21 / 144
to be paid out of a fund in Court) the form and
mode of issuing of the certificate lies in the
discretion of the Taxing Master, provided that it
contains all the material particulars.
Professional Negligence.
THE obligation of a solicitor to exercise skill and
care in the course of his professional dealings on
behalf of his clients has been the subject of many
legal decisions, but it is by no means simple in
border-line cases
to say where
the requisite
standard of professional efficiency approaches an
infallibility which the law attributes to no human
being. The duty which is imposed on the solicitor
in regard to those matters of law and procedure
which are his professional concern does not, in
the absence of special instructions accepted from
the client, necessarily extend to matters of busi
ness from which they are often inseparable. A
client when entrusting his affairs to his solicitor
frequently relies on him to keep him right in
business as well .as in strictly legal matters, and,
no doubt, in advising clients, particularly persons
of inexperience, solicitors often do try to safe
guard their interests generally. The precise point
where the professional obligation of the solicitor,
in the absence of special instructions, ceases may
be difficult to define. Is he, for instance, obliged
to notify a client for whom he is acting of the
approach of the date for exercising an option to
renew or determine a lease ?
This point was
discussed in Yager
v.
Fishman & Co. and Teff
and Teff (1944, 1 All E.R.552) recently decided
in the English Court of Appeal. The facts of the
case were complicated but the principal point
affecting solicitors was comparatively short. The
plaintiff was a business man who had gone surety
for the performance by a limited company of the
sub-lessee's obligations under a sublease which
reserved a substantial rent. The sublease con
tained an option to the sublessee to determine
it by notice at the end of the third, seventh or
fourteenth years. The company went into volun
tary liquidation and the plaintiff became liable
as surety under his guarantee to pay the rent
accrued and accruing due. It was proved that he
had knowledge of the existence of the option in
the sublease. In 1938, in the course of a letter to
his former solicitors, he had asked : "Why didn't
you call my attention to the fact that I could have
got out of this agreement in 1937 ?", to which the
solicitors had replied : "It is no part of our duty
to keep a record of when each client has to give
notice to determine a lease." His case against the
successful appellants was that he had employed
them on a retainer to take steps to end his liability
under the sublease by taking the necessary steps
to secure the effective exercise of the option to
determine it, and that the solicitors had negligent
ly failed to do so or to warn him in time that the
option could not be exercised after a certain date.
The Court of Appeal found that there was no
such retainer as was pleaded by the plaintiff;
that the solicitors were, in fact, retained for the
purpose of getting the sublessee's term vested in
the plaintiff and effecting a sub-underletting of
the premises to a tenant at a rent sufficient to
discharge the arrears due to the landlord ; and
that while other solicitors might well have
suggested to the plaintiff the advisability of
securing the exercise of the option to determine
the lease they would have been under no duty to
do so. Per Scott, L. J. "There is no allegation in
the statement of claim of any request by the
respondent for advice upon any question of
business as distinct from
law—in particular
upon the question whether it would be better
business for the respondent on the one hand to
try and get out of the underlease liability even
at the expense of paying all arrears of rent and
accepting liability for dilapidations, or on the
other hand to maintain the underlease and find
a tenant whose rent would cover his current and
future financial liability to the landlords. To
impose on a solicitor the legal responsibility of
answering such a business question would require
both unequivocal instructions and unqualified
acceptance ; for it is no part of a solicitor's normal
duty to profess the skill and experience for giving
such advice. On what the position would be if he
with his eyes open were to accept such a res- .
ponsibility, I express no opinion." No doubt,
in some cases, a solicitor acting for a client would
fail in his duty if he omitted to notify him of the
approach of the date for exercising an option.
The client, however, is presumed to be conversant
with his own affairs and his solicitors are not
bound to supply defects in his memory unless
clearly requested to do so.
Restriction of Rents Order 1943.
A MEMBER of the Society has drawn attention to
the fact that there is no provision in the Emer
gency Powers (No. 313) Order, 1944 prohibiting
the taking by a landlord of a premium, commonly
known as "key money," as a condition of the
grant renewal or continuance of a tenancy of
premises to which the Order applies, on the lines
15