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 vaginal birth was preferable and did not given advice as to the risks involved. The negligence alleged was in the failing to discuss the risks properly.
Held: The appeal was allowed.
‘Since Sidaway . . it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services. In addition, a wider range of healthcare professionals now provide treatment and advice of one kind or another to members of the public, either as individuals, or as members of a team drawn from different professional backgrounds (with the consequence that, although this judgment is concerned particularly with doctors, it is also relevant, mutatis mutandis, to other healthcare providers). The treatment which they can offer is now understood to depend not only upon their clinical judgment, but upon bureaucratic decisions as to such matters as resource allocation, cost-containment and hospital administration: decisions which are taken by non-medical professionals. Such decisions are generally understood within a framework of institutional rather than personal responsibilities, and are in principle susceptible to challenge under public law rather than, or in addition to, the law of delict or tort. ‘
‘the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctor’s duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which is fundamentally consistent with that test . . An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. ‘

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Lord Hodge

Citations:

[2015] UKSC 11, 2015 GWD 10-179, [2015] Med LR 149, 2015 SCLR 315, (2015) 143 BMLR 47, 2015 SLT 189, [2015] 2 WLR 768, [2015] 1 AC 1430, [2015] 2 All ER 1031, [2015] WLR(D) 123, [2015] PIQR P13, UKSC 2013/0136, 2015 SC (UKSC) 63

Links:

Bailii, Bailii Summary, SC Summary, SC, WLRD

Jurisdiction:

Scotland

Citing:

At Outer HouseMontgomery v Lanarkshire Health Board SCS 30-Jul-2010
Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the medical staff at the defender hospital. She said that she had been advised a cesarian birth for her child, but the doctors had not . .
Appeal fromNM v Lanarkshire Health Board SCS 23-Jan-2013
Inner House – The pursuer and reclaimer sought reparation for son after grave injury sustained at his birth in a maternity hospital run by the defenders and respondents. She attributes that injury to negligence in a consultant obstetrician. . .
CitedCriminal proceedings against Lindqvist ECJ 6-Nov-2003
Mrs Lindqvist had set up an internet site for her local parish containing information about some of her colleagues in the parish. She gave names, jobs, hobbies and in one case some of the person’s employment and medical details. The Court decided . .
CitedAli And Ayse Duran v Turkey ECHR 8-Apr-2008
‘The requirements of Articles 2 and 3 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the . .
CitedPatricia Armani Da Silva v The United Kingdom ECHR 12-Jul-2012
The claimant’s innocent cousin Jean Charles de Menezes had been shot and killed by police officers seeking a suicide bomber. She had complained that after investigation, no police officer had been prosecuted for any serious offence of murder or . .
CriticisedSidaway 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 . .
CitedHunter 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 . .
CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
CitedBolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
CitedPearce 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 . .
CitedWyatt v Curtis CA 30-Oct-2003
The first defendant, Dr Curtis, then a locum general practitioner, failed to warn the claimant, Miss Wyatt, who presented with chickenpox, about the consequent risk to her unborn child. It was admitted at trial that this had been negligent. It was . .
CitedJones v North West Strategic Health Authority QBD 5-Feb-2010
The claimant, now 17 years old, sought damages alleging negligence by the doctors at his birth. The court now heard as a preliminary issue questions as to the liability of the defendants for the injuries suffered. He said that his mother had not . .
CitedChester 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 . .
CitedMaynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
CitedRogers v Whitaker 19-Nov-1992
High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to . .
CitedTysiac v Poland ECHR 20-Mar-2007
The applicant alleged that the circumstances of her case had given rise to violations of Article 8 of the Convention. She also relied on Article 3. The applicant further complained under Article 13 that she did not have an effective remedy at her . .
CitedMcColl v Strathclyde Regional Council SCS 29-Jun-1983
The petitioner challenged the decision of the respondents to flouridate the water supply, claiming that it was damaging to her health. Her challenge was on four gounds, namely: (1) ultra vires, (2) nuisance, (3) breach of the Water (Scotland) Act . .
CitedAiredale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
CitedRosenberg v Percival 5-Apr-2001
Austlii High Court of Australia – Negligence – Breach of duty – Surgeon’s duty to warn of material risk in proposed surgery – Identification of the material risk – Meaning of material risk.
Negligence – . .
CitedGlass v The United Kingdom ECHR 9-Mar-2004
The applicant’s adult son was disabled. There was a disagreement with the hospital about his care. The hospital considered that to alleviate his distress, he should not be resuscitated. The family wanted to take him home, fearing euthanasia. The . .
CitedD G v Ireland ECHR 16-May-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1; Violation of Art. 5-5; No violation of Art. 3; No separate issue under Art. 8 in respect of lawfulness of detention; No violation of Art. 8 in . .

Cited by:

CitedA and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
CitedIn re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury

Leading Case

Updated: 19 April 2022; Ref: scu.544222

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.

Citations:

Gazette 13-Jul-1995, Times 19-Jun-1995, [1995] FLR 938

Jurisdiction:

England and Wales

Citing:

Appealed toPenn 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 . .

Cited by:

Appeal fromPenn 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 . .
CitedAl-Sabah v Ali and Others ChD 22-Jan-1999
The claimant alleged the fraudulent transfer of properties by use of a forged power of attorney.
Held: The power was fraudulent. Solicitors had acted under the instructions of the agent. The court referred to the Law Society’s practice . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 15 April 2022; Ref: scu.84654

Sasea Finance Ltd (In Liquidation) v KPMG (A Firm): ChD 25 Aug 1998

Where an auditor had negligently failed to identify the insolvency of a company and to warn against payment of dividends, the auditor was liable in damages for dividends wrongly paid.

Citations:

Times 25-Aug-1998

Jurisdiction:

England and Wales

Citing:

Appealed toSasea Finance Ltd v KPMG (Formerly KPMG Peat Marwick Mclintock) ChD 10-May-2001
It was complained that the auditors had failed timeously to warn the company of fraud by a senior employee. The appeal concerned an application to strike out heads of claim in an action brought by the company against its auditors for negligence.

Cited by:

Appeal fromSasea Finance Ltd v KPMG (Formerly KPMG Peat Marwick Mclintock) ChD 10-May-2001
It was complained that the auditors had failed timeously to warn the company of fraud by a senior employee. The appeal concerned an application to strike out heads of claim in an action brought by the company against its auditors for negligence.
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 13 April 2022; Ref: scu.89019

Brock and Another v Northampton General Hospital Nhs Trust and Another: QBD 12 Dec 2014

The claimants sought damages after the death of their daughter whilst in the care of the defendant.

Judges:

Yelton HHJ

Citations:

[2014] EWHC 4244 (QB)

Links:

Bailii

Cited by:

CitedLiverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 April 2022; Ref: scu.540255

William John Henry Johnson v Gore Wood and Co: CA 3 Dec 2003

Judges:

Lady Justice Hale Lord Justice Potter Lady Justice Arden

Citations:

[2003] EWCA Civ 1728

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedCompania Financiera v Hamoor Tanker Corporation (‘the Borag’) CA 1981
The managers had taken on the management of the ship. In the course of a dispute, the managers had the ship arrested whilst in Capetown. The owners had to obtain a bank guarantee to secure its release, and sought the interest payments on the . .
See AlsoJohnson v Gore Wood and Co (A Firm) QBD 20-Feb-2002
The claimant alleged negligence by the defendant solicitors. . .
See AlsoJohnson v Gore Wood and Co (A Firm) ChD 3-May-2002
The respondent firm acted on behalf of the claimant’s companies in land transactions. An option had been taken to purchase land, and he instructed the defendants to exercise it. The landowner claimed the notice to exercise the option was invalidly . .
CitedMiliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
See AlsoJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .

Cited by:

See AlsoWilliam John Henry Johnson v Gore Wood and Co CA 27-Jan-2004
The defendant had made a substantial payment into court in protracted proceedings.
Held: The comparison between the payment in and the eventual amount of damages awarded should be assessed on the basis of the damages calculated as at the date . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 April 2022; Ref: scu.188406

Pirelli General Cable Works v Oscar Faber and Partners: HL 2 Jan 1983

The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the selection of materials. The defect could not have been discovered before 1972.
Held: The defendant’s appeal was allowed. In cases of physical damage, caused by negligent design or construction of a building, the cause of action occurred when the damage came into existence, whether or not it was discovered or discoverable at that time.
Lord Fraser said: ‘there is an element of confusion between damage to the plaintiff’s body and latent defect in the foundations of a building. Unless the defect is very gross, it may never lead to any damage at all to the building. It would be analogous to a predisposition or natural weakness in the human body which may never develop into disease or injury. The plaintiff’s cause of action will not accrue until damage occurs, which will commonly consist of cracks coming into existence as a result of the defect even though the cracks or the defect may be undiscovered or undiscoverable.’

Judges:

Lord Fraser

Citations:

[1983] 1 All ER 65, [1983] 2 AC 1

Jurisdiction:

England and Wales

Citing:

CitedForster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
CitedJunior Books v Veitchi Co Ltd HL 15-Jul-1982
The defendant was a specialist sub-contractor brought in to lay a floor. In laying the composition floor the defenders used too wet a mixture and applied too thin a top coat and failed to cure the material properly. As a result cracks began to . .
CitedDarley Main Colliery Co v Mitchell HL 1886
The owner of land whose land was affected by subsidence in 1868 and who received compensation from those who had worked coal and caused the subsidence, was able, in 1882 when further subsidence took place causing further injury, to bring a fresh . .

Cited by:

ConsideredD W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
CitedThe 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 . .
CitedAbbott and Another v Will Gannon and Smith Ltd CA 2-Mar-2005
The claimant had employed the defendants to design refurbishment works for their hotel. The work was said to be negligent, and the claimant sought damages. The defendant argued as a preliminary point that the claim was time barred. The question was . .
CitedInvercargill City Council v Hamlin PC 12-Feb-1996
(New Zealand) Seventeen years earlier the plaintiff had asked a builder to construct a house for him, but it now appeared that the foundations had been inadequate. The building company no longer being in existence, he sought damages from the local . .
CitedPatterson v Ministry of Defence QBD 29-Jul-1986
The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic.
Held: Material damage sufficient to set time running was the same as damage . .
MentionedRothwell v Chemical and Insulating Co Ltd and Another CA 26-Jan-2006
Each claimant sought damages after being exposed to asbestos dust. The defendants resisted saying that the injury alleged, the development of pleural plaques, was yet insufficient as damage to found a claim.
Held: (Smith LJ dissenting) The . .
CitedHaward 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.

Limitation, Professional Negligence

Updated: 12 April 2022; Ref: scu.190062

Bristol and West Building Society v Baden Barnes and Groves: QBD 13 Dec 1996

cw Proposed amendments to a plaintiff’s pleadings were insufficient to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or to introduce a new cause of action which was statute barred and did not derive from the same, or substantially the same, facts.

Citations:

Unreported, 13 December 1996

Jurisdiction:

England and Wales

Citing:

Appealed toBristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .

Cited by:

Appeal fromBristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Land, Limitation

Updated: 12 April 2022; Ref: scu.184541

Enright and another v Kwun and Another: QBD 16 May 2003

The claimant had a third child, but she had been born with Down’s syndrome. She now sought damages, saying she had not been counselled about the increased risk of such a birth, and that had she been told, she would have had the pregnancy terminated.
Held: She had not been given counselling at all in relation to the screening tests or amnioscentesis. Had she been advised, she would have taken the test. That failure was negligent

Judges:

Morlan J

Citations:

Times 20-May-2003, Gazette 17-Jul-2003

Jurisdiction:

England and Wales

Professional Negligence

Updated: 12 April 2022; Ref: scu.182418

Keith Walker v Wolferstans (a Firm): CA 10 Mar 1999

The plaintiff sought damages against the defendants for having allowed his claim to the Criminal Injuries Compensation Board to fail by limitation. He now sought leave to appeal out of time after his claim was struck out for failure to comply with an unless order.
Held: The appeal failed. The plaintiff had failed to demonstrate any error in the judge’s decision.

Citations:

[1999] EWCA Civ 939

Jurisdiction:

England and Wales

Citing:

CitedLownes v Babcock Power Limited CA 11-Feb-1998
Where a substantial delay by a solicitor leads to an unless order and puts his client at risk of having case his dismissed, the solicitor should ensure that independent advice is given. An ‘unless order’ is preliminary to a striking out order. . .
CitedHytech Limited v Coventry City Council CA 1997
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 April 2022; Ref: scu.145854

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. The betrayal of trust inherent in a breach of duty must be a deliberate act. They alleged that he knew the property was to be used for letting in breach of their offer terms. The solicitor understood the lender to know of this intention, and was negligent in not confirming it, but there was no deliberate act in breach of trust. To extend the limitation period under s32, the claimants must show that they could not have discovered the breach with reasonable diligence. They also knew of the possibility of a claim before receiving the file. The could not extend the limitation period under s 14A by their delay in obtaining expert advice.

Judges:

Judge Bowsher QC

Citations:

[1999] EWHC Technology 232

Statutes:

Limitation Act 1980 14A 32

Citing:

CitedMothew (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 . .
QuestionedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Trusts, Legal Professions

Updated: 11 April 2022; Ref: scu.135840

Harwood and Another v Taylor Vintners (a Firm): ChD 18 Mar 2003

The claimants established professional negligence against the defendant firm, but their damages were assessed at andpound;2.00.
Held: Whilst it may be much preferred for a solicitor to confirm his advice in writing, and good practice to make full attendance notes of what had been discussed in a meeting with a client, oral communication of advice remained advantageous. The only solid rule is that the client should receive proper advice, however communicated.

Judges:

Seymour QC

Citations:

Times 01-Apr-2003, Gazette 29-May-2003

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 11 April 2022; Ref: scu.180404

Wirral Borough Council v Evans and Another: ChD 20 Feb 2001

Although the administrators of an occupational pension scheme had no duty to advise a beneficiary of the scheme, they could still have a duty to act with reasonable care and skill where they took such a duty upon themselves by in fact giving specific advice to a beneficiary.

Citations:

Times 20-Feb-2001

Jurisdiction:

England and Wales

Professional Negligence, Financial Services

Updated: 10 April 2022; Ref: scu.90574

W and Others v Essex County Council and Another: QBD 16 Jul 1997

A social worker has a duty of care to inform prospective foster parents of the information which a reasonable social worker would provide.

Citations:

Times 16-Jul-1997

Jurisdiction:

England and Wales

Cited by:

Appeal fromW 1-6 v Essex County Council and Another CA 2-Apr-1998
A Local Authority had a duty of care to a fostering family when allocating children. A child was known to have a history of sexual abuse and was fostered with a family with other children, and no warning had been given.
Foster parents sued the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 10 April 2022; Ref: scu.90199

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 building, being in this case a main building rather than an outbuilding, damages were also awarded for hire of storage space.

Citations:

Gazette 21-Jul-1999

Citing:

Appealed toDickinson (T/a John Dickinson Equipment Finance) v Rushmer (T/a F J Associates) CA 14-Feb-2000
. .

Cited by:

Appeal fromDickinson (T/a John Dickinson Equipment Finance) v Rushmer (T/a F J Associates) CA 14-Feb-2000
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 10 April 2022; Ref: scu.88923

Regina v Council for Licensed Conveyancers Ex Parte Watson: QBD 16 Jun 2000

The dismissal of an action for negligence against a licensed conveyancer for failing to disclose to the client the existence of a right of way, did not prevent his professional body disciplining him out of the same facts and awarding compensation. The test of negligence is not the same as the test of whether he had provided an inadequate professional service.

Citations:

Times 16-Jun-2000

Statutes:

Courts and Legal Services Act 1990 Sch 8

Professional Negligence, Legal Professions

Updated: 09 April 2022; Ref: scu.85203

Nunnerley and Another v Warrington Health Authority and Another: QBD 26 Nov 1999

Where negligent advice lead to the birth of a disabled child who would not otherwise have been conceived, the damages to be awarded could include the costs of educating and otherwise caring for the child beyond the age of eighteen. Such duties did not finish with the end of legal responsibility.

Citations:

Times 26-Nov-1999, Gazette 25-Nov-1999

Citing:

AppliedAllen v Bloomsbury Health Authority 1993
The plaintiff sought damages after a failed sterilisation. She had been apprehensive during the pregnancy that the child might be handicapped, and in the event the child suffered from temper tantrums, a speech defect and slight dyslexia.
Held: . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages, Personal Injury

Updated: 09 April 2022; Ref: scu.84388

Mortgage Corporation v Lambert and Co (A Firm) and Another: CA 24 Apr 2000

If it was alleged that a lender could should have been aware of an overvaluation of a property so as to start the limitation clock, the owner must satisfy the court that it was reasonable at the time alleged for the lender have become obliged to obtain a retrospective valuation. That burden was not carried in this case.

Citations:

Times 24-Apr-2000, [2000] PNLR 820

Statutes:

Limitation Act 1980 14A(10)

Jurisdiction:

England and Wales

Citing:

Appeal froomMortgage Corporation v Lambert and Co (A Firm) and Another ChD 11-Oct-1999
Estimates of the real values of houses which had been taken as security for loans were not sufficiently precise to forewarn a lender of the damage resulting from earlier negligent valuations, and accordingly the lender was not fixed with notice by . .

Cited by:

Appealed toMortgage Corporation v Lambert and Co (A Firm) and Another ChD 11-Oct-1999
Estimates of the real values of houses which had been taken as security for loans were not sufficiently precise to forewarn a lender of the damage resulting from earlier negligent valuations, and accordingly the lender was not fixed with notice by . .
CitedAdams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Lists of cited by and citing cases may be incomplete.

Land, Limitation, Professional Negligence

Updated: 09 April 2022; Ref: scu.83872

McCullagh v Lane Fox and Partners Ltd: QBD 25 Jan 1994

A vendor’s estate agent was liable for a negligent misrepresentation to a party proceeding with a purchase relying upon what had been said, and without his own survey.

Citations:

Gazette 30-Mar-1994, Times 25-Jan-1994

Citing:

Appealed toMcCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .

Cited by:

Appeal fromMcCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Negligence, Agency

Updated: 09 April 2022; Ref: scu.83516

Johnson v Bingley and Others: QBD 28 Feb 1995

A breach by a solicitor of the Law Society’s ‘Guide to Professional Conduct’ was not ipso facto negligence. The guide set out what was proper and accepted practice. It was hot however mandatoty to follow it, and the existence of negligence was to be determined in accordance with the principles set out following Donoghue v Stevenson.

Judges:

B A Hytner QC

Citations:

Times 28-Feb-1995

Legal Professions, Professional Negligence

Updated: 08 April 2022; Ref: scu.82549

Jenmain Builders and Others v Steed and Steed (A Firm): CA 20 Mar 2000

The defendant firm of solicitors acted on the sale of property, but failed to notify a purchaser that he was in a contract race and that another contract had been sent out. The claimant would have been able to exchange, and to have acquired the property.
Held: The defendants had failed to follow their own professional rules and were liable, even though in this case the damages were minimal in the absence of any proof of loss of profits.
Chadwick LJ said: ‘This was a property with development potential. It is common ground that this property was no longer to be used as a village hall. It would have to be used for some other purpose; and there would have to be some development so that it could be used for that purpose. The question was: for what development could planning permission be obtained and how valuable would the property be on completion of that development? But those are the factors which a properly informed market will take into account in fixing the market value of property. The profit potential of the property is an element to be taken into account in fixing its market value. It is not suggested that there was anything special about this property to the appellants as purchasers. It is not suggested that there were not other developers in the market for property of this nature who could have made a proper assessment of the value of this property. The problem for the appellants in the present case is that they never sought to persuade the judge – and never adduced evidence to establish – that the market value of this property, Dukes Hall, was anything greater than the pounds 67,500 which the Parish Council was seeking. It is for those reasons that the claim for loss of profits is one which the court could not entertain in this case. . . In the present case, there is no evidence that these appellants would not have been able to purchase other property in the market which they could develop profitably with the use of the money which they did not lay out in the purchase of Dukes Hall. There is no evidence that the respondents, insofar as their duty lay in contract, were aware of any special circumstances which made it impossible for the respondents to employ their funds in the ordinary course of their business, or of any circumstances which suggested that this property was being sold at an under-value. Indeed, in the circumstances that they were acting for the vendors, the Parish Council, it would be most unlikely that they would regard the property as being sold at an under- value rather than at market price’.

Judges:

Chadwick LJ

Citations:

Gazette 30-Mar-2000, 2000 BNLR 616

Jurisdiction:

England and Wales

Cited by:

CitedJoyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Land, Damages

Updated: 08 April 2022; Ref: scu.82513

James v East Dorset Health Authority: CA 7 Dec 1999

A patient had an operation which appeared to have gone unsuccessfully, but only much later proved to have been the source of an injury.
Held: Time could only begin to run when the fact of the injury became known. He was not fixed with knowledge of the injury by an awareness of the deterioration following the operation.

Citations:

Times 07-Dec-1999

Statutes:

Limitation Act 1980 14

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 08 April 2022; Ref: scu.82481

Frazer Harris v Scholfield Roberts and Hill (A Firm): FD 4 Nov 1998

Barristers and solicitors have the same immunity from suit in respect of advocacy, but a solicitor may still be liable after settlement at door of court where the substantial fault lay in matters preceding that hearing and preparation of the case.

Citations:

Gazette 04-Nov-1998, [1998] 2 FLR 679

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 08 April 2022; Ref: scu.80673

Erridge v Coole and Haddock: ChD 6 Jul 2000

A solicitor had advised one party to a joint venture transaction. His advice was incorrect. He witnessed the signature of another partner who was not separately represented. Although the solicitor’s advice was negligent, and he should have regarded himself as the solicitor for that party as regards parts of the agreement impacting upon him personally, the party would have proceeded anyway, and could show no loss personal to him.

Citations:

Gazette 06-Jul-2000

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 08 April 2022; Ref: scu.80361

Cormack and Another v Washbourne, Formerly Trading As Washbourne and Co (A Firm): CA 30 Mar 2000

Where a claimant succeeded in his claim against a party, it was wrong to award costs against an insurer third party who had supported the defence where such costs exceeded the limit of liability under the financial limit of the indemnity. The insurer had been given conduct of the litigation, and only at a late stage informed the claimant of the limit on indemnity, and after the costs already exceeded that limit. Were these circumstances exceptional? No, the action of the insurers was not sufficiently self-motivated, and had been in good faith.

Citations:

Times 30-Mar-2000, Gazette 14-Apr-2000

Jurisdiction:

England and Wales

Costs, Professional Negligence, Insurance

Updated: 08 April 2022; Ref: scu.79510

Cottingham and Another v Attey Bower and Jones (A Firm): ChD 19 Apr 2000

A solicitor acted on a purchase in 1993. He asked for but did not receive copies of building regulations consents from 1985. He went ahead anyway.
Held: He had been negligent. He had been under a duty to continue the investigation, and to advise his clients that the replies relating to these consents appeared to be misleading. Some consents had been refused, and there remained a small risk of proceedings by the local authority for an injunction under section 36 (6) of the Building Act 1984, even though time limits had expired for other enforcement purposes. A solicitor is generally under a duty to provide specific information or advice, and not to advise on the wisdom of transactions in general. The fact that the claimant would not have purchased the property but for his negligence did not mean that the defendant was liable for every consequences which would not have happened but for the negligence. The loss for which he is responsible will normally be limited to the consequences of the specific information being inaccurate. Damages were awarded on the basis of the cost of rectifying the defect.

Judges:

Rimmer J

Citations:

Times 19-Apr-2000, Gazette 11-May-2000, [2000] EGCS 48, [2000] Lloyds Rep PN 591

Statutes:

Building Act 1984 36(1) 36(2)

Jurisdiction:

England and Wales

Land, Professional Negligence, Legal Professions

Updated: 08 April 2022; Ref: scu.79527

Barings Plc and Another v Coopers and Lybrand (A Firm) and Others: CA 6 Dec 1996

Whether a duty of care exists from the auditors of a subsidiary, towards its parent company is a triable issue.

Citations:

Times 06-Dec-1996, [1997] 1 BCLC 427

Jurisdiction:

England and Wales

Citing:

Appeal fromBarings Plc and Another v Coopers and Lybrand (A Firm) and Others ChD 13-Aug-1996
The need to reach one conclusion justified service of proceedings overseas on a firm’s partners, where there was a genuine issue to be decided . .

Cited by:

CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 08 April 2022; Ref: scu.78228

Ball v Banner and Others; Neill Clark (A Firm) v Healey and Baker (A Firm): ChD 23 Mar 2000

A valuer had described expected values for an property proposed as an investment promoted by a co-defendant. The valuation and prediction as to how long it might take to have it let had contributed to the representations leading to the investments being made and the assessments had been made without any effective degree of analysis or care, and the company was responsible to make a contribution of one quarter. The contribution was properly claimed since it was four square with the original claim. The ‘damage in question’ meant the loss suffered by the investors from entering into the transaction. Sections 2 (3) (a) and (b) made it ‘clear that persons may be liable in respect of the same damage without necessarily being liable in the same amounts’.

Judges:

Hart J

Citations:

Gazette 23-Mar-2000, [2000] Lloyd’s Rep PN 569

Statutes:

Civil Liability (Contribution) Act 1978 1 2(3)

Jurisdiction:

England and Wales

Cited by:

CitedNationwide Building Society v Dunlop Haywards (HLl) Ltd (T/A Dunlop Heywood Lorenz) and Cobbetts ComC 18-Feb-2009
The claimant had leant money on a property fraudulently overvalued by an employee of the now insolvent first defendant. A contribution order had been agreed by the solicitors. The court heard applications by the claimants and the solicitors against . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 08 April 2022; Ref: scu.78117

Arbuthnot and Others v Feltrim and Others; Deeny and Others v Gooda Walker Ltd and Others: QBD 12 Oct 1993

Lloyds’ names sought damages from their underwriting agents for negligence. The court had to decide as a preliminary issue whether any duty of care arose to the names.
Held: Until 1990, names signed an agreement with a member’s agent who in turn arranged for them to be served by an underwriting agency, who, and again in turn, wrote insurance business on their behalf. Some members combined these two functions and were known as ‘direct’ names, and others were known as ‘indirect’ names. The underwriting agents had absolute discretion as to what business was to be written, and could appoint sub-agents. This very wide discretion and the unlimited liability of names and payments made to underwriters, required the underwriters to exercise a duty to exercise reasonable care and skill. That could only be excluded by the clearest of contracts. Contractual obligations might replace common law duties of care, but in this case these obligations for direct names were identical. For indirect names, the obligation existed in negligence only. This case did not require any extension of the law of negligence. Any delegation to managing agents did not alter the implicit promise to members.

Judges:

Saville J

Citations:

Independent 01-Oct-1993, Times 20-Oct-1993

Jurisdiction:

England and Wales

Cited by:

Appeal fromArbuthnott v Feltrim; Deeny v Gooda Walker; Henderson v Merrett CA 14-Dec-1993
Underwriters owe a professional duty of care to Lloyds names in underwriting, even though they were acting as agents. . .
Lists of cited by and citing cases may be incomplete.

Contract, Insurance, Professional Negligence

Updated: 08 April 2022; Ref: scu.77854

NDH Properties Ltd v Lupton Fawcett Llp: ChD 16 Nov 2020

The claimant alleged negligence against a firm of solicitors. It had entered into a loan arrangement which proved excessively expensive. The firm denied any retainer on behalf of the claimant.
Held: The claimant was not a client and owed him no duty of care.

Judges:

Snowden J

Citations:

[2020] EWHC 3056 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 07 April 2022; Ref: scu.655957

Cameron and Another v Hughes Dowdall: SCS 28 Oct 2008

The pursuer sought damages for negligence by his solicitors. They had sold their business, but the solicitors were said to have failed to include in their contracts clauses necessary for their protection. The defenders claimed that the action should fail for want of prosecution. The first intimation of a claim had been given in 1990.
Held: There had been isolated delays, but the most serious delays were associated with legal aid difficulties. There was therefore no inexcusable delay.

Judges:

Morag Wise QC J

Citations:

[2007] ScotCS CSOH – 161

Links:

Bailii

Jurisdiction:

Scotland

Citing:

CitedTonner and Another v Reiach and Hall SCS 12-Jun-2007
In order to succeed in a minute asserting want of prosecution, the defender must show (i) that there had been both inordinate and inexcusable delay and (ii) that there was an ‘added element of unfairness . . specific to the particular factual . .
CitedAssets Co Ltd v Bain’s Trustees 1902
A plea of mora may be sustained in an application for judicial review, but unreasonable delay is not of itself sufficient to found a successful plea: ‘But in order to lead to such a plea receiving effect, there must in my judgment have been . .
CitedSmith v Golar-Nor Offshore A/S SCS 25-Sep-2007
. .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract

Updated: 06 April 2022; Ref: scu.277301

Raja v Lloyds Tsb Bank Plc: ChD 16 May 2000

The obligation of a mortgagee having taken possession of a property to obtain a proper price, was an obligation due in equity, and not either under the contract for the loan or as associated with the speciality agreement giving the property in charge. Nevertheless the claim was akin to an action for damages for negligence, and the period of limitation governing the action was six years.

Citations:

Times 16-May-2000

Statutes:

Limitation Act 1980 2

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 03 April 2022; Ref: scu.85655

Couper v Irwin Mitchell Llp and Others: ChD 13 Dec 2017

The claimant sought a declaration that proceedings against its former lawyers were not covered by an extended civil restraint order.
Held: The claim was within the ambit of the order, and was to be struck out, but permission was given for new proceedings subject to any limitation issues which might then apply.

Judges:

Arnold J

Citations:

[2017] EWHC 3231 (Ch), [2017] WLR(D) 826

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Professional Negligence, Litigation Practice

Updated: 02 April 2022; Ref: scu.601829

TW (A Child) v Royal Bolton Hospital NHS Foundation Trust: QBD 4 Dec 2017

Claim in negligence for damages for personal injury and consequential losses arising out of the Claimant being born at the Defendant’s hospital in March 2008 with serious brain injury.

Judges:

King J

Citations:

[2017] EWHC 3139 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 02 April 2022; Ref: scu.601125

Saunders v Central Manchester University Hospitals NHS Foundation Trust: QBD 23 Feb 2018

The Claimant seeks damages for personal injury and consequential losses arising out of alleged clinical negligence during surgery to reverse an ileostomy at Trafford General Hospital in March 2012.

Judges:

Yip J

Citations:

[2018] EWHC 343 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Professional Negligence

Updated: 01 April 2022; Ref: scu.605797

Bentleys Stokes and Loweless v Eagle Major Ltd: ChD 23 Jan 2003

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2003] EWHC 41 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedBoyce v Rendells CA 1983
The court accepted the proposition as to the extent of a solicitor’s duty of care that: ‘if, in the course of taking instructions, a professional man like a land agent or a solicitor learns of facts which reveal to him as a professional man the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 31 March 2022; Ref: scu.178799

Thomas v Hugh James Ford Simey Solicitors: CA 4 Sep 2017

Appeal by a claimant against the dismissal of his action against former solicitors for professional negligence. The point of principle which arises is whether solicitors acting in a high volume, fixed costs scheme for low value personal injury cases, are under a duty to advise about heads of claim which the client has said he does not wish to pursue and for which he says that he cannot provide supporting evidence.
Held: The appeal failed.

Judges:

Jackson, Henderson LJJ

Citations:

[2017] EWCA Civ 1303

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Personal Injury

Updated: 29 March 2022; Ref: scu.593147

Shepherd v Byrne and Partners Llp: ChD 5 May 2017

Claim against the defendant for damages for breach of contract or negligence arising out of some advice that it is alleged Mr Byrne (the founder, with others, of the defendant) gave to the claimant concerning how he and his wife might voluntarily disclose to HMRC income that had been credited to accounts opened by the claimant (or in some cases by him in the joint names of himself and his wife) initially with the Geneva branch of HSBC, or its predecessor, and then with the Geneva branch of Barclays Bank Plc but which had not been declared to tax as and when it should have been.

Judges:

Pelling QC HHJ

Citations:

[2017] EWHC 758 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 29 March 2022; Ref: scu.593125

Russell and Another v Stone (T/A PSP Consultants) and Others: TCC 29 Jun 2017

The claimants sought almost 2.2 million pounds in damages against the defendants arising out of the defendants’ quantity surveying and project management services in respect of extensive building works carried out at the claimants’ property in North London. It is the defendants’ case that the relevant defendant is the first defendant, and the claimants’ primary case is to the same effect. Save where relevant, I shall refer to them generically as ‘the defendants’.

Judges:

Coulson J

Citations:

[2017] EWHC 1555 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Professional Negligence

Updated: 27 March 2022; Ref: scu.589008

Twin Benefits Ltd v Barker: ChD 19 Jun 2017

The defendant applied to have set aside an order allowing service on him of proceedings under a trust.
Held: The application succeeded.

Judges:

Marcus Smith J

Citations:

[2017] EWHC 1412 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Trusts, Jurisdiction

Updated: 27 March 2022; Ref: scu.588219

Halsall and Others v Champion Consulting Ltd and Others: QBD 19 May 2017

The claimants’ case is that they were negligently induced to invest in two tax schemes which for convenience are referred to as the ‘charity shell’ schemes and the ‘Scion’ film scheme.

Judges:

Moulder HHJ

Citations:

[2017] EWHC 1079 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 27 March 2022; Ref: scu.588182

Correia v University Hospital of North Staffordshire NHS Trust: CA 12 May 2017

The claim in this case concerns the treatment of a painful recurrent neuroma (benign tumour of the nerve tissue) in the appellant’s right foot.

Judges:

Black, Simon LJJ

Citations:

[2017] EWCA Civ 356

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 25 March 2022; Ref: scu.583649

Lyons v Fox Williams Llp: QBD 23 Mar 2017

The claimant sought damages alleging that her claim for personal injuries and under an insurance policy had been badly handled. Having lost her claim in substance, the court now considered costs.

Judges:

Turner J

Citations:

[2017] EWHC 532 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Costs

Updated: 24 March 2022; Ref: scu.581314

Boyce v Rendells: CA 1983

The court accepted the proposition as to the extent of a solicitor’s duty of care that: ‘if, in the course of taking instructions, a professional man like a land agent or a solicitor learns of facts which reveal to him as a professional man the existence of obvious risks, then he should do more than merely advise within the strict limits of his retainer. He should call attention to and advise upon the risks.’

Judges:

Lawton LJ

Citations:

[1983] 268 EG 268

Jurisdiction:

England and Wales

Cited by:

CitedCredit Lyonnais Sa (A Body Corporate) v Russell Jones and Walker (A Firm) ChD 2-Jul-2002
The claimant sought damages for professional negligence against the defendant solicitors. A corporate lawyer had been assigned to deal with a property matter, and he had failed to appreciate the need to comply strictly with time conditions in a . .
CitedBentleys Stokes and Loweless v Eagle Major Ltd ChD 23-Jan-2003
. .
CitedKeith v Davidson Chalmers and others OHCS 21-Aug-2003
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 23 March 2022; Ref: scu.246963

Perry v Sidney Phillips and Son: CA 1982

In 1982 the surveyor failed to observe serious defects, including a leaking roof and a septic tank with an offensive smell. The plaintiff purchaser could not afford major repairs and executed only minor repairs himself. At the date of the trial the plaintiff was still occupying the house as his home. The judge awarded damages assessed in respect of repairing the defects as at the date of trial in 1981. Between the date of the trial and the hearing of the appeal the plaintiff sold the property for andpound;43,000. He had paid andpound;27,000 in 1976 in reliance upon the negligent report. It was acknowledged by the plaintiff that sale of the house without repairs having been executed made it difficult to support the award based upon the cost of repairs and his contention was that damages should be assessed on the basis of the difference in market value of the property as between its value taking into account the defects for which the judge found liability established and its value in the condition the defendants reported it to be either on the basis of values at the date of the report or at the date of judgment.
Held: When calculating the loss arising from a negligent survey, the loss is usually calculated as at the date of the purchase which followed. The decision in the Liesbosch must be confined to its facts.
Kerr LJ said: ‘If it is reasonably foreseeable that the plaintiff may be unable to mitigate or remedy the consequence of the other party’s breach as soon as he would have done if he had been provided with the necessary means to do so from the other party, then it seems to me that the principle of The Liesbosch [1933] AC 449 no longer applies in its full rigour.’
Denning MR said that damages should be on a scale which is not excessive but modest. He referred to Dodd Properties and said: ‘where there is a contract by a prospective buyer with a surveyor under which the surveyor agrees to survey a house and make a report on it – and he makes it negligently – and the client buys the house on the faith of the report, then the damages are to be assessed at the time of the breach, according to the difference in price which the buyer would have given if the report had been carefully made from that which he in fact gave owing to the negligence of the surveyor. The surveyor gives no warranty that there are no defects other than those in his report. There is no question of specific performance. The contract has already been performed, albeit negligently. The buyer is not entitled to remedy the defects and charge the cost to the surveyor. He is only entitled to damages for the breach of contract or for negligence. It was so decided by this court in Philips v. Ward [1956] 1 W.L.R. 471, followed in Simple Simon Catering Ltd. v. Binstock Miller and Co. (1973) 117 S.J. 529.’

Judges:

Denning MR, Kerr LJ, Oliver LJ

Citations:

[1982] 1 WLR 1297, [1982] 3 All ER 705, [1983-84] ANZ Conv R 72

Jurisdiction:

England and Wales

Citing:

ConfinedLiesbosch Dredger (Owners of) v Owners of SS Edison, The Liesbosch HL 28-Feb-1933
The ship Edison fouled the moorings of the Liesbosch resulting in the total loss of the dredger when it sank. It had been engaged on work in the harbour under contract with the harbour board. All the owners’ liquid resources were engaged in the . .

Cited by:

CitedSmith and Another v South Gloucestershire Council CA 31-Jul-2002
The claimants purchased land. The local search did not reveal a planning permission which affected the value of the property by applying an occupancy condition. He claimed compensation. Compensation was eventually agreed to be payable, but the . .
CitedLagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
CitedWatts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
CitedDowns and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 23 March 2022; Ref: scu.182978

D Morgan Plc v Mace and Jones (A Firm): TCC 22 Dec 2010

Issues of liability, causation and loss arising out of allegations of professional negligence against the defendant firm of solicitors, who rendered advice to the Claimant in respect of a quarry site in Cheshire.

Judges:

Coulson J

Citations:

[2010] EWHC 3375 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 23 March 2022; Ref: scu.427412

Heywood v Wellers: CA 1976

The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited form of damages awarded.
Held: She was entitled to repayment of the legal costs paid by her to her solicitors, and also a sum which would represent the additional vexation, anxiety and distress through absence of her remedy. She was not entitled to an award in respect of the stress of herself conducting the action against her former solicitors. Lord Denning described that negligence: ‘I am afraid that the solicitors were much at fault. They ought not to have left this matter to a young junior clerk with no qualifications – with no supervision by any partner. In his hands mistakes were made from beginning to end.’ Lord Denning listed a series of dreadful mistakes. ‘The upshot of it all was that the proceedings were absolutely useless to her. . That brings me to the law. . The judge approached the case on this footing: Mrs Heywood was entitled to damages for negligence, but the solicitors were entitled to their costs which they could set off against her damages. He said that the defendants ‘are not precluded from setting off what is properly due to them for their costs.’ He then calculated the set off in this way: On the one hand Mrs Heywood was entitled to damages for negligence which he set out under [a number of subparagraphs]. . He then awarded the plaintiff damages under [some of those paragraphs]. He did not quantify those damages, but said that as against them the defendants could set off all the costs recoverable by them save for [one certified exception]. . . . So the judge held that they could set off their costs against her damages, with the result that she was not entitled to any damages and they were not entitled to their costs… But as she had already paid them andpound;175 on account of those costs, she was entitled to have the money repaid to her. . . . Now I think the judge was in error in thinking that the solicitors were entitled to recover any costs at all. There are two reasons. In the first place, the contract of the solicitors was an entire contract which they were bound to carry on to the end; and, not having done so, they were not entitled to any costs . . . In the second place, the work which they did do was useless. It did nothing to forward the object which the client had in view. It did nothing to protect her from molestation. It being thus useless, they can recover nothing for it . . .’ The other two Lords Justices delivered concurring judgments.

Judges:

Lord Denning MR, James and Bridge LJJ

Citations:

[1976] QB 446, [1976] 2 WLR 101, [1976] 1 All ER 300, [1976] 2 Lloyd’s Rep 88, (1976) 120 SJ 9, Times 15-Nov-1975, [1975] EWCA Civ 11

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedIn Re Hall and Barker 1878
‘If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he . .
CitedUnderwood, Son and Piper v Lewis CA 11-May-1894
Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor . .
CitedHill v Featherstonhaugh 1831
Tindal CJ said: ‘If an attorney, through inadvertence or inexperience, – for I impute no improper motive to the plaintiff – incurs trouble which is useless to his client, he cannot make it a subject of remuneration . . Could a bricklayer, who had . .
DistinguishedCook v Swinfen CA 1967
The plaintiff could not recover damages for the mental distress of conducting litigation. The court found it difficult to draw the line as to where such damage could be identified. In this case the damage could not reasonably be said to have flowed . .
AppliedJackson v Horizon Holidays Ltd CA 5-Feb-1974
A family claimed damages for a disappointing holiday. The generous measure of damages given to the father was that the father was being fully compensated for his own mental distress, but the rule of privity of contract operated to bar the claim for . .
AppliedJarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
CitedIn Re Hall and Barker 1878
‘If a man engages to carry a box of cigars from London to Birmingham, it is an entire contract, and he cannot throw the cigars out of the carriage half-way there, and ask for half the money; or if a shoemaker agrees to make a pair of shoes, he . .
CitedIn re Massey and Carey 1884
A solicitor cannot recover his costs from his client where his negligence has rendered the work ineffective. . .
CitedUnderwood, Son and Piper v Lewis CA 11-May-1894
Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor . .
CitedHill v Featherstonhaugh 1831
Tindal CJ said: ‘If an attorney, through inadvertence or inexperience, – for I impute no improper motive to the plaintiff – incurs trouble which is useless to his client, he cannot make it a subject of remuneration . . Could a bricklayer, who had . .
CitedHadley 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 . .
CitedCox v Philips Industries Ltd 15-Oct-1975
Damages for distress, vexation and frustration, including consequent ill-health, could be recovered for breach of a contract of employment if it could be said to have been in the contemplation of the parties that the breach would cause such distress . .
CitedGroom v Crocker 1939
An action by a client against a solicitor alleging negligence in the conduct of the client’s affairs, is an action for breach of contract. A solicitor is not entitled to payment of his costs by his client where his own negligence makes the work he . .

Cited by:

CitedCrowther v C B Gallon Cuthbertson Solicitors CA 31-Jul-2001
The claimant had succeeded in his action against his former solicitors, but sought now to appeal saying he wanted a retrial with a jury.
Held: There was no prospect of the court ordering a retrial, and leave to appeal was not granted. . .
CitedCleveland Ambulance National Health Service Trust v Blane EAT 19-Feb-1997
An Industrial Tribunal can award damages for injured feelings on a complaint of action which fell short of a dismissal.
Held: Judge Peter Clark said: ‘It is nothing to the point that an award for injury to feelings cannot be recovered in a . .
CitedYoung or Logan v Falkirk and District Royal Infirmary NHS Trust SCS 3-Aug-1999
. .
CitedFarley v Skinner CA 6-Apr-2000
A surveyor was engaged to report on a property, and was specifically requested to advise on the levels of aircraft noise from a nearby airport which might affect the property. He failed to report on the proximity of a navigation beacon.
Held: . .
CitedFarley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
CitedLowes and Another v Clarke Whitehill (a Firm) CA 21-Nov-1997
. .
CitedCrowther v C B Gallon Cuthbertson Solicitors CA 31-Jul-2001
The claimant had succeeded in his action against his former solicitors, but sought now to appeal saying he wanted a retrial with a jury.
Held: There was no prospect of the court ordering a retrial, and leave to appeal was not granted. . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Contract, Damages

Updated: 23 March 2022; Ref: scu.223350

Hedley Byrne and Co Ltd v Heller and Partners Ltd: HL 28 May 1963

Banker’s Liability for Negligent Reference

The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any assumption of a duty of care to a third party when purely economic losses were at issue.
Held: Irrespective of any contract, if someone who is possessed of a special skill undertakes to apply that skill for the assistance of another person, who relies upon such skill, then a duty of care will arise. In certain circumstances a professional adviser might be liable even in the absence of a contractual or fiduciary relationship between himself and the person who had suffered some economic loss. Lord Devlin considered the sort of relationship which gave rise to a responsibility towards those who act upon information or advice and so created a duty of care towards the person so acting, saying ‘I do not understand any of your Lordships to hold that it is a responsibility imposed by law upon certain types of persons or in certain sorts of situations. It is a responsibility that is voluntarily accepted or undertaken, either generally where a general relationship, such as that of solicitor and client or banker and customer, is created, or specifically in relation to a particular transaction.’ and ‘If irrespective of contract, a doctor negligently advises a patient that he can safely pursue his occupation and he cannot and the patient’s health suffers and he loses his livelihood, the patient has a remedy. But if the doctor negligently advises him that he cannot safely pursue his occupation when in fact he can and he loses his livelihood, there is said to be no remedy. Unless, of course, the patient was a private patient and the doctor accepted half a guinea for his trouble: then the patient can recover all. I am bound to say, my Lords, that I think this to be nonsense. It is not the sort of nonsense that can arise even in the best system of law out of the need to draw nice distinctions between borderline cases. It arises, if it is the law, simply out of a refusal to make sense. The line is not drawn on any intelligible principle. It just happens to be the line which those who have been driven from the extreme assertion that negligent statements in the absence of contractual or fiduciary duty give no cause of action have in the course of their retreat so far reached.’
and, Lord Morris of Borth-y-Gest said: ‘it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that they could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.’
Lord Devlin held that the categories of special relationships which might give rise to a duty of care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, ‘but include also relationships which in the words of Lord Shaw in Nocton v Lord Ashburton are ‘equivalent to contract’ that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract.’ and
‘I have had the advantage of reading all the opinions prepared by your Lordships and of studying the terms which your Lordships have framed by way of definition of the sort of relationship which gives rise to a responsibility towards those who act upon information or advice and so creates a duty of care towards them. I do not understand any of your Lordships to hold that it is a responsibility imposed by law upon certain types of persons or in certain sorts of situations. It is a responsibility that is voluntarily accepted or undertaken, either generally where a general relationship, such as that of solicitor and client or banker and customer, is created, or specifically in relation to a particular transaction.’

Judges:

Lord Morris, Lord Devlin, Lord Reid, Lord Hodson

Citations:

[1964] AC 465, [1963] 2 All ER 575, [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101

Links:

UBC, Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

ApprovedCandler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
CitedCoggs v Bernard 1703
The defendant had care of the plaintiff’s cask of brandy. He broke the cask and spilt the brandy.
Held: A bailment can exist notwithstanding that it is gratuitous, i.e. without consideration passing from the bailor to the bailee. The . .
CitedPeek v Derry CA 1887
The court considered an action for damages for deceit: ‘As I understand the law, it is not necessary that the mis-statement should be the motive, in the sense of the only motive, the only inducement of a party who has acted to his prejudice so to . .
Appeal fromHedley Byrne and Co Ltd v Heller and Partners Ltd CA 1961
A banker giving a gratuitous reference is not required to do his best by, for instance, making inquiries from outside sources which are available to him, though this would make his reference more reliable. All that he is required to do is to conform . .
CitedCann v Willson 1888
Liability of surveyor . .
CitedDonoghue (or M’Alister) v Stevenson HL 26-May-1932
Decomposed Snail in Ginger Beer Bottle – Liability
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
CitedEverett v Griffiths HL 1921
The plaintiff had been committed to a mental hospital. The question was whether the doctor (Anklesaria) who signed the certificate to support his committal was liable to him in negligence.
Held: The House affirmed the judgment of the Court of . .
CitedDerry v Peek HL 1-Jul-1889
The House heard an action for damages for deceit or fraudulent misrepresentation.
Held: The court set out the requirements for fraud, saying that fraud is proved when it is shown that a false representation has been made knowingly or without . .
CitedEverett v Griffiths CA 1920
The plaintiff, who had been detained as a lunatic as the result of the decision of Griffiths, a Justice of the Peace and Chairman of the Board of Guardians in reliance on a medical certificate signed by Anklesaria, a Doctor, sued them both in . .
CitedFish v Kelly 1864
Mere casual observations are not to be used to found a duty of care. . .
CitedLow v Bouverie CA 1891
If a trustee chooses to answer questions from a stranger about the cestui que trust, his legal obligation is only to answer honestly and to the best of his information. He need not make enquiries to support those answers.
Bowen LJ said: . .
CitedDe La Bere v Pearson Ltd 1908
The defendant newspaper offered that its editor would give financial advice to readers who cared to seek it. He answered one enquiry for the name of a good stockbroker, with a reference to a person who, had he made enquiries, he would have . .
CitedGeorge v Skivington 1869
There was an injury to the wife, from a hair wash purchased under a contract of sale with the husband.
Held: The wife had a good cause of action. There was a duty in the vendor to use ordinary care in compounding the article sold, and that . .
CitedHaseldine v Daw and Son Ltd CA 1941
A lift engineer had failed adequately to repair a lift which as result later fell to the bottom of its shaft. The plaintiff was consequently injured. Scott LJ said: ‘The common law has throughout its long history developed as an organic growth, at . .
CitedHeaven v Pender, Trading As West India Graving Dock Company CA 30-Jul-1883
Duty Arising to Use Ordinary Care and Skill
The plaintiff was a painter. His employer engaged to repaint a ship, and the defendant erected staging to support the work. The staging collapsed because one of the ropes was singed and weakened, injuring the plaintiff.
Held: The defendant had . .
CitedHeilbut Symons and Co v Buckleton HL 11-Nov-1912
In an action of damages for fraudulent misrepresentation and breach of warranty, the plaintiff founded on a conversation between himself and the defendants’ representative. In this conversation the plaintiff said-‘I understand that you are bringing . .
CitedGrant v Australian Knitting Mills PC 21-Oct-1935
(Australia) The Board considered how a duty of care may be established: ‘All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, . .
CitedHeskell v Continental Express Ltd 1950
The court discussed how a warranty of authority could arise in an agent: ‘An agent who warrants that he has authority need warrant no more than the bare fact. In the absence of special circumstances, he makes no warranty or representation about how . .
CitedLe Lievre v Gould CA 6-Feb-1893
Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no . .
CitedMorrison Steamship Co Ltd v Greystoke Castle (Cargo Owners) HL 1946
A ship was damaged in a collision. Though their goods were not damaged, the owners of cargo on the first ship became liable to the owners of the ship for a general average contribution. The owners sued the other ship owners for their negligence. The . .
CitedNocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
CitedPasley v Freeman 1789
Tort of Deceit Set Out
The court considered the tort of deceit. A representation by one person that another person was creditworthy was actionable if made fraudulently. A false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff . .
CitedScholes v Brook 1891
Counsel for the appellant had submitted that the damages ought to be the difference between the value of the estate as stated by the valuers and the real value at that time. This submission was rejected.
Held: The argument was rightly . .
CitedParsons v Barclay and Co Ltd and Goddard CA 1910
An inquiry was made between banks as to the financial position of a customer of the defendant Bank. It was answered by the manager containing the words: ‘This information is for your private use only, and is given without any responsibility on our . .
CitedShiells v Blackburne 1789
A merchant agreed without taking any reward to enter a parcel of goods of another, along with his own at the Customs House for export. He negligently entered the goods under the wrong denomination, and both parcels were seized.
Held: The . .
CitedWilkinson v Coverdale 1793
The defendant had gratuitously undertaken to arrange insurance for the plaintiff. He had not done so, and the plaintiff sued him in negligence.
Held: He was liable.
Case will lie where a party undertakes to get a policy done for another . .
CitedWoods v Martins Bank Ltd 1958
If a bank chooses to give advice to a customer, then the Bank’s obligation is to advise with ordinary skill and care. The liability is primarily on contract: ‘In my judgment, the limits of a banker’s business cannot be laid down as a matter of law. . .
Too narrowOld Gate Estates Ltd v Toplis and Harding and Russell 1939
The case of Donoghue -v- Stevenson was restricted in its application to cases of negligence causing damage to life, limb or health. . .
CitedSkelton v London and North Western Ry Co CCP 1867
The defendant’s railway lines crossed a public footpath. The lines were bounded by gates which swung to, as required by law, but were not as usual also fastened. The deceased stopped as one train passed, but then stepped out in front of another and . .
CitedTournier v National Provincial and Union Bank of England CA 1924
The court considered the duty of confidentiality owed by a banker to his client. Bankes LJ said: ‘At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not absolute . .
CitedRutter v Palmer 1922
A party is not exempted by his contract from his own negligence ‘unless adequate words are used.’
Scrutton LJ said: ‘For the present purposes a rougher test will serve. In construing an exemption clause certain general rules may be applied: . .
CitedPlowright v Lambert 1885
The courts of equity have recognised that a fiduciary relationship can exist ‘in almost every shape’. . .
CitedGladwell v Steggall 19-Jun-1839
The plaintiff was a girl of ten years of age claimed she had been negligently treated by the defendant surgeon and apothecary. She sued in an action ex delicto, alleging a breach of the contract under which they had been employed, though it was her . .
CitedRobinson v National Bank of Scotland HL 10-Apr-1916
The pursuer claimed for false and fraudulent misrepresentation againt his bankers.
Held: A duty of care is not only owed in cases of fiduciary relationship in the narrow sense of relationships which had been recognised by the court of Chancery . .

Cited by:

AppliedCaparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
CitedAnns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
CitedMutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC 16-Nov-1971
The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
Held: The company was not itself in the business of giving such . .
CitedWilliams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption of . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedArthur 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 . .
CitedBank of Credit and Commerce International (Overseas) Limited (In Liquidation); BCCI Holdings (Luxembourg) SA (In Liquidation); Bank of Credit and Commerce International SA (In Liquidation) v Price Waterhouse CA 13-Feb-1998
The special relationship between an auditor and a bank, meant that a duty of care could extend even to a second bank with its own auditors. In determining whether there had been an assumption of responsibility, the the relevant factors would include . .
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
CitedNiru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedYianni v Edwin Evans and Sons ChD 1981
The respondent valuers reported to a building society that a property would be a sufficient security. The purchaser relied on that report to purchase the property, ignoring the advice in the lender’s form to obtain a full survey. The property was . .
AppliedChaudry v Prabhakar CA 1988
The plaintiff sued a friend of hers for wrongly advising her that a car she was thinking of buying was in good condition.
Held: An agent, even a volunteer, owed a duty of care appropriate for those circumstances. The measurement was objective, . .
CitedCommissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
CitedSpring v Guardian Assurance Plc and Others HL 7-Jul-1994
The plaintiff, who worked in financial services, complained of the terms of the reference given by his former employer. Having spoken of his behaviour towards members of the team, it went on: ‘his former superior has further stated he is a man of . .
CitedBinod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedFirst National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
CitedMcCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
CitedMidland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
CitedPrecis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
CitedRegina v Lam and Others (T/a ‘Namesakes of Torbay’) and Borough of Torbay CA 30-Jul-1997
The claimant sought damages after the planning authority allowed the first defendant to conduct a manufacturing business in the course of which spraying activities took place which caused them personal injuries and loss of business.
Held: The . .
CitedBrooks v Commissioner of Police for the Metropolis and others HL 21-Apr-2005
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . .
CitedJames McNaughton Paper Group Ltd v Hicks Anderson and Co CA 31-Jul-1990
When considering the liability of an auditor in negligence, the fact and nature of any communications direct between the auditor and the potential investor must be allowed for. The court set out a non-exhaustive list of factors to be taken into . .
CitedWest Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
CitedMachin v Adams and others CA 13-Sep-1995
. .
CitedFarraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedSutradhar v Natural Environment Research Council HL 5-Jul-2006
Preliminary Report of Risk – No Duty of Care
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
CitedAwoyomi v Radford and Another QBD 12-Jul-2007
The claimant sought damages from the defendant barristers who had represented her in criminal proceedings. They had not passed on to her the statement made by the judge in chambers that if she pleaded guilty he would not impose a sentence of . .
CitedJain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
CitedCalvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
CitedTidman v Reading Borough Council QBD 4-Nov-1994
The plaintiff wanted to sell his land. The purchaser wished to know the planning status and prospects for the land. The local authority published a leaflet encouraging those interested to seek guidance from the authority’s planning officers. The . .
CitedDesmond v The Chief Constable Of Nottinghamshhire Police QBD 1-Oct-2009
The claimant appealed against the striking out of parts of his claim alleging negligence and misfeasance. He had been arrested on suspicion of indecent assault, but then was fully cleared by a third officer. When he later applied for an enhanced CRB . .
CitedJones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
CitedMcKie v Swindon College QBD 11-Feb-2011
The claimant sought damages after having moved jobs, his former employer wrote to his new one saying that he would not be welcome back on the campus, which would be a substantial part, giving reasons.
Held: The claimant succeeded on liability. . .
CitedGlaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
CitedAvrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
CitedGreen 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. . .
CitedCramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
CitedSchubert Murphy (A Firm) v The Law Society QBD 17-Dec-2014
The claimant solicitors’ firm had acted in a purchase, but the vendors were represented by fraudsters presenting themselves as solicitors, registering with the defendant in names of retired solicitors, and who made off with the money intended for . .
CitedMichael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
CitedRhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
CitedThe Law Society of England and Wales v Schubert Murphy (A Firm) CA 25-Aug-2017
The solicitors had made use of the online facility provided by the appellant Law Society to verify the bona fides of a firm of solicitors acting for a third party to a transaction. Relying upon the information, they suffered losses, and claimed in . .
CitedDurkin v DSG Retail Ltd and Another SC 26-Mar-2014
Cancellation of Hire Finance Contract
The claimant had bought a PC with a finance agreement with the respondent. He rejected it a day later, but the respondent refused to cancel the credit agreement. The respondent had threatened to report his non-payment to credit reference companies, . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .
CitedJames-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .
CitedBanca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .
CitedPoole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Banking

Leading Case

Updated: 11 February 2022; Ref: scu.179788

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

In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and received a copy of the report, and relying on it, had bought the house. In Harris, the plaintiffs applied to the council for a mortgage, and paid the inspection fee. The form said that the valuation was confidential, and solely for the benefit of the council, which itself denied responsibility for the valuation or condition. The plaintiffs were advised to obtain their own survey. The council instructed their own employee valuer, who recommended it subject to minor repairs. His report was not shown to the plaintiffs. When the plaintiffs came to sell, the same valuer recommended a structural survey. Extensive structural repairs were required, and the property was uninhabitable and unsaleable. The plaintiffs claimed against the council and the valuer.
Held: The valuers each owed a duty of care to the buyer: ‘In what circumstances should a duty of care be owed by the adviser to those who act upon his advice? I would answer – only if it is foreseeable that if the advice is negligent the recipient is likely to suffer damage, and there is a sufficiently proximate relationship between the parties and that it is just and reasonable to impose the liability.’ The court did not think that ‘voluntary assumption of responsibility is a helpful or realistic test of liability.’
Lord Templeman said: ‘the relationship between the valuer and the purchaser is ‘akin to contract’. The valuer knows that the consideration which he receives derives from the purchaser and is passed on by the mortgagee, and the valuer also knows that the valuation will determine whether or not the purchaser buys the house.’ and ‘in my opinion the valuer assumes responsibility to both mortgagee and purchaser by agreeing to carry out a valuation for mortgage purposes knowing that the valuation fee has been paid by the purchaser and knowing that the valuation will probably be relied upon by the purchaser in order to decide whether or not to enter into a contract to purchase the house.’
Lord Griffiths: ‘The phrase ‘assumption of responsibility’ can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice’ and ‘I have already given my view that the voluntary assumption of responsibility is unlikely to be a helpful or realistic test in most cases. I therefore return to the question in what circumstances should the law deem those who give advice to have assumed responsibility to the person who acts upon the advice or, in other words, in what circumstances should a duty of care be owed by the adviser to those who act upon his advice? I would answer – only if it is foreseeable that if the advice is negligent the recipient is likely to suffer damage, that there is sufficient proximate relationship between the parties and that it is just and reasonable to impose the liability.’ and
With regard to sections 11(3) and 13(1) of the 1977 Act, Lord Griffiths said: ‘I read these provisions as introducing a ‘but for’ test in relation to the notice excluding liability. They indicate that the existence of the common law duty to take reasonable care, referred to in section 1(1)(b), is to be judged by considering whether it would exist ‘but for’ the notice excluding liability.’
Lord Jauncey: ‘The words `liability’ for negligence in section 2(2) must be read together with section 13(1) which states that the former section prevents the exclusion of liability of `notices which exclude or restrict the relevant obligation or duty’. These words are unambiguous and are entirely appropriate to cover a disclaimer which prevents a duty coming into existence. It follows that the disclaimers here given are subject to the provisions of the Act and will therefore only be effective if they satisfy the requirements of reasonableness.’ The terms were unfair under the Act.
Also Harris v Wyre Forest District Council;
Orse Smith v Bush

Judges:

Lord Griffiths, Lord Jauncey, Lord Templeman

Citations:

[1989] 2 WLR 790, [1990] 1 AC 831, [1989] 17 EG 68, [1989] 2 All ER 514, [1990] UKHL 1

Links:

Bailii

Statutes:

Unfair Contract Terms Act 1977 1 2 11(3) 13(1)

Jurisdiction:

England and Wales

Citing:

ApprovedRoss v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .

Cited by:

CitedMerrett v John RH Babb CA 15-Feb-2001
The applicant had been employed as a surveyor by a firm which had subsequently become insolvent. The firm’s run off professional indemnity insurance had lapsed. He had provided the negligent survey, and he was sued in person.
Held: He was . .
CitedMerrett v John RH Babb CA 15-Feb-2001
The applicant had been employed as a surveyor by a firm which had subsequently become insolvent. The firm’s run off professional indemnity insurance had lapsed. He had provided the negligent survey, and he was sued in person.
Held: He was . .
CitedCaparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
CitedNational Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
CitedPlatform Home Loans Ltd v Oyston Shipways Ltd and others HL 18-Feb-1999
The plaintiffs had lent about 1 million pounds on the security of property negligently valued at 1.5 million pounds. The property was sold for much less than that and the plaintiffs suffered a loss of 680,000 pounds. The judge found that the . .
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedFirst National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
CitedJD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
CitedFarraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedWelton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
CitedPlatform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
CitedGlaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
CitedCramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC 12-Feb-2014
The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .
CitedBanca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .
CitedPoole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract

Leading Case

Updated: 11 February 2022; Ref: scu.192619