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after which the managing clerk of the firm asked the firm's probate department to draw up a will or codicil incorporating the new dispositions.000 each to the daughters. for two distinct reasons which are as follows: . it was contemplation by contract. The court had to consider the further question whether the case of Ross v Caunters (a firm)2 which concerned the liability of a solicitor to a beneficiary was still good law since the House of Lords decision in Murphy v Brentwood District Council. the testator reconciled with his daughters and sent a letter to his solicitors giving instructions that a new will be prepared to include gifts of £9. the testator. Advocate & Solicitor. Faculty of Business Administration. The managing clerk then went on a holiday and upon his return to work a fortnight later. On appeal. the testator initially instructed a firm of solicitors to draw up a will cutting both his daughters out of his estate. The judge at first instance held that the defendants owed no duty of care to the plaintiffs and dismissed the action. Teaching Fellow. The crucial question that was raised in this case was whether there was any distinction between this case and Ross v Caunters. The daughters of the testator (the plaintiffs). before the new dispositions were put into effect.3 1 MLJ cxxxvii at cxxxviii The duty and liability of solicitors Jones's case concerns the consequences in law of a solicitor's failure to prepare a will. LLM(Lond). the solicitor at fault was held to be negligent in failing to warn the testator that the will should not be witnessed by the husband of the residuary legatee. National University of Singapore Important points of law with regard to the duty of solicitors to third parties were considered in the recent Court of Appeal case of White v Jones.SOLICITORS AND DISAPPOINTED BENEFICIARIES [1994] 1 MLJ cxxxvii Malayan Law Journal Articles 1994 LIABILITY WITHOUT RELIANCE -. he made arrangements to visit the testator on a certain date but the testator died three days before the appointment date. Nothing was done to give effect to the instructions of the testator for a month. Megarry V-C held that the solicitor's contemplation of the legatee was actual. brought an action against the solicitors (the defendants) for negligence. nominate and direct. High Court of Malaya. of Gray's Inn. the Court of Appeal had to consider the important question of whether a solicitor could be liable in damages to the disappointed prospective beneficiary. The plaintiffs appealed. though the contract was with a third party.1 Facts In this case. At a later date. In Ross v Caunters. Barrister-at-Law. Supreme Court of Singapore.SOLICITORS AND DISAPPOINTED BENEFICIARIES Joanna Rasamalar Jeremiah LLB(Hons)(Lond).2 Malayan Law Journal Articles/1994/Volume 1/LIABILITY WITHOUT RELIANCE -. Advocate & Solicitor. Turner J (the judge at first instance) in Jones's case declined to apply Ross v Caunters to the failure to draw up a will for execution.

Lord Weir regarded the case of Robertson v Fleming to be binding on him because in his opinion thus far. It is an important case in that there was no reliance by the plaintiff on the defendant and this element of 'reliance' was crucial to the Hedley Byrne principle. These are cases where a prospective beneficiary can show reliance on a solicitor's advice. in response to a question. In Jones's case. the proposal to benefit the beneficiary had proceeded further but in Jones's case. nominate and direct. and the damage was too speculative and uncertain in extent to be recoverable.7 Hedley Byrne8 and Murphy v Brentwood DC. however. it was decided that in the absence of privity of contract. no court had held that it was free to depart from a route of the common law laid down by a higher court on account of subsequent developments in that branch of the common law. 1 MLJ cxxxvii at cxl (b) Effect of the decision in Ross v Caunters The case of Ross v Caunters is of particular interest.the solicitor was in breach of his professional duty in carrying out his client's instructions for the preparation and execution of a will. the solicitor cannot be liable to the beneficiary only because of his awareness if otherwise he would not be liable. In this case.3 1a) 1b) an intending testator does not intend to create a legal relationship between the solicitor who is taking the instructions and those who may benefit in consequence of the will so that the solicitor should have those persons in mind as actual. Lord Weir in the case of Weir v JM Hodge & Son6 also had to deal with the case of Robertson v Fleming. Liability in negligence would ensue following the classic case of Hedley Byrne & Co Ltd v Heller & Partners Ltd. in Donoghue v Stevenson. Recently in Scotland. in the one case by doing nothing. The Vice-Chancellor identified a category of cases where liability in negligence for economic loss would clearly follow. become part of the bedrock of the English law of negligence. the only principle before Ross v Caunters which clearly permitted recovery for economic loss. (a) Effect of the decision of the House of Lords in Robertson v Fleming 5 The Court of Appeal had to deal with the nineteenth century decision of the House of Lords in Robertson v Fleming. disagreed with the judge at first instance and stated that there was no distinction in principle between Jones's case and Ross v Caunters. The Court of Appeal. although they admitted that there was a difference in degree in that in Ross v Caunters. However.4 An example of a situation that would fall within 1 MLJ cxxxvii at cxxxix this category is where a prospective beneficiary is present when the will is being signed and. His Lordship considered the crucial fact in both cases to be as follows -. the Court of Appeal took the view that the law had moved on since 1861 and that the case of Robertson v Fleming was decided before Donoghue v Stevenson. in the other by doing his work badly or incompletely. In this case. Nicholls V-C did not consider this fact to be a crucial distinction when considering whether a liability in negligence exists. a solicitor was not liable to make reparation to third parties who might be injured by the negligent acts or omissions in the course of acting for a client. although he stated that it might be very material when considering whether a beneficiary has proved he has suffered loss through the solicitor's negligence. . the matter had not proceeded beyond the stage of the solicitor accepting instructions and it was possible that the client might have changed his mind before executing the will. In his opinion.9 The Vice-Chancellor concluded that what Robertson v Fleming does not do and cannot do is throw any light upon the answer to be given to the question of liability by an application of the principles which have subsequently. The Vice-Chancellor distinguished this category of cases and cases where the intended beneficiary was aware of what the testator was doing (ie short of reliance). to apply the ratio of Robertson v Fleming slavishly would be to place an artificially restricted scope on the duty of care and to place solicitors in a privileged position as compared with other professional persons. the solicitor assures him that it is in order for the prospective beneficiary's wife to be a witness. Also. counsel for the plaintiffs had argued that the law of negligence had developed in the last 50 years or more in such a way as to render Robertson v Fleming out of date and out of place. in this situation.

It is quite plain from the judgment14 that the Vice-Chancellor had applied the Donoghue v Stevenson principle only because of the two-stage test. the transaction in which the option was granted did not have as its object the benefit of the potential beneficiary under the will. An example of a case which attempted to limit the principles in Ross v Caunters is Clarke v Bruce Lance. the House of Lords has left open the correctness of Ross v Caunters as their Lordships have expressed neither approval nor disapproval. the plaintiff was a beneficiary under the testator's will of part of the income. The defendant solicitors prepared a will for a testator. The crucial issue in this case was whether the defendant owed a duty to the third party beneficiary. It cannot be disputed that Ross v Caunters was based on the two-stage test formulated in Anns. However in Murphy's case.16 Lord Oliver noted that it gave rise to certain difficulties of analysis. but failed to warn him that it should not be witnessed by the spouse of a beneficiary. 1 MLJ cxxxvii at cxli In Jones's case. In the Caparo case. Are there logical reasons to limit the ratio of Ross v Caunters to cases involving wills and are there reasons why solicitors should be in any different position from other professionals? The principles adopted by Megarry V-C in Ross v Caunters would seem to apply very widely. They confirmed that neither in Caparo Industries plc v Dickman15 nor in Murphy v Brentwood DC did the House of Lords expressly or impliedly doubt the correctness of Ross v Caunters. this would open up the prospect of indeterminate liability to an indeterminate class of potential beneficiaries. The defendants were retained by the testator to act for him to vary the lease.10 Before Jones's case. of a service station.17 he expressly left open the possibility that outside the reliance cases there may be cases such as Ross v Caunters. giving four main reasons: 2a) 2b) 1c) 1d) there was no close degree of proximity between the potential devisee and the solicitors. Megarry V-C concluded: A solicitor who is instructed by his client to carry out a transaction that will confer a benefit on an identified third party owes a duty of care towards that third party in carrying out that transaction. under which the plaintiff was to be a beneficiary. In Nicholls V-C's opinion. The defendant sent the will to the testator for execution. and on the death of the testator's wife. granting the lessor an option to purchase the service station within six months of the death of the last survivor of the testator and his wife. As a result. where there is a duty to take reasonable care to avoid pecuniary loss. or notice when the will was returned to them that it had been so witnessed. or by his personal representatives after his death. if the solicitors were liable to the potential beneficiary. The Court of Appeal held that there was no duty of care and struck out the claim. Megarry VC concluded13 that the basis of liability was either an extension of the Hedley Byrne principle. of the capital. it was thought that Ross v Caunters was no longer good law as it was based on the House of Lords decision in Anns v Merton London Borough Council.18 In this case.12 Anns was overruled and Lord Keith in Murphy's case stated that all cases decided subsequent to Anns which were decided in reliance on it should also be overruled.4 The facts of Ross v Caunters are familiar to the legal profession. . and 1 MLJ cxxxvii at cxlii if the solicitors had been negligent. the Court of Appeal has finally laid to rest these doubts as to the correctness of the decision in Ross v Caunters. or 'more probably' an application of the principle in Donoghue v Stevenson. Limits to the principle in Ross v Caunters It is crucial at this stage to investigate what the limits to the principle in Ross v Caunters are. the plaintiff failed to benefit under the will. in that the third party is a person within his direct contemplation as someone who is likely to be so closely and directly affected by his acts or omissions that he can reasonably foresee that the third party is likely to be injured by those acts or omissions.11 In Murphy v Brentwood DC. they could be sued by the testator in his lifetime. These factors were said to distinguish the case from Ross v Caunters.The Hedley Byrne principle was clearly not applicable as there was no 'reliance' element.

the facts of the above two cases otherwise satisfy the conditions which are necessary to ground a duty of care. however careless he may have been. But within that framework it is to his client alone that he owes a duty to exercise the standard of skill and care appropriate to his status as a solicitor. The limits of this duty being clearly stated to be to exercise professional skill and care in carrying out the testator's instructions. to prepare effective wills. but he has no right of recourse against the solicitor for the professional negligence which caused his loss. The case of White v Jones is important in that although it seeks to apply the principles in Ross v Caunters as regards liability of a solicitor to third parties. in general. Young & Ellis22 where he stated as follows: To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitors' professional role in the community. The persons who suffer loss if the solicitor has failed in his duty to his client are both restricted and easily identified. As commented by Farquharson LJ in White v Jones. The executors can sue the solicitor for damages for professional negligence. the result. [1992] Ch 560. but they can recover only 1 MLJ cxxxvii at cxliii nominal damages because the estate has suffered no loss. In the ordinary course of adversarial litigation a solicitor does not owe a duty of care to his client's opponent: see Al-Kandari v JR Brown & Co (a firm) [1988] 1 All ER 833 at pp 835-836 and 838..5 It can be noted that the fact that the transaction which was under attack was the variation of the lease rather than the making of a will. Nicholls V-C provides the answer succinctly at p 489 of the judgment: In my view there is here a feature of fundamental importance in this case. when acting for a seller of land a solicitor does not himself owe a duty of care to the buyer: see Gran Gelato Ltd v Richcliff (Group) Ltd [1992] 1 All ER 865. It would indeed be a sorry reflection on the law if indeed. by reason of the negligence. The only person who has a valid claim against the solicitor has suffered no loss and the only person who has suffered a loss has no valid claim. and always leaving reliance cases on one side. This was also the approach taken by Cooke J in Gartside v Sheffield.. In practice the public relies on solicitors . Nicholls V-C yet again echoed considerations that were identical to that of the court in Ross v Caunters by stating as follows: In considering the liability of the solicitor. a little closer to the present case. on the testator's death. as pointed out by Megarry V-C in Ross v Caunters. ie if the court holds a solicitor liable to an intended beneficiary. It would be a failure of the legal system not to insist on some practical responsibility. when advising a client about a proposed dealing with his property in his lifetime. All that has happened is that. [1988] QB 665 at pp 672 and 675 per Lord Donaldson MR and Bingham LJ. it is of the utmost importance to keep in mind that if there is no liability. giving him all necessary and appropriate advice. was not one of the features that the Court of Appeal considered distinguished the case from Ross v Caunters. the estate passes to a different beneficiary. that is the position today. The duty goes no further than that. Jones's case was clearly a policy decision as was Ross v Caunters.23 is striking. The intended beneficiary suffers a loss. Thus. must surely be explained using the same principles (as recognized by Nicholls V-C). some indications of the limits of this liability can be gleaned from the judgment which was lacking in Ross v Caunters. As regards the question why the disappointed beneficiaries should be able to sue the testator's solicitor when they cannot sue the testator himself.19 Perhaps one should accept the limits to be as suggested by Lord Oliver in Caparo v Dickman. Ross v Caunters was a policy decision in the sense that the law ought to have granted a remedy. a solicitor owes a professional duty of care to his client and no one else. He is subject to professional rules and standards and owes duties to the court as one of its officers. In general. If a solicitor drafts a will and pauses to consider who would suffer in the event of the draft proving defective. a solicitor does not owe a duty of care to a prospective beneficiary under the client's will who may be prejudiced by the dealing: see Clarke . Further. The failure of the solicitor in Jones's case whilst could not be described as a defect in the formation of a will and the facts of which do not appear to be as strong as those in Ross v Caunters. Farquharson LJ in White v Jones confirmed that this appeared to be the correct approach 21 because in truth. what the court is doing is fashioning an effective remedy for the solicitor's breach of his professional duty to his client. he would at once identify the luckless beneficiaries.20 ie if Ross v Caunters is to be upheld it must be regarded in this respect as being in a category of its own.

As reiterated and recognized by him. in the words of the Vice-Chancellor. Should the duty to the intended beneficiary be correspondingly limited? If so. 25 . A beneficiary intended to take under a will can hardly be said to suffer any loss during the testator's lifetime. the development of the law in this area has. 1 MLJ cxxxvii at cxlv Conclusion In conclusion it is clear that the decision in White v Jones perhaps achieved a fair result by extending the liability of solicitors in particular to situations where there is clearly 'no reliance' and even beyond a case such as Ross v Caunters where there is an actual defect in the will. In his view this cannot accord with the objectives the law seeks to attain when imposing upon solicitors and other professional advisers a duty to exercise due professional skill and care. 24 the effect of holding the solicitor liable to the intended beneficiary will be to enable the latter to take advantage of the professional duty owed by the solicitor to the client.. There could be difficulties over periods of limitation. I do not shrink from this .. It was argued by counsel for the defendant that if a duty of care to an intended beneficiary exists. The second would be unsatisfactory because it would mean that time might not begin to run for a long period of time. why? After all. Moreover the first problem contemplated above is unlikely to arise in practice as it is unlikely that a solicitor would include an exclusion clause to this effect. what the court is doing is fashioning an effective remedy for the solicitor's breach of his professional duty to his client. Accordingly. this principle is not without its difficulties. time would run either from the date when the will was made or ought to have been made or from the date of death. Why should a solicitor be liable to a third party in such a case but not in others? These are pertinent questions . Equivalent provisions to that of s 14B are found in s 24B of the Singapore Limitation (Amendment) Act 1992. this clearly goes against normal principles that a limiting clause should not extend to third parties.. Although it cannot be denied that the facts of White v Jones are indeed a novel situation where liability has been held to exist. There is no other purpose and if the solicitor was negligent in achieving this purpose he should be liable. Even with these limits on the liability of solicitors to third parties postulated in White v Jones. and there must be room for special cases in which some loose ends or even jagged edges may be inevitable'. So one asks oneself: is the position different regarding instructions for the preparation and execution of a will? If so. this duty is independent of the solicitor's duty to his client. the Vice-Chancellor felt that justice required that there should be some remedy available for the disappointed beneficiaries as the very purpose of the employment of the solicitor is to carry out the client's wish to confer a particular testamentary benefit on the intended beneficiary. an agreement of this nature between solicitor and client would not affect the solicitor's duty to the intended beneficiary. been 'principled and coherent. Despite these unanswered problems. Two difficulties that the court left unsolved are as follows: 3a) 3b) What the effect of an agreement between the solicitor and client releasing the solicitor from liability for negligence or limiting the extent of his liability would be. such instructions are no more than one particular type of instructions given by clients to a solicitor.. However.. However. [1988] 1 WLR 881 . This would be an unfair result.. I think that it must be frankly recognized that if the court holds a solicitor liable to an intended beneficiary. if the solicitor was not liable he would go scot-free and commit a breach of his professional duty with impunity.6 v Bruce Lance & Co (a firm) [1988] 1 All ER 364. The first of these possibilities would be unsatisfactory. If an intended beneficiary has a cause of action against a negligent solicitor. Thus the Vice-Chancellor in the passage above seems clearly to limit a solicitor's liability to third parties in non-reliance cases to situations invoking 1 MLJ cxxxvii at cxliv instructions to draft a will. subject only to the 15-year long-stop under s 14B of the United Kingdom Limitation Act 1980. the Malaysian Limitation Act 1953 (Act 254) contains no equivalent provisions.

. 7 [1932] AC 562. 12 Supra n 3. 5 (1861) 4 Macq 167. 10 Supra n 2 at pp 322H-323A. 23 Supra n 2 at p 303. 25 Supra n 1 at p 492a. [1979] 3 All ER 580. [1932] All ER Rep 1. 3 [1991] 1 AC 398. 8 Supra n 4. 22 [1983] NZLR 37 at p 43. 4 [1964] AC 465. 24 Supra n 1 at p 490g-h. 16 Ibid at pp 636 and 588. 20 Supra n 15 at p 635. [1990] 2 All ER 908. 21 Supra n 1 at p 497. respectively. respectively. 2 [1980] Ch 297. 6 1990 SLT 266. 17 Supra n 3 at pp 486 and 934. 14 Ibid at pp 309D-310E. 15 [1990] 2 AC 605.7 1 [1993] 3 All ER 481. [1990] 1 All ER 568. 11 [1978] AC 782. [1988] 1 WLR 881. 18 [1988] 1 All ER 364. HL. [1963] 2 All ER 575. 13 Supra n 2 at p 322H. 9 Supra n 3. 19 See article entitled 'Is Ross v Caunters still good law?' by Hugh Evans in Professional Negligence (September 1991) at pp 137-141.