313 / 324
the plaintiff had tendered his advice of proofs re
quired on the trial of all the matters then in issue.
' In June 1957 on consent of both parties, Haugh, J.
gave judgment for the plaintiff for £2,000 and costs,
and ordered that the £2,000 lodged in Court with
the defence with a denial of liability, be paid out
to the plaintiff in satisfaction of his claim.
The
plaintiff's bill of costs came first before the Taxing
•Master in August 1957, when the Master allowed
some items which the defendant's solicitors con
tended should not have been allowed, and asked
the Taxing Master in October 1957 to review the
taxation. A fee for senior counsel to settle a reply
was allowed as being " of an unusual nature".
A fee of £180 for instructions by plaintiff's solicitor
was allowed, on the ground that plaintiff's solicitor,
from service of Notice of trial until the 16th February,
had to and did do work to prepare for a trial on all
the issues mentioned. He received counsel's direc
tions for proofs on 2nd February and sent his briefs
to counsel before i6th February, in the reasonable
belief that all the issues would be contested by the
defendants. He submitted that the admission of
negligence by the defendant's solicitors came too
late to have the action treated for the purposes of
costs in effect as an action for an assessment of
damages. The defendant's solicitors then moved on
22hd November, 1957 before Murnaghan, J. for an
order to review the taxation of the plaintiff's costs and
to overrule the report of the Taxing Master, but
Murnaghan, J. refused the application and made no
order as to costs.
Woman 'Entitled to Damages of
£2,000
for negligence of
solicitors
12
years ago.
The Master of the Rolls, Lord Justice Parker and
Lord Justice Sellers dismissed this appeal by Messrs.
Donald, Darlington and Nice, solicitors, of Clement's
Inn, London, against the judgment of Mr. Justice
Lloyd-Jacobs, sitting as an additional Judge of the
Queen's Bench Division
(The Times,
May 22nd,
(1957),awarding £2,000 damages to Mrs. Kitchen,of
Kent. The solicitors were advising Mrs. Kitchen
on her claim against the West Kent Electricity
Company Ltd., arising out of the death of her
husband on May 22nd, 1945, from electrocution
from a faulty installation.
Section 26(b) of the limitation Act, 1939, provides
that where a right of action was concealed by fraud
the period of limitation should not begin to run
until the plaintiff discovered or could with reasonable
diligence have discovered the fraud.
The Master of the Rolls, giving judgment, said
that in May, 1945, the plaintiff's husband, a leading
aircraftsman in the R.A.F., was home on leave.
They had then two small daughters, and the plaintiff
was expecting a third child. At about 8 o'clock on
the morning of May 22nd the husband went to
the kitchen to get his wife a cup of tea. He turned
on the main switch in the control box ;
he was
electrocuted and died almost at once. No one could
fail to feel the deepest sympathy with the plaintiff.
After the accident her case was forwarded to the
R.A.F. Association. The association, having been
informed of the circumstances of Mr. Kitchen's
death, availed themselves of the fact that a number
of firms of solicitors, members of which had served
in the R.A.F., had offered to assist the association as
occasion arose and so in November, 1945, the
Association forwarded the information about Mr.
Kitchen's death to the appellants. By June or July,
1946, the solicitors not only had done nothing for
Mrs. Kitchen but they had made it virtually im
possible ever to do anything for her. They had
allowed time for proceedings under the Fatal Acci
dents Act to run out. They had disregarded any
separate claim under the Law Reform Act. They had
told the West Kent Electricity Company Ltd. that
Mrs. Kitchen had no claim, but they had asked the
company for an ex gratia payment which had been
refused. Mrs. Kitchen, however, had written to the
company in October, 1945,35 a result of which in
effect (though it was not realized at the time by her)
she got the sum of £100 from the company, less 5
guineas deducted for the appellants.
In one of her letters, Mrs. Kitchen wrote :
" I
suppose I was just another charity case." " I cannot
resist the conclusion," said his Lordship, " that
sad and ironical though it is, there is truth in what
Mrs. Kitchen has said. This is not perhaps the first
time where disaster has been the product of amiable
intention and where benevolence has not been backed
by effort." It seemed tragically clear that the solicitors
had not applied their minds to their obligations in
the way they would have done had they been in
structed in the ordinary professional course. The
course they chose was that of least resistance or
effort.
His Lordship agreed with the Judge that the
case of negligence by the solicitors was made out.
The solicitors, however, had pleaded the Statute
of Limitations, which they were entitled to do. The
onus rested on Mrs. Kitchen to show that the
solicitors were disentitled to rely on it, and this
she sought to do by relying upon paragraph
(b}
of section 26 of the Act of 1939.
In October and November, 1946, the solicitors
wrote to the electricity company suggesting that
any grant made by the company would be recipro
cated by an undertaking to accept it in full and final
106