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Professional Negligence - 1985- 1989

Professional Negligence Law. See also under other headings for professional groups Legal professions and Health Professions.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 16 cases, and was prepared on 21 October 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
Maynard -v- West Midlands Regional Health Authority; HL 1985
Wilsher -v- Essex Area Health Authority; CA 1986
Predeth -v- Castle Phillips Finance Co Ltd [1986] 2 EGLR 144
1986

Professional Negligence Casemap
1 Citers
A mortgagee who sold by private treaty at a discount in order to achieve a quick sale, instead of offering the property at market value, was held to have breached his duty.
Wilsher -v- Essex Area Health Authority; HL 24-Jul-1986
Governors of the Hospital of Sick Children -v- McLaughlin & Harvey plc (1987) Con LR 25
1987

Professional Negligence
1 Citers
County Personnel (Employment Agency) -v- Pulver (Alan R) & Co [1987] 1 All ER 289
1987
CA
Professional Negligence, Damages Casemap

The parties were negotiating for an under-lease. The lease provided for rent to increase along with rent reviews under the head lease. The solicitors failed to ascertain the rent under the head lease, to advise his client to have the property valued, or to explain the unusual clause. The rent was reviewd to an uneconomic rent, and the client sued his solicitor for negligence. He appealed dismissal of his claim. Held: The solicitor was negligent. In exercising reasonable professional judgement he should have alerted his client to the consequences of the unusual clause. As to damages, the court was not restricted to the diminution in value. The plaintiff was entitled also to the costs of surrender and possibly to the cost of a lease whch would be saleable.
Redman -v- Allied Irish Bank [1987] 2 FTLR 264
1987

Saville J
Banking, Professional Negligence Casemap
1 Citers
The duty of care of a banker to its customer is in "interpreting, ascertaining and acting on" instructions given pursuant to the mandate. A bank is not under a concomitant duty to volunteer to its customer advice about the wisdom of a particular transaction.
Robertson -v- Nottingham Health Authority; CA 1987
D W Moore and Co Ltd -v- Ferrier [1988] 1 WLR 267; [1988] 1 All ER 400
1988
CA
Neill LJ, Bingham LJ
Professional Negligence, Damages, Limitation
1 Cites

The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied that the action was out of time. Held: The purpose of the covenant was to protect the plaintiff's goodwill. That goodwill was damaged as soon as the agreements were executed, since the company lost its protection immediately. The action was out of time and failed. the cause of action against the solicitors accrued when the contract was entered into: "[S]o long as there was any risk that one of the first plaintiff's two directors might leave . . to establish a competing business, there must necessarily have been a depressive effect on the value of the first plaintiff's business." Whether any action later arose went as to quantification of the damage, and did not go as to the existence of the cause of action: "it is a question of fact in each case whether actual damage has been suffered."
Bingham LJ said: "On the plaintiffs' case, which for the purposes of this issue may be assumed to be wholly correct, the covenants against competition were intended, and said by the defendants, to be effective but were in truth wholly ineffective. It seems to me clear beyond argument that from the moment of executing each agreement the plaintiffs suffered damage because instead of receiving a potentially valuable chose in action they received one that was valueless."
Whiteoak -v- Walker (1988) 4 BCC 122
1988
ChD
Terence Cullen QC
Professional Negligence

The articles of association of a private company provided for shares to be valued by the auditor. The plaintiff transferred shares at a price fixed by the auditor, and subsequently alleged that the valuation was negligently made. One of the issues between the parties was whether the requisite standard of skill and care was that of a reasonably competent chartered accountant who professed specialist skills in valuing unquoted shares ("the specialist standard") or that of a reasonably competent chartered accountant in general practice acting as an auditor who has agreed to a request to undertake the valuation task ("the auditor standard"). Held: In favour of the latter, the choice facing the members of the company, when agreeing to the terms of the articles of association, was between opting for the specialist skills of a share valuer and the special knowledge of the company’s affairs that the auditor would have. As they were seeking a fair result, as to which a specialist share valuer would not have a special advantage over their own auditor, they intended the auditor to apply his skills and not the skills of a specialist share valuer.
Clarke -v- Bruce Lance & Co [1988] 1 All ER 364; [1988] 1 WLR 881
1988
CA
Professional Negligence, Wills and Probate Casemap

1 Citers
The defendant solicitors drafted a will, which the testator drew up and signed. The testator later granted a lease of property which had benn disposed of in the will, and then granted an option for its purchase at a fixed price, which the solicitors handled. The property had increased in value by the time of the death, and the beneficiary sued alleging negligence. Held: A solicitor had no duty of care to a beneficiary when arranging a transaction subsequent to the will which would adversely affect the value of the gifted property.
Al-Kandari -v- J R Brown & Co [1988] 1 QB 665; [1988] EWCA Civ 13; [1988] 1 All ER 833
1988
CA
Donaldson L MR, Dillon LJ, Bingham LJ
Professional Negligence, Legal Professions
1 Cites
1 Citers
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the children. Held: The court should be prepared to find a duty of care on the part of someone who undertook to act in a particular capacity to the plaintiff and to the court as custodian of the plaintiff’s children’s passports, notwithstanding that the solicitor also owed a conflicting professional duty of care to his client. He had accepted a duty to act as an independent custodian of the passport subject to te direction of the court and the joint directions of the parties, and in that capacity owed the opposing party a duty to take reasonable care to keep the passport in his possession (save as the opposing party might otherwise agree) and to inform it if for any reason it ceases to be in his possession.
[ Bailii ]
DW Moore & Co Ltd -v- Ferrier [1988] 1 WLR 267; (1988) 1 All ER 400
1988
CA
Neill LJ, Bingham LJ, Kerr LJ
Professional Negligence, Limitation
1 Cites
1 Citers
A solicitor was instructed to prepare an agreement providing for the introduction of a new working director into an insurance broking business carried on by a company. His instructions called for the new director to enter into a restrictive covenant which would take effect on his leaving the business. Through careless drafting the covenant was ineffective. The agreement (entered into in 1971 and renewed with the same defect in 1975) continued until 1980 when, on the director's departure from the business, the covenant was found to be defective. The company issued a writ against the solicitors in 1985. The appellant plaintiff argued that a defective covenant or similar legal document was a mere defect or weakness, that only ripened into relevant damage when the client actively and unsuccessfully sought to rely upon it. Held. The plaintiff's argument and appeal was rejected. The measure of damages was the measure sometimes loosely referred to as the contract or warranty measure. Had the solicitor done his job properly the plaintiffs would have obtained the benefit of an effective restraint of trade covenant. As it was, they received a worthless covenant. They suffered damage when the transaction was entered into. The limitation period ran from the date of a negligently drafted contract. However, each such case depended upon its own facts.
Bingham LJ said that if the liability is for the difference between what the plaintiff got and what he would have got if the defendant had done what he was supposed to have done, it may be relatively easy, to infer that the plaintiff has suffered some immediate damage, simply because he did not get what he should have got and: "On the plaintiffs' case, which for purposes of this issue may be assumed to be wholly correct, the covenants against competition were intended, and said by the defendants, to be effective but were in truth wholly ineffective. It seems to me clear beyond argument that from the moment of executing each agreement the plaintiffs suffered damage because instead of receiving a potentially valuable chose in action they received one that was valueless." and
"If, in a contractual claim for negligence, the court would have awarded other than nominal damages, I do not see how it can be said that an action in tort based on the same negligence would have been bound to fail for want of any damage as an essential ingredient of the cause of action."
Neill LJ said: "In the present case the judge rightly rejected the notion that where a solicitor gives negligent advice, damage is presumed to occur at the time when the advice is acted upon. I am satisfied that there is no such presumption. It is a question of fact in each case whether actual damage has been established." and
"The plaintiffs suffered damage 'because [they] did not get what [they] should have got.' The plaintiffs' rights under the two agreements were demonstrably less valuable than they would have been had adequate restrictive covenants been included." He continued: "it is a question of fact in each case whether actual damage has been suffered."
Hotson -v- East Berkshire Health Authority; HL 02-Jul-1988
Minton -v- Kenburgh Investments (Northern) Ltd (In Liquidation)
13 Nov 1988
QBD
Professional Negligence Casemap

Smith -v- Eric S Bush, a firm etc; HL 20-Apr-1989

All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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