The Gazette 1964/67

passed and was made for the protection of option rights in respect of the shares transferred. C., Ltd., orally exercised the option on 8th November, 1957. The transfers were assessed to ad valorem stamp duty under s. i of Sched. i to the Stamp Act, 1891, as conveyances on sale ; alternatively, the agreement was adjudicated liable to ad valorem duty under 5.59 (i) as an agreement for the sale of an equitable interest. C., Ltd., appealed, contending that the transfers were liable to ics. duty under the head " conveyance or transfer of any kind not herein– before described " and that the duty on the agreement was £2 only. Pennycuick, ]., said that the liability of an instru– ment to duty must be determined according to its terms and effect at the date of the execution ; accordingly, as there was no subsisting contract for sale when the transfers were executed, nor did the transfers themselves effect a sale, they did not con– stitute conveyances on sale within the 1891 Act. The words of the definition of" conveyance on sale " in s. 54 were not apt to denote a conveyance made with a view to carrying out a contract of sale which the parties intended to make in the future, so that the existence on ist November, 1957, of a common in– tention that the vendors should sell and C., Ltd., should buy was insufficient to bring the transfers within the definition. The option agreement dated ist November, 1957, represented no more than an offer to sell, irrevocable for a specified period, and was not a contract for the sale of the shares. It followed, therefore, that it was not an agreement for the sale of the equitable interest in the shares within s. 59 of the 1891 Act. Appeal allowed. (i 964)-(i W.L.R. 529). Negligence in Contract or Tort. In a recent case in the Chancery Division of the High Court in England Clark and Another v. Kirby-Smith, the question of solicitors' negligence was dealt with. Mr. Justice Plowman in this action by Frank Leonard Clark and Frederick Bertie Mills, for damages for breach of contract and/or negligence by the defendant, Gerald Kirby-Smith, when acting as their solicitor, held that damages against a solicitor for negligence were recoverable in contract and not in tort. Accordingly the plaintiff's were not entitled to damages recoverable in tort, and, there being insufficient evidence on which damages for breach of contract could be assessed, the plaintiffs were entitled to nominal damages of 405. The Plaintiffs were represented but the defendant solicitor did not appear and was not represented. His Lordship said that the plaintiffs were formerly in partnership as motor engineers. They were the

assignees of a lease dated December 22nd, 1960, of some property in Kent. The lease was for three years, expiring on December 3ist, 1962, and con– taining options to renew. On October ijth, 1962, the options having expired, the lessor served a notice on the plaintiffs under the Landlord and Tenant Act, 1954, stating that he would not oppose an application by the plaintiffs to the court for the grant of a new tenancy. The plaintiff's took the notice to their solicitor, the defendant, and instructed him to apply for a new tenancy in accordance with the directions in the notice. This involved the giving of a notice by the plaintiffs to the lessor not later than December i jth, 1962. The defendant failed to give that notice, and it was this negligence which was relied on by the plaintiff's, and in respect of which there was a claim for damages. The writ was issued on July 26th, 1963, the defend– ant failed to enter an appearance, and on August 6th, 1963 the plaintiffs obtained judgment against the defendant for damages to be assessed. The plaintiffs said that in consequence of the defendant's failure to apply for a new lease the plaintiff's had to leave the property, and had had to face a claim by the lessor for dilapidations of £120. In negotiating the settlement of this claim they had incurred costs of £30. The plaintiffs claimed to recover both these sums from the defendant on the basis that this was an action founded in tort. It was argued for the plaintiff's that the effect of Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (1963) (3 W.L.R. 101: The Times, May 29, 1963) was that there was a remedy in tort for negligence whether it arose out of mis- statement made by a person not under contract, or whether, as here, it arose out of the contractual relationship of solicitor and client. His Lordship did not accept that Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. was an authority for saying that a solicitor was liable to his client in tort. There was a line of cases going back for nearly 150 years showing that the client's cause of action was in contract, not in tort. Nor were the two sums recoverable as damages for breach of contract; in any event sums payable for dilapidation and costs had fallen on the plaintiffs as a result of their own breach of their contract with the lessor. The plaintiffs also claimed damages for the loss of the new lease to which they would have been entitled under the Landlord and Tenant Act. The question arose whether it was possible to value the chance of obtaining a new lease from the Court under the Landlord and Tenant Act, or more accurately, the new lease which the plaintiffs might have obtained. His Lordship had no idea what the new lease would have been. The Act referred to the " open market", so it did not follow that the new 16