chapter
Questions 1 Does the tort of malicious prosecution protect constitutional rights rather than private rights? 2 Is there not a danger that a person who complains of sexual assault by someone known to her might find herself having to defend an action in the tort of defamation and/or malicious prosecution? 3 Could Mr Martin have sued Mrs Watson for defamation? (e) Trespass
Pages 9

Lord Goff: My Lords, in this appeal, your Lordships’ House has to consider for the first time the much discussed question whether an intended beneficiary under a will is entitled to recover damages from the testator’s solicitors by reason of whose negligence the testator’s intention to benefit him under the will has failed to be carried into effect. In Ross v Caunters (A Firm) [1980] Ch 297, a case in which the will failed because, through the negligence of the testator’s solicitors, the will was not duly attested, Megarry VC held that the disappointed beneficiary under the ineffective will was entitled to recover damages from the solicitors in negligence. In the present case, the testator’s solicitors negligently delayed the preparation of a fresh will in place of a previous will which the testator had decided to revoke, and the testator died before the new will was prepared. The plaintiffs were the two daughters of the testator who would have benefited under the fresh will but received nothing under the previous will which, by reason of the solicitors’ delay, remained unrevoked. It was held by the Court of Appeal ([1993] 3 All ER 481, [1993] 3 WLR 730), reversing the decision of Turner J, that the plaintiffs were entitled to recover damages from the solicitors in negligence. The question which your Lordships have to decide is whether, in cases such as these, the solicitors are liable to the intended beneficiaries who, as a result of their negligence, have failed to receive the benefit which the testator intended they should receive…

… [T]he question is one which has been much discussed, not only in this country and other common law countries, but also in some civil law countries, notably Germany. There can be no doubt that Ross v Caunters has been

generally welcomed by academic writers… Furthermore, it does not appear to have been the subject of adverse comment in the higher courts in this country, though it has not been approved except by the Court of Appeal in the present case. Indeed, as far as I am aware, Ross v Caunters has created no serious problems in practice since it was decided nearly 15 years ago. A similar conclusion has been reached in the courts of New Zealand…and the law appears to be developing in the same direction in Canada… The position in Australia…is at present less clear. In the United States, following two earlier decisions in California…the trend now appears to be moving strongly in favour of liability… In Germany, a disappointed beneficiary may be entitled to claim damages from the testator’s negligent solicitor under the principle known as contract with protective effect for third parties (Vertrag mit Schutzwirkung fur Dritte). I shall discuss the relevant German law on the subject in greater detail at a later stage in this opinion. It also appears that a similar conclusion would be reached in France…which appears to be based on the broad principle that a notary is responsible, even as against third parties, for all fault causing damage committed by him in the exercise of his functions. On facts very similar to those of the present case, the Court of Appeal of Amsterdam has held a notary liable in negligence to the intended beneficiary…

The conceptual difficulties

Even so, it has been recognised on all hands that Ross v Caunters raises difficulties of a conceptual nature, and that as a result it is not altogether easy to accommodate the decision within the ordinary principles of our law of obligations…

It is right, however, that I should immediately summarise these conceptual difficulties. They are as follows:

(1) First, the general rule is well established that a solicitor acting on behalf of a client owes a duty of care only to his client. The relationship between a solicitor and his client is nearly always contractual, and the scope of the solicitor’s duties will be set by the terms of his retainer, but a duty of care owed by a solicitor to his client will arise concurrently in contract and in tort (see Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp (A Firm) [1979] Ch 384, recently approved by your Lordships’ House in Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506; [1994] 3 WLR 761). But, when a solicitor is performing his duties to his client, he will generally owe no duty of care to third parties…

In these circumstances, it is said, there can be no liability of the solicitor to a beneficiary under a will… There can be no liability in contract, because there is no contract between the solicitor and the disappointed beneficiary; if any contractual claim was to be recognised, it could only be by way of a ius quaesitum tertio, and no such claim is recognised in English law. Nor could there be liability in tort, because in the performance of his duties to his client a solicitor owes no duty of care in tort to a third party such as a disappointed beneficiary under his client’s will.