Practice and Procedure


PUBLISHED October 31, 2003

Although the defendant firm had been negligent in failing to advise its client that the insertion of the word "intends" into a lease redevelopment clause would have offered it more protection than the actual word "wishes", the court was not satisfied that the freeholder would have countenanced such amendment and accordingly the claimant had not lost any real possibility of improving its position.Action for damages by the claimant ('C') as a result of the defendant firm's ('D') alleged negligence. D acted as C's solicitor during the acquisition of a lease for commercial premises ('the lease'). Clause 6.1 of the lease provided that if the landlord wished to demolish or reconstruct the premises, it may determine the lease by serving upon C not less than one month's written notice. On 3 November 1998, the freeholder ('PBL') served notice upon C to determine the lease on the basis that it wished to redevelop the premises. The lease was terminated on 7 December 1998. PBL did not subsequently carry out any redevelopment to the premises. C contended that: (i) PBL was only able to determine the lease in the circumstances that it did because of the wording of clause 6.1, which made the power to determine exercisable if the landlord wished to redevelop as opposed to intended to redevelop; (ii) it was negligent on D's part not to advise the substitution of the word "intends" for "wishes"; and (iii) C was entitled to damages from D as a result.HELD: (1) There was no doubt D was instructed by C to act generally as its solicitor. D accepted that it was part of its duty to bring any adverse elements in the draft lease to C's attention. D was also aware that during the lease negotiations C attempted a redrafting of clause 6.1 so that it would be free for three years from the redevelopment option. On the evidence, D knew that "intend" and "wish" were not interchangeable and at no point alerted C to the fact that the inclusion of "intend" would give C greater protection. (2) D was in breach of its duty to C in not so alerting C. Notwithstanding C's experience in commercial property matters, any reasonably prudent client would wish to have been alerted. D was in breach of its duty to C in not raising the point for C's consideration. (2) However, had C been so alerted and attempted to negotiate the terms, it was clear that the freeholder would not have countenanced the substitution of "intend" for "wish". Even if D had raised the point with C, the lease would not have been granted. (3) Although D was in breach of its duty to C, the court was not satisfied that C had lost any real possibility of improving its position.Order accordingly. C awarded nominal damages.