The Gazette 1946-49

provisions of Rule 2 of the Solicitors' Practice Rules, 1936— (a) held himself out as being prepared to do professional business in a non-contentious matter, namely, the sale of (Blackacre), at less than the scale of charges prevailing in the district in which he practised; and (b) allowed himself to be held out as being prepared to do professional business in the said non-contentious matter at l&ss than the scale of charges prevailing in the district in which he practised. The respondent was a member of a local Law Society which had passed a resolution stating that the scale of charges prevailing in the district of that Society for conveyances of property payable by both vendor and purchaser, whether separately represented or not, was the scale prescribed by the Solicitors' Remuneration Order, 1936, without any percentage additions allowed by subsequent Orders. The respondent was instructed by the purchaser of Blackacre. The house agent concerned told the respondent that the vendor would probably instruct him also but asked what, in that event, would be the cost to the vendor. The respondent replied that his fee to the vendor would be between £17 and £20. The vendor (unknown to the respondent) had already asked another firm of solicitors what their charges would be for acting for him on the sale and they had quoted £28 135. 4d,, being the appropriate fee according to the resolution of the local Law Society mentioned above. On learning the respondent's quotation the vendor took the deeds away from the other solicitors, whom he had already instructed, and instructed the respondent in their place. Subsequently the vendor withdrew the respondent's retainer and the sale was completed by the other solicitors. The respondent completed the matter for the purchaser alone, to whom he charged the full scale fee approved by the local Law Society. At the hearing before the Committee the re spondent admitted the above facts and did not seek to deny that he had committed an offence under Rule 2 of the Practice Rules. He stated, however, that at the material times he had neither known nor suspected that the vendor had already instructed other solicitors and that when quoting the reduced fee he had been under the impression that the vendor would instruct him in any case. The respondent further stated that he had had it in mind that, acting for both parties, he would not have to do so much work for both clients as would substantially justify him in charging two scale fees, even at the reduced rate approved by the local Law Society. He had, therefore, thought it proper at the time to give in advance an estimate less than the scale fee so

(4) but a division of opinion arose as regards the propriety of allowing the solicitor's costs and the ad valorem stamp duty in connection with the second purchase. Lord Justice Evershed took the view that the purchaser obtained what he agreed to buy and that he had been compensated for the loss in value of the house purchased by reason of the vendor's failure to give vacant possession. The second purchase was wholly distinct from the first and the solicitor's costs and ad valorem stamp duty in respect of that purchase could not be held to be a loss or damage flowing from the vendor's breach of the terms of the first contract, or if they could were too remote. Lord Justice Tucker and Lord Justice Somervell disagreed with Lord Justice Evershed on this point. They held that as the result of the vendor's breach of contract the pur chaser had to find somewhere else to live, and was compelled to purchase another house. He must be assumed to have received full value for the price which he paid for the second house, but the stamp duty and legal costs were not part of the purchase price. They were no doubt items which were necessarily payable on the purchase, and might thus be described as part of the costs of the purchase but they were outgoings necessitated by the vendor's breach for which the purchaser had received no countervailing benefit. In the result the full amount was allowed as part of the damages. The Lord Chief Justice, in the Northern Ireland High Court last week, commented strongly against the common practice in the making of affidavits of inserting at the end of the affidavit, a paragraph in the terms that " save where otherwise appears, I am aware of the above facts of my own know ledge," when, he said, " It was quite apparent that matters in the affidavit could not possibly be within the deponent's personal knowledge, and yet, it was not stated that such matters were deposed to on information and belief." His Lordship said that he had spoken on previous occasions about the laxity in the drawing of affidavits. He was determined to put a stop to it, for, strictly speaking, it involved the deponent in the com mission of perjury. In the case before him, the Lord Chief Justice, in refusing a motion to remit an action, costs of the motion to be costs in the cause, gave a special direction that no costs whatever should be allowed in respect of the affidavit referred to. The Disciplinary Committee recently pronounced their Findings and Order in a case which may be of general interest. The respondent was charged with professional misconduct in that he had, notwithstanding the