Summary

The warranty that a solicitor gave was that he had a client who had instructed him to assert or deny the claims made in the proceedings against the opposing party. He did not warrant that the client had the name by which he appeared in the proceedings. As a matter of principle it would not be right to impose strict liability on a solicitor for incorrectly naming his client.

Facts

The appellant (M) appealed against the decision ((2005) EWHC 35 (Comm); (2005) 2 Lloyd's Rep 129) that it was a party to certain arbitration proceedings and the solicitors who had successively acted for M in the arbitration appealed against the judge's finding that they had been in breach of a warranty that the client for whom they acted bore the name in which they pursued the proceedings. The claimant (S) had purchased the total shareholding in an insurance company, Interlife. One of the vendors of its holding in Interlife was a company (X). X later transferred its rights under the Interlife sale agreement to a subsidiary Y. Subsequently X ceased to exist after merging with M, its parent company. The sale of Interlife gave rise to disputes between S and the vendors which led to arbitration proceedings. Those proceedings were brought in the name of X as a claimant and not that of M which by then had succeeded to the claim. S later queried whether X still existed. M then instructed its solicitors that the name of the claimant in the proceedings should be changed from X to M and the solicitors informed S accordingly. Subsequently M asserted that neither it nor X was or had ever been a party to the arbitration proceedings and that its solicitors had never been authorised to act for it or for X. The judge determining preliminary issues held that M was a party to the arbitration and that the arbitration was not a nullity and further held that the solicitors who had successively acted for M had not been in breach of their warranty of authority but had been in breach of a more limited warranty that the client for whom they acted bore the name in which they pursued the proceedings.

Held

(1) The solicitors' instructions had originated from a director of X (H) who had subsequently become a director of Y. The judge had been entitled to hold that H had continued to have actual authority to handle the dispute with S even after he had ceased to be a director of X. In any event H had had ostensible authority after that date to act in relation to Interlife for X and for M. Further by its later actions M ratified the actions of H in making X and thus its successor M a party to the arbitration. By that conduct M submitted to the jurisdiction of the arbitration tribunal and was estopped from contending otherwise. M was therefore a party to the arbitration in its own right, even if it did not succeed to the position in the arbitration of X. (2) The proceedings commenced against S had been brought jointly by the Interlife vendors. The fact that the title of the proceedings did not record that the relevant vendor, X, had transferred its rights to M was a mere misnomer, Sardinia Sulcis (1991) 1 Lloyd's Rep 201 and Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd (2005) EWCA Civ 134 , (2005) 1 WLR 2557 applied. The arbitral proceedings were not a nullity. (3) The warranty which a solicitor gave was that he had a client who had instructed him to assert or deny the claims made in the proceedings against the opposing party. He did not warrant that the client had the name by which he appeared in the proceedings. As a matter of principle it would not be right to impose strict liability on a solicitor for incorrectly naming his client, Nelson v Nelson (1997) 1 WLR 233 considered. The judge reached the wrong conclusion on that point and the solicitors' appeal was allowed.

Judgment accordingly.