This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Dixon v. Winch.
(a) Atterbury v. Wallis, sup.
(b) Boursot v. Savage, (1866) 2 Eq. 134 ; 35 L. J. Ch. 627 ; Dixon v. Winch, inf. ; and see Taylor v. London and County Bhg. Co., 1901, 2 Ch. 230, 259.
It follows from what has been said that the rule is too broadly stated by Bacon, V.-C. (d), viz., that where the disclosure of the fact, of which knowledge is sought to be fixed on the client, would have imputed fraud to the solicitor, it is not to be presumed that the solicitor made disclosure. The mere fact that there is a conflict between the interest of the solicitor and his duty to make disclosure has been held insufficient to rebut the presumption that he did his duty (e).
Criticism of the rule as stated by Bacon, V.-C.
The tendency is to restrict the doctrine of constructive notice, so far as is compatible with the rules of the Court applicable to fraud; especially so in cases where it is only through the employment of a solicitor, who is, or must be supposed to be, cognizant of the concealed incumbrance or defect, that notice of it is brought home to the client: and it may be laid down as a general rule, that where the solicitor is acting in good faith, the mere omission on his part to adopt all the precautions which a prudent professional adviser would have taken on behalf of his client will not, in the absence of gross negligence or other circumstances indicative of fraud, fix the client with constructive notice of what might have been elicited by inquiry.
Tendency of recent decisions.
(c) Dixon v. Winch, 1900, 1 Ch. 736 ; 69 L. J. Ch. 4G5 ; sec and consider this case.
(d) Waldy v. Grey, (1875) 20 Eq. 238, 251 ; 41 L. J. Ch. 391. (e) Bradley v. Riches, (1878) 9 Ch. D. 189 ; 17 L. J. Ch. 811.
Notice to a town or country agent, would, in general, be notice to the principal solicitor (/) ; but, probably, the mere fact of the purchaser's solicitor allowing (from motives of private friendship) the vendor's solicitor to transact, for his own benefit, the principal part of the business which is usually done by the former, would not be sufficient to constitute an agency (g).
Notice to town agent of solicitor.
For the purpose of fixing a purchaser with notice, the evidence of his counsel (h), solicitor (i), or certificated conveyancer (k), or legal agent generally (/), respecting confidential (m) professional communications, is inadmissible : and the rule includes the clerk of the professional adviser (n) and the agent (o), even though that agent is the client himself (p), or accountant (q) employed by the solicitor; and also a person whom the client consults as, and supposing him to be, a solicitor, but who is not so in fact (r) : but not (it would appear) an unprofessional agent employed by the purchaser himself (s), unless he is used merely as the medium of cornmunication with the professional adviser (t) : and the privilege extends to communications made through an unprofessional agent to the professional adviser (u).
Professional confidential communications, notice not to be proved by.
Who are within the rule.
(/) See and consider Norris v. Le Neve, (1743) 3 Atk. at p. 37; Sug. 14th ed. 756.
(g) See Kendall v. Hulls, (1847) 11 Jur. 864.
(h) Knight v. Marquis of Water-ford, (1836) 2 Y. & C. at p. 39 ; 2 Sw. 221, n.
(i) See Parkhurst v. Lowtcn, (1819) 2 Sw. 194 ; Volant v. Soger, (1853) 13 C. B. 231; 22 L. J. C. P. 83.
(k) Cromack v. Heathcote, (1820) 2 Br. & B. 4.
(/) Lyell v. Kennedy, (1883) 9 A. C. 81, 86; 53 L. J. Ch. 449.
(m) Walsh v. Trevanion, (1847) 15 Si. 577.
(n) Taylor v. Forster, (1825) 2 C. & P. 195 ; Foote v. Hayne, (1824) Ry. & Mo. 165 ; Chant v. Brown, (1852) 9 Ha. 790; Wheeler v. Le Marchant,
(1881) 17 Ch. D. 675, 682.
(o) Steele v. Stewart, (1844) 1 Ph. 471 ; Lafone v. Falkland Islands Co., (1857) 4 K. & J. 34; 27 L. J. Ch. 25.
(p) Per Jessel, M. R., in Anderson v. Bank of Brit. Columbia, (1876) 2 Ch. D. 644, 650; 45 L. J. Ch. 449.
(q) Wahham v. Stainton, (1863) 2 H. & M. 1.
(r) Calley v. Richards, (1854) 19 Beav. at p. 404 ; see contra, at Law, Fountain v. Young, (1807) 6 Esp. 113. Generally, as to the persons within the privilege, see Bray, 357.
(s) Kerrv. Gillespie, (1844) 7 Beav. 572; and see Carpmael v. Powis, (1846) 1 Ph. 687, 693 ; 15 L. J. Ch. 275; Glyn v. Caulfield, (1851) 3 M. & G. 463 ; Slade v. Tucker, (18S0) 14 Ch. D. 824 ; 49 L. J. Ch. 644.
But the rule does not include a solicitor whom the purchaser consults, not professionally, but as a friend, agent, or steward (x) ; nor, where the same solicitor is employed by both parties, does it extend to communications which the purchaser makes to him as solicitor for the vendor (y) : nor to communications made to the solicitor from collateral quarters (s), nor to a map of the estate which the owner leaves with his solicitor for the purpose of effecting a sale (a); nor to matters which have come to his knowledge unpro-fessionally (b) ; nor to communications between co-defendants (r), or between the solicitors of adverse parties (d) ; nor to such as involve criminality or fraud, whether civil or criminal (e) : but it extends to all communications which take place between the purchaser and his solicitor (as such) with reference to the purchase (f), and to documents belonging to the purchaser which he leaves with his solicitor (g) : nor does the privilege cease by reason of the professional adviser acquiring a personal interest in the property to the title of which the confidential communication related (h) ; or of his having ceased to practise (i).
Who are not ■within the rule.
(t) Reid v. Langlois, (1849) 1 M. & G. 627.
(u) Carpmael v. Powis, (1846) 1 Ph. 687 ; Russell v. Jackson, (1851) 9 Ha. 387.
(x;) See Wilson v. Rastall, (1792) 4 T. R. 753, 759 ; Hughes v. Biddulph, (1827)4 Rus. 190; Greenlaw v. King, (1838) 1 Beav. 137 ; 8 L. J. N. S. Ch. 92; and see Blenhinsopp v. B., (1846) 10 Beav. 277 ; 16 L. J. Ch. 81 ; reversed on further evidence, (1848) 2 Ph. 607 ; 17 L. J. Ch. 343 ; Goodall v. Little, (1851) 1 Si. N. S. 155; 20 L. J. Ch. 132; Exp. Eawley, (1853) 20 L. T. (O. S.) 258 ; Smith v. Darnell, (1874) 18 Eq. 649 ; 44 L. J. Ch. 189 ; Moseley v. Victoria Rubber Co., (1886) 55 L. T. 482; and see per James, L. J., in Original Hartlepool Co. v. Moon, (1874) 30 L. T. 585.