Neutral Citation Number: [2007] EWCA Civ 765
Case No: A3/2006/1767
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT CHANCERY DIVISION, 
MANCHESTER DISTRICT REGISTY
HIS HONOUR JUDGE DAVID HODGE QC
1999SNO01697
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24 July 2007
Before :

THE CHANCELLOR
LORD JUSTICE LLOYD
and
LORD JUSTICE TOULSON
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Between :

	STONE HERITAGE DEVELOPMENTS LTD & ORS	Appellant	
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	DAVIS BLANK FURNISS (A FIRM)	Respondent	
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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 Mr M Booth QC (instructed by Nexus Solicitors) for the Appellant
Mr W Flenley (instructed by Messrs. Halliwells Llp) for the Respondent

Hearing dates : 26/27 June 2007
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Judgement
The Chancellor: 

Introduction

1.	In August 1992 the second and third claimants, Mr Mortazavi and Mr Chotani, instructed the defendants, a firm of solicitors (“the Solicitors”), to act in connection with a proposal for the development and sale of some land at Moss Lane, Bolton to be undertaken by the first claimant (“Stone”).  The owners and occupiers of that land (“the Howarth Land”) were Charles Howarth & Sons (Bolton) Ltd and Mr C.W.Howarth.  Adjoining the Howarth Land to the north-west was land of which the Bolton Metropolitan Borough Council (“Bolton”) was the registered proprietor.  The part which adjoined the Howarth Land (“the Possessory Title Land”) was and had for many years been in the possession of the Howarths so as, in their view, to confer on them a good possessory title.  The remainder (“the Bolton Clear Title Land”) was and always had been in the possession and occupation of Bolton.
2.	The partner in the Solicitors concerned to implement the claimants’ instructions was Mr Stuart Shalom.  He attended a meeting on the site of the proposed development on 29th October 1992 at which he learned from Mr Mortazavi that there was a risk that the proposed development would encroach  on to the Possessory Title Land and the Bolton Clear Title Land.  Mr Mortazavi told Mr Shalom not to bother about either the Possessory Title Land or the Bolton Clear Title Land as any discrepancy would be cured by the intended purchase of additional land from Bolton.

3.	On 9th November 1992 Mr Shalom sent to the claimants a draft agreement in respect of the development of the Howarth Land.  On 17th November, in accordance with their instructions, he or his assistant sent the draft to the solicitors for the Howarths and a report on the Howarths’ title to the claimants.  On 30th November Mr Shalom, as requested by the solicitors for the Howarths and his own clients, prepared and sent to each of them engrossments of the agreement.   But in the meantime, without waiting for the execution of the agreement, Stone had entered on the Howarth land and carried out thereon works preparatory to its development.   In February 1993 the Solicitors, as instructed by their clients, dated the executed copies of the agreement in their possession as made on 11th February 1993.
4.	The Agreement (“the Development Agreement”) was made by the Howarths as parties of the first, second and third parts and Stone of the fourth part.  It recited the ownership of the Howarths of the Howarth Land and their wish that Stone should carry out its development by the erection of not less than 20 houses and their sale on the terms of the agreement.  By clauses 1 and 3 the Howarths appointed Stone as their agent and granted it the licences necessary for the purpose of carrying out the proposed development.  Clauses 4, 6 and 7 set out the relevant obligations of Stone.  Clauses 2 and 5 contained warranties as to their title and other obligations of the Howarths.   The houses were to be sold on long leases granted by the Howarths.  The Howarths were bound to indemnify Stone in respect of the cost of the development and the sums paid by the purchasers on the grant of the leases would be shared between the Howarths and Stone in agreed proportions.  The Development Agreement envisaged that the Howarths would receive £850,000 for the Howarth Land and Stone would receive any further profits from the development.  But the Development Agreement did not contain any licence or grant of rights by the Howarths to Stone exercisable over the Howarth Land in connection with the development of any of the Possessory Title Land or the Bolton Clear Title Land in the event that Stone acquired any part of either. 
5.	The development proceeded.  The first house was sold on lease in May 1993 and the last in about 1996.  Bolton complained from time to time at Stone’s incursion onto its land.   Both the Howarths, on behalf of Stone, and Stone tried to acquire the necessary land from Bolton but without success.  In December 1995 Bolton refused to deal with Stone any more.  Ultimately, in 1997, the Howarths bought the Possessory Title Land and part of the Bolton Clear Title Land from Bolton to enable completion of the lease of the remaining house erected by Stone on the Howarth Land, namely No 27 Capital Close.
6.	This action was commenced by a claim form issued by Stone on 8th February 1999.  Stone was put into creditors’ voluntary liquidation on 19th December 1999.  On 19th September 2000 Stone’s cause of action was assigned by Stone, acting by its liquidator, to its former directors and major shareholders Mr Mortazavi and Mr Chotani.  The action was stayed from 4th April 2000 to 23rd September 2004 pending determination of an action brought by Stone against the Howarths.  In the event that action was settled by means of a Tomlin Order made on 3rd December 2003 under which Stone bought from the Howarths for £192,500 the parts of the Possessory Title Land and Bolton Clear Title Land on which part of No 27 Capital Close had been built.
7.	The claim in this action is for damages for negligence arising from the Solicitors’ retainer relating to the Development Agreement.  In the particulars of claim served on 15th September 2004 the alleged negligence was encapsulated in paragraph 12 in these terms:
“Despite the knowledge of Mr Shalom that... the proposed development extended beyond the boundary line of [the Howarth Land] [the Solicitors] caused or permitted [Stone] to enter into the Development Agreement without qualification or reservation or otherwise taking any steps to protect the interests of [Stone] or advising or cautioning [Stone] that the intended development would or could give rise to the difficulties which in fact ensued...”
8.	The trial of the action commenced before Judge Hodge QC sitting in Manchester as a deputy High Court judge of the Chancery Division on 2nd May 2006.   On 5th May 2006 he allowed the claimants to amend their particulars of claim by the addition of paragraph 12A.  So far as relevant it alleges:
“In particular, since Mr Shalom knew that [Stone] intended or hoped to acquire [the Bolton Clear Title Land] and/or [the Possessory Title Land] and/or proposed to or might make such acquisition through the Howarths he should have:
(i) included provision in the Development Agreement for the purposes of any development it wished to undertake on all or any part of [that land] (both as regards its construction and for the benefit of the properties as developed thereafter erected on such land) to have the following rights (alternatively such of them as it was able to secure) in favour of all or any of [that land] across all or any of [the Howarth Land] whether within their paper title or upon [the Possessory Title Land], namely: access, rights of way and all other easements or rights reasonably necessary for the purpose both of effecting the development and for the proper use thereafter of the properties constructed thereon.”

The amendment continued with various other allegations of breach of duty to comparable effect.
9.	The hearing concluded on 25th May 2006.  On 31st May and 1st June 2006 Judge Hodge delivered an unusually long and detailed judgment.  I shall refer to parts of it in some detail later.  For present purposes it is sufficient to summarise it in the form of the following propositions: 
(1) Mr Shalom was negligent in failing to point out to Stone that the licence provisions of the Development Agreement should be extended to enable development of any part of the Possessory Title Land Stone might acquire in the future; 

(2) Had such advice been given the Howarths would have agreed to such an extension; 

(3) The loss claimed by Stone was not caused by that alleged negligence of the Solicitors; 

(4) Mr Shalom was not negligent in failing to give similar advice to Stone in respect of the Bolton Clear Title Land; 

(5) Had such advice been given the Howarths would not have agreed to the requisite extension; and 

(6) In any event the loss claimed was not caused by any such negligence.

In the light of those conclusions the Judge dismissed the claim and refused permission to appeal.  Such permission was granted by Carnwath LJ on 7th February 2007.  A respondent’s notice was served by the Solicitors on 2nd March 2007.   In the result the Solicitors challenge the judge’s conclusions summarised in propositions (1) and (2).  Stone appeals from the Judge’s conclusions summarised in propositions (3) to (6).  I will, as necessary, deal with those contentions in due course but first it is necessary to set out the facts in much greater detail.

The Facts

10.	Stone was incorporated on 18th August 1992 and changed its name to Stone Heritage Developments Ltd on 9th September 1992.  It had five directors Mr Mortazavi, Mr Chotani, Mr Tarsem Gupta, Mr James Brown and Mr Darren Brown.   The first three were all associated with the firm of accountants carrying on practice in Manchester in the name of Gupta & Co.   The last two carried on the business of builders and were clients of Gupta & Co.  The directors or some of them held all the issued shares in Stone.
11.	The initial contact between Stone and the Solicitors occurred on 20th August 1992 when Mr Shalom met Mr Gupta, Mr Mortazavi and Mr Chotani.   Following that meeting Mr Shalom wrote to Mr Gupta on 24th August 1992 reminding him of the considerable risks he, Mr Mortazavi and Mr Chotani were running as outlined by him at the meeting.  He sent them a draft agreement to accord with their requirements but himself described it as “far too simplistic to be acceptable”.  He set out a number of concerns and warned them that their bargain was “fraught with difficulties and considerable risk”.
12.	Following further meetings between them on 8th September 1992 Mr Shalom sent Mr Gupta, but for the purposes of discussion only, a further draft agreement.   A copy of that draft agreement was passed by Mr Gupta or one of his associates to the Howarths and by them to their solicitors, Fieldings.  On 11th September 1992 Mr Speakman of Fieldings wrote to Mr Shalom indicating that, subject to contract, his clients were prepared to proceed on the lines suggested and that he hoped to supply site plans of his clients’ land shortly.  He added that he understood that Mr Shalom’s clients had instructed architects to prepare schemes for their consideration and asked for a copy of the proposed layout plan in due course.  On the same day Mr Shalom sent a copy of the letter from Fieldings to Mr Gupta suggesting that it might not be prudent to obtain architects’ plans yet.  Seemingly little notice was taken of this advice because architects had been instructed by or on behalf of Stone by 17th September 1992.
13.	On 17th September 1992 Mr Mortazavi wrote to Mr Charles Howarth with a copy of a cash flow forecast for the first phase of the project for the development of the Howarth Land.  On 24th September 1992 Bolton wrote to Mr Charles Howarth with a plan depicting the boundaries of the Bolton land, i.e. both the Possessory Title Land and the Bolton Clear Title Land.  None of these letters or enclosures was copied to Mr Shalom.   On 29th September 1992 Mr Speakman of Fieldings telephoned the Solicitors to indicate that their respective clients were meeting that afternoon in the expectation of being able to sign an agreement there and then.  He indicated that the client of the Solicitors was, he thought, called ‘Stone Heritage Developments Ltd’.  No one had told the Solicitors and they had no file in that name.  On 30th September 1992 Mr Charles Howarth met representatives of Bolton on site.  He indicated his concern to sort out the boundaries.
14.	On 15th October 1992 Fieldings faxed Mr Shalom with a revised draft agreement and two plans showing the extent of the Howarth Land.  He indicated that there had been a meeting between the Howarths and Mr Mortazavi at which the latter had promised the former a schedule showing the individual units to be built, their position and how the proceeds of their sale would be split.  He indicated that Mr Mortazavi was anxious to make progress towards an agreement so that he might put materials on to the site.  On 19th October 1992 Mr Shalom sent a copy of the letter from Fieldings and the draft agreement to Mr Gupta and the others suggesting a meeting to discuss its contents.  On 20th October 1992 Bolton wrote to Mr Charles Howarth concerning the true boundary between their land and asking him to check his title deeds.
15.	On 21st October 1992 Mr Shalom wrote again to Mr Gupta, Mr Mortazavi and Mr Chotani relating to a meeting they had had the previous day at which he learned that the proposed detailed planning permission included a piece of land which the Howarths did not yet own “but you understand he will purchase for the purpose of the development”.  He asked if they wished to defer the agreement pending such purchase.  On the same day Mr Shalom wrote to Fieldings indicating that he understood that the missing strip of land would be bought by the Howarths before the transaction could be finalised on the basis of the existing building plans.  Fieldings responded on 27th October 1992 that the proposed licence was not dependent on the acquisition by the Howarths of the strip of land to which Mr Shalom had referred and that it could be some time before the Howarths knew if it could be acquired.  On the same day Stone applied for planning permission.  This was based on a block plan prepared by the architect instructed by Stone.  It is unclear from the block plan whether the strip of land to which Mr Shalom had referred in his letter to Fieldings dated 21st October 1992 was included.  Mr Shalom was not told of the making of the planning application, nor provided with a copy of the block plan.

16.	On 28th October 1992 Mr Charles Howarth replied to Bolton’s letter of 20th October concerning the boundaries.  He noted that the physical boundaries between their properties were at variance with what the title deeds showed.  He stated that the Howarths had always adhered to the physical boundaries as marked by various stone walls.  He suggested that as the land between, effectively the Possessory Title Land, was included in the land the Howarths sought to buy from the Council it should be dealt with as part of a general ‘tidy up’ of the boundary.

17.	The crucial meeting took place on Thursday 29th October 1992.  The contemporary documentary evidence of what occurred consists of a file note prepared by Mr Shalom.  The meeting was attended by Mr Shalom, Mr Mortazavi, Mr Arnold Brown, Mr Charles Howarth, Mr David Howarth and Mr Speakman of Fieldings.  The judge heard oral evidence concerning this meeting from Mr Shalom, Mr Mortazavi, Mr Arnold Brown, Mr Charles Howarth, Mr David Howarth and Mr Speakman.  His findings as to the events of the meeting are set out in paragraphs 267 to 278 of his judgment.  I select the following as the material passages:
“267. I am satisfied that the plan endorsed by Mr Shalom was a copy of the larger of the two plans that had been faxed through to Mr Shalom by Fieldings on the 15th October....I accept Mr Shalom’s evidence that by endorsing the plan, Mr Shalom was not verifying the boundaries but merely marking up the plan....
268...
269.	It is common ground that possessory title was mentioned to Mr Shalom by Mr Mortazavi.  The source of Mr Mortazavi’s knowledge was Mr Charles Howarth.  Mr Charles Howarth told me, and I accept, that he had discussed Bolton’s letter of the 20th October with Arnold Brown and with Mr Mortazavi before Mr Howarth replied to it on the 28th October.  The terms of that reply are instructive...The last paragraph of the letter of the 28th October is also instructive, referring as it does to the general tidying up of the boundary being left until after the members have considered the Howarths’ request to purchase, whereupon, “the matter of the present boundary will be irrelevant.”
270.	Mr Charles Howarth said in cross‑examination that at that time they had not discovered the extent of the discrepancy.  All he said to Mr Mortazavi at the time was, “There is a discrepancy at our boundary which will have to be sorted out.”  I infer, on the balance of probabilities, that the terms of Mr Howarth’s response of the 28th October to Bolton had been discussed between Charles Howarth, Arnold Brown and Mr Mortazavi by the time Mr Shalom met with them on‑site on the 29th October.  I have no doubt that, alerted to the fact that the Howarths occupied additional land outside the boundary shown on the title plans he was marking up, Mr Shalom must have queried whether he need be concerned about this for the purposes of the development agreement.  Given his previous discussions with Mr Charles Howarth, I am satisfied on the balance of probabilities that Mr Mortazavi told Mr Shalom that the discrepancy would be cured by the purchase of the additional land from the Council after which, to adopt the language used by Mr Howarth in his letter to Bolton of the 28th October, the matter of the present boundary would be “irrelevant”.
[271 – 274 the judge discussed passages in various witness statements and answers given in cross-examination.]
275.	Given the discussions between Mr Arnold Brown, Mr Mortazavi and Mr Charles Howarth, and the fact that an application for planning permission had already been submitted on the 27th October, Mr Mortazavi must have appreciated that there was a risk that part of the proposed development was to be constructed on the possessory title land, even if he did not know this for certain.  In my judgment it is inconceivable that he would have said that this land was not required for the purposes of the development if he did not know the precise extent of the discrepancy.  However, I am prepared to accept that he told Mr Shalom that the development agreement need not concern itself with any land beyond the Howarths’ paper title because Mr Mortazavi believed that this would be resolved by the acquisition of the additional land from the Council, which no‑one envisaged would present any difficulty.  I accept that Mr Mortazavi may well not have indicated the precise extent of the possessory title land to Mr Shalom.  On the evidence Mr Mortazavi may well not even have appreciated it himself.  I should say that everyone seems to have been focusing at this time on the land at the north east of the site to the possible exclusion of the land to the north west.  This may explain the area of the blue hatching on Mr Shalom’s faxed plan.
276.	For all these reasons, I therefore find that the position reached at the meeting was not entirely that propounded either by Mr Mortazavi or by Mr Shalom.
[(1) - (2)]
(3) I reject Mr Mortazavi’s evidence that he did not tell Mr Shalom that the development agreement did not need to concern itself with the possessory title land.  On the other hand, 
(4) I reject Mr Shalom’s evidence that Mr Mortazavi told him that the possessory title land was not part of the development.
277.	I accept that, as Mr Mortazavi was prepared to admit, Mr Shalom may have misunderstood him in two respects:  
(1) Mr Shalom may not have appreciated that the possessory title land extended beyond the land hatched blue on the faxed plan, which was the land referred to in his attendance note as the orange land.  Such a conclusion is consistent with the lack of any indication of an area of grey land when Mr Shalom came to mark up the faxed plan which had been sent to him on the 15th October at the site meeting.
(2) Mr Shalom also appears to have misunderstood Mr Mortazavi’s reference to the extra strip of land being “a bonus” if it could be obtained.  To the extent that this extra strip represented possessory title land, it was part of the original negotiations, and it was not “a bonus”.
278.	At paragraph 8 of his first witness statement Mr Charles Howarth said..., 
“Although I have no specific recollection, due to the passage of time, it is my opinion that the orange land was probably all of the land which fell outside the first owner’s paper title, including the grey land and the additional land which the claimants wish to acquire for the purposes of the additional development.”  
In my judgment he was correct, subject to the qualifications resulting from Mr Shalom’s misunderstandings as to the precise extent of the orange land and the fact that it was a bonus and not part of the original negotiations.  Mr Mortazavi accepted that he appreciated that the development agreement did not extend to the Bolton clear title land.  It follows from my findings of fact that he must have appreciated that it did not extend to the possessory title land; and I so find.  That finding is consistent with the absence of any expression of surprise or protestation by or from Stone Heritage or its representatives in response to Mr Jones’s discovery in late March or early April 1993 that the boundaries shown on the development agreement plan and the block plan did not match.”
18.	On 2nd November 1992 Mr Shalom wrote to Mr Gupta, Mr Mortazavi and Mr Chotani enclosing his note of the confidential discussions he had had with them on 20th October.  He indicated that it would take him some time to revise the draft agreement submitted by Fieldings and suggested that he might draw up a Shareholders’ Agreement and a building contract to regulate their relationship with the Browns.  On 9th November 1992 Mr Shalom wrote again enclosing a redrafted agreement to take account of the discussions at the meeting held on 29th October 1992.  He concluded by indicating that his colleague, Ms Ball, would be writing shortly with her report on the copy title deeds provided by the Howarths in respect of the land the subject of the Development Agreement.  That report was duly sent to Mr Gupta on 17th November 1992.  Ms Ball asked him to let her know if he wished her to carry out the various searches she had mentioned as necessary before the transaction was entered into.
19.	No instructions to make any of those searches were given.  Instead Stone entered on the Howarth land to carry out certain works of renovation and clearing up of existing buildings.   Stone asked Mr Shalom to engross two copies of the latest draft of the Development Agreement.   In his covering letter addressed to Mr Gupta, Mr Mortazavi and Mr Chotani Mr Shalom wrote:
“You know that signing these documents and dating them is against my advice.
Nevertheless if you do proceed to have the documents signed and dated you keep one copy and the Howarths keep the other.  Would you then inform me as soon as you have signed an undated Agreement.  Thereafter would you please forward it to me.”
20.	Thereafter Mr Shalom received back a copy of the signed but undated Development Agreement.  Pursuant to a telephone call on 12th February 1993 to Mr Shalom’s assistant it was dated 11th February 1993.  It is unnecessary to refer to its detailed terms.  It provided for the development of the Howarth Land but contained no licence or grant over that land to enable the development of the Possessory Title Land or the Bolton Clear Title Land or any part of either.
21.	The judge dealt with the subsequent events in some detail because Stone also alleged negligence on the part of Mr Shalom occurring after the conclusion of the Development Agreement.  The judge rejected these allegations and there is no appeal in respect of them.  I have already recorded the subsequent events relevant to this appeal in paragraphs 5 to 8 above.  Insofar as counsel for either party relies on any others it will be sufficient to describe them at that stage.

Breach of Duty

22.	The issues in relation to breach of duty are those I have summarised in issues (1)  and  (4) in paragraph 9 above.  The submissions for Stone and the Solicitors were similar in that each party submitted that the distinction drawn by the judge between the Possessory Title Land and the Bolton Clear Title Land was unjustified.  There the similarity ended.  Stone submit that the judge should have concluded that Mr Shalom was in breach of duty in relation to both;  the Solicitors contend that he should have acquitted Mr Shalom in respect of a breach of duty in relation to either.
23.	After setting out the detailed history of the matter in paragraphs 59 to 218 the judge considered the credibility of the witnesses who gave oral evidence before him.   For the reasons given in paragraphs 220 to 227 the judge considered that Mr Mortazavi “was a chancer who was prepared to sail close to the wind in his commercial dealings”.  He acquitted him of being deliberately dishonest in his evidence but approached his recollection and evidence with caution.  He dealt with Mr Shalom in paragraphs 228 to 244.  He considered his evidence to have been thoroughly discredited, “aspirational” and unreliable.  Accordingly he only attached weight to it to the extent that it was consistent with other reliable evidence or was inherently probable.   In paragraphs 248 to 260 he considered the evidence of Charles and David Howarth.  He accepted the evidence and bona fides of both of them.  He considered that Stone had taken advantage of them rather than the other way round.  He found Mr Arnold Brown to be honest and reliable though his recollection had been diminished by age and time [Para 262].
24.	In paragraphs 265 to 278 he set out his primary findings of fact.   I have quoted at length  [paragraph 17 above] from his conclusions as to the events of the meeting on 29th October 1992.   It is convenient at this stage to repeat the most important of them, namely:
(1) “I have no doubt that, alerted to the fact that the Howarths occupied additional land outside the boundary shown on the title plans he was marking up, Mr Shalom must have queried whether he need be concerned about this for the purposes of the development agreement” [Para 270].
(2) “I am satisfied on the balance of probabilities that Mr Mortazavi told Mr Shalom that the discrepancy would be cured by the purchase of the additional land from the Council after which, to adopt the language used by Mr Howarth …, the matter of the present boundary would be ‘irrelevant’.” [Ibid.]
(3) “I am prepared to accept that [Mr Mortazavi] told Mr Shalom that the development agreement need not concern itself with any land beyond the Howarths’ paper title because Mr Mortazavi believed that this would be resolved by the acquisition of the additional land from the Council, which no-one envisaged would present any difficulty.” [Para.275].
(4) “I reject Mr Mortazavi’s evidence that he did not tell Mr Shalom that the development agreement did not need to concern itself with the possessory title land [Para 276(3)].”
(5) “I reject Mr Shalom’s evidence that Mr Mortazavi told him that the possessory title land was not part of the development” [para.276(4)].
(6) “Mr Mortazavi accepted that he appreciated that the development agreement did not extend to the Bolton clear title land.  It follows from my findings of fact that he must have appreciated that it did not extend to the possessory title land; and I so find [Para 278].”

25.	The judge then turned to the breach of duty issues.  He referred to various text books and authorities in paragraphs 281 to 297 and to the submissions of counsel in paragraphs 298 to 303.  In paragraphs 304 to 309 he reiterated the competing considerations.   His conclusion in respect of the Possessory Title Land is contained in paragraphs 310 and 311 as follows:
“310. As I say, I bear all of those competing considerations, and all of the arguments of counsel, in mind.  I am acutely conscious that the standard is that of the reasonably competent solicitor practising in the field of property and conveyancing and the drafting of development agreements rather than that of the particularly meticulous and conscientious practitioner.  I bear in mind in particular all that [counsel for the Solicitors] has submitted.  Nevertheless, with some hesitation, and after much anxious consideration, I have concluded that at the 29th October 1992 site meeting, when alerted to the issue of a possessory title, a reasonably competent solicitor, let alone the particularly meticulous and conscientious practitioner, would have said, “Hold on a moment, Mr Mortazavi.  It’s all well and good, if you do succeed in acquiring the additional land from Bolton; then we will have to conclude a fresh agreement with the Howarths directed to the particular area of land which you succeed in acquiring, and the particular circumstances of the acquisition, and the stage at which the development has reached, and the form which the development is to take.  But what if you don’t succeed in acquiring the land from Bolton, so that there is no new agreement to be negotiated with the Howarths? In those circumstances, would you want the ability to apply the provisions of this development agreement which I am in the course of drafting to the possessory title land? After all, you have said that the extra land is a bonus; but how do you know that that is the case, as regards the possessory title land, when we don’t even know the precise extent of the paper title on the ground?”
311. Contrary to Mr Shalom’s apparent understanding, the reality in fact was that the possessory title land was not a bonus; it was part of the original negotiations.  It had already been taken into account in arriving at the price of £850,000.  In my judgment, Mr Shalom’s attitude was entirely, and unduly, reactive rather than proactive; and, as a result, he missed out on an opportunity to appreciate the significance of these points.  In my judgment, such advice would have been directed to a hidden pitfall of which a reasonable businessman might well have been expected to be unaware.  I adopt in that regard the language of Lord Scott in the Pickersgill case, which itself was derived from the language of Sir Thomas Bingham MR in the earlier case of Reeves v Thrings and Long.”
26.	In paragraph 312 the judge referred to evidence of Mr Charles Howarth which, he considered, supported that conclusion.  He said:
“In support of my conclusion it is worth noting that Mr Charles Howarth said in cross‑examination, “I thought while they had a licence to use our land, if they bought land next door they could develop it.”  Mr Charles Howarth clearly misunderstood the extent of the rights conferred by the development agreement and its implications.  In those circumstances, I consider it understandable that Mr Mortazavi did so too.  This was a hidden pitfall of the development agreement in the form in which Mr Shalom had drafted it; a hidden pitfall which only became apparent once it was appreciated, subsequent to the initial drafting, that there was not only land to which the Howarths had a paper title, but also land to which they asserted a claim by way of adverse possession.  For these reasons I therefore find Mr Shalom, and through him the Defendants, in breach of duty in failing to enquire as to whether the provisions of the development agreement should be extended so as to apply to the possessory title land if the extra land was not in fact acquired from Bolton.  In that context I find that the enquiry that was raised in paragraph 2 of Mr Shalom’s typed attendance note, and which was forwarded to Stone Heritage, to have been inadequate, and also misleading, directed as it was to land that was described as “a bonus”, and not part of the original negotiations, when, in relation to the possessory title land, that was not in fact the case.”
27.	In paragraph 313 the judge considered whether the matter might have been remedied had Mr Shalom had the opportunity to prepare a pre-contract report.  In that respect he considered that:
“...Even if Mr Shalom had, in a pre‑contract report, spelled out that the development agreement did not extend to the possessory title land, he would have been doing no more than alerting Stone Heritage to that which it already knew.  What Stone Heritage needed was the advice that the development agreement should be extended so as to apply to the possessory title land if the purchase of the additional Council land did not proceed.  Nor, in my judgment, can Mr Shalom rely on the advice and warnings that he gave at the end of November against a premature signing and conclusion of the development agreement since these did not identify, or extend to or encompass, the particular issue of the possessory title land and the question whether, if the extra Council land was not acquired, the development agreement should be expanded so as to apply to that possessory title land.”
28.	In paragraph 314 the judge set out his conclusion in respect of the Bolton Clear Title Land.  He said:
“Having found Mr Shalom, and thus the Defendants, in breach of duty to that extent, I should nevertheless make it clear that, given Mr Mortazavi’s knowledge and appreciation that the development agreement did not extend to the additional land that it was hoped to acquire from the Council, and that a further development agreement would be required in that regard, I do not consider that Mr Shalom or the Defendants were in breach of duty in not advising as to the inclusion of any terms regarding the Bolton clear title land.  In my judgment, the perception and assessment of the risks of that latter omission as to the Bolton clear title land clearly fell at the client’s door rather than that of the solicitors.  They were not a hidden pitfall.  The hidden pitfall was the omission to advise as to what might be done if the Bolton land was not acquired in terms of the possessory title land which had always, in my judgment, been part of the original negotiation.”
29.	Counsel for Stone submits that on the judge’s own findings there was no reason to distinguish the Bolton Clear Title Land from the Possessory Title Land so as to conclude that there was a breach of duty in relation to the latter but not the former.  He points out that the judge had concluded that Mr Shalom knew of Stone’s proposal to acquire further land from Bolton for the purpose of its development.   He submits that in those circumstances Mr Shalom should have appreciated, as Mr Speakman did, that it would be necessary to have rights over the Howarth Land to enable the development of the further land.   He contends that a reasonably competent solicitor would have realised that the most favourable time to negotiate the grant of such rights by the Howarths was as part of the Development Agreement.  If, as the judge concluded, Mr Charles Howarth and Mr Mortazavi mistakenly thought that the Development Agreement conferred the necessary rights, when it should have been obvious to Mr Shalom that they did not, then Mr Shalom was duty bound to warn Mr Mortazavi.  If there was a hidden pitfall in respect of the Possessory Title Land then there was an equivalent pitfall in relation to the Bolton Clear Title Land.   Accordingly the distinction made by the judge in paragraph 314 of his judgment is unsustainable.  He should have concluded that Mr Shalom was in breach of his duty to Stone in respect of the Bolton Clear Title Land as in respect of the Possessory Title Land.
30.	In support of these submissions counsel for Stone relied on occasions on which it appeared that Mr Shalom did not fully understand the Development Agreement he had drafted.   These were referred to by the judge in paragraph 230 of his judgment and elsewhere.   If, it is suggested, Mr Shalom did not understand that the Development Agreement did not confer rights over the Howarth Land necessary for the development of the Bolton Clear Title Land then how could Mr Mortazavi.   I do not consider that this submission advances the argument in support of the appeal on this issue.  It is not suggested that Mr Shalom did give any advice in relation to the need to obtain rights over the Howarth Land exercisable in connection with the development of any of the Bolton Clear Title Land that might be acquired in the future.   Nor is the judge’s finding that Mr Charles Howarth and Mr Mortazavi understood that the Development Agreement conferred on Stone all necessary rights disputed.   Accordingly there is no issue to which Mr Shalom’s understanding could be relevant.
31.	These submissions are disputed by Counsel for the Solicitors.  He suggests that the key event was the meeting on 29th October 1992 and relies strongly on the judge’s findings summarised in paragraph 24 above.  In particular he points out that the effect of those findings is that Mr Mortazavi told Mr Shalom that the Development Agreement did not need to concern either the Possessory Title Land or the Bolton Clear Title Land.   This was said in the context that Mr Mortazavi knew of the proposal to acquire further land from Bolton and that the Development Agreement, then in draft, did not relate to either the Possessory Title Land or the Bolton Clear Title Land.   Counsel relies on the judge’s finding that Mr Mortazavi is an intelligent man who, at the material time, had experience in both accountancy and property development.  It must, he submits, have been obvious to Mr Mortazavi that the acquisition and development of further land from Bolton would require a further development agreement and the concurrence and co-operation of the Howarths.  In those circumstances there can be neither an express nor an implied duty on Mr Shalom to procure that the Development Agreement contained the rights over the Howarth Land necessary to the development of such further land or to point out that it did not.
32.	Both parties referred us to passages in Floyd v John Fairhurst & Co. [2004] EWCA Civ 604 and [2004] P.N.L.R 41 and Morris v Bank of India [2005] 2 BCLC 328 in relation to the entitlement or otherwise of an appellate court to interfere with or qualify factual conclusions reached by the judge at first instance.  We are not invited by either side to differ from the judge on any finding of primary fact made by him.   Nor is it submitted that the judge misdirected himself on the law in relation to the issue of breach of duty.  But each side submits that the judge reached a wrong conclusion in his application of that law to those facts.  In my view an appellate court should and will examine such a submission with care and a proper respect for the conclusion of the judge after a hearing of the length and nature of that held by the judge in this case.  But, that said, if the appellate court comes to the conclusion that the judge was wrong then it is duty bound to say so.
33.	We were also referred to a number of reported cases and passages in various textbooks.  The reported cases, in chronological order are Credit Lyonnais SA v Russell Jones & Walker [2003] 1 Ll.L.R. (PN) 7, Pickersgill v Riley [2004] UKPC 14 and [2004] P.N.L.R 31 and John Mowlem Construction plc v Neil F.Jones & Co. [2004] EWCA Civ 768 and [2004] PNLR 45.   
34.	In Credit Lyonnais SA v Russell Jones & Walker [2003] 1 Ll.L.R. (PN) 7 solicitors instructed to procure the termination of a lease failed to warn their client that the break clause was subject to a condition precedent as to which time was of the essence.   It was admitted that the need to comply with the condition promptly would have been apparent to any property lawyer but the solicitor concerned with the matter did not have the knowledge and experience of such a lawyer.  The principle, as formulated by Laddie J in paragraph 28 of his judgment and adopted by Judge Hodge in paragraph 286 of his judgment in this case, was as follows:
“A solicitor is not a general insurer against his client’s legal problems.  His duties are defined by the terms of the agreed retainer....
the solicitor only has to expend time and effort in what he has been engaged to do and for which the client has agreed to pay.  He is under no general obligation to expend time and effort on issues outside the retainer.  However if, in the course of doing that for which he is retained, he becomes aware of a risk or a potential risk to the client, it is his duty to inform the client.  In doing that he is neither going beyond the scope of his instructions nor is he doing ‘extra’ work for which he is not to be paid.  He is simply reporting back to the client on issues of concern which he learns as a result of and in the course of carrying out his express instructions.  In relation to this I was struck by the analogy drawn by [counsel for the Claimant].  If a dentist is asked to treat a patient’s tooth and on looking into the latter’s mouth he notices that an adjacent tooth is in need of treatment, it is his duty to warn the patient accordingly.  So too, if in the course of carrying out instructions within his area of competence a lawyer notices or ought to notice a problem or risk for the client of which it is reasonable to assume that the client may not be aware, the lawyer must warn him.”
Neither side challenged the principle, merely its application in the circumstances of this case.
35.	In Pickersgill v Riley [2004] UKPC 14 and [2004] P.N.L.R 31 Lord Scott of Foscote, in delivering the advice of the Privy Council, emphasised that the scope of a solicitor’s duty is governed by the instructions he receives and the circumstances of the case.   Accordingly, in the ordinary way he is not obliged to travel outside his instructions to investigate matters his client has not asked him to do.  By contrast he is obliged to warn the client of any hidden pitfalls disclosed in carrying out the work he is retained to do.
36.	In John Mowlem Construction plc v Neil F.Jones & Co. [2004] EWCA Civ 768 and [2004] PNLR 45 solicitors retained to advise sub-contractors in relation to a claim against them threatened by the main contractor failed to advise their client to disclose the existence of the claim when renewing their professional indemnity insurance.  In the event the claim against the client was sustained but the insurers avoided the policy.  The assignees of the client sued the solicitors for negligence.  The claim was dismissed by the judge on the ground that the solicitors had not been instructed to advise in relation to insurance.  That conclusion was upheld by the Court of Appeal.  Tuckey LJ, with whom Judge and Kay LJJ agreed, referred to the passage in the judgment of Laddie J I have quoted in paragraph 34 above.  He concluded [Para 20]
“The Solicitors were not retained to advise about insurance by their client, who was perfectly competent to deal with such matters. Nevertheless, when, out of the blue, what was thought to be a tactical counterclaim was threatened, would a reasonably competent solicitor have immediately asked about insurance and advised notification? I think the judge's view that he would not is unassailable, supported as it is by the fact that such questions did not occur at the time to other experienced solicitors.”
37.	So far as the textbooks are concerned, we were referred to Jackson & Powell on Professional Liability 6th Ed. paras 11-62, 11-63 and 11-66.  For the most part those passages summarise the effect of the three cases to which I have referred.  In addition they highlight the proposition that the precise scope of the duty to advise may vary according to the knowledge and experience of the client [Para 11-163] and the need for the ‘hidden pitfall’ to be obvious to the solicitor [Para 11-166].  The same cases and textbook passages were referred to by the judge in paragraphs 281 to 303 of his judgment.   But he owned to having found the issue of breach of duty a difficult one and that his mind had wavered on this issue.
38.	I can state my conclusions quite shortly.  I do not think that the distinction that Judge Hodge drew in relation to the conduct of Mr Shalom between the Possessory Title Land and the Bolton Clear Title Land is justified.  I do not consider that Mr Shalom was negligent in relation to either.
39.	The starting point must be to ascertain what it was that Mr Shalom was instructed to do.  It seems clear from the various meetings and the correspondence to which I have referred that Mr Shalom was not asked to advise on the commercial wisdom of the deal that Mr Mortazavi and his associates were negotiating with the Howarths.  Thus he was required to assume the development of land in the ownership of the Howarths by Stone and the sale of the various resulting residential properties by the Howarths to third party purchasers.  Stone was not to obtain any interest in the Howarth Land because it could not pay for it.  Mr Shalom’s task was to draft an agreement for execution by the Howarths and Stone so as to enable the development of the Howarth Land by Stone and its sub-contractors as licensees of the Howarths.
40.	The limitations on what was expected of Mr Shalom clearly appear from the way his clients dealt with him.  Thus they incorporated or acquired the newly incorporated Stone but did not tell Mr Shalom what it was called [see paragraph 13 above].   They ignored his advice as to the nature of the transaction [see paragraph 11 above], took no notice of Mr Shalom’s suggestion in relation to the instruction of an architect [see paragraph 12 above] and failed to provide Mr Shalom with material documents [see paragraphs 13 and 15 above].   Mr Shalom asked if the development agreement was to await the acquisition of the further land he understood to be intended [see paragraph 15 above].  Whether or not he got an answer to that question before the site meeting on 29th October 1992 he was clearly told at that meeting that the development agreement was not to concern any such further land.   The judge found that the further land referred to was both the Possessory Land and the Bolton Clear Title Land.
41.	After that meeting Mr Shalom submitted a revised draft agreement.  He suggested that he should draft two further agreements necessary to deal with the tripartite arrangements between Stone, the Howarths and the Browns.  No such instructions were given.  Similarly Ms Ball asked whether Stone wished her to carry out the searches she suggested.  No such request was made;  instead Stone went on to the land and commenced works preparatory to the development.   In his letter accompanying the engrossments of the Development Agreement Mr Shalom advised Mr Gupta, Mr Mortazavi and Mr Chotani against signing it.  There seems to have been no further communication between them until Mr Shalom’s assistant was asked to date the Development Agreement.  By that time it had already been executed.
42.	These facts are relevant to issues of causation but, in my view, they also confirm the very limited role Mr Shalom was expected by Stone to perform.   In addition the individuals with whom Mr Shalom dealt, namely, Mr Gupta, Mr Mortazavi and Mr Chotani had between them accountancy and property development experience.  In those circumstances if the reasonable solicitor is told that the development agreement is not to concern any land other than the Howarth Land he is, in my view, entitled to take that limitation on his role at face value.
43.	The pitfall against which the judge considered that Mr Shalom should have warned Stone was by no means obvious.  Its nature is apparent from the judge’s description in paragraph 313 of his judgment:
“What Stone Heritage needed was the advice that the development agreement should be extended so as to apply to the possessory title land if the purchase of the additional Council land did not proceed.”
But the instruction given to Mr Shalom by Mr Mortazavi at the site meeting on 29th October 1992 excluded any such consideration.   Mr Shalom was then told that the Development Agreement should not concern either the Possessory Title Land or the Bolton Clear Title Land.  If it was not to concern the development of that land still less should it have concerned rights over the Howarth Land to enable such development.   
44.	Moreover such suggested extension of the Development Agreement was conditional on the Bolton Clear Title Land not being acquired.  Had the issue been raised by Mr Shalom it would have prompted a host of further questions such as whether the acquisition of part, and if so which part, of the Bolton Clear Title Land would suffice and what time limit should be imposed for satisfaction of the condition.   In the light of his instructions Mr Shalom had no responsibility to explore these matters.  Had he done so he would not have been entitled to payment for his time;  and it is plain from the matters to which I have already referred that Mr Mortazavi was concerned to keep the costs to the minimum.
45.	In paragraph 314 of his judgment [see paragraph 28 above] the judge drew a distinction between the Possessory Title Land and the Bolton Clear Title Land.   It appears that he did so on the ground that the Possessory Title Land had “been part of the original negotiation”.  But that is not a distinction recognised by the express instructions given at the site meeting on 29th October 1992 by Mr Mortazavi.  The findings I have recorded in paragraph 24 above show clearly that those instructions related to both the Possessory Title Land and the Bolton Clear Title Land.
46.	For these reasons I would accept the ground for upholding the judge’s order to dismiss the claim set out in section 6 of the respondent’s notice.  For the same reasons I would reject the first ground of appeal set out in the appellant’s notice.
Other Issues

47.	In paragraph 9 above I summarised the principal issues arising on this appeal.   In the light of my conclusions on issues (1) and (4) issues (2), (3), (5) and (6) do not arise.  Nor do the other issues which I have not even summarised.   Accordingly it is not necessary to deal with any of them.  Nor do I think it appropriate to do so.   For the most part they arise in relation to the specific facts of this case.  The issue which does not, namely the proper test by which to assess the likelihood or otherwise of a third party, in this case the Howarths, acting in any particular manner should be considered in a wider context than that which this appeal affords.

Conclusion

48.	The consequence of the conclusions stated in paragraph 46 above is that even if Stone satisfied this court that the judge was wrong on all the issues referred to in paragraph 47 it would not lead to any different result.   Accordingly, if the other members of the Court agree with my conclusion the appropriate order is that the appeal be dismissed. 
Lord Justice Lloyd:
49.	I agree.
Lord Justice Toulson:
50.	I also agree.