would therefore have dismissed the
informations.
The council and their clerk appealed.
The Lord Chief Justice giving judgment, said
56