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Queen's Bench Division 192 EG 197, [1964] EGD 454 HEARING-DATES: 8 October 1964 8 October 1964 CATCHWORDS: Claim against solicitor -- Grant of sub-lease permitting use in breach of head-lease covenant-Solicitor negligent -- Should have saved clients from obvious risk of litigation -- Judgment for plaintiffs. INTRODUCTION: This was an action in which C. W. Dixey & Sons, Ltd., retail opticians, claimed damages from Mr. Anthony Parsons, of Garden Court, Temple, E.C.4, personally and in his capacity as executor of the estate of his brother, Mr. Joseph Parsons, for negligence whilst acting as solicitors for the plaintiffs in the sub-letting in 1958 of part of premises at 19, Wigmore Street, London, W.1. COUNSEL: L Caplan QC & A Hamilton for the Plaintiffs; B Caulfield QC & P Mac Nair for the Defendant. PANEL: Salmon LJ (sitting as an additional judge) JUDGMENTBY-1: SALMON LJ JUDGMENT-1: SALMON, L.J: said that the plaintiffs were a well-known firm of optical retailers in business at 19, Wigmore Street. The defendant was a solicitor who was sued in his personal capacity and as executor of the estate of his brother, Mr. Joseph Parsons, also a solicitor, who died in 1959. The defendant and his brother, at the material times, were in practice together in Garden Court in the Temple and had acted for the plaintiffs for a number of years. In 1958 they acted for the plaintiffs in the grant of a sub-lease of part of 19, Wigmore Street, to a Mr. R. K. Brien, who had afterwards used the premises sublet to him as a psychologist's consulting room and hypnotherapy centre. The issues raised were whether the defendants, in allowing the plaintiffs to enter into the sublease, acted with the skill, knowledge and care which was expected from a solicitor, and if not, what damages the plaintiffs were entitled to. The plaintiffs obtained a lease of the premises in Wigmore Street in 1953, their predecessor in title holding the lease from the Howard De Walden estate. Subsequently the Coal Board Nominees became head landlords. The lease was for 35 years from November, 1953, and the rental £2,000 per annum. The premises consisted of a ground floor, and four floors above, let in residential flats. By 1961, as a result of the increase in property values, the residue of the plaintiffs' lease was estimated to be worth something like £15,000. The lease contained a covenant that the premises were, inter alia, not to be used as a medical or surgical establishment or as a quasi-medical or quasi-surgical establishment. In 1957 the first floor flat fell vacant, and there was a suggestion by the plaintiffs that there should be a change of use from residential purposes, but permission for change of use was refused by the London County Council. In the middle of 1958, Mr. R. K. Brien asked for a sublease of part of the upstairs premises. A sublease was drawn up by the late Mr. Parsons and subsequently entered into by the plaintiffs with Mr. Brien. In point of fact Mr. Brien carried on a business of quasi-medical character in the premises. He had no professional qualifications, but advertised for patients who were suffering from nervous disorders and professed he would be able to cure them by means of hypnosis or other forms of suggestion. Some time after he had set up his plate at the premises in Wigmore Street he registered the premises as a hypnotherapy centre, and by various advertisements represented them as headquarters of the Hypnotherapy Association. That got to the ears of the Howard De Walden estate and the Coal Board Nominees, successors in title to the previous landlord. There was a good deal of correspondence, and finally a notice under section 146 of the Law of Property Act, 1925, was served upon the plaintiffs by the Coal Board Nominees claiming forfeiture on the ground that the premises were being used as a hypnotherapy centre and that the plaintiffs had let the premises to Mr. Brien for use as a psychologist's consulting room. Mr. Brien, when approached, said he had cancelled the registration of the premises as a hypnotherapy centre but continued to use them as a consulting room for a psychologist. Proceedings were then instituted and a writ issued by the Coal Board Nominees against the plaintiffs. The claim was on the two grounds set out in the section 146 notice. The plaintiffs were then in real difficulties, for if they lost the action they would forfeit the lease. By an amicable arrangement with the defendant and his brother the plaintiffs changed their solicitors, and the action by the Coal Board Nominees was settled. The plaintiffs bought out Mr. Brien for the best price possible. Mr. Brien was at first reluctant to go and made several suggestions to the plaintiffs, but what seemed to be the cheapest way of getting rid of him was to pay him £1,000 and meet the costs of the Coal Board Nominees. That pacified Mr. Brien and the Coal Board Nominees. Having done that the plaintiffs then brought the present action claiming the amount paid to Mr. Brien, less an allowance for improvements made by him, and the costs paid to the Coal Board Nominees. He (Salmon, L.J.), had no doubt that the late Mr. Parsons had been an extremely careful and competent professional man, and it was a painful thing for the Court to have to consider allegations of professional negligence. What the plaintiffs said, however, was that if the late Mr. Parsons had compared clause 2 (10) of the 1953 lease with clause 2 (A) of the 1958 sublease to Mr. Brien it would have jumped to his eye that to allow the premises to be used for the purposes of a psychologist's consulting room was a breach of clause 2 (10) of the 1953 lease. The defendants had submitted that, as a matter of law, the 1958 letting did not contravene the 1953 lease. He (his Lordship) had no hesitation in finding that the use of the premises as a psychologist's consulting room was a use as a quasi-medical establishment. A psychologist like Mr. Brien was a rather amorphous calling, but a solicitor could have made inquiries. Mr. Caulfield had argued, correctly, that one had to construe a clause strictly against those seeking to enforce it. Thus it was said that a consulting room could not be an establishment, but establishment was an extremely loose word and if a psychologist, osteopath, phrenologist or faith healer set himself up in rooms and carried on business it would not be putting any strain on language to describe the premises used as quasi-medical establishments. The defendants had also submitted that the Court was entitled to look at what the words meant when used in the original lease of 1913. He (his Lordship) had done so, and was satisfied that upon a true construction of the sublease and the lease the plaintiffs had committed a breach of the 1953 lease by subletting the premises for use as a psychologist's consulting room. It did not follow, of course, that because a solicitor made a mistake he was negligent. All a solicitor was paid to do was to take reasonable care. He did not warrant to his client never to make a mistake. The difficulty from defendant's point of view was that anyone would jump to the conclusion that a psychologist's consulting room was a quasi-medical establishment. In such circumstances it was highly imprudent of the late Mr. Parsons to allow his clients, the plaintiffs, to sign the sublease. In doing so he fell short of the standard of care which the court felt sure that Mr. Parsons normally exercised. The interesting point in the case was what the position would be if the Court was wrong in construing the 1953 lease. Did that mean, as the defendant had contended, that that was an end to the matter, as his advice to his clients had turned out to be right in the end and they had an answer to the forfeiture action? In the circumstances of the present case it did not. In the present circumstances the solicitor owed a duty to his client to take reasonable care, not only to protect his client against committing a breach of the law but to protect him against a risk of being involved in litigation. Circumstances varied in every case. The law was not an exact science; there was no topic upon which judges had differed more often than upon the construction of documents; no one was infallible except the House of Lords, and there were many points of construction upon which outstanding learned judges differed. In preparing a lease, as in the present case, a solicitor was presented with what was an obvious danger. It would not do for him to say that in his view it was all right. There was an obvious danger that a different view might be taken. In the present circumstances the ordinary careful solicitor in his normal state would have gone to see his clients and advised them not to sign. For these reasons the plaintiffs succeeded in their claim, and there would be judgment in their favour for the amount claimed, £1,149 2s. 9d. and costs. DISPOSITION: Judgment for the Plaintiffs of £1,149 2s 9d with costs. SOLICITORS: Underwood & Co; Chamberlain & Co. |