THE WRIT THE JOURNAL OF THE LAW SOCIETY OF NORTHERN IRELAND ISSUE 211 FEBRUARY/MARCH 2012 PROFIT reputation SELF Client Integrity firm PROTECTION THIS MONTH A Solicitor’s Duty of Care LOYALTY Renewable energy ad- BlueChip option 6:Layout 1 15/07/2011 17:47 Page 1 FTI/BLUECHIP/REN/JULY/2011/Final Experts for experts. 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Gary Mills Derek Young tel +44 (0) 7793814300 tel +44 (0) 7763924935 General Residential and [email protected] [email protected] > www.bluechiptitle.eu www.bluechiptitle.eu Commercial Use • Bespoke policy wordings available for commercial and residential Known Risks. • Comprehensive ‘Good Title’ policy available to include known and unknown risks. > Telephone or Email Underwriting Enquiries To discuss matters directly with our expert underwriting team please contact our Glasgow office: First Title Insurance plc, Suite 5.1, Turnberry House, > 175 West George Street, Glasgow, G2 2LB > 0141 248 9090 > scotinfo@firsttitle.eu > www.firsttitleinsurance.eu BlueChip Title Solutions Ltd is an introducer appointed representative of First Title Insurance plc, which is authorised and regulated by the Financial Services Authority (FSA number: 202103). This material is intended to provide general information only. For specific coverage and exclusions, refer to the policy. First Title Insurance plc is authorised and regulated by the Financial Services Authority. Registration number 202103. Companies House Information: First Title Insurance plc. Registered in England under Company No. 01112603 and Address: International Press Centre, 13th Floor, 76 Shoe Lane, London, EC4A 3JB. Renewable energy ad- BlueChip option 6:Layout 1 15/07/2011 17:47 Page 1 FTI/BLUECHIP/REN/JULY/2011/Final Journal of the LSNI February/March 2012 03 INDEX FEB/MAR 2012 PUBLISHERS The Law Society of Northern Ireland 96 Victoria Street THE BELFAST BT1 3GN Tel: 028 9023 1614 WRIT Fax: 028 9023 2606 THE JOURNAL OF THE LAW SOCIETY OF NORTHERN IRELAND ISSUE 211 FEBRUARY/MARCH 2012 Experts for experts. E-mail: [email protected] Website: www.lawsoc-ni.org PROFIT reputation SELF EDITOR Alan Hunter Reducing Real Estate Risk [email protected] Client DEPUTY EDITORS Integrity Peter O’Brien firm • Special policy solutions for portfolio sales [email protected] PROTECTION > Renewable Energy (including Wind Heather Semple farms) (including buy to lets and repossessions). [email protected] • Dedicated underwriters, with knowledge of Paul O’Connor • Tailored solutions with specific but negotiable Northern Ireland land law – a simple telephone call [email protected] policy wordings. away. ADVERTISING MANAGER THIS MONTH • Special policy for single or portfolio investment Karen Irwin A Solicitor’s sales. [email protected] Duty of Care Find out more LOYALTY > DESIGN For further information about First Title Insurance SHO Communications > Distressed Assets (including plc and details of title-related products available Insolvency and Receiverships) DISCLAIMER please contact the appointed Northern Ireland The Law Society of Northern Ireland accepts no • Cover available to replace Representations and representatives: BlueChip Title Solutions Ltd. responsibility for the accuracy of contributed articles 04 Cover Story: Warranties to enable safer and faster completions. or statements appearing in this magazine and any views or opinions expressed are not necessarily those • Special policy wordings approved by NAMA for of the Law Society’s Council, save where otherwise A Solicitor’s Duty of Care relevant use. Gary Mills Derek Young indicated. No responsibility for loss or distress tel +44 (0) 7793814300 tel +44 (0) 7763924935 occasioned to any person acting or refraining from acting as a result of the material in this publication General Residential and [email protected] [email protected] can be accepted by the authors, contributors, editor > www.bluechiptitle.eu www.bluechiptitle.eu or publishers. The editor reserves the right to make 07 Admissions Ceremony 2012 Commercial Use publishing decisions on any advertisement or editorial article submitted to this magazine and to 09 A Master’s Voice • Bespoke policy wordings available for commercial refuse publication or to edit any editorial material and residential Known Risks. as seems appropriate to the editor. The Law Society of Northern Ireland does not endorse any goods or 15 New Head of Brussels Office • Comprehensive ‘Good Title’ policy available to services advertised, nor any claims or representations include known and unknown risks. made in any advertisement in this magazine. No part 17 Retirement issues for solicitors of this publication may be reproduced without the written permission of the copyholder and publisher, application for which should be made to the publisher. 23 Society engagement on cost of motor insurance Telephone or Email Underwriting Enquiries > 24 NHBC cover available online To discuss matters directly with our expert underwriting team please contact our Glasgow office: CHECK IT OUT AT www.lawsoc-ni.org 25 The High Hedges Act (NI) 2011 Writ readers can access back issues First Title Insurance plc, Suite 5.1, Turnberry House, of the magazine as far back as October / December 26 The power of the press as a marketing tool > 175 West George Street, Glasgow, G2 2LB 2000 at www.lawsoc-ni.org - follow Publications link 32 The Law Courts Revisited 0141 248 9090 You can also find details on the website about: > • Libero database • Latest CPD courses 45 A review by Neil Faris on Moir on Land Registration > scotinfo@firsttitle.eu • Employment opportunities • Forthcoming events 47 From the Courts – abstracts of some recent case law > www.firsttitleinsurance.eu 54 Library Update – Pleural Plaques BlueChip Title Solutions Ltd is an introducer appointed representative of First Title Insurance plc, which is authorised and regulated by the Financial Services Authority (FSA number: 202103). Copy deadline for April/May 2012 Edition: This material is intended to provide general information only. For specific coverage and exclusions, refer to the policy. First Title Insurance plc is authorised and regulated by the Financial Services Authority. Registration number 202103. Companies House Information: First Title Insurance plc. Registered in England under Company No. 01112603 and Address: International Press Centre, 13th Floor, 76 Shoe Lane, London, EC4A 3JB. Thursday 12 April 2012 Journal of the LSNI 04 February/March 2012 A Solicitor’s Duty of Care In Re Coomber [1911] Ch 723, Fletcher defendants had failed to advise her properly Are some clients just too high risk to advise? Moulton LJ said that a solicitor should put in a transaction whereby she effectively lost clearly before the client the nature and her interest in her home and other assets. Where a husband has his own business consequences of the act so that from the or owns a share in a business the clear language of an independent mind The claimant had been told by her husband, situation may arise where he wishes to they should know what they are doing. completely out of the blue, that their joint use the family home as security for a bank account had been frozen because of loan to finance his business ventures. Where a wife is charging the family a dispute with a third party. The husband’s In such circumstances his wife may be home as security for the husband’s solicitor told the claimant that the only asked either to release her interest in the business debts to a bank, the scope of way her husband could avoid a criminal property or to mortgage it. the responsibilities of a solicitor who is prosecution was to sell the house which advising the wife was set out clearly by was held in joint names. He explained that It is well recognised that she has to Lord Nicholls of Birkenhead in Royal Bank she should get independent advice for the obtain independent legal advice and that of Scotland v Etridge (No. 2) [2001] UKHL sake of formality but that she should ignore she should be allowed to make her own 44, [2002] 2AC 773, paras 64-68. The any advice she might be given not to sign decision without any undue influence starting point as a general proposition the necessary documents to effectively from her husband. Later on, if the lender is that the scope of a solicitor’s duties give up her interest in the house and other seeks to enforce the security, it is in the dictated by the terms of his retainer. In assets. interests of the wife (and her husband, this particular type of case the bank is if they are still on good terms) for her to concerned that the solicitor has brought A particular point to note in this case is that get the charge set aside on the grounds home to the wife the risks involved in the the claimant was specifically told to ignore that she was not properly advised of the proposed transaction. any advice she was given not to sign the consequences of mortgaging her interest documents. Any solicitor getting involved in the family home. As a first step the solicitor needs to in those circumstances was starting in a explain to the wife the purpose for position where the odds would be stacked It is likely that a court will be sympathetic which he has become involved.