244 / 266
and provided sufficient monies should be recovered
from the English debtors. The defendants filed an
affidavit to the effect that they never received any
monies from this source and that their retainer
was discharged before the English action was settled.
Apart from the question of fact, however, it was
submitted by the defendants that the proceedings
were irregular and could not be brought by summary
summons, and further, that indorsement o f claim
was defective in not giving all necessary particulars
and in failing to indicate that the special jurisdiction
o f the Court to control its officers and enforce
their undertakings was being invoked.
Reference having been made to Cordery on
Solicitors, and to Kerly and Son and Verden (1901)
1 Ch. 457 and Swyny
v.
Harland (1894) 1 Q.B. 707,
the Courts held that the proceedings were properly
brought by summary summons (Form 3) and that
if necessary, the plaintiffs should be allowed to
amend their indorsements of claim as part o f an
order referring the case to plenary hearing.^ As,
however, the plaintiffs’ affidavits were defective in
not proving that any monies had come to the hands
or under the control o f the defendants, the claim
must be dismissed unless the plaintiffs wished an
adjournment (on terms) in order to file a further
affidavit. The plaintiffs were granted an adjournment
for this purpose on terms of paying the defendants’
costs of the day.
In opening the case, counsel for the plaintiffs
observed that there appeared to be no precedent
for such a claim since the coming into effect o f the
High Court Rules o f 1926, but it appeared from the
older authorities that the Court would enforce
undertakings o f its officers on application being made
to the Court in a summary summons; accordingly
procedure by a Form 3 Summary Summons appeared
to be appropriate.
(Irish haw Times,
6th November,
1954
)-
Alleged negligence in answering requisition as title
Premises, o f which the plaintiff had been the
owner since 1922 were subject to a covenant restric
ting their use to that of a private dwelling-house,
but had in fact been used continuously for business
purposes since before 1922 without any complaint
being made. In 1948 the plaintiff sold the premises
by auction to B., who paid a deposit. The particulars
of sale described the premises as “ valuable and
commanding freehold corner shop premises,” and
there were special conditions o f sale o f which
condition 7 provided that the property was sold
subject to the restrictive covenants as to user and
other matters contained in a certain deed, being
the deed which had imposed the particular covenant
restricting user to that o f a private dwelling-house,
so far as the covenants were subsisting and capable
o f taking effect. The special conditions stated that
a copy of the restrictive covenants might be inspected
at the offices o f the vendor’s solicitors, but did not
further define the exact nature of the particular
covenants. In answer to a requisition on_ title
whether the property was subject to restrictive
covenants, the defendants, who were acting as
solicitors for the plaintiff, replied “ Yes. See Special
Condition 7. There appear to have been breaches of
the covenant as to user but no notice o f breach has
been served.” The purchaser refused to complete
and recovered his deposit in an action brought by
him in 1951 for the purpose against the plaintiff.
In 1949 while the action was pending, opportunity
arose to sell the premises to another purchaser,
but the plaintiff was advised by the defendants
through their managing clerk not to sell during the
pendency of the proceedings, and accordingly did
not sell. Subsequently, the premises were severely
damaged by fire at a time when they were not
insured against that risk, the plaintiff having allowed
the insurance to lapse. In an action by the plaintiff
against the defendants for damages for negligence
as his solicitors, held by the Court of Appeal
(Denning, Hodson and Parker, L .J.J.) affirming
Harman J ., that (i) as the reply given by the defen
dants to the requisition on title was in accordance
with the general conveyancing practice which had
prevailed for a long time, the defendants were not
negligent, although the answer enabled the purchaser
to refuse to complete the contract, because that
consequence could not reasonably have been foreseen
at the time when the requisition was answered.
(ii) Even if the advice given by the defendants
in 1949 against selling the premises was negligent,
yet the damage to the premises by fire was too
remote and the plaintiff’s claim to recover this
damage failed.
Per Denning L . J . : “ Let any lawyer put himself
in their position. They knew that there were some
old restrictions on these premises which had not
been enforced for years. The restrictions were in
all probability obsolete, but the solicitors could not
assert categorically that they were obsolete.
It
would obviously not be right for solicitors, without
full investigation, to commit the vendor to a
warranty that the restrictions were obsolete. So
they guarded their client by putting a special condi
tion in the contract saying that he sold the property
subject to the restrictions so far as they were still
subsisting and capable o f taking effect: and when
it came to the answer to the requisition, they tried
to protect their client by saying the same thing over
66