191 / 324
advise that the same could be successfully contested
by the assured, and the assured consents to such
claim being contested, but such consent not to be
unreasonably withheld."
The plaintiffs acted as
accountants to H. Ltd., and in the course of their
duties they received and paid out money on behalf
of H. Ltd. At the end of 1952 it appeared that B.,
a clerk of the plaintiffs, had received from H. Ltd.,
some £20,000 which could not be accounted for.
H. Ltd., brought an action against the plaintiffs,
relying on the irregularities of B. and alleging that
the plaintiffs were negligent in failing to keep proper
books-and to supervise the activities of B.
The
statement of claim disclosed a claim in respect of
one loss, but three causes of action were alleged,
viz., for (i) damages for negligence or breach of
duty as accountants ;
(ii) money had and received ;
and (iii) moneys converted by the plaintiffs to their
own use.
HEAD (iii) was restricted to the acts of B. as con
stituting wrongful conversion, but no direct allega
tion of fraud or dishonesty was made. The plaintiffs
now claimed against the underwriters that the claim
made in the action by H. Ltd., was covered by
the Q.C. clause.
HELD by Devlin J. that the claims were not
covered by the Q.C. clause for the following
reasons :—
(i) on the true construction of the policy, the
word " claim" was limited to an unmixed
claim, viz., a claim only in respect of an
" act of neglect, default or error", which
was a description that did not include a
claim based on dishonesty or a claim for
money had and received where the claim
arose out of dishonest acts, and
(ii) the claims against the plaintiffs were not
such an unmixed claim as is described at (i)
above, having regard to the facts that they
included a claim for money had and received
and arose out of dishonesty on B.'s part,
although the dishonesty was not alleged in
the action by H. Ltd., against the plaintiffs.
Per Curiam :
Underwriters were not bound by
the way in which a claimant chose to formulate
his claim, but could properly invite the court to
ascertain the true nature of the claim and to make
. such inquiry as might be necessary for that purpose.
The Q.C. clause analysed post.
(West Wake Price
&
Co.
v.
Ching—(1956) 3.
All E.R. 821).
If vendor, after entering a contract
to sell registered
land changes his solicitors,
the new solicitors are
entitled to
the scale fee if they have substantially
performed the work.
AFTER entering into a contract to sell land registered
with possessory title, a vendor changed his solicitors.
The contract contained imperfections and the new
solicitors had a good deal of work to do in connec
tion with it.
The new solicitors completed the
transfer of the land, and in their bill of costs to the
vendor charged the scale fee prescribed by the
Solicitors' Remuneration (Registered Land) Order,
1925, art. i (D) (i) and Schedule, together with
item charges for work not within the scale. The
taxing master disallowed the scale fee on the ground
that not all the work which the fee was described
in art. i (H) as covering had been done by the new
solicitors. On appeal against the taxing master's
disallowance of the scale fee.
HELD
by the Court of Appeal (Singleton and
Jenkins
L.JJ.) that the new solicitors were entitled
to the scale fee because they did the main part or
substantially the whole of the work set out in art.
i (H).
Per Jenkins, L.J. :
the principle stated in Re
Lacey & Son ((1883), 25 Ch.D. 301), applies to
remuneration in respect of registered land as it
does to remuneration with respect to unregistered
land.
Editorial Note. This decision should be compared
with " Broughton
v.
Thorne" Re No. 10 The
Terrace, Hampton Wick (1957)
i All E.R. 87),
which was decided only a few days before the present
case.
Jenkins, L.J., in the present case, and Vaisey,
J., in the former case, both refer to the same differ
ence in wording in the remuneration orders, viz. that
the remuneration by scale for transfer of registered
land on sale " covers " certain work and that the
scale fee under the Solicitors' Remuneration Order,
1883, on sales is expressed to be "for" certain
work. Jenkins, L.J., relies on the words " if any "
which are to be found in the comparable passages
in both orders, and on the judgment of Fry, L.J.,
in Re Lacey & Son ((1883), 25 Ch. D. at p. 311)
as supporting the view that the scale fee can be
charged although not every item of the work
mentioned in art. i (H) of the Order of 1925 has
been done.
It should however be borne in mind
that the words " if any" do not appear in the
corresponding Irish general order.
(Re
Taxation of Costs: Re a solicitor, 1957-
i A.E.R. 427).