The Gazette 1944-46

to be paid out of a fund in Court) the form and mode of issuing of the certificate lies in the discretion of the Taxing Master, provided that it contains all the material particulars. Professional Negligence. THE obligation of a solicitor to exercise skill and care in the course of his professional dealings on behalf of his clients has been the subject of many legal decisions, but it is by no means simple in border-line cases to say where the requisite standard of professional efficiency approaches an infallibility which the law attributes to no human being. The duty which is imposed on the solicitor in regard to those matters of law and procedure which are his professional concern does not, in the absence of special instructions accepted from the client, necessarily extend to matters of busi ness from which they are often inseparable. A client when entrusting his affairs to his solicitor frequently relies on him to keep him right in business as well .as in strictly legal matters, and, no doubt, in advising clients, particularly persons of inexperience, solicitors often do try to safe guard their interests generally. The precise point where the professional obligation of the solicitor, in the absence of special instructions, ceases may be difficult to define. Is he, for instance, obliged to notify a client for whom he is acting of the approach of the date for exercising an option to renew or determine a lease ? This point was discussed in Yager v. Fishman & Co. and Teff and Teff (1944, 1 All E.R.552) recently decided in the English Court of Appeal. The facts of the case were complicated but the principal point affecting solicitors was comparatively short. The plaintiff was a business man who had gone surety for the performance by a limited company of the sub-lessee's obligations under a sublease which reserved a substantial rent. The sublease con tained an option to the sublessee to determine it by notice at the end of the third, seventh or fourteenth years. The company went into volun tary liquidation and the plaintiff became liable as surety under his guarantee to pay the rent accrued and accruing due. It was proved that he had knowledge of the existence of the option in the sublease. In 1938, in the course of a letter to his former solicitors, he had asked : "Why didn't you call my attention to the fact that I could have got out of this agreement in 1937 ?", to which the solicitors had replied : "It is no part of our duty to keep a record of when each client has to give notice to determine a lease." His case against the successful appellants was that he had employed

them on a retainer to take steps to end his liability under the sublease by taking the necessary steps to secure the effective exercise of the option to determine it, and that the solicitors had negligent ly failed to do so or to warn him in time that the option could not be exercised after a certain date. The Court of Appeal found that there was no such retainer as was pleaded by the plaintiff; that the solicitors were, in fact, retained for the purpose of getting the sublessee's term vested in the plaintiff and effecting a sub-underletting of the premises to a tenant at a rent sufficient to discharge the arrears due to the landlord ; and that while other solicitors might well have suggested to the plaintiff the advisability of securing the exercise of the option to determine the lease they would have been under no duty to do so. Per Scott, L. J. "There is no allegation in the statement of claim of any request by the respondent for advice upon any question of business as distinct from law—in particular upon the question whether it would be better business for the respondent on the one hand to try and get out of the underlease liability even at the expense of paying all arrears of rent and accepting liability for dilapidations, or on the other hand to maintain the underlease and find a tenant whose rent would cover his current and future financial liability to the landlords. To impose on a solicitor the legal responsibility of answering such a business question would require both unequivocal instructions and unqualified acceptance ; for it is no part of a solicitor's normal duty to profess the skill and experience for giving such advice. On what the position would be if he with his eyes open were to accept such a res- . ponsibility, I express no opinion." No doubt, in some cases, a solicitor acting for a client would fail in his duty if he omitted to notify him of the approach of the date for exercising an option. The client, however, is presumed to be conversant with his own affairs and his solicitors are not bound to supply defects in his memory unless clearly requested to do so. Restriction of Rents Order 1943. A MEMBER of the Society has drawn attention to the fact that there is no provision in the Emer gency Powers (No. 313) Order, 1944 prohibiting the taking by a landlord of a premium, commonly known as "key money," as a condition of the grant renewal or continuance of a tenancy of premises to which the Order applies, on the lines

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