213 / 364
Thorn v. University of London
(Times
news
paper, 18th March 1966).
Acting for both Parties/Professional Negligence
An action, claiming damages for professional
negligence was brought by the purchaser of a
lease-hold interest against a solicitor who acted
for vendor and purchaser.
After discussing the proposed transaction with
the vendor and leaving a deposit of £100 with
him, the plaintiff had an interview with the defen
dant and told him that he was anxious to get into
the premises immediately to complete some re
pairs.
The defendant, in the presence of the plaintiff,
phoned the vendor and upon the latter's instruc
tions informed the plaintiff that he was free to
take possession on payment of £100 balance and
£38 costs.
The plaintiff paid the sum requested, entered
into possession and spent about £1,000 on repairs.
No contract had been signed and the defendant
was then told by the vendor that he did not wish
to proceed with the transaction.
The plaintiff's case against the defendant was
that he was negligent in not warning him of the
risks he took when he started the repairs before
ensuring that there was a signed contract, and in
failing to obtain from the vendor his signature to
a contract at once.
The defendant replied that the plaintiff ought
to have mitigated his damages specifically by
bringing an action for specific performance against
the vendor, on which he was bound to succeed.
The defendant further stated that he had ad
vised the plaintiff as to his rights in the matter
but the Court did not accept this evidence.
Under the circumstances the Court held that it
was the plaintiff's duty to mitigate his damages
and to act reasonably in doing so, but it had been
said that the standard of reasonableness was not
high.
The plaintiff in this case could not be held to
blame because as soon as he could he took his
affairs out of the defendant's hands and instruc
ted other solicitors and thereafter proceeded to
act on their advice.
The defendant claimed indemnity against the
vendor as third party, but the Court found that
no instructions as to permission to the plaintiff to
take possession and do repairs were given by the
vendor to the defendant. Further it was difficult
to see how the defendant could claim indemnity
from a client for his own negligence when dealing
with another client of his, and accordingly the
claim against the third party was dismissed.
Judgment on the issue of negligence was given
against the solicitor. (Attard v. Samson, Poister,
Third Party.
The Times
newspaper, 23rd March
1966).
STATUTORY NOTICE TO CREDITORS
(22 and 23 VICT. C.35 S.29)
Stuart v. Babington (1891) 27 L.R.I. 551
In considering the question of sufficiency of
notice regard is had to the place of residence of
the deceased and his position in life. In 1891 the
Court practice was to direct publication "in two
local papers, never less, and in one paper having
a general circulation" (see above report at p. 557).
Since the 1920s the examiner's practice has been
to direct publication in one local paper and one
national paper, twice in each, allowing about one
month from the first publication to send in claims.
That, of course, is a
general
practice subject to
variation either way. Because of extended commer
cial activity publication may be necessary in Eng
lish or continental papers. On the other hand
publication may be curtailed, e.g. a deceased small
farmer in Glenmalure Valley dead over six years
—one publication in
Wicklow People
or
Indepen
dent
or
Press
(but not
Times)
might suffice. The
Schedule of Assets
is used as a
rough guide.
Because of its
limited circulation the examiner
never directs publication Iris Oifigiuil.
The cost of publication cannot be used as a
factor. If cost has gone up so has the value of
assets. This argument was used, unsuccessfully, by
auctioneers seeking a higher percentage on sales
of properties. The Statutory Notice is for the pro
tection of personal representatives. Accordingly
they should, after perusal of the deceased's papers
and accounts (if any), decided the scope of pub
lication—if it is reasonable the Court will, no
doubt, uphold them.
If an estate is being administered in Court the
assets (often the liabilities too) must be substantial
and also the status of the deceased—publication
is measured accordingly.
In administration outside the Court—particu
larly in rural areas with limited assets and liabil
ities—the personal representative should not con
sider himself bound
too rigidly by the Court
practice. In general such publication should
be
less than the general rule in Court—it is all a
question of what is reasonable notice and to give
a yardstick on that would be impossible.
107