Category: Professional Negligence

Savage v South Essex Partnership NHS Foundation Trust: QBD 21 Dec 2006

The claimant’s daughter had died after walking out of a mental health ward and being knocked down. She sought damages alleging negligence and in infringement of her daughter’s right to life.
Held: Negligence amounting to a breach of the right to life had to be gross negligence at a level which might support a charge of manslaughter. Clinical negligence only had been alleged, and the allegation of a breach of the deceased’s right to life must fail.

Judges:

Swift J

Citations:

Times 16-Feb-2007, [2006] EWHC 3562 (QB), [2006] Inquest LR 235, [2007] LS Law Medical 291

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Cited – Takoushis, Regina (on the Application of) v HM Coroner for Inner North London and others CA 30-Nov-2005
Relatives sought judicial review of the coroner’s decision not to allow a jury, and against allowance of an expert witness. The deceased had been a mental patient but had been arrested with a view to being hospitalised. He was taken first to the . .
Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .

Cited by:

Appeal from – Savage v South Essex Partnership NHS Foundation Trust and Another CA 21-Dec-2007
The claimant said that the defendant hospital had been negligent in failing to prevent her daughter escaping from the mental hospital at which she was detained and committing suicide.
Held: The status of a detained mental patient was more akin . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Human Rights, Health

Updated: 02 June 2022; Ref: scu.251415

Regent Leisuretime Ltd and others v Skerrett and Another: CA 4 Jul 2006

The court set aside a first stage wasted costs order made by the judge below against the solicitors Reynolds Porter Chamberlain. The judge had been given no indication of the costs claimed and did not have material on which he could form a view as to whether significant unnecessary costs had been caused to be incurred by reason of the solicitor’s conduct. Also, once the costs in question were considered, Lloyd LJ found that they would likely be of an order that would be totally disproportionate to the costs involved in a second stage hearing, and ‘It seems to me that although an oral application in the course of the hearing is possible pursuant to paragraph 53, that is only likely to be sensible if the scope of the application to the costs said to have been wasted is narrow and clear; . .’

Judges:

Mummery, Lloyd LJJ

Citations:

[2006] EWCA Civ 1032

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Media Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
Cited – Thames Chambers Solicitors v Miah QBD 16-May-2013
The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Costs

Updated: 02 June 2022; Ref: scu.243366

Rozzell v Speakman and Co: CA 27 Jun 2001

The defendants appealed againt a finding of negligence with regard to the execution of a second mortgage. The claimant said she had not been properly advised about the consequences of a charge to secure repayment of her husband’s debts. She said she had not been advised that on a bankruptcy, her own share in the property would be protected.
Held: The judge’s interpretation of the attendance notes, and his conclusion were inconsistent. He should have found that the risks and consequences had been explained.

Judges:

Lord Justice Longmore, Mr Justice Carnworth

Citations:

[2001] EWCA Civ 996

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence

Updated: 01 June 2022; Ref: scu.160084

Michelle Gray v Southampton and S W Hampshire Health Authority: CA 8 Jun 2001

The claimant had been operated on with respect to treatment for a tumour. Following the operation she had a grand mal fit, and suffered serious impairment. She sought damages alleging want of proper care in the period immediately following the operation, and now appealed a finding against her claim.
Held: There was evidence which went to support the claimant’s case, but none of the experts said with confidence what the cause of her severe brain damage was.

Judges:

Lord Justice Aldous, Lord Justice May, Lord Justice Rix

Citations:

[2001] EWCA Civ 855, [2001] EWCA Civ 1234

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 01 June 2022; Ref: scu.160001

Patel and Another v Daybells (a Firm): CA 27 Jul 2001

Land was purchased and a resale negotiated before it was registered. An undertaking was accepted that the seller’s solicitor would discharge all charges. The purchasers sought to avoid completion by saying the Act required them to be registered before completion. The matter was completed but the seller’s bank refused to sign the release. The bank gave one figure to release the charge, but then demanded more. The buyers’ solicitors were alleged to have been negligent, having completed on the basis of the vendor solicitor’s undertaking to discharge the mortgage. This was standard practice in conveyancing transactions.
Held: In accepting the vendor’s solicitors undertaking, the client was exposed to some degree of risk. Nevertheless, it was enough to show that the routine and approved practice of English solicitors is one on which ‘the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter’ The solicitors were not negligent.

Judges:

Mr Justice Carnwath, Lord Justice Robert Walker, Lord Justice Longmore

Citations:

[2001] EWCA Civ 1229, [2002] PNLR 6

Links:

Bailii

Statutes:

Land Registration Act 1925 110(5), Law Society’s Code for Completion by Post 1984

Jurisdiction:

England and Wales

Citing:

Cited – Edward Wong Finance Co Ltd v Johnson Stokes and Master PC 1984
(Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the . .
Cited – Bolitho 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 . .
Cited – National Home Loans Corporation v Kaufmann 21-Jun-1995
. .

Cited by:

Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Damages

Updated: 01 June 2022; Ref: scu.159904

Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust: CA 16 Jul 2001

The claimant had suffered polio almost all her life. She fell, and was recommended to wear a calliper. She refused. Ultimately, an amputation was advised and in due course her leg was amputated above the knee by surgical operation. She commenced proceedings against the Bank, her employer, for failing properly to maintain the forecourt where she had fallen. The Bank asserted in its defence that the amputation and consequent problems were due to the negligence of the hospital. After the claimant added the hospital as a defendant, the bank settled with the claimant and now sought a contribution from the Trust.
Held: The lack of evidence from the doctors made it difficult to apportion the damages. The bank had failed to maintain the land on which she was injured and was liable for 25%, but the rest fell to the doctors. The negligent advice regarding amputation had not broken the chain of causation with regard to the bank’s own liability.

Judges:

Lord Justice Henry Lord Justice Judge And Lady Justice Hale

Citations:

[2001] EWCA Civ 1141, [2001] Lloyd’s Rep Med 500, [2002] PIQR P8

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Luke v Kingsley Smith and Company and Others QBD 23-Jun-2003
The claimant sued various of those who had represented him in a claim against the Ministry of Defence. He believed that he had had to accept an inadequate sum in settlement after being at risk of losing the claim for non-prosecution. The defendant . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury

Updated: 31 May 2022; Ref: scu.147616

Hammersmith Hospitals NHS Trust and others v Troup Bywaters and Anders (a Firm): CA 25 May 2001

Correctly construing apparently sceptical expert witness as to ‘reasonable body of professional opinion’ in a fact rich case.

Judges:

Lord Justice Brooke, Lord Justice Sedley And Lord Justice Dyson

Citations:

[2001] EWCA Civ 793

Links:

Bailii

Jurisdiction:

England and Wales

Evidence, Professional Negligence, Litigation Practice

Updated: 31 May 2022; Ref: scu.147571

Day v Cook: CA 26 Apr 2001

Citations:

[2001] EWCA Civ 592

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Webster v Sandersons Solicitors (A Firm) CA 31-Jul-2009
The claimant apealed against refusal of permission to amend his claim for negligence against his former solicitors by adding claims from 1993 and 1994 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Company

Updated: 31 May 2022; Ref: scu.147517

L (Minor), P (Father) v Reading Borough Council Chief Constable of Thames Valley Police: CA 12 Mar 2001

A social worker and police officer interviewed a child and father on allegations of sexual abuse made by the mother. No criminal proceedings followed, but the father alleged that the misrepresentation of the interviews by the officer and social worker led to later care proceedings. The allegations were false. The court allowed an appeal against an order striking out the case against the police officer. Having interviewed the father, and it having been decided that no criminal proceedings would follow, a duty of care had arisen as between the officer and the interviewee as to the future use of the material from the interview. The case against the police should not be struck out on the basis of a witness immunity in these circumstances.

Citations:

Gazette 03-May-2001, [2001] EWCA Civ 346, [2001] 1 WLR 1575

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Police, Litigation Practice

Updated: 31 May 2022; Ref: scu.147466

J Jarvis and Sons Ltd v Castle Wharf Developments Ltd, Gleeds Management Services Ltd, Franklin Ellis Architects Ltd: CA 19 Jan 2001

Judges:

Peter Gibson, Arden LJJ, Collins J

Citations:

[2001] EWCA Civ 19, [2001] Lloyds Rep PN 308, (2001) 17 Const LJ 430, [2001] NPC 15

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Professional Negligence, Agency

Updated: 31 May 2022; Ref: scu.147399

Somatra Limited v Sinclair Roche and Temperley (a Firm) etc: CA 26 Jul 2000

In an action between clients and their solicitors, the solicitors produced at an interlocutory hearing evidence derived from without prejudice discussions. The claimants applied for disclosure of all such documents, but this was rejected on the basis that the evidence would not be admissible at trial.
Held: The evidence having been introduced already by the defendants, it would not be just if they were not admitted in evidence in full at trial.
Clark LJ said: ‘The infringement in the present case is that Sinclair’s opened up issues on the merits which will be the very questions to be determined by the trial judge. It seems to me that no party who has taken part in without prejudice discussions should be entitled to use them to his advantage on the merits of the case in one context, but then assert a right to prevent its opponent from doing so on the merits at the trial.’

Judges:

Clark LJ

Citations:

Gazette 14-Sep-2000, Times 22-Sep-2000, [2000] EWCA Civ 229, [2000] 1 WLR 2453

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .

Cited by:

Cited – Jamie v Management Solution Partners Ltd EAT 31-Jan-2006
The claimant received an email from his employers and resigned claiming unfair dismissal saying that it was repudiatory. The employers objected to the admission of the email into evidence saying that it was marked without prejudice and subject to . .
Cited – Ravenscroft v Canal and River Trust ChD 14-Sep-2016
Special Circumstances to appoint McKenzie Friend
An application was made to have a nominated person appointed as McKenzie friend and as advocate for the claimant. The claimant’s narrow boat had been seized by the defendant for non payment of licence fees and for not having a Pleasure Boat . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Professional Negligence

Updated: 31 May 2022; Ref: scu.147262

Gorham and others v British Telecommunications Limited Plc, the Trustees of the BT Pension Scheme Standard Life Assurance Company S/S: CA 27 Jul 2000

Where an insurance company gave financial advice to a person to whom they owed a duty of care, and they were aware that that person was intending to provide for his dependants, then the insurance company owed the dependants a duty of care also. The principle established in White v Jones should not be narrowly construed. The advice presumed such an interest in the person receiving the advice.

Citations:

Times 16-Aug-2000, Gazette 05-Oct-2000, [2000] EWCA Civ 234, [2000] 4 All ER 867, [2000] 1 WLR 2129

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – White 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 . .

Cited by:

Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
Lists of cited by and citing cases may be incomplete.

Insurance, Professional Negligence

Updated: 31 May 2022; Ref: scu.147267

Kathleen Magaret Oakes v Mr P W Hopcroft: CA 27 Jul 2000

The claimant needed correct medical advice and legal advice before she knew that she had settled her original personal injury claim at too low a figure.

Citations:

[2000] EWCA Civ 237, [2000] Lloyd’s Rep Med 394

Links:

Bailii

Statutes:

Limitation Act 1980 14A

Jurisdiction:

England and Wales

Cited by:

Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 31 May 2022; Ref: scu.147270

Dickinson (T/a John Dickinson Equipment Finance) v Rushmer (T/a F J Associates): CA 14 Feb 2000

Citations:

[2000] EWCA Civ 42

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Rushmer and Another v Countrywide Surveyors (1994) Ltd and Another TCC 21-Jul-1999
The measure of damages for a negligent survey was either the excess paid, or the diminution of value. The question of the uncertainty of what decisions would have been taken had further surveys been made was of no significance. The wrongly surveyed . .

Cited by:

Appealed to – Rushmer and Another v Countrywide Surveyors (1994) Ltd and Another TCC 21-Jul-1999
The measure of damages for a negligent survey was either the excess paid, or the diminution of value. The question of the uncertainty of what decisions would have been taken had further surveys been made was of no significance. The wrongly surveyed . .
See Also – Dickinson v Rushmer SCCO 21-Dec-2001
CourtService After strenuously contested proceedings in the County Court for an account the claimant recovered some andpound;18,000, and subsequently submitted a bill for andpound;86,000 odd. The indemnity . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 31 May 2022; Ref: scu.147075

James 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 necessary for the purpose of extending the limitation period pursuant to Section 32(1)(b) to demonstrate that the fact relevant to the claimant’s right of action has been deliberately concealed in any sense greater than that the commission of the act was deliberate in the sense of being intentional and that that act or omission, as the case may be, did involve a breach of duty whether or not the actor appreciated that legal consequence.’

Citations:

[1999] EWCA Civ 1797, [2002] 1 WLR 598, [2001] 1 All ER 172

Links:

Bailii

Statutes:

Limitation Act 1980 32(2)

Jurisdiction:

England and Wales

Citing:

Cited – King v Victor Parsons CA 1973
Lord Denning MR discussed the meaing of ‘fraud’ in the section: ‘The word ‘fraud’ is not used in the common law sense. It is used in the equitable sense to denote conduct by the defendant or its agent such that it would be ‘against conscience’ for . .

Cited by:

Overruled – Cave 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 . .
Cited – 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 . .
Cited – Ezekiel 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 . .
Doubted – Cave v Robinson Jarvis and Rolf CA 20-Feb-2001
The court was asked as to the meaning of the word ‘deliberate’ as it appeared in section 32(2) of the 1980 Act. . .
Cited – Ezekiel v Lehrer CA 30-Jan-2002
The applicant claimed that his solicitor had been negligent with regard to the execution of a mortgage. The solicitor said his claim was time barred. The claimant said the solicitor had hidden the true situation from him, and the solicitor replied . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 30 May 2022; Ref: scu.146712

Patel and Patel v Hooper and Jackson: CA 10 Nov 1998

Dispute about the amount of damages to be awarded against surveyors who made a negligent overvaluation of a house for mortgage purposes on which the purchasers also relied. The surveyors expressed the opinion that the value of the house was in the region of andpound;90,000, whereas its actual value was andpound;65,000. The purchasers say that the house was uninhabitable and, further, that they were unable to resell it.

Judges:

Nourse, Ward,Mantell LJJ

Citations:

[1999] 1 WLR 1792, [1998] EWCA Civ 1734

Links:

Bailii

Jurisdiction:

England and Wales

Damages, Professional Negligence

Updated: 30 May 2022; Ref: scu.145213

Pearce and Pearce v United Bristol Healthcare NHS Trust: CA 20 May 1998

A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.’

Judges:

Woolf MR, Lodge Mummery LJJ

Citations:

[1998] EWCA Civ 865, [1999] PIQR P53

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Bolam 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 – Bolitho 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 . .

Cited by:

Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 30 May 2022; Ref: scu.144344

Hatswell v Goldbergs (a firm): CA 2002

The claimant sought damages from his solicitors where his claim for medical negligence was struck out for delay. The High Court declared his claim as of no value.
Held: The underlying claim in medical negligence was made simply impossible by a complete and determinative line of medical notes the effect of which meant that the claim was bound to fail and therefore had no value at all.

Citations:

[2002] Lloyd’s Rep PN 359

Jurisdiction:

England and Wales

Cited by:

Cited – Dixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
Cited – Haithwaite v Thomson Snell and Passmore (A Firm) QBD 30-Mar-2009
The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 29 May 2022; Ref: scu.200237

G and K Ladenbau (UK) Ltd v Crawley and De Reya: QBD 25 Apr 1977

The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when purchasers from their clients later undertook a commons search. In fact the registration was erroneous, but the question took some time to resolve.
Held: In the light of the defendants’ knowledge about the plantiff intending to develop the land, any loss of profits was an appropriate head of damages including the cost of making good the error. Registration of common rights was conclusive evidence of the matters registered. Evidence was admitted from four solicitors as to best conveyancing practice as to whether commons searches were necessary. If the land is open land, a search of the commons registers should normally be undertaken to check that land is not subject to undisclosed rights of common. The fact that the land was vacant, and that it had previously been in the ownership of a lord of the manor should have alerted the defendants. However, a solicitor should not search in every case, but exercise a discretion.

Judges:

Mocatta J

Citations:

[1978] 1 WLR 266, [1977] 2 All ER 118

Links:

lip

Statutes:

Commons Registration Act 1965 10

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General v Hanmer 1858
Letters patent granted mineral rights in the waste lands.
Held: the term included the lands between the high and low water marks. . .
Cited – Bolam 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 – In re Britford Common 1977
. .
Cited – Central Electricity Generating Board v Clwyd County Council 1976
The owner of a farm applied late for the registration of a right of common over the Dee Marsh Saltings which had been provisionally registered as common land. After an inquiry the Commons Commissioner, Hugh Francis QC, confirmed the registration of . .
Cited – In re Chewton Common 1977
. .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – Fletcher and Son v Jubb, Booth and Helliwel CA 1920
Scrutton LJ said: ‘it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between that . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – New Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
Cited – Simmons v Pennington and Son CA 1955
Solicitors Followed Historical Practice
Premises owned by the plaintiff were subject to an obsolete covenant restricting their use to that of a private dwelling house. It had in fact been used continuously for many years, both before and after the plaintiff became owner, for business . .
Cited – In re Yateley Common, Hampshire 1977
Rights of common were held to exist in land even though the land had been requisitioned for use as an airfield and had been used for that purpose for over thirty years. . .
Lists of cited by and citing cases may be incomplete.

Land, Professional Negligence, Damages

Updated: 29 May 2022; Ref: scu.178042

Spargo 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 omission to which the injury is attributable;
(2) ‘attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;
(3) a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.’
This branch of the law is grossly overloaded with reported cases. The court set out four principles for testing such actions, distinguishing the more stringent test of proof of causation from the much less rigorous statutory test of attributability’ and ‘After all, the policy of Parliament, in these cases which would otherwise be statute-barred, is to give a plaintiff who has the requisite low level of knowledge three years in which to establish by inquiry whether the identified injury was indeed probably caused by the identified omission and whether the omission (identified initially in broad terms) amounted to actionable negligence. The judge’s approach would be to stop the three years from even starting to run until a much more advanced stage of the investigation had been completed.’

Judges:

Brooke, Nourse, Waller LJJ

Citations:

(1997) 37 BMLR 99, [1997] EWCA Civ 1232, [1997] 8 Med LR 125, [1997] PIQR 235

Links:

Bailii

Statutes:

Limitation Act 1980 14(1)(b)

Jurisdiction:

England and Wales

Citing:

Appeal from – Spargo v North Essex District Health Authority QBD 1996
A plaintiff’s knowledge that her injury could be attributed to hypoxia, is not knowledge that the injury is attributable to the act or omission alleged to constitute negligence as might be pleaded in a statement of claim and no ordinary plaintiff . .

Cited by:

Applied – Mirza v Birmingham Health Authority QBD 31-Jul-2001
The claimant had undergone heart surgery as an infant in 1976, and claimed damages for professional negligence. The procedure involved a dangerous procedure, a resection of coarctation. As a consequence, the Claimant suffered a number of problems . .
Cited – Graham v Entec Europe Ltd (T/A Exploration Associates) CA 6-Aug-2003
The claimant’s bungalow suffered subsidence. Repair works were undertaken as advised by the defendants, but unsuccessfully. The claimant’s insurers instructed experts negotiators to investigate with a view to a claim. The defendants now claimed the . .
Applied – O’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
Cited – 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 . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Farraj 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 . .
Cited – Kamar v Nightingale and Another QBD 14-Dec-2007
The claimant sought damages from his barrister saying that he should have introduced evidence of his good character during the trial. The defendant appealed against the order permitting extension of the limitation period.
Held: The court had . .
Cited – Ministry 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 . .
Cited – Collins v Secretary of State for Business Innovation and Skills and Others CA 23-May-2014
The claimant appealed against rejection of his claim for personal injury which had been rejected on basis that it was out of time. He had contracted cancer in 2002, but had recovered. He later came to attribute this to exposure to asbestos at work . .
Cited – Siddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation, Personal Injury

Updated: 29 May 2022; Ref: scu.141628

Mothew (T/a Stapley and Co) v Bristol and West Building Society: CA 24 Jul 1996

The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse to further borrowing when he knew that they were using an overdraft to obtain further funding. The plaintiff claimed in breach of trust.
Held: A claim for damages for a solicitor’s failure to disclose the existence of a 2nd mortgage must show that damage flowed from the failure alleged.
Millett LJ said: ‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.’
He is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary: ‘A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to another . . This is sometimes described as ‘the double employment rule.” and
‘Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other . . If he does, he may have no alternative but to cease to act for at least one and preferably both. The fact that he cannot fulfil his obligations to one principal without being in breach of his obligations to the other will not absolve him from liability.’
As to breach of the duty: ‘Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.’
If the trustee has benefited from the breach, the court will order him to account for it on the application of the beneficiary. Millett LJ described such relief as ‘primarily restitutionary or restorative rather than compensatory’.

Judges:

Millett LJ

Citations:

Times 02-Aug-1996, [1996] EWCA Civ 533, [1998] Ch 1, [1997] 2 WLR 436, [1996] 4 All ER 698

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Birmingham Midshires Building Society v Infields (A Firm) TCC 20-May-1999
The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. . .
Cited – Arklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Marks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm) ChD 2-Jun-2004
The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the . .
Cited – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
Cited – Barnes and Another v Black Horse Ltd QBD 31-May-2011
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Portman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Cited – Leeds and Holbeck Building Society v Arthur and Cole ChD 2001
A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing . .
Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Cited – Halton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Equity, Agency

Updated: 29 May 2022; Ref: scu.140400

Maynard v West Midlands Regional Health Authority: HL 1985

The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must exercise the ordinary skill of his specialty. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to another: but that is no basis for conclusion of negligence’.
As to evidence of what constitutes evidence of professional standards, Lord Scarman said: ‘A judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge’s finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.’
Lord Scarman said: ‘A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper.’

Judges:

Lord Scarman

Citations:

[1985] 1 WLR 685, [1985] 1 All ER 635

Jurisdiction:

England and Wales

Citing:

Cited – Bolam 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 . .
Adopted – Hunter v Hanley 4-Feb-1955
The pursuer had been injured when the hypodermic needle being used by the defender doctor broke in use. The pursuer said that the direction by the judge as to accepted practice for the use of such needles.
Held: The court considered the . .
Cited – Joyce v Yeomans CA 1981
The court discussed how an appellate court should defer to the assessment of a judge at first instance of the value of an expert witness.
Brandon LJ said: ‘even when dealing with expert witnesses, a trial judge has an advantage over an . .

Cited by:

Cited – Mirza v Birmingham Health Authority QBD 31-Jul-2001
The claimant had undergone heart surgery as an infant in 1976, and claimed damages for professional negligence. The procedure involved a dangerous procedure, a resection of coarctation. As a consequence, the Claimant suffered a number of problems . .
Cited – Bolitho 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 . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Penney 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 . .
Cited – Maguire v North West Strategic Health Authority QBD 16-Nov-2012
The claimant General Practitioner doctor had been found liable for professional negligence leading to very severe injury. He now sought a contribution from the Authority, saying that their similar mistake within a few days had similarly caused the . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury

Updated: 28 May 2022; Ref: scu.183056

Countrywide Assured Group plc and others v Marshall and others (AIG Europe (UK) Ltd and others intervening): QBD 15 Oct 2002

The claimants sought payments under professional indemnity policies, allowing for excesses on individual claims. The insurer sought to limit its overall liability to any policy holder saying that the acts of mis-selling were to be viewed as part of a series, being ‘occurrences of a series [of claims] attributable to one source or original cause.’
Held: The words were clear. The excesses were not to be aggregated, but the claims for the purposes of the limit were to be aggregated. The plain meaning of the words should not be distorted.

Judges:

Morrison J

Citations:

Gazette 14-Nov-2002

Jurisdiction:

England and Wales

Insurance, Professional Negligence

Updated: 28 May 2022; Ref: scu.178144

Hoyle v Rogers and Another: CA 13 Mar 2014

The appellant had been pilot in a private plane which crashed leading to the passenger’s death. He now challenged the admission of an expert’s report, which, he said, went beyond the proper range of such a report.
Held: The report was admissible. The court approved the explanation given by Leggatt J below.

Judges:

Arden, Treacy, Christopher Clarke LJJ

Citations:

[2014] EWCA Civ 257, [2014] 3 All ER 550, [2015] 1 QB 265, [2014] 1 CLC 316, [2014] 3 WLR 148, [2014] CP Rep 30

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Rogers and Another v Hoyle QBD 23-May-2013
The claimant’s relative had died in an air accident. They sought damages from the defendant pilot, seeking to rely upon the official report of the Air Accident Investigation Bureau The court was asked as to its admissibility.
Held: It was . .

Cited by:

Cited – Moylett v Geldof and Another ChD 14-Mar-2018
Admissibility of parts of the Claimant’s expert report.
Held: ‘in so far as this report deals with whether this music was more likely to be composed on a guitar or on a piano, I consider that it is admissible and relevant expert evidence which . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Professional Negligence

Updated: 26 May 2022; Ref: scu.522395

Roiter Zucker (A Firm) v Minai: QBD 30 Nov 2005

The defendant resisted payment of her solicitors’ fees saying that they had failed in their duty to her not to exchange contracts without having finance in place to complete the purchase. It was alleged that she had tampered with documents produced to the court.

Judges:

Field J

Citations:

[2005] EWHC 2676 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 25 May 2022; Ref: scu.236702

P 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 noted under the heading ‘well visualised and appear normal’. This scan had been taken by a specialist registrar. A second ultra-sound scan a month later conducted jointly by the same registrar and the consultant noted that ‘the bladder is seen within the pelvis’. Two further ultra sound scans were taken in which no abnormality of the bladder was noted. In fact the child was born with a condition known as cloacal-exstrophy, a condition in which there is serious deformity resulting in the development of substantial parts of the abdominal content outside the abdominal wall. In that condition there was no bladder to be visualised. the duty of care owed at the Leeds General Infirmary demanded a high standard of care and skill because the scan was ‘a scan with a focus’. He concluded that ‘there is a heavy burden on Leeds when seeking to reconcile its incorrect visualisations with the exercise of all reasonable care and skill.’
Held: The claimant had established her case.

Citations:

[2004] EWHC 1392 (QB), [2004] Lloyd’s Rep Med 537

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Professional Negligence

Updated: 25 May 2022; Ref: scu.236718

Penney 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 full reliability. The court should ask what was on the slide to be seen, what would be seen by someone taking reasonable care, and whether what was so seen by a competent screener be passed.

Citations:

Times 25-Nov-1999, Gazette 08-Dec-1999, [2000] PNLR 323, [1999] EWCA Civ 3005

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Bolam 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 – Hunter v Hanley 4-Feb-1955
The pursuer had been injured when the hypodermic needle being used by the defender doctor broke in use. The pursuer said that the direction by the judge as to accepted practice for the use of such needles.
Held: The court considered the . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Bolitho 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 . .

Cited by:

Cited – Pepin v Taylor CA 10-Oct-2002
The claimant and defendant claimed defamation of each other in cross claims as to postings made on internet newsgroups messages. Mr P said that the defendant had not been identified in the defamation alleged against Mr P. The defendant had been . .
Cited – Lillywhite 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, . .
Cited – 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. . .
Cited – 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. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Updated: 23 May 2022; Ref: scu.135811

Baxall Securities Ltd Norbain SDC Ltd v Sheard Walshaw Partnership: TCC 30 Oct 2000

Judges:

Bowsher QC J

Citations:

[2001] BLR 36, [2000] EWHC Technology 53

Links:

Bailii

Cited by:

Approved – Bellefield Computer Services and others v E Turner and Sons Limited and others CA 18-Dec-2002
The defendants had carried out works of construction on the premises. They subcontracted the design, but not the supervision, of the works to architects. Years later there was a fire, which spread rapidly because of negligence in the design of a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Construction

Updated: 23 May 2022; Ref: scu.135687

Cave v Robinson Jarvis and Rolf: CA 20 Feb 2001

The court was asked as to the meaning of the word ‘deliberate’ as it appeared in section 32(2) of the 1980 Act.

Judges:

Potter, Sedley, Jonathan Parker LJ

Citations:

[2001] EWCA Civ 245, [2001] PNLR 573, [2002] 1 WLR 581, [2001] Lloyd’s Rep PN 290, 78 Con LR 1, [2001] PNLR 23, (2001) 17 Const LJ 262, [2001] CP Rep 66, [2001] 9 EGCS 229, [2001] NPC 36, [2001] Lloyds Rep PN 290

Links:

Bailii

Statutes:

Limitation Act 1980 32

Jurisdiction:

England and Wales

Citing:

Doubted – James 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 . .

Cited by:

Appeal from – Cave 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 . .
Cited – Ezekiel v Lehrer CA 30-Jan-2002
The applicant claimed that his solicitor had been negligent with regard to the execution of a mortgage. The solicitor said his claim was time barred. The claimant said the solicitor had hidden the true situation from him, and the solicitor replied . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 23 May 2022; Ref: scu.135565

Crosse and Crosse (A Firm) v Lloyds Bank Plc: CA 16 Mar 2001

Solicitors appealed a finding of professional negligence in the purchase of land which had been subject to restrictive covenants which had not been disclosed to the bank, saying that time had begun to run against the bank at a time when the bank accepted new clients as debtors under the security.

Judges:

Potter LJ, Sedley LJ, Jonathan Parker LJ

Citations:

[2001] EWCA Civ 366

Links:

Bailii

Statutes:

Limitation Act 1980 5 14A

Jurisdiction:

England and Wales

Professional Negligence, Limitation

Updated: 23 May 2022; Ref: scu.135534

Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm): CA 11 Apr 2001

The testatrix had executed her will, but the will was dependent upon deeds of gift first taking place. The will was only later dated, once the deeds had been put into effect.

Citations:

[2001] EWCA Civ 531

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Otter v Church Adams Tatham and Co ChD 1953
The plaintiff was sole administratix of her son’s estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed . .
Cited – White 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 . .
Appeal from – Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm) ChD 25-May-2000
The testatrix had executed her will, but it was left undated pending preparation and execution of a second deed. The will failed, and her executors sought damages from her solicitors for negligence. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 23 May 2022; Ref: scu.135244

Tabarrok v E D C Lord and Co (A Firm): CA 14 Feb 1997

The appellant wanted to open a pizza restaurant. He and his partners acquired a company for the purpose, which was to take a lease of premises. They sought advice from the defendants who, they said, failed to advise them of the need to be aware of dilapidations and the risks of entering into possession before the lease was formally executed.
Held: The appeal was dismissed. When the claimant executed the guarantee he knew already of the risk of liability for dilapidations. The limitation period runs from when damage arises, in this case from the giving of the negligent advice to sign a guarantee. The requested addition of the new party did not arise from an earlier mistake but from the assignment to the plaintiff. The amendment should not be allowed.
Aldous LJ said: ‘Negligent advice which results in a person giving a security by way of a charge over property or a guarantee can cause damage even before the surety is called in or before the person comes to have to honour the guarantee. That can be demonstrated by taking a case which arose in argument, when a company guarantees the loans of another company. That guarantee would have to be disclosed in the company’s accounts as it would be a liability affecting the value of the shares. If the guarantee was entered into upon negligent advice, then the loans might well have to be paid and the guarantee honoured. Thus, the potential liability of the guarantor would be greater with consequent diminution of the value of the company. ‘
Schiemann LJ said: ‘A guarantor cannot be sued on the guarantee by the creditor until there has been default by the principal debtor. It does not follow that the guarantor has not got a right of action in tort against a solicitor who allegedly negligently advised him to enter into the guarantee prior to that time. He may prefer to wait and see whether he is in fact called upon to pay but, as it seems to me, he can sue his solicitor earlier. If he does the trial judge must do what he can to assess the chance of the surety being called upon to pay under the guarantee. If this is significant, then the judge will assess the damage on the basis of the degree of probability of the surety being held liable to pay a particular sum. ‘

Judges:

Hirst LJ, Aldous LJ, Schiemann LJ

Citations:

Times 14-Feb-1997, [1997] EWCA Civ 951

Jurisdiction:

England and Wales

Citing:

Cited – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – DW 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 . .
Cited – Forster 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 . .
Cited – Baker v Ollard and Bentley CA 12-May-1982
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to . .
Cited – Hancock Shipping Limited v Kowaski Heavy Industries CA 1992
Leave was sought by the plaintiffs to amend their points of claim in circumstances where it was common ground that the amendments would introduce new causes of action which, if brought in new proceedings, would have been statute-barred. Held . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 20 May 2022; Ref: scu.89686

Clark v Braintree Clinical Services Ltd: QBD 9 Nov 2015

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

Judges:

Burrell QC HHJ

Citations:

[2015] EWHC 3181 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Professional Negligence

Updated: 20 May 2022; Ref: scu.555024

Penn v Bristol and West Building Society and Others: CA 24 Apr 1997

The solicitor innocently accepted instructions to sell a property, but was misled as to the identity of the wife – one of the joint owners. Unknown to him, however, Mr Penn had forged his wife’s signature on the contract documents. He was sued by the lender to the buyer (who had also been involved in the fraud).
Held: The Solicitor acting for vendor was to be held liable as having given a warranty that he was instructed by the true owners.
Waller LJ having said that the solicitor thought he was acting for the wife as well as the husband and, in all the pre-contract correspondence, negotiations and completion, held himself out as duly authorised by the husband and wife jointly, held that the building society had to establish that a promise had been made to it by the agent, to the effect that the agent had the authority of the principal, and that it had provided consideration by acting in reliance on that promise. He concluded that all the necessary ingredients were present for establishing a warranty by the solicitor in favour of the building society that the solicitor had the authority of Mrs Penn.

Judges:

Staughton, Waite, Waller LJJ

Citations:

Times 24-Apr-1997, [1997] 3 All ER 470, [1997] EWCA Civ 1416, [1997] 1 WLR 1356, [1997] PNLR 607

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Penn v Bristol and West Building Society and Others ChD 19-Jun-1995
Solicitors acting for a vendor were liable to the buyers’ mortgagees for breach of warranty of authority for vendor. The solicitor was negligent in not having verified the instructions from the wife who was the joint tenant. . .

Cited by:

Appealed to – Penn v Bristol and West Building Society and Others ChD 19-Jun-1995
Solicitors acting for a vendor were liable to the buyers’ mortgagees for breach of warranty of authority for vendor. The solicitor was negligent in not having verified the instructions from the wife who was the joint tenant. . .
Cited – A and J Fabrications (Batley) Ltd v Grant Thornton and Others ChD 1998
The plaintiffs, the majority creditors of a company in liquidation, alleged that they had agreed with Grant Thornton, the defendants, to support the appointment of one of the firm’s partners or employees as liquidator of the company, with a view to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 19 May 2022; Ref: scu.84653

Law Society v KPMG Peat Marwick and Others: CA 29 Jun 2000

The respondent accountants had certified accounts for a firm of solicitors whose dishonest defaults later lead to substantial claims on the compensation fund set up by the claimants.
Held: The Law Society who collected funds from the profession at large and would have to pay out compensation were clearly owed a duty of care by the respondents.

Citations:

Times 04-Jul-2000, Gazette 27-Jul-2000, [2000] 1 All ER 515, [2000] 1 WLR 1921, A3/2000/0175, [2000] EWCA Civ 5563

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Law 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 . .

Cited by:

Cited – Law 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, Legal Professions

Updated: 19 May 2022; Ref: scu.82963

Hirst v Etherington and Another: CA 21 Jul 1999

A solicitor, who re-assured a lender that his guarantee of a borrower’s loan, was given by him in the normal course of business, was not in fact so acting. The lender, if wanting to rely upon that re-assurance to claim against the solicitor’s partner, was to show reasonable care and competence in assessing whether the assurance was given in the normal course of a solicitor’s practice.

Citations:

Times 21-Jul-1999, Gazette 11-Aug-1999, [1999] EWCA Civ 1850, [1999] Lloyds Rep PN 938

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – J J Coughlan Ltd v Ruparelia and others CA 21-Jul-2003
The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 19 May 2022; Ref: scu.81393

Curry’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 valuation. Valuation remained an uncertain art particularly where different bases of valuation might be appropriate. Possible incentives payable by the landlord were relevant considerations. The submission made on its behalf was that it was sufficient to show that the defendant was negligent in his methodology in a way that was adverse to it, and that damages are recoverable even though the rent determined was one that a reasonably competent surveyor could have determined. That submission was firmly based on Lion Nathan. The claimant submitted that Merivale Moore was decided per incuriam, on the ground that Lion Nathan did not appear to have been cited.
Held: It was inconceivable that Lion Nathan overlooked Merivale. The doctrine of per incuriam does not apply to decisions of the Privy Council. He therefore held that he was bound to follow the ratio of Merivale Moore.

Judges:

Mr Michael Harvey QC

Citations:

Gazette 13-Oct-1999, [1999] 3 EGLR 165

Citing:

Cited – Lion Nathan Limited and others v C C Bottlers Limited and others PC 14-May-1996
(New Zealand) A company was sold with a warranty that the sales figures would meet projected earnings. The purchaser successfully complained after the event that the figures were false and misleading. They appealed an order increasing the damages on . .
Cited – 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 . .

Cited by:

Cited – Goldstein 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: 19 May 2022; Ref: scu.79716

Aylwen v Taylor Joynson Garrett: CA 19 Jul 2001

The claimant sought damages for negligence against solicitors for failing to complete a purchase and to keep her informed of all relevant matters. She sought damages for the loss of the profit she might have made had she purchased the property and resold it. The solicitors applied for and were granted summary judgment against her on the basis that the losses were to be assessed at the date of the negligence alleged, and that she therefore had no losses as such. She could have invested the money she had not spent in other property.
Held: Her appeal was dismissed. There was no evidence that the property was in any way unique, nor that she could not have invested her money in other property.

Judges:

Arden LJ

Citations:

Gazette 19-Jul-2001, [2001] EWCA Civ 1171

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Aylwen v Taylor Joynson Garrett (A Firm) CA 21-Feb-2001
. .

Cited by:

Cited – Sawyer 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, Damages, Professional Negligence

Updated: 18 May 2022; Ref: scu.78035

Arthur J S Hall and Co (A Firm) v Simons etc: CA 14 Dec 1998

The court considered the limits on liability for professional negligence for lawyers in conduct associated with litigation, but outside the courtroom.
Held: Though the court must balance the need for protection against negligence by lawyers with the need to avoid re-litigation of issues settled by courts, case law dictates some exemptions, but these must be limited and any doubt resolved against the practitioner.

Judges:

Lord Bingham of Cornhill LCJ, Mottitt LJ, Waller LJ

Citations:

Times 18-Dec-1998, [1998] EWCA Civ 1943, [1999] 3 WLR 873, [1998] EWCA Civ 3539, [1999] 1 FLR 536, [1999] PNLR 374, [1999] 2 FCR 193, [1998] NPC 162, [1999] Fam Law 215, [1999] Lloyd’s Rep PN 47

Links:

Bailii, Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Worldwide Corporation Limited v Marconi Communications Ltd (Formerly Gpt Limited) and Gpt (Middle East) Limited CA 21-Jun-1999
Counsel, giving assurances in open court on behalf of his client, bound that client. This applied even though counsel might have been negligent, and / or might, in turn, be immune from suit. Courts must be able to rely, and act, upon assurances . .
Cited – Worldwide Corporation Limited v Marconi Communications Limited (Formerly GPT Limited) and GPT (Middle East) Limited 22-Jun-1999
Application for leave to appeal. Original leading counsel had consented to the abandonment of parts of the claim. New leading counsel now sought to revive them.
Held: The claim had little prospect of success. Leave to appeal refused. . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 17 May 2022; Ref: scu.77881

Al-Sabah v Ali and Others: ChD 3 Feb 1999

The solicitor employers of a solicitor who had acted under powers of attorney in transactions between the attorney and the principal which later proved fraudulent were negligent. The Land Registry was liable for the balance of damage suffered. Mance J: ‘.. the answer to this problem seems to lie in recognising that, for dishonest assistance, the defendant’s dishonesty must have been towards the plaintiff in relation to property held or potentially held on trust or constructive trust, rather than the introduction of a separate criterion of knowledge of any such trust.’

Judges:

Mance J

Citations:

Gazette 03-Feb-1999, [1999] CLC 1469,

Statutes:

Land Registration Act 1925 83

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 17 May 2022; Ref: scu.77768

Alliance and Leicester Plc v Lewis: CA 17 Feb 1999

The issue of proceedings within only 12 days of six year limitation period followed by an 18 month delay was not under the present rules sufficient to warrant a strike out, since insufficient prejudice shown, but would probably under the new rules.

Citations:

Gazette 17-Feb-1999

Jurisdiction:

England and Wales

Professional Negligence

Updated: 17 May 2022; Ref: scu.77750

Governors of the Hospital of Sick Children v McLaughlin and Harvey plc: 1987

Citations:

(1987) Con LR 25

Cited by:

Cited – Finecard International Ltd (T/A the Ninja Corporation) v Urquhart Dyke and Lord (A Firm) and Another ChD 10-Nov-2005
The defendants sought an interim ruling that they were not the cause of the claimant’s losses. They had acted as patent agents to license to exploit the claimant’s patent in the UK. They alleged that the failure to complete the registration of the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 17 May 2022; Ref: scu.234848

Clarke v Bruce Lance and Co: CA 1988

The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the solicitors handled. In 1978 the solicitors were retained by the testator to act on his behalf in drawing up a variation to the lease to include an option to purchase in favour of the lessee at a fixed price. The testator died in 1981. By that time the value of the service station had increased substantially. The plaintiff brought an action against the solicitors claiming damages for negligence, contending that the solicitors had breached the duty they owed to the testator, and to the plaintiff beneficiary knowing that his interest would be affected, and to advise the testator that the fixed price option was an uncommercial transaction.Held: A solicitor had no duty of care to a beneficiary when arranging a transaction subsequent to the will which would adversely affect the value of the gifted property.
Balcombe LJ said: ‘If the defendants were under a liability to a potential beneficiary of the property, it cannot have been to the plaintiff alone. As a matter of logic, the plaintiff, at the time of the grant of the option, was in no different a position vis-a-vis the defendants than anyone to whom the testator might have given the property during his lifetime, or to whom it might pass under his will or intestacy. So if the defendants owed a duty to anyone other than their client, the testator, it must have been to the whole of this indeterminate class of potential donees or beneficiaries. It would indeed have exposed them to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.’ He rejected that argument.
. . And ‘Far from the interests of the testator and the plaintiff marching hand in hand, there was an obvious conflict of interest. Supposing the defendants had warned the testator that the option he wished to grant Hoare was improvident from the point of view of the persons who might ultimately become entitled to the property after the testator’s death, then in the context of the fact that the option formed but one term of a larger transaction (the deed of variation) into which the testator wished to enter, he might well have instructed the defendants to go ahead in any event. But if they owed a duty of care to the plaintiff, they would have been bound to try and dissuade him: an intolerable position for any solicitor.’

Judges:

Balcombe LJ

Citations:

[1988] 1 All ER 364, [1988] 1 WLR 881, [1989] ANZ Conv R 25, (1988) 85 LSG 37

Jurisdiction:

England and Wales

Citing:

Distinguished – Gartside v Sheffield Young and Ellis 1983
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the . .

Cited by:

Cited – Dean v Allin and Watts (a Firm) CA 23-May-2001
An unsophisticated lender running the business of a car mechanic wanted to lend money to borrowers on the security of real property owned by an associate of the borrowers. The borrowers instructed the defendant solicitors to give effect to this . .
Cited – Rind v Theodore Goddard (A Firm) and others ChD 11-Mar-2008
. .
Cited – Matthews v Hunter and Robertson Ltd SCS 11-Jun-2008
. .
Cited – Vinton and Others v Fladgate Fielder (A Firm) and Another ChD 30-Apr-2010
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 16 May 2022; Ref: scu.188810

Loosemore v Financial Concepts: 2001

The skill and care to be expected of a financial advisor would ordinarily include compliance with the rules of the relevant regulator.

Judges:

Raymond Jack QC

Citations:

[2001] Lloyds PNLR 235

Jurisdiction:

England and Wales

Cited by:

Cited – Green and Another v The Royal Bank of Scotland Plc CA 9-Oct-2013
The claimants appealed against a claim that they had been mis-sold interest rate swap arrangements by their bankers, thereby suffering losses. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Financial Services

Updated: 15 May 2022; Ref: scu.516356

Thomson v Christie Manson and Woods Ltd and Another: QBD 2004

Two urns had been auctioned as ‘a pair of Louis XV porphyry and gilt-bronze two-handled vases’. The buyer claimed that this was false. The parties agreed Christie’s had impliedly represented that it had reasonable grounds for its opinion.
Held: Jack J said: ‘The representation is not simply that the urns were Louis XV because that is a matter of opinion. The representation is that that was Christie’s opinion and that Christie’s had reasonable grounds for that opinion. This approach was not in issue between Ms Thomson and Christie’s and in my view is sound in principle’.

Judges:

Jack J

Citations:

[2004] EWHC 1101 (QB), [2004] PNLR 42

Jurisdiction:

England and Wales

Cited by:

Appeal from – Thomson v Christie Manson and Woods Ltd and Another CA 12-May-2005
Claim against auctioneers – antique vases – possible copies. Both parties appealed against elements of the judgment. . .
Cited – Avrora 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.

Contract, Professional Negligence

Updated: 15 May 2022; Ref: scu.463308

Deeny and Others v Gooda Walker Ltd (In Voluntary Liquidation) and Others: QBD 5 Oct 1994

Names at Lloyds could reasonably expect due skill and care to be exercised in the choice of risks accepted on their behalf by underwriters. Incompetence in the writing of ‘excess of loss’ business gave rise to claim for negligence.

Citations:

Times 07-Oct-1994, Independent 05-Oct-1994

Professional Negligence, Insurance

Updated: 15 May 2022; Ref: scu.79875

Derry 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 failure to diagnose.

Citations:

Times 08-Jun-1998

Statutes:

Crown Proceedings Act 1947

Cited by:

Appeal from – 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. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions, Armed Forces

Updated: 15 May 2022; Ref: scu.79928

Clunis v Camden and Islington Health Authority: QBD 12 Dec 1996

The plaintiff brought proceedings against the defendant health authority for negligence and breach of duty of care on the ground that, if he had been properly treated, he would not have killed his victim and would not have been convicted of the offence of manslaughter. He alleged that the consequence of the defendant’s breach of duty was that he would be detained for longer than he otherwise would have been under section 3 MHA 1983 and that he was unlikely to regain his liberty for many years. His case was that his damages were caused by or directly related to his criminal sentence. The defendant applied for an order striking out the plaintiff’s claim on the ground that the claim was based substantially, if not entirely, upon the plaintiff’s own illegal act.
Held: The strike out was refused. A claimant may make a claim for self inflicted harm if that had been induced by the failure to provide treatment for his mental health.

Citations:

Times 27-Dec-1996

Jurisdiction:

England and Wales

Cited by:

Appeal from – Clunis (By his Next Friend Prince) v Camden and Islington Health Authority CA 5-Dec-1997
The plaintiff had killed someone and, as a result, been convicted of manslaughter and ordered to be detained in a secure hospital when subject to after-care under section 117 of the 1983 Act. He sought damages from the health authority on the basis . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 15 May 2022; Ref: scu.79233

A and J Fabrications (Batley) Ltd v Grant Thornton and Others: ChD 1998

The plaintiffs, the majority creditors of a company in liquidation, alleged that they had agreed with Grant Thornton, the defendants, to support the appointment of one of the firm’s partners or employees as liquidator of the company, with a view to investigating the conduct of the directors, and to pay Grant Thornton’s fees up to an initial limit of pounds 5,000. A Grant Thornton member was appointed. The plaintiffs claimed damages for breach of contract, and for negligence.
Held: Ordinarily, outside creditors cannot sue a liquidator in negligence. Claims have succeeded for either a direct contract with the liquidator or as a result of the negligence and the creditors have suffered some special damage over and above other creditors.
The submission that the plaintiffs should have sued the liquidators personally, on the footing that only they, and not the firm, possessed the powers which the plaintiffs alleged had been negligently exercised was misconceived.
Jacobs J said: ‘It is true that it is employees of the firm who were the liquidators, but they only took their position as such by virtue of the contract between the plaintiff[s] and Grant Thornton. Grant Thornton, in accepting the consideration of pounds 5,000, were contracting to put their man in as liquidator. Of course once in as liquidator he would owe his duties to the company. But there is nothing inconsistent between the pleaded contract and the employee having duties to the company. The pleaded contract is, in short, that the employee/liquidator undertakes to do a proper job as liquidator. That is what Grant Thornton contracted would happen.’
On the alternate claim in negligence, it was submitted that outside special circumstances, a liquidator owes no general duty of care to creditors. Jacob J said: ‘As a generality, that may well be true, but in two cases the courts have recognised that a liquidator is under a direct duty to creditors, or owes a direct duty to creditors.’
‘Given there is a duty on these liquidators to get the money in, there was a duty to investigate what money could be got in. The pleading says they failed in that duty; in particular, they failed to keep the plaintiffs informed of the state of their investigations, and did so for such a long time that any possibility of a claim became statute-barred. [Counsel for Grant Thornton] says, again, that the plaintiffs have got the wrong party. If there was a duty in tort it was a duty on the individual liquidators, and they should be the defendants. No doubt they could be, but it seems to me that once those defendants were put in as Grant Thornton men, Grant Thornton owed a duty coterminous and dependent upon the duties of the individual liquidators to these plaintiffs.’
As to a duty under section 212, there was no reason why that statutory remedy should exclude common law remedies in contract or tort: ‘Those who undertake the task of being liquidators should reasonably expect to have to do their job properly, and should reasonably expect that if they do not do so they are answerable to those ultimately for whom they are acting, namely the creditors.’

Judges:

Jacobs J

Citations:

Times 05-Aug-1999, Gazette 11-Aug-1999, [1998] 2 BCLC 227

Statutes:

Insolvency Act 1986 212

Jurisdiction:

England and Wales

Citing:

Cited – Pulsford v Devenish ChD 1903
The liquidator in a voluntary liquidation negligently failed to inform the company’s creditors of the liquidation, and distributed the company’s assets to its contributories without regard to the creditors’ claims. The company was later dissolved. . .
Cited – James Smith and Sons (Norwood) Ltd v Goodman CA 1936
Two leases had been granted by the plaintiff to a company. Subsequently the company determined the leases but it had previously assigned the leases to a third party. The company went into liquidation and the liquidator distributed its assets. He . .
Cited – Firbank’s Executors v Humphryes CA 1886
The plaintiff was induced to enter into a transaction by the someone pretending to be the principal. The defence was that he was the principal’s innocent agent.
Held: Lord Esher MR discussed the warranty of authority: ‘The rule to be deduced . .
Cited – West London Commercial Bank v Kitson 1883
. .
Cited – Starkey v The Bank of England HL 1903
Frederick and Edgar Oliver jointly owned Consols and bank stock. Frederick instructed Starkey a stockbroker to sell them. Frederick signed the necessary powers of attorney in his own name and forged Edgar’s signature. Starkey presented the powers of . .
Cited – Penn v Bristol and West Building Society and Others CA 24-Apr-1997
The solicitor innocently accepted instructions to sell a property, but was misled as to the identity of the wife – one of the joint owners. Unknown to him, however, Mr Penn had forged his wife’s signature on the contract documents. He was sued by . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Insolvency

Updated: 15 May 2022; Ref: scu.77565

Abbott and Others v Strong and Others: ChD 9 Jul 1998

Where professional adviser gave assistance to another making representation he had no liability to the representee where that person had no reason to know of his contribution and so did not rely upon his professional reputation

Citations:

Times 09-Jul-1998

Jurisdiction:

England and Wales

Professional Negligence

Updated: 15 May 2022; Ref: scu.77606

Perry v Moysey: 1998

Citations:

[1998] PNLR 657

Cited by:

Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 14 May 2022; Ref: scu.238777

RK and MK v Oldham NHS Trust: 2003

Apprehension, fear and discomfort are not generally compensatable.

Judges:

Simon J

Citations:

[2003] Lloyds Rep Med 1

Cited by:

Appeal from – JD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal CA 31-Jul-2003
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not ‘fair just and reasonable’ to . .
Cited – AD and OH (A Child) v Bury Metropolitan Borough Council CA 17-Jan-2006
The claimants, mother and son, sought damages from the respondent after they had commenced care proceedings resulting in the son being taken into temporary care. The authority had wrongly suspected abuse. The boy was later found to suffer brittle . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 14 May 2022; Ref: scu.238720

Redman v Allied Irish Bank: 1987

The duty of care of a banker to its customer is in ‘interpreting, ascertaining and acting on’ instructions given pursuant to the mandate. A bank is not under a concomitant duty to volunteer to its customer advice about the wisdom of a particular transaction.

Judges:

Saville J

Citations:

[1987] 2 FTLR 264

Cited by:

Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Lists of cited by and citing cases may be incomplete.

Banking, Professional Negligence

Updated: 13 May 2022; Ref: scu.194780

Knowles v Scott: 1891

A company’s voluntary liquidator is the company’s agent and no action lies against for delay him save in the case of misfeasance or wilful misconduct. He is not a trustee for the creditors or contributories of a company in liquidation. Nor does he have liability as a trustee dealing with his cestui que trust. Without proof of misfeasance or wilful misconduct no action will lie against him for a delay in distributing the assets of the company. Romer J said: ‘In my view a voluntary liquidator is more rightly described as the agent of the company – an agent who has no doubt cast upon him by statute or otherwise special duties . . If this be the true position of a liquidator, and I think at any rate agency more nearly defines his true position than trusteeship, it is clear that he could not as agent be sued by a third party for negligence apart from misfeasance or personal misconduct.’

Judges:

Romer J

Citations:

[1891] 1 Ch 717, [1891] 60 LJ Ch 284, [1891] 64 LT 135, [1891] WR 523, [1891] 7 TLR 306

Jurisdiction:

England and Wales

Cited by:

Cited – Oldham and others v Georgina Kyrris and Another CA 4-Nov-2003
The claimant sought to bring a claim against the administrators of a partnership alleging a duty of care to creditors.
Held: Such an administrator owed no greater duty to creditors than would a director. That duty was no different whether the . .
Distinguished – Pulsford v Devenish ChD 1903
The liquidator in a voluntary liquidation negligently failed to inform the company’s creditors of the liquidation, and distributed the company’s assets to its contributories without regard to the creditors’ claims. The company was later dissolved. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Professional Negligence, Company

Updated: 12 May 2022; Ref: scu.190145

Pulsford v Devenish: ChD 1903

The liquidator in a voluntary liquidation negligently failed to inform the company’s creditors of the liquidation, and distributed the company’s assets to its contributories without regard to the creditors’ claims. The company was later dissolved.
Held: The creditors had a claim against the liquidator. The availability of the statutory remedy of a creditor under section 10 and the statutory right of a creditor to apply in a voluntary liquidation under section 138 ceased to exist when the company was dissolved. ‘But the duty to pay the debts is an absolute statutory duty, without limit in point of time and with no provision for the release of the voluntary liquidator.
It is not necessary to resort to trusteeship or equitable doctrines: the case is one of a duty imposed by a statute on an individual for the benefit of a class of persons, namely, creditors and the only peculiarity of the case is that the remedy created by the statute is not co-extensive in point of time with the duty, for the Act permits the destruction of the remedy before the duty has been performed.
Now the principles applicable to such a duty as I have mentioned are well settled and rest on the well-founded assumption that the Legislature does not intend its enactment to be brutum fulmen: if, therefore, a statute creates such a duty but no remedy, an action at common law (in former days action on the case) will lie for breach of such duty.’ and ‘It was urged in argument that the liquidator is merely the agent of the company; but assuming this to be so, I can see nothing inconsistent in the imposition on such agent of a duty to the company’s creditors.’

Judges:

Farwell J

Citations:

[1903] 2 Ch 625

Statutes:

Companies Act 1890 10 138

Jurisdiction:

England and Wales

Citing:

Distinguished – Knowles v Scott 1891
A company’s voluntary liquidator is the company’s agent and no action lies against for delay him save in the case of misfeasance or wilful misconduct. He is not a trustee for the creditors or contributories of a company in liquidation. Nor does he . .

Cited by:

Cited – Oldham and others v Georgina Kyrris and Another CA 4-Nov-2003
The claimant sought to bring a claim against the administrators of a partnership alleging a duty of care to creditors.
Held: Such an administrator owed no greater duty to creditors than would a director. That duty was no different whether the . .
Cited – A and J Fabrications (Batley) Ltd v Grant Thornton and Others ChD 1998
The plaintiffs, the majority creditors of a company in liquidation, alleged that they had agreed with Grant Thornton, the defendants, to support the appointment of one of the firm’s partners or employees as liquidator of the company, with a view to . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Professional Negligence, Company

Updated: 12 May 2022; Ref: scu.190147

Ashcroft v Mersey Regional Health Authority: QBD 1983

The plaintiff had surgery on her ear. The result was a major injury, and she sued in negligence.
Held: The action failed. When alleging negligence in a professional person, the question is whether on a balance of probabilities the plaintiff establishes that the defendant had failed to exercise the appropriate level of care of someone with those special skills in the suituation where those skills were called upon. Where a special skill is claimed, a higher burden of duty lies upn the person exercising it, but the test is applied without a gloss either way.

Judges:

Kilner Brown J

Citations:

[1983] 2 All ER 245

Professional Negligence

Updated: 12 May 2022; Ref: scu.188780

Bentley v Bristol and Western Hospital Authority: 1991

Citations:

[1991] 2 Med LR 359

Cited by:

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

Professional Negligence, Limitation

Updated: 12 May 2022; Ref: scu.186439

Legal and General Mortgage Services v HPC Professional Services: 1997

The claimant submitted that he was entitled to succeed in his claim gthat a valuation was negligent, either by showing that the valuer’s final figure was outside the bracket within which any competent valuer using reasonable skill and care could have valued the property (‘the result route’), or that by failing to exercise such skill and care he valued the property at an incorrect figure, albeit a figure within the appropriate bracket (‘the method route’).
Held: When looking at a property valuation to see if it was negligently prepared the court first asks whether the result was within the proper range of valuation results. Then once it is shown that the valuation falls outside the ‘bracket’ the plaintiff will by that stage have discharged an evidential burden. It will be for the defendant to show that, notwithstanding that the valuation is outside the range within which careful and competent valuers may reasonably differ, he nonetheless exercised the degree of care and skill which was appropriate in the circumstances.

Judges:

Judge Langan QC

Citations:

[1997] PNLR 567

Jurisdiction:

England and Wales

Cited by:

Cited – Lloyds 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 . .
Cited – Goldstein 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 May 2022; Ref: scu.182924

Singer 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 valuation falls within this bracket. A valuation that falls outside the permissible margin of error calls into question the valuer’s competence and the care with which he carried out his task.

Judges:

Watkins J

Citations:

[1977] 2 EGLR 84

Citing:

Cited – Bolam 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:

Cited – 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 . .
Cited – Lloyds 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 . .
Cited – Goldstein 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 May 2022; Ref: scu.182921

Calver v Westwood Veterinary Group: CA 24 Nov 2000

The defendants appealed a finding of professional negligence in their handing of a case in which a mare had miscarried. It was claimed that he had failed to spot a retained placenta. The laminitis she then suffered (found caused by negligence) led to a later miscarriage.
Held: The expert evidence had been in favour of the defendants. There was insufficient cause to depart from his findings. Appeal allowed.

Citations:

B2/2000/0108

Jurisdiction:

England and Wales

Citing:

Cited – Bolam 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 – Bolitho 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 . .
Cited – Edward Wong Finance Co Ltd v Johnson Stokes and Master PC 1984
(Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 11 May 2022; Ref: scu.135659

Thornton Springer v NEM Insurance Co Ltd and others: QBD 30 Mar 2000

The claimants were a firm of accountants who had been sued along with one partner for professional negligence. Their insurers agreed to fund the defence, which was successful. The partner was liable, The insurers declined to pay up, asserting that the practice had not been liable within the policy. The court held against the insurers. The claims against the partnership and partner were in substance the same, and fell within the scope of the cover.

Citations:

Gazette 30-Mar-2000

Jurisdiction:

England and Wales

Insurance, Professional Negligence

Updated: 11 May 2022; Ref: scu.89882