Worby, 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 lacked testamentary capacity and was subject to the malign influence of a third party. They succeeded, and sought their costs direct from the solicitor.
Held: The estate had suffered no proven loss. A solicitor, following his client’s instructions on the drafting of a new will, carried no duty of care to the expectancies of beneficiaries under an earlier will which was to be revoked by the new one. An estate facing an unmeritorious claim could not recover its costs from a solicitor who did not have a duty to the claimants.

Judges:

Lord Justice Peter Gibson Lord Justice Ward Lord Justice Chadwick

Citations:

Times 09-Jun-1999, Gazette 16-Jun-1999, [1999] EWCA Civ 1520, [2000] PNLR 140

Jurisdiction:

England and Wales

Citing:

CitedWilkinson v Corfield PD 26-Jan-1881
A legatee who has propounded a codicil and succeeded is entitled to the same costs as an executor under similar circumstances.
The defendant, the executor of the will of RC, had proved the will only.
The plaintiffs propounded a codicil. . .
CitedSutton v Drax 1815
. .
CitedMidland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
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 . .
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 . .
CitedLindop v Stuart Noble and Sons Ltd OHCS 25-Jun-1998
In Scottish receivership an employee was not entitled to claim for preference of payment of claim for wages for absence of notice when the company went into receivership. Scottish receivership distinct process. . .

Cited by:

CitedMartin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate, Legal Professions

Updated: 21 January 2023; Ref: scu.146435

Holt v Holley and Steer Solicitors (A Firm): CA 7 Jul 2020

The claimant wished to claim professional negligence against the defendants her former solicitors, saying that they had failed to have items of jewelry professionally valued on her divorce. She now appealed from an order striking out the claim as time barred.

Judges:

Lord Justice McCombe

Citations:

[2020] EWCA Civ 851

Links:

Bailii

Statutes:

Limitation Act 1980 5

Jurisdiction:

England and Wales

Professional Negligence, Limitation

Updated: 31 December 2022; Ref: scu.652311

Channon (T/A Channon and Co) v Ward: QBD 12 May 2015

The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the claimant. The defendant disputed whether the losses were part of the claimant’s practice.
Held: a burden lay on Claimant to establish that but for the negligence of the Defendant there would have been a policy in existence that covered the claim in question. Ordinarily such a step will not be difficult. Thereafter the burden is carried by the defendant broker if he seeks to establish that the insurer would have repudiated for some reason, whether that be by reason of breach of a condition or exemption.

Judges:

Cotter QC HHJ

Citations:

[2015] EWHC 4256 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedMunro Brice and Co v War Risks Association 1918
Bailhache J discussed the principle that if there is a qualification of the general risk which covers the policy’s whole scope (so that there is no unqualified risk left), the burden is on the insured to prove facts which bring the case within the . .
CitedFraser v B N Furman (Productions) Ltd CA 1967
The employer’s liability policy contained a condition precedent that the insured should take reasonable precautions to prevent accidents and disease. The company sought to rely upon the clause to avoid liability.
Held: ”Reasonable’ does not . .
CitedArmory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .
CitedPhillips and Co and Another v Whatley PC 2-May-2007
(Gilbraltar) The respondent had made a claim against his former lawyers, the appellants, alleging that he had lost out on a very significant personal injury claim for their failure to issue a writ in time. . .
AdoptedEverett v Hogg Robinson 1973
The court was asked whether a re-insurer would have repudiated by reason of a failure to disclose an adverse claims record had the broker not been negligent.
Held: if a broker relies on a causation defence he must satisfy the court that the . .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 20 December 2022; Ref: scu.572351

Machin v Adams and others: CA 13 Sep 1995

Citations:

[1995] EWCA Civ 3

Links:

Bailii

Jurisdiction:

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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 20 December 2022; Ref: scu.200687

Prosser v Castle Sanderson Solicitors (a Firm), Geoffrey Martin and Co (A Firm): CA 31 Jul 2002

The claimant sought damages from the respondent solicitors and insolvency practitioners for professional negligence. He had substantial business interests, but fell into financial difficulties, and sought assistance from the defendants. He failed to assist in the preparation of accounts. In a brief meeting during an adjournment of his creditors’ meeting, when he sought an IVA, he was advised of the necessity to agree to the sale of certain property.
Held: At this point the insolvency practitioner was acting as chair of the meeting, and in that capacity did not owe the claimant a duty of care. The solicitor was alleged to have been negligent in not advising him to seek an adjournment of the meeting for fourteen days. To hold him liable, the claimant had to show that there was a substantial chance of an adjournment achieving the desired result. The judge had decided that he would not in any event have provided the accounts, and the result would not have been different. Appeal against the dismissal of the claimant’s case dismissed.

Judges:

Lord Justice Mummery, Lord Justice Clarke, Lady Justice Hale

Citations:

[2002] EWCA Civ 1140, [2002] BPIR 1163, [2002] Lloyds Rep PN 584

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Insolvency

Updated: 20 December 2022; Ref: scu.174430

Veitch and Another v Avery: CA 12 Jul 2007

The claimants appealed the award of only nominal damages after they succeeded in their claim against their solicitors for negligence in their conduct of the defence of a mortgage possession action.
Held: The appeal failed. The judge was correct to find that the claimants would not have received continuing support for the business. ‘There is no hard and fast rule in negligence cases that the measure of the loss is to always be identified by reference to, and quantified as at, the date of the breach of duty. It depends; it turns on the facts and the application to them of common-sense, an essentially evaluative role for the judge of first instance.’

Citations:

[2007] EWCA Civ 711

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
CitedGaloo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
CitedClement v Dixon Jones CA 2005
In a professional negligence claim where the claimant alleges negligence in defending a mortgagee possession action, and the claim engages the loss of chance principle, the question is not as to the likely outcome of the possession claim had it been . .
CitedSmith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
CitedStandard Chartered Bank v Pakistan National Shipping Corporation and Others (No 3) ComC 27-May-1998
A company making a false statement on a bill of lading would be held liable for the tort of deceit when it knew that the bill must be relied upon by bankers and others making arrangements on its contents. A claimant ‘cannot recover for a loss . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 12 December 2022; Ref: scu.254570

De Freitas v O’Brien: CA 2 Feb 1995

The plaintiff appealed refusal of her claim for damages for personal injury.

Judges:

Leggatt LJ, Swinton Thomas LJ, Otton LJ

Citations:

[1995] EWCA Civ 28, [1995] PIQR 281, [1995] 6 Med LR 108, [1955-95] PNLR 680

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Professional Negligence

Updated: 12 December 2022; Ref: scu.259338

The Football League Ltd v Edge Ellison (A Firm): ChD 23 Jun 2006

The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged professional negligence, and claimed many millions of pounds. The defendant denied negligence and said that if negligence was found, the claimants were contributorily negligent.
Held: The defendant solicitors had been negligent in not obtaining the guarantees, but even had they been requested, they would not have been given, and the claimants would not have insisted on them. The damages were therefore to be reduced by 75% for contributory negligence. The defendants were liable as to damages of andpound;2.00.

Judges:

Rimer J

Citations:

[2006] EWHC 1462 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCarlton Communications Plc, Granada Media Plc v The Football League ComC 1-Aug-2002
The applicants sought a declaration that they had not provided guarantees to support a contract between a joint venture company owned by them, OnDigital, and the respondent to screen football matches. The company had become insolvent.
Held: . .
CitedMidland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
CitedRacecourse Association and others v Office of Fair Trading CAT 2-Aug-2005
. .
CitedPickersgill and Another v Riley PC 25-Feb-2004
PC (Jersey) The solicitor appealed a finding of negligence. He had failed to advise his client when he acted as a guarantor for a proposed assignee of a lease that the company may be a shell company. It had been . .
CitedClark Boyce v Mouat PC 4-Oct-1993
(New Zealand) No duty of wisdom is owed to client in full command of his faculties by a lawyer. If the client requires only action from his lawyer, that is what is required. Informed consent can be sufficient to allow a solicitor to act for two . .
CitedReeves v Thrings and Long CA 1996
Solicitors were sued for failing to advise their client fully as to the wisdom of the transaction he was entering into. The client was an experienced businessman.
Held: The claim failed.
Hobhouse LJ said: ‘Once Mr Reeves was told what the . .
CitedSaif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
CitedCarradine Properties Ltd v DJ Freeman and Co CA 1982
(From 1982) It was alleged that solicitors should have asked their property company client whether it had public liability insurance which would have covered the company’s liability for damage caused by its demolition contractors to a third party. . .
CitedFeakins v Burstow and Another QBD 8-Sep-2005
Action against a solicitor for alleged negligence. . .
CitedBall v Druces and Attlee (A Firm) (No 2) QBD 22-Jun-2004
. .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
CitedMount v Baker Austin CA 18-Feb-1998
The Defendant solicitors had allowed the Plaintiff’s claim to be struck out for want of prosecution. The court considered how to calculate the value of the loss of the chance of pursuing the claim: ‘1. The legal burden lies on the plaintiff to prove . .
CitedBown v Gould and Swayne CA 1996
Millett LJ commented that if a judge needed assistance with regard to conveyancing practice the proper way was to cite the relevant textbooks. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 12 December 2022; Ref: scu.242730

Whitfield v North Durham Health Authority: CA 1995

In 1987, and before the claim was issued in 1992 the claimant had issued a claim which had never been served. She sought to extend the limitation period arguing that she had not acquired the requisite knowledge until later,
Held: She had had the requisite knowledge in 1985.
Waite LJ observed that her issue of the claim in 1987 did not necessarily betoken that she had knowledge under section 14(1), saying also: ‘The court should look to the essence of the matter and enquire how far the plaintiff had knowledge in broad terms of the facts on which it is based’ and ‘In a discretionary jurisdiction where the court is required to have regard to ‘all the circumstances of the case’ it would clearly be inappropriate to look for hard and fast rules, but counsel were agreed in this court that the section must be read as incorporating one underlying principle. In the process of assessing equity and balancing prejudice which the section enjoins, a party’s action or inaction cannot be divorced from the acts or omissions of his legal representative. The principle in that respect is analogous to that applying in cases of striking out for want of prosecution.’

Judges:

Waite LJ

Citations:

[1995] 6 Med LR 32, [1995] PIQR 361

Statutes:

Limitation Act 1980 14(1)

Jurisdiction:

England and Wales

Cited by:

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 . .
DoubtedDas v Ganju CA 31-Mar-1999
Where a personal injury action had been delayed for five years by bad advice from solicitors and counsel, the court’s discretion should be exercised to allow the plaintiff to proceed with her claim, not herself being responsible for the delay.
CitedMinistry of Defence v AB and Others SC 14-Mar-2012
The respondent Ministry had, in 1958, conducted experimental atmospheric explosions of atomic weapons. The claimants had been obliged as servicemen to observe the explosions, and appealed against dismissal of their claims for radiation sickness . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 12 December 2022; Ref: scu.242344

Delaney v Southmead Health Authority: CA 1995

The plaintiff had sustained a lesion of the brachial plexus after a successful operation to remove her gall bladder. She claimed that this must have been occasioned by hyper abduction of her left arm by the anaesthetist at some point during the administration, overseeing or conclusion of anaesthesia. The anaesthetist gave an explanation of his practice in carrying out anaesthesia which could not have involved hyper abduction of the plaintiff’s left arm. The judge accepted his evidence. The injury was therefore one for which the defendant was unable to give an explanation.
Held: The patient’s appeal failed. The court had been entitled to find that the anaesthetist had exercised all due care in carrying out the procedure even though that left the injury unexplained. In medical negligence cases, where full evidence, including evidence from experts on both sides, has been heard, it is only in a rare case that the maxim res ipsa loquitur will assist the court: ‘For my part, I am doubtful whether it is of much assistance in medical negligence, at any rate when all the evidence in the case had been adduced. But even if Mr Stembridge is right in saying that at that stage the maxim applies, it is always open to a defendant to rebut a case of res ipsa loquitor either by giving an explanation of what happened which is inconsistent with negligence . . or by showing that the defendant exercised all reasonable care.’

Judges:

Stuart Smith LJ

Citations:

[1995] 6 Med LR 355

Jurisdiction:

England and Wales

Cited by:

CitedLillywhite and Another v University College London Hospitals’ NHS Trust CA 7-Dec-2005
The claimant sought damages for severe injuries suffered by their child at birth, and now appealed finding that the doctor had not been negligent. The allegation was simply that the injury could not have occurred but for negligence in the defendant. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 December 2022; Ref: scu.237477

Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited): CA 27 Feb 2004

The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a loss of chance, the root question was what damages had followed. The Appeal was allowed in part. A defendant should be disallowed from relying upon a wrong he had himself committed to reduce the damages which might otherwise flow.

Judges:

Lord Justice Laws Lord Justice Waller Lord Justice Carnwath

Citations:

[2004] EWCA Civ 215, Times 24-Mar-2004, Gazette 01-Apr-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromNormans Bay Limited (Formerly Illingworth Morris Limited) v Coudert Brothers (A Firm) QBD 19-Feb-2003
The claimant instructed the defendant firm to act in advising in support of an investment in Russia. The investment was declared invalid in the courts of Russia, and the claimant said that the defendant should have forewarned them of the problem, . .
CitedHotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
CitedChaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
CitedKitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
CitedGregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
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 . .
CitedGoode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
CitedFairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .

Cited by:

CitedGregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Lists of cited by and citing cases may be incomplete.

Contract, Company, Professional Negligence, Damages

Updated: 12 December 2022; Ref: scu.194076

Zubaida v Hargreaves: CA 1995

In the general run of actions for negligence against professional men it is not enough to show that another expert would have given a different answer. The issue is whether the defendant acted in accordance with practices which are regarded as acceptable by a respectable body of opinion in his profession. Where the complaint relates to the figures included in a valuation, there is an earlier stage that the court must be taken through before the need arises to address considerations of the Bolam type. Because the valuer cannot be faulted in any event for achieving a result that does not admit of some degree of error, the first question is whether the valuation, as a figure, falls outside the range permitted to a non-negligent valuer

Judges:

Hoffman LJ

Citations:

[1995] 1 EGLR 127

Jurisdiction:

England and Wales

Citing:

CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
CitedSinger and Friedlander Ltd v Wood 1977
Valuers acting competently and professionally may reach widely varying conclusions as to value. There is a permissible margin of error, the ‘bracket’. What can properly be expected from a competent valuer using reasonable care and skill is that his . .

Cited by:

CitedLloyds TSB Bank Plc v Edward Symmons and Partners TCC 12-Mar-2003
The defendants had carried out a survey and valuation for the claimants, who now sought damages alleging that the valuer had miscalculated the area of the premises, omitting certain areas which would affect the value.
Held: In order to make . .
CitedGoldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 December 2022; Ref: scu.182922

Equitable Life Assurance Society v Ernst and Young (A Firm): ComC 10 Feb 2003

The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale earlier, reducing later substantial losses. The defendant sought to strike out the claims.
Held: The defendant had a statutory duty as company auditor under the Act, the range of which was set out in the South Australia case, and Caparo. The extent should not be restricted below what the client could properly expect, nor extend the duty beyond that expected by the adviser. The auditors duties did include advice as to the values available to support payment of bonuses, but not as to a potential sale. The claimant was given an opportunity to amend its bonus claims.
Duty of care – auditors failing to advise on provision for liabilities to policyholders guaranteed fixed level of income – not liable for losses sustained by directors failing to sell business sooner owing to contingent liabilities but potentially liable for losses caused by payment of overlarge bonuses in reliance on audited accounts

Citations:

Times 24-Feb-2003, [2003] EWHC 112 (Comm), Gazette 03-Apr-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 . .
CitedCoulthard, Ashton Shuttleworth, and Dawes v Neville Russell (a Firm) CA 27-Nov-1997
Auditors who were in a position to advise a company’s directors as to the legality of them making loan payments to a shell company which was acquiring there shares had a duty so to advise. The directors of a company sued them for failing to warn . .
CitedGaloo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 December 2022; Ref: scu.179107

McCullagh v Lane Fox and Partners Ltd: CA 19 Dec 1995

There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott knew, or ought to have known, that his representation was likely to be relied on by Mr. McCullagh. However, he also knew that Mr. McCullagh had the Lane Fox particulars which included both the relevant statement and the disclaimer. In my judgment, the result of this is that the element of proximity was negatived. A reasonable person, appreciating that the statement which he was proposing to rely upon was a statement contained in the particulars and the fact that those particulars also stated that ‘all statements contained in these particulars as to this property are made without responsibility on the part of Lane Fox . . ‘ would understand that there was no assumption of responsibility by Lane Fox. This understanding would be reinforced by paras 3, 4 and 5 of the disclaimer. In my judgment, the disclaimer puts the present case on all fours with the actual decision in Hedley Byrne as explained earlier.’

Judges:

Hobhouse LJ

Citations:

Times 22-Dec-1995, [1996] 1 EGLR 35, [1995] EWCA Civ 8, [1996] PNLR 205

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromMcCullagh v Lane Fox and Partners Ltd QBD 25-Jan-1994
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey. . .
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 . .

Cited by:

Appealed toMcCullagh v Lane Fox and Partners Ltd QBD 25-Jan-1994
A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey. . .
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 . .
CitedAvrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.

Agency, Professional Negligence

Updated: 09 December 2022; Ref: scu.83515

Harrison and Another v Bloom Camillin: ChD 28 Oct 1999

When assessing the losses suffered by a plaintiff alleging that, through the professional negligence of his solicitors, he had lost the opportunity to pursue a similar action against his accountants, it was right to acknowledge, and allow for the fact that the vast majority of such actions came to be settled rather than going to full trial. The damages should reflect the uncertainties of litigation. The issue of law which would have arisen in the lost action should be treated as a question of fact in this dependent action.

Judges:

Neuberger J

Citations:

Gazette 25-Nov-1999, Times 12-Nov-1999, (2001) PNLR 195

Jurisdiction:

England and Wales

Citing:

CitedKitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
CitedMount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 09 December 2022; Ref: scu.81257

Greene Wood Mclean Llp v Templeton Insurance Ltd: ComC 26 Oct 2010

The court considered various cross claims between the firm of solicitors, now in administration,and their insurers after the insurance company had met claims by former clients.

Judges:

Cooke J

Citations:

[2010] EWHC 2679 (Comm)

Links:

Bailii

Statutes:

Civil Liability (Contribution) Act of 1978

Jurisdiction:

England and Wales

Insurance, Legal Professions, Professional Negligence

Updated: 09 December 2022; Ref: scu.425562

Rowlands v Hodson: CA 8 Oct 2009

Judges:

Lord Justice Rimer

Citations:

[2009] EWCA Civ 1042, [2010] PNLR 8

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedCarey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
Lists of cited by and citing cases may be incomplete.

Consumer, Legal Professions, Professional Negligence

Updated: 09 December 2022; Ref: scu.375937

Kapur v J W Francis and Co: CA 18 May 1999

Notwithstanding a finding by a High Court Judge that K ‘had shaded the truth’, and ‘lacked frankness in his evidence’, the Court set aside a credibility finding on the basis that not only was there a lack of reasoning as to why the Judge preferred Ks evidence, but that no such finding could appropriately have been made.

Citations:

[1999] EWCA Civ 1430

Jurisdiction:

England and Wales

Citing:

See alsoKapur v J W Francis and Co and Hinkson CA 9-Feb-1998
When a judge ordered separate trials for liability and as to quantum, it was wrong to order discovery on elements which might not come to trial. . .

Cited by:

CitedPharmacy Care Systems Limited v The Attorney General 16-Aug-2004
(Court of Appeal of New Zealand) The claimant had settled a dispute with a Health Authority which alleged it had overclaimed for pharmacy supplies. It now claimed that the settlement should be set aside as having been entered into under duress. . .
Lists of cited by and citing cases may be incomplete.

Insurance, Professional Negligence

Updated: 09 December 2022; Ref: scu.146345

Electra Private Equity Partners (a Limited Partnership) and others v KPMG Peat Marwick (a Firm) and others: CA 23 Apr 1999

In interlocutory appeals some relaxation of the strictness of the conditions set down in Ladd v Marshall might be appropriate, according to the nature of the interlocutory hearing and the individual circumstances of the case. That would particularly be so where the battleground or its timing were not of the appellant’s choice.

Citations:

[1999] EWCA Civ 1247, [2001] 1 BCLC 589

Jurisdiction:

England and Wales

Citing:

CitedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:

CitedAl-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
CitedSawyer v Atari Interactive Inc CA 2-Mar-2007
The claimant designed games software and complained of infringements by the defendant of licensing agreements by failing to allow audits as required.
Held: The defendant should be allowed to be heard on the standard practices for management of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 09 December 2022; Ref: scu.146162

Abbey National Plc v Clive Travers and Co (a Firm): CA 18 May 1999

The defendants appealed an order for discovery saying it would infringe their duty of confidence to their clients. The firm had acted for the buyer, seller and lender. A fraud on the lender was alleged. The solicitors sought to rely upon the privilege without having asked the clients who owned it.
Held: The issue of fraud or impropriety had been raised sufficiently in the pleadings to justify the request for dicslosure.

Judges:

Lord Justice Simon Brown , Lord Justice Auld, Lord Justice Thorpe

Citations:

[1999] EWCA Civ 1426

Jurisdiction:

England and Wales

Citing:

CitedRegina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
CitedRegina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .
CitedNationwide Building Society v Various Solicitors ChD 20-Jan-1998
Legal professional privilege could be set aside at disclosure where the fraudulent intention of one lay client was thereby shown as against another lender. The right to assert legal professional privilege does not apply to documents which came into . .
CitedDarlington Building Society and Abbey National Plc v O’Rourke James Scourfield and McCarthy 1990
The plaintiffs sought to amend their claim to add an assertion that the defendant solicitors’ duty of confidentiality was lost by virtue of their clients’ fraudulent intent, and the possible knowledge of the defendant solicitors of that intent. It . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice, Legal Professions

Updated: 09 December 2022; Ref: scu.146341

Atwell v Perr and Co and Another: ChD 27 Jul 1998

Counsel advising during conduct of case has immunity but a wrongful advice on appeal was outside his immunity. Work done before a hearing constituting the formulation of case was within the immunity from suit.

Citations:

Times 27-Jul-1998

Jurisdiction:

England and Wales

Citing:

CitedRondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
CitedSaif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 09 December 2022; Ref: scu.78024

Esterhuizen and Another v Allied Dunbar Assurance Plc: QBD 10 Jun 1998

A non-professional will writing agency should be subject to the same standards of professional negligence in drawing up wills as a recognised lawyer. This is necessary to protect members of the public using will writing services. ‘the process of signature and attestation is not completely straightforward and disaster may ensue if it is not correctly done. Any testator is entitled to expect reasonable assistance without having to ask exprssly for it. It is in my judgment not enough just to leave written instructions with the testator. In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but also in my view negligent.’

Citations:

Gazette 15-Jul-1998, Times 10-Jun-1998

Jurisdiction:

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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Wills and Probate

Updated: 09 December 2022; Ref: scu.80378

Sumner v Royal Surrey County Hospital NHS Foundation Trust and Another: QBD 12 Feb 2015

Claim for clinical negligence arising from the admittedly inappropriate treatment of a patient with an unstable 3 column fracture of the spine which was initially misdiagnosed as stable.

Judges:

Andrews DBE J

Citations:

[2015] EWHC 293 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 07 December 2022; Ref: scu.542621

Twomax Ltd v Dickson, McFarlane and Robinson: 1982

Citations:

1982 SC 113, 1983 SLT 98

Jurisdiction:

Scotland

Cited by:

DistinguishedCaparo 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 . .
CitedStewart v Perth and Kinross Council HL 1-Apr-2004
The claimant challenged refusal of a licence to sell second hand cars, saying that the licensing requirements imposed were outwith the Act under which they had been made. The licensing scheme imposed additional requirements.
Held: Though a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 07 December 2022; Ref: scu.180652

Cann v Willson: 1888

Liability of surveyor

Citations:

(1888) 39 ChD 39, 57 LJ Ch 1034, 59 LT 723, 35 Digest 33

Jurisdiction:

England and Wales

Cited by:

CitedMutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC 16-Nov-1971
The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
Held: The company was not itself in the business of giving such . .
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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 07 December 2022; Ref: scu.181265

Axa Insurance Ltd v Akther and Darby Solicitors and Others: CA 12 Nov 2009

The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the solicitors and their clients, relying on assessments of the cases made by the defendants. The court below had held that the taking out by the defendants of the policies was when the damage occurred.
Held: The claimant insurers’ appeal failed. The case law should not be read to put an unsecured creditor in a better position than a secured one. Analysis of Sephton led to the conclusion that: ‘there had to be measurable loss before time began to be run, that is to say, loss which is additional to the incurring of a purely contingent liability. In my judgment, for this purpose, rights of contribution or subrogation must be ignored because those rights arise by operation of law, unless excluded by agreement or statute. If they were taken into account, they would undermine the basic rule which is clearly established in Sephton that a pure contingent liability is not damage.’
A measurable loss arose on breaches of the vetting duties when the policies were issued, because the mis-assessment devalued the policies.

Judges:

Arden, Longmore, Lloyd LJJ

Citations:

[2009] EWCA Civ 1166, Times 15-Dec-2009, 127 Con LR 50, [2009] 2 CLC 793, [2010] PNLR 10, [2010] 1 WLR 1662

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Appeal fromAxa Insurance Ltd v Akther and Darby Solicitors and Others ComC 27-Mar-2009
. .
CitedWardley Australia Ltd v Western Australia 1992
(High Court of Australia) A claim was based on a statutory trade indemnity scheme. The insurers claimed damages from Wardley, on the basis that its alleged deceit induced them to grant an indemnity, which was subsequently called on.
Held: . .
CitedDW Moore and Co Ltd v Ferrier CA 1988
A solicitor was instructed to prepare an agreement providing for the introduction of a new working director into an insurance broking business carried on by a company. His instructions called for the new director to enter into a restrictive covenant . .
CitedShore v Sedgwick Financial Services Ltd CA 23-Jul-2008
The claimant said that the defendant had given him negligent advice on pensions, failing to say that he should stay within his occupational scheme. The defendant pleaded limitation.
Held: The claimant suffered damage when he made the transfer . .
CitedWatkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
CitedLaw Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
CitedBell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
CitedFirst National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Lists of cited by and citing cases may be incomplete.

Limitation, Insurance, Professional Negligence

Updated: 06 December 2022; Ref: scu.377883

Hughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ): CA 9 Mar 2004

Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the parents could recover. The success of the claim was dependant upon the development of the law in White v Jones.
Held: An application to strike out on this ground should not be granted unless the court is certain that the claim is bound to fail.
Peter Gibson LJ said: ‘I start by considering what is the correct approach on a summary application of the nature of Mr. Richards’s application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care. The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out . .’

Judges:

Lord Justice Aldous Lord Justice Peter Gibson Lord Justice Jacob

Citations:

[2004] EWCA Civ 266, [2004] PNLR 35

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedWoodward v Wolferstans (A Firm) ChD 20-Mar-1997
The plaintiff purchased a house. Her mortgage was to be guaranteed by her father. The defendant solicitors acted for her and her father, but the father had almost exclusive contact with the firm, and was in practice their princpal client. She said . .

Cited by:

CitedWalsh v Staines and others ChD 26-Jul-2007
The defendants applied to strike out a claim based on an allegation of a fraudulent deceit and conspiracy in earlier proceedings between the parties. It was said that the defendant solicitors had represented that their client had funds to support an . .
CitedDowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
CitedAB and Others v Ministry of Defence QBD 5-Jun-2009
Former members of the armed forces and others claimed damages for personal injuries, claiming that they had been obliged to expose themselves to the effects of atomic bomb explosions in the 1950s. The defendant argued that the claims were now out of . .
CitedHouchin v Lincolnshire Probation Trust QBD 9-Apr-2013
The defendant sought to have the claim struck out. The prisoner said that the defendant’s probation officer had through misfeasance in public office arranged for his transfer back to secure conditions from open ones. The parole board panel had found . .
CitedBoyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
CitedCXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 06 December 2022; Ref: scu.194326

Merivale Moore Plc; Merivale Moore Construction Limited v Strutt and Parker (a Firm): CA 22 Apr 1999

An agent valuing a commercial property and estimating the return to be obtained without qualification, was responsible in damages where the clients would not have proceeded on properly qualified advice. The process of valuation does not admit of precise conclusions, and thus that the conclusions of competent and careful valuers may differ, perhaps by a substantial margin, without one of them being negligent. The court first tests whether the case falls outside the range of proper valuations, the ‘bracket’. The bracket is not to be determined in a mechanistic way, divorced from the facts of the instant case.

Judges:

Buxton LJ

Citations:

Times 05-May-1999, Gazette 12-May-1999, [1999] 1 EGLR 171, [1999] EWCA Civ 1239, [2000] PNLR 498

Jurisdiction:

England and Wales

Citing:

CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .

Cited by:

CitedLloyds TSB Bank Plc v Edward Symmons and Partners TCC 12-Mar-2003
The defendants had carried out a survey and valuation for the claimants, who now sought damages alleging that the valuer had miscalculated the area of the premises, omitting certain areas which would affect the value.
Held: In order to make . .
CitedGoldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
CitedCurry’s Group Plc v Martin QBD 13-Oct-1999
The valuer valued a lease for a rent review clause, after advice, on the basis that the rent stated was to be a headline rent. The claim was dismissed because a valuer acting in such a situation was not substantially different from one undertaking a . .
CitedRoger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 06 December 2022; Ref: scu.146154

Heron v TNT (UK) Ltd and Another: CA 2 May 2013

Satellite litigation arising from an attempt by employers’ insurers to recover the costs of defending personal injury litigation from the solicitors who, until they withdrew from the case, were acting for the employee. The application was made in the alternative either on the basis that the solicitors ought to be made the subject of a wasted costs order or, alternatively, a non-party costs order. It was later conceded that, in the context of this case, the application for wasted costs added nothing to that for a non-party costs order and the former was not pursued.

Judges:

Leveson, Beatson, Gloster LJJ

Citations:

[2013] EWCA Civ 469, [2013] 4 Costs LR 551, [2013] PNLR 21, [2013] 3 All ER 479, [2014] 1 WLR 1277

Links:

Bailii

Jurisdiction:

England and Wales

Costs, Professional Negligence

Updated: 05 December 2022; Ref: scu.491880

George 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 subsidiary in consequence. The claimant sought to recover in a breach of contract action the loss caused to its subsidiary.
Held: The claim was allowed. The Prudential Assurance case did not bar the action.
Judge Hicks QC said: ‘Each scheme was criticised by the proponents of the other. Neither had been designed in full detail, so acceptance of either is, to some extent, dependent, first, on a judgment as to the ability of the designer, with the assistance of the specialist knowledge of the relevant manufacturer and a contractor experienced in using the system, to devise suitable detailed treatment of all the potential trouble-spots and, second, on an assessment of the guarantees and bonds offered by the manufacturer and contractor. Since Soladex would be so much the cheaper, and cannot be said to be the more detrimental to the appearance of the buildings – I should have thought, if anything, the reverse – it must clearly be preferred unless the criticisms of its expected effectiveness are, taking the above considerations into account, made good on the balance of probabilities.’

Judges:

Judge Hicks QC

Citations:

[1998] 61 ConLR 85, [1995] 1 BCLC 260

Jurisdiction:

England and Wales

Cited by:

CitedJohnson 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 . .
CitedIggleden v Fairview New Homes (Shooters Hill) Ltd TCC 1-Jun-2007
The claimants bought a newly built home from the defendants. Defects were alleged and admitted, but the defendants said the claimants had failed to mitigate their losses or accept offers to have work done. The claimants now sought leave to add . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 05 December 2022; Ref: scu.252497

Derry v Ministry of Defence: CA 18 Mar 1999

Where an army doctor was accused of failing to diagnose a serviceman’s ocular cancer, the negligence which caused the consequent injury was caused by the delay in a correct diagnosis, and the treatment fell within the scope of Crown Immunity.

Citations:

Times 30-Mar-1999, Gazette 21-Apr-1999, [1999] EWCA Civ 1016, [1999] PIQR P204

Statutes:

Crown Proceedings Act 1947 10

Jurisdiction:

England and Wales

Citing:

Appeal fromDerry v Ministry of Defence QBD 8-Jun-1998
A military doctor has exemption under Crown Immunity, from liability from his failure to diagnose and treat ocular cancer properly, and the exemption applied even though the medical condition pre-existed the treatment. The cause of action lay in the . .

Cited by:

CitedMatthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury, Armed Forces

Updated: 05 December 2022; Ref: scu.145931

Powell 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 loss. A disappointed beneficiary, claiming for professional negligence against solicitors, did not first have to seek to minimize his loss by seeking rectification of the will, where this would be unlikely to produce a practical improvement in his position.

Judges:

Hirst LJ, Mummery LJ, Buxton LJ

Citations:

Gazette 31-Mar-1999, Gazette 10-Mar-1999, [1999] EWCA Civ 816, Times 11-Mar-1999, [1999] 1 FLR 1182

Jurisdiction:

England and Wales

Citing:

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 . .
CitedWalker 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence, Legal Professions

Updated: 05 December 2022; Ref: scu.145731

Mercantile Credit Co Ltd and Another v Fenwick and Others; Same v Speechly Bircham: CA 12 Feb 1999

Solicitors retained to obtain signatures to a bank’s charge by husband and wife to secure his debts was required to act in accordance with current good practice. No duty to ensure certificate obtained that husband and wife had separate advisers.

Citations:

Gazette 10-Mar-1999, Times 23-Feb-1999, [1999] EWCA Civ 778

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence, Banking

Updated: 05 December 2022; Ref: scu.83640

Breitenbach and Others v Canaccord Genuity Financial Planning Ltd (1354): ChD 18 May 2020

Judges:

Mr Justice Fancourt and Master Kaye

Citations:

[2020] EWHC 1354 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See AlsoBreitenbach and Others v Canaccord Genuity Financial Planning Ltd (1355) ChD 18-May-2020
Disclosure of documents . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 04 December 2022; Ref: scu.651118

Markes v Coodes: 1997

Citations:

[1997] PNLQ 252

Statutes:

Limitation Act 1980 32

Jurisdiction:

England and Wales

Cited by:

CitedEzekiel v Lehrer ChD 21-Mar-2001
The claimant had given instructions to the defendant with regard to a charge. The defendant came to know that he had made an error, and when asked by the claimant, declined to answer, and referred the claimant to independent advice. The claimant now . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 04 December 2022; Ref: scu.263183

Wild and Another v Southend University Hospital NHS Foundation Trust: QBD 3 Dec 2014

Claim for damages arising from alleged want of care of child in the womb, leading to a stillbirth. The claimant father suffered psychiatric damage after being told of the death of his wife’s baby in utero as a result of negligent treatment by clinicians working for the defendant hospital. He argued that Taylor v A. Novo could not preclude a claim ‘in a case where the first manifestation of the injuries sustained by the primary victim occurs in front of (or within sight or hearing of) the secondary victim (or where he comes across the primary victim in the immediate aftermath of this injury) but is separated in time from the act or omission constituting negligence’. In a clinical negligence case where the first manifestation of the negligent act or omission was a shocking event seen, heard or otherwise directly experienced by the secondary victim, a claim would lie. It was argued that it could be seen from the reference to Walters that the Court of Appeal in Taylor v A. Novo had not intended to state any new principle.
Held: The argument failed.
Michael Kent QC, expressed ‘difficulty’ with the proposition because of Lord Dyson’s approval of Auld J’s observation in Taylor v Somerset and his observation that Peter Gibson LJ’s remarks in Walters were obiter. The term ‘external event’ was ‘explained by the context of these claims which is that they are all made by those who are not directly participating in the events which have been engulfed the primary victims and which are in that sense external to the claimant’. It was ‘arguably going too far’ to argue, as the defendant had, that Lord Wilberforce’s reference to the ‘fact and consequence of the negligence’ meant that the negligence must itself be synchronous with the sustaining of shock by the secondary victim. It was ‘a little unlikely’ that the Court of Appeal in Walters had overlooked the fact that the fit was a result of the earlier negligent treatment, so that the cause of action had already accrued prior to the start of the relevant ‘event’. Ultimately, however, it was not necessary to resolve any of these points, because the claimant learned of the death after it had happened and witnessed no shocking event. This was fatal to the claim:

Judges:

Michael Kent QC

Citations:

[2014] EWHC 4053 (QB), [2016] PIQR P3

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedLiverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
CitedPaul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury

Updated: 30 November 2022; Ref: scu.539569

Shorter v Surrey and Sussex Healthcare NHS Trust: QBD 25 Mar 2015

The claimant saw her sister in undeniably distressing circumstances in hospital. It was suggested that the claimant’s professional background, as a radiographer, gave her an unusual degree of insight into her sister’s medical condition and that, as a result, she would have been more sensitive to events at the hospital and therefore more likely to find them ‘horrifying’.
Held: Swift DBE J said: ‘ . . it seems to me that it is necessary to be cautious in finding that the Claimant’s professional expertise made the sight of Mrs Sharma more ‘horrifying’ than it would have been to a person without that knowledge. I consider that the ‘event’ must be one which would be recognised as ‘horrifying’ by a person of ordinary susceptibility; in other words, by objective standards. After all, certain people would find it more frightening to have no medical knowledge and not to know what was going on; they may feel helpless and isolated. Others may have armed themselves in advance with medical information from the internet which leads them to feel far greater fear than is in fact justified. It would be unfortunate if secondary victims’ claims were to become embroiled in debates about an individual claimant’s level of medical knowledge and its effects upon whether an ‘event’ should be classified as ‘horrifying’.’

Judges:

Swift DBE J

Citations:

[2015] EWHC 614 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedTaylor v Somerset Health Authority 1993
The plaintiff’s husband had suffered a heart attack at work and soon died at the defendant’s hospital. She went to the hospital within an hour and was told of his death by a doctor about 20 minutes after her arrival. She was shocked and distressed. . .

Cited by:

CitedLiverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
CitedPaul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury

Updated: 30 November 2022; Ref: scu.544846

Lakey v Merton Sutton and Wandsworth Health Authority: CA 3 Feb 1999

A judge need not always give reasons for preferring the evidence of one expert witness over another in a medical negligence claim. In such matters experts sometimes take positions extreme and favouring the side paying them.

Judges:

Nourse, Thorpe, Potter LJJ

Citations:

Times 11-Mar-1999, [1999] EWCA Civ 704

Jurisdiction:

England and Wales

Professional Negligence

Updated: 30 November 2022; Ref: scu.145619

Onslow-Edwards and Another v Cameron (Trading As Cameron and Partners); Harvey and Sproull (a Firm): CA 21 Jan 1999

Solicitors who had leant a deposit to clients buying commercial properties where contracts had not been exchanged for the sale of other properties and finance was not in place, were not negligent having advised on the risks to a commercially aware client.

Citations:

Gazette 03-Feb-1999, [1999] EWCA Civ 624

Jurisdiction:

England and Wales

Professional Negligence

Updated: 30 November 2022; Ref: scu.145539

Clonard Developments Limited v Humberts (a Firm): CA 15 Jan 1999

A judge was right to acknowledge that a party’s expert witness might be biased, and assess accordingly. Where a surveyor’s valuation was negligent there was still no liability where the plaintiff did not show it had relied upon the valuation.

Citations:

Gazette 27-Jan-1999, [1999] EWCA Civ 575

Jurisdiction:

England and Wales

Citing:

CitedClonard Developments Limited v Humberts (a Firm) CA 13-Jan-1999
The application to admit evidence was refused. ‘We would be required to draw inferences from this evidence without the benefit of it having been considered by the experts on either side as to what the significance of the sale figure is. In those . .

Cited by:

Full appealClonard Developments Limited v Humberts (a Firm) CA 13-Jan-1999
The application to admit evidence was refused. ‘We would be required to draw inferences from this evidence without the benefit of it having been considered by the experts on either side as to what the significance of the sale figure is. In those . .
CitedLaw Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
CitedLaw Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 30 November 2022; Ref: scu.145490

Byrne and Byrne v Hall Pain and Foster (a Firm) and others: CA 11 Dec 1998

The cause of action in an action for professional negligence in purchase of land ran from the date of exchange of contracts not completion, and the limitation period was to be calculated accordingly.

Judges:

Simon Brown, Otton, Schiemann LJJ

Citations:

Times 08-Jan-1999, Gazette 03-Feb-1999, [1998] EWCA Civ 1939, [1999] 1 WLR 1849, [1999] PNLR 565

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 30 November 2022; Ref: scu.145418

Siddell and Siddell v Smith Cooper and Partners (a Firm) (Lead Action) Follows and Follows v Smith Cooper and Partners (a Firm): CA 18 Dec 1998

Courts are reluctant to strike out a claim at an early stage in a developing area of law if when all the facts are know the claim might succeed.

Citations:

[1998] EWCA Civ 1959, [1999] PNLR 511

Jurisdiction:

England and Wales

Cited by:

CitedBinod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 30 November 2022; Ref: scu.145438

Roberts vWinbow (3): CA 4 Dec 1998

The plaintiff was treated for depression by the defendant by prescription of drugs. She sufferred a reaction, but now claimed that the doctor’s slow reaction caused her to suffer lasting injury. The question on appeal was, if a plaintiff suffers injuries some of which the plaintiff knows to be attributable to the act or omission of the defendant which is alleged to constitute negligence, but the main part of which is not to the plaintiff’s knowledge attributable in whole or in part to the act or omission of the defendant which is alleged to constitute negligence, does the three year period commence when the plaintiff has knowledge that the lesser part of the injury is attributable, or does the three year period start only when the plaintiff has knowledge that the greater part of the injury is attributable? The discovery of a cause of action was at the point where a plaintiff discovered that a lesser part of her injuries were attributable to the cause, not later when the majority was attributed, and limitation ran accordingly.

Judges:

Lord Justice Roch, And Mrs Justice Hale

Citations:

Times 12-Jan-1999, Gazette 27-Jan-1999, [1998] EWCA Civ 1917

Statutes:

Limitation Act 1980 11(4)

Jurisdiction:

England and Wales

Citing:

CitedSpargo 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 . .
CitedDobbie v Medway Health Authority CA 11-May-1994
The plaintiff had a lump on her breast. The surgeon, without first subjecting the lump to a microscopic examination in order to determine whether it was cancerous or benign, removed the breast. This was in 1973. The lump was subsequently found to be . .
CitedLevy v Spyers 1856
‘It is negligence where there are two ways of doing a thing, and one is clearly right, and the other is doubtful, to do it in the doubtful way’ . .
CitedDonovan v Gwentoys Ltd HL 1990
The plaintiff, then a 16 year old girl slipped and fell whilst employed at the defendant’s factory. The limitation period expired on her 21st birthday. She commenced proceedings five and a half months after that date. The judge extended time under . .
CitedBentley v Bristol and Western Hospital Authority 1991
. .
CitedHartley v Birmingham City District Council CA 1992
The writ was issued one day late; there had been early notification of the claim; and the defendant’s ability to defend the case was unaffected. The plaintiff asked the court to exercide its discretion to allow the claim t proceed.
Held: The . .
CitedMcCafferty v Metropolitan Police Receiver CA 1977
The test of whether a plaintiff had sufficient knowledge to justify the start of time running against her takes into account her subjective characteristics but then applies an outsider’s view of what she should have thought.
Geoffrey Lane LJ . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 30 November 2022; Ref: scu.145396

Midland Bank Plc v Cox McQueen (A Firm): CA 26 Jan 1999

Solicitors were instructed by the bank to obtain the signature of a client and of his wife to a motgage. The deed was signed by the husband and a woman pretending to be the wife.
Held: The court said that it was asked whether the bank intended to ask for, and whether the solicitors intended to give, a promise to answer for the fraud of the customer even if that fraud could not be detected by exercising all proper care The solicitors who had been asked to obtain the signature to a mortgage on behalf of a bank, but who were misled as to the identity of the signor were not liable in negligence. The nature of the transaction was that the bank charged to carry risk, not the solicitors.
Lord Woolf MR said: ‘In my judgment the decision in Zwebner should not be given a wide application. To do so would ignore the wider consequences of our decision. If commercial institutions such as banks wish to impose an absolute liability on members of a profession they should do so in clear terms so that the solicitors can appreciate the extent of their obligation which they are accepting. Frequently this sort of task is undertaken by small firms of solicitors who are already finding it difficult to remain viable. This is partly because they are heavily burdened by the costs of insurance. If they are to be liable for very substantial sums of damages as a result of the fraud of the customers of the bank which they cannot prevent, then either they will have to withdraw from providing those services or they will have to charge for their services at a rate which is very different from that which was charged here. Neither result is in the interests of the banks or their customers or the public. The result is not in the interests of the banks’ customers as they will not benefit from the explanation of the transaction from a member of the legal profession who is qualified to give that explanation. It is not in the interests of banks as they will have to pay higher fees which they may or may not seek to recover from their customers. It is not in the interest of the public because it is important that legal services are readily available and this will not be the case if small firms are unable to survive. Unless the language used in a retainer clearly has this consequence, the courts should not be ready to impose obligations on solicitors which even the most careful solicitor may not be able to meet.’
Mummery LJ said: ‘The letter was a retainer by the bank of a firm of solicitors to perform professional services of an advisory and ministerial kind for the bank. Professional services provided by the solicitors would not normally involve the guaranteeing of a result by them, such as verifying the identity of Mrs. Dukes, let alone providing the bank with what would amount to an insurance policy against the risk of fraud occurring in a transaction entered into by the bank with its customer, Mr. Dukes; a transaction about which the solicitors were told little by the bank and in which they had no input or influence.
The bank agreed to lend a substantial sum to their customer. That customer was Mr. Dukes. Mrs. Dukes was not a customer of the bank. She was not a client of the solicitors retained by the bank to obtain her signature. It is improbable that the solicitors would agree to provide to the bank more than the exercise of the reasonable care and skill of a competent solicitor in relation to the task to be undertaken. It was part of the bank’s case against the solicitors that the retainer was subject to the usual implied duty of care. That implied term also governed the obligation to obtain the signature of Mrs. Dukes. The judge rejected the case of negligence against the solicitors. There is no appeal against that. The bank’s case on the appeal rests on the contention that the wording of the retainer was apt to create an absolute obligation which would be breached by the solicitors, no matter what precautions they might have taken and what lengths they might have gone to ensure that the woman who signed the mortgage was Mrs. Dukes. For the reasons stated above and for the reasons stated by the Master of the Rolls, I am unable to accept the contention that this retainer, when construed in the context in which it was given and accepted, was intended to have that far-reaching effect.’

Judges:

Lord Woolf MR, Mummery LJ, Mantell LJ

Citations:

Times 02-Feb-1999, Gazette 10-Feb-1999, Gazette 17-Feb-1999, [1999] EWCA Civ 656, [1999] Lloyds Rep PN 223, [1999] PNLR 593, [1999] EG 12, [1999] Fam Law 310, [1999] 1 FLR 1002

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedZwebner v Mortgage Corporation Plc; Trustee of Property of Zwebner and Brooks and Co CA 18-Jun-1998
The claimant applied for a loan secured against a property owned with his wife. The defendant instructed solicitors who reported on title with an undertaking that documents would be executed before completion. They sent the mortgage to Mr. and Mrs. . .

Cited by:

CitedPlatform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
CitedCornelius, Regina v CACD 14-Mar-2012
The defendant appealed against his conviction for fraud under the 2006 Act, saying that the judge had wrongly failed to give a Ghosh direction. As a solicitor he had organised a scheme for buying properties, obtaining finance by the nomination of . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 30 November 2022; Ref: scu.83707

Lowick Rose Llp v Swynson Ltd and Another: SC 11 Apr 2017

Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was revealed.
Held: The accountants’ appeal succeeded. As a general rule ‘collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss’ and loss which has been avoided is not recoverable as damages, although expense reasonably incurred in avoiding it may be recoverable as costs of mitigation. To this there is an exception for collateral payments (res inter alios acta), which the law treats as not making good the claimant’s loss. It is difficult to identify a single principle underlying every case. In spite of what the Latin tag might lead one to expect, the critical factor is not the source of the benefit in a third party but its character. Broadly speaking, collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss.
In this case: ‘subrogation is not being invoked for its proper purpose, namely to replicate some element of the transaction which was expected but failed. It is being invoked so as to enable Mr Hunt to exercise for his own benefit the claims of Swynson in respect of an unconnected breach of duty under a different transaction between different parties more than two years earlier.’

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord, Hodge

Citations:

[2017] UKSC 32, [2017] 3 All ER 785, [2017] 2 WLR 1161, [2017] 1 CLC 764, [2017] WLR(D) 257, 171 Con LR 75, [2018] AC 313, [2017] PNLR 18, UKSC 2015/0170

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC 2017 Apr 11 Video

Jurisdiction:

England and Wales

Citing:

CitedDunlop v Lambert HL 16-Jun-1839
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the . .
CitedIn Re Lee’s Patent PC 16-Jun-1856
. .
CitedBradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Appeal fromSwynson Ltd v Lowick Rose Llp CA 25-Jun-2015
This appeal concerns the amount of damages recoverable by a lender from a negligent firm of accountants who failed to do a proper exercise of due diligence on the borrower to whom the money was lent. The majority of the loan was repaid by utilising . .
CitedBritish Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
CitedParry v Cleaver CA 9-May-1967
The plaintiff policeman was hit by a car whilst he was on traffic duty. When he claimed damages in negligence the defendant sought to have deducted from his award an amount received by way of additional pension payments received which had been . .
CitedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
CitedBurston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
CitedAlbacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
At First InstanceSwynson Ltd and Another v Lowick Rose Llp ChD 30-Jun-2014
The claimant said that it had received negligent advice from the defendant accountants in its financing of the purchase of a company in the US. After the company fell into difficulties, further advances were made. The parties disputed the . .
CitedChetwynd v Allen 1899
A lender M advanced pounds 1,200 to pay off an existing mortgage held by T over a property owned by the plaintiff. M made the advance on the basis of certain misleading representations and non-disclosures by the plaintiff’s husband. M was told that . .
CitedPaul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
CitedBoscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
CitedArab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
CitedBank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
CitedDarlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .
CitedLinden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
CitedLondon and South of England Building Society v Stone CA 1983
A claim was by lenders against negligent valuers after they failed to spot subsidence. They sought for the difference of pounds 11,880 between the amount advanced and the amount which would have been lent upon a proper valuation. The borrowers’ . .
CitedDarlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
CitedRevenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
CitedBanque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
CitedEdinburgh and District Tramways Co Ltd v Courtenay SCS 29-Oct-1908
(Court of Session Inner House First Division) There was contract between a tramway company and an advertising firm, under which the firm paid a rental for the right to display advertising on the tramcars. It was up to the firm to provide the boards . .
CitedLipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
CitedTFL Management Services Ltd v Lloyds Bank Plc CA 14-Nov-2013
The court was asked: ‘A spends money seeking a judgment for the recovery of a debt from B. A fails to recover the debt because, so the court holds, the debt is not in fact owed by B to A (as A mistakenly thought), but owed by B to C. C then recovers . .

Cited by:

CitedTiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd SC 29-Nov-2017
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence, Damages

Updated: 27 November 2022; Ref: scu.581644

Fulham Leisure Holdings Ltd v Nicholson Graham and Jones (A Firm): CA 28 Feb 2008

Citations:

[2008] EWCA Civ 84

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromFulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 31-Jul-2006
The court considered what would amount to a waiver of professional legal privilege.
Held: Waiver applied to the ‘transaction’ in question, which might go beyond the actual document (or privileged information) disclosed, and suggested the . .
See Also (Costs)Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 5-Oct-2006
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 27 November 2022; Ref: scu.266006

The Law Society v Sephton and Co and others: CA 13 Dec 2004

The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make compensation to those who had been affected by the solicitor’s default. The claims in negligence were not time barred, but those in fraud were.
Neuberger LJ (dissenting) said that an assumption is made for the purposes of assessing what the claimant could have discovered with reasonable diligence that the claimant desires to discover whether or not there has been a fraud.

Judges:

Lord Justice Carnwath, Lord Justice Neuberger and Lord Justice Maurice Kay

Citations:

[2004] EWCA Civ 1627, Times 11-Jan-2005, [2005] QB 1013

Links:

Bailii

Statutes:

Solicitors Act 1974, Limitation Act 1980 2

Jurisdiction:

England and Wales

Citing:

CitedLaw Society v KPMG Peat Marwick and Others ChD 3-Nov-1999
An accountant, auditing a firm of solicitors, and providing a certificate to the Law Society knew that the Society and its compensation fund would rely upon that certificate and so owed it a duty of care. A negligently given certificate could lead . .
CitedCave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
CitedPolley v Warner Goodman and Streat (A Firm) CA 30-Jun-2003
A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much . .
CitedCartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
CitedForster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
CitedNykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
CitedKhan v R M Falvey and Co (a Firm) CA 22-Mar-2002
The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
CitedHatton v Messrs Chafes (A Firm) CA 13-Mar-2003
The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
Held: By the time that the . .
CitedKnapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
CitedWardley Australia Ltd v Western Australia 1992
(High Court of Australia) A claim was based on a statutory trade indemnity scheme. The insurers claimed damages from Wardley, on the basis that its alleged deceit induced them to grant an indemnity, which was subsequently called on.
Held: . .
CitedTelfair Shipping Operation SA v Inersea Carriers SA, the Caroline P 1984
A claim was made in contract based on an indemnity.
Held: The claim was not time-barred. Time normally begins to run against a claim on a general indemnity only from the moment when the liability of the indemnified is accepted by him or . .
CitedMilton v Walker and Stanger 1981
The plaintiff instructed her solicitor to prepare documents and advise on a gift from P’s uncle to P and her cousin W in the proportions 2/3:1/3. P and W agreed that, should the farm be sold, the costs and capital gains tax (CGT) arising there from . .
CitedRobert Mark Gordon v J B Wheatley and Co (a Firm) CA 24-May-2000
The defendant solicitors had negligently advised the claimant in connection with a mortgage scheme he operated for customers. His case was that the defendants had negligently failed to advise him to register under s3 of the 1986 Act. The claimant . .
CitedD W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
CitedPirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .
CitedJames Brocklesby v Armitage and Guest (a Firm) CA 9-Jul-1999
A failure by an adviser to make his position clear when he thought he had been negligent, could constitute a ‘deliberate’ act within section 32 even if the defendant’s actions were not motivated by any intention to deceive the claimant: ‘it is not . .
CitedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
CitedRegina v Law Society ex parte Ingman Foods Oy Ab Admn 17-Jan-1997
The claimant sought compensation from the respondent for the actions of his solicitor. The Society resisted saying that the claimant was himself largely responsible for his losses. . .
CitedBell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
CitedDaniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Appeal fromThe Law Society v Sephton and Co and others ChD 2004
The Law Society claimed in negligence against the defendant firm of accountants who had wrongly certified the accounts of a firm of solicitors. The Society sought to recover the payments it had made from its compensation fund. The defendant pleaded . .

Cited by:

Appeal fromLaw Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
CitedGresport Finance Ltd v Battaglia CA 23-Mar-2018
Henderson LJ referred to the judgment of Neuberger LJ in Sephton in which he discussed the need for there to be an assumption that the claimant desires to know that there has been a fraud. Henderson LJ observed: ‘Another way to make the same point . . .
CitedBoyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 27 November 2022; Ref: scu.220349

Brady v Sunderland Association Football Club Ltd: CA 17 Nov 1998

The plaintiff appealed refusal of his claim for damages. He had suffered injury whilst training for football, and alleged negligence agains the club and its doctors. He accepted that his contract imposed no higher duty than the standard one. The judge had found the condition to be one which a doctor might see once in his lifetime.
Held: The appeal was dismissed: ‘Only in rare cases will this court do so either because the judge has misunderstood some important evidence, misconstrued or overlooked documentary evidence inconsistent with his findings or for some other reason this court is convinced that he has reached the wrong conclusion notwithstanding his advantage of seeing and hearing the witnesses.’

Citations:

[1998] EWCA Civ 1780

Jurisdiction:

England and Wales

Personal Injury, Professional Negligence

Updated: 27 November 2022; Ref: scu.145259

Sutcliffe v BMI Healthcare Ltd: CA 18 May 2007

The claimant had undergone an operation, after which he slept with the assistance of self administered morphine. Whilst asleep, he vomited, but did not awake to expel it, and he uffered massive brain damage.
Held: The judge had dealt properly with the evidence on rousability, and he had been correct to accept evidence of the correctness of the decision not to rouse the claimant from sleep to take routine measurements. The claimant’s appeal failed.

Judges:

Auld LJ, May LJ, Longmore LJ

Citations:

[2007] EWCA Civ 476

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
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.

Professional Negligence

Updated: 26 November 2022; Ref: scu.252413

Lillywhite and Another v University College London Hospitals’ NHS Trust: CA 7 Dec 2005

The claimant sought damages for severe injuries suffered by their child at birth, and now appealed finding that the doctor had not been negligent. The allegation was simply that the injury could not have occurred but for negligence in the defendant. The doctor replied that he had taken due care and that other experts at the time had failed to identify the problem.
Held: The appeal succeeded. The evidence had during the course of the trial taken unexpected directions. The judge’s conclusion was contrary to the evidence, and was overturned. ‘The claimant retains the burden of persuasion; but, given the need for an explanation the defendant must, in the first instance, produce an explanation that at least goes far enough to raise questions about the initial assumption of negligence.’ and ‘ . . There was a heavy burden on Professor Rodeck to reconcile his incorrect conclusions with the exercise of all reasonable care and skill.’
Arden LJ (dissenting): ‘In this case once it was accepted that Professor Rodeck had performed a careful scan and that he must have seen mimicking echoes, the scan which he performed, even with its incorrect diagnosis, could not without more establish a prima facie case of negligence. It all depended on what those mimicking echoes were, and how they should have been interpreted by a reasonably competent tertiary sinologist. The appellant had to adduce expert evidence about this and the respondent had to adduce expert evidence in response. The judge then had to decide, on a balance of probabilities, whether Professor Rodeck was negligent. In that assessment the respondent did not in my judgment have to show that, on a balance of probabilities, Professor Rodeck was not negligent. The onus of proof remains on the claimant.’

Judges:

Lord Justice Buxton Lady Justice Arden Lord Justice Latham

Citations:

[2005] EWCA Civ 1466

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromLillywhite and Another v University College London Hospitals NHS Trust QBD 3-Nov-2004
The clamant’s daughter had been born with serious brain defects. The defendant’s doctor had failed to spot the defect in an ultra scan before her birth. There had been discussions about the scan, and the claimant had considered having an abortion, . .
CitedPenney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
CitedDelaney v Southmead Health Authority CA 1995
The plaintiff had sustained a lesion of the brachial plexus after a successful operation to remove her gall bladder. She claimed that this must have been occasioned by hyper abduction of her left arm by the anaesthetist at some point during the . .
CitedP v Leeds Teaching Hospitals NHS Trust QBD 18-Jun-2004
The claimant, when in mid pregnancy, had a routine abdominal ultra-sound scan. The sonographer could not visualise the foetal bladder, and referred her Leeds General Infirmary. The record of the scan taken there two days later showed the bladder . .
CitedRatcliffe v Plymouth and Torbay Health Authority Exeter and North Devon Health Authority CA 11-Feb-1998
The plaintiff was given a spinal anaesthetic, but subsequently suffered a serious neurological defect on the right side. The cause was a mystery. The MRI Scan showed a lesion in the thoracic spine which the plaintiff claimed must have been the . .
CitedPenney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 26 November 2022; Ref: scu.237454

Mulkerrins v Pricewaterhouse Coopers: HL 31 Jul 2003

The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, and brazenly sought to avoid laibility by denying the claimant’s standing to sue them.
Held: The claim by the bankrupt was of a special kind, it related to the very bankruptcy itself, and so could not vest in the trustee. Right or wrong this was in any event res judicata between these parties. As to the respondents, their right to be heard on this issue was severely limited.
Lord Millett said that a bankrupt’s creditors are privies of the trustee in bankruptcy and generally bound by res judicata estoppels binding a trustee.

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Millett, Lord Lord Scott of Foscote, Lord Walker of Gestingthorpe

Citations:

[2003] 4 All ER 1, [2003] All ER (D) 539, [2004] PNLR 5, [2003] UKHL 41, Gazette 02-Oct-2003, [2003] 1 WLR 1937, [2003] BPIR 1357

Links:

Bailii, House of Lords

Jurisdiction:

England and Wales

Citing:

Appeal fromMulkerrins v Pricewaterhousecoopers (A Firm) CA 12-Jan-2001
A trustee in bankruptcy had had vested in him the legal title to an action for damages for the loss to personal reputation and status of the bankrupt.
Held: A declaration that he had no interest in a claim for damages against a former . .
CitedOrd v Upton CA 7-Jan-2000
A bankrupt labourer (aged 30) after the bankruptcy order issued a writ against a doctor who had treated him for back pain before the bankruptcy order, claiming damages for negligence, including damages for pain and suffering as well as damages for . .
CitedCrown Estates Commissioners v Dorset County Council 1990
Res judicata (more properly estoppel per rem judicatam) is a form of estoppel which gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the . .
CitedBeckham v Drake HL 11-Jul-1849
Non-property assets do not pass on bankruptcy
An action was brought on a contract for hiring and service, where the plaintiff was to serve for seven years, and the defendant to pay weekly wages during that time; and the breach was a dismissal during the seven years. The plaintiff, after this . .
CitedLinden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
CitedWilson v United Counties Bank Ltd HL 1920
Bank’s duty to client’s reputation and credit
Major Wilson had left England on active service soon after the beginning of the Great War, leaving his business affairs, in a fairly precarious state, with his bank. The jury found that the bank had failed in its duty to supervise his business . .
CitedGrady v HM Prison Service CA 11-Apr-2003
The applicant appealed striking out of her employment claims against the respondent. She had been made bankrupt after lodging her appeal to the EAT, and the EAT had held that she lacked standing to pursue her claim.
Held: Employment claims are . .
CitedStein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .
CitedIn re Moritz CA 1960
Trustees had denied the defendants a sight of the exhibits to affidavits. Their’ counsel argued for a settled practice that where an application is made by trustees for directions of the Beddoe kind, then the proposed defendant beneficiaries should . .
CitedIn re Eaton 1964
. .
CitedSmith v Croft (No 2) 1987
A registered shareholder who is absolute beneficial owner can vote as he pleases, subject only to rather imprecise constraints imposed by company law.
It is essential to the exception to the rule in Foss v Harbottle that the alleged wrongdoing . .

Cited by:

CitedKhan v Trident Safeguards Ltd and others CA 19-May-2004
The claimant had ben made bankrupt. The defendant argued that his claim vested in the trustee.
Held: A discrimination claim was hybrid in nature rather than purely personal, and so it vested in the trustee. However the real issue was the . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Professional Negligence

Updated: 26 November 2022; Ref: scu.185222

Tiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd: SC 29 Nov 2017

Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial application for summary judgment, an issue arose as to damages.
Held: The appeal succeeded, though the court emphasised that the decision was sensitive to facts assumed for the purpose of the pre-trial application.
The measure of damages is, with qualifications, the sum needed to restore the claimant as closely as possible to the position that he would have been in if he had not been wronged. Where a claimant lends money, and but for a negligent valuation would not have done so, the measure is the difference between: (a) the position the claimant would have been in, had the defendant not been negligent and (b) the claimant’s actual position. This is the ‘basic comparison’ discussed by Lord Nicholls in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627. The basic comparison is typically between: (a) the amount of money lent by the claimant, plus interest on that money and (b) the value of the rights acquired under >the loan agreement plus the true value of the overvalued property

Judges:

Lady Hale, President, Lord Kerr, Lord Sumption, Lord Lloyd-Jones, Lord Briggs

Citations:

[2017] UKSC 77, [2017] 1 WLR 4627, [2018] 2 All ER 203, [2018] 1 BCLC 179, UKSC 2016/0156

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2017 Nov 06am Video, SC 2017 Nov 06pm Video

Jurisdiction:

England and Wales

Citing:

CitedNykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Appeal fromTiuta International Ltd v De Villiers Surveyors Ltd CA 1-Jul-2016
Appeal against an order giving summary judgment for the respondent, De Villiers Surveyors Ltd, on one issue relating to the claim by the appellant, Tiuta International Ltd, for damages for professional negligence.
Held: The appeal succeeded . .
CitedLowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
CitedPreferred Mortgages Ltd v Bradford and Bingley Estate Agencies Ltd CA 8-Mar-2002
. .
CitedKomercni Banka, A S v Stone and Rolls Ltd and Another ComC 15-Nov-2002
Toulson J discussed a set off against a claim for damages: ‘The question whether an alleged benefit should or should not be taken into account cannot be determined by mere application of the ‘but for’ test. Where the wrongful conduct consists of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 25 November 2022; Ref: scu.599718

The Inter-Vivos Trust of The Late William Strathdee Gordon v Campbell Riddle Breeze Paterson Llp: SCS 25 Mar 2015

(Outer House) The trustees said they had suffered losses from the negligence of the defendant solicitors in serving incorrect notices to quit under leases. The solicitors said that the claim was time barred.
Held: After hearing evidence in a preliminary proof on prescription at which the parties had agreed that the averments of breach of contract and loss were to be treated as proven, Lord Jones upheld the plea of prescription. He rejected the trustees’ argument that the prescriptive period did not begin until the Scottish Land Court issued its decision (ie 24 July 2008), which, according to the trustees, was the date on which they first knew that they had suffered loss. He held that the prescriptive period began when the trustees knowingly became liable for legal fees and outlays in pursuit of vacant possession of the fields. As it was agreed that the trustees had incurred material expense in relation to the Scottish Land Court application by 17 February 2006, the five-year prescriptive period had run its course before they commenced the legal proceedings against the respondents (on 17 May 2012). Lord Jones therefore absolved the respondents from the trustees’ claims.

Judges:

Lord Jones

Citations:

[2015] ScotCS CSOH – 31

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

At Outer HouseGordon and Others v Campbell Riddell Breeze Paterson Llp SCS 8-Mar-2016
(Extra Division, Inner House) The claimant trustees appealed from rejection of their claims of professional negligence against the defendant solicitors as out of time. The parties disputed whether the limitation period ran from the service of . .
At Outer HouseGordon and Others (Trustees of The Inter Vivos Trust) v Campbell Riddell Breeze Paterson Llp SC 15-Nov-2017
The claimants appealed from rejection of their claims for losses saying that such losses had been caused by their solicitors in failing properly to identify the tenant and the relevant lease when issuing notices to quit. The solicitors argued that . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 25 November 2022; Ref: scu.546782

Tiuta International Ltd v De Villiers Surveyors Ltd: CA 1 Jul 2016

Appeal against an order giving summary judgment for the respondent, De Villiers Surveyors Ltd, on one issue relating to the claim by the appellant, Tiuta International Ltd, for damages for professional negligence.
Held: The appeal succeeded (McCombe LJ dissenting). Moore-Bick LJ said that the deputy judgehad failed to take into account the fact that the second facility was structured as a refinancing so that the advance was used to pay off the pre-existing debt, thereby releasing the valuers from ‘any potential liability in respect of the first valuation.’ From this, he concluded that the advance under the second facility ‘stands apart from the first and the basic comparison for ascertaining the appellant’s loss is between the amount of that second loan and the value of the security.’ He explained: ‘The appellant entered into the second transaction in reliance on the respondent’s valuation. If the valuation had not been negligent, the appellant would not have entered into the second transaction, and would have suffered no loss on that transaction as a result. It would have been left with the first loan and the security for it, together with any claim it might have had against the valuer. However, that is of no relevance to the respondent in its capacity as valuer for the purposes of the second loan. The loss which the appellant sustained as a result of entering into the second transaction was the advance of the second loan, less the developer’s covenant and the true value of the security. If the value of the property was negligently overstated, the respondent will be liable to the extent that the appellant’s loss was caused by its over-valuation.’ His conclusion would have been the same even if a different valuer had prepared the original valuation on which the first facility was based. This was because the valuer ‘valued the property itself in the expectation that the appellant would advance funds up to its full reported value in reliance on its valuation. There is nothing unfair in holding the respondent liable in accordance with its own valuation for the purposes of the second transaction.’

Judges:

Moore-Bick VP CA, McCombe, King LJJ

Citations:

[2016] EWCA Civ 661

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedNykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .

Cited by:

Appeal fromTiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd SC 29-Nov-2017
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 25 November 2022; Ref: scu.566669

Swynson Ltd v Lowick Rose Llp: CA 25 Jun 2015

This appeal concerns the amount of damages recoverable by a lender from a negligent firm of accountants who failed to do a proper exercise of due diligence on the borrower to whom the money was lent. The majority of the loan was repaid by utilising money lent to the borrower by the owner of the lending company. Rose J has held that that repayment was a collateral matter which did not go to reduce the damages recoverable from the negligent accountants.
Held: (Majority) The judge had been right to regard the later refinancing as res inter alios acta. It did not therefore affect the amount of Swynson’s recoverable loss.

Judges:

Longmore, Davis, Sales LJJ

Citations:

[2015] EWCA Civ 629, [2015] PNLR 28, [2016] 1 WLR 1045, [2015] 2 CLC 102, [2015] WLR(D) 278

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See AlsoSwynson Ltd and Another v Lowick Rose Llp ChD 30-Jun-2014
The claimant said that it had received negligent advice from the defendant accountants in its financing of the purchase of a company in the US. After the company fell into difficulties, further advances were made. The parties disputed the . .

Cited by:

Appeal fromLowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 25 November 2022; Ref: scu.549462

Gordon and Others v Campbell Riddell Breeze Paterson Llp: SCS 8 Mar 2016

(Extra Division, Inner House) The claimant trustees appealed from rejection of their claims of professional negligence against the defendant solicitors as out of time. The parties disputed whether the limitation period ran from the service of defective notices on the trustees’ tenants.
Held: The appeal was refused. Section 11(3) of the 1973 Act postponed the start of the prescriptive period only when the damage was latent by requiring that the creditor should have actual or constructive knowledge of the occurrence of damage or expenditure, which was viewed as an objective fact. Accordingly, the prescriptive period ran from the time the trustees incurred liability for legal fees notwithstanding that they did not then know that their application to the Scottish Land Court would fail.

Judges:

Lady Paton

Citations:

[2016] ScotCS CSIH – 16, 2016 SC 548, 2016 GWD 9-178, 2016 SLT 580

Links:

Bailii

Statutes:

Prescription and Limitation (Scotland) Act 1973

Jurisdiction:

Scotland

Citing:

CitedDavid T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
At Outer HouseThe Inter-Vivos Trust of The Late William Strathdee Gordon v Campbell Riddle Breeze Paterson Llp SCS 25-Mar-2015
(Outer House) The trustees said they had suffered losses from the negligence of the defendant solicitors in serving incorrect notices to quit under leases. The solicitors said that the claim was time barred.
Held: After hearing evidence in a . .

Cited by:

Appeal fromGordon and Others (Trustees of The Inter Vivos Trust) v Campbell Riddell Breeze Paterson Llp SC 15-Nov-2017
The claimants appealed from rejection of their claims for losses saying that such losses had been caused by their solicitors in failing properly to identify the tenant and the relevant lease when issuing notices to quit. The solicitors argued that . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Professional Negligence

Updated: 25 November 2022; Ref: scu.562577

Gordon and Others (Trustees of The Inter Vivos Trust) v Campbell Riddell Breeze Paterson Llp: SC 15 Nov 2017

The claimants appealed from rejection of their claims for losses saying that such losses had been caused by their solicitors in failing properly to identify the tenant and the relevant lease when issuing notices to quit. The solicitors argued that the losses occurred when the defective notices were served, and by that date, the claims were debarred as out of time.
Held: The appeal failed. Section 11(3) does not postpone the start of the prescriptive period until a creditor of an obligation is aware actually or constructively that he or she has suffered a detriment in the sense that something has gone awry rendering the creditor poorer or otherwise at a disadvantage. The creditor does not have to know that he or she has a head of loss. It is sufficient that a creditor is aware that he or she has not obtained something which the creditor had sought or that he or she has incurred expenditure.
The Court accepted that the result may be harsh for some suffering loss, but also acknowledged that reform was being discussed.

Judges:

Lord Neuberger, Lord Mance, Lord Sumption, Lord Reed, Lord Hodge

Citations:

[2017] UKSC 75, UKSC 2016/0142

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Videos Summary, SC 2017 Jul 19am Video

Statutes:

Prescription and Limitation (Scotland) Act 1973

Jurisdiction:

Scotland

Citing:

Appeal fromGordon and Others v Campbell Riddell Breeze Paterson Llp SCS 8-Mar-2016
(Extra Division, Inner House) The claimant trustees appealed from rejection of their claims of professional negligence against the defendant solicitors as out of time. The parties disputed whether the limitation period ran from the service of . .
CitedDavid T Morrison and Co Ltd (T/A Gael Home Interiors) v ICL Plastics Ltd and Others SC 30-Jul-2014
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
At Outer HouseThe Inter-Vivos Trust of The Late William Strathdee Gordon v Campbell Riddle Breeze Paterson Llp SCS 25-Mar-2015
(Outer House) The trustees said they had suffered losses from the negligence of the defendant solicitors in serving incorrect notices to quit under leases. The solicitors said that the claim was time barred.
Held: After hearing evidence in a . .
CitedDunlop v McGowans HL 6-Mar-1980
The landlord of a block of flats needed vacant possession to pursue redevelopment. The respondent solicitors failed to give the necessary notice in good time, delaying the development by a year. The landlord appellant delayed five years before . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Professional Negligence

Updated: 25 November 2022; Ref: scu.599381

Swynson Ltd and Another v Lowick Rose Llp: ChD 30 Jun 2014

The claimant said that it had received negligent advice from the defendant accountants in its financing of the purchase of a company in the US. After the company fell into difficulties, further advances were made. The parties disputed the calculation of damages.

Judges:

Rose J

Citations:

[2014] EWHC 2085 (Ch), [2014] PNLR 27, [2014] CN 1161

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See AlsoSwynson Ltd v Lowick Rose Llp CA 25-Jun-2015
This appeal concerns the amount of damages recoverable by a lender from a negligent firm of accountants who failed to do a proper exercise of due diligence on the borrower to whom the money was lent. The majority of the loan was repaid by utilising . .
At First InstanceLowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 25 November 2022; Ref: scu.533666