[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Midland Bank Plc v Messrs Cox McQueen (A Firm) [1999] EWCA Civ 656 (26 January 1999) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/656.html Cite as: [1999] 1 FLR 1002, [1999] EWCA Civ 656, [1999] Fam Law 310, [1999] Lloyd's Rep PN 223, [1999] Lloyd's Rep Bank 78, [1999] PNLR 593, [1999] EG 12

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(BIRMINGHAM DISTRICT REGISTRY MERCANTILE LIST SITTING AT STAFFORD)
(HIS HONOUR JUDGE PERRETT QC)

		Royal Courts of Justice Strand London WC2A 2LL
		26 January 1999

LORD WOOLF, MR:

This is an appeal from the judgment of His Honour Judge Perrett QC, sitting as a Deputy High Court Judge, given on 28 November 1997 in the Mercantile List (Birmingham) at Stafford. The Judge dismissed a claim by the Midland Bank ("the Bank") for damages against a firm of Solicitors Messrs Cox McQueen ("the Solicitors").

The claim raises a point of some importance as to the extent of the obligation on solicitors when they are retained by a bank in connection with the execution of a charge by the wife of a customer of the bank and her signature is forged.

The Facts

As the Judge points out in his judgment the relevant facts are not in dispute. From 1970 Mr Dennis George Dukes and his family company were customers of the Bank. His wife, Constance Dukes, was the sole owner of a house known as "Greystones" Symondsbury, Dorset. No-one at the relevant Birmingham branch of the Bank had met Mrs Dukes.

At the beginning of July 1985 the limit on the family company's overdraft at the Bank was increased to £75,000. In return Mr Dukes deposited with the Bank the deeds and conveyance of Greystones. He also deposited a letter of consent which purported to have been signed by Mrs Dukes in the presence of a different firm of solicitors from the defendants. Those solicitors signed an assurance that "the contents of this document have been fully explained to Mrs Dukes and that she fully understands their portent and has signed the documents of her own free will". In fact that document was not signed by Mrs Dukes but by someone else and Mrs Dukes thought the documents were being deposited at the bank for safe keeping.

In September 1987 a well-known firm of estate agents gave Mr Dukes a "desk top" valuation of Greystones of £250,000 - £275,000. Mr Dukes used this valuation to persuade the Bank to lend him money on the security of Greystones. The loan was to enable him to pay off the debts the company owed to the Bank. The security for the loan was to be an "all monies" security, that is, a security not only for existing but also for future indebtedness. This involved recharging Greystones. The Bank was well aware that in the case of a transaction of this nature it would be necessary for Mrs Dukes to have independent legal advice before she executed the security. This led to the Solicitors being retained by the Bank, on the nomination of Mr Dukes for whom they had previously acted. On the 18 March 1988 the Bank wrote to the Solicitors in the following terms:

"I refer to our telephone conversation today, and understand that you act for our above-mentioned customer, who will be calling shortly in connection with a loan we are advancing to repay existing borrowings.

I should be grateful if you would also act on our behalf by obtaining the signatures of Mr & Mrs Dukes to the various documents shown below: -

To be signed by Mr Dukes

(a) Facility letter - please have Mr Dukes accept the letter and return the top copy to us, handing the copy to Mr Dukes as his record of the agreement.

(b) Authority to transfer funds to repay borrowing by DGD Investments Limited.

(c) Standing order form to cover interest only on the loan by monthly payments.

(d) Letter of Consent agreeing to the charging of the property as security. Please ensure that Mr Dukes also initials the attached copy mortgage form.

To be signed by Mrs Dukes

First Legal Mortgage over 'Greystones'.

We should be grateful if you would explain the implications of the wording of our mortgage form to Mr & Mrs Dukes, and in particular draw their attention to the "all monies" nature of the mortgage.

After completion of the documents, kindly return them all to us as soon as possible."

The document described as the "First Legal Mortgage" in the letter made provision for Mrs Dukes's signature to be witnessed. It also included the following certificate to be signed by the Solicitors:

"We hereby certify that the contents of this document have been fully explained to Constance Jean Dukes that she fully understands the portent and has signed this document of her own free will."

The documents were returned to the Bank apparently properly completed. Mrs Dukes signature was shown as being witnessed by a legal executive of the Solicitors. The Solicitors invoiced the Bank for the sum of £23.00 for their services. This sum was paid.

Four and a half years later the Bank sought to rely on their charge because Mr Dukes had stopped paying interest. The Bank then discovered that it had not been signed by Mrs Dukes. The charge had been signed by an impostor who had been introduced by Mr Dukes to the legal executive as his wife. When the Bank made its formal demand on Mrs Dukes in July 1992, the sum that was said to be due to the Bank was £255,121.

Initially the Bank brought proceedings against Mrs Dukes but was eventually persuaded that she had not signed the relevant documents. They had in fact been signed in the presence of the legal executive by an employee of Mr Dukes who he had passed off as his wife.

The Bank originally advanced its case under four different heads:

(a) Negligence or breach of the implied duty to carry out the retainer with reasonable care and skill;

(b) Breach of warranty of authority;

(c) Non-performance of the retainer; and

(d) Breach of the warranty contained in the certificate on the charge.

The judge dismissed all the allegations. The Bank does not challenge his decision as to negligence, breach of the implied term and breach of warranty authority. The argument of the Bank on the appeal has primarily been based on the alleged non-performance by the solicitors of their retainer but Mr Nicholas Stewart QC, in his argument on behalf of the Bank, also relies on the breach of warranty. I will deal with these two arguments in turn.

Breach of the Retainer

Mr Stewart advances a clear and succinct argument based on the terms of the retainer. He submits that the terms of the letter of the 18 March 1988 are unqualified. It requires the solicitors to obtain the signatures of Mr & Mrs Dukes to the various documents. The Solicitors did not obtain Mrs Dukes signature but the signature of someone else. Therefore they did not carry out their retainer. This was contrary to the strict obligation which they had accepted to obtain Mrs Dukes's signature.

Mr Alastair Norris QC, on behalf of the Solicitors, accepts that this issue is one of construction of the letter of 18 March. He submits that it would be wholly inappropriate to construe the retainer as placing an absolute obligation on the Solicitors so that they would be liable even though they had exercised the required standard of care. He submits that this is a professional retainer. Members of professions usually render a service but do not guarantee a result. If they are to be required to guarantee a result, clear words need to be used which spell out that this is the obligation. He submits that the nature of the transaction itself, the language of the letter and the mortgage do not suggest that this is other than an ordinary contract for professional services. It does not amount to a contract of insurance. As to the interpretation of the retainer, Mr Norris relies upon the guidance of Lord Hoffmann in his speech in Investors Compensation Scheme Ltd. v West Bromwich BS [1998] 1 WLR 896 (at p.912F-913F). Of the principles which Lord Hoffmann summarises, it is only necessary to refer to the first:

"1. Interpretation is the ascertainment of a meaning which the document would convey to a reasonable person having all the background knowledge that would reasonably been available to the parties in the situation in which they were at the time of the contract."

The features of the background which are of most significance are:

(a) that the retainer was in connection with the Bank obtaining security for a loan which in its commercial judgment the Bank had decided to make to its customer, Mr Dukes. Risks are always associated with entering into such a transaction, even with a customer who is thought to be respectable. This is the type of risk for which a commercial body such as bank would make provision.

(b) on the other hand the Solicitors were being retained in their professional capacity to provide services to the Bank. In the ordinary way solicitors are not required to take commercial risks of this nature. In the provision of services the normal standard of responsibility of solicitors, in the absence of any agreement to the contrary, is to exercise the standard of care which is normally to be expected from a competent member of the profession providing that service.

(c) the Bank would normally be in a better position than the Solicitors to form a judgment as to the customer's trustworthiness.

It is against this background that the question which Mr Norris accurately identified has to be objectively answered in order to determine this appeal. The question is, did the Bank intend to ask for and did the Solicitors intend to give a promise to answer for the fraud of the customer even if that fraud could not be detected by exercising all proper care? In my view the answer to the question should be no, unless the language used compellingly indicates otherwise.

Whether the language does indicate a contrary conclusion must be judged by looking at the language which is used as a whole. Here, when doing this it is necessary to concentrate on the primary document which is the letter of 18 March. Although it instructs the Solicitors to obtain the signature of Mr & Mrs Dukes on the documents, this cannot be an absolute obligation to do so as Mr Stewart accepts. If Mr and Mrs Dukes decided not to proceed with the transaction then of course the Solicitors would not be liable because the signatures were not obtained. Again the requirement to explain the implications of the wording of the mortgage and in particular the effect of it being an "all monies" security involves an exercise of judgment as to the extent of the explanation which Mrs Dukes would require. Obligations of this nature are not likely to be of an absolute nature. They are better suited to a requirement to exercise a reasonable standard of care. The words do not compel the conclusion for which the Bank contends.

There are however two authorities to which I should refer before finally coming to my conclusion on this aspect of the appeal. They are both recently decided. The earlier, is a case on which Mr Norris relies, namely Barclays Bank Plc Weeks Legg & Dean [1998] 3 WLR 656. In that case the Court of Appeal came to a conclusion in favour of firms of solicitors in three cases. In each case, solicitors acting for purchasers of properties gave to the bank, which had provided the purchase money on the security of properties, an undertaking. The undertaking was that the sums received from the bank for the purchase would be applied solely for acquiring "a good marketable title" to the properties. The undertaking was in a standard form agreed between the Law Society and the bank. The Court of Appeal concluded that the undertaking only imposed an obligation on the solicitors to obtain what a reasonably competent solicitor acting with proper skill and care would accept as good marketable title. In one of the three cases the owners' signature was forged on the sale documents.

The undertaking was headed "Undertaking by solicitor". It included these words:

"I/We undertake: (a) that any sums received from you or your customer for the purpose of this transaction will be applied solely for acquiring good marketable title to such property ..."

Millet LJ gave the first judgment. Having confessed that he was first disposed to conclude that the undertaking should be construed literally, he went on to indicate that he had changed his mind. He gave the following reasons to explain why he had done so (p.670D-671A):

"(1) It is inconceivable that the parties should expect the solicitor to assume a more onerous obligation to the bank, which is not his client and is not being charged for his services, than he has assumed towards his own client.

(2) The undertaking relates to the investigation of the vendor's title as well as to the due execution of the conveyance by the vendor. But it is impossible for the purchaser's solicitor to give an unqualified guarantee of the vendor's title. He is not entitled to call for evidence of the vendor's title earlier than the root of title, yet a defect in his title may be discoverable only by examining the pre-root title. If such a defect is discovered before completion, the purchaser may refuse to complete; but he may well not discover it and complete in ignorance of its existence. The purchaser's solicitor should not readily be assumed to have accepted liability in such circumstances.

(3) Similarly the purchaser's solicitor can take reasonable precautions to ensure that the legal charge is properly executed by his own client. But it is difficult to see what steps he can take to ensure that the conveyance to his client is properly executed by the vendor. He must rely on the vendor's solicitor for this purpose.

(4) Given that the purpose of the undertaking is to prescribe the terms on which the solicitor is authorised to part with trust money which belongs in equity to the bank, it is difficult to see why he should assume a more onerous obligation in contract than he assumes by virtue of the trust. Theoretically his liability as a trustee is strict, but in practice it is not, for if he acts honestly and reasonably and ought to be excused from liability , the court will grant him relief under section 61 of the Trustee Act 1925. The court has no similar relieving power in contract; but it is not to be supposed that, by entering into the undertaking, the solicitor was intending to disentitle himself to such relief.

In my judgment, therefore, the undertaking ought to be construed as subjecting the solicitor to qualified obligations only. This will bring his obligations under the undertaking into conformity with his obligations to his own client as well as with his trust obligations to the bank, and will not involve exposing him to a liability which no solicitor could be properly advised to accept."

Although the reasoning of Millett LJ is entirely consistent with the approach I would adopt, it is clear from his reasoning that there are aspects of the facts which he was considering in those cases which are not present here. Pill LJ in his judgment expressed himself in these terms (p.673F-G):

"I regard it as inconceivable that a document for general use which has obvious and sensible purposes in a property transaction can have been intended by the parties to provide the bank with a guarantee as to title and put the solicitor in the position of the bank's insurer for the purposes of title. In context, and for the reasons given by Millett LJ, I agree that the words "good marketable title" in the undertaking must be qualified in the manner proposed by Millett LJ. In the circumstances, that qualification must be implied. The undertaking must be read as achieving objectives in the course of a property transaction which are important but limited in that way."

May LJ agreed with both judgments.

The other case is the decision of the Court of Appeal in Zwebner v Mortgage Corporation (unreported)18 June 1988. In that case the Court of Appeal dismissed an appeal from Timothy Lloyd J. Robert Walker LJ gave a judgment with which Hobhouse and Waller LJJ agreed. The facts generally bear a marked resemblance to the facts here. The mortgage lender lent money on a mortgage deed on which Mrs Zwebner's signature was a forgery. The solicitors who were involved were a fairly small practice who were instructed initially by the mortgagees. Subsequently they received instructions from those who they thought were the borrowers as well.

Standard instructions were used to instruct the solicitors which included a form of certification and undertakings intended to be signed by a solicitor. Robert Walker L.J. said:

"There were three matters to be certified:

(1) that the solicitors had investigated title and that "at completion the borrowers will obtain a good and marketable title to the property"...

(2) that independent advice has been given to all occupiers required to execute a deed of consent (that was a matter provided for in paragraph 10 of the standard instructions, which also at that time required a non-owning spouse to be joined as surety); and

(3) that the solicitors were aware of TMC's reliance on the certificate. Then came the undertakings introduced by the words (in capital letters) "WE UNDERTAKE THAT". The undertakings (with inserted numbering) were as follows,

'1. Any sum received from you will be held to your order and applied solely for the purpose of securing a first mortgage over the property for the amount specified in the mortgage offer.

2. All appropriate documents will be properly executed on or before completion.

3. All post completion matters will be dealt with in accordance with your instructions as soon as possible. The title deeds and mortgage documents will be forwarded to you using the deeds schedule supplied as soon as all necessary post completion formalities have been dealt with.

4. The person signing this report on title on our behalf is a solicitor in private practice holding a current practising certificate.'"

Then undertakings were given by the solicitors. The solicitors had never met Mr Zwebner or his wife and their only possible contact with her was when they telephoned the matrimonial home and might have spoken to her.

In that case, as in this, Mr Norris appeared on behalf of the solicitors and advanced similar arguments. The response of the court as set out in the judgment of Robert Walker LJ was as follows:

"Conveyancing transactions are no doubt generally commercial transactions of one sort or another, but they are not generally regarded as being within the field of mercantile law. Traditionally the practice of conveyancers of unregistered land shows (especially in relation to mortgages protected by a deposit of title deeds) a lively awareness of the possibility of fraud. The risk of a husband forging his wife's signature on a mortgage of their jointly-owned property is one which (as the expert witness said) was known long before the flood of more complex mortgage frauds came to light in 1991 and 1992.

Mr Norris pointed out that under TMC's standardised documentation the same undertakings were to be given for a mortgage on initial purchase as well as for a remortgage, and that on an initial purchase the essential documents would include a transfer or conveyance executed by the vendors (of whom both the purchasers' solicitors and the lender's solicitors, if different, might know nothing). However in such a case the solicitors who knew nothing of the vendors could seek an identical undertaking (in respect of the transfer or conveyance) from the vendors' solicitors; and if the undertaking was refused, they would be on inquiry. Moreover even in the absence of an express undertaking the vendors' solicitors would normally be liable on an implied warranty of authority if on completion they handed over a transfer or conveyance with a forged signature. The finding of such a warranty depends on the facts of a particular case, but that would be a general rule: see Penn v Bristol & West Building Society [1997] 1 WLR 1356, 1360-3.

One of Mr Norris' biggest difficulties was in formulating just how the second undertaking should be read in order to avoid the unfairness which arose, on his submission, from placing weight on "properly" in the expression "will be properly executed". He said that "properly" should be limited to matters of form (and the mechanics of completion) rather than legal efficacy: the real purpose of the second undertaking, he said, was to make clear that a "Hong Kong completion" (see Edward Wong Finance v Johnson Stokes & Master [1984] AC 296) was unacceptable. That was no doubt part of the purpose, but I am not persuaded that the distinction between form and efficacy can be sustained, or that the consequences of giving weight to a word "properly" are so unreasonable as to justify a construction which largely disregards it. It does not in this factual context make the solicitors guarantors of proper execution of documents by persons who are not their clients, which was one of the points which carried weight with Millett LJ in the appeal mentioned below.

Despite Mr Norris' clear and thorough argument, I have come to the conclusion that the Judge was right on issue 2(a). I consider that he was also right on issue 2(b), that the undertaking had contractual force. Mr Norris put forward three short submissions against its having contractual force, all based on the context of the transaction, but I am not persuaded by any of them. The context was, on the contrary, that of a contractual retainer."

Robert Walker LJ also later indicated in his judgment that of the four points relied on by Millett LJ in Weeks Legg three were not apposite to the case he was considering. He regarded the principles to be extracted from that court's decision as not covering the situation which is relevant to this appeal "squarely, if at all".

There was a petition for leave to appeal the decision in Zwebner to the House of Lords which was not granted.

The decision in Zwebner is at least highly persuasive authority in support of Mr Stewart's argument on behalf of the bank. Can it be distinguished or is it binding authority which settles the outcome of this appeal? In cases involving the construction of written contracts in different terms, even where the background facts are very similar, it is not uncommon for a court to find grounds for distinguishing one case from another. However, to draw distinctions which are too fine does create uncertainty. This is a particularly important consideration where as here transactions are taking place regularly involving similar instructions.

The obvious distinctions between Zwebner and this case on the facts are that here the obligation was not to "properly execute" the documents but to obtain the signatures of Mr and Mrs Dukes and certify and not undertake that Mrs Dukes understood the document and signed it of her own free will. These do not amount to dramatic distinctions between the two cases. On the other hand it is clear that the words "properly executed" were ones to which Robert Walker LJ attached significance and they do involve a statement as to the quality of the execution which is absent in the retainer here. Furthermore for solicitors, an undertaking was of particular significance and this does not apply to a certificate.

If I was in doubt as to the right outcome of this appeal, I would not have been prepared to distinguish this case from Zwebner. However, on the facts of this case, I have no doubt that the judge came to the right decision. The obligation was not absolute. In those circumstances I do not feel constrained by the decision in Zwebner and I am not prepared to imply into the retainer the word "properly" which does not appear, nor am I prepared to assimilate a certificate with an undertaking. Lines do have to be drawn so that two cases dealing with similar facts produce different results. This is undesirable but inevitable. In my judgment the decision in Zwebner should not be given a wide application. To do so would ignore the wider consequences of our decision. If commercial institutions such as banks wish to impose an absolute liability on members of a profession they should do so in clear terms so that the solicitors can appreciate the extent of their obligation which they are accepting. Frequently this sort of task is undertaken by small firms of solicitors who are already finding it difficult to remain viable. This is partly because they are heavily burdened by the costs of insurance. If they are to be liable for very substantial sums of damages as a result of the fraud of the customers of the bank which they cannot prevent, then either they will have to withdraw from providing those services or they will have to charge for their services at a rate which is very different from that which was charged here. Neither result is in the interests of the banks or their customers or the public. The result is not in the interests of the banks' customers as they will not benefit from the explanation of the transaction from a member of the legal profession who is qualified to give that explanation. It is not in the interests of banks as they will have to pay higher fees which they may or may not seek to recover from their customers. It is not in the interest of the public because it is important that legal services are readily available and this will not be the case if small firms are unable to survive. Unless the language used in a retainer clearly has this consequence, the courts should not be ready to impose obligations on solicitors which even the most careful solicitor may not be able to meet.

Breach of Warranty

As Mr Stewart on behalf of the Bank recognises, if his submissions as to the interpretation of the retainer do not succeed, it is difficult for him to succeed on the argument based on a collateral warranty. Collateral warranties are usually relied upon by a party to the contract against a third party which is not the position here. Furthermore, having decided on a construction of the retainer (which includes a requirement to give the certificate) which is adverse to the bank it is unlikely that the court will favour an interpretation of the certificate which is in favour of the bank and conflicts with its interpretation of the retainer. The letter of 18 March instructs the solicitors to obtain the signature of Mr & Mrs Dukes. The certificate certifies that she has signed the mortgage. In view of the conclusion which I have come to as to the interpretation of the retainer as a whole, I can see no reason for coming to a different conclusion as to the interpretation of the certificate.

I would therefore dismiss this appeal.

LORD JUSTICE MUMMERY: I agree.

Construction of the Solicitors' Retainer

The excellent written and oral arguments neatly pinpoint the difference between the textual approach and the contextual approach to the construction of documents.

Both the Bank and the Solicitors correctly focus on the letter of 18 March 1988 as the key document. By that letter the Bank retained the Solicitors to act for them in connection with the execution of the mortgage of Greystones by Mrs Dukes. The Bank's case is that the terms of the letter instructed the Solicitors to obtain the signature of Mrs Dukes to the mortgage. The Solicitors accepted those instructions without qualifying or attempting to qualify them. As a matter of ordinary English the meaning of the letter is so clear that there is no justification for implying any qualification. The words mean what they say. There is no legal obstacle to a firm of solicitors agreeing to undertake to perform an obligation couched in unqualified terms. The only question is whether this is such an obligation. It is. The Solicitors did not obtain the signature of Mrs Dukes to the mortgage, as they had agreed to do. Instead they obtained a worthless signature forged by a woman impersonating Mrs Dukes. The Solicitors, in breach of contract, failed to do what they had agreed to do.

The result is that the mortgage is void.The Bank are unable to enforce it. The Solicitors are liable for all the loss which the Bank have suffered.

It would be difficult to resist this line of argument if the only material available to the court was one piece of paper recording an instruction by A to B to obtain the signature of C on a document and B agreed to do that; though, even then, as Mr Alastair Norris QC pointed out, a literal interpretation would produce unacceptable, even absurd, consequences. What if C refused to sign ? What if C died or became incompetent to sign before his signature could be obtained ? Mr Nicholas Stewart QC, for the Bank, realistically recognised that even an apparently absolute obligation on B was unlikely render B liable for breach of contract in those instances.

The real point is that the text of the letter of instruction is not the only point of reference in the exercise of construction. There is available to the court other material bearing on the question of construction of the retainer. The task of the court is not the solution of a linguistic puzzle on the meaning of a few words unstitched from their context. The court's function is to construe the retainer. It is true that, in that process, the text of the letter of instruction is the point of departure (and,ultimately,the point of return). The strength of the Solicitors' argument is that the surrounding territory visited by the court between departure and return provides objective indications of the meaning and effect of the text of the retainer.

The letter was a retainer by the Bank of a firm of solicitors to perform professional services of an advisory and ministerial kind for the Bank. Professional services provided by the Solicitors would not normally involve the guaranteeing of a result by them,such as verifying the identity of Mrs Dukes, let alone providing the Bank with what would amount to an insurance policy against the risk of fraud occurring in a transaction entered into by the Bank with its customer, Mr Dukes;a transaction about which the Solicitors were told little by the Bank and in which they had no input or influence.

The Bank agreed to lend a substantial sum to their customer. That customer was Mr Dukes. Mrs Dukes was not a customer of the Bank. She was not a client of the Solicitors retained by the Bank to obtain her signature. It is improbable that the Solicitors would agree to provide to the Bank more than the exercise of the reasonable care and skill of a competent solicitor in relation to the task to be undertaken. It was part of the Bank's case against the Solicitors that the retainer was subject to the usual implied duty of care. That implied term also governed the obligation to obtain the signature of Mrs Dukes. The judge rejected the case of negligence against the Solicitors. There is no appeal against that. The Bank's case on the appeal rests on the contention that the wording of the retainer was apt to create an absolute obligation which would be breached by the Solicitors, no matter what precautions they might have taken and what lengths they might have gone to ensure that the woman who signed the mortgage was Mrs Dukes.

For the reasons stated above and for the reasons stated by the Master of the Rolls, I am unable to accept the contention that this retainer, when construed in the context in which it was given and accepted, was intended to have that far-reaching effect.

The Authorities

The rival arguments of the parties also underline the extremely limited value of precedent on a question of the construction of a document. The Bank relied on the recent decision of the Court of Appeal in Zwebner. The Solicitors relied on another recent decision of the Court of Appeal in Weeks Legg. In the former case solicitors were held to have expressly undertaken to perform an absolute obligation. In the latter case solicitors were held to have agreed to perform a qualified obligation. Those cases are interesting illustrations of the approach of the court to the construction of a solicitor's retainer, but the respective texts and contexts were significantly different from the relevant material in this case. Neither decision governs this case.

As has been repeatedly remarked, every document must be construed according to its particular terms and in its unique setting. Detailed comparisons of one document with another and of one precedent with another do not usually help the court to reach a decision on construction. Indeed, that exercise occupies a disproportionate amount of valuable time which would be better spent on the arguments that really count: those which focus on the precise terms of the relevant documents and the illuminating environment of the transaction. The court gratefully received that assistance from Counsel on this appeal.

I would dismiss this appeal.

LORD JUSTICE MANTELL: For the reasons given by the Master of the Rolls and Mummery LJ I too would dismiss this appeal.

Order: Appeal dismissed with costs. Leave to appeal to House of Lords refused.