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A first instance Chancery decision. Oliver J said at page 402,

…I have heard the evidence of a number of practising solicitors. [The Claimant] modestly contented himself with calling one; but [the Defendant] -mindful, no doubt, of what is said to be the divine preference for big battalions – called no less than three.

I must say that I doubt the value, or even the admissibility, of this sort of evidence, which seems to be becoming customary in cases of this type.

The extent of the legal duty in any given situation must, I think, be a question of law for the court.

Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received.

But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendants, is of little assistance to the court; whilst evidence of the witnesses’ view of what, as a matter of law, the solicitor’s duty was in the particular circumstances of the case is, I should have thought, inadmissible, for that is the very question which it is the court’s function to decide.

Predictably, the witnesses differed… it would depend…upon whether there was anything in the circumstances or the instructions to direct the solicitor’s mind in that direction.

This seems to me, if I may say so, to be obvious common sense and I find nothing in the evidence of these gentlemen, helpful as they all tried to be, establishing a practice or general standard which assists me in this case.

This case was cited with approval in  Bown which appears under this tag.

Edited for ease of reading.

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