“In circumstances where the lender and the borrower instruct separate solicitors, I am not persuaded that a competent solicitor, acting for the lender, would be acting unreasonably if he accepted from the borrower’s solicitor a mortgage deed which appeared on its face to have been executed by the mortgagors and witnessed. If there was nothing irregular on the face of the document the lenders’ solicitor would be entitled to accept it without question. He would not be required to enquire into the circumstances in which it was executed. But – and this is, of course, an important safeguard – the lender would have the benefit of the implied warranty of authority given by the borrowers’ solicitor that he has the authority of the borrowers to complete the mortgage by delivering the mortgage deed – see the judgments of the Court of Appeal in Penn v Bristol & West … I can see no reason why the position should be different in the circumstances that the same solicitor acts for both the lender and the borrowers. I do not hold that the duty of the solicitor, as solicitor for the lender, is increased by the fact that he acts also for the borrowers: but, equally, I can see no reason why, as solicitor for the borrowers, he should not be taken to warrant to the lender that he is acting for them in the transaction with their authority. That does not, necessarily, mean that that he is warranting that the signature on the mortgage deed is authentic; but it has much the same effect.”
“ … it is important to bear in mind that generally a solicitor conducting proceedings does not warrant what he says or does on behalf of his client. Thus he does not warrant that his client, the named party to proceedings, has title to sue, is solvent, has a good cause of action or defence or has any other attribute asserted on his behalf. The solicitor relies upon his client’s instructions for all these things, as he will do for naming his client correctly. As he gives no warranty as to the accuracy of his instructions generally, it is difficult to see why the naming of his client should be treated as an exception. Why should this be any different, for example, from the naming of a client who has no title to sue?”
“We would simply add this. We accept that a warranty may be given by a solicitor or other agent, expressly to a third party as to a particular attribute or attributes of the solicitor’s or agent’s client. We consider it more appropriate in such discussions to talk of attributes of clients rather than the identity of a client. The identity of a person is made up of a bundle of qualities or attributes. In particular there is nothing in principle in the law of contract to prevent an agent from guaranteeing to a third party that he has a principal who is the same person as appears on property registers, for example, as the owner of a specific property. As Judge Hegarty observes at page 103 of his judgment however “It is … almost inconceivable that an agent would agree to this”
“In this case the identification of the applicable principles is straightforward. It is clear, and accepted by counsel on both sides, that the governing principles are stated in the leading speech of Lord Goff of Chieveley in Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145. First, in Henderson’s case it was settled that the assumption of responsibility principle enunciated in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465 is not confined to statements but may apply to any assumption of responsibility for the provision of services. The extended Hedley Byrne principle is the rationalisation or technique adopted by English law to provide a remedy for the recovery of damages in respect of economic loss caused by the negligent provision of services. Secondly, it was established that once a case is identified as falling within the extended Hedley Byrne principle, there is no need to embark on any further inquiry whether it is “fair, just and reasonable” to impose liability for economic loss: p. 181. Thirdly, and applying Hedley Byrne, it was made clear that “reliance upon [the assumption of responsibility] by the other party will be necessary to establish a cause of action (because otherwise the negligence will have no causative effect) …”
“The result, in my judgment, is that R.A. Legal were disabled from seeking by any summary means of enforcement to protect Abbey from the loss of its money, because they had neither an undertaking to discharge the prior charge on or after completion, nor written confirmation that, until completion had properly occurred (which it plainly had not) they could demand the immediate return of the completion money. Those disabilities arose, respectively, from a failure to appreciate the implications of Sovereign’s answer to Requisition 4(B) and from a failure to ask for or obtain Sovereign’s commitment to the adoption of the Completion Code before transferring the completion money”
“If it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be personally liable for any breach of trust … but has acted honestly and reasonably and ought fairly to be excused for the breach of trust … then the court may relieve him either wholly or partly from personal liability for the same.”