The Gazette 1967/71

change of user. Then an underletting to a firm of solici tors was proposed and again consent was refused. It was in these circumstances that the plaintiffs claimed damages, on the ground that the solicitor who had advised them had been negligent in not explaining the effect of cl. 2 (xi) to them. Ppull J. held the defendants (the executors of the solicitor who had acted for the plaintiffs) guilty of negligence, on the basis that cl. 2 (xi) was "unusual" and as such ought to have been explained, for although the plaintiffs wore professional men themselves, used to property transactions, the effect of the wording of leases was not within the scope of their professional competence. Where there were several clients, as in the present case there were several members of the partner ship the needs of each must be separatelv considered, unless one was acting as sole agent for the others. Harman L.J., giving the judgment of Court of Appeal, said that in general where a solicitor was asked to advise on leasehold title, it was ^is d'ltv to drnv/ ," H'ent' 1; attention to any provision in a lease which was in an unusual form and which might affect the client's interests. In the present case cl. 2 (xi) was unusual and did affect the respondents' interests. The solicitor should have warned them of the effcts it might have for them in the event of their wishing to assign and lie had been in breach of his professional dutv in not doing so. The trial judge had constructed a code of conduct governing what a solicitor should do when advising a partnership in such circumstances; the extent of that duty \vouk! however vary from case to case. The trial judge had been wrong in holding that the duty to advise extended to everv individual member of a partnership. Clearly that would hf- impracticable in the case of a large partnership, and it was sufficient that a solicitor communicated his advice to the partner dealing with the matter as representative of the firm. The negligence of the solicitor in the present case had not been shown to have caused any damage. Both the solicitor and the senior partner of the plaintiffs had died before the trial, but the trial judge had pressed the only witness for the plaintiffs as to the consequences which competent advice might have had; the witness had said that he did not know whether if the trap in cl. 2 (xi) had been properly explained to them, the plaintifls would have taken the underlease in spite of it, either at all or at the same rent. The probability was his Lordship held, that such a warning would have had no impact at all on the plaintiffs and accordingly no damage flowed from the solicitor's negligent failure to give it. The trial judge's award ot £y,UUO damages would be set aside and nominal damages of £2 sub mitted. To sum up. At the end of the day, rather less is established by the Sykes case than might have been hoped for at the outset. Certainly, it is clear that a solicitor has a duty to draw attention to and to explain any "unusual" clause in a lease. But what is an "un usual" clause ? The test is a subjective one. dependent upon the needs of the individual client in the circum stances of the particular case. Ordinarily a solicitor's duty does not require arivice to be given to each member of a partnership, but only to one partner acting on behalf of the other. Where negligence is pro\eu, i,,e client will be entitled to more than nominal damages only if it is shown that the client would have heeded advice if it had been given : this, rather than that the damages will be of full amount unless it is shown that 42

be appointed by the Master of the Rolls from solicitors who are present or past members of the Council and its procedures are primarily the concern of the Disciplinary Committee itself. These matters therefore are not within the control of The Law Society alone. The Council have, however, considered that composi tion of the Disciplinary Committee and believe that consideration should be given to the qualifications for appointment to the Disciplinary Committee being en larged to include all solicitors of a certain seniority and also persons who are not solicitors. The Council have been informed that the Disciplinary Committee have been reviewing their constitution and procedures and will shortly be bringing forward proposals for certain changes. Because the Disciplinary Committee is created under statute any of these changes will require legislation." — (The New Law Journal. 19 March, 1970) PROFESSIONAL NEGLIGENCE IN ADVISING ON LEASES—AN IMPORTANT APPEAL The decision of the Court of Appeal (Harman, Salmon and Karminsky L.JJ. in Sykes and o/hers v. The Midland Bank Executor v. Trustee Co. Ltd. (The Times, March 14 1970) is of importance to solicitors because it deals with their liability in negligence, arising out of failure to explain legal documents to clients, and because it overrules in part, the much dicussed decision of Paull T- T19691 2 all E.R. 1238. That decision was considered in an article published at N.LJ. Mav 15, 1969, p.454, and the facts of the case as there reported, were that the plaintiffs, a firm of architects and quantity surveyors, claimed damages for professional negligence against a solicitor (who had since died) in respect of his failure to explain certain provisions of an underlease of office premises occupied by the plaintiffs. When the agreement was negotiated, it was known to all concerned that the plaintiffs might wish to assign or sublet the premises if their business requirements changed. The lease contained provisions dealing on the one hand, with assignment and under letting (cl. 2 (xiii)) and, on the other hand, with user (cl. 2 (xi)). Clause 2 (xiii) provided that the'plaintiffs were not to assign "without first obtaining the written consent of the lessors and superior lessors, such consent not to be unreasonably withheld" in relation to respectable and responsible persons. But cl. 2 (xi) provided that apart from the business of architects and surveyors, the premises were only to be used "as offices and showrooms in connection with any other business for which permission in writing of the lessors and the superior lessors had first been obtained, such permission by the lessors not to be unreasonably withheld." Clause 2 (xi) was described by the trial judge as "a trap-" If, in pursuance of cl. 2 (xi) consent to a pro posed user was withheld b- r the superior lessors, as it could be. even unreasonably, this would in effect prevent an assignment, even though consent to an assignment itself was not to be withheld other than reasonably; this was not a position which a layman would be likely to appreciate unless it were expressly and clearly explained to him. In 1965, two years after the plaintiffs had gone into possession, they sought to underlet part of the premises to a firm of engineering importers and exporters. The superior landlords refused their consent to the proposed