102 / 338
A. vendor of rent-restricted property which has become
vacant between the dates of the contract and of completion
is under a duty to consult the purchaser before reletting before
completion of the contract.
After the appellants had entered into an agreement
to sell to the respondents property in Nairobi con
sisting of three shops let to three tenants at rents
controlled under the local rent restriction legislation,
one of the tenants surrendered his tenancy before
completion of the contract. The appellants, without
consulting the respondents, relet the vacated shop
on the same day to another tenant at the same
maximum controlled rent. The evidence established
that the value of the premises with the vacated shop
unlet was Shs. 18,000
f-
more than with the shop let.
The appellants being unwilling to compensate the
respondents in respect of the depreciation in value
of the premises resulting from the reletting, the re
spondents claimed specific performance of the agree
ment and compensation by way of an abatement of
the purchase price for the loss resulting from the
reletting :—Held by the Privy Council (Lord Reid,
Lord Cohen and Lord Somervell) affirming the
Court of Appeal for East Africa that the vendors'
obligations were defined in section 5 5 (i) (<?) of the
Indian Transfer of Property Act, 1882, as applied to
Kenya, which provided that the seller was bound
"between the date of the contract of sale and the
delivery of the property to take as much care of the
property ... as an owner of ordinary prudence would
take of such property. .. ." The words "take . . . care
of the property" were not restricted to the preserva
tion of the property from physical deterioration, but
included care in its management having regard to the
interest of the purchaser. On that view the obliga
tions imposed by section 5 5 (i)
(e)
were substantially
those imposed on the vendor under English Law,
and the vendors here had no right, without con
sultation with the purchasers, to diminish the value
of the property as it was after the surrender by re-
letting. The respondents were therefore entitled to a
decree for specific performance and an abatement of
Shs. i8,ooo/- from the purchase price.
(Abdulla P.'Shah—(1959)
2.
W.L.R. 12.)
Motionfor committalfor contempt of solicitor dismissed.
A firm of solicitors who had instituted proceedings
on behalf of clients for alleged infringement of
trading rights sent round letters to members of the
trade informing them that the writ had been issued.
The defendants alleged
that
this amounted
to
contempt of Court and threatened to bring pro
ceedings for contempt against one member of the
firm unless a certain notice was published in the
Press. One of the partners in the firm agreed to the
publication of this notice but his agreement was
not endorsed by the firm and the notice was not
published. Mr. Justice Vaisey dismissed this motion
by Richmond Film Productions for the committal
of a member of a firm of solicitors, for alleged
contempt of Court in failing to procure the pub
lication of a notice which a partner in the firm, had
agreed through counsel to give an undertaking to
publish in the Press.
Sir Lionel Heald, for the Law Society, said that in
view of some uncertainty in the public mind it was
desirable to make it clear what the position of soli
citors was. Anything a solicitor did in his capacity
as a solicitor, wherever he did it, rendered him
amenable to the discipline of the Court.
In
Myers v. Elman
((1940) A.C. 282) Lord Atkin
had said that from time immemorial judges had ex
ercised a disciplinary jurisdiction over solicitors in
cases of misconduct. Solicitors were now subject to
two concurrent jurisdictions;
judicial action by a
solicitor should always be dealt with by the Court,
while extra-judicial action by a solicitor should nor
mally be dealt with by the Disciplinary Committee of
the Law Society, an independent statutory body, with
appeal to the Divisional Court of the Queen's Bench
Division. As a general rule the maxim
pacta servanda
sunt
applied but there must be some limit to this in
cases of fraud, mistake or duress. The Court of
Appeal had recently decided, in
Hughes v. Hughes
((1958) 3. W.L.R. 500) that the Court had no juris
diction to relieve a solicitor of an extra-judicial
undertaking given by another solicitor.
His Lordship said that no officer of his Court
ought to sign a document and repudiate it. But there
was an obligation on him to protect his officers from
embarrassment and, if they got into difficulty, to
help them.
Mr. Justice Vaisey, giving judgment, said that this
was a motion which he believed, and sincerely hoped,
was unprecedented. After the writ was issued on
December 12, 1958, certain publicity was given on
behalf of the plaintiff, Mr. Schuller, to which the
defendant company, Richmond Film Productions,
took exception. A meeting took place on January 16,
1959, between counsel for the film company and
a partner in the firm, as a result of which a most
extraordinary document was produced.
It was
headed, "In the matter of the action Schuller
v.
Richmond Film Productions" and then "In the
matter of an application on behalf of the defendants
.
.
. for an order for committal against the solicitor
for contempt of Court." In fact there had never been
any application on the part of the defendants to
commit the solicitor for contempt of court and the
heading was completely wrong.
It was initialled as a "minute" and signed by
counsel for the company and, curiously enough, by