Purchase of hotel — No right of way to car park — Alleged failure of solicitor to draw attention to lack of right of way — Whether solicitor in breach of duty of care — High Court holding that solicitor had discharged duty of care — Court of Appeal by majority upholding that decision — Judgment for defendant solicitor
The plaintiff bought the Close Hotel, Long Street, Tetbury, Gloucestershire. Behind the hotel was a garden, at the bottom of which, away from the hotel, was a walled car park, owned by the hotel for use by hotel guests. It was not possible for any vehicle to reach the hotel car park directly from the front of the hotel. It was necessary to drive some distance round the back of the hotel and approach along a road called Close Gardens. It was necessary to pass over an area of land owned by the county council. In February 1980 the then owner had built the car park and entered into a licence agreement with the council which permitted the hotel to pass from Close Gardens across council land to the new hotel car park when built. In return the hotel agreed to pay an annual licence fee of £500 and to permit the council to use the hotel car park, when built, for their purposes. The agreement was to run for 10 years from February 1 1980 and to continue thereafter unless and until determined by either party on six months’ notice. The defendants were the solicitors who handled the conveyancing for the plaintiff on his purchase in 1986. He complained that the defendants had failed to draw his attention to the fact that there was no right of way to the hotel car park. He alleged that this was negligent and that he had suffered great loss as a result. On the trial of preliminary issues the High Court held that the solicitors had discharged their duty of care to the plaintiff. The plaintiff appealed.
Held The appeal was dismissed by a majority (the Master of the Rolls dissenting).
1. The duty of a solicitor in advising his client was to exercise reasonable skill and care in communicating his advice to his client. Provided that the solicitor used language which would lead a reasonable person in the position of the solicitor to believe that his advice was being understood; there was no evidence that the solicitor should reasonably have observed that his advice was not being understood, the solicitor had discharged his duty.
2. The solicitor’s duty was confined to a clear exposition of the legal position and it did not extend to advising his client about its commercial importance, let alone the general wisdom of the deal. On the findings of the judge, there was no proper basis for interfering with the judge’s finding of fact that the duty was properly discharged.
3. Per Master of the Rolls dissenting: It was the solicitor’s duty to draw his client’s attention clearly to any pitfall the contract might contain. In a situation such as this a solicitor was not engaged for the performance of mechanical tasks. He was engaged to exercise his professional judgment and experience for the benefit of the client. That involved drawing the client’s attention, clearly and specifically, to aspects of the transaction to which a reasonably prudent client would wish to be alerted.
John Martin QC and Jonathan Simpkiss (instructed by Wansbroughs Willey Hargrave, of Bristol) appeared for the solicitors; Rupert Jackson QC and Hodge Malek (instructed by Lyons Davidson, of Bristol) appeared for the client.
