The origins of this rule dates back to a decision held by the House of Lords in Robertson v Flemming where the important words of Lord Cranworth were exemplified:
“Where A employs B, a professional man, to do some act professionally, under which, when done, C, would derive a benefit, if, then, B is guilty of negligence towards his employer, so that C losses the contemplated benefit, B is, as a matter of course, responsible to C, is evidently untenable. Such a doctrine would………lead to the result that a disappointed legatee might sue the testator’s solicitor for negligence in not causing the will to be duly signed and attested, though he might be an entire stranger to both the solicitor and testator.”
It was held in Ross v Caunters (1980) the Court of Appeal held that a solicitor did owe a duty of care to an identified third party who had been named as beneficiary in a will. Because the will had been negligently executed by the solicitor the beneficiary failed to benefit from the intended legacy. Damages were awarded. The decision in this case highlights more of a Donoghue principle than a Hedley Byrne since the element of reliance was not present and this was essential to Hedley Byrne.
Scots law then declined to follow the decision in Ross in a case of Weir v JM Hodge & Son (1990), where it was held in the Outer House that a duty of care was not owed, instead Lord Weir in his judgment considered himself to be bound by an earlier decision in the House of Lords in Robertson v Flemming.
In the English appeal case of White, the House of Lords ruled by a majority that disappointed could recover in tort in respect of a will that was not drawn up at all. Here the House of Lords declined to follow Robertson as the judges viewed this as out of sympathy with the current developments in the law in other jurisdictions and Ross v Caunters was approved. Lord Goff’s speech important.
The current position may be viewed as broadly satisfactory on the grounds that liability extends only to beneficiaries whose existence will of course be known to the solicitor. Thus there is proximity between the parties and the scope of liability is not indeterminate.
It was highlighted in Anns v Merton London Borough Council at p751-752 by Lord Wilberforce that “proximity” is central to the existence of a duty of care, however that approach is now out of time and Lord Keith stressed that foreseeability in not in itself a sufficient test for liability and further ingredients are required to establish the levels of proximity in a relationship. One possibility that was highlighted was that the beneficiary could be said to have had an element of “reliance” on the solicitor and this was in tune with the Hedley Byrne principle of “assumption of responsibility” and “reliance.” In the Canadian case of Whittingham, the judge, Aikins J, relied on the Hedley Byrne principle in that there was an implied representation on the part of the beneficiary and that in her doing so would not adversely affect the validity of the will, and that it was reasonably foreseeable that the negligent witnessing of the will would incur a loss to the beneficiary. However it should be noted that the Hedley Byrne principle is heavily built upon the principle of reliance to establish causations to a plaintiff’s loss and to incur liability in negligence, and this feature was decided as not of importance in the case of Gartside.
So there could be other factors that could show further degrees of proximity between a solicitor and a beneficiary as in Ross v Caunters (1980).
In the words of Megarry VC concluded that:
“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, 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 omission that he can reasonably foresee that the third party is likely to be injured by those acts or omissions.”
JUDGES REASONING
DEVELOPMENTS IN THE LAW
The balance of modern authority is in favour of imposing such liability on the negligent solicitor as this gives rise not only to the beneficiary incurring loss allocation but by placing liability on the solicitor in the area of professional negligence. Nominally the solicitors negligence will frustrate the expectations of both the client and the third party therefore imposing such a duty on a third party will complement the solicitor-client relationship and thus enhance the relationship. Other professional also owe a duty of care to third parties and therefore it places solicitors in an anomalous position of owing a duty of care only to their clients.
