The Gazette 1995

MARCH 1995

GAZETTE

metres from their home. Under Article 50 of the Convention, the Court awarded the applicant compensation for damage and a sum for costs and expenses. In 1988 Mrs Gregoria Lopez Ostra, a Spanish national, lived with her family, a few hundred metres from the centre of Lorca. In July 1988, a plant for the treatment of liquid and solid waste from tanneries at Lorca, financed by a consortium of firms in the leather industry, began to operate a few metres from her home. As soon as the plant started up, the fumes from it caused health problems and nuisance to many local people, including the applicant. This prompted the municipal authorities to evacuate people living near the plant and eventually, on 9 September 1988, in the light of expert opinions produced by the relevant authorities, to order partial cessation of its operations. After returning to her home, the applicant continued to suffer health problems and noted a deterioration in the environment and the quality of life. She made an application to the local court seeking protection of her fundamental rights and alleging unlawful interference with her home and attacks on her physical and psychological integrity. In a report of 19 January 1989 the Environment and Nature Agency of the region recorded that nuisance was being caused. On 31 January 1989, the local court found against Mrs Lopez Ostra despite an opinion by Crown Counsel endorsing her application. The applicant then lodged an appeal with the Supreme Court, which was dismissed. On 26 January 1990 the Constitutional Court held that an appeal she had lodged was manifestly ill-founded. The European Court of Human Rights nevertheless considered that severe environmental pollution might affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their

given the required advice nor was it required to inform the solicitor of his professional duties. The case illustrates the cardinal importance, where there is the slightest possibility of a conflict of interest, of having a client confirm in writing that the effect of a document has been explained to him or her, and that he or she had the right to have independent legal advice on its effect, and (if appropriate) had waived that right. There are occasions when lawyers are disappointed with the decision of a judge. Leaving aside any bias in favour of one's own client, there is, sometimes a genuine intellectual disillusionment with the decision of the judge: justice was not done. In those circumstances, we (lawyers) should comfort ourselves with the sentiment expressed by Logan E Bleckley, an American jurist, who observed that in court, "it is always probable that something improbable will happen" ( Warren v Purtell 63 GA. 428, 430). We can expect too much from the judges. The celebrated Justice Oliver Wendell Holmes observed in Truax v Corrigan (257 US 312, 342, 1921); "Delusive exactness is a source of fallacy throughout the law." Mrs Cregoria Lopez Ostra failed in all the domestic courts of Spain in relation to fumes causing health problems at a local plant for the treatment of liquid and solid waste. Justice was finally achieved in the European Court of Human Rights. In a judgment delivered at Strasbourg on 9 December 1994 in the case of Lopez Ostra v Spain, the European Court of Human Rights held unanimously that there had been a violation of Article 8 of the European Convention on Human Rights (right to respect for private and family life and for the home) on account of nuisance caused to Mrs Lopez Ostra and her family by a plant for the treatment of liquid and solid waste sited a few Nuisance: State Liable

Bank Can Assume Solicitor Acted Properly

Sometimes solicitors consider that their duties ahd responsibilities cast an almost impossible burden on them. The duty of a solicitor, was considered by the Court of Appeal in the recent case of Bank of Baroda v Rayarel and Others (The Times, January 19, 1995); the decision of the court is pragmatic and has a practical significance for solicitors. The Court of Appeal held that a bank dealing through a solicitor with a wife acting as surety for a loan to her husband could normally assume that the solicitor had properly advised the wife. The bank was not required to take any further steps to avoid being fixed with constructive notice of misrepresentation or undue influence by the husband to enable the wife to escape liability for the debt. The case illustrates the cardinal importance, where there is the slightest possibility of a conflict of interest, of having a client confirm in writing that the effect of a document has been explained to him or her, and that he or she had the right to have independent legal advice on its effect, and (if appropriate) had waived that right. A crucial factor in the case was that the charge document contained a statement or certificate that the mortgagor acknowledged receipt of the charge deed, to have been advised of its effect, and of the right to have independent legal advice. The certificate was signed separately by each of the defendants and was witnessed by the same solicitor. The court concluded that the bank was entitled to rely on the solicitor giving his client correct advice and that the matter was put beyond doubt by the statement endorsed on the mortgage &nd signed by the wife. In a separate judgment, Hoffmann LJ said the bank's legal department was not required to commit the professional discourtesy of doubting whether the solicitor had actually