215 / 324
failure to use reasonable skill and diligence as her
solicitor.
HELD by Ashworth J. that:—(i) the defendant
had been negligent in failing to point out to the
plaintiff in 1949, when the wills were made and
the question of her marriage with Mr. H. was
raised, that the marriage would revoke the wills.
Griffiths
v.
Evans
((1953)
2 All E.R. 1364).
distinguished.
(ii) the damage was not too remote because,
the plaintiff's claim was for breach of con
tract (Groom
v.
Crocker (1938)
z
All E.R.
394, applied), and
(a)
if the damage to the
plaintiff were viewed as her lack of know
ledge of her need to persuade Mr. H. to
make a new will, that was a natural con
sequence
of
the
defendant's
negligence
within the first rule in Hadley
v.
Baxendale
((1854), 9 Exch. 341) or
(b)
if the remoteness
of the damage were tested by what might
reasonably be supposed to have been in
the contemplation of
the defendant
(in
accordance with
the
rule
in Hadley
v.
Baxendale supra) it was not unreasonable
to impute to him realisation that he was
depriving the plaintiff of a chance of re
covering for herself the benefits that she
would, but for her marriage, have gained
from Mr. H.'s will of December, 1949.
(iii) although the existence of contingencies that
had to be satisfied before the plaintiff would
have realised the benefits to be conferred
by Mr. H.'s will did not render the damage
too remote, since there was reasonable pros
pect of them being satisfied
(dictum of
Fletcher Moulton, L.J., in Chaplin
v.
Hicks
(1911)
2.
K.B. at P. 793, applied), yet their
existence reduced the amount at which the
damages should be assessed, and in view
of this, the damages awarded would be
£1.250.
(iv) the defendant, being separately instructed
by the plaintiff, was under no duty to inform
her either in September, 1950
(when he
learned of her marriage), or in 1952 (when
he drew a new will for her), that her marriage
had revoked Mr. H.'s will.
Note:—
The result of this case and of Griffiths
". Evans may perhaps be summed up as follows :—
(i) The duty of reasonable care owed by a
solicitor to his client required the solicitor
not merely to obey his instructions, but to
exercise reasonable foresight, at the time
when he receives those instructions, as to
to likely effect of any change of circumstances
which ought then to be within his contem
plation, and to warn his client accordingly.
(ii) If something occurs after
the particular
transaction has been completed, which he
was not bound to foresee when originally
consulted, he is not generally bound to re
open the matter with his client.
(iii) He is not bound to refer to matters which
do not directly affect the subject of the
retainer.
(Hall
v.
Meyrick—(1957) i All E.R. 208).
Inquiry into previous arrangement by successful respondent
that be should not be liable for his counsel's fees
refused by Privy Council.
A petition of a most unusual type in connection
with the costs of an appeal came before the Judicial
Committee of the Privy Council on 22nd January
last, when counsel for the petitioner, an appellant
who had been unsuccessful on the merits in a recent
appeal to the Board and had been ordered to pay
two-thirds of the respondent's costs of the appeal,
stated that the petitioner believed that an arrange
ment had been entered into before the hearing of
the appeal between the respondent company, its
solicitors and a third party which was a stranger
to the proceedings but was concerned to maintain
the judgment appealed from, whereby the respondent
should not be liable for fees of counsel. What
the petitioner wanted to know, said counsel, was
whether any such agreement had been entered into,
for if it had, there were authorities to show that
there was no liability on the party ordered to pay
costs for that particular item of costs. Those auth
orities—Grundy
v.
Sainsbury (1910)
i K.B. 645
and Adams
v.
London Improved Motor, etc.
(1921) i K.B. 495—supported the following pro
positions :
(i) Party and party costs were awarded
in the nature of an indemnity to the successful
party.
(2) If, for any reason, the successful party
was under no liability to pay his solicitor any costs,
he could not recover any costs from his opponent.
(3) That principle applied equally to a particular
item of costs as it did to the whole costs.
(4) In
particular, if the solicitor agreed not to charge the
client with counsel's fees or to look only to some
third party for payment of those fees, and the
opponent in the litigation was ordered to pay costs
generally, he could not be charged with that item.
He was not suggesting, said counsel, that there
was anything improper in the fact, if it were the