The Gazette 1952-1955

restricting user to that o f a private dwelling-house, so far as the covenants were subsisting and capable o f taking effect. The special conditions stated that a copy of the restrictive covenants might be inspected at the offices o f the vendor’s solicitors, but did not further define the exact nature of the particular covenants. In answer to a requisition on_ title whether the property was subject to restrictive covenants, the defendants, who were acting as solicitors for the plaintiff, replied “ Yes. See Special Condition 7. There appear to have been breaches of the covenant as to user but no notice o f breach has been served.” The purchaser refused to complete and recovered his deposit in an action brought by him in 1951 for the purpose against the plaintiff. In 1949 while the action was pending, opportunity arose to sell the premises to another purchaser, but the plaintiff was advised by the defendants through their managing clerk not to sell during the pendency of the proceedings, and accordingly did not sell. Subsequently, the premises were severely damaged by fire at a time when they were not insured against that risk, the plaintiff having allowed the insurance to lapse. In an action by the plaintiff against the defendants for damages for negligence as his solicitors, held by the Court of Appeal (Denning, Hodson and Parker, L .J.J.) affirming Harman J ., that (i) as the reply given by the defen­ dants to the requisition on title was in accordance with the general conveyancing practice which had prevailed for a long time, the defendants were not negligent, although the answer enabled the purchaser to refuse to complete the contract, because that consequence could not reasonably have been foreseen at the time when the requisition was answered. (ii) Even if the advice given by the defendants in 1949 against selling the premises was negligent, yet the damage to the premises by fire was too remote and the plaintiff’s claim to recover this damage failed. Per Denning L . J . : “ Let any lawyer put himself in their position. They knew that there were some old restrictions on these premises which had not been enforced for years. The restrictions were in all probability obsolete, but the solicitors could not assert categorically that they were obsolete. It would obviously not be right for solicitors, without full investigation, to commit the vendor to a warranty that the restrictions were obsolete. So they guarded their client by putting a special condi­ tion in the contract saying that he sold the property subject to the restrictions so far as they were still subsisting and capable o f taking effect: and when it came to the answer to the requisition, they tried to protect their client by saying the same thing over

and provided sufficient monies should be recovered from the English debtors. The defendants filed an affidavit to the effect that they never received any monies from this source and that their retainer was discharged before the English action was settled. Apart from the question of fact, however, it was submitted by the defendants that the proceedings were irregular and could not be brought by summary summons, and further, that indorsement o f claim was defective in not giving all necessary particulars and in failing to indicate that the special jurisdiction o f the Court to control its officers and enforce their undertakings was being invoked. Reference having been made to Cordery on Solicitors, and to Kerly and Son and Verden (1901) 1 Ch. 457 and Swyny v. Harland (1894) 1 Q.B. 707, the Courts held that the proceedings were properly brought by summary summons (Form 3) and that if necessary, the plaintiffs should be allowed to amend their indorsements of claim as part o f an order referring the case to plenary hearing.^ As, however, the plaintiffs’ affidavits were defective in not proving that any monies had come to the hands or under the control o f the defendants, the claim must be dismissed unless the plaintiffs wished an adjournment (on terms) in order to file a further affidavit. The plaintiffs were granted an adjournment for this purpose on terms of paying the defendants’ costs of the day. In opening the case, counsel for the plaintiffs observed that there appeared to be no precedent for such a claim since the coming into effect o f the High Court Rules o f 1926, but it appeared from the older authorities that the Court would enforce undertakings o f its officers on application being made to the Court in a summary summons; accordingly procedure by a Form 3 Summary Summons appeared to be appropriate. (Irish haw Times, 6th November, 1954 )- Alleged negligence in answering requisition as title Premises, o f which the plaintiff had been the owner since 1922 were subject to a covenant restric­ ting their use to that of a private dwelling-house, but had in fact been used continuously for business purposes since before 1922 without any complaint being made. In 1948 the plaintiff sold the premises by auction to B., who paid a deposit. The particulars of sale described the premises as “ valuable and commanding freehold corner shop premises,” and there were special conditions o f sale o f which condition 7 provided that the property was sold subject to the restrictive covenants as to user and other matters contained in a certain deed, being the deed which had imposed the particular covenant

66