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GAZETTE
MEDIWH
m
AR
ch
1995
beneficiaries lo act with due
expedition and care in effecting the
testator's instructions. Delivering the
lead majority speech. Lord Goff said
that it was open it) the court to fashion
an effective remedy for a solicitor's
breach of professional duty to his
client.
In effect, the majority of the House of
Lords considered that there was a
necessity for a remedy to fill a lacuna
in the law and so prevent an injustice
to disappointed beneficiaries which
would otherwise occur. The House of
Lords described the remedy as an
extension of the principle of
assumption of responsibility
developed in
Hedlex Byrne
tt-
Company
v Heller
& Partners
Limited
| 19641 AC 465.
The majority of the House of Lords
extended the law of negligence in this
manner by using the incremental
approach advocated in
Caparo
Industries
pic v Hickman
11990] I All
H R 568. There, the House of Lords
devised a test to determine whether in
any situation a duly of care existed
namely:
(a) forseeability of the damage
alleged
(b) a close and direct relationship
between the parties characterised
as proximity or neighbourhood,
and
(e) a requirement that it should be
lair, just and reasonable to impose
a duty on one party for the benefit
of another.
It followed that the solicitors owed the
daughters (plaintiffs) of the testator a
duty of care and since their negligence
had effectively deprived the plaintiffs
of the intended legacies the solicitors
were liable in negligence.
Counsel for the solicitors in the Court
of Appeal had in the House of Lords
conjured up the spectre of solicitors
being liable to an indeterminable
class, including persons unborn at the
date of the testator's death. Lord Goff.
in the leading majority speech, staled
that their Lordships were concerned
here with a liability which was
imposed by law to do practical justice
in a particular type of ease. There
must be boundaries to the availability
of a remedy in such eases: but these
would have to be worked out in the
future, as practical problems come
before the court. He observed that in
eases like the present ease liability
was not to an indeterminable class but
to the particular beneficiary or
beneficiaries whom the client intended
to benefit through the particular will.
Lord Goff did state that if by any
chance a more complicated ease
should arise to test the precise
boundaries of the principles in eases
of this kind, that problem could await
the solution when and if such a ease
comes forward for a decision.
False Sense of Complacency
Many of us can be lulled into a false
sense of complacency by dealing with
a client through correspondence. The
judgment emphasises that solicitors
must draw up w ills with the minimum
of delay.
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