The Gazette 1972

sentation is made, it must bt shown that he had full and complete knowledge of the truth to take away his right to rely on the misrepresentation. When the defendant inspected the overgrown lane, this did not detract from his legal right to a right of way. There was no ground for raising this matter in the requisitions. Undoubtedly the representations contained in the tdvertisement pointed to a right of way. and the plaintiff had no right to assume to the contrary. It was clear that the defen- dant was induced to sign the contract on the material grounds, which were not accurate, that the house was suitable for conversion, and that access could be gained from the back of the premises. It was clear that the defendant would not have bought the premises if he did not think that those conditions would be fulfilled to his satisfaction. The plaintiff would have been entitled to enforce the contract notwithstanding the misstatements if these misstatements had not in this case gone to the root of the contract. The plaintiff then contended that the defendant had by his actions intended to affirm the contract without the right of way, and submttcd that the correspondence conveyed this. The correspondence does not bear this out. but rather proves that the defendant was entitled to have the right of way conveyed to him as part of the contract. No evidence was adduced that the defendant did not intend to claim the right of way. The defendant was ready and willing to take a conveyance which included the right of way, and was thus maintaining the contract; the question of repudiation did not conse- quently arise, save by the plaintiff, who would not execute a conveyance to the defendant to include the right of way. As no defect in the title to the right of way was proved, the plaintiff is not entitled to specific performance. The defendant is consequently entitled to recover as damages the loss sustained, namely the amount of the deposit (£825), the auctioneer's fees (£165), and the cost of investigating title when taxed. Separate judgment by Fitzgerald J. Appeal allowed unanimously. (Pielow v. Ffrench O'Carroll —Supreme Court (Budd. Fitzgerald and McLoughlin J. J.)—unreported—19th December. 1969). regarded as deplorable by fellow solicitors. Professional miscon- duct is not confined to disgraceful or disshonourable conduct (post, pp. 873 A—C, H. 874B. C). (2) That since the solicited had at length put himself right by the production of an accountant's report showing his books to be in order his suspension from practice should be lifted and instead he should be ordered to pay all the costs before the committee, the Divisional Court and the Court of Appeal. Decision of Divisional Court varied. APPEAL from Divisional Court. On December 16, 1971. the Disciplinary Committte of The Law Society found that allegations against a solicitor that (1) he had failed to comply with the Solicitors' Accounts Rules 1967 and (2) he had been guilty of professional misconduct in the manner in which he kept account books had been sustan- tiated. The committee ordered the solicitor's suspension from practice for six months from January 15, 1972, " during which period it should be possible for him to submit an accountant's report covering the accounting period from April 1, 1970 to Januarv 15. 1972." On February 14, 1972, the Divisional Court dismissed the solicitor's appeal. The solicitor applied to the Court of Appeal for leave to appeal. The first ground of appeal was that there was no evidence to support the findings that he had been guilty of professional misconduct and/or the admitted statement of facts did not support such finding. The facta are slated in the judgment of Lord Denning M.R. (1972) 1. W.L.R. 869.

advertisement, and that the auctioneer had specifically stated that the right of way was included in the sale; this was denied by the plaintiff; who stated that there was no misrepresentation, as defendant knew laneway was overgrown, impassable and closed by a gateway. In the High Court, Tecvan J. gave plaintiff a decree for specific performance, and dismissed defendant's pleas. It was held that the right of way was not included in the contract, bccause the naming of it in the conveyance and the press advirtisemcnt did not form part of the contract. It was also held that there were factors—such as inspection of the laneway. and that he should have noticed its state—which prevented the claim of misre- presentation from succeeding. On appeal, it was contended that the right of way was the right appurtenant to the land. In 1966, the auctioneer Adams, described the residence as "ideal for conversion ". The defendant inspected the premises, and saw the condition of the lane: later on, after the auction, he inspected the barred gate. He further inspected the title deeds, and found the title conveyed the premises with the right of way. The plaintiff con- tended that in those circumstances the defendant should have made a requisition, which he did not. The plaintiff subsequently approved the draft conveyance which included the right of way, hut says he did it inadver- tently. There was subsequently a lengthy correspondence about the right of way between the parties. The Supreme Court (Budd, Fitzgerald and McLough- lin J. J.) per Budd J., held that it would be common sense if any consequential right of way were included in the purchase of premises, which is included in the'whole of vendor's interest, and that there was no doubt as to its inclusion. Furthermore there was a right of way in the lane appurtenant to the premises before 1908, when the conveyance ws made. As the press advertisement men- tioned a back entrance, it would follow that a back entrance would be of no use unless it could be freely used through the lane, which undoubtedly infers a right of way. There is no evidence of any intention to abandon the right of way. nor of long disuse. If the right of way was to be excluded from the sale, it was the duty of the plaintiff to state so specifically, but he did not do so. As regards the purchaser's position when a misrepre- 1972 March 27 Lord Denning M.R., Karminski and Orr L.JJ. A solicitor appeared before the Disciplinary Committee of The Law Society to answer allegations that he had (1) failed to comply with the Solicitors' Accounts Rules 1967 and (2) been guilty of professional misconduct in that he kept account books in such a form that it was not possible to ascertain readily at any one time the balances held in each client's account. The committee found that the allegations had been substantiated, that despite two adjournments the books were still not written up and that it was not possible to say whether there was any deficiency on his clicnt account. The committee ordered the solicitor, who had relied upon an accountant to write up his books, to be suspended from practice as a solicitor for six months from January 15, 1972, during which time it should be possible for him to submit an accountant's report. The Divisional Court refused the solicitor's appeal. On appeal to the Court of Appeal the solicitor put in a satisfactory report from a new accountant showing no deficiency and challenged the finding of professional misconduct.:— Held by Lord Denning M.R., Karminski Orr L.JJ. (1) that the solicitor could not escapc responsibility hy handing over his books to a book-keeper or accountant and in view of his repre- hensible negligcnrc in failing to see that they were in order and his subsequent delay in getting them written up the committee'a finding of professional misconduct was justified. In re M. [1930] N.Z L.R. 285 applied. Ptr curiam. Negligence in a solicitor may amoiint to pro- fessional misconduct if it is inexcusable and as such tu be [COURT OF APPEAL1 •In re A SOLICITOR