Not only had the solicitor not spotted the absence of a non-compete covenant, but might not even have had the time to do so since the couple were in a great rush to sign up and get the pub in time to cash in on the trading opportunities represented by Easter, Mothers' Day and the May bank holidays.
That was the bad news. After that, things took a turn for the better. Said the judge, since the couple were determined to proceed with the transaction as quickly as possible and were convinced that they would make a success of the business, taking no advice from any professional valuer of either the business or the premises before making an offer, it was clear that even if the solicitor had drawn to their attention the absence of any restraint of trade covenant, they would still have gone ahead with the acquisition. He added that they would neither have tried to negotiate for a covenant nor withdrawn from the purchase. In other words, his negligence had not caused their loss.
This blogger is sure that readers need no reminder that we are all -- lawyers and clients alike -- working to a great extent under the pressures of time. Some of these pressures are imposed from outside, such as the duty to file responses in trade mark and patent office actions and in litigation, attending to tax returns, paying utility bills, renewing insurance policies and the like. Other pressures are of our own or our clients' making: here the pressure was caused by the client's desire to take over a business in time to cash in on a lucrative trading period. Sometimes it can be the need to clear one's desk ahead of a long-planned holiday (or the need to get something done before a colleague or secretary goes away). Either way, pressure of time is bound to fall hardest on small and sole practices, where there is little or no assistance or margin of error.