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3PLR/1932/6 (DC-CPL)


Clark for plaintiff.

O. Alakija for defendants.


ETHICS – LEGAL PRACTITIONER: Solicitor and client – advice to client about investment – negligence of solicitor in making no proper investigation of mortgagor’s Title – no fee charged by solicitor – liability of solicitor acting for client without remuneration – measure of damages.

REAL ESTATE:- Property transactions – Duty of solicitor to make proper investigation before advising client – Liability for failure thereto


The first defendant was a practicing solicitor. The plaintiff was his friend. The first defendant had acted as the plaintiffs solicitor on previous occasions for remuneration.

The plaintiff invested N=100 on a mortgage and the first defendant acted as his solicitor in carrying through the transaction. He failed to investigate the Mortgagor’s title as a result of which the plaintiff lost his capital, interest and expenses. The first defendant admitted that such failure on his part was professional negligence but pleaded that as he was acting as a friend of the plaintiff without professional remuneration he was not liable in damages for his negligence. The plaintiff had relied upon the first defendant’s professional skill and knowledge in the transaction.

Held, that the first defendant was liable in damages for his professional negligence in the transaction.

Held further, that the measure of damages was the difference in the pecuniary position of the plaintiff from what it would have been if the first defendant had acted without negligence.

The judgment of the Divisional Court (Webber, J.) delivered on 25th January, 1932, was as follows:-

In this case the second defendant pleaded indebted and judgment was entered for the amount claimed.

The same amount claimed against first defendant represents damages for negligence in the performance of his duties as a solicitor which he denies and to which claim he has pleaded that he acted in good faith and with all reasonable care. His case before the Court is that he advised and acted for the plaintiff as a friend and not in the capacity of a solicitor and that he received no remuneration.

It is unnecessary to state the facts upon which this claim is founded. It is quite clear that if the performance of the duties of the first defendant was in the capacity of a solicitor practicing in these Courts, he was guilty of gross  negligence in the discharge of his duties.

In advising the investment of N=100 on a mortgage, he failed to investigate the mortgagor’s title and omitted to make any search which may by possibility disclose matter affecting title. The endorsation itself on the Crown Grant that the owner had parted with portions of the property courted a most careful investigation into title.



This negligence was admitted by his counsel whose sole plea was that his client was acting as a friend and not as a solicitor.

The evidence shows very clearly that the plaintiff relied on the defendant’s skill and knowledge in conducting the business of negotiating a loan upon adequate security.

The plaintiff had on previous occasions consulted the defendant as a solicitor for which consultation he was remunerated. It is true that on this occasion there appears to have been no fee charged but on authority of Donuldson v. Haldane (7Cl & F. 762); if a Solicitor acts as a solicitor the question whether he is remunerated or not does not affect his liability; in either event he is bound to discharge his duties with a care and diligence equal to that ordinarily required of solicitors of competent skill and care.


I have come to the conclusion that throughout these negotiations, the first defendant acted as solicitor for his client, the plaintiff, and I have nothing further to do than to assess the damages.


The measure of damages is the difference in the pecuniary position of the client from what it should have  been, had the solicitor acted without negligence.


Whiteman v. Harckins (4 C.P.D. 13). By this investment


The plaintiff lost N=100 capital and the interest thereon


And N=7 7s. in certain fees paid.

The plaintiff has made out a prima facie case of damage of which the defendant attempted no reply. If there was any evidence which might have been given to  modify the measure of damages, it was for the defendant to offer such evidence.

He did not do so and he must abide by the case as the evidence stands at the hearing.


The plaintiff is entitled to judgment on his claim against the first defendant.


Judgment accordingly.


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