Sale of land — Local land charge — Undertaking by vendor’s solicitors to discharge subsisting charges — Failure to honour undertaking — Whether subject to Limitation Acts — Whether barred by laches — Solicitors found liable
The defendants are a firm of solicitors in which Emmanuel Abaraonye is now the sole principal. In 1980 the plaintiff purchased a house in Wandsworth, London, from Mr and Mrs Nwigwe, for whom the defendants acted. It was alleged that at the time of the purchase the defendants gave an undertaking to discharge all subsisting charges on the property. The plaintiff sought to enforce that undertaking in respect of a local land charge registered against the property for expenses incurred by the local authority in carrying out works under the Public Health Act 1936; the amount now required to discharge the charge is £900.
On the evidence, and having regard to the terms of the Local Land Charges Act 1975, a priority notice was registered in August 1976 and, following the completion of certain works by the local authority, a specific charge was registered in May 1980 after the plaintiff’s purchase of the property. In the course of the correspondence between the plaintiff’s solicitors and the defendants at the time of the plaintiff’s purchase, the defendants stated: “we will give our undertaking to discharge all subsisting charges”. In July 1980 the local authority demanded payment from the plaintiff, although they took no further steps in their claim until September 1987. The plaintiff claimed that the defendants had failed to honour their undertaking to discharge all subsisting charges and this amounted to misconduct.
Held In the light of advice published in The Law Society’s Gazette, it is the common understanding of solicitors engaged in conveyancing that a reply by way of an undertaking couched in future terms is binding. It mattered not that the defendants had stated that they “will” give an undertaking; that was as good as giving an undertaking.
Although the plaintiff’s original requisition had sought an undertaking to discharge all mortgages, the defendants’ undertaking was in terms wide enough to include the charge in issue, incautious though that may have been. Although the priority notice was all that was registered at the time of the plaintiff’s completion, the specific charge that arose once money was expended on the property was enforceable against the property and could be described as a charge.
The defendants’ submission, that as over eight years had elapsed before the commencement of these proceedings either the action was statute-barred or the court should exercise its discretion to absolve the defendants’ liability, was not accepted. Where a party is seeking to invoke the court’s supervisory jurisdiction over solicitors, the Limitation Acts do not apply. The equitable doctrine of laches was applicable to the delay, but by reason of the local authority’s own delay in enforcing the charge and the carelessness of the defendants in not dealing adequately with the matter earlier, the undertaking was still enforceable against them.
John Fox v Bannister King & Rigbeys
[1987] 1 All ER 737 applied.
Robert Willer (instructed by Graham Harvey & Co) appeared for the plaintiff; and Philip Sapsford (instructed by Stuart A West & Co) appeared for the defendants.
