Henderson v Dorset Healthcare University NHS Foundation Trust: QBD 19 Dec 2016

Jay J
[2016] EWHC 3275 (QB)
Bailii
England and Wales
Cited by:
See AlsoHenderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 27 January 2022; Ref: scu.572640

Adams and Others v Atlas International Property Services Ltd and Others: QBD 5 Dec 2016

‘The Claimants were purchasers of properties in Spain who paid the purchase price, but did not acquire title to their properties. They now sue the English agents and the Spanish lawyers who were involved in the purchases, alleging negligence, breach of fiduciary duty and unlawful means conspiracy.’

Lavender J
[2016] EWHC 3120 (QB)
Bailii
England and Wales

Professional Negligence

Updated: 27 January 2022; Ref: scu.572342

Assicurazioni Generali Spa v Arab Insurance Group (BSC): CA 13 Nov 2002

Rehearing/Review – Little Difference on Appeal

The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. Tanfern was limited to appeals from interlocutory orders. The judge had seen the witnesses, and his assessment was to be interfered with only with great caution. It was not suggested here that the evidence should be reheard.
To prove inducement the insurer or reinsurer must show that the non-disclosure or misrepresentation was an effective cause of his entering into the contract on the terms on which he did. The judge was correct that ARIG had not shown that, if it had known the full facts, it would not have entered into the contracts or would have taken some other share. There was no basis for the court to interfere with that conclusion.
Ward LJ (dissenting) said: ‘I take the law to be this: if it be established that the representee did not allow the representation to affect his judgment in any way then he could not make it a ground for relief. If on the other hand the representee relied on the misrepresentation, then the representor cannot defeat his claim for relief by showing that there were other more weighty causes which contributed to his decision to enter into the contract. In this field the Court does not allow an examination of the relative importance of contributory causes. In other words, it is sufficient if the representation is a cause even if it is not the cause operating on the mind of the representee when he enters into the contract’.
Ward LJ discussed the difficulties of an appeal court reviewing a trial judges finding of fact, saying: ‘Bearing these matters in mind, the appeal court conducting a review of the trial judge’s decision will not conclude that the decision was wrong simply because it is not the decision the appeal judge would have made had he or she been called upon to make it in the court below. Something more is required than personal unease and something less than perversity has to be established . . I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible. The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow. Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with the evaluation of those facts.’
Clarke LJ said: ‘The approach of the court to any particular case will depend upon the nature of the issues kind of case determined by the judge. This has been recognised recently in, for example, Todd v Adams and Chope (trading as Trelawney Fishing Co) [2002] 2 Lloyd’s Rep 293 and Bessant v South Cone Inc [2002] EWCA Civ 763. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.
In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a ‘rehearing’ under the Rules of the Supreme Court and should be its approach on a ‘review’ under the Civil Procedure Rules 1998.
Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.
In Todd’s case [2002] 2 Lloyd’s Rep 293, where the question was whether a contract of service existed, Mance LJ drew a distinction between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts, as follows, at p 319-320, para 129:
‘With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of ‘review’ may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment – such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52.11(3)(4) to the power of an appellate court to allow an appeal where the decision below was ‘wrong’ and to ‘draw any inference of fact which it considers justified on the evidence’ indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious.’ . . Neuberger J stressed that the question whether there was a contract of service on the facts involved the weighing up of a series of factors. Thorpe LJ agreed with both judgments.’

Ward, Clarke LJJ, Sir Christopher Staighton
Times 29-Nov-2002, Gazette 23-Jan-2003, [2002] EWCA Civ 1642, [2003] 1 WLR 577, [2003] Lloyds Rep IR 131, [2003] 1 All ER (Comm) 140
Bailii
Civil Procedure Rules 52.11
England and Wales
Citing:
ExplainedTanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
CitedIn re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
CitedSS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
CitedThe Ikarian Reefer CA 1995
The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
CitedAkerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
CitedTodd and Others v Adams and Another CA 18-Apr-2002
The boat owners had failed to comply with the 1975 safety rules, and seamen died. The boat owners relied upon the restriction on damages in the 1995 Act, and the seamen’s families argued that the failure to apply the safety rules removed that . .
CitedBessant and others v South Cone Incorporated; in re REEF Trade Mark CA 28-May-2002
The Reef pop group applied to register ‘REEF’ for Classes 25 and 26 – e.g. T-shirts, badges, etc. South Cone opposed them as registered proprietors of ‘Reef Brazil’ for the footwear which also was included in Class 25. South’s reputation was . .
CitedMehdi Norowzian v Arks Ltd and Guinness Brewing Worldwide Limited (No 2) CA 11-Nov-1999
The claimant film artist showed a film to an advertising agency, who did not make use of it, but later appeared to use techniques and styles displayed in the film in subsequent material sold to third parties.
Held: A film was protected as a . .
CitedSt Paul Fire and Marine Insurance Co (UK) Ltd v McConnell Dowell Constructors Ltd CA 1995
The court discussed the general principles as to the meaning of ‘inducement’ in the context of insurance contract.
Held: If the three underwriters who gave evidence had been told the truth, on no view would they have underwritten the insurance . .
CitedJEB Fasteners Ltd v Marks, Bloom and Co CA 1981
Accountants prepared audited accounts knowing that the company was in financial difficulties, and the the accounts would be relied upon by the plaintiffs.
Held: The accountants owed a duty of care to the plaintiffs. They knew that they would . .
CitedSmith v Chadwick HL 18-Feb-1884
Unclear Words Insufficient as Representation
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a . .
CitedEdgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .
CitedRedgrave v Hurd CA 1881
The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the . .
CitedAbrahams v Mediterranean Insurance and Reinsurance Co Ltd 1991
. .
CitedJoyce v Yeomans CA 1981
The court discussed how an appellate court should defer to the assessment of a judge at first instance of the value of an expert witness.
Brandon LJ said: ‘even when dealing with expert witnesses, a trial judge has an advantage over an . .
CitedPan Atlantic Insurance Co Ltd and Another v Pine Top Insurance Co Ltd HL 27-Jul-1994
The plaintiff had written long term (tail) insurance. The defendant came to re-insure it. On a dispute there were shown greater losses than had been disclosed, and that this had been known to the Plaintiff.
Held: ‘material circumstance’ which . .
CitedThe Glannibanta CA 1876
‘Now we feel, as strongly as did the Lords of the Privy Council in the cases just referred to [The Julia 14 Moo P.C. 210 and The Alice L.R. 2 P.C. 245], the great weight that is due to the decision of a judge of first instance whenever, in a . .
CitedNocton v Lord Ashburton HL 1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
CitedBiogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .

Cited by:
CitedMerer v Fisher and Another CA 13-May-2003
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
CitedDP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
CitedSinclair Roche and Temperley (A Firm) v Somatra Ltd (Damages) CA 23-Oct-2003
The ‘Somatra’ was lost at sea. The insurance claim had been refused on the basis that the ship was unseaworthy. The owners came to instruct the appellant solicitors to represent them in the insurance claim. Having lost confidence in the solicitors, . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedRowland v The Environment Agency CA 19-Dec-2003
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
CitedIS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
CitedHarding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
CitedPrecis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
CitedBathurst (As Administrator of the Estate of Michael David Bathurst Deceased) v Scarborow CA 1-Apr-2004
The deceased and defendant had been partners and friends. They had bought a property expressly for the partnership and was conveyed into their names as joint tenants.
Held: The declaration in the partnership was not itself sufficient cogent . .
CitedA v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
CitedLondon Borough of Southwark v Kofi-Adu CA 23-Mar-2006
The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. . .
CitedAIC Ltd v ITS Testing Services (UK) Ltd (‘the Kriti Palm’) CA 28-Nov-2006
The defendant appealed a finding of deceit. Having issued its certificate as to the quality of a cargo of gasoline, it then failed to disclose to the party who had paid it to produce the certificate, information it had which cast doubt on the . .
CitedNorwich Union Insurance Ltd v Meisels and Another QBD 9-Nov-2006
The claimants sought payment for water damage under their policies. The insurer alleged non-disclosure. The judge had found the claimants to be honest, and criticised the defendants witnesses. The claimants had been involved in companies which had . .
ApprovedDatec Electronics Holdings Ltd and others v United Parcels Services Ltd HL 16-May-2007
The defendants had taken on the delivery of a quantity of the claimant’s computers. The equipment reached one depot, but then was lost or stolen. The parties disputed whether the Convention rules applied. UPS said that the claimant had agreed that . .
CitedLondon Borough of Lewisham v Malcolm and Disability Rights Commission CA 25-Jul-2007
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
CitedHaw and Another v City of Westminster Magistrates’ Court Admn 12-Dec-2007
The defendants appealed convictions for contempt of court, on the basis of having wilfully interrupted the court. The respondent said that no appeal lay.
Held: The statute was ambiguous, and ‘there can be no good reason why a person convicted . .
CitedBarlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
CitedAli v Birmingham City Council CA 7-Nov-2008
The Council said that it had discharged its duty to house the claimants after they had refused an offer of accommodation, and that decision had been reviewed. The claimant denied receiving a notice under the procedure. The court was asked whether . .
CitedAlford v Cambridgeshire Police CA 24-Feb-2009
The claimant police officer had been held after an accident when he was in a high speed pursuit of a vehicle into the neighbouring respondent’s area. The prosecution had been discontinued, and he now appealed against rejection of his claims for . .
CitedBrennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
CitedCharania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
CitedGarratt v Saxby CA 18-Feb-2004
There had been a Part 36 offer to settle the action. It was disclosed inadvertently to the judge.
Held: There had been no serious procedural irregularity, and fairness and justice did not require a rehearing before different judge. . .
CitedHussain v Hussain and Another CA 23-Oct-2012
The claimant appealed against rejection of his claim for damages after a car accident. The defendants argued that the claim was fraudulent. The defendant driver had been involved in other collisions found to be fraudulent. The claimant appealed . .
CitedDresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .
CitedGladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
CitedWhitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
CitedHome Office v Lowles CA 29-Jul-2004
The defendant appealed against finding of liability. The claimant, an officer ar Armley Prison had been redirected to a side entrance. There was a ramp, but at the top was a two inch step. The parties had disputed the exact circumstances of the . .
CitedPlevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .
CitedFortune and Others v Wiltshire Council and Another CA 20-Mar-2012
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .
CitedMichalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
CitedShagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .
CitedActavis Group Ptc EHF and Others v Icos Corporation and Another SC 27-Mar-2019
The court considered: ‘the application of the test of obviousness under section 3 of the Patents Act 1977 to a dosage patent. In summary, a patent, whose validity is not challenged, identified a compound as an efficacious treatment but did not . .

Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Professional Negligence, Insurance, Litigation Practice

Leading Case

Updated: 23 January 2022; Ref: scu.178103

Connell v Odlum: 1993

(New Zealand Court of Appeal) Prior to his marriage to W, the claimant wished to enter with her into an agreement of which the statutory effect would be to contract them out of the law’s general provisions for the making of financial adjustments between them in the event of separation. Pursuant to one of the statutory requirements, the defendant, who was W’s solicitor, certified that, prior to her signing the agreement, he had explained its effect to her. Following separation a judge found that he had not explained its effect to her and held that the agreement was void. The agreement settling their ancillary affairs was found to be invalid after the wife’s solicitors had failed properly to explain its effect to her. The husband sued her solicitor in negligence. The solicitor applied to have the claim struck out on the basis that he owed no duty of care to the husband in advising the wife. He did not succeed before the High Court and appealed.
Held: The husband had an arguable claim against the solicitor, so that the application to strike out was properly declined. The solicitor had in effect stepped outside his role as his client’s solicitor and accepted with the act of certification a direct responsibility to the other party to the agreement. Once a solicitor has assumed the obligation under the New Zealand statute to certify its requirements have been met, he or she has ‘undertaken a duty which is ‘separate and different’ from their professional duty to their client and one which they must contemplate will be relied upon by the other party to the agreement.’
Thomas J explained that the claimant had relied, and had been expected by the defendant to rely, on the certificate as a feature of the validity of the agreement and that there had been the necessary assumption of responsibility towards him on the part of the defendant.

Thomas J
[1993] 2 NZLR 257
England and Wales
Cited by:
CitedConnolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 22 January 2022; Ref: scu.424849

KA and Another v East Midlands Ambulance Service NHS Trust: CA 12 Apr 2016

Renewed application for permission to appeal against an order made on 27 November 2015 whereby he ordered that there be judgment for the second claimant for damages to be assessed. The second claimant was the child born of his mother, the first claimant, following antenatal emergency which was found to have caused the subsequent devastating injuries to the child which are lifelong.

Macur LJ
[2016] EWCA Civ 647
Bailii
England and Wales

Personal Injury, Professional Negligence

Updated: 22 January 2022; Ref: scu.568599

Hucks v Cole: CA 1968

(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin.
Held: The defendant was negligent. There was a lacuna in professional practice and that the defendant had knowingly taken an easily avoidable risk which elementary training had instructed him to avoid. As, in the court’s judgment, there was no proper basis for the practice of not giving penicillin it was not reasonable for the medical practitioner to expose his patient to that risk.

In cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence.
Sachs LJ said: ‘When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna-particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr. Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.’

Sachs LJ, Denning MR, Diplock LJ
[1993] 4 Med LR 393, Times. 9 May 1968
England and Wales
Cited by:
CitedBolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
CitedAB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
CitedHannigan v Lanarkshire Acute Hospital NHS Trust SCS 21-Sep-2012
Opinion – The pursuer alleged negligence in the defenders conduct of a hysterectomy. . .
CitedEcclestone v Medway NHS Foundation Trust QBD 12-Apr-2013
. .
CitedICL Tech Ltd v Johnston Oils Ltd SCS 25-Sep-2013
. .
CitedCoyle v Lanarkshire Health Board SCS 24-Oct-2013
. .
CitedDineley v Lothian Health Board SCS 29-Aug-2007
Opinion . .
CitedMagill v Royal Group of Hospitals and Another QBNI 28-Jan-2010
. .
CitedMinistry of Justice v Carter CA 18-Jun-2010
. .
CitedGanz v Childs and Others QBD 11-Jan-2011
. .
CitedWisniewski (a Minor) v Central Manchester Health Authority CA 1-Apr-1998
Whether there existed a respectable body of medical opinion which would have taken the same steps as the doctor, leaving in the circumstances, the baby with d irreversible damage to his brain in the 13 minutes immediately prior to his birth at . .
CitedDougan v Lanarkshire Acute Hospitals NHS Trust OHCS 3-Apr-2001
. .
CitedMirza v Birmingham Health Authority QBD 31-Jul-2001
The claimant had undergone heart surgery as an infant in 1976, and claimed damages for professional negligence. The procedure involved a dangerous procedure, a resection of coarctation. As a consequence, the Claimant suffered a number of problems . .
CitedHonisz v Lothian Health Board and others SCS 10-Feb-2006
Inner House . .
CitedScott v Lothian University Hospitals NHS Trust SCS 13-Jun-2006
Outer House . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 22 January 2022; Ref: scu.183813

Johnson v Gore Wood and Co: HL 14 Dec 2000

Shareholder May Sue for Additional Personal Losses

A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder to seek damages against advisers to a limited company, where the loss claimed was over and above that suffered by the company. Damages for distress should not normally be awarded in an action for breach of contract. The public interests in the claimant bringing one action to recover all his losses remained appropriate, but must not be applied mechanically. A settlement in favour of the company, need not release the defendant from an action by the shareholder. Asking whether a plea raised or an issue challenged amounted to an abuse of process required a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not . . It is preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.
Lord Hutton said: ‘where a shareholder is personally owed a duty of care by a defendant and a breach of that duty causes him loss, he is not debarred from recovering damages because the defendant owed a separate and similar duty of care to the company, provided that the loss suffered by the shareholder is separate and distinct from the loss suffered by the company. ‘
Lord Bingham of Cornhill said: ‘But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.’

Lord Bingham of Cornhill Lord Goff of Chieveley Lord Cooke of Thorndon Lord Hutton Lord Millett
Gazette 05-Jan-2001, Times 20-Dec-2000, Gazette 22-Feb-2001, [2000] UKHL 65, [2001] 2 WLR 72, [2001] 1 All ER 481, [2002] 2 AC 31
House of Lords, Bailii
England and Wales
Citing:
ExplainedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
ApprovedGleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
CitedGreenhalgh v Mallard CA 1943
The court said of certain pre-emption provisions: ‘in the case of the restriction of transfer of shares I think it is right for the court to remember that a share, being personal property, is prima facie transferable, although the conditions of the . .
CitedYat Tung Investment Co Ltd v Dao Heng Bank Ltd PC 1975
Restraint of Second Action as Abuse
Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . .
CitedAmalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA 1982
The court explained the nature of an estoppel by convention.
Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
CitedBrisbane City Council v Attorney General for Queensland PC 1978
Lord Wilberforce approved Somervell LJ’s words in Greenhalgh: ‘This is the true basis of the doctrine in Henderson v Henderson and it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party . .
CitedHunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
CitedBragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd CA 1982
The court considered the ability to prevent relitigation of issues already decided. The Court identified some of the limits of the abuse jurisdiction. Kerr LJ said: ‘To take the authorities first, it is clear that an attempt to relitigate in another . .
CitedAshmore v British Coal Corporation CA 1990
The plaintiff was one of many female employees who complained to the industrial tribunal that she was paid less by the defendant than her male counterparts. Sample cases were selected for trial and the others stayed pending a decision. It was an . .
CitedVervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
CitedHouse of Spring Gardens v Waite CA 1991
The principle of abuse of process is capable of applying where the relevant earlier proceedings have taken place before a foreign court (Ireland). In this case the defendants argued that the judgment obtained in Ireland had been obtained . .
CitedArnold v National Westminster Bank Plc HL 1991
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
CitedTalbot v Berkshire County Council CA 23-Mar-1993
In a motor accident, both driver and passenger were injured. The passenger sued the driver. The driver’s insurers, without notice to the driver, made a third party claim against the Berkshire County Council, claiming contribution as between joint . .
CitedC (A Minor) v Hackney London Borough Council CA 10-Nov-1995
The mother had claimed in damages for the injuries to her health from the landlord authority’s failure to repair. Her child then brought a subsequent action in respect of his own injuries. The authority claimed the action should be stopped as res . .
CitedBarrow v Bankside Members Agency Limited CA 10-Nov-1995
Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh . .
CitedManson v Vooght and others CA 12-Jun-1998
The plaintiff had sued administrative receivers of a company of which he had been managing director and principal shareholder in a 1990 action which culminated in a judgment adverse to him in 1993. Other proceedings and other judgments, also in . .
CitedBradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA 11-Mar-1999
There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
CitedLee v Sheard CA 1956
The negligence of a car driver resulted in an injury to the plaintiff who was one of two directors and shareholders of a limited company and did outside work of buying and selling linen goods for it. As a consequence of the accident the plaintiff . .
CitedPrudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
ApprovedR P Howard Ltd and Witchell v Woodman Matthews and Co (a firm) 1983
The solicitor defendant knew that the company was a family company effectively run by Mr Witchell from whom they received their instructions. The question raised was as to the duty of the solicitor to company and director.
Held: There is no . .
CitedGeorge Fischer (Great Britain) Ltd v Multi Construction Ltd., Dexion Ltd. (third party) 1995
The plaintiff contracted with the defendant for the defendant to install equipment on the premises of one of the claimant’s subsidiaries. The equipment was to be used by the subsidiary. The equipment was defective and damage was suffered by the . .
CitedChristensen v Scott 1996
(New Zealand Court of Appeal) Thomas J said: ‘the diminution in the value of Mr and Mrs Christensen’s shares in the company is by definition a personal loss and not a corporate loss. The loss suffered by the company is the loss of the lease and the . .
CitedBarings Plc and Another v Coopers and Lybrand (A Firm) and Others ChD 13-Aug-1996
The need to reach one conclusion justified service of proceedings overseas on a firm’s partners, where there was a genuine issue to be decided . .
CitedBarings Plc and Another v Coopers and Lybrand (A Firm) and Others CA 6-Dec-1996
Whether a duty of care exists from the auditors of a subsidiary, towards its parent company is a triable issue. . .
CitedStein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
CitedGerber Garment Technology Inc v Lectra Systems Limited Lectra Systemes SA CA 18-Dec-1996
The plaintiffs claimed damages for patent infringement. Some of the lost profits for which the plaintiff company claimed damages were suffered by subsidiary companies in which it held all the shares.
Held: When a shareholder has a cause of . .
CitedAddis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
CitedWatts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
CitedRuxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
CitedTaylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd ChD 1981
The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine of estoppel. In the light of the more recent cases, the principle ‘requires a very much broader approach which is . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedHobbs v London and South Western Railway Co 1875
The court considered an application for damages for inconvenience in a breach of contract case: ‘for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your . .
CitedIn re Windsor Steam Coal Co. (1901) Ltd 1929
The courts look more favourably on applications by gratuitous trustees than on those by paid trustees. In a company winding up the liquidator may be liable to the company for negligence on his part in making a compromise. . .
CitedHayes and Another v Dodd CA 7-Jul-1988
The court considered what damages might be paid for inconvenience and distress. . .
CitedIn re Home and Colonial Insurance Co Ltd 1930
. .
CitedLips Maritime Corp. v President of India PC 1988
Lord Brandon of Oakbrook: ‘There is no such thing as a cause of action in damages for late payment of damages. The only remedy which the law affords for delay in paying damages is the discretionary award of interest pursuant to statute.’ . .
CitedBailey v Bullock 1950
The court awarded damages against solicitors for the inconvenience to the plaintiff of having to live in an overcrowded house. . .
CitedMalik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
CitedWalker and others v Stones and others CA 19-Jul-2000
Beneficiaries under a trust sought damages from a solicitor trustee, and the firm of which he was a partner.
Held: Where a trustee acted in breach of trust in a claimed belief that he was acting in the interests of the beneficiaries, but no . .
CitedHeron International v Lord Grade, Associated Communications Corp. Plc. and Others CA 1983
In the course of a contested take-over bid, the directors of the target company who owned a majority of the company’s voting shares were alleged, in breach of their duties both to the company and to its shareholders, to have accepted proposals which . .
CitedSheriff v Klyne Tugs (Lowestoft) Ltd CA 24-Jun-1999
The Claimant complained to an industrial tribunal of unlawful racial discrimination. He had suffered a nervous breakdown and was certified as unfit for work due to stress. The employer had compromised all claims justiciable by the Employment . .
Appeal fromJohnson v Gore Wood and Co (a Firm) CA 12-Nov-1998
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .

Cited by:
CitedGiles v Rhind ChD 24-Jul-2001
The company had suffered losses after an alleged breach of confidence by a director. The applicant sought to recover his losses as a shareholder, after the company became unable or unwilling itself to pursue an action to recover the losses it had . .
CitedFarley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
CitedBarings Plc and Another v Coopers and Lybrand and Others; etc ChD 23-Nov-2001
The applicant company employed a trader who, through manipulation of trading systems ran up losses sufficient to bankrupt the company. They sought recovery from the defendant auditors for failing to spot the mis-trading and prevent continuing . .
AppliedDr H Platt, NHS Executive HQ, Department Of Health v R Chaudhary and Others, R Chaudhary and others EAT 20-Dec-2001
The Authority and other respondents appealed a refusal to strike out the applicant’s claim as an abuse of process, on the basis that other proceedings were current between the same parties at another tribunal. Abuse of process is distinct from cause . .
CitedTime Group Limited v Computer 2000 Distribution Limited and IBM United Kingdom Limited TCC 4-Feb-2002
Computers had been supplied by the second defendant to the claimant and first defendant at different times for exclusive distribution in the UK. Defects were alleged. The case concerned applications made for dismissal of a case as an abuse of . .
CitedGiles v Rhind CA 17-Oct-2002
An action by a company under a shareholder’s agreement was compromised. The other shareholder now sought to commence an action against the party in breach for his personal losses. The defendant argued that the company’s compromise was binding also . .
CitedMotorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
CitedChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
CitedChappell v Somers and Blake (a Firm) ChD 8-Jul-2003
The will gave the deceased’s property to the local church. The claimant executrix instructed the defendants to administer the estate, but later terminated the retainer saying that they had done nothing for many years, depriving the estate of rents. . .
CitedWiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
CitedCelador Productions Ltd v Melville ChD 21-Oct-2004
The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
CitedCollins Stewart Ltd and Another v The Financial Times Ltd QBD 20-Oct-2004
The claimants sought damages for defamation. The claimed that the article had caused very substantial losses (andpound;230 million) to them by affecting their market capitalisation value. The defendant sought to strike out that part of the claim. . .
CitedHormel Foods Corporation v Antilles Landscape Investments NV ChD 24-Jan-2005
The claimant had alread challenged the validity of the defendant’s registered trade mark, but sought to do so now on grounds which could have been advanced in the earlier case. The claimant owned the trade mark ‘SPAM’ for canned meats, and the . .
CitedGanesmoorthy v Ganesmoorthy CA 16-Oct-2002
The parties had divorced. The wife alleged a serious assault against her husband, and instructed a claims firm to recover damages from him. Her ancillary relief claim in the divorce was compromised with her having sought to rely upon the assault, . .
CitedWeir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
CitedDavid v Honeywell Normalair-Garrett Ltd QBD 2-Mar-2006
The claimant sought damages for personal injuries arising from exposure to depleted uranium whilst working for the defendant. An earlier claim had been compromised. The defendant denied liabilty and relied also on the compromise.
Held: The . .
CitedMeretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
CitedSpecial Effects Ltd v L’Oreal Sa and Another CA 12-Jan-2007
The defendants had opposed the grant of the trade mark which they were now accused of infringing. The claimants said that having failed at the opposition stage, they were now estopped from challenging the validity of the mark.
Held: It was not . .
CitedMcBride v The Body Shop International Plc QBD 10-Jul-2007
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
CitedAldi Stores Ltd v WSP Group Plc and others CA 28-Nov-2007
Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. . .
CitedNelson v Greening and Sykes (Builders) Ltd CA 18-Dec-2007
The builders had obtained a charging order for the costs awarded to them in extensive litigation, and a third party costs order but without the third party having opportunity to test the bill delivered. They had agreed to sell land to the defendant, . .
MentionedThe Thomas and Agnes Carvel Foundation v Carvel and Another ChD 11-Jun-2007
The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
CitedBarclays Bank Plc v Kufner ComC 10-Oct-2008
barclays_kufnerComC2008
The bank sought summary judgment under a guarantee to secure a loan to purchase a luxury yacht which was to be hired out in business. The loan had been charged against the yacht, but when the yacht was re-registered, the bank failed to re-establish . .
CitedCampbell v Leeds United Association Football Misc 3-Apr-2009
The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
Held: The . .
CitedSpecialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .
CitedStuart v Goldberg and Linde (a firm) CA 17-Jan-2008
The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
Held: When deciding whether a claim was an abuse of . .
CitedWalbrook Trustees (Jersey) Ltd and Others v Fattal and Others CA 8-Apr-2009
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up . .
CitedCheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
CitedWebster v Sandersons Solicitors (A Firm) CA 31-Jul-2009
The claimant apealed against refusal of permission to amend his claim for negligence against his former solicitors by adding claims from 1993 and 1994 . .
CitedMatalan Retail Ltd v Revenue and Customs ChD 5-Aug-2009
The taxpayer imported swimwear for sale. The respondent had incorrectly indicated that such swimwear had one classification. The claimant sought to prevent the respondent reclassifying the goods, saying that they had made given binding tariff . .
CitedBudejovicky Budvar Narodni Podnik v Anheuser-Busch Inc CA 20-Oct-2009
The parties had long disputed the use of the trade marks ‘Bud’ and ‘Budweiser’ for their beers. The claimant now said that the defendants had made an abusive registration under the 1994 Act, by requesting a declaration that the registration by the . .
CitedHenley v Bloom CA 9-Mar-2010
Different claims allowed re-litigation
The parties had had long standing disputes as landlord and tenant. They were at one point settled, but the tenant claimed again, and the landlord sought to strike out the claim as an abuse of process, saying the claimant had failed to comply with . .
CitedCalzaghe v Warren QBD 20-Jan-2010
The claimant boxer had secured judgement for fight fees from a company operated by the respondent manager and promoter. After the judgment the defendant had put the company into administration. The claimant now sought payment from the defendant . .
CitedFoster v Bon Groundwork Ltd EAT 17-Mar-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
CitedWahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD 12-Apr-2011
The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
CitedSarwar v The Royal Bank of Scotland Plc (Rev 1) ChD 27-Jul-2011
The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . .
CitedHi-Lite Electrical Ltd v Wolseley UK Ltd QBD 17-Jul-2009
The claimant sought a contribution from the defendant towards its liability for a fire at its premises, as found in earlier proceedings against the now claimant. The defendant had filed a defence merely not admitting, and not denying, responsibility . .
CitedBocacina Ltd v Boca Cafes Ltd IPEC 14-Oct-2013
The claimant alleged passing off by the defendant’s use of the name ‘Boca Bistro Cafe’, and subsequently ‘Bica Bistro Cafe’
Held: Where the defendant had changed its trading style during the proceedings it was possible, if the claimant . .
CitedGladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
CitedJoint Stock Company (Aeroflot-Russian Airlines) v Berezovsky and Another CA 16-Jan-2014
The appellant had judgments obtained in Russia against the respondent. It now appealed against a refusal of enforcement of those judgments based upon the ground that there was a complete defence to the recognition and enforcement of the judgments . .
CitedVirgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
CitedStarlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
See AlsoJohnson v Gore Wood and Co (A Firm) QBD 20-Feb-2002
The claimant alleged negligence by the defendant solicitors. . .
See AlsoJohnson v Gore Wood and Co (A Firm) ChD 3-May-2002
The respondent firm acted on behalf of the claimant’s companies in land transactions. An option had been taken to purchase land, and he instructed the defendants to exercise it. The landowner claimed the notice to exercise the option was invalidly . .
See AlsoWilliam John Henry Johnson v Gore Wood and Co CA 3-Dec-2003
. .
See AlsoWilliam John Henry Johnson v Gore Wood and Co CA 27-Jan-2004
The defendant had made a substantial payment into court in protracted proceedings.
Held: The comparison between the payment in and the eventual amount of damages awarded should be assessed on the basis of the damages calculated as at the date . .
DiscussedInternational Leisure Ltd and Another v First National Trustee Company UK Ltd and Others ChD 16-Jul-2012
The court was asked as to the ambit and limits of the rule against reflective loss as discussed in Johnson v Gore Wood and Co [2002] 2 AC 1. On this occasion the issue was whether the rule debared a secured creditor of a company who had suffered . .
CitedChristou and Another v London Borough of Haringey EAT 21-Feb-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellants, the social worker responsible for the care of Baby P and her team manager, were held not to have been unfairly dismissed by Haringey for . .
CitedChristou and Another v London Borough of Haringey CA 12-Mar-2013
The appellants had been social workers involved in the care systems responsible for a child, baby P, who had been killed by his family. They challenged their dismissals. . .
CitedMichael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
CitedArcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .
CitedMoorjani and Others v Durban Estates Ltd and Another TCC 15-May-2019
Allegations of breach of landlords’ repairing obligations – defendants’ strike out application.
Held: ‘ the critical question is whether this second action is based on the same cause, or causes, of action, and not whether it pleads the same . .
CitedDexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
CitedSpicer v The Commissioner of Police of The Metropolis QBD 7-Jun-2019
The claimant said that he had been wrongly described on the defendant’s website as one of two people guilty of causing death by dangerous driving. He had been found guilty only of a much less serious offence. The court now considered the meanings of . .
CitedSpicer v The Commissioner of Police of The Metropolis QBD 6-Jul-2020
The claimant alleged defamation. He had been acquitted of a criminal offence and said that material published by the defendant continued to imply or assert his guilt of the offence. The defendant argued truth. The claimant now sought a strike out of . .
CitedCo-Operative Group v Virk (Valuation Officer) UTLC 22-Oct-2020
Abuse of Process in Rating Alterations
Rating – Alteration of Rating List – validity of proposal challenging alteration to list made by VO to give effect to agreement – application to strike out appeals from the Valuation Tribunal for Wales and Valuation Tribunal for England – res . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Company

Leading Case

Updated: 21 January 2022; Ref: scu.159100

Miller v Imperial College Healthcare NHS Trust: QBD 14 Nov 2014

Assessment of damages in an action brought by the Claimant against the defendant NHS Trust for personal injuries caused by clinical negligence in their treatment of her.

Curran QC HHJ
[2014] EWHC 3772 (QB)
Bailii
England and Wales

Damages, Professional Negligence

Updated: 20 January 2022; Ref: scu.541560

LAT v East Somerset NHS Trust (Now Yeovil District Hospital NHS Foundation Trust): QBD 8 Jul 2016

Application on behalf of the claimant under CPR 25.7 for an interim payment in respect of his claim for damages against the defendant arising out of the defendant’s negligent failure properly to treat him during the neonatal period and in particular in failing to treat his hypoglycaemia appropriately.

Reddihough HHJ
[2016] EWHC 1610 (QB)
Bailii

Personal Injury, Professional Negligence

Updated: 19 January 2022; Ref: scu.567067

Raggett, The Executors of The Estate of v Kings College Hospital NHS Foundation Trust and Others: QBD 1 Jul 2016

Claim for personal injuries loss and damage brought on behalf of the estate of the late John Raggett deceased, pursuant to the provisions of the 1934 Act.

Sir Alistair MacDuff
[2016] EWHC 1604 (QB)
Bailii
Law Reform (Miscellaneous Provisions) Act 1934

Personal Injury, Professional Negligence

Updated: 19 January 2022; Ref: scu.567068

Hearne v The Royal Marsden Hospital NHS Foundation Trust: QBD 27 Jan 2016

Claim for damages for clinical negligence arising out of the claimant’s treatment at The Royal Marsden Hospital after admission for management of epigastric/abdominal pain following a first cycle of adjuvant chemotherapy. Whilst in hospital the Claimant suffered a pulmonary embolism.

Taylor HHJ
[2016] EWHC 117 (QB)
Bailii
England and Wales

Personal Injury, Professional Negligence

Updated: 19 January 2022; Ref: scu.567063

Wimpey Construction UK Ltd v D V Poole: 3 May 1984

The defendant offered a professional skill, but held itself out as offering such skills to a higher degree than normal. The plaintiff sought to hold it to the high standard proclaimed.
Held: The standard of care remained that of the ordinary and competent practitioner, and not the standard vaunted.

Webster J
[1984] 2 Ll LR 499, Times 03-May-1984, [1984] CLY 2340
England and Wales
Cited by:
CitedZurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 19 January 2022; Ref: scu.179751

DS v Northern Lincolnshire and Goole NHS Foundation Trust: QBD 26 May 2016

DS acting by his mother and litigation friend sought damages for the injury and loss said to have been caused by the negligence of Northern Lincolnshire and Goole Hospital Trust’s midwifery and medical staff in the management of part of DS’s mother’s labour at Scunthorpe General Hospital. According to Myles Textbook for Midwives placental abruption is an accidental occurrence of haemorrhage that occurs in 0.49-1.8% of all pregnancies. Severe separation of the placenta is an acute obstetric emergency.

Cheema-Grubb DBE J
[2016] EWHC 1246 (QB)
Bailii
Congenital Disabilities (Civil Liability) Act 1976

Professional Negligence

Updated: 17 January 2022; Ref: scu.564923

Independents’ Advantage Insurance Company Ltd v Cook and Another: CA 24 Jul 2003

‘The power of the court to strike out a statement of case under CPR 3.4(2)(a) – and the related power to give summary judgment under CPR 24.2 – has an important place in the disposal of claims in accordance with the Civil Procedural Rules. The exercise of those powers, in an appropriate case, gives effect to the overriding objective set out in CPR Part 1.’

[2003] EWCA Civ 1103
Bailii
Civil Procedure Rules 1
England and Wales
Cited by:
CitedParker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Civil Procedure Rules

Updated: 13 January 2022; Ref: scu.185301

Chief Land Registrar v Caffrey and Co: ChD 3 Feb 2016

Judgment on the Claimant’s application by notice for judgment against the Defendant in default of filing an acknowledgment of service, with damages to be assessed. The claimant had indemnified a bank as to their losses as victims of a fraud, and sought recovery from the solicitors who had failed to prevent the loss.

Matthews Master
[2016] EWHC 161 (Ch)
Bailii
England and Wales

Professional Negligence

Updated: 12 January 2022; Ref: scu.561517

NRAM Plc v Jane Steel and Bell and Another: SCS 19 Feb 2016

(Extra Division, Inner House) The bank had relied upon mistaken statements by the solicitor acting for a client as to the intention to repay its debts. Without checking, the bank issued the documents to release their security. It now appealed from rejection of its claim in negligence against the solicitor.
Held: The appeal succeeded.

Lady Smith
[2016] ScotCS CSIH – 11, 2016 SCLR 736, 2016 SC 474, 2016 SLT 285, 2016 GWD 6-136, [2016] PNLR 20
Bailii
Scotland
Cited by:
At Inner HouseSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 January 2022; Ref: scu.560368

Allied Finance and Investments Ltd v Haddow and Co: 1983

(New Zealand Court of Appeal) The claimant had agreed to make a loan to X and to take security for it on a yacht. The defendants, who were X’s solicitors, certified to the claimant that the instrument of security executed by X in relation to the yacht was binding on him. In fact, as the defendants knew, it was not binding on him because he was not, and was not intended to become, the owner of the yacht.
Held: The fact that a certificate is sent by a solicitor to a lender confirming the giving of independent advice and that guarantors had signed the guarantee voluntarily may place a duty of care on the solicitor in relation to the lender.
Cooke J said: ‘the relationship between two solicitors acting for their respective clients does not normally of itself impose a duty of care on one solicitor to the client of the other. Normally the relationship is not sufficiently proximate. Each solicitor is entitled to expect that the other party will look to his own solicitor for advice and protection.’
Richardson J said: ‘This is not the ordinary case of two solicitors simply acting for different parties in a commercial transaction. The special feature attracting the prima facie duty of care is the giving of a certificate in circumstances where the [defendants] must have known it was likely to be relied on by the [claimant].’

Cooke J, Richardson J
[1983] NZLR 22
England and Wales
Cited by:
CitedConnolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 12 January 2022; Ref: scu.424848

West Bromwich Albion Football Club Ltd v El-Safty: QBD 14 Dec 2005

The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created a conflict of interest if he had accepted a contractual obligation to the claimant.
Held: There was no intention to create legal relations between the parties, and there was no contract. There was in this case not sufficient proximity between the Claimant and the Defendant to give rise to a duty of care toward the claimant. It would not be just and equitable to impose such liability.

Royce J
[2005] EWHC 2866 (QB)
Bailii
England and Wales
Citing:
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
CitedCaparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
CitedIslington London Borough Council v University College London Hospital NHS Trust CA 16-Jun-2005
The local authority sought repayment from a negligent hospital of the cost of services it had had to provide to an injured patient. They said that the hospital had failed to advise the patient to resume taking warfarin when her operation was . .
CitedBaird Textile Holdings Limited v Marks and Spencer Plc CA 28-Feb-2001
The court considered the requirements to establish a proprietary estoppel: ‘It is on authority an established feature of both promissory and conventional estoppel that the parties should have had the objective intention to make, affect or confirm . .
CitedJames McNaughton Paper Group Ltd v Hicks Anderson and Co CA 31-Jul-1990
When considering the liability of an auditor in negligence, the fact and nature of any communications direct between the auditor and the potential investor must be allowed for. The court set out a non-exhaustive list of factors to be taken into . .
CitedPhelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
CitedBank of Credit and Commerce International (Overseas) Ltd (In Liquidation) and Others v Price Waterhouse ChD 2-Apr-1998
Damages for negligently conducted audit were not to include sums which would not have been spent if truth had been known and if the company had stopped trading immediately. The court should consider whether also the defendant had had opportunity to . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedSpring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .
CitedCommissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
CitedKapfunde v Abbey National Plc and Dr Daniel and Another CA 25-Mar-1998
A Doctor employed by a potential employer to report on the health of applicants for employment, owed no duty of care to those applicants. . .
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
CitedGoodwill v British Pregnancy Advisory Service CA 19-Jan-1996
The doctor executed a vasectomy, and advised the plaintiff that he need no longer take contraceptive precautions.
Held: No duty fell on a doctor to advise on the possibility of the failure of a vasectomy toward possible future sexual partners . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Updated: 12 January 2022; Ref: scu.236713

Gartside v Sheffield Young and Ellis: 1983

(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the community. In practice the community relies upon solicitors (or statutory officers with similar functions) tp prepare effective wills.’

Cooke J
[1983] NZLR 37
England and Wales
Citing:
AppliedRoss v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .

Cited by:
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
DistinguishedClarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .
CitedJD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Commonwealth, Wills and Probate

Updated: 12 January 2022; Ref: scu.195673

Ross v Caunters (a firm): ChD 1979

The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party for whom he is acting but generally owes no duty to the opposite party.
Sir Robert Megarry VC held: ‘It also seems to me that there is ample authority for saying that a successful plaintiff cannot obtain, in the guise of damages, any costs which, on a party and party taxation of costs, are disallowed by the taxing master. It is not enough for the plaintiff to claim that such costs were incurred by him as a result of the defendants’ negligence. I think that this is sufficiently established by Cockburn v Edwards (1881) 18 Ch. D. 449. I am saying nothing about damages which fall outside the particular form in which they are claimed in this case, namely, the legal expenses of investigating the plaintiff’s claim up to the date of the issue of the writ. It seems to me that both on authority and on principle those legal expenses can be recovered by the plaintiff only as costs, and not in the form of damages. In so far as the plaintiff can persuade the taxing master that the items incurred should be allowed as costs on a party and party taxation, then the plaintiff can recover them; but so far as they are not allowed by the taxing master, then I think that they cannot be recovered in the shape of damages.
Accordingly, on the inquiry as to damages which counsel agree should be ordered, no head of damage for the legal expenses of investigating the plaintiff’s claim up to the date of the issue of the writ will be allowable as damages’.

Sir Robert Megarry V-C
[1980] Ch 297, 123 Sol Jo 605, [1979] 3 All ER 580, [1979] 3 WLR 605
England and Wales
Citing:
CitedCockburn v Edwards CA 2-Aug-1881
A solicitor advanced money to his client on a second mortgage, in which was inserted a power of sale exerciseable at any time without the usual proviso requiring that notice should be given, or some interest should be three months in arrear; and it . .

Cited by:
CitedHumblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
CitedWorby, Worby and Worby v Rosser CA 28-May-1999
Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .
AppliedGartside v Sheffield Young and Ellis 1983
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the . .
ApprovedSmith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
CitedJD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
DistinguishedWalker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
CitedBlackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate, Damages

Updated: 12 January 2022; Ref: scu.185876

Gran Gelato Ltd v Richcliff (Group) Ltd: ChD 1992

The claimant wished to purchase an underlease from the first defendant. The claimant’s solicitors inquired of the second defendants, a firm of solicitors acting for the first defendant, whether any provisions in the headlease might affect the length of the underlease. The negative answer of the second defendants was a misrepresentation, which, following its purchase of the underlease, caused loss to the claimant.
Held: The claimant had a valid claim against the first defendant but that the second defendants, the solicitors, had themselves owed no duty of care to it.
Only in special cases, such as the Allied Finance case, would a solicitor owe a duty of care to the opposite party and that there was nothing special about the case before him.
The word ‘right’ may have a wider meaning than an accrued right.

Sir Donald Nicholls V-C
Gazette 13-May-1992, [1992] Ch 560, [1992] 1 All ER 865
England and Wales
Cited by:
CitedDP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
CitedSykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
CitedFirst National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 12 January 2022; Ref: scu.186285

Walker v Geo H Medlicott and Son (a Firm): CA 19 Nov 1998

The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will should first establish whether rectification of the will was available, and only after failure then seek to claim under professional negligence. The solicitors had failed to carry out the testator’s express instructions, and a claim by a disappointed beneficiary might stand. However the claimant here also could seek rectification of the will. The recovery of damages against a negligent solicitor had the effect of enabling the beneficiaries under the Will to retain ‘adventitious benefits’, and accordingly fairness required that the beneficiaries share the cost of putting things right by means of rectification proceedings.

Simon Brown LJ, Mummery LJ, Sir Christopher Slade
Times 25-Nov-1998, [1998] EWCA Civ 1806, [1999] 1 All ER, [1999] 1 WLR 727, [1999] PNLR 531
Bailii
Administration of Justice Act 1970 20
England and Wales
Citing:
DistinguishedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
DistinguishedRoss v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
DistinguishedCarr-Glynn v Frearsons (a Firm) CA 29-Jul-1998
The solicitors had failed to advise the testator to issue a notice of severance of a joint tenancy, with the result that the house passed outside the will.
Held: The plaintiff did have a remedy. ‘The duty owed by the solicitors to the testator . .
CitedIn re Morris Deceased ChD 1970
A mistake was made in the drafting of a codicil by which, inter alia, the testatrix had revoked cl 7 of her will. It was clear from the evidence that the testatrix had never intended to revoke the whole of that clause but only to revoke the . .
CitedIn re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
CitedMersey Docks and Harbour Board v Proctor HL 1923
Viscount Cave LC said: ‘In such a case . . it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into . .
CitedPilkington v Wood 1953
The plaintiff bought freehold land from a seller conveying as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller . .
CitedWintle v Nye HL 1959
Mrs Wells, the testatrix, was an elderly lady living on her own. She neither had business experience nor the benefit of independent professional advice. She made a complex will and a codicil prepared by Mr Nye, a solicitor. He was not a close friend . .

Cited by:
CitedPowell v Haywards (a Firm) CA 18-Feb-1999
Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence, Damages, Costs

Updated: 12 January 2022; Ref: scu.90250

Al-Kandari v J R Brown and Co: CA 1988

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 the 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.

Donaldson L MR, Dillon LJ, Bingham LJ
[1988] 1 QB 665, [1988] EWCA Civ 13, [1988] 1 All ER 833
Bailii
England and Wales
Citing:
CitedMyers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .

Cited by:
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedConnolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 12 January 2022; Ref: scu.192620

Humblestone v Martin Tolhurst Partnership (A Firm): ChD 5 Feb 2004

The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would ostensibly have been properly executed according to the facts known to them. In this case such a duty was assumed additionally by the solicitor checking it. The solicitor was liable.

Mann, The Honourable Mr Justice Mann
[2004] EWHC 151 (Ch), Times 27-Feb-2004, Gazette 04-Mar-2004
Bailii
England and Wales
Citing:
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
CitedRoss v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
CitedHemmens v Wilson Browne (A Firm) ChD 30-Jun-1993
A solicitor was not liable in negligence, where his mistake might be yet be rectified; this was an inter vivos transaction and the parties could still resolve the position. Though a solicitor had a duty to the beneficiary of a settlement, the . .
CitedGibbons and Another v Nelsons (A Firm) and Another ChD 21-Apr-2000
The claimant was potentially interested in a fund as a beneficiary if her sister had exercised a power of appointment in her favour. She claimed that one firm of solicitors, who drafted a Will in 1986 for her sister, were negligent because that Will . .
CitedCarr-Glynn v Frearsons (a Firm) CA 29-Jul-1998
The solicitors had failed to advise the testator to issue a notice of severance of a joint tenancy, with the result that the house passed outside the will.
Held: The plaintiff did have a remedy. ‘The duty owed by the solicitors to the testator . .
CitedGray v Richards Butler (A Firm) ChD 24-Jun-1996
Solicitors were not entitled to payment of their costs in the administration of the estate after the will had been challenged. . .
CitedSouth Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence

Updated: 12 January 2022; Ref: scu.193396

Dean v Allin and Watts (a Firm): CA 23 May 2001

An unsophisticated lender running the business of a car mechanic wanted to lend money to borrowers on the security of real property owned by an associate of the borrowers. The borrowers instructed the defendant solicitors to give effect to this transaction. He was aware that the lender was not represented. The deeds were later purported to be charged by way of deposit only, which was ineffective at law.
Held: Though a solicitor is not normally liable to third parties who were not his clients, he could acquire such duties. Here, it was fair just and reasonable to impose such a duty. He should have known that the third party was relying upon him to set an effective security in place, and was liable in negligence when he failed to do so.

Lord Justice Robert Walker, Lord Justice Sedley, Mr Justice Lightman
Times 28-Jun-2001, [2001] 2 Lloyds Rep 249, [2001] EWCA Civ 758, [2001] 2 Lloyd’s Report 249, [2001] PNLR 39, [2001] All ER (D) 288
Bailii
England and Wales
Citing:
CitedClarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .

Cited by:
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 12 January 2022; Ref: scu.160049

Maguire v North West Strategic Health Authority: QBD 16 Nov 2012

The claimant General Practitioner doctor had been found liable for professional negligence leading to very severe injury. He now sought a contribution from the Authority, saying that their similar mistake within a few days had similarly caused the delay leading to the infection.
Held: On the facts, no agent or employee of the defendant had been negligent, and the application for a contribution failed. The fact that the hospital had asked the parents, in the case of further difficulties, either to return to the hospital or to see their GP was not to be faulted.

Cotter QC J
[2012] EWHC 3272 (QB)
Bailii
England and Wales
Citing:
CitedMaynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
CitedBolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Professional Negligence

Updated: 12 January 2022; Ref: scu.465842

Spargo v North Essex District Health Authority: QBD 1996

A plaintiff’s knowledge that her injury could be attributed to hypoxia, is not knowledge that the injury is attributable to the act or omission alleged to constitute negligence as might be pleaded in a statement of claim and no ordinary plaintiff could be expected to know that a birth injury was attributable to acts or omissions of that sort until advised by an expert.

Collins J
[1996] 7 Med LR 219
England and Wales
Cited by:
Appeal fromSpargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
CitedO’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
CitedFarraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .

Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 12 January 2022; Ref: scu.186436

Abbey National Plc v Frost (Formerly Practising As Harold Weston Frost and Co) and Solicitors’ Indemnity Fund Limited Intervenor: CA 4 Feb 1999

[1999] EWCA Civ 707, [1999] 1 WLR 1080
Bailii
England and Wales
Cited by:
CitedCameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 10 January 2022; Ref: scu.145622

Crammond v Medway NHS Foundation Trust: QBD 1 Dec 2015

‘the Claimant claims damages for personal injury and other losses arising out of his medical treatment at the Medway Maritime Hospital Gillingham Kent. This is an interesting case which involves some consideration of the relationship between Accident and Emergency Departments and Same Day Treatment Centres.’

Brian Forster QC HHJ
[2015] EWHC 3540 (QB)
Bailii
England and Wales

Personal Injury, Professional Negligence

Updated: 07 January 2022; Ref: scu.556487

O’Connor v The Pennine Acute Hospitals NHS Trust: CA 3 Dec 2015

On 26th September 2005 a consultant surgeon employed by the defendant operated on the claimant to repair a vesicovaginal fistula. Following the operation the claimant suffered numbness, pain and loss of motor function in her left leg, due to an injury to her femoral nerve.
The claimant claimed damages against the defendant NHS trust, alleging that the surgeon had directly injured the femoral nerve during the process of dissecting her sigmoid colon. The judge upheld that claim and awarded damages of andpound;459,758.
The defendant appeals, asserting that the judge was not entitled on the basis of the evidence at trial to find that the surgeon had injured the femoral nerve. The judge ought to have found that this was merely one of two possible, but unlikely, explanations. Accordingly the claimant had not proved her case.
In my view, on a close analysis of the evidence (itself an unusual exercise for the Court of Appeal), the judge was entitled to make the findings of fact that he did. There is no dispute that if the surgeon directly injured the femoral nerve during dissection, that would be negligent.
If my Lords agree, this appeal will be dismissed.

Jackson, McCombe LJJ, Sie Colin Rimer
[2015] EWCA Civ 1244
Bailii
England and Wales

Personal Injury, Professional Negligence

Updated: 07 January 2022; Ref: scu.556458

Clark v Braintree Clinical Services Ltd: QBD 9 Nov 2015

Claimant’s application for an order debarring the defendant from relying on the second report from their expert and the defendant’s application to withdraw its ‘admission’ in relation to breach of duty in para 5 of their defence.

Burrell QC HHJ
[2015] EWHC 3181 (QB)
Bailii

Litigation Practice, Professional Negligence

Updated: 06 January 2022; Ref: scu.555024

Solland International Ltd and Others v Clifford Harris and Co: ChD 18 Nov 2015

Appeal from an order striking out the Appellants’ claim for professional negligence against the Respondent and declining to grant the Appellants a retrospective extension of time for filing an allocation questionnaire for the reasons given in his judgment of the same date.

Arnold J
[2015] EWHC 3295 (Ch)
Bailii
England and Wales

Professional Negligence

Updated: 06 January 2022; Ref: scu.554808

Goldsmith Williams Solicitors v E.Surv Ltd: CA 11 Nov 2015

‘The appeal raises what we were told was an important issue as to the scope of the duty of solicitors instructed on behalf of both the proposed mortgagor and mortgagee of property.’

Patten LJ, Sir Stanley Burnton
[2015] EWCA Civ 1147
Bailii
Civil Liability (Contribution) Act 1978
England and Wales

Professional Negligence

Updated: 06 January 2022; Ref: scu.554609

Wellesley Partners Llp v Withers Llp: CA 11 Nov 2015

Appeals by both parties in a professional negligence action, and from the consequent order. The appeals raised issues about the appropriate rule for remoteness of damage where a claimant has concurrent causes of action for pecuniary loss in tort and in contract, and about the application of the ‘loss of a chance’ principle to the assessment of damages.

Longmore, Floyd LJJ, Roth J
[2015] EWCA Civ 1146
Bailii
England and Wales

Professional Negligence

Updated: 06 January 2022; Ref: scu.554614

Wright Hassall Llp v Horton Jr and Another: QBD 22 Dec 2015

The claimant solicitors sought payment from the defendants of fees of pounds 12,700, plus interest which to the date of issue would take the total to pounds 16,367. The defendants’ principal defence was one of set off of a counterclaim for negligence in which they originally sought damages of over pounds 2.8m, now reduced in their re-amended Defence and Counterclaim to pounds 2.57m.

David Cooke HHJ
[2015] EWHC 3716 (QB)
Bailii
England and Wales

Legal Professions, Professional Negligence

Updated: 05 January 2022; Ref: scu.557324