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The plaintiff, brought an action against the defendants for professional negligence.
The plaintiff and Kentwood Investment Limited had signed a contract for the sale of assets. A misunderstanding arose and the plaintiff stopped payment of a cheque payable to Kentwood. Consequently Kentwood wrote to the District Registry at Kitwe, claiming the amount payable on the cheque. The cheque was dishonoured. An attempt was made by the parties to settle the dispute out of court. It was agreed that the misunderstanding leading to the stop payment would be made good and the plaintiff's lawyers would hold the payment in transit for Kentwood. After the plaintiff had made one payment, another misunderstanding arose, this time with their advocates.
Kentwoodobtained a summary judgment against the plaintiffs. In the meantime, the plaintiffs, whose advocates were Jacques and Partners wrote them informing them that they had changed advocates to Chuula and Company, who had applied to court to set aside the summary judgment. However, it was Jacques and Partners who appeared on behalf of the plaintiff and they did not oppose the summary judgment. The plaintiff therefore brought an action against the defendants - Jacques and Partners for not complying with their written instructions. It was held on a balance of probabilities that the defendants did not fail to comply with any specific written instructions as at that point in time, there were no such instructions.
Held:
(i) Where a lawyer has instructions, he has a professional duty to protect his client so that where it is shown that the advocate has failed to exercise his duty to the cost of his client, the lawyer must make good and pay for that damage.
(ii) Where a party to the proceedings of this nature is given time and ample opportunity to oppose entry of judgment, and does not do so, so as to disclose a defence whether that defence is acceptable by the court or not, the other party is entitled to have the judgment entered in his favour.
p76
Case referred to:
(1) Otter v Church Adams, Tatham and Company [1953] Ch. 280.
For the plaintiff: A.J. Nyangulu Esq, Fitzpatrick Chuula and Company.
For the defendant: A.P. Annfield Esq, Annfield and Company.
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