The Gazette 1967/71

took measurements, made drawings and then wrote to Mr. Buckland indicating the living ac commodation available in the house. The letter added that, as a matter of interest, there were one or two matters which needed attention such as that the staircase was not sufficiently enclosed to guard against fire and also two other minor mat ters. A fee of 40 guineas later reduced to £33-0-0 was charged and the bill indicated that the fee was for "attending the property for the purpose of surveying and preparing drawings". Buckland in evidence said that he read the letter as showing all that was wrong with the house. In fact it was riddled with wet rot, dry rot, and woodworm, and had cracked foundations. Another surveyor said in evidence that he would have advised a building society not to touch the property. The solicitor deferred the exchange of contracts for sometime, then sent a draft contract to Mr. Buckland for signature at a time when the appli cation to a building society for a mortgage had not been determined, he told Mr. Buckland that the most that could happen would be that he would lose his £100 deposit and that if one wan ted to get on one had to take a risk because if nothing was ventured nothing was gained. The solicitor was well aware that a mortgage was re quired and that the purchaser was not even in a position to put 10 per cent of the purchase money but only a maximum £100. Mr. Buckland took the risk, signed the contract and when the mort gage was refused the deal fell through and he lost his £100 deposit. Mr. Buckland contended that Mr. Macksey was negligent in allowing him to exchange contracts without seeing that he had the necessary finance for the purchase of the property. His Lordship could not accept that contention. The solicitor was not under a duty to insist that his client had a mortgage and fulfilled his duty if he warned the client of the risk which he incurred. Neither professional man could be proud of his part in the present case but nonetheless negligence had not been established against Mr. Mackesy. The surveyor stood on a different footing, he was instructed to make the survey, charged for making the survey and yet failed to give Mr. Buckland a proper survey report. Mr. Watt was negligent and must reimburse Mr. Buckland his lost deposit, £40 of Mr. Mackesy's bill of costs of £47 being the costs incurred after the date of Mr. Watt's letter, and £21 of his own fee, the 69

due to an extremely unusual circumstance which would not have been disclosed by x-rays. Writs were issued against the surgeon and against the hospital authority, in January 1965. The writ was not served until 12th January 1966. The defen dants entered appearance in due time. No state ment of claim was delivered. May 1968 the plaintiff's solicitors gave notice of intention to file a statement of claim to the defendants' solictors who applied for the action to be dismissed for want of prosecution. The plaintiff appealed against the order of Browne, J., of 21st June 1968 upholding the order of the district registrar dismissing the action for want of prose cution. Lord Denning, in his judgment, said that there was inordinate and inexcusable delay. A good deal of it was in the office of legal stationers employed by the plaintiff's solicitors and was due to cricum- stances, illness and loss, in the solicitors' office. The whole delay had to be considered. Was there any serious prejudice to the defendants so that a fair trial was impossible? The answer was that the lapes of time was so much that the probability was that a fair trial was not possible. The appeal dismissed. [Strong v Rastell and Anr. 112 S.J. 842]. Conveyencing, Mortgage, Solicitor's Duty Harmon, Salmon, L.L.J., and Baker, J.A., held that a solicitor is not under a duty to ensure that his client has procured a mortgage before asking him to exchange contracts for the sale of a house and dismissed an appeal from the County Court which held that the solicitor was not negligent. At the same time Court reversed the County Court Judge's decision in the case against Mr. Edward Watt, a chartered surveyor, who was also acting for him. This defendant being held negligent and the appellant being awarded £161 damages. Mr. Buckland, shopkeeper living over his shop, heard from a customer that his house down the road was for sale at £4,500. An estate agent recommended him to Mr. Mackesy as a good solicitor and Buckland subsequently instructed Mackesy to act for him. Mr. Mackesy sent Mr. Buckland a booklet by a solicitor on buying a house and referred him to the pages in it on the need to have a survey. The solicitor recommended Mr. Watt as a good surveyor. Mr. Watt the surveyor attended on the house,