The Gazette 1974

for Whim Creek shares and represented that most of them had been delivered when they had not received delivery of or made payment for any of them, thus misleading Mr. Cruess-Callaghan into assuming that such delivery had been made. Secondly, they failed to deliver the bonds to the bank as soon as they arrived. Thirdly, they failed to inform Mr. Cruess-Callaghan on September 10 that only 1,000 of the Whim Creek bonds had then been delivered and paid for at a time when they knew or ought to have known that he urgently contemplated selling them and was under the misapprehension that they were all avail- able. And fourthly, they failed to inform Mr. Cruess- Callaghan's agent, when he contacted them that 4,000 bonds were then available for sale for cash. Mr. Justice Pringle said he would not accept the submission that Mr. Cruess-Callaghan's failure to pay what was clearly due by him on the purchase of West- field shares constituted such a breach of contract by him as to entitle Bewley Ryan and Co. to treat the agreement in regard to the payment for the Whim Creek Shares as repudiated. In his opinion each transaction must be regarded as a separate transaction. Section 34 of the Civil Liability Act, 1961, provided for the apportionment of degrees of fault between a plaintiff and a defendant who were each responsible to some degree for the loss owing to their negligence or want of care, or that of one for whom they were responsible, and this Section applied to any wrongdoers, including those guilty of breach of contract.

of 30 Morehampton Road, Dublin, against Bewley Ryan and Co., of 8 Anglesea Street, Dublin. Bewley Ryan and Co. had sued Mr. Cruess-Callaghan for £5,662, the balance due for money paid for him at his request and for commission. Any misrepresentation to the client, whether fraudu- lent or innocent, as to a material fact would constitute a breach of duty on his part. He must, of course, carry °ut any instructions given to him to the best of his ability, but he was not bound to give advice to his client unless he was asked to do so, but if he did give advice, be must do so honestly, and to the best of his ability. . Judgment for the full amount with costs was given •n favour of Bewley Ryan and Co. by Mr. Justice Henchy in 1972, but execution on foot of the judgment was stayed in the event of Mr. Cruess-Callaghan lodg- ing that amount and delivering a countercclaim with- 'n seven days of the order. Mr. Cruess-Callaghan complied with that order in re gard to the lodgment and delivered the counter claim in which he claimed damages for breach of contract, misrepresentation, negligence and breach of duty by Bewley and Co., as his stockbrokers, in relation t o the purchase of certain Australian mining shares. Stockbrokers' Duties In a long judgment, Mr. Justice Pringle dealt in detail with the matters which gave rise to the dispute and then went on to refer to the duties of a stock- broker. A stockbroker, he said, was bound to exercise the skill and competence of an ordinary competent practitioner * n that profession. He was bound at all times to act •airly and honestly in the interest of his client. Judged by these tests, said Mr. Justice Pringle, he W a s satisfied that Bewley Ryan and Co. Were guilty of Ce rtain breaches of their duty to Mr. Cruess-Callaghan. In the first place, in the light of what he (the judge) had held to be the contract between the parties, Bewley Byan and Co. had wrongfully claimed payment in full The Court of Appeal found it impossible to under- hand how a sentence of 20-year disqualification could have been justified, even for an offence of driving while disqualified. Their Lordships allowed an appeal by Allan Muncas- t e r , aged 39, a plumber, against a sentence of 12 months' •^prisonment imposed on him at Middlesex Crown ^ou rt (Judge Edie), last October after he had pleaded guilty to a charge of driving a motor vehicle while disqualified. They ordered his immediate discharge. Morley London Developments Ltd. v. Rightside Properties Ltd. Before Lord Justice Edmund Davies, Lord Justice Stephenson and Mr. Justice Bagnall. A plaintiff in the High Court who claims various heads of relief, as opposed to asserting several causes action, may abandon any head of relief without n °tice to the defendant. If the only claim left is for ^ l i q u i d a t ed damages and no defence has been entered he may enter judgment in default of defence under Order 19 rule 3 of the Rules of the Supreme Court. Election to seek damages only necessarily involves with- 100

Mr. Justice Pringle said that he considered that Bewley Ryan and Co. and Mr. Cruess-Callaghan (through his agent) were equally at fault and he there- fore, awarded Mr. Cruess-Callaghan £1,320 damages on his counter-claim, that sum to be set off against the amount of the judgment earlier obtained by Bewley Ryan and Co. [Cruess-Callaghan v. Bewley, Ryan & Co. Ltd.; Pringle J.; unreported; 15/1/1974. ] ENGLISH DECISIONS OF PROFESSIONAL INTEREST Regina v. Muncaster Before Lord Justice Edmund Davies, Mr. Justice MacKenna and Mr. Justice Boreham.

drawal of an alternative claim to specific performance. Th e court dismissed an interlocutory appeal by the defendants, Rightside Properties Ltd. from a judgment of Mr. Justice Templeman on March 20 whereby he ordered that a final judgment for damages to be assessed which had been entered in favour of the plaintiffs, Morley London Developments Ltd. on November 22, 1972, in default of defence, be set aside on condition that the defendants paid £23,000 into court within seven days. The defendants on the appeal contended that the judge should have granted them unconditional leave to defend. Or d er 19, rule 3, provides: "Where the plaintiff's claim against a defendant is for unliquidated damages only, then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fired . . . for service of the defence, enter interlocutory judgment against that defendant for damages to be assessed and costs. . . . " Order 21 rule 2 (1) provides : "The plaintiff in an action begun by writ may, without the leave of the court, discontinue the action, or withdraw any parti- cular claim made by him therein, . . . at any time not later than 14 days after service of the defence on him . . . by serving a notice to that effect on the defen- dant. . . ."