The Gazette 1955-58

to sell registered the new solicitors are

If vendor, after entering a contract land changes his solicitors,

advise that the same could be successfully contested by the assured, and the assured consents to such claim being contested, but such consent not to be unreasonably withheld." The plaintiffs acted as accountants to H. Ltd., and in the course of their duties they received and paid out money on behalf of H. Ltd. At the end of 1952 it appeared that B., a clerk of the plaintiffs, had received from H. Ltd., some £20,000 which could not be accounted for. H. Ltd., brought an action against the plaintiffs, relying on the irregularities of B. and alleging that the plaintiffs were negligent in failing to keep proper books-and to supervise the activities of B. The statement of claim disclosed a claim in respect of one loss, but three causes of action were alleged, viz., for (i) damages for negligence or breach of duty as accountants ; (ii) money had and received ; and (iii) moneys converted by the plaintiffs to their own use. HEAD (iii) was restricted to the acts of B. as con stituting wrongful conversion, but no direct allega tion of fraud or dishonesty was made. The plaintiffs now claimed against the underwriters that the claim made in the action by H. Ltd., was covered by the Q.C. clause. HELD by Devlin J. that the claims were not covered by the Q.C. clause for the following reasons :— (i) on the true construction of the policy, the word " claim" was limited to an unmixed claim, viz., a claim only in respect of an " act of neglect, default or error", which was a description that did not include a claim based on dishonesty or a claim for money had and received where the claim arose out of dishonest acts, and (ii) the claims against the plaintiffs were not such an unmixed claim as is described at (i) above, having regard to the facts that they included a claim for money had and received and arose out of dishonesty on B.'s part, although the dishonesty was not alleged in the action by H. Ltd., against the plaintiffs. Per Curiam : Underwriters were not bound by the way in which a claimant chose to formulate his claim, but could properly invite the court to ascertain the true nature of the claim and to make . such inquiry as might be necessary for that purpose. The Q.C. clause analysed post. (West Wake Price & Co. v. Ching—(1956) 3. All E.R. 821).

entitled to the scale fee if they have substantially performed the work. AFTER entering into a contract to sell land registered with possessory title, a vendor changed his solicitors. The contract contained imperfections and the new solicitors had a good deal of work to do in connec tion with it. The new solicitors completed the transfer of the land, and in their bill of costs to the vendor charged the scale fee prescribed by the Solicitors' Remuneration (Registered Land) Order, 1925, art. i (D) (i) and Schedule, together with item charges for work not within the scale. The taxing master disallowed the scale fee on the ground that not all the work which the fee was described in art. i (H) as covering had been done by the new solicitors. On appeal against the taxing master's disallowance of the scale fee. HELD by the Court of Appeal (Singleton and Jenkins L.JJ.) that the new solicitors were entitled to the scale fee because they did the main part or substantially the whole of the work set out in art. i (H). Per Jenkins, L.J. : the principle stated in Re Lacey & Son ((1883), 25 Ch.D. 301), applies to remuneration in respect of registered land as it does to remuneration with respect to unregistered land. Editorial Note. This decision should be compared with " Broughton v. Thorne" Re No. 10 The Terrace, Hampton Wick (1957) i All E.R. 87), which was decided only a few days before the present case. Jenkins, L.J., in the present case, and Vaisey, J., in the former case, both refer to the same differ ence in wording in the remuneration orders, viz. that the remuneration by scale for transfer of registered land on sale " covers " certain work and that the scale fee under the Solicitors' Remuneration Order, 1883, on sales is expressed to be "for" certain work. Jenkins, L.J., relies on the words " if any " which are to be found in the comparable passages in both orders, and on the judgment of Fry, L.J., in Re Lacey & Son ((1883), 25 Ch. D. at p. 311) as supporting the view that the scale fee can be charged although not every item of the work mentioned in art. i (H) of the Order of 1925 has been done. It should however be borne in mind that the words " if any" do not appear in the corresponding Irish general order. (Re Taxation of Costs: Re a solicitor, 1957- i A.E.R. 427).