The Gazette 1995

MEDIWH m AR ch 1995

GAZETTE

any situation a duly of care existed namely: (a) forseeability of the damage alleged (b) a close and direct relationship between the parties characterised as proximity or neighbourhood, and (e) a requirement that it should be lair, just and reasonable to impose a duty on one party for the benefit of another. It followed that the solicitors owed the daughters (plaintiffs) of the testator a duty of care and since their negligence had effectively deprived the plaintiffs of the intended legacies the solicitors were liable in negligence. Counsel for the solicitors in the Court of Appeal had in the House of Lords conjured up the spectre of solicitors being liable to an indeterminable class, including persons unborn at the date of the testator's death. Lord Goff. in the leading majority speech, staled that their Lordships were concerned

here with a liability which was imposed by law to do practical justice in a particular type of ease. There must be boundaries to the availability of a remedy in such eases: but these would have to be worked out in the future, as practical problems come before the court. He observed that in eases like the present ease liability was not to an indeterminable class but to the particular beneficiary or beneficiaries whom the client intended to benefit through the particular will. Lord Goff did state that if by any chance a more complicated ease should arise to test the precise boundaries of the principles in eases of this kind, that problem could await the solution when and if such a ease comes forward for a decision.

beneficiaries lo act with due expedition and care in effecting the testator's instructions. Delivering the lead majority speech. Lord Goff said that it was open it) the court to fashion an effective remedy for a solicitor's breach of professional duty to his client. In effect, the majority of the House of Lords considered that there was a necessity for a remedy to fill a lacuna in the law and so prevent an injustice to disappointed beneficiaries which would otherwise occur. The House of Lords described the remedy as an

extension of the principle of assumption of responsibility developed in Hedlex Byrne tt- Company v Heller & Partners

Limited

| 19641 AC 465.

False Sense of Complacency

The majority of the House of Lords extended the law of negligence in this manner by using the incremental approach advocated in Caparo Industries pic v Hickman 11990] I All H R 568. There, the House of Lords devised a test to determine whether in

Many of us can be lulled into a false sense of complacency by dealing with a client through correspondence. The judgment emphasises that solicitors must draw up w ills with the minimum of delay.

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