The Gazette 1974

appears to satisfy his undertaking, and that crassd negligentia or lata culpa mentioned in some of the cases . for which he is undoubtedly responsible. The cases, however, which have been cited appear to establish, in general that he is liable for the consequences of ignor- ance, or non-observance of the rules of practice of the Court; for want of care in the preparation of the cause for trial or of attendance thereon with his witnesses and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the profession. Whilst on the other hand, he is not answerable for error of judgment on points of new occurrence, or of nice or doubtful construction, or of such as are usually entrusted to specialists in their particular spheres." 2. Informing and advising the client Where litigation is in prospect, it is the duty of the solicitor to make proper investigation into the cause of action to enable him to form an opinion as to whether a cause of action exists which is likely to succeed, but a solicitor need not comply with every request from the lay client and it is a matter for the solicitor con- cerned to consult Counsel as he shall see fit. If the solicitor decides that no good cause of action exists, it is the solicitor's duty to inform his client and advise him not to proceed, and he is not liable for negligence if the client insists on instituting proceedings. It is also the duty of the solicitor to try to prevent useless litiga- tion. See Edwards v. Edwards (1958) 2 All E.R., 179- Where a client has alternative remedies and the soli- citor is instructed to pursue one and fails to inform his client of the other that is open to him, is he guilty of negligence? These cases are doubtful and must be de- cided on the particular facts and merits of each case. In general a solicitor should explain to his client the legal consequences of any step which the client proposes to take and he is also obliged to inform the client of alternative remedies if any, which are available to him- It is the solicitor's duty also to communicate offers of compromise to his client; but where the solicitor is called upon to advise upon what terms a compromise should be effected, he is under no duty to reason out the matter with and quote authority to his client, though it may be proper to inform him that the law' is unsettled. 3. In matters of Procedure In matters of Procedure a solicitor is liable for ignorance of familiar points, as for not filing Plenary or Originating Summones in time to prevent the Statutes of Limitations running; for not taking proceedings within the period prescribed by Statute; and for many other matters which it is his duty to be aware of, as, an Officer of the Court. 4. In Non-Contentious Busine s A solicitor is liable for loss occasioned by ignorance on points of ordinary law. SALE AND PURCHASE OF LAND In these cases the solicitor must make all usual and relevant searches (1) He must insist on the production of all original documents when he is purchasing part of the property only, for the purpose of satisfying himself that the main property is not subject to any equitable mortgage, charge or lien : (2) when purchasing invest- ment property he must ascertain and inform his client \ whether the lettines are protected, lettings under -the 2K

OBLIGATIONS ARISING O l I < >1 RETA I NER 1. To be Skilful and Careful At Common Law a solicitor contracts to be skilful and careful, for a professional man gives an implied under- taking to bring to the exercise of his profession a reason- able degree of care and skill. It follows that this under- taking is not fulfilled by the solicitor who either does not possess the requisite skill, or does not exercise it. It seems imaterial whether the solicitor is retained for re- ward, or volunteers his services, or whether or not he has a practising certificate in force at th etime. The standard of care usually adopted is that of the reasonably competent solicitor but if the solicitor is consulted as a specialist the standard of a specialist may be expected. Ignorance of the law is no excuse but as was said by Abbot C.J. "No attorney is bound to know all the law; God forbid that it should be imagined that an attorney, or a counsel, or even a judge is bound to know all the law; or that an attorney is to lose his fair recompense on account of an error, being an error as a cautious man might fall into" Montriou v. Jefierys (1825) 2 C.P. 113. Although a solicitor is not bound to know all the statutes* there are some, e.g., Statutes of Limitations, 1957, which it is his duty to know. Although a solicitor is not liable for a mistake as to the construction of a doubtful statute difficult to in- terpret, or unexplained by decisions, he may be liable if he fails to realise that the statute presents difficulties of interpretation. On the question as to how far a solici- tor may be liable for negligence for delay, it has been said that it could be wrong to hold a professional man guilty of negligence because everything is not dealt with by return of post. See Potter v. London Transport Board (1965)—109 Solicitors' Journal, 233. 2. To protect the Clients' Interest Since the solicitor's duty to his client is based on the contract of retainer, he owes no duty of care to anyone other than his client, save where he is liable as an Officer of the Court or where some special relationship exists. The exact scope of the solicitor's duty to protect his client's interest is difficult to define, but according to Scott L.J. a solicitor should at least be able to : (a) carry out his instructions in the matters to which the retainer relates, by all proper means; (b) consult with the client on all questions of doubt which do not fall within the express or implied discretion left to him; and (c) keep his client informed to such an extent as may be reasonably necessary. See Groome v. Crocker (1938) 2 All E.R., 394, 413. It is however no part of the solicitor's duty, in the absence of special instructions, to advise his clients on matters of business. Thus a solicitor is under no duty to advise his client whether a sale is a prudent one or whether an independent valuation is desirable. See Bowdage v. Harold Mitchel More & Co. (1962) 106 Solicitor's Journal, 512.

LIABILITY IN PARTICULAR CASES

1. In Contentious Business Skill and Care

Tingle C.J. observed in Godfrey v. Dalton as follows : "It would be extremely difficult to define the exact limit by which the skill and diligence which an Attorney undertakes to furnish in the conduct of a cause is bounded; or to trace precisely the dividing line between that reasonable skill and diligence: which