Once again a solicitor has been judged negligent for not giving advice which he was not asked to give (Mortgage Express Ltd v Bowerman & Partners [1994] The Times,19 May).This case raises a point of great significance to commercial conveyancers and our relationship with commercial clients.In the case, the defendant solicitors acted for a Mr Hadi and his financiers, Mortgage Express, whose express instructions, it seems, were faithfully followed.Mrs Justice Arden, deciding the case in the Chancery Division, pointed out that there was no criticism whatever of the integrity of Anthony Gilroy, the partner handling the matter.

Why then was his firm, Bowermans, sued?In his capacity as Mr Hadi's solicitor, Mr Gilroy found out that the property (in Queensway, London W2) had recently been bought by the seller for £150,000 while Mr Hadi was to pay £220,000 - £180,000 or so coming from the plaintiffs.He also discovered that another recent transaction had taken place before that, at a lower (but unknown) price.All this happened not in the present age, but in 1990.A professional valuation had been carried out for Mortgage Express, which sent a copy to Mr Hadi.

It valued the property at £199,000.

It can surely be assumed that the plaintiff, with a name like Mortgage Express, was experienced in lending money on the security of property, if nothing else.According to the report in The Times: 'Mr Gilroy knew the plaintiff...had relied on the valuation.' All now agree that a true valuation at the time would have been £120,000.Mr Gilroy warned Mr Hadi that his purchase was to be by way of sub-sale and that his seller was making a big profit.

But, as far as concerns Mortgage Express, he merely complied with the written standard instructions he had received from them.In her judgment, the judge stressed that Mortgage Express had the right to withdraw from the transaction.

It 'did not expressly seek advice on whether it should' do so, but 'by implication' Bowermans 'was entitled and bound' to bring to its attention matters which (as they should have known) would be material to Mortgage Express in deciding whether to withdraw.According to the reported judgment, the fact that Mr Hadi was prepared to allow his vendor to take an immediate profit of £70,000 should have raised doubts in Mr Gilroy's mind.

Doubts? The plaintiffs did not allege that the difference in price, or Mr Hadi's acceptance of it, ought to have put him on enquiry as to Mr Hadi's honesty.Then what? Well, Mr Gilroy should have had doubts about the valuation, according to the judgment.

He should have passed on the information giving rise to those doubts to Mortgage Express.

They would have obtained another valuation, and the whole calamity would have been avoided.As you might have guessed, Mr Hadi defaulted, upwards-only values spluttered to an end, and the property was sold for £96,000, leaving Mortgage Express nursing a big loss.We know all about conflict of interest and, if mortgagees come to be separately represented, there will be fewer occasions upon which solicitors get caught in this kind of mess.The problem, however, lies at the root of the relationship between commercial conveyancing solicitors and their clients.

A client like Mortgage Express has some commercial acumen, or it could not be in business.

The same is true of every enterprise that makes a business of developing, investing or dealing in property.

We form a view as to the extent to which our clients rely on us and respond accordingly.The instructions we get from commercial mortga ge lenders are generally clear and precise.

All want a marketable title, but most seek specific additional reassurance, often regarding matters which do not affect title at all - such as whether the borrower is finding the balance of the money from his or her own resources.Are we supposed to compile, and answer, a further list of unasked questions to be implied into every such set of instructions? It seems so, from this judgment.That way lies either ruin for us or a huge and unnecessary increase in time spent and fees incurred for our clients.

Probably both.We need to explain to our commercial clients that we will guide them and guard them but that we feel sure that they do not - do they? - really want us to enter the guessing game and give (paid) advice for which they have not asked.