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able to obtain will necessarily achieve the level of protection the client
wishes to have. As Mr. Murdoch observed in his testimony,
negotiations are by their nature always a matter of give and take. A
solicitor can only attempt through his negotiating skill to minimize his
client’s risk. But the extent to which he can do so will invariably
depend on the terms he is able to obtain. Some solicitors are, of course,
better negotiators than others.
[32]
I do not consider a solicitor can be held to have been negligent
in the conduct of negotiations because he did not obtain a term that, at
a later time, is said may have been available. It is not necessary to
consider what the solicitor’s position would have been here if the term
had been available. The most that could be said is that Mr. Dangerfield
may have been able to obtain North American’s agreement to give
Sports Pool executed notices of assignment and directions to pay at
the time the Guarantee Agreement was executed. Mr. Dangerfield
acknowledged he knew of no reason that could not have been done,
but there is, however, no evidence North American would have
agreed. Indeed, Mr. Dangerfield was told by Mr. Clarance that North
American had reservations about the subdistributors being directed to
pay a third party like Sports Pool. It had not been done before in North
American’s experience in dealing with the subdistributors and there
was concern the subdistributors would become alarmed about not
paying directly to North American.
…
[34]
I consider the burden of the duty owed by a solicitor who
undertakes the negotiation of an agreement lies in his ensuring the
client understands the implications of the terms to be agreed to the
extent necessary to enable the client to make an informed decision as
to whether to proceed with the transaction. Of utmost importance is
the client’s appreciation of the contractual risks and consequent
financial exposure arising on the terms of the agreement, and of less
risky alternatives that might be available. At least as a general
proposition, a client who properly understands an exposure, and who
proceeds with a transaction, cannot later be heard to complain his
solicitor failed him in respect of the terms obtained in the negotiations
the solicitor conducted. It is then a question of advice: did the solicitor
meet the requisite standard of care in advising his client on the terms
of the agreement?
[35]
It follows that I do not consider Mr. Dangerfield can be said
to have been negligent in failing to obtain terms that would have
afforded Sports Pool better protection in respect of the risk inherent in
clause 7.3 of the Guarantee Agreement. In my view, the judge’s
conclusion was predicated on a misapprehension of Mr. Dangerfield’s
function that is fundamental to the finding of negligence made in this
regard.