LAW REPORTS 17 February 1995 Solicitors owed duty of care to beneficiaries

White and another v Jones and another.

House of Lords (Lord Keith of Kinkel, Lord Goff of Chieveley, Lord Browne- Wilkinson, Lord Mustill and Lord Nolan).

16 February 1995.

A solicitor instructed to draw a will owes a duty of care to the intended beneficiary to act with due expedition and care.

The House of Lords (Lord Keith and Lord Mustill dissenting) dismissed an appeal by the defendant solicitors, Philip Baker King & Co, Birmingham, and John Jones, a legal executive in the firm, from the Court of Appeal's decision (the Independent, 5 March 1993; [1993] 3 WLR 730) that the solicitors were in breach of their duty of care to the plaintiffs, beneficiaries under a will.

Following a family row, the testator instructed solicitors to draw up will, which was executed within three weeks on 4 March 1986, cutting the plaintiffs, the testator's two daughters, out of the estate which was valued at £30,000. By mid-June 1986, the testator and his daughters were reconciled. On 17 July the testator gave instructions for a new will giving each daughter £9,000 and his five grandchildren £1,600 each. The testator died on 14 September before the new will was executed. The daughters sued the solicitors in negligence on the basis that the inexcusable delay in drawing up the will resulted in their not receiving £18,000.

Duncan Matheson QC, Professor Jolowicz QC and Teresa Peacocke (Pinsent & Co, Birmingham) for the solicitors; John Mitting QC and James Quirke (Rosenberg Layland & Rust, Birmingham) for the beneficiary sisters.

LORD GOFF said that the decision in Ross v Caunters [1980] Ch 297 where the will was not duly attested and the testator's solicitors were held liable in negligence to disappointed beneficiaries, raised conceptual difficulties. The general well-estab- lished rule was that a solicitor acting on behalf of a client owed a duty of care only to his client, and owed no duty of care to third parties. There was no contract between the solicitor and the disappointed beneficiary whose claim was one for purely financial loss.

If a duty owed by the testator's solicitor to a disappointed beneficiary was not recognised, the only person who might have a valid claim (the testator and his estate) had suffered no loss and the only person who had suffered a loss (the disappointed beneficiary) had no claim.

There was a lacuna in the law in the sense that practical justice required that the disappointed beneficary should have a remedy. A contractual solution was excluded by the doctrines of consideration and privity of contract.

It was open to the House of Lords to fashion a remedy to fill a lacuna in the law and to prevent injustice in cases such as the present. In such cases, a remedy should be extended to the intended beneficiary under the principle in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 by holding that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who, as the solicitor could reasonably foresee, might, as a result of the solicitor's negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate would have a remedy against the solicitor.

LORD BROWNE-WILKINSON and LORD NOLAN concurred.

LORD MUSTILL, dissenting, said that in Hedley Byrne the plaintiffs asked the defendants to do something; the defendants did it and did so imperfectly. Here the complaint was that the solicitor did not do something which the beneficiary never asked him to do. A new rule with principled reasoning could not be devised to encompass such an extensive new area of potential liability.

LORD KEITH concurred with Lord Mustill.

Ying Hui Tan, Barrister