62 / 300
of 30 Morehampton Road, Dublin, against Bewley Ryan
and Co., of 8 Anglesea Street, Dublin. Bewley Ryan
and Co. had sued Mr. Cruess-Callaghan for £5,662,
the balance due for money paid for him at his request
and for commission.
Any misrepresentation to the client,
whether
fraudu-
lent or innocent, as to a material fact would
constitute
a
breach of duty on his part.
He must, of course, carry
°ut any instructions given to him to the best of his
ability, but he was not bound to give advice to his client
unless he was asked to do so, but if he did give advice,
be must do so honestly, and to the best of his ability.
. Judgment for the full amount with costs was given
•n favour of Bewley Ryan and Co. by Mr. Justice
Henchy in 1972, but execution on foot of the judgment
was stayed in the event of Mr. Cruess-Callaghan lodg-
ing that amount and delivering a countercclaim with-
'n seven days of the order.
Mr. Cruess-Callaghan complied with that order in
re
gard to the lodgment and delivered the counter
claim in which he claimed damages for breach of
contract, misrepresentation, negligence and breach of
duty by Bewley and Co., as his stockbrokers, in relation
t o
the purchase of certain Australian mining shares.
Stockbrokers' Duties
In a long judgment, Mr. Justice Pringle dealt in
detail with the matters which gave rise to the dispute
and then went on to refer to the duties of a stock-
broker.
A stockbroker, he said, was bound to exercise the skill
and competence of an ordinary competent practitioner
*
n
that profession. He was bound at all times to act
•airly and honestly in the interest of his client.
Judged by these tests, said Mr. Justice Pringle, he
W a
s satisfied that Bewley Ryan and Co. Were guilty of
Ce
rtain breaches of their duty to Mr. Cruess-Callaghan.
In the first place, in the light of what he (the judge)
had held to be the contract between the parties, Bewley
Byan and Co. had wrongfully claimed payment in full
for Whim Creek shares and represented that most of
them had been delivered when they had not received
delivery of or made payment for any of them, thus
misleading Mr. Cruess-Callaghan into assuming that
such delivery had been made.
Secondly, they failed to deliver the bonds to the bank
as soon as they arrived. Thirdly, they failed to inform
Mr. Cruess-Callaghan on September 10 that only 1,000
of the Whim Creek bonds had then been delivered and
paid for at a time when they knew or ought to have
known that he urgently contemplated selling them and
was under the misapprehension that they were all avail-
able. And fourthly, they failed to inform Mr. Cruess-
Callaghan's agent, when he contacted them that 4,000
bonds were then available for sale for cash.
Mr. Justice Pringle said he would not accept the
submission that Mr. Cruess-Callaghan's failure to pay
what was clearly due by him on the purchase of West-
field shares constituted such a breach of contract by
him as to entitle Bewley Ryan and Co. to treat the
agreement in regard to the payment for the Whim
Creek Shares as repudiated. In his opinion each
transaction must be regarded as a separate transaction.
Section 34 of the Civil Liability Act, 1961, provided
for the apportionment of degrees of fault between a
plaintiff and a defendant who were each responsible to
some degree for the loss owing to their negligence or
want of care, or that of one for whom they were
responsible, and this Section applied to any wrongdoers,
including those guilty of breach of contract.
Mr. Justice Pringle said that he considered that
Bewley Ryan and Co. and Mr. Cruess-Callaghan
(through his agent) were equally at fault and he there-
fore, awarded Mr. Cruess-Callaghan £1,320 damages
on his counter-claim, that sum to be set off against the
amount of the judgment earlier obtained by Bewley
Ryan and Co.
[Cruess-Callaghan v. Bewley, Ryan & Co. Ltd.;
Pringle J.; unreported; 15/1/1974. ]
ENGLISH DECISIONS OF PROFESSIONAL INTEREST
Regina v. Muncaster
Before Lord Justice Edmund Davies, Mr. Justice
MacKenna and Mr. Justice Boreham.
The Court of Appeal found it impossible to under-
hand how a sentence of 20-year disqualification could
have been justified, even for an offence of driving while
disqualified.
Their Lordships allowed an appeal by Allan Muncas-
t e r
, aged 39, a plumber, against a sentence of 12 months'
•^prisonment imposed on him at Middlesex Crown
^ou rt (Judge Edie), last October after he had pleaded
guilty to a charge of driving a motor vehicle while
disqualified. They ordered his immediate discharge.
Morley London Developments Ltd. v. Rightside
Properties Ltd.
Before Lord Justice Edmund Davies, Lord Justice
Stephenson and Mr. Justice Bagnall.
A plaintiff in the High Court who claims various
heads of relief, as opposed to asserting several causes
action, may abandon any head of relief without
n
°tice to the defendant. If the only claim left is for
^ l i q u i d a t ed damages and no defence has been entered
he may enter judgment in default of defence under
Order 19 rule 3 of the Rules of the Supreme Court.
Election to seek damages only necessarily involves with-
100
drawal of an alternative claim to specific performance.
Th e court dismissed an interlocutory appeal by the
defendants, Rightside Properties Ltd. from a judgment
of Mr. Justice Templeman on March 20 whereby he
ordered that a final judgment for damages to be assessed
which had been entered in favour of the plaintiffs,
Morley London Developments Ltd. on November 22,
1972, in default of defence, be set aside on condition
that the defendants paid £23,000 into court within
seven days. The defendants on the appeal contended
that the judge should have granted them unconditional
leave to defend.
Or d er 19, rule 3, provides: "Where the plaintiff's
claim against a defendant is for unliquidated damages
only, then, if that defendant fails to serve a defence
on the plaintiff, the plaintiff may, after the expiration
of the period fired . . . for service of the defence, enter
interlocutory judgment against that defendant for
damages to be assessed and costs. . . . "
Order 21 rule 2 (1) provides : "The plaintiff in an
action begun by writ may, without the leave of the
court, discontinue the action, or withdraw any parti-
cular claim made by him therein, . . . at any time not
later than 14 days after service of the defence on him
. . . by serving a notice to that effect on the defen-
dant. . . ."