The Gazette 1955-58

the plaintiff had tendered his advice of proofs re quired on the trial of all the matters then in issue. ' In June 1957 on consent of both parties, Haugh, J. gave judgment for the plaintiff for £2,000 and costs, and ordered that the £2,000 lodged in Court with the defence with a denial of liability, be paid out to the plaintiff in satisfaction of his claim. The plaintiff's bill of costs came first before the Taxing •Master in August 1957, when the Master allowed some items which the defendant's solicitors con tended should not have been allowed, and asked the Taxing Master in October 1957 to review the taxation. A fee for senior counsel to settle a reply was allowed as being " of an unusual nature". A fee of £180 for instructions by plaintiff's solicitor was allowed, on the ground that plaintiff's solicitor, from service of Notice of trial until the 16th February, had to and did do work to prepare for a trial on all the issues mentioned. He received counsel's direc tions for proofs on 2nd February and sent his briefs to counsel before i6th February, in the reasonable belief that all the issues would be contested by the defendants. He submitted that the admission of negligence by the defendant's solicitors came too late to have the action treated for the purposes of costs in effect as an action for an assessment of damages. The defendant's solicitors then moved on 22hd November, 1957 before Murnaghan, J. for an order to review the taxation of the plaintiff's costs and to overrule the report of the Taxing Master, but Murnaghan, J. refused the application and made no order as to costs. Woman 'Entitled to Damages of £2,000 for negligence of solicitors 12 years ago. The Master of the Rolls, Lord Justice Parker and Lord Justice Sellers dismissed this appeal by Messrs. Donald, Darlington and Nice, solicitors, of Clement's Inn, London, against the judgment of Mr. Justice Lloyd-Jacobs, sitting as an additional Judge of the Queen's Bench Division (The Times, May 22nd, (1957),awarding £2,000 damages to Mrs. Kitchen,of Kent. The solicitors were advising Mrs. Kitchen on her claim against the West Kent Electricity Company Ltd., arising out of the death of her husband on May 22nd, 1945, from electrocution from a faulty installation. Section 26(b) of the limitation Act, 1939, provides that where a right of action was concealed by fraud the period of limitation should not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud. The Master of the Rolls, giving judgment, said that in May, 1945, the plaintiff's husband, a leading aircraftsman in the R.A.F., was home on leave.

They had then two small daughters, and the plaintiff was expecting a third child. At about 8 o'clock on the morning of May 22nd the husband went to the kitchen to get his wife a cup of tea. He turned on the main switch in the control box ; he was electrocuted and died almost at once. No one could fail to feel the deepest sympathy with the plaintiff. After the accident her case was forwarded to the R.A.F. Association. The association, having been informed of the circumstances of Mr. Kitchen's death, availed themselves of the fact that a number of firms of solicitors, members of which had served in the R.A.F., had offered to assist the association as occasion arose and so in November, 1945, the Association forwarded the information about Mr. Kitchen's death to the appellants. By June or July, 1946, the solicitors not only had done nothing for Mrs. Kitchen but they had made it virtually im possible ever to do anything for her. They had allowed time for proceedings under the Fatal Acci dents Act to run out. They had disregarded any separate claim under the Law Reform Act. They had told the West Kent Electricity Company Ltd. that Mrs. Kitchen had no claim, but they had asked the company for an ex gratia payment which had been refused. Mrs. Kitchen, however, had written to the company in October, 1945,35 a result of which in effect (though it was not realized at the time by her) she got the sum of £100 from the company, less 5 guineas deducted for the appellants. In one of her letters, Mrs. Kitchen wrote : " I suppose I was just another charity case." " I cannot resist the conclusion," said his Lordship, " that sad and ironical though it is, there is truth in what Mrs. Kitchen has said. This is not perhaps the first time where disaster has been the product of amiable intention and where benevolence has not been backed by effort." It seemed tragically clear that the solicitors had not applied their minds to their obligations in the way they would have done had they been in structed in the ordinary professional course. The course they chose was that of least resistance or effort. His Lordship agreed with the Judge that the case of negligence by the solicitors was made out. The solicitors, however, had pleaded the Statute of Limitations, which they were entitled to do. The onus rested on Mrs. Kitchen to show that the solicitors were disentitled to rely on it, and this she sought to do by relying upon paragraph (b} of section 26 of the Act of 1939. In October and November, 1946, the solicitors wrote to the electricity company suggesting that any grant made by the company would be recipro cated by an undertaking to accept it in full and final 106