Edmunds & Ors v Stratford & Ors No. Scgrg-88-2453 Judgment No. S219

EDMUNDS & ORS V STRATFORD & ORS
[1999] SASC 219

LANDER J This is an application in Action No.2453 of 1988 by the plaintiffs to amend the plaintiffs’ statement of claim.
The plaintiffs’ statement of claim like their pleadings in Action No. 2452 of 1988 has undergone a number of amendments, no doubt by different pleaders. The end result is a most unsatisfactory document which does not, as it should, properly define the issues or give sufficient particularity. Moreover the pleading contains a number of inconsistencies. An example is the addition of the fourth plaintiff as a party in 1997. When most of the events took place it did not exist in that it was not incorporated. But the document does not discriminate between the claims made by the plaintiffs.
However, the matter has now gone too far on these pleadings and it must be to these pleadings that regard be had in a consideration of these amendments.
The present pleading claims that the defendants were engaged by the plaintiffs to give legal advice and prepare documentation pursuant to four different retainers in the pleading called the first retainer, the December 1980 retainer, the second and extended retainers [par5B]. The plaintiffs claim that the defendants are liable in tort and/or contract “for respectively work performed negligently and in breach of duty of care, beach of retainer and/or breach of fiduciary duty” [par5E].
That pleading is really a nonsense. The defendants could never be liable in tort or contract for breach of fiduciary duty. If there is a fiduciary duty they could be liable for a breach of that fiduciary duty but that is quite independent of any claim in tort or contract.
The first retainer was said to have been entered into in June 1980 [par8A]. The statement of claim then sets out what it is said the defendants did pursuant to that retainer. [pars 8B, 8C and 8D]. In par8C it is claimed that the defendants owed a duty of care, a fiduciary duty and a duty to advise when a conflict arose. It is not clear what that last mentioned duty is if it is not a fiduciary duty.
It is claimed that the defendants were in breach of that duty of care [par8F], in breach of their fiduciary duty [par8G] and in breach of the terms of the retainer [par8F]. All plaintiffs claim that the defendants were liable in those causes of action. It is difficult to conceive how the 4th plaintiff can make that claim.
Next the plaintiffs claim there was a December 1980 retainer [par8I] relating to a transfer of an authority from one plaintiff, Mr Edmunds, to a Mr Bird. It is claimed that the defendants were in breach of that retainer and the duty of care that was owed [par8K]. I am not sure what damages could conceivably flow from those breaches. Indeed it is not clear that any relief is sought in relation to the December 1980 retainer, although in par22 the statement of claim raises an ambit claim which refers to the ‘said conduct’ causing loss and damage.
The next retainer is said to have been entered into in June 1982 [par11.1]. This third retainer is somewhat curiously called the second retainer [par11.1].
That retainer it was claimed was extended. That further retainer is less curiously called the extended retainer. [par11B.1]. The terms of the extended retainer are set out in par11B.1. It is claimed in par11B.4 that the defendants were in breach of a fiduciary duty to the plaintiffs because they were in a position of conflict.
It is not said in respect of which retainer that fiduciary relationship arose or whether it arose independently. Presumably, although it is not pleaded, the fiduciary relationship arose out of the solicitor and client relationship. The fiduciary relationship gave rise, I have supposed, to fiduciary duties. The statement of claim does not say that but more importantly never asserts what fiduciary duties were owed by the defendants to the plaintiffs.
Next it is claimed that the defendants were negligent in the preparation of a letter to senior counsel [par12]. The statement of claim does not identify how the duty of care arose or the ambit of the duty of care or whether the duty was owed to all plaintiffs.
Because the 4th plaintiff was not incorporated or, at least under the direction of the first and second plaintiffs, until October/November 1982, it is difficult to see how the defendants could ever be liable to that plaintiff.
Apart from a claim of negligence in the preparation of the brief to senior counsel it is also claimed that the defendants failed to seek appropriate advice from senior counsel [pars13.10-13.16].
Next it is claimed that the defendants were negligent in that they failed to accurately communicate counsel’s advice [par15A].
Moreover the defendants, so it is claimed, were in breach of a duty owed and a breach of both the second and extended retainers in failing to produce a transfer of the plaintiff’s authority to the Fisheries Department. [pars15B and 15C].
In par18A it is claimed that the defendants were in a position of conflict and failed to give appropriate advice. It is not made clear exactly what the plaintiffs rely upon for their cause of action. I suppose it is an oblique reference to a breach of fiduciary duty.
In par20A the plaintiffs claim that the defendants were negligent and in breach of the terms of second and or extended retainer. This is followed by the particulars of the negligence and the breaches of the second and extended retainers.
The plaintiffs then plead that the defendants owed a duty of care by reason of their fiduciary relationship as the legal advisors of the plaintiff [par20B.1]. That is another nonsensical plea. If there was a retainer the defendants owed contractual obligations to the plaintiffs, or at least to those plaintiffs who had retained the defendants.
It is likely, if there was a retainer of solicitor and client, that the defendants owed the plaintiffs a duty of care. The extent of the duty owed would be measured by reference inter alia to the retainer. If there was a solicitor client relationship then it is likely that a fiduciary relationship would arise and the solicitor might owe fiduciary duties. A breach of the retainer and a breach of the duty of care would probably occur at the same time and in the same manner. A breach of fiduciary duty is different. The fiduciary duty arising out of the fiduciary relationship might be quite different to the tortious duty of care.
The pleading then continues:
“20B.2 Negligently and in breach of the fiduciary duty owed to the plaintiffs the defendants:
(a)failed to advise the plaintiffs that the defendants were in a position of conflict.
(b)... failed to advise the plaintiffs that they ought to obtain independent legal advice.
(c)... the plaintiffs repeat paragraphs 19.1-19.3.”
I think the pleader means in breach of the duty of care owed and in breach of the fiduciary duty owed etc. However, the duties are not necessarily and indeed are quite unlikely to be the same. The pleader however does not descend to particularise the two duties and how they have been separately breached.
It is that pleading which is sought to be amended. Instead of the present plea the proposed plea is introduced in the following form.
“20B.2 Negligently and in breach of their fiduciary duty owed to the plaintiffs and in breach of the second and extended retainers....”.
A number of particulars are then offered. Mr Beazley argued that to allow this amendment to this paragraph would be to effectively deprive the defendants of a reference under the Limitation of Actions Act 1936. That is because these claims are introduced as being inter alia in breach of the defendants fiduciary duty and therefore s35 of the Limitation of Actions Act would not apply. If they had been proposed to be introduced into par20A, Mr Beazley said he would have no objection because that paragraph is restricted to common law claims to which s35 applies. I do not with respect agree with that argument and I would not on account of that argument refuse the proposed amendment. The proposed particulars are no better because they are included in par20B. They will only succeed if the particulars are in fact breaches of fiduciary duty. If they are only common law breaches they are no better for being called breaches of fiduciary duty.
There are however very great difficulties with the form in which the pleading is offered. The proposed pleading not only picks up the present inadequacy in par20B.2 it compounds it.
It proposes to introduce without separate particulars not only a tortious breach of duty and a breach of fiduciary duty but breaches of two separate contracts. The duty of care is not particularised, nor are the fiduciary duties. The terms of both retainers are not particularised.
The pleading supposes without discrimination that the defendants at the one time breached a duty of care, a fiduciary duty and two separate contracts.
The pleading as it presently exists is confusing. The proposed pleading is even more confusing and will not be allowed.
I am conscious that the present pleading is infected with a confused admixture of alleged causes of action but that is no reason to allow the plaintiffs to add to those pleas.
I would not allow the proposed pleading for the further reason that it fails to give proper particulars of the alleged breaches.
Next the plaintiffs seek to amend the statement of claim to include particulars of material facts which are said to underlie the plaintiffs’ claim, in so far as it is necessary, for an extension of time.
The proposed particulars claim that on 10 September 1997 the plaintiffs (and it must be assumed all of them) first became aware of the matters pleaded in the particulars. The particulars are deficient in that they do not disclose whether all plaintiffs and, in relation to the corporate plaintiffs, who on behalf of that company came into possession of the information. Nor do they disclose who conveyed the information and the circumstances in which the information was given and received.
However these matters are clear enough from the plaintiffs opening and evidence already adduced so I would be disposed, notwithstanding the inadequacy of the particulars in the pleading, to allow par24.
The plaintiffs seek to amend to include a new par25. It relates only to the 4th plaintiff and pleads an entitlement on the part of that plaintiff to an extension of time. I propose to allow that amendment.
In summary therefore the application to amend the statement of claim is allowed but only for the purpose of amending par24 by including the particulars, and by the addition of par25 both as proposed in the proposed amendment. Otherwise the application is dismissed. There will be leave to amend accordingly.

[1999] SASC 219

28 May 1999