The Gazette 1964/67

8. The following charges may be added where applicable in addition to the fixed fees and charges as set out above in numbers 1 to 7 inclusive: (a) Attending to attest, execute, witness or generally notarise any document outside notary's office, up to 1 mile distance and within City ......... Over 1 mile or outside City, time going and returning not over 1 hour Over 1 hour and up to 3 hours ......

the trade or business of a licenced victualler, publican or any dangerous or noisy trade or business or any business whatsoever other than that of a confectioner or tobacco retailer. During the course of the negotiations with the Estate Agents the plaintiff, Hill, informed them that he wanted the premises for the purposes of a confectionery and tobacco business and was informed in reply that this would be alright. The plaintiff's solicitors informed the defend ant's solicitors that their client intended to use the premises for a confectionery and tobacco business and that they were instructed that this was a properly permitted use. The sub-lessor's solicitors never gave any speci fic reply, but in due course they sent the sub lessee's solicitor a draft sub-lease containing the covenant against user other than that of a con fectionery and tobacco retailer. In point of fact the lease from the freeholder contained a covenant by the lessee not to use the premises other than for the purpose of boot and shoe makers and dealers, and not to use the upstairs rooms for any purpose other than living accommodation. The sub-lessee brought an action against the sub-lessor for breach of warranty and the action failed. The Court of Appeal in England held that neither the correspondence nor the conversations nor the terms of the sub-lease containing the covenant as to user for confectionery and tobacco business, amounted to a warranty that the user was aouthorised by the superior lease. These were merely matters of conversation during the pro gress of negotiations. In the course of his judgment, dismissing the Appeal, Russell, L. J., stated, by way of obiter dictum, that he could not see what conceivable defence the solicitors acting for the Plaintiff would have to claim for equivalent damages for negligence on their part in that they did not take the ordinary conveyancing precaution before al lowing their client to take a sub lease of finding out by inspection of the head lease what were the covenants restrictive of user or otherwise con tained therein. This case raises serious implications for solicitors. A lessee, in the absence of stipulation to the contrary, is not entitled to investigate the lessor's title, neither has it been common practice, on taking a lease for a short term, to require pro duction of all superior leases to ascertain the existence or otherwise of restrictive covenants. The Council have taken the opinion of counsel who has advised that while the decision of the English Court of Appeal is special to the facts 23

1

5

0

1

15

0 0

3 10

Over 3 hours Over 6 hours

........................... 660 ........................ 880 .................. 660 ..................... 880

Second day or part of a day: Up to 3 hours

Over 3 hours

(bl Add all other outlay properly and necessarily incurred by way of Stamp Duty, Taxi-fares, Travelling expen ses, etc.

9.

(a'l

(i) Writing,

signing trans mission of letter not exceeding one folio ........................ and

15

0

(ii) Exceeding one folio

............

100

(b) (i) Each attendance not herein before provided and in the Office of the Notary — for each subseqeutn half hour oc cupied ........................... (ii) Each attendance not herein before provided and in the Office of the Notary — for each subsequent half hour oc cupied ........................... (c) Each attendance outside the Office of the Notary for each half hour necessarily absent from Office of Notary ................................. (d) Mileage and/or travelling expenses (I/- per mile minimum). 10. Any other work for advice—appertaining to Notarial matters not hereinbefore men tioned—such fee as may be fair and reasonable having regard to all the cir

1

2

5

16 10

1

5

0

cumstances of the matter. Dated 10th March, 1966. Issued by and with the authority of the Faculty of Notaries Public.

EDWARD J. MONTGOMERY Dean. TOIRLEACH DE VALERA Registrar. PROFESSIONAL NEGLIGENCE FOR TAKING DEFECTIVE LEASES

' The attention of the Council was drawn to the English case Hill v. Harris (1965 2 All E.R. 358) in which the plaintiff was a sub-lessee and the defendant a sub-lessor of premises which were let for a term of thirteen and a half years at the yeiarly rent of £206 subject to a convenant by the sub-lessee not to carry on in or upon the premises