| PS47X | X | u | (Hidden, age unknown, judge) unspecified |
| PS47Y | X | m | (No name, age unknown, barrister) unspecified |
| JJUPSUNK (respondent W0000) | X | u | (Unknown speaker, age unknown) other |
| JJUPSUGP (respondent W000M) | X | u | (Group of unknown speakers, age unknown) other |
| Unknown speaker (JJUPSUNK) |
[1] And subtract from that figure ... the corresponding figure for an engine capacity of one thousand and one to fourteen hundred C C, namely one thousand two hundred and fifty three pounds and thirteen pence for the vehicle I find she would otherwise have run. [2] To achieve a figure of two thousand and thirty five pounds seventy five pence for annual depreciation. [3] I allow six hundred and ninety two pounds fifty five pence for standing charges excluding depreciation and thus these two heads total the sum of two thousand seven hundred and twenty eight pounds and forty pence. [4] To that must be added the running costs of a, at a si at a similarly discounted rate deduced from the A A tables of nine p , nine point four eight tenths of a mile. [5] I assess the annual mileage as six thousand which then gives a total for running costs of five hundred and sixty eight pounds eighty pence. [6] The total for all running costs is therefore three thousand two hundred and ninety seven pounds and twenty pence. [7] Applying a multiplier of eighteen to that figure, I arrive at a figure of fifty nine thousand, three hundred and forty nine pounds and sixty pence, which is the award I would make. [8] It is neither the ninety seven thousand, nine hundred and fifty seven pounds claim by Mr ... nor the forty seven thousand one hundred and eighty five pound figure contended for by Mr ... but I find it a fair figure for the cost of the plaintiff's transport in the years ahead. [9] Sub-heading medical expenses. [10] On [...] evidence before me I find that the plaintiff will require regular physiotherapy, speech therapy and hydrotherapy throughout her life. [11] I heard evidence of the one domi domiciliary visit per week of the physiotherapist had been stopped in September because of lack of resources. [12] I heard evidence that regular speech therapy at six monthly intervals was necessary for the plaintiff, particularly in view of her dribbling and choking problems. [13] Equally I'm satisfied that her hydrotherapy is both reasonably necessary and beneficial. [14] It follows that for si , physiotherapy I award the sum of one thousand seven hundred and sixty eight pounds per annum. [15] For hydrotherapy a similar sum and for speech therapy the sum of two hundred and twenty five pounds per annum, totalling three thousand seven hundred and sixty one pounds per annum . [16] Applying a multiplier of eighteen, the total sum is sixty seven thousand six hundred and ninety eight pounds, which is the sum I would award. [17] ... Sub-heading ... administration costs. [18] I am satisfied that the plaintiff is in a state where it is reasonably necessary to provide for the costs of setting up and maintaining a trust to handle the plaintiff's financial interests over the years ahead. [19] The costs involved are agreed at the sum of eight hundred and eighty one pounds and twenty five pence to set up the trust and an annual cost of three thousand two hundred and thirty one pounds twenty five pence. [20] Applying the multiplier of eighteen to that figure, one arrives at a figure ... of fifty eight thousand one hundred and sixty two pounds and fifty pence which when the additional costs are added in ... comes to the total of fifty nine thousand and forty three pence, I'm sorry, fifty nine thousand forty three pounds and seventy five pence which is the figure I would award under this heading. [21] ... Sub-heading, agreed figures. [22] ... The figures claimed under paragraph two C of the plaintiff's schedule for transport costs are agreed at six thousand seven hundred and ninety four pounds. [23] Those at two E for the schedule for Mr costs are agreed at thirteen thousand four hundred and forty seven pounds and ninety pence. [24] Those at three E of the schedule for Mr costs are agreed at a total of a hundred and forty four thousand six hundred and fifty nine pounds ... and fifty nine pence. [25] I should also itemise claims which were made under two heads which have been satisfied by interim payment. [26] There was a claim for forty two thousand seven hundred and eighty six pounds and eighty six pence for the cost of alterations to the plaintiff's home already carried out as I have indicated already, that was discharged by payment and by local authority grant of nine thousand eight hundred and forty seven pounds and an interim payment of thirty two thousand nine hundred and thirty nine pounds eighty six pence. [27] There was also a claim for medical treatment and therapy ... in the sum of eighty three thousand three hundred and seventy nine pounds and twenty six pence which was paid by a further interim payment. [28] Neither of those sums of course has to be taken into account in any of the mathematics which now have to be done to total up the awards which I would make. [29] ... The addition of the individual awards which would be made in the course of the aju this judgement ... achieve the total figure of one million eight hundred and fourteen thousand six hundred and fifty two pounds and twenty eight pence. [30] ... From this sum ... there must be deducted a total figure ... of two hundred and ten thousand seven hundred and seventy eight pounds and ten pence. [31] To give credit for other interim payments totalling one hundred and twenty one thousand five hundred pounds. [32] For interest on interim payments totalling seventeen thousand eight hundred and seventy one pounds and thirty pet pence and for statutory benefits on the relative multi relevant multiplier of eighteen, coming to a total ... of seventy one ... thousand four hundred and sixteen pounds and eighty pence. [33] ... When those credits are deducted from the total figure for the awards covered by this judgement ... the overall total figure ... would amount to one million six hundred and three thousand, eight hundred and seventy four pounds and eighteen pence. [34] I stop this judgement at this stage for two reasons. [35] These figures do not allow any sum for interest and therefore it may be that calculations will have to be made by council to include that figure or alternatively ... I am informed ... that both parties wish to consider the possibility of the incorporation of this judgement into a structured settlement. [36] That is not a matter where the parties are sufficiently advanced for it to be addressed to me at this stage. [37] It follows that I expressly do not give judgement at any figure at this stage but indicate merely ... what the findings are which I have made and what the sums which those findings lead to, are. [38] ... If there is to be ... a time taken for a further hearing before me ... in relation to the question of interest and or a structured settlement, I regret that the parties will have to follow me, not purely from Chelmsford to London but thereafter to Maidstone. [39] I am sure that the arrangement can be made and er I conclude what I have to say ... at this stage. |
| (PS47Y) |
[40] My Lord I am very grateful for that. [41] My learned friends and I will therefore er seek to resolve as soon as we can, the matters that are outstanding. [42] I know that everybody involved in the case is conscious that matters should not be left in the air, although the amendment to leave the cost of the [...] . [43] I now speak for my learned friend when I say that he will expert that. [44] Er, My Lord we will ... obviously calculate such interest that has to be calculated er and figures have to be sorted out and will be agreed [...] if that is appropriate, er and we'll also consider whether it's proper er to seek to achieve a structured settlement. |
| Hidden (PS47X) |
[45] Very well Mr I'm grateful. [46] Do not feel at all shy about seeking to correct any figures that you think are ... perhaps in error. [47] My fingers on my calculator are not as nimble as they should be. |
| Unknown speaker (JJUPSUNK) | [laugh] |
| (PS47Y) |
[48] My Lord m may I add one further matter, er, My Lord may I say on behalf of the family er the that your Lordship's comments will be very gratefully received ... er, neither Mr or Mrs , although they've sought recognition for what they've done for their daughter, they did it out of their fond love for her but nevertheless having such a [...] and such comment from your Lordship will be very, very good. |
| Hidden (PS47X) |
[49] Well that's good of Mr . [50] I don't think ... there was any word that I said that wasn't fully deserved by both ... the parents and their other daughter Clare. |
| (PS47Y) |
[51] My Lord the the final matter is, my learned friends and I agreed that it would be proper for there to be a further interim payment ... er in the sum of twenty five thousand pounds. |
| Hidden (PS47X) |
[52] Yes Mr |
| Unknown speaker (JJUPSUNK) | [...] |
| Unknown speaker (JJUPSUNK) |
[53] We consent to that and [...] your Lordship one direction to help us when we come to calculating interest is one of the earliest figures that your Lordship came to and it was dealing with care to date. |
| Hidden (PS47X) |
[54] Yes. |
| Unknown speaker (JJUPSUNK) |
[55] Your Lordship split into two ... periods. [56] The first one was done on an hourly basis, it's the second one, where your Lordship applied the multiplier of two and half to a figure taken ... from Miss calculations ... of [...] ... of thirty six thousand pounds one hundred and fifty. ... |
| Hidden (PS47X) |
[57] Er, Mrs figures my [...] |
| Unknown speaker (JJUPSUNK) |
[58] Sorry my Lord, er Mrs figures, yes |
| Hidden (PS47X) |
[59] Yes, thirty six thousand one hundred and fifty pounds and seventy two pence. |
| Unknown speaker (JJUPSUNK) |
[60] My Lord I |
| Hidden (PS47X) |
[61] Multiplied by three point five ... which I ... brought to a figure of a hundred and twenty six thousand five hundred and twenty seven pounds and fifty six pence. |
| Unknown speaker (JJUPSUNK) |
[62] My Lord the only point of interest and it's really one that I took in the [...] of the submission is that if you use an up to date nineteen ninety three figure for calculating it when it was first back to years three and a half, two and a half and ... one and a half years ago, then intre it wouldn't be fair if interest is awarded on that as well because in a sense the ... increase in the figure that inflation and the increased cost of living has produced because you use an up to date figure, probably equates with the interest and we can [...] the figure an up to date one to avoid just that otherwise it would be getting the figures for each of those years and then working out interest. [63] That your Lordship would direct, it would be in our task that that figure shouldn't have interest added to it because of the way in which it was approached. |
| Hidden (PS47X) |
[64] I think that's probably a logical conclusion because of the way the figure was reached in submissions. [65] Mr what do you say? |
| (PS47Y) |
[66] My Lord my initial reaction is it sounds logical as well and I I wondered if if [...] what my learned friend has said i if and also what your Lordship's initial view is, if the matter can be left in that way er i if after further reflection, it seems right then of course that's the way that we will approach it. |
| Unknown speaker (JJUPSUNK) | [...] |
| (PS47Y) |
[67] I if there is any problem that can be mentioned it won't take more than thirty seconds I would have thought. |
| Hidden (PS47X) |
[68] Shall we leave it that I will consider making a direction at the next hearing in relation to that figure ... and the question of any interest thereon ... but will defer ... any such er decision until you've had time to consider it. |
| (PS47Y) |
[69] My Lord I'm very grateful. |
| Hidden (PS47X) |
[70] There isn't I think anything else that can be done ... this afternoon. [71] ... In that case may I apr clude ... by wishing the parties and their advisors a very good Christmas. ... |
| Unknown speaker (JJUPSUNK) | [...] |
| Unknown speaker (JJUPSUNK) |
[72] [...] claiming for damages for breach of contract and your negligence against their former solicitors in relation to their handling of the purchase of a business by the plaintiff in late nineteen eighty five but all the [...] say is [...] on the nineteenth of October of nineteen eighty nine er my Lord the matter is complex. [73] It has er generated a great deal of documentation er which I hope that your Lordship has with him now in court, er, the documentation has been divided for trial into two parts, part A and part B. With your Lordship's leave erm, my learned friend and I have discussed erm, how your Lordship may best be helped in this matter. [74] Erm what I have in mind to do my Lord, is to open the case now for you to indicate the scope of [...] erm and will you then know, [...] agreed that we would invite you to adjourn that for some time to enable you do some reading of the witness statement and expert's reports because of course they are long and that would take considerable amount of [...] with your Lordship is able to familiarise himself with the matter which is contained therein. [75] ... Er, and if your Lordship is happy to do that then I can open it now and ... indicate what the case is about and invite you to take some time. |
| Hidden (PS47X) |
[76] Thank you. |
| Unknown speaker (JJUPSUNK) |
[77] My Lord, part A erm of the documentation contains three separate bundles. [78] Bundle one is the pleadings bundle, which I hope your Lordship's had an opportunity to glance at er this morning, part A trial bundle one is the pleadings bundle. [79] My Lord the pleadings bundle runs to almost a hundred pages erm, this is due principally to the fact that there are something like four sets of [...] particulars to statement of claim which have been served over the years er where the plaintiffs have set out their claim in er in detail. [80] My Lord the second bundle, part A bundle two contains the witness statements. [81] There are statements from both the plaintiffs. [82] Does your Lordship have the ... it should be er ... a small red file ... bundle that looks rather like that my Lord. |
| Hidden (PS47X) |
[83] Part A |
| Unknown speaker (JJUPSUNK) |
[84] Part A trial bundle two it should say on the front of it. |
| Hidden (PS47X) |
[85] Yes thank you. |
| Unknown speaker (JJUPSUNK) |
[86] Thank you. [87] The the trial bundle two contains the witness statements in the action and your Lordship will see erm on the indexing page that there are statements from David and Jean , the plaintiffs. [88] There is then a statement from er a witness to be called on bail, June . [89] ... There is then a statement from Peter erm who was the partner with the said firm with whom the plaintiffs dealt at all the relevant times in relation to this matter. [90] Er, he too obviously is [...] . [91] And finally there is a statement from a woman called Sarah who was at the time of these events, [...] church and her statement can be read because there is nothing in dispute in it. |
| Hidden (PS47X) |
[92] Yes. |
| Unknown speaker (JJUPSUNK) |
[93] Erm ... my Lord that trial bundle two in part A, my Lord, trial bundle three of part A erm, comprises expert evidence from two accountants ... er one from each side ... and my Lord the er ... evidence of the erm plaintiff's accountant is that of Mr whose report appears in this bundle and the defendant's [...] . |
| Hidden (PS47X) |
[94] This is B 1 is it? |
| Unknown speaker (JJUPSUNK) |
[95] I'm sorry. |
| Hidden (PS47X) |
[96] B 1 |
| Unknown speaker (JJUPSUNK) |
[97] This is er part A bundle three. [98] Does it say part A bundle three upon it? |
| Hidden (PS47X) |
[99] Thank you. |
| Unknown speaker (JJUPSUNK) |
[100] Yes, thank you. |
| Hidden (PS47X) |
[101] Well that's, that's part A ... no part B. |
| Unknown speaker (JJUPSUNK) |
[102] It's part A bundle three. |
| Hidden (PS47X) |
[103] That's it. |
| Unknown speaker (JJUPSUNK) |
[104] Yes. [105] ... There is a report from Mr from Peat Marwick who is the plaintiff's expert ... and there is then a report from Mr from Coopers and Lybrand who is er the defendant's expert. [106] Erm, both erm experts are to give evidence before [...] and my Lord included in this bundle with their reports are the documents to which either one or both of these experts have in guard when preparing their reports. [107] Er, my Lord you will see that there are cash flow forecasts which relate to the business er back statements for the plaintiffs ... er and then there are ... documents and papers which are referred to in Mr report and finally on the final page of the index ... there are the principal sources of information ... for Mr report. [108] ... My Lord for convenience sake so that everyone can refer ... immediately to both documents when the experts are giving evidence, they are all in the expert bundle. |
| Hidden (PS47X) |
[109] Thank you. |
| Unknown speaker (JJUPSUNK) |
[110] Well then er there is the documentation which is er entitled part B and part B which is also er contained in three ... files ... one, two and three, comprises ... what are essentially all the relevant documentary er evidence, which is arranged chronologically and events run, as your Lordship will see in due course, from approximately nineteen, mid nineteen eighty five through to the end of nineteen eighty six, beginning of nineteen eighty seven in the [...] . |
| Unknown speaker (JJUPSUNK) | [...] |
| Unknown speaker (JJUPSUNK) |
[111] My Lord erm, just to tell your Lordship what the scope of the bundle is. [112] Bundle one er starts in er, in fact in nineteen eighty three, nineteen eighty four with documents which deal with the er first plaintiff ... previous employment and his general financial situation before then turning to nineteen eighty five and to the events that led up to his purchase of the business around which this litigation centres, in September of nineteen eighty five ... and the documents in that first one will go up to mid October in nineteen eighty five. [113] They continue then in bundle two from er mid October to mid August nineteen eighty six and the final bundle ... takes the picture up to the end of the relevant matters in this case er in the early part of nineteen eighty seven after the business was re-sold by the plaintiffs at a loss. |
| Unknown speaker (JJUPSUNK) |
[114] [...] if I can er ... start first of all with the pleadings bundle ... and with the statement of claim which erm ... er sets out all the er [...] upon which the plaintiffs [...] and your Lordship will see from paragraph one that this claims relate to the purchase by the plaintiff ... of a lease of a restaurant and wine bar business at ... and er it is alleged that the defendants were retained by the plaintiffs to advise them ... in relation to that transaction in early September of nineteen eighty five ... and that the contract between them er contained the usual implied [...] required for the defendant to exercise or deal with the proper [...] and care in relation to their conduct of the transaction and er to the advice given to the plaintiffs throughout. [115] And my Lord the fact that their retainer and the existence of those implying terms are admitted in the amended statement which starts on page thirty eight of the bundle. [116] ... My Lord on page three of the pleadings bundle |
| Hidden (PS47X) |
[117] My my pleadings bundle isn't paged, but er |
| Unknown speaker (JJUPSUNK) |
[118] I'm sorry my Lord. |
| Hidden (PS47X) |
[119] I said my pleadings bundle isn't paged. |
| Unknown speaker (JJUPSUNK) |
[120] Oh I'm sorry my Lord then. |
| Hidden (PS47X) |
[121] But erm, no doubt we can put that right. |
| Unknown speaker (JJUPSUNK) |
[122] [...] have difficulties but we can certainly provide you with a ... er numbered bundle. [123] [...] see that er ... paragraph three of the statement of claims sets out the history of the transaction a and pleads the relevant facts. [124] ... My Lord by way of facts [...] the first named plaintiff Mr is now ... er fifty eight years of age and he and his wife live in Brentwood er both are named as plaintiffs because their joint monies were expended in the purchase of the, this business and they were both parties to the purchase erm but it is clear that Mr in fact did all the negotiations for the purchase and the planning and the running of this business and he is ... er the prime witness on behalf of the plaintiff. [125] He's a man who erm is qualified in the field of computer sciences and if your Lordship will hear has worked throughout his life in the fields of computers, banking ... and er in March of nineteen eighty five he left employment with a company known as Data Logic Limited where he had been employed as a banking consultant ... and decided at that stage er on a change of career ... erm and he was looking principally to acquire a wine bar, restaurant, country house hotel, something of that nature and er you will hear that after some early disappointments in ... the earlier part of nineteen eighty five when deals that er ... were on the horizon for premises in Oxfordshire and then in Chichester ... erm in early September the plaintiffs er saw and liked the wine bar in and offered the price of, the asking price of seventy five thousand pounds with stock er which was accepted. [126] [...] it is clear from the statement of claim that the ... er plaintiffs retained the defendants from about the ninth of September to act in relation to the purchase of this wine bar which was then known as er ... the plaintiffs were obtaining finance from the National Westminster Bank in order to purchase this business ... and the plaintiff Mr had been engaged in long standing discussions with his bank from the earlier part of nineteen eighty five with a view to er ... agreeing [...] financing facilities for the purchase of the various opportunities that preven present themselves and er ... he will say and that he makes clear in his witness statement erm that he certainly had understood that from these negotiations the National Westminster Bank were prepared to provide the financing that he required to run this business. [127] Now on the seventeenth of September Mr met Peter on the defendant's firm er for the first time at his office, where they had er a general discussion about the business and about what needed to be done in order to secure it ... and er the plaintiffs at that stage told Peter that there should be er no problems over finance as he understood the bank were willing to assist ... and at that stage he wanted to move as quickly as possible to exchange contracts on the business erm, for two reasons. [128] Principally there were at that time other interested parties in the premises er and also erm Mr saw it as essential er that er they were in and running the business er well before the time of the Christmas trade which was rapidly approaching then, then it being ... late August ... and er he wanted to make sure that they were in in [...] in time for them to be able to take advantage of those bookings that they anticipated. [129] The meeting of the seventeenth of September at the defendants offices is admitted by the defendant erm, but there is no admission as to what was said at the meeting. [130] Now er on the Friday of that week, the twentieth of September my Lord, erm Peter wrote a letter to Mr er dealing with the matters related to the preliminary enquiries and so the documents from the vendors solicitors they have pleaded in the statement of claim er that there was no er ... reference to or discussion of conditions in the contract of sale and in particular no reference to condition twenty two two, a national condition of sale which appears in paragraph three two of the statement of claim ... and which was a condition which er gave the purchaser the right to [...] the contract in the event of the non-completion by the vendor after the service of a special notice to complete. [131] ... Er ... the er facts set out in that paragraph are admitted by the defendant ... er ... in relation to that letter. [132] My Lord the er case moves on there over the page now to the twenty fourth of September and on that day Mr was notified erm by his bank ... on the telephone that head office had approved the finance proposal in principal and as a result of that Mr then telephone Peter , the defendant, told him that the financing for this deal had been approved in principal and Mr asked Mr to provide a bankers draft of some seven and a half thousand pounds in order to enable exchange to take place as a matter of urgency. [133] The matters obviously moved fairly rapidly because the parties were then almost ready to exchange contracts. [134] On Wednesday, the following day, the twenty fifth of September, there was then a a meeting between both the plaintiffs and Mr at the defendant's offices when the contract for sale was signed by both plaintiffs. [135] The bank draft was er [...] erm and it appeared that at that stage Mr was told by the er by Mr that the landlord's consent to the assignment of this lease erm, had still not be obtained. [136] That is admitted it, the defendants also erm [...] that Mr had told them that he, the bank had approved the loan facilities an and that he wanted to move quickly to er exchange of contracts. [137] The plaintiff's case is that despite the difficulty with the landlord's consent at the time the contracts were signed, it was made clear to them by Mr at this stage that that ought to be a formality and no one anticipated to expect this. [138] So my Lord on the twenty sixth of September, a Thursday, contracts were exchanged er and that completion date was then fixed at the eighteen of October and those facts are admitted, there is no dispute about those. |
| Hidden (PS47X) |
[139] And deposit was paid was it. |
| Unknown speaker (JJUPSUNK) |
[140] Deposit was paid my Lord [...] . [141] Now my Lord it's at the beginning of October things start to go wrong in ... erm and as it is pleaded on the first of October er, the plaintiffs were told the, in correspondence from the bank, that the financial terms that the finances that had been approved in principal, were only going to be available if security was offered in respect of a number of properties. [142] One of which was the property in Frinton which was owned jointly by Mr and his step mother who was an elderly lady who was then residing in that er property ... and er around that time on the first of October Mr er telephoned Mr and er ... told him about that but at that time, was not anticipating that there would be an difficulties about the security on Frinton for these ... he had always, added his case, made it perfectly clear to the man at the National Westminster Bank with whom he was dealing, Mr that that property was not a property which er could er be offered as security because of the joint ownership and er while in conversation with the bank he understood that this letter had been sent and Mrs had been on holiday and that it was simply oversight on the part of the bank at this stage and that all would well after Mrs returned, which was expected in two weeks time. [143] That, my Lord, the matter moves on to the fifteenth of October on which day er the plaintiff together with Mr attended Richmond Magistrates Court and obtained a protection order from the justices in relation to the premises ... and then on the sixteenth of October erm ... this was the day when things started to go very badly wrong for the plaintiff because Mr by now had returned from his holiday and come back cautiously, he apparently attended after his holiday ... and on this day Mr was told that, by Mrs that it was not possible to proceed with the financial er dealings that had been agreed between them unless the Frinton property was offered as security. [144] Now at this stage er it is the plaintiff's case that Mr er considered that this caused major financial problems, because the property at Frinton was simply not one that was open to him to offer as security, it was clear that the bank would now [...] as he saw it, on the deal that he understood that he'd struck and he knew that without the bank's help he would not be able to er proceed with this purchase and operate he business in the way he had wished to. |
| Hidden (PS47X) |
[145] How, how much was the bank going to provide. |
| Unknown speaker (JJUPSUNK) |
[146] My Lord the started sum of money originally, sixty thousand pounds was the total loan and there were further overdraught facilities and and it's the plaintiff's case that without it it was simply not going to be manageable and as a result of that having thought carefully about erm, position it is his case that he rang Peter , told him that there were major problems in the financing of the deal and asked him if he could get him out of the contract because the finance he anticipated was no longer going to be available ... and it was his case that Peter advised him that there was no way out because contracts had been exchanged, er Mr was told very clearly that he was committed legally now to the deal and that he'd better try and rearrange some finances since clearly they were moving towards er the completion date. [147] Well that's since denied by the defendant and that is a factual, major factual dispute which is obviously what you'll have to decide. [148] My Lord the er plaintiff Mr er telephoned the National Westminster Bank the following day in order to er make an appointment to discuss the finances further and an appointment was made for the twenty second of October. [149] Now on the Friday, the eighteenth of October, er Peter telephoned the plaintiff's home to speak to Mr erm but on this occasion he spoke to his assistant June ... and er, she was someone who at this stage was involved in the planning and the running of the business together with [...] acting very much as his personal assistant ... and Mr had a conversation with June on the telephone in which he told her that he had received a letter from the solicitors which indicated that they had not yet, er, the landlords er licence to assign had not yet been given. [150] It is admitted that there was er such a letter ... and er ... on this occasion er Miss evidence is that having heard that the landlords consent for the assignment still hadn't been obtained, asked Mr again whether it was possible in view of that, er to withdraw from the contract ... and er it is [...] case that again Mr repeated the advice he'd given to Mr two days earlier and told her that it was not possible and that again is denied. [151] On the same day, the eighteenth of October, Mr came back and spoke to Miss about this telephone call and he rang Peter in the afternoon of that Friday and he asked again if it was possible to withdraw because of the landlord's failure to consent to the er assignment and again er after what will er be described as a fairly easy discussion between the plaintiff and er Mr , er he was told very clearly that it was not possible for him to withdraw, contracts had been exchanged and he was advised that what the landlords er failure to consent did was in fact er provide Mr with more breathing space in order to obtain proper funding and re-arrange his finances ... er, that again is denied. [152] ... My Lord the er plaintiff's case is that as a result of the advice that he was given by Mr er it was clear to him that he had no way out of this contract, that he was committed to it and that he had no choice but to proceed with the matter and there was then er further discussion on the telephone on this day, Friday, between Mr and Mr to where they were going here and Mr said he would now write to the plaintiff setting out what his options were to him and the letter than was sent by Mr was dated the twenty second of October and the letter, the relevant terms of this letter are set out in a statement of claim expressing [...] at paragraph three ... eleven of this statement saying ... and of course er that is admitted by the er defendant. [153] ... Your Lordship er will see from paragraph three eleven that what the letter er says is [reading] as we discussed on the telephone, the advantage of the landlord's objection is that it gives you time to put your finances in order, if the licence was forthcoming now you would be obliged to complete the transaction which at this stage you are unable to do. [154] The courses of action open to you following [...] letter are as follows. [155] One, application could be made to the court that Mr the landlord is unreasonably withholding consent to the lease, if the court finds that this is in fact the case they will permit the assignment of the lease to you, not withstanding the landlord's objection. [156] If such application was to be made to the court I feel that further references to your business acumen would have to be supplied beforehand. |
| Unknown speaker (JJUPSUNK) |
[157] Two, the [...] could proceed without the landlord's licence, it would then be up to the landlord to apply to the court to have the lease forfeited when you could arrange the defence that you were a reasonable tenant and as such the assignment should have been allowed to permit this course of action but of course you are using bank money as well as your own and the bank would be unhappy to lend money in a situation where there was a possibility, albeit a slight, that the lease would be forfeited. [158] Three, you could arrange payment of the deposit as requested, possibly for a certain period of time and possibly for a smaller amount than demanded, this would no doubt by in the process [...] of the licence. [159] Four, you could do nothing at all and leave any course of action to the solicitors [...] comfortable then [...] you should be using their best endeavours to obtain the licence. [] [160] ... Now ... at about the time that that letter was written on the twenty second of October er Mr had the meeting at the National Westminster Bank that had been arranged between himself and a Mrs and it is clear from er this meeting that the bank would no longer er, given that the Frinton property was not to be offered as security, prepared to offer the sum, the substantial sums that they had originally agreed to do and they were now only prepared to offer very much smaller sums and the plaintiff's case is that the only way that they were going to be able to proceed to complete on this matter was er by selling their homes, their family home at and it is the plaintiff's case, certainly in relation to er the losses that they have sustained as a result of the breach of contract, alleged in this case, that er if they had not been forced to go ahead to complete on this deal they would not have been required to sell their family home. [161] [...] the bank were prepared to ... pay for the business to be purchase only on condition that the home, that the family home was then sold and the proceeds were given straight to the bank, so with that eighty thousand pounds of equity in the property and the purchase fund for the business was about twenty five thousand pounds. [162] Now at that stage my Lord Mr er telephoned Mr on the afternoon of the twenty second of October and it's his case that he explained what had happened at the meeting of the bank to him and er asked him again, in view of the fact that was having to sell him home, if it was possible to withdraw from the contract and it is the plaintiff's case that he pointed out to Mr er quite definitely and quite clearly on the telephone, on this day, er that without er the funding that he had required to run this business er he could only see that this was going to be potentially disastrous for him er and once again, my Lord as he said this was a fairly heated conversation and er the plaintiff was told by Mr once again that there was no way out for him and he should now concentrate all his efforts on achieving completion, er and once again we were [...] . [163] ... My Lord er in paragraph three fourteen of the statement of claim there is an important fact er which is a fact that is admitted by the defendant which is this that ... had the defendant on the plaintiff's behalf taken the opportunity which was open to the plaintiff by virtue of national condition twenty two which should say and served a special notice to complete upon the vendors on about the eighteenth or the twenty second of October, the contract would in fact have been rescinded on the thirteenth or the nineteenth of November nineteen eighty five and the plaintiff would therefore have been able to get out of the contract and that, as I say, is admitted in the amended dissent. [164] What is denied by the defendant and what is the issue of trial is that they deny that they were ever instructed by Mr er to save such a measure or that it would have been appropriate to serve them or that at any stage Mr ever asked to be advised on any way open to him to get out of the contract er as alleged. [165] It is the defendant's case that the plaintiff was at all times, pushing to proceed as a matter of urgency on the deal. [166] So as I say there is clearly a substantial er factual dispute between the parties as to what was said on these relevant telephone conversations. [167] Now my Lord as is er then made clear in a statement of claim paragraph three fifteen erm between the twenty third of October and about the twenty second of November the plaintiff then acting upon the advice of Peter that it was not possible to withdraw on this contract, did endeavour to complete upon the deal as soon as possible, very much with the timing in his mind and eventually after some toing and froing which er will be demonstrated in the course of the evidence, agreement was reached with the landlord for his consent to the assignment to be given er on condition that there was payment of some advance rent by the plaintiff. [168] That was done and completion actually took place is pleaded as the twenty second of November, the er defendants admit completion took place on or about the twenty fifth of November. [169] So it appears that completion was around that time although the date is not er, is not certain. [170] ... My Lord er, those are the facts which er form the background to the allegations of breach of contract with negligence that are named in paragraph four and five of the statement of claim. [171] My Lord the paragraph four of statement of claim contains the allegations of breach of contract ... and paragraph five makes effectively exactly the same allegations but under the heading of negligence in breach of the deal of the care owed to the plaintiffs by the defendant. [172] Now there are two areas where it is alleged that the defendants were in breach of their professional duty to exercise skill and care in advising the plaintiffs throughout their handling of this transaction. [173] Firstly, it is alleged that there was a failure to advise the plaintiff er before the contracts for this business were exchanged, as to the necessity for ensuring that there was adequate finance to er complete the purchase granted on terms that the plaintiff could meet and which were set out clearly in a letter of offer from the bank and there was a failure to advise the plaintiffs as to the risk of relying upon oral offers of financing from the bank. [174] It is, it has been pleaded at various points throughout paragraph three in reciting the history, that at the various meetings between Peter and Mr that no advice of this nature was given and it is the plaintiff's case that failure to give advice of this nature, even if they did not ask for it, which they did not, was a breach of the professional duty owed to them by the defendant. [175] My Lord it is pleaded as being a matter of er common practice amongst solicitors in this kind of situation er for such advice to be given and my Lord er ... if you turn to the folio of their particulars ... erm ... which were given I think it's the final book, what are called the voluntary further and better particulars which in fact were the [...] final particulars ... er given towards the end of the bundle of documents. [176] ... This is this is [...] further and better particulars we're just finding the document in the bundle. [177] ... We undoubtedly [...] your Lordship [...] because er I'll be referring to er one or two other parts of the further and better [...] [pages turning] . |
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[178] Thank you. |
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[179] It's page eighty two my Lord. [180] ... and on page er eighty two ... the erm plaintiffs were after [...] perhaps in matters which it is alleged the defendant should have appertained relating to the financing of this transaction, prior to exchanging contracts and the base of the claim is that as set out in the [...] on page eighty two that the defendants should have appertained whether the plaintiffs had a defined source of funds upon terms which the plaintiffs were able to meet. [181] This they did not do and they should have ascertained by sticking writing into the National Westminster Bank to confirm that sufficient funds were available for the completion of the proposed transaction and that the terms upon which this finance was to be made available had been agreed. [182] ... My Lord the defence admit that no such advice was given to the plaintiff but they deny that they were under any duty er to give such advice and it is pleaded in the [...] that er the defendants will rely upon the fact that Mr er held himself out to be er ... an experienced man of business and as such it was not necessary on their part to advise him upon the adequacy and arrangements for the financing of the operation. [183] ... My Lord that is in dispute, it is in dispute ... firstly that in fact as a matter of fact, Mr had ever held himself out to be an experienced man er of business, that Peter believed him to be as such, er and in any event, even if he was to seem as such it is the plaintiff's case that there was still a duty upon the solicitor in that situation. |
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[184] Well the solicitors couldn't very have written to the, to the bank could they? [185] As it is alleged here. |
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[186] Well my Lord it would be the plaintiff's case [...] . |
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[187] If they had done the bank would have written back and said mind your own business. |
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[188] Well, my Lord, the plaintiff's case would be ... that had the solicitor ascertained from the plaintiff that it was alright for him to just check with the bank this could easily have been done, and if the bank had given authority by the plaintiff for [...] . |
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[189] So really it's understood in these allegations that you're saying that ... the solicitors should have ... invited your client to provide them with the authority to ... to write to the bank. |
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[190] Yes, after. |
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[191] And get independent ... independent confirmation ... from the bank, independently from their own client. |
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[192] Either that my Lord or, er as it's pleaded in in the alternative, should have advised the plaintiff to do that, to get that confirmation in writing ... and in any event, even if it is alleged as the defendant ... say ... that the er that Mr is an experienced man of business and both these plaintiffs were purchasing the business, er and Mrs it is the plaintiff's case was clearly entitled to that advice in addition. [193] ... Well that is the first area er in which it is alleged the breach of duty on the part of the defendant. [194] The second area is the failure to advise the plaintiff as to their right to rescission of the contract in the event of the landlord's licence not being obtained and the vendor being unable to complete. [195] My Lord the plaintiff's case, as you can appreciate, is that Mr had very clearly, on several occasions in mid October, er requested a way out of this contract ... there was a way out er under the terms of the contract by service of special notice to complete ... erm and yet he had been told that there was no way that they could withdraw from the contract. [196] Er, the plaintiff's case is that there was a duty to advise them of the opportunity er which arose, from the refusal of the landlords to grant a licence for assignment erm and that their failure er to er ... give that er advice was in breach of duty and my Lord on page eighty five of the pleadings summary ... er page eighty five my Lord again er ... in answer to the the request for what advise it is alleged the defendant should give the plaintiff on the twenty second of October nineteen ninety five, at the top of the page. [197] The answer is that the advice that should have been given in the circumstances that prevailed on that date was, that if the plaintiffs wished to ignore the contract then they were entitled to serve a completion notice which because the vendor was unable to obtain that would have meant that the vendor would be unable to comply with the completion notice and accordingly the contract would have come to an end. [198] ... Now my Lord the defendants say of course, that they were never asked by the plaintiff to get him out of the contract so that the duty er never arose. [199] But they also say in the alternative that that since the plaintiffs themselves were ... at this time by mid to late October of nineteen eighty five, not ready or able to complete it would have been improper ... erm ... for the defendant to advise the plaintiffs to serve a special notice to complete and my Lord the question that therefore arises er whether, even if that were correct, er and it's not admitted that it is, that exonerates the defendants from given the advice ... er and whether they should still have advised the plaintiff erm of the opportunity which was open to him, that the plaintiff could if necessary take that course himself or be advised to go er elsewhere and be advised independently is er this is, this the point of the matter which he regarded as improper and was not willing to do it on the plaintiff's behalf. [200] The case of the plaintiff is that he should still have been told and advised about the er availability of this provision, particularly when he was clearly er fearful of the financial consequences to him of completing this and when he was expressing those fears forcefully er to Mr . [201] ... My Lord er obviously all the allegations of breach of contract and negligence are denied ... and er in paragraph six of the statement of claim ... on page nine. [202] The plaintiffs claim that they suffered loss and damage as a result of the defendants breach of contract ... er my Lord erm ... essentially having completed on this purchase they then tried er to run the business financially and in accordance with the terms of the lease, erm but it's all been the plaintiff's evidence that right from the start erm he was well prepared that there was insufficient working capital and insufficient funds er to run this business properly and efficiently and indeed shortly after purchasing it advice was sought about er re-sale ... and er if your Lordship looks at page eighty eight of the pleadings bundle which twenty one ... the plaintiff's case on page eighty eight, the top of the page my Lord. [203] ... It is said that the plaintiffs endeavoured to run the business because of the negligent advice received by them from Mr on the twenty second of October the plaintiffs were unable to withdraw from the contract. [204] They therefore faced no option other than to make a go of the business. [205] The alternative ... was either not to commence running the business or to cease running the business shortly after completion which would have meant in either case that the landlord would foreclose on the lease ... and the plaintiff's investment in the business would have been entirely lost. [206] Faced with that dilemma the plaintiffs chose to endeavour to run the business to an early sale and that is what they did my Lord and er the premises were put back on the market ... er in the early part of nineteen eighty six ... and er ... it is pleaded that er ... in in paragraph six statement of claim, that in May er a buyer came forward but that sale did not go ahead er because there were unreasonable delays on the part of the purchaser erm and er the deal fell through but then again in July ... er after the business had ceased trading, another buyer was found and then there was a lengthy period of negotiations ... at the conclusion of which the sale price was reduced because at that stage the plaintiff's landlord was going to increase the rent er and the plaintiffs were at that stage under threat of forfeiture ... and eventually contracts were exchanged on the sixth of November nineteen eighty six ... the sale price being eighty one thousand five hundred ... and er ... completion was on the fifth of December nineteen eighty six. [207] My Lord the er plaintiffs allege that they suffered considerable losses as a result of er their completion of er the purchase of this business. [208] Their case is that if they had been properly and correctly advised as they were entitled to be under the contract, they would not have proceeded to exchange or to completion. [209] If they had been advised as to the necessity for clear offers in writing with terms set out from the bank, their case is that they would have taken that advice, they would have waited for the bank offer and if and when it had not been suitable for them they would not have exchanged ... and their case is also that er once things had gone ... er very badly wrong and they wanted to get out of the contract if they had been advised as to the way out ... er then er ... they would have been er of that, they would have served notice and they would have got out of the contract. [210] Their case is that they were effectively forced to er complete unwillingly without the or the finance to make a go of the business and they suffered the losses which are claimed ... er set out in heading form initially on page sixty two of the pleadings bundle ... in further and better particulars. [211] ... and your Lordship'll see that erm figures are there set out which represent the losses incurred during the trading during that year from er November to December nineteen eighty five nineteen eighty six. [212] The loss on the sale of the business ... er various selling purchased expenses, loss of the profit, potential profit on their home,, the cost of borrowing er loss of earnings of the plaintiffs, loss on surrender of insurance policies er and er ... then some unspecified sums relating to pension and credit worthiness and ill health and loss of business My Lord those er headings are taken from and dealt with in er, much more detail in the report prepared by the expert's accountant Mr for the er ... plaintiffs which is of course in the erm bundle C ... the third bundle. [213] ... Sorry, bundle three, part A. My Lord er again on page eighty one of the pleadings bundle ... the er ... plaintiff set out erm in their answer to request number nine on page eighty one ... what they say er about what happened to their business. [214] On page eighty one, as at the twenty fifth of September nineteen eighty five the plaintiffs did not have any confirmed offer of finance, thus they were unable to achieve completion unless the bank offered the finance in accordance with the telephone conversation of the twenty fourth. [215] The plaintiffs were ultimately only able to complete on the basis of the terms subsequently offered by the bank which were financially disadva disadvantageous and effectively deprived the business of any chance of surviving because of the lack of operating capital and er many of the losses which are set out on page sixty two ... erm ... are based on that ... intention and are dealt with er in full |
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[216] This is what sort of business ... a w wine bar did you tell me? |
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[217] Sorry my Lord. |
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[218] What sort of business was it? |
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[219] It was a wine bar and restaurant. |
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[220] And restaurant. |
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[221] Yes. [222] ... My Lord er more detail about the nature of the losses which were incurred appear on erm ... page sixty seven of the further and better particulars. [223] ... Sixty seven of the pleadings bundle which are the further and better particulars [...] this year ... and you can see that er looking back to page sixty six, what the plaintiffs have been asked to state was to give particulars of the change in financial position which had been outlined to Mr on the telephone and er your Lordship will see first of all that in answer eighty little A, there is a reference to er a letter of the twenty seventh of February nineteen ninety two which was a letter from the plaintiff's solicitors to the defendant's solicitors which, this is been incorporating in the front or ought to be in the bible, erm I don't think it has been but there are copies [...] if I can hand your Lordship [...] it was missed out in error I am sorry [...] . [224] ... My Lord will see that there are details given erm as to the er financial ... requirements of the plaintiff. [225] So what is said is this. [226] Our client's initial requirements were for a loan of eighty six thousand pounds being sixty thousand pounds for the business and a further twenty six thousand pounds on house mortgage to cover any monies the bank had required our client to provide [...] overdraught facilities were also required. [227] The bank provided finance for our client to exchange contracts, this the deposit, and then subsequently [...] the attempt to obtain full security over their proposed lendings by including security over a property at Frinton on Sea which had been left in part only to our client upon his father's death. [228] Our client had it in telephone conversation with the bank on ninth of September only proceeded with the proposed purchase on the express understanding that Frinton property was not to be included particularly as his father's companion a Mrs eighty years of age, was residing in the property and owned a half share of it. [229] Furthermore our client had given Mrs through solicitors an undertaking at the time of the transfer of his late fathers half share interest to himself, that he would not use the property for purposes of charges being placed upon it. [230] The bank were aware of this. [231] In order to comply with the directions being given by Mr to our client to rearrange his finances, your client's letter [...] in May er a buyer came forward but that sale did not go ahead in which to put your finances in order. [232] Our client met his bankers on twenty second of October and was only able to obtain funding as follows. [233] The bank would give him facilities to purchase the business to the extent of seventy five thousand pounds if he agreed to sell his property at and from the proceeds of sale to repay the bridging facility in its entirety and they would provide a sixteen thousand pounds business loan and overdraught facilities to be reduced by five thousand pounds within a few days and if the six thousand pounds rent deposit was not required then the business loan would be reduced to ten thousand pounds. [234] The bank finally agreed to loan sixteen thousand pounds for the business plus overdraught facilities and a further nine thousand pounds secured on our client's home repayable over five years, any further mortgage over a future was to be arranged elsewhere ... and my Lord er will hear that in fact the, having the sale of their home having been completed on the fifth of December the plaintiffs were then homeless for some three months living with their daughter until such times as they were able to arrange a mortgage on their present property with the Halifax. [235] [...] and er move into that new home. [236] ... And er the er ... those figures are really set out again er repeated in the further and better particulars which appear on page sixty seven and page sixty eight. [237] They're really setting out in in great detail what is contained in that letter. [238] ... [clears throat] [cough] My Lord the er ... defendants deny erm that er if there was any breach of contract or negligent on their part as that caused the losses which are claimed and also er do not admit any of the losses or damage er I consider the damage which was claimed by the plaintiffs. [239] My Lord erm there are er in my submission er a likely there were to be five key issues for determination in a court of this trial. [240] That the first issue erm were the defendants in breach of contract in failing to, as is admitted, a unitary stat unitary authority and County Hall is made in a unitary stat unitary authority and County Hall is made into a be put to be theirs. [241] ... provided from the bank. [242] ... Er, the second issue is did the plaintiff, Mr ask Peter to get him out of the contract ... between exchange and completion ... er that is clearly in dispute but if he did then the further issue is this, were the defendants in breach of contract in failing to advise the plaintiffs at a stage as to the effects of national condition of sale twenty two two and a way out of the contract which was open to him. [243] ... Er, four er if the plaintiffs had been so advised, would they have taken ... er that way out ... thereby [...] the contract ... and fifthly, if the defendants er were in breach of contract and your Lordship decides all those questions in the plaintiff's favour then er what is the basis on which they are to be awarded damages. [244] My Lord the er plaintiff's case is that you must er appertain now the actual situation of these plaintiffs and compare it with the situation that would have prevailed if the breaching of contract alleged, had not occurred. [245] Now the case . |
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[246] The damages I suppose might be different, depending which ... er ... what kind of breach you succeed on. |
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[247] Yes I think that may be right my Lord, indeed er if we succeed on the way out, get get out of the contract point then of course the plaintiff's case is that they would have taken that advice and would not have entered into the contract a and therefore on that basis they are entitled to be compensated on the basis that all the losses they unnecessarily incurred by having, being forced to complete, should be recoverable, subject to er litigation of loss and [...] . [248] But that's the basis on which they erm ... content er ... it is also their case that [...] . |
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[249] Well, what would that damage be ... in er? |
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[250] Well my Lord in my submission it is all those items which are claimed, the trading losses of having to run the business erm ... operating at a loss for that trading year er the loss on resale. [251] The loss of profit because they had been compelled to sell their home in order to complete on the purchase and the cost of borrowing and er the ancillary matters that are set out in the claim and dealt with by the accountant. [252] It is the plaintiff's case that all those losses were losses they would not have incurred erm had there been no breach of contract. [253] Because had there been no breach, the contract would never have been entered into in the first place ... and the er plaintiffs will rely upon that erm recent court appeal decision between and er against where the court of appeal indicated that if you are dealing with a case where the plaintiff was saying had there been no breach of contract, this is a transaction we would never have entered in to then the plaintiffs are entitled to recover compensation on that basis. [254] Erm, on the basis that they should be put back into the position that they would have been had there been no breach. [255] Now erm I understand that, talking to my learned friend Mr this morning, that erm he will be contending for a different approach as to the basis of compensation. [256] Namely, he will be inviting your Lordship to er look at whether or not the business ... the plaintiff's [...] would have failed in any event ... er because it is the defendants case relying er extensively upon the opinion of their expert Mr ... er that even if the plaintiffs had had the finances which were originally anticipated and had completed the deal in accordance with that, the probabilities are that this business would have failed in any event and that they would have incurred the losses they did ... er so I anticipate there is going to be a dispute between us as to the basis in which your Lordship is to determine compensation in this case. [257] Er, my Lord I have to say that as far as the expert evidence from the accountant is concerned it is only Mr who has er offered an opinion, expressed an opinion ... upon that issue. [258] The plaintiff's accountant Mr confines himself to quantifying the heads of loss and doesn't speak with reference to the er allegations that are made in any way. [259] ... It is erm ... alleged, it is to be alleged as I understand it by the er defendant ... relying on Mr opinion that the business would have failed in any event ... er because of the plaintiff's general lack of experience in this trade and ... what is described as a lack of financial expertise or caution er to which the availability of extra money as envisaged in the original proposal, would have made absolutely no difference. [260] ... Er, my Lord er I ... my observations on that issue at this point be ... that erm ... it seems to be the defence case that for the purposes of er the defendants avoiding a duty to advise the plaintiffs as to the need for clear financial offers [...] their terms from the bank, Mr was an experienced man of business and er had considerable financial acumen for the purposes of considering er whether under the banks original proposal for finance he would have been successful, they would be trading as a financial disaster. [261] ... Er my Lord er ... the second observation I make about erm Mr opinion ... erm and the facts upon which it is based is that ... his opinion is hotly disputed er, not least because of what it would be submitted is the highly speculative nature of this enterprise ... er, when you are being asked to consider with the benefit of hindsight, whether or not a business entered into some eighty years ago, was likely to have failed and er it is also an exercise which in my submission is entirely irrelevant if your Lordship would find the basis of compensation which I contend for is the [...] one because the logic of not having to become involved in any investigation of whether or not this business would probably have been unsuccessful in any event. [262] ... erm ... My Lord there is one other matter erm, which we invite your Lordship to deal with now erm, a at this point before the case proceeds further and that is this. [263] My Lord there was an ... an order on the summons for directions erm in August of nineteen ninety erm, provided for experts report to be disclosed with expert evidence to be limited witnesses or each party. [264] My Lord in addition to erm the evidence from an expert accountant dealing with er [...] ... the plaintiff had obtained expert opinion ... erm on the extent of the duty owed by the defendant in this sort of situation. [265] It is an expert er report prepared by a partner of the solicitors firms ... who has since qualifying been dealing primarily with commercial and residential conveyancing [...] . [266] Erm, my Lord the defendant's solicitors were told in correspondence that we would be calling a conveyancing expert. [267] This report was disclosed in accordance with the direction of the trial on the twenty sixth of September of this year ... er the defendant had not obtained er a report themselves. [268] Erm, that report is not in the bundle of documents before your lordship at present because we were notified ... er er as [...] as the sixteenth of November er that thetted, a unitary stat unitary authority and County Hall is |
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[269] What is a conveyancing expert? |
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[270] My Lord the er |
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[271] Solicitor who conducts conveyancing. |
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[272] My Lord the ... the report deals with the extent of the duties which are [...] by solicitors engaged in commercial conveyancing, [...] er the duties that is [...] practice and is adopted by a majority of solicitors in this field, which relates to the extent of the duty to [...] to financial security and to advise as to er ... the availability if asked, of the way out of the contract and the meaning of and interpretation of the national agreement of sale. [273] Now my Lord ... the report er in my submission goes to the issues which are at the heart of this [...] . [274] The rule i in my submission is that ... expert evidence is admissible er where there are matters at issue before the court which require expertise for the analysis and these criteria to be satisfied in my submission are that first of all the evidence must be relevant, and secondly the witness must be competent to give it. |
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[275] Ar are you saying that the defendant was, or ought to have been a conveyancing expert himself? [276] ... Mr |
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[277] My Lord Mr was a conveyancing, the defendants firm are a a firm ... which specialise in commercial conveyancing matters and Mr was an experienced solicitor within that field and therefore the report addresses the duties to be owed by somebody working in that field and advising clients as to what the extent of the duty is. [278] Er, and my Lord er ... in my submission there is er no good reason why your Lordship should not receive that in evidence. [279] The reports from solicitors dealing with ... with matters of what are professional standards and duties in this particular field are er regularly accepted in evidence in these courts in order to determine those matters. [280] My Lord we are not dealing here er with erm ... general principals. [281] For example where it is alleged that a solicitor . |
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[282] Are you seeking to ... introduce er ... some ... solicitors practice rules of some kind? |
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[283] Well, there's nothing, as I understand it there is nothing in the Law Society guidelines but there are certainly references in the professional conduct guidelines which Mr has referred to in the course of this report er which referred to the extent of solicitors [...] in the situation. [284] And that's all part of the ... the evidence, the expert evidence that he will give. |
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[285] And this, are the prof professional conduct guidelines ... in dispute ... as they apply here? |
| Unknown speaker (JJUPSUNK) |
[286] Well my Lord, all we know is that erm when the report was served on the defendant it then came through [...] court they were going to have to call Mr and then last week it was suggested er that er ... not only did they not agree but that they were going to try to prevent it being admitted in evidence. [287] I know no further ... erm than that. [288] Er, but it may [...] your Lordship if you hear what my learned friend's objections are to er the report going in. |
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[289] Yes. |
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[290] My Lord er the basis of this objection is that this evidence is not admissible under [...] a sign of authority ... and erm ... I wonder if I could start er my submission on this by referring to er [...] on evidence. [291] ... In er chapter enth of November er that thetted, a unitary stat uni witnesses are admissible what if [...] or experience. [292] The principles [...] as civil proceedings and the topic is now run by [...] it goes on and that mainly deals with criminal material and then one can pick it up at paragraph thirty two er seventeen ... when er ... the authors addressed themselves to to civil proceedings ... er and that er following passage deals with effects of the civil evidence act ... and the relevant procedures ... and then moving on my Lord to er ... to in fact, thirty two thirty nine on page eighty hundred and twenty nine ... the [...] expert has furnished the judge or jury with the necessary scientific criteria for testing the accuracy of her conclusion so that to enable the judge or jury to perform their own independent judgement by the application of these criteria to the facts proved in evidence. [293] That er goes on in relation to er criminal matters again ... and er ... er paragraph three hundred and thi , thirty three forty one ... er it picks up the subject of expert testament, namely er [...] science, art, trade, technical terms, handwriting, foreign law ... er the ensuing pages in fact deal with that ... and then at paragraph thirty two fifty one ... er in the er section of subjects which experts may not testify on. [294] ... The first is ... what we [...] that passage, the questions of destruction whether of domestic, domestic or [...] . [295] He should instruct [...] particular terms of the [...] . [296] The instructions [...] that is the general rule [...] . [297] For example when [...] foreign documents relating to professional conduct the opinions of experts not sealable on disputes of policy in professional [...] to etiquette [...] to elucidate the rules of a particular profession, English law, morals and probability of human nature and all our opinions of law is that [...] which [...] English law though they may prove the proper costs of particular legal proceedings, neither expert or ordinary witnesses may give their opinions upon matters of legal or moral obligations or general human nature or the manner in which other persons would probably act in the interests and my Lord this [...] director points at the policy [...] it is in fact the authority admits [...] which is [...] Mr Justice then was. [298] ... This is a report at nineteen thirty nine ... the chancery reports ... one chancery at page three hundred and eighty four. [299] This was a solicitors [...] ... [...] pick it up and [...] my Lord so you can, you can see what the [...] dispute was. [300] Lot nineteen sixty one, [...] an option to purchase your honour for three hundred and eighty five which at that time was [...] at a rate of nine hundred pounds a year and they went to this friend of the firm of solicitors and there [...] of the document which doubly signed and was dated March twenty four nineteen sixty one but my consideration one pounds penny by [...] thereby granted to for the purchasing of [...] . [301] The option is expressed and remained effective for ten years. [302] [...] for one pound and unfortunately as he [...] the option of the contract ... and on a number of occasions [...] question whether he should exercise the option. [303] On seventeenth of August nineteen sixty seven object of defeating the option and having discovered through the result of his [...] solicitors that the option had not been registered, sold and been paid the farm ... [...] five hundred pounds and after the sale [...] by registering the option under the land chartered act and on the sixth of October nineteen sixty seventeen [...] could have exercised the option and neither or his wife complied with the notice and on March twenty eighth nineteen sixty eight wife died and on the twenty seventh of January nineteen seventy commenced proceedings against his father against his mother's executors [...] the declaration of the option was [...] . [304] On the eighth of February of nineteen seventy two died and on the eleventh of May seventy three died and the plaintiff's [...] continued the action but the action failed so he was awarded damages from the sale of his estate and on the twenty first of July nineteen seventy two commenced an action against [...] solicitors [...] for negligence or breach of professional duty in detecting to register the option [...] necessity of so doing. [305] [...] limitation point er it was held at one of [...] general or continuing duty [...] obtain an independent firm of solicitors to [...] the option on every occasion on which they were consulted as to a possible exercise [...] on such occasions whether in fact be issued [...] it goes on. [306] [...] was imposed on the defendant [...] client existed between the [...] defendants were therefore liable to be taught. [307] The defendant [...] contract for their negligence is omitting to register this option before the [...] and just before that [...] submission I wish to make. [308] Lord may I pick it up [...] page four hundred and two ... erm ... at lesson B ... [...] er there's a plea of breach of duty, this new plea does however raise the issue [...] not of the original, not apparent on the original fee then what is the scope of the solicitor's duty [...] that part of a particular aspect of a problem. [309] Is he entitled to confine himself to the particular matters for which he is retained to advise or was he to consider all the circumstances affecting the underlying data including hypothetical circumstances or risks which attention directed from one [...] and not specifically sought. [310] [...] as I've heard the evidence of a number of practising solicitors and Mr [...] committed himself [...] . [311] Mr [...] no doubt of what is said to be the divine preference for [...] called three. [312] I must say that I doubt the value [...] as it seems to me become accustomed in cases of this type. [313] It is then the legal duty in any situation must I think the questions for the court, clearly there's not practice [...] so accepted standards of conduct as laid down by the professional institute [...] . [314] Evidence of that had thought to be at [...] . [315] But evidence really amounts to no more than expression of the opinion by a particular practitioner of what he thinks that he would have done if he had been paid hypothetically without the benefit of hindsight the position of the defendant, with a little [...] while the evidence of the witness is due, what in the matter of law the solicitor's duty was in the particular circumstances of the case, I should have thought, being a solicitor [...] the very question which the [...] functions, to decide. |
| Unknown speaker (JJUPSUNK) |
[316] [...] the authority if I may refer you to it is the recent report of the British er Columbia Supreme Court erm courtesy of professional negligence ... er in the updating section it's a a [...] . |
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[317] Just, just one moment. [318] ... Yes. |
| Unknown speaker (JJUPSUNK) |
[319] My Lord [...] British Columbia Supreme Court erm ... and er photocopied [...] . [320] Erm, my Lord I don't think it's necessary to go through the rather complicated headland potentially gives you [...] though I can see it from the er. |
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[321] What the erm ... give me the reference again. |
| Unknown speaker (JJUPSUNK) |
[322] My Lord yes, nineteen ninety two, forty six B C L R ... open bracket two little d closed brackets, one six four. [323] ... Er my Lord it's rather a complicated [...] of transaction and ... the the essential [...] heading this case was that he failed to advise in relation to title ... er [...] the person who goes from [...] with respect to a land transaction he's entitled to expect that the lawyer investigates the state of entitlement to arrange the matter and to explain to the trial exactly what that is, what it is that is portrayed by the state of the title. [324] The defendants were negligent in breach of duty of not carrying out of that part of that duty. [325] And my Lord a short ... part I wish to refer you to and that is on page a hundred and seventy nine ... which is er the section when the judge was dealing with ... er the law of duty ... and the judge Mr Justice said during the trial I express some concern [...] to what evidence has been called [...] it is not necessary to refer to lawyers professional liability by [...] . [326] The issue is whether or not the defendant's lawyer should have told his client about the state of the title and the risks arising therefrom and I didn't have any difficulty in coming to the conclusion on that matter without the aid of expert evidence and erm ... the judge then goes on to deal with the [...] authorities. |
| Hidden (PS47X) | [...] |
| Unknown speaker (JJUPSUNK) |
[327] My Lord er, the final part of ... er my submission on [...] |
| Hidden (PS47X) |
[328] Well that doesn't take us very much further does it |
| Unknown speaker (JJUPSUNK) | [...] |
| Hidden (PS47X) |
[329] That particular case ... I don't know who this judge is ... judge ... what court is this in? |
| Unknown speaker (JJUPSUNK) |
[330] British Columbia Supreme Court my Lord. [331] It is approved er ... approval by er the editors of which is the ... the technical or professional negligence [...] . |
| Hidden (PS47X) |
[332] Yes. |
| Unknown speaker (JJUPSUNK) |
[333] My Lord there is a final part of our submission on on this is because I don't know whether your Lordship has a copy of the ... report ... this is the report of the fact that [...] ... My Lord erm ... what I wish to refer you to if I may, is erm that paragraph three one of the report which is erm ... that [...] solicitors and er he instructed himself er from the law society who told him that the law society in paragraph three [...] page five, don't issue any specific directional guidance [...] duty of care in relation to the plaintiffs transaction, the Law Society view [...] obligation to be have to be considered on the basis of [...] and he then goes on from there to ... to depart from that approach to ... speculate as to what his approach would be ... erm |
| Unknown speaker (JJUPSUNK) | [...] |
| Unknown speaker (JJUPSUNK) |
[334] But he goes on, he goes on and the body of his evidence my Lord is ... to speculate as to what he would have done and what Mr should have done in the circumstances of this er case and reference is made to the professional conduct guide in paragraph three two. [335] ... [...] guide ... but what we do dispute is the relevance ... that erm this solicitor is seeking to give ... [...] . |
| Hidden (PS47X) | [...] |
| Unknown speaker (JJUPSUNK) |
[336] So what we say on on the basis of ... Mr Justice er victory ... Nat West and Midland bank and the er authority in er [...] that this evidence is not in this report, doesn't assist you and what is relevant is [...] |
| Hidden (PS47X) |
[337] What, what evidence? [338] The evidence of what's in the guide to professional conduct. |
| Unknown speaker (JJUPSUNK) |
[339] We would not object to the guide my Lord but what we would object to ... don't object to the guide my Lord but what we do object to is ... is what this er solicitor would have done in relation to it ... |