Category: Professional Negligence

Colt Telecom Group Plc, In the Matter of the Insolvency Act 1986: ChD 20 Dec 2002

The Hon Mr Justice Jacob
[2002] EWHC 2815 (Ch), [2007] Lloyd’s Rep PN 23, [2003] BPIR 324
Bailii
Insolvency Act 1986
England and Wales
Citing:
See Also – Highberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1) ChD 25-Nov-2002
Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of . .

Cited by:
Mentioned – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Professional Negligence

Updated: 06 December 2021; Ref: scu.178547

Raleys Solicitors v Barnaby: CA 21 May 2014

The claimant had been represented by the appellant in an action for personal injury. He said that the claim had been negligently settled for less than the proper damages award. The solicitors now appealed against an award of damages saying that any negligence was not causally linked to any loss.
Held: The appeal failed. In reality it amounted to no more than appeal against the findings of fact by the judge, and was unsustainable as such.

Maurice Kay, Davis, Floyd LJJ
[2014] EWCA Civ 686
Bailii
England and Wales
Citing:
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Cited – Sharif and Others v Garrett and Co CA 31-Jul-2001
The applicants sought damages from the defendant solicitors who had failed to prosecute properly a claim for damages. Their building was damaged by fire, but they had not been insured. The action was against the brokers. The court had awarded them . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 03 December 2021; Ref: scu.525642

Henderson v Greater Glasgow Health Board: SCS 4 Feb 2014

The pursuer avered that she suffered an injury when she fell down a flight of steps at the front door of her house. She attended her general practitioner who referred her to the accident and emergency department of Glasgow Royal Infirmary. She was examined in the Department of Orthopaedics and discharged without further treatment or investigation. She was readmitted to Glasgow Royal Infirmary and an MRI scan revealed a large disk fragment within her spinal canal. This was surgically removed at the Southern General Hospital. The pursuer averred that the failure to arrange for a MRI scan of the pursuer’s lumbar spine was negligent and had he done so, the large disk fragment within her spinal canal would have been identified and removed earlier with good prospect of recovery or less severe symptoms than she ultimately required to endure.

Lord Bracadale, Lord Drummond Young, Lord Wheatley
[2014] ScotCS CSIH – 41, [2014] CSIH 41, 2014 GWD 17-307, 2014 SC 681
Bailii
Scotland

Professional Negligence

Updated: 03 December 2021; Ref: scu.525455

Reader and others v Molesworths Bright Clegg Solicitors: CA 2 Mar 2007

The claimants were children of the victim of a road traffic accident. The solicitors were conducting a claim on his behalf for damages, but when he died, they negligently discontinued the action.
Held: The claimants’ action as dependants of the deceased arose only on his death, and so the action of the defendants gave rise to no cause of action for the dependency. On his death the rights in the action transferred into his estate. Any action survived the death of the accident victim. A second cause of action arose on the death
Longmore LJ answered a proposition that: ‘if a settlement before death disposes of a claim, so must a settlement after death because there cannot be any logical distinction between the two situations.’ saying: ‘I do not agree, because death does make all the difference. Before death, no dependency claim can exist. Once death occurs, a dependency claim can arise and, logically, time for that claim begins to run. So it must be regarded as settled at the level of the Court of Appeal that, if before death a claim is settled or proceeds to judgment, the claim in respect of the personal injury claim is finally disposed of. Once death occurs, however, (provided that the personal injury is not finally concluded) a dependency claim can arise. It will then be a matter of construing the terms of any settlement to decide whether that settlement disposed not only of the claim of the injured person (now represented by his estate) but also of the existing dependency claim. I agree that in this case the ostensibly authorised settlement only settled the estate’s claim and not the dependency claim.’

Longmore LJ, Smith LJ, Moses LJ
Times 05-Apr-2007, [2007] EWCA Civ 169, [2007] 1 WLR 1082, [2007] 3 All ER 107
Bailii
Tafal Accidents Act 1976 1
England and Wales
Citing:
Cited – Read v Great Eastern Railway Company QBD 25-Jun-1868
A railway passenger was injured; he sued and was awarded damages. He died later from injury on the accident.
Held: The widow could not bring an action for loss of dependency under section 1 of the 1846 Act. The cause of action was the . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Williams v Mersey Docks 1905
Where a personal injury claim becomes time-barred before the death of the injured party, his or her dependants will have no claim. . .
Cited – Pickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .
Cited – McCann v Sheppard CA 1973
The injured plaintiff succeeded in his action for damages for personal injury. The defendants appealed the quantum of damage but before the appeal was heard the plaintiff died. The court was now asked to reduce the award because of the death.
Cited – Murray v Shuter CA 1972
The plaintiff had been badly injured and was not expected to live long. When his claim for damages was almost ready for trial, his lawyers requested an adjournment. It was not possible for a live plaintiff to claim damages for his ‘lost years’. They . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 30 November 2021; Ref: scu.249372

Santander UK Plc v RA Legal Solicitors: CA 24 Feb 2014

Briggs LJ
[2014] EWCA Civ 183, [2014] PNLR 420
Bailii
Trustee Act 1925 61
England and Wales
Citing:
Appeal from – Santander UK Plc v RA Legal Solicitors (A Firm) QBD 23-May-2013
The claimant bank said that it had been the subject of a mortgage fraud, and that the defendant solicitors had acted for the borrower. The claim was for breach of trust, in not having exercised reasonable skill and care on their behalf. . .

Cited by:
Cited – Schubert 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 . .
Cited – Purrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 30 November 2021; Ref: scu.521565

Xenakis and Another v Birkett Long Llp: QBD 3 Feb 2014

Claim for professional negligence brought against a firm of solicitors in respect of their alleged failure to give adequate advice to their clients regarding their potential exposure to personal liability under the suretyship covenants in a Lease.

Andrews DBE J
[2014] EWHC 171 (QB)
Bailii
England and Wales

Professional Negligence

Updated: 29 November 2021; Ref: scu.521125

Moore Stephens (A Firm) v Stone and Rolls Ltd: CA 18 Jun 2008

The company claimed against its accountants for negligence in not discovering the substantial dishonesty of the claimant’s employee, its directing mind and sole shareholder.
Held: Rimer LJ said that the critical question was whether it was right to treat SandR as the villain or the victim. In the former case the fraud would be attributed to SandR; in the latter case it would not. He held that SandR was the villain and not the victim, Hampshire Land did not apply and ex turpi causa was a defence to SandR’s claim.

Mummery LJ, Keene LJ, Rimer LJ
[2008] EWCA Civ 644, [2008] Bus LR 1579, [2008] PNLR 36, [2008] 3 WLR 1146, [2008] 2 Lloyd’s Rep 319, [2008] 2 BCLC 461
Bailii
England and Wales
Citing:
Appeal from – Stone and Rolls Ltd v Moore Stephens (A Firm) Comc 27-Jul-2007
The company claimed against its chartered accountants for negligence when acting as auditors. The sole directing mind of the company had used it as a vehicle for substantial frauds. The court was asked ‘whether and if so when can a claim by a . .
Applied – Re Hampshire Land Company 9-Jul-1896
A company had borrowed from a building society. The borrowing was not properly authorised by resolution of the shareholders in general meeting The court was asked whether whether the knowledge of the company secretary common to both the company and . .

Cited by:
Appeal from – Moore Stephens (A Firm) v Stone Rolls Ltd (in liquidation) HL 30-Jul-2009
The appellants had audited the books of the respondent company, but had failed to identify substantial frauds by an employee of the respondent. The auditors appealed a finding of professional negligence, relying on the maxim ex turpi causa non . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 29 November 2021; Ref: scu.269977

Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2): HL 27 Nov 1997

A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. Earlier decisions of the house had settled the liability for damages and the amount to be awarded. This present judgment concerned principally the question of interest.
Held: The section allowed the award of interest for all or any part of the period following the date on which the cause of action arose. That date varied according to whether the action was in contract or in tort. In this case it was the date of the transaction. It was wrong to ante-date the award of interest on costs. In this case it was right to award interest on money ordered to be repaid after earlier orders were overruled.
Lord Nicholls, with the concurrence of the rest of the Appellate Committee, described the two stages of the inquiry. The first stage, where the lender would not have entered into the transaction but for the breach of duty, was to compare the position had he not entered into it with his actual position. This meant comparing the amount of the loan with the value of the real and personal rights obtained. As to the second stage, he said: ‘However, for the reasons spelled out by my noble and learned friend, Lord Hoffmann, in the substantive judgments in this case [1997] AC 191, a defendant valuer is not liable for all the consequences which flow from the lender entering into the transaction. He is not even liable for all the foreseeable consequences. He is not liable for consequences which would have arisen even if the advice had been correct. He is not liable for these because they are the consequences of risks the lender would have taken upon himself if the valuation advice had been sound. As such they are not within the scope of the duty owed to the lender by the valuer.’
Lord Hoffmann again with the concurrence of the rest of the Committee, explained that the true measure of damages was the loss attributable to the information being wrong and: ‘It is of course also the case that the lender cannot recover if he is, on balance, in a better or no worse position than if he had not entered into the transaction at all. He will have suffered no loss. The valuer does not warrant the accuracy of his valuation and the lender cannot therefore complain that he would have made more profit if the valuation had been correct. But in order to establish a cause of action in negligence he must show that his loss is attributable to the overvaluation, that is, that he is worse off than he would have been if it had been correct.’
and . . ‘It is axiomatic that in assessing loss caused by the defendant’s negligence the basic measure is the comparison between (a) what the plaintiff’s position would have been if the defendant had fulfilled his duty of care and (b) the plaintiff’s actual position. Frequently, but not always, the plaintiff would not have entered into the relevant transaction had the defendant fulfilled his duty of care and advised the plaintiff, for instance, of the true value of the property. When this is so, a professional negligence claim calls for a comparison between the plaintiff’s position had he not entered into the transaction in question and his position under the transaction. That is the basic comparison. Thus, typically in the case of a negligent valuation of an intended loan security, the basic comparison called for is between (a) the amount of money lent by the plaintiff, which he would still have had in the absence of the loan transaction, plus interest at a proper rate, and (b) the value of the rights acquired, namely the borrower’s covenant and the true value of the overvalued property.’

Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Hoffmann
Gazette 08-Jan-1998, Times 03-Dec-1997, [1997] 1 WLR 1627, [1997] UKHL 53, [1998] 1 EGLR 99, [1998] 1 ALL ER 305, [1998] PNLR 197, [1998] Lloyd’s Rep Bank 39, [1998] CLC 116, [1998] 1 Costs LR 108
Bailii, House of Lords
Supreme Court Act 1981 35A, Judgments Act 1838 17 18
England and Wales
Citing:
Approved – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Wardley Australia Ltd v Western Australia 1992
(High Court of Australia) A claim was based on a statutory trade indemnity scheme. The insurers claimed damages from Wardley, on the basis that its alleged deceit induced them to grant an indemnity, which was subsequently called on.
Held: . .
Approved – D 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 . .
Cited – UBAF Ltd v European American Banking Corporation CA 1984
The defendant invited the plaintiff to take part in a syndicated loan. The defendant’s assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that . .
Cited – Hunt v R M Douglas (Roofing) Ltd HL 1990
The plaintiff had an order ‘That the Defendants do pay to the Plaintiff his costs of this action . . to be taxed . . failing agreement’ and the House was asked as to the time from when he was entitled to interest.
Held: A litigant who has been . .
Disapproved – Kuwait Airways Corporation v Iraqi Airways Corporation (No 2) CA 20-Jan-1994
A successful appeal on a costs award should be backdated to the original order. . .
Approved – Belgian Grain and Produce Co Ltd v Cox and Co (France) Ltd CA 1919
Although the Court had jurisdiction, ‘it ought to be exercised with great caution, which indicates that there must be something exceptional in the facts to justify the making of the order’. . .
Affirmed – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .

Cited by:
Cited – Khan v R M Falvey and Co (a Firm) CA 22-Mar-2002
The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
Cited – Hatton v Messrs Chafes (A Firm) CA 13-Mar-2003
The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
Held: By the time that the . .
Cited – Platform 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 . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Cited – Polley v Warner Goodman and Streat (A Firm) CA 30-Jun-2003
A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much . .
Cited – Iqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
Cited – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Spencer v Secretary of State for Work and Pensions, Moore v Similar CA 1-Jul-2008
Frankovich claim – arises with measurable loss
Each claimant sought Frankovich damages alleging a failure to implement European law leading to a loss.
Held: Such a claim was available against the government after it had failed to implement the Directive so as to provide them with the . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Cited – Tiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd SC 29-Nov-2017
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial . .
Cited – Tiuta International Ltd v De Villiers Surveyors Ltd CA 1-Jul-2016
Appeal against an order giving summary judgment for the respondent, De Villiers Surveyors Ltd, on one issue relating to the claim by the appellant, Tiuta International Ltd, for damages for professional negligence.
Held: The appeal succeeded . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Leading Case

Updated: 29 November 2021; Ref: scu.158928

Mulcahy v Castles Solicitors and Another: CA 18 Dec 2013

The claimant appealed against rejection of her claim of negligence against her former solicitors in alledgedly failing to allow that as a Roman Catholic she should have been advised of the possibility of obtaiing the necessary financial redress on separation without advising her of the alternative possibilties of judicial separation and similar.
Held: The appeal failed.

Arden, Gloster, Briggs LJJ
[2013] EWCA Civ 1686
Bailii
England and Wales

Professional Negligence

Updated: 28 November 2021; Ref: scu.520114

Charles B Lawrence and Associates v Inter-Commercial Bank Ltd: PC 22 Nov 2021

(Trinidad and Tobago) Case about the loss recoverable by a lender consequent on a valuer’s negligent valuation. The valuation was of land that the borrower’s guarantor was providing as security, by means of a mortgage over the land, for the loan.

Lord Briggs, Lady Arden,
Lord Kitchin
Lord Burron,
Lady Rose
[2021] UKPC 30
Bailii
England and Wales

Damages, Professional Negligence

Updated: 27 November 2021; Ref: scu.670115

Chandra and Another v Brooke North (A Firm) and Another: CA 5 Dec 2013

Appeal against a decision allowing amendments to be made to the particulars of claim in two solicitors’ negligence actions. The central issue in this appeal is whether those amendments raised new causes of action after expiry of the limitation period.

Laws, Jackson, McFarlane LJJ
[2013] EWCA Civ 1559, [2014] TCLR 1, 151 Con LR 113, [2013] 50 EG 102
Bailii
England and Wales

Professional Negligence, Limitation

Updated: 26 November 2021; Ref: scu.518764

Coyle v Lanarkshire Health Board: SCS 24 Oct 2013

[2013] ScotCS CSOH – 167
Bailii
Citing:
Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward who was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .

Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 22 November 2021; Ref: scu.517018

ICL Tech Ltd v Johnston Oils Ltd: SCS 25 Sep 2013

[2013] ScotCS CSOH – 159
Bailii
Citing:
Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward who was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .

Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 21 November 2021; Ref: scu.516332

Taylor v Somerset Health Authority: 1993

The plaintiff’s husband had suffered a heart attack at work and soon died at the defendant’s hospital. She went to the hospital within an hour and was told of his death by a doctor about 20 minutes after her arrival. She was shocked and distressed. She identified the body at the mortuary. The defendants had been treating him for many months and had negligently failed to diagnose or treat his serious heart disease. It was admitted that she had suffered nervous shock (ie psychiatric illness) as a result of what she had heard and seen at the hospital.
Held: The claim failed. It did not fall within the ‘immediate aftermath’ principle as her husband’s body bore no signs of violent injury. The death was instead the final consequence of negligence by the defendants many months earlier. The ‘immediate aftermath’ extension had been introduced as an exception to the general principle established in accident cases that a plaintiff could only recover damages for psychiatric injury where the accident and the primary injury or death caused by it occurred within his sight or hearing.
Auld J said: ‘There are two notions implicit in this exception cautiously introduced and cautiously continued by the House of Lords. They are of:
(i) an external, traumatic, event caused by the defendant’s breach of duty which immediately causes some person injury or death; and
(ii) a perception by the plaintiff of the event as it happens, normally by his presence at the scene, or exposure to the scene and/or to the primary victim so shortly afterwards that the shock of the event as well as of its consequence is brought home to him.
There was no such event here other than the final consequence of Mr. Taylor’s progressively deteriorating heart condition which the health authority, by its negligence many months before, had failed to arrest. In my judgment, his death at work and the subsequent transference of his body to the hospital where Mrs. Taylor was informed of what had happened and where she saw the body do not constitute such an event.’

Auld J
[1993] 4 Med LR 34, [1993] PIQR P262
England and Wales
Cited by:
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Cited – Liverpool 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 . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
Cited – Shorter v Surrey and Sussex Healthcare NHS Trust QBD 25-Mar-2015
The claimant saw her sister in undeniably distressing circumstances in hospital. It was suggested that the claimant’s professional background, as a radiographer, gave her an unusual degree of insight into her sister’s medical condition and that, as . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 19 November 2021; Ref: scu.471890

Kennedy v Small and Others (Practising As Small and Marken): QBNI 27 Jun 2013

The plaintiff claied s damages against the defendant solicitors for loss and damage sustained by the negligence and breach of contract of the defendants in the conduct of property transactions. He claims the professional fees expended, the reduced value of the Crumlin lands and the costs of the Antrim mortgage that has not been redeemed.

Weatherup J
[2013] NIQB 81
Bailii

Northern Ireland, Professional Negligence

Updated: 17 November 2021; Ref: scu.513892

Caparo Industries plc v Dickman: QBD 5 Aug 1988

The plaintiff complained that they had suffered losses after purchasing shares in a company, relying upon statements made in the accounts by the auditors (third defendants).
Held: The claim failed. Whilst auditors might owe statutory duties to shareholders as a class, there was no common law duty to individual shareholders such as would enable an individual shareholder to recover damages for loss sustained by him in acting in reliance upon the audited accounts.

Sir Neil Lawson
[1988] BCLC 387, Times, 5 August 1988
England and Wales
Cited by:
Appeal from – Caparo Industries plc v Dickman CA 1989
The plaintiffs had purchased shares in a company, relying upon accounts prepared by the second defendant auditors. They appealed against a decision that the auditors did not owe them a duty in negligence, not being shareholders.
Held: The . .
At QBD – Caparo 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 . .

Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence

Updated: 17 November 2021; Ref: scu.552889

Caparo Industries plc v Dickman: CA 1989

The plaintiffs had purchased shares in a company, relying upon accounts prepared by the second defendant auditors. They appealed against a decision that the auditors did not owe them a duty in negligence, not being shareholders.
Held: The appeal succeeded (O’Connor LJ dissenting). Whilst there was no relationship between an auditor and a potential investor sufficiently proximate to give rise to a duty of care at common law, there was such a relationship with individual shareholders, so that an individual shareholder who suffered loss by acting in reliance on negligently prepared accounts, whether by selling or retaining his shares or by purchasing additional shares, was entitled to recover in tort.
Bingham LJ said that in considering whether or not a duty of care of particular scope was incumbent upon a defendant it was material to take into consideration whether it was just and reasonable that it should be so.

Bingham LJ, O’Connor LJ
[1989] QB 653
England and Wales
Citing:
Appeal from – Caparo Industries plc v Dickman QBD 5-Aug-1988
The plaintiff complained that they had suffered losses after purchasing shares in a company, relying upon statements made in the accounts by the auditors (third defendants).
Held: The claim failed. Whilst auditors might owe statutory duties to . .
Adopted – Peabody Donation Fund v Sir Lindsay Parkinson and Co Ltd HL 18-Oct-1983
Architects proposed a system of flexible drains for a site, but the contractors persuaded them to accept rigid drains which once laid proved inadequate at considerable cost. The local authority had permitted the departure from the plans.
Held: . .

Cited by:
At CA – Caparo 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 . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Company

Updated: 17 November 2021; Ref: scu.552890

Frost v Wake Smith and Tofields Solicitors: CA 19 Jun 2013

The court was asked whether the Appellant’s solicitor was in breach of duty in failing to render into a legally enforceable form the agreement to which the parties came in the course of a mediation.

Tomlinson Ryder LJJ
[2013] EWCA Civ 772
Bailii
England and Wales

Professional Negligence

Updated: 15 November 2021; Ref: scu.512120

Cassidy v Ministry of Health: CA 1951

The court considered the liability in negligence of the respondent for the negligence of doctors employed by it.
Held: The Ministry was liable for the negligence of doctors who were employed by it on contracts of service.
Denning LJ (dissenting) said that: ‘whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves: they have no ears to listen through the stethoscope, and no hands to hold the surgeon’s knife. They must do it by the staff which they employ; and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him.’ and ‘where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.’

Denning LJ, Somervell LJ, Singleton LJ
[1951] 2 KB 343
England and Wales
Citing:
Applied – Gold v Essex County Council CA 1942
The hospital was held accountable for an injury caused by negligence of an employee radiographer. The main issue was whether the authority could be vicariously liable even for employees in cases where their employment called for the exercise of . .

Cited by:
Cited – A v Ministry of Defence and another QBD 16-Apr-2003
The claimant’s father a member of the armed forces had been posted to Germany, and his wife, A’s mother had gone with him. A had been born in Germany, but suffered injury at birth through the negligence of the doctor’s appointed by the defendant . .
Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009
The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
Cited – Woodland v Essex County Council CA 9-Mar-2012
The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Vicarious Liability

Updated: 14 November 2021; Ref: scu.188806

Hart and Another v Large and Others: TCC 22 May 2020

Mr Roger ter Haar QC
[2020] EWHC 985 (TCC)
Bailii
England and Wales
Cited by:
Principal judgment – Hart and Another v Large and Others (consequential orders) TCC 22-May-2020
Post judgment issues – anonymity and consequential orders. . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 November 2021; Ref: scu.653326

Peters v East Midlands Strategic Health Authority and Another: CA 3 Mar 2009

The Authority was not entitled to have deducted from the sums payable toward the claimant’s social care, an award of damages made against the authority from its own negligence in the care of his mother, leading to his disability. The phrase ‘An award of damages for a personal injury’ in paragraph 44(2)(a) was clear, unambiguous and unqualified, and should not be construed as referring only to some heads of an award of damages for personal injury.

Sir Anthony Clarke, Master of the Rolls, Lord Justice May and Lord Justice Dyson
[2009] EWCA Civ 145, [2009] 3 WLR 737, [2009] LS Law Medical 229, (2009) 12 CCL Rep 299, [2009] PIQR Q1
Bailii, Times
Income Support (General) Regulations 1967 (SI 1987 No 1967)
England and Wales

Personal Injury, Professional Negligence, Benefits

Leading Case

Updated: 11 November 2021; Ref: scu.311771

Joyce 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 court considered the calculation of damages for the loss of the opportunity to buy the land. The claimant had said that he would want to build a new house and in this area of outstanding natural beauty, it was argued that only the additional land would put him in a position to get permission for such.
Held: Though the expert evidence was conflicting, the court believed it likely that some planning permission would have been given. The defendant’s continued insistence that the clause was correct had left the claimant to become more tied in with the deal, and unable simply to sell the property. The claim succeeded, and damages were calculated and awarded accordingly.

Vos J
[2010] EWHC 251 (Ch), [2010] PNLR 22, [2010] 1 EGLR 129
Bailii
England and Wales
Citing:
Cited – Simple Simon Catering Limited v Binstock Miller and Co CA 1973
In applying the ‘diminution in value’ rule for assessing lost opportunity damages, and particularly in claims against solicitors, a more general assessment should be made, taking account of the ‘general expectation of loss’. . .
Cited – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .
Cited – Dodd Properties (Kent) Ltd v Canterbury City Council CA 21-Dec-1979
The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Hanif v Middleweeks (a firm) CA 19-Jul-2000
The client was the co-owner of a nightclub which had been destroyed by fire. The insurers had issued proceedings for a declaration of non-liability, on the ground (among others) that the fire had been started deliberately by Mr Hanif’s co-owner. Mr . .
Cited – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Banco de Portugal v Waterlow and Sons Ltd HL 28-Apr-1932
Lord Macmillan said: ‘Where the sufferer from a breach of contract finds himself in consequence of that breach placed in position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in . .
Cited – 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 . .
Cited – Pilkington v Wood 1953
The plaintiff bought freehold land from a seller conveying as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 11 November 2021; Ref: scu.401647

Connolly-Martin v Davis: CA 27 May 1999

A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the court an undertaking on behalf of his client had no duty of care to his own client’s opponent, unless there was something to indicate a particular adoption of such a duty. This applies even where the undertaking was given in excess of his authority and proved unenforceable. The authorities did not support the proposition ‘that counsel for one party may in the absence of circumstances evidencing a voluntary assumption of responsibility to that other party owe a legally enforceable duty of care to that party’ and ‘ as a general principle counsel owes a duty to his lay client to do for him all that he properly can, with due care and attention. Counsel owes no such duties to those who are not his clients. He is no guardian of their interests, and indeed what he does for his client may be hostile and injurious to his opponents. In the ordinary course of adversarial litigation counsel or solicitor owes no duty to the lay client’s adversary.’

Brooke, Beldam, Mummery LJJ
Times 08-Jun-1999, Gazette 09-Jun-1999, [1999] EWCA Civ 1509, [1999] Lloyds Rep PN 790, [1999] PNLR 826, [1999] All ER (D) 552
Bailii
England and Wales
Citing:
Appeal from – Connolly-Martin v Davis ChD 17-Aug-1998
The claimant appealed against the striking out of her claim for negligence against counsel for her opponent who had signed a consent order purporting to give an undertaking from his client when in fact the client did not consent.
Held: The . .
Cited – Orchard v South Eastern Electricity Board CA 1987
The threat of applications for a wasted costs order should not be used to intimidate, but if one side considers that the other to have behaved in an improper, unreasonable or negligent way and likely to cause a waste of costs, it is not . .
Cited – Business Computers International Ltd v Registrar of Companies ChD 1988
A winding up petition was served at an address which was not that of the plaintiff’s registered office, and nobody appeared at the hearing. A winding up order was made against the plaintiff company, which now sued the solicitors who had misserved . .
Cited – Calveley v Chief Constable of the Merseyside Police HL 1989
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the . .
Cited – Batten v Wedgwood Coal and Iron Company ChD 18-Jan-1886
A solicitor was held to owe a duty to a party other than his client where, having carriage of the court’s order, he failed to comply with the duty (imposed by a rule of court) to lodge a request for the investment of money in court at the Chancery . .
Cited – Allied Finance and Investments Ltd v Haddow and Co 1983
(New Zealand Court of Appeal) The claimant had agreed to make a loan to X and to take security for it on a yacht. The defendants, who were X’s solicitors, certified to the claimant that the instrument of security executed by X in relation to the . .
Cited – Al-Kandari v J R Brown and Co CA 1988
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Connell v Odlum 1993
(New Zealand Court of Appeal) Prior to his marriage to W, the claimant wished to enter with her into an agreement of which the statutory effect would be to contract them out of the law’s general provisions for the making of financial adjustments . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited – Welsh v Chief Constable of Merseyside Police 1993
On conviction for one offence, the plaintiff asked for two other offences to be taken into consideration. He was bailed pending sentence. He was then arrested for the other offences and wrongfully held in custody. The Crown Prosecution Service had . .
Cited – Hussain v Hussain CA 1986
Sir John Donaldson MR said: ‘Let it be stated in the clearest possible terms that an undertaking to the court is as solemn, binding and effective as an order of the court in like terms and that the contrary has never been suggested . . Undertakings . .

Cited by:
Cited – Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .
Cited – Commissioners 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 . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Leading Case

Updated: 11 November 2021; Ref: scu.79453

Shore v Sedgwick Financial Services Ltd: CA 23 Jul 2008

The claimant said that the defendant had given him negligent advice on pensions, failing to say that he should stay within his occupational scheme. The defendant pleaded limitation.
Held: The claimant suffered damage when he made the transfer in April 1997. There was a clear distinction between transactions which give rise to pure contingent liabilities and transactions where the claimant has ‘obtained less than she should have got’. Accordingly the claim was time barred.
Dyson LJ referred to a submission by the claimant that he had not yet suffered the damage and said: ‘First, it is common ground that the benefits surrendered in the Avesta scheme were properly valued at andpound;637,507. Secondly, that sum was used to invest in the PFW scheme. The price paid for this investment was its then current market price. That price reflected the market perception of the risks inherent in the PFW scheme. The performance of the scheme was subject to the vagaries of the market and the investment skills of the managers of the fund as well as the amount drawn down as income by Mr Shore. The amount available for drawdown as income would depend on the figure at which the GAD rates were fixed triennially as well as the performance of the fund. Mr Soole submits that all these risks were reflected in the price that Mr Shore paid. It is, therefore, irrelevant that the PFW scheme was riskier than the Avesta scheme. To adopt the example suggested by Keene L.J. in the course of argument, if a person invests andpound;100 in shares rather than in Government bonds, he does not suffer any loss when he buys the shares, because when he pays andpound;100 for the shares, that is what they are worth in the market.’ He rejecte dthe submission saying: ‘It is Mr Shore’s case (assumed for present purposes to be established) that the PFW scheme was inferior to the Avesta scheme because it was riskier. It was inferior because Mr Shore wanted a secure scheme: he did not want to take risks. In other words, from Mr Shore’s point of view, it was less advantageous and caused him detriment. If he had wanted a more insecure income than that provided by the Avesta scheme, then he would have got what he wanted and would have suffered no detriment. In the event, however, he made a risky investment with an uncertain income stream instead of a safe investment with a fixed and certain income stream which is what he wanted.’
Dysn LJ continued: ‘Mr Shore obtained a bundle of rights which, from the outset, were less advantageous to him than the benefits that he enjoyed under the Avesta scheme. On the facts of this case, it was not necessary to wait to see what happened to determine whether Mr Shore was financially worse off in the PFW scheme than he would have been in the Avesta scheme.’ So far as the analogy with a share purchase was concerned he said: ‘In my judgment, an investor who wishes to place andpound;100 in a secure risk-free investment and, in reliance on negligent advice, purchases shares does suffer financial detriment on the acquisition of the shares despite the fact that he pays the market price for the shares. It is no answer to this investor’s complaint that he has been induced to buy a risky investment when he wanted a safe one to say that the risky investment was worth what he paid for it in the market. His complaint is that he did not want a risky investment. A claim for damages immediately upon the acquisition of the shares would succeed. The investor would at least be entitled to the difference between the cost of buying the Government bonds and the cost of buying and selling the shares.’

Dyson LJ
[2008] EWCA Civ 863, [2008] PNLR 37, Times 12-Aug-2008
Bailii
Financial Services Act 1986
England and Wales
Cited by:
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Axa Insurance Ltd v Akther and Darby Solicitors and Others CA 12-Nov-2009
The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the . .

Lists of cited by and citing cases may be incomplete.

Financial Services, Professional Negligence, Limitation

Updated: 11 November 2021; Ref: scu.271028

E.Surv Ltd v Goldsmith Williams Solicitors: ChD 10 Apr 2014

The claimants had been found liable for mis-valuation of a property. They now sought a contribution from the solicitors acting uunder the mortgage saying that had they acted properly, they would have alerted the lender, and in turn the claimant of circumstances requiring extra care before a loan was made.
Held: It was not possible for the solicitors to say that the terms of the Lenders Handbook, read with the Practice Rules and the certificate of title, exclude, on their true construction, the Bowerman duty, and: ‘what the Lenders Handbook, read with the Practice Rules and the certificate of title, is intended to do is to identify and to delimit the precise scope of the specific activities which the solicitor is being retained to do, in circumstances where the solicitor is faced with the difficult position of acting for two parties with potentially conflicting interests. It is not intended to exclude the general obligation to exercise reasonable care and skill in the performance of such activities or, as part of such general obligation, the obligation to report to the lender as one of the clients where, through the performance of such obligations, the solicitor comes into possession of information which has a material bearing on the valuation of the lender’s security or some other ingredient of the lending decision.’
If informed of the discrepancy, the lenders would have queried the value with the valuers.

Stephen Davies HHJ
[2014] EWHC 1104 (Ch)
Bailii
Civil Liability (Contribution) Act 1978
Citing:
Cited – Mortgage Express Ltd v Bowerman and Partners (A Firm) CA 1-Aug-1995
A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in . .
Cited – Nationwide Building Society v Balmore Radmore ChD 1999
Although the Bowerman duty is a species of obligation which the court will ordinarily imply where a solicitor acts for a lender, it will not imply such an obligation when to do so is inconsistent with the express terms of the retainer or with the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 11 November 2021; Ref: scu.523659

St Anselm Development Company Ltd v Slaughter and May: ChD 1 Feb 2013

The claimants appealed against rejection of their claim in negligence said to have been out of time. They had set out to sublet flats but their mistiming disallowed reclaiming of certain rents under the 1993 Act.
Held: The two flats were to be considered seperately, and on that basis the claim under the second had been timely, provided the period could be extended under section 14A.
In 1999 the claimant had realised that there was a problem, even if they did not then attribute it to negligence in the solicitors. They had reasonable cause then to start asking questions. Even though there had not yet been diclosure, the master had been correct that the claimant had no reasonable prospect establishing an extended limitation period.

David Richards J
[2013] EWHC 125 (Ch)
Bailii
Limitation Act 1980 14A, Leasehold Reform Housing and Urban Development Act 1993
England and Wales
Citing:
Cited – Khan v R M Falvey and Co (a Firm) CA 22-Mar-2002
The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .

Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 11 November 2021; Ref: scu.470707

Lloyds TSB Bank Plc v Markandan and Uddin (A Firm): CA 9 Feb 2012

The defendant solicitors appealed against judgment. They and the lenders had been subject to a mortgage fraud. Fraudsters had set up a false branch office of a firm of solicitors, and secured payment of a mortgage advance.

Mummery, Rimer LJJ, Sir Mark Potter
[2012] EWCA Civ 65
Bailii
England and Wales
Citing:
Appeal from – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .

Cited by:
Cited – Purrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Professional Negligence

Updated: 10 November 2021; Ref: scu.450996

Pritchard Joyce and Hinds (A Firm) v Batcup and Another: CA 5 May 2009

Standard expected of negligence claim on counsel

The claimant solicitors sought contributory damages from counsel for failing to advise them of the applicable limitation period in an action they were conducting against other solicitors in negligence. Counsel now appealed saying that the judged had failed to follow his correct own direction in law that ‘the question was not whether he, or other barristers in the Defendants’ position, might have given the advice in question, but whether any reasonably competent barrister should have done so’, and had instead applied his own standard.
Held: The issues had largely been decided on the paperwork produced, and not by assessment of the character of the witnesses, and it was appropriate for this court to look at them fully. It was not correct that the possibility of the claim would have been identified by reasonably competent counsel. There had been many interleaving claims, and it was not clear that the claimant had wished to revive an earlier possible claim.

Sullivan, Dyson, Sedley LJJ
[2009] EWCA Civ 369
Bailii
Civil Liability (Contribution) Act 1978
England and Wales
Citing:
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Appeal From – Pritchard Joyce and Hinds v Batcup and Another QBD 17-Jan-2008
The claimant solicitors sought contributions from counsel to the damages they had been obliged to pay to their client in negligence.
Held: Underhill J said: ‘My task is not to seek to decide definitively whether LL were liable in negligence to . .
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 10 November 2021; Ref: scu.341797

Skipper v Calderdale Metropolitan Borough Council and Governors of Crossley Heath School: CA 15 Mar 2006

The claimant sought damages alleging that the defendants had failed her by not identifying and ameliorating her dyslexia whilst she was a student. The judge had found that she might establish negligence but that she had not established any loss. She had not established that she would have followed the professional career she asserted.
Held: ‘as a matter of principle general damages can be awarded for the consequences for a failure to take appropriate steps to ameliorate dyslexia, including frustration, loss of self confidence and loss of self esteem’ and ‘if it can be shown that a claimant’s disability had a real effect on his or her ability to cope with school and work, or has otherwise interfered significantly with his enjoyment of life, that will be a loss of amenity which can properly sound in damages. ‘ The court allowed the appeal since there was an arguable case for damages, but expressed real concern at the relative costs and that proving a loss might remain difficult.

[2006] EWCA Civ 238
Bailii
England and Wales
Citing:
Cited – E (A Minor) v Dorset County Council CA 1995
It is generally unwise to give summary judgment in cases where the relevant law is uncertain or in a state of development: ‘This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Education, Damages

Updated: 10 November 2021; Ref: scu.239140

Hotson v East Berkshire Health Authority: HL 2 Jul 1988

The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular necrosis of the epiphysis, involving disability of the hip joint with the virtual certainty that osteoarthritis would later develop. Prior to the intervention of the doctor, he had a 75% chance of a similar result. The court found that there was a 25% chance that if the doctor had not been negligent, that the outcome would have been better, and had awarded damages for that ‘loss of a chance’.
Held: Damages could not be awarded for that 25% chance because the effect of the judge’s finding as to the chances of the condition resulting from the fall being 75% was a finding in law that that would actually have been the result. The relevant factual question about the plaintiff’s condition immediately prior to the negligence was whether his fall from the tree had left sufficient blood vessels intact to keep his left femoral epiphysis alive. The answer to this question of fact answered the hypothetical question: would a vascular necrosis have been avoided if his leg had been treated promptly? The answer to the first question also answered the second question, because the second question is a mirror image of the first. Built into the formulation of the first question was the answer to the second question.

Lord Mackay of Clashfern
[1987] AC 750, [1988] UKHL 1, [1987] 2 All ER 909
Bailii
England and Wales
Citing:
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .

Cited by:
Cited – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Wardlaw v Dr Farrar CA 27-Nov-2003
The claimant appealed an award of andpound;1,000 damages for the death of his wife for professional negligence. Doctors had differed as to whether the delay complained of had contributed to the death.
Held: It was vital now that medical . .
Cited – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – Nestle v National Westminster Bank CA 6-May-1992
The claimant said that the defendant bank as trustee of her late father’s estate had been negligent in its investment of trust assets.
Held: The claimant had failed to establish either a breach of trust or any loss flowing from it, though . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Leading Case

Updated: 10 November 2021; Ref: scu.183100

Parker and Another v SJ Berwin and Co and Another: QBD 17 Dec 2008

The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said that the defendants made no progress, the opportunity was lost, and their money wasted. After a dilatory action, the claimants sought permission to amend their particulars out of time to add several new claims.
Held: Some amendments were allowed since they arose from the same facts, and others were rejected as having no prospect of success. However, it was not open to the Claimants to ‘rely on the CCC Films principle in the present case. There is no presumption that their wasted expenditure is recoverable in full. To recover any of that expenditure they must establish that there was a real and substantial chance of the expenditure being recovered, as would be usual in cases of this nature, and as they themselves initially acknowledged and pleaded.’

Hamblen J
[2008] EWHC 3017 (QB)
Bailii
England and Wales
Citing:
Cited – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Cited – Finlan v Winfield ChD 2007
Blackburne J said that when considering an application to amend particulars of claim outside the limitation period: ‘the court should not confine itself to a comparison of the new cause of action with the existing cause of action at the highest . .
Cited – Smith v Henniker-Major and Co CA 22-Jul-2002
The claimant appealed the strike-out of his claim for professional negligence against the respondent solicitors. He claimed that the solicitors had acted in breach of their duty, and he then called a company meeting. Only he attended. He mistakenly . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Independents’ Advantage Insurance Company Ltd v Cook and Another CA 24-Jul-2003
‘The power of the court to strike out a statement of case under CPR 3.4(2)(a) – and the related power to give summary judgment under CPR 24.2 – has an important place in the disposal of claims in accordance with the Civil Procedural Rules. The . .
Not applied – CCC Films (London) Ltd v Impact Quadrant Films Ltd 1984
The claimants purchased a licence to promote three films, but the defendant lost the film prints and CCC could not therefore promote them. After their claim for loss of profit failed in the absence of evidence, they claimed for the expenditure they . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .
Cited – Anglia Television v Oliver Reed CA 1971
The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – L Albert and Son v Armstrong Rubber Co 1949
(United States Court of Appeals, Second Circuit) A purchaser of machines designed to recondition rubber sought damages for breach of contract, namely, the cost of the foundation on which the machines were placed. However, the purchaser did not prove . .
Cited – Filobake Ltd v Rondo Ltd and Another CA 11-May-2005
Unsuitability of baking equipment installation. A claimant in a breach of contract claim has a choice whether to claim loss of profits or wasted expenditure. . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice, Limitation

Updated: 10 November 2021; Ref: scu.278861

Bacciottini and Another v Gotelee and Goldsmith (A Firm): CA 18 Mar 2016

A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the successful application for the removal of the condition. The claimant sought pounds 100,000, being the difference in value before the application succeeded.
Held: The appeal failed. The later removal of the condition meant that the claimant had not suffered the losses alleged.

David, Lloyd Jones, Underhill LJJ
[2016] EWCA Civ 170, [2016] WLR(D) 152, [2016] 4 WLR 98, [2016] PNLR 22
Bailii, WLRD
England and Wales
Citing:
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Philips v Ward CA 1956
The Plaintiff had relied on a negligent survey to purchase a substantial Elizabethan property and land. The report did not mention that the timbers of the house were badly affected by death watch beetle and worm so that the only course left to him . .
Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Hussey v Eels CA 1990
Profits made on development were not deductible
The purchasers of a property for a price of 53,250 pounds had relied on a negligent misrepresentation that the property had not been the subject of subsidence. In fact it had. The cost of the required works was 17,000 pounds, which they could not . .
Cited – Watts 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 . .
Cited – Wapshott v Davis Donovan and Co CA 1996
The defendant solicitors had negligently in 1986 failed to advise purchasers that there was no good title to part (an extension over an adjoining property) of a leasehold flat which they were buying. The problem came to light in 1988 when they . .
Cited – Kennedy v K B Van Emden and Co; Jordan v Gershon Young Finer and Green and Similar CA 27-Mar-1996
A solicitor failed in 1983 to advise a purchaser of the fact that premium she was paying on purchasing a leasehold flat was unlawful under the Act, and would be unrecoverable on the sale. Before trial however, in 1989 the law changed and the premium . .
Cited – Gardner v Marsh and Parsons (a Firm), Dyson CA 2-Dec-1996
Damages awarded against a surveyor for a negligent survey which had missed certain defects, were not to be reduced for repairs later carried out by the landlord at his own expense. The trial judge decided to award damages reflecting the difference . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 09 November 2021; Ref: scu.561202

Wroth v Tyler: ChD 1973

The plaintiff had contracted to purchase a house for 6,000 pounds but the defendant failed to complete. Damages were awarded in lieu of specific performance under a Lord Cairns’ Act provision. At the date of the repudiatory breach the value of the house was 7,500 pounds. At the date of the order the value of the house was 11,500 pounds. The award to the plaintiff, which but for some matters which have no bearing on the point of principle, would have been the difference between the purchase price and the value at the date of the order, namely 5,500 pounds.
Held: The presence of a class F Land Charge registered against a property was a breach of the condition requiring vacant possession. A solicitor failing to complete a registration becomes liable to his client in negligence.
Megarry J said: ‘No doubt in exercising the jurisdiction conferred by the 1858 Act a court with equitable jurisdiction will remember that equity follows the law, and will in general apply the common law rules for the assessment of damages; but this is subject to the overriding statutory requirement that damages shall be ‘in substitution for’ the injunction or specific performance . .
In my judgment, therefore, if under Lord Cairns’ Act damages are awarded in substitution for specific performance, the court has jurisdiction to award such damages as will put the plaintiffs into as good a position as if the contract had been performed, even if to do so means awarding damages assessed by reference to a period subsequent to the date of the breach. This seems to me to be consonant with the nature of specific performance, which is a continuing remedy, designed to secure, inter alia, that the purchaser receives in fact what is his in equity as soon as the contract is made, subject to the vendor’s right to the money, and so on. On the one hand, a decree may be sought before any breach of contract has occurred, and so before any action lies for common law damages; and on the other hand the right to a decree may continue long after the breach has occurred. On the facts of this case, the damages that may be awarded are not limited to the andpound;1,500 that is appropriate to the date of the breach, but extend to the andpound;5,500 that is appropriate at the present day, when they are being awarded in substitution for specific performance.’

Megarry J
[1974] Ch 30, [1973] 1 All ER 897
England and Wales
Cited by:
Cited – Clark and Another v Lucas Solicitors Llp ChD 31-Jul-2009
The claimants sought an order (by summary judgment) against the defendant firm of solicitors to require them to perform an undertaking they had given to provide evidence of the discharge of a mortgage. The defendants said the proper remedy was by an . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Land

Leading Case

Updated: 09 November 2021; Ref: scu.252339

White and Another v Jones and Another: HL 16 Feb 1995

Will Drafter liable in Negligence to Beneficiary

A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise outside the terms of the retainer or where there is no retainer at all.
Lord Browne-Wilkinson: ‘. . . By accepting instructions to draft a will, a solicitor does come into a special relationship with those intended to benefit under it in consequence of which the law imposes a duty to the intended beneficiary to act with due expedition and care in relation to the task on which he has entered . . . the assumption of responsibility referred to is the defendants’ assumption of responsibility for the task not the assumption of legal liability. Even in cases of ad hoc relationships, it is the undertaking to answer the question posed which creates the relationship. If the responsibility for the task is assumed by the defendant he thereby creates a special relationship between himself and the plaintiff in relation to which the law (not the defendant) attaches a duty to carry out carefully the task so assumed. If this be the right view, it does much to allay the doubts about the utility of the concept of assumption of responsibility voiced by Lord Griffiths . . .’

Lord Goff, Lord Browne-Wilkinson, Lord Keith, Lord Mustill, Lord Nolan
Independent 17-Feb-1995, Times 17-Feb-1995, [1995] 2 AC 207, [1995] UKHL 5, [1995] 1 All ER 691, [1995] 2 WLR 187
Bailii
England and Wales
Citing:
Appeal from – White and Another v Jones and Another CA 5-Mar-1993
A solicitor’s liability in negligence extends to a potential beneficiary of the will, from delay in making a will. . .
Cited – 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 . .
Cited – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
Cited – Gartside v Sheffield Young and Ellis 1983
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the . .
Cited – Henderson 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 . .

Cited by:
Cited – Gorham and others v British Telecommunications Limited Plc, the Trustees of the BT Pension Scheme Standard Life Assurance Company S/S CA 27-Jul-2000
Where an insurance company gave financial advice to a person to whom they owed a duty of care, and they were aware that that person was intending to provide for his dependants, then the insurance company owed the dependants a duty of care also. The . .
Cited – Johnson 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 . .
Appealed to – White and Another v Jones and Another CA 5-Mar-1993
A solicitor’s liability in negligence extends to a potential beneficiary of the will, from delay in making a will. . .
Cited – Corbett v Bond Pearce (a Firm) CA 8-Aug-1997
The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate . .
Cited – Commissioners 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 . .
Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Cited – Worby, Worby and Worby v Rosser CA 28-May-1999
Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .
Cited – Esterhuizen and Another v Allied Dunbar Assurance Plc QBD 10-Jun-1998
A non-professional will writing agency should be subject to the same standards of professional negligence in drawing up wills as a recognised lawyer. This is necessary to protect members of the public using will writing services. ‘the process of . .
Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Cited – Atkins v Dunn and Baker (A Firm) CA 19-Feb-2004
The claimant’s father had made a will leaving everything to her, but he had then remarried. He instructed his solicitors to prepare a will to revive the gift to her. They sent him a draft but did not chase it when it was not approved. It was agreed . .
Cited – Customs 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 . .
Cited – Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm) CA 11-Apr-2001
The testatrix had executed her will, but the will was dependent upon deeds of gift first taking place. The will was only later dated, once the deeds had been put into effect. . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – West Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
Cited – Woodward v Wolferstans (A Firm) ChD 20-Mar-1997
The plaintiff purchased a house. Her mortgage was to be guaranteed by her father. The defendant solicitors acted for her and her father, but the father had almost exclusive contact with the firm, and was in practice their princpal client. She said . .
Distinguished – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – Farraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
Cited – HM 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. . .
Cited – Credit 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 . .
Cited – Martin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Cited – Woodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.90455

Barclays Trust Company (Jersey) Ltd v Ernst and Young Llp: ComC 20 Apr 2016

The claimants seek damages for the alleged professional negligence of the defendant (‘EY’) in providing due diligence services in relation to the claimants’ acquisition in February 2007 of the Esporta health and fitness business

Phillips J
[2016] EWHC 869 (Comm)
Bailii
England and Wales

Professional Negligence

Updated: 09 November 2021; Ref: scu.562514

Forster v Outred and Co: CA 1981

A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for payment was made, but when she signed the mortgage deed.
Held: The cause of action was complete when the mother relied on the solicitor’s negligent advice and acted to her detriment by signing the deed. ‘Actual damage suffered’ so as to give rise to a claim in tort, and to begin the limitation period, is any detriment, liability or loss capable of assessment in money terms and includes liability which may arise on a contingency.
Dunn LJ said: ‘As soon as she executed the mortgage the plaintiff not only became liable under its express terms but also – and more importantly – the value of the equity of redemption of her property was reduced. Before she executed the mortgage deed she owned the property free from incumbrances; thereafter she became the owner of a property subject to a mortgage. That, in my view, was a quantifiable loss and as from that date her cause of action against her solicitor was complete. The actual quantum of damages would, of course, depend on events between that date and the date when the damages had finally to be assessed, but the cause of action was complete when she executed the mortgage, without proof of special damage.’
Stephenson LJ asked: ‘What is meant by actual damage? Mr Stuart-Smith says that it is any detriment, liability or loss capable of assessment in money terms and it includes liabilities which may arise on a contingency, particularly a contingency over which the plaintiff has no control; things like loss of earning capacity, loss of a chance or bargain, loss of profit, losses incurred from onerous provisions or covenants in leases. They are all illustrations of a kind of loss which is meant by ‘actual’ damage. It was also suggested in argument, and I would accept it, that ‘actual’ is really used in contrast to ‘presumed’ or ‘assumed.’ Whereas damage is presumed in trespass and libel, it is not presumed in negligence and has to be proved. There has to be some actual damage.’
He concluded: ‘Although there is no more direct authority than those cases among those which have been cited to us, I would accept Mr. Stuart-Smith’s statement of the law and would conclude that, on the facts of this case, the plaintiff has suffered actual damage through the negligence of her solicitors by entering into the mortgage deed, the effect of which has been to encumber her interest in her freehold estate with this legal charge and subject her to a liability which may, according to matters completely outside her control, mature into financial loss – as indeed it did. It seems to me that the plaintiff did suffer actual damage in those ways; and subject to that liability and with that encumbrance on the mortgage property was then entitled to claim damages, not, I would think, an indemnity and probably not a declaration, for the alleged negligence of the solicitor which she alleges caused her that damage. In those circumstances her cause of action was complete on February 8, 1973, and the writ which she issued on March 25, 1980, was issued too late to come within the six years’ period of limitation.’

Stephenson LJ, Dunn LJ
[1982] 1 WLR 86
England and Wales
Cited by:
Approved – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Hatton v Messrs Chafes (A Firm) CA 13-Mar-2003
The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
Held: By the time that the . .
Considered – UBAF Ltd v European American Banking Corporation CA 1984
The defendant invited the plaintiff to take part in a syndicated loan. The defendant’s assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that . .
Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Applied – Milton v Walker and Stanger 1981
The plaintiff instructed her solicitor to prepare documents and advise on a gift from P’s uncle to P and her cousin W in the proportions 2/3:1/3. P and W agreed that, should the farm be sold, the costs and capital gains tax (CGT) arising there from . .
Cited – Baker v Ollard and Bentley CA 12-May-1982
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to . .
Cited – D 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 . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Followed – D 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 . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Distinguished – Telfair Shipping Operation SA v Inersea Carriers SA, the Caroline P 1984
A claim was made in contract based on an indemnity.
Held: The claim was not time-barred. Time normally begins to run against a claim on a general indemnity only from the moment when the liability of the indemnified is accepted by him or . .
Cited – Robert Mark Gordon v J B Wheatley and Co (a Firm) CA 24-May-2000
The defendant solicitors had negligently advised the claimant in connection with a mortgage scheme he operated for customers. His case was that the defendants had negligently failed to advise him to register under s3 of the 1986 Act. The claimant . .
Cited – 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 . .
Cited – Abbott 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 . .
Cited – Iqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Rejected – Wardley Australia Ltd v Western Australia 1992
(High Court of Australia) A claim was based on a statutory trade indemnity scheme. The insurers claimed damages from Wardley, on the basis that its alleged deceit induced them to grant an indemnity, which was subsequently called on.
Held: . .
Cited – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Cited – Tabarrok v E D C Lord and Co (A Firm) CA 14-Feb-1997
The appellant wanted to open a pizza restaurant. He and his partners acquired a company for the purpose, which was to take a lease of premises. They sought advice from the defendants who, they said, failed to advise them of the need to be aware of . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Bowling and Co Solicitors v Edehomo ChD 2-Mar-2011
The court was asked ‘when an innocent vendor whose signature is forged on the documents for the conveyance of land suffers damage, for the purposes of limitation of an action arising from a solicitor’s breach of duty. Is it on the exchange of . .

Lists of cited by and citing cases may be incomplete.

Limitation, Damages, Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.179760

Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another: ChD 11 Nov 2008

The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Held: The defence in fact was that the claimant had both brought the claim too early because no tax liability had yet arisen, and too late because the arrangement had been set up several years before. Any contract breach took place when the breach occurred and that was time barred. In negligence, time ran from the time when any actual damage occurred, and ‘where the client has engaged professionals in connection with a transaction to secure for him some property or rights, and because of the negligence of those professionals, the client acquires less valuable property or rights than he would have done if he had been given correct advice, he suffers damage at the time of the transaction, even if the property or rights are worth no less than he actually paid for them.’ The damage occurred on the purchase of the shares, and the claim was time barred.

Lewison J
[2008] EWHC 2720 (Ch)
Bailii
Taxation of Chargeable Gains Act 1992 164A, Finance Act 1997, Finance Act 1993, Limitation Act 1980
England and Wales
Citing:
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Cited – Doncaster Pharmaceuticals Group Ltd and Others v The Bolton Pharmaceutical Company 100 Ltd CA 26-May-2006
Appeals were made against interlocutory injunctions for alleged trade mark infringement.
Held: The court should hesitate about making a final decision for summary judgment without a trial, even where there is no obvious conflict of fact at the . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Baker v Ollard and Bentley CA 12-May-1982
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – The Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .
Cited – UBAF Ltd v European American Banking Corporation CA 1984
The defendant invited the plaintiff to take part in a syndicated loan. The defendant’s assistant secretary signed a letter to the plaintiff making representations, now claimed to be fraudulent. The defendant succeeded at first instance arguing that . .
Cited – DW Moore and Co Ltd v Ferrier CA 1988
A solicitor was instructed to prepare an agreement providing for the introduction of a new working director into an insurance broking business carried on by a company. His instructions called for the new director to enter into a restrictive covenant . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – Watts 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 . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – R P Howard Ltd and Witchell v Woodman Matthews and Co (a firm) 1983
The solicitor defendant knew that the company was a family company effectively run by Mr Witchell from whom they received their instructions. The question raised was as to the duty of the solicitor to company and director.
Held: There is no . .
Cited – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Cited – Coulthard, Ashton Shuttleworth, and Dawes v Neville Russell (a Firm) CA 27-Nov-1997
Auditors who were in a position to advise a company’s directors as to the legality of them making loan payments to a shell company which was acquiring there shares had a duty so to advise. The directors of a company sued them for failing to warn . .
Cited – Shore v Sedgwick Financial Services Ltd CA 23-Jul-2008
The claimant said that the defendant had given him negligent advice on pensions, failing to say that he should stay within his occupational scheme. The defendant pleaded limitation.
Held: The claimant suffered damage when he made the transfer . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 09 November 2021; Ref: scu.277737

Yianni 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 found to have suffered severe cracking.
Held: The valuers had a duty of care to the purchasers. They knew that the report would be passed to them, and that they could be expected to rely upon it. There was sufficient proximity to create a duty of care. Since the plaintiffs’ failure to have an independent survey, or to take other steps to discover the true condition of the house, was due to their reliance on the defendants’ valuation, the defendant’s allegation of contributory negligence failed.
Park J said: ‘The defendants’ representative who surveyed and valued 1, Seymour Road noted the type of dwelling house it was; its age, its price and the locality in which it was situated. It was plainly a house at the lower end of the property market. The applicant for a loan would therefore almost certainly be a person of modest means who, for one reason or another, would not be expected to obtain an independent valuation, and who would be certain to rely, as the plaintiffs in fact did, on the defendants’ valuation as communicated to him in the building society’s offer. I am sure that the defendants knew that their valuation would be passed on to the plaintiffs and that the defendants knew that the plaintiffs would rely upon it when they decided to accept the society’s offer.
For these reasons I have come to the conclusion that the defendants owed a duty of care to the plaintiffs because, to use the words of Lord Wilberforce in Anns v. Merton Borough Council [1978] AC 728, 751H, there was a sufficient relationship of proximity such that, in the reasonable contemplation of the defendants, carelessness on their part might be likely to cause damage to the plaintiffs.’

Park J
[1982] QB 438, [1981] 3 WLR 843, [1981] 3 All ER 592
England and Wales
Citing:
Applied – Candler 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 . .
Cited – 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 . .
Cited – Anns 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 . .

Cited by:
Cited – Commissioners 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 . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.193349

Goody v Baring: CA 1956

The plaintiff asked the defendant solicitor to act for him in the purchase of a leasehold house. The solicitor was also asked to act for the vendor. The replies he gave, innocently, on behalf of the vendor were inaccurate as to the conditions of the tenancies. The buyer eventually had to repay overcharged rents to the tenants.
Held: The defendant was liable in that he had not questioned the vendor’s answers, but had simply relayed them. In a contract for the sale of land the buyer’s solicitor has a duty to make appropriate enquiries, and where these reveal some encumbrance, to pursue those enquiries. Once contracts have been exchanged, he remains under a duty to request confirmation of the replies given.

[1956] 1 WLR 448, [1956] 2 All ER 11, [1956] Sol Jo 320
England and Wales

Land, Contract, Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.219178

Marc Rich and Co Ag and Others v Bishop Rock Marine Co Ltd and Others: HL 6 Jul 1995

A surveyor acting on behalf of the classification society had recommended that after repairs specified by him had been carried out a vessel, the Nicholas H, should be allowed to proceed. It was lost at sea.
Held: The marine classification society was not liable in negligence to the owner of a cargo, where it was alleged that damage flowed from a negligent ship survey. A duty of care is imposed only where it was just and reasonable to do so. It was indirect damage, and economic loss. There was no contact between the cargo owners and the classification society. It was not even suggested that the cargo owners knew of the survey, they simply relied on the owners to keep the vessel seaworthy and to look after the cargo.
In relation to a novel category of negligence, the imposition of liability must satisfy a three stage test of foreseeability, proximity and fairness. Lord Steyn said that in the field of negligence, the common law: ‘develops incrementally on the basis of a consideration of analogous cases where a duty has been recognised or desired.’

Lord Steyn, Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson, Lord Lloyd of Berwick
Gazette 06-Sep-1995, Independent 18-Aug-1995, Times 07-Jul-1995, [1995] 3 All ER 307, [1995] UKHL 4, [1996] 1 AC 211, [1995] CLC 934, [1995] 2 LLR 299, [1996] ECC 120, [1995] 3 WLR 227, [1995] 2 Lloyd’s Rep 299
Bailii
England and Wales
Citing:
Appeal from – Marc Rich and Co Ag and Others v Bishop Rock Marine Co Ltd and Others; The Nicholas H CA 3-Feb-1994
The duty of care does not vary with the nature of damage, as to whether it is physical or financial. The relationship of the parties is to be taken into account in assessing the extent of damage.
Saville LJ said: ‘the three so-called . .
Cited – Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd HL 1961
Cargo was damaged in the course of a voyage by the failure of a fitter employed by ship repairers to secure the inspection cover on a storm valve. The cargo owner sued the shipowner in contract, and recovered.
Held: It was no defence that the . .
Cited – Caparo 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 . .
Cited – Mobil Oil Hong Kong Ltd v Hong Kong United Docklands Ltd. (the ‘Hua Lien’) 1991
. .
Cited – Grant 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, . .

Cited by:
Cited – Binod 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 . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Regina 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 . .
Cited – Welton, 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 . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Cited – Robinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .
Cited – Perrett v Collins, Underwood PFA (Ulair) Limited (T/a Popular Flying Association) CA 22-May-1998
The plaintiff was a passenger in an aircraft which crashed, and there was a preliminary issue as to the liability to him of those who certified that the aircraft was fit to fly. The propeller was mismatched to the gearbox.
Held: A certifying . .

Lists of cited by and citing cases may be incomplete.

Transport, Professional Negligence, Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.83395

Allied Maples Group Ltd v Simmons and Simmons: CA 12 May 1995

Lost chance claim – not mere speculative claim

Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was a real and not a merely speculative chance that the plaintiffs, had they been properly advised, would have successfully re-negotiated with the vendor to obtain proper protection.
Held: The judgment was upheld. To avoid an action for damages against solicitors being struck out, the plaintiff must satisfy the court that he had at least a ‘real’ or ‘substantial’ chance that he would have succeeded in the primary action, not merely a speculative chance. The court rejected the proposition that in order to succeed the plaintiff was required to prove on a balance of probabilities that the third party (there another party to a commercial transaction) would have acted so as to confer the relative benefit on the plaintiff. A plaintiff must prove that he has (or had) a real or substantial chance (as opposed to a speculative chance) of that occurring, that chance then being evaluated having regard to how it stands in the spectrum between something that just qualifies as real or substantial on the one hand and near certainty on the other. If a chance having been found to be real or substantial was evaluated at less than 50%, an award of damages would follow. ‘In many cases the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff, as in this case, or independently of it. In such a case, does the plaintiff have to prove on balance of probability, … that the third party would have acted so as to confer the benefit or avoid the risk to the plaintiff, or can the plaintiff succeed provided he shows that he had a substantial chance rather than a speculative one, the evaluation of the substantial chance being a question of quantification of damages? . . . I have no doubt that … the second alternative is correct.’
Stuart Smith LJ said: ‘the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket s
Hobhouse LJ said: ‘The plaintiffs have satisfied the court that the loss they have suffered is not nominal. They are not obliged to prove more than that they have lost something of substance. This they have done by showing that they had a measurable chance of negotiating significantly better terms. They are entitled to an assessment of their damages.
I agree with Stuart-Smith L.J. that the correct approach is that summarised by Lord Reid in Davies v. Taylor [1974] A.C. 207′

Stuart-Smith LJ, Hobhouse LJ
[1995] 1 WLR 1602, [1995] 4 All ER 907, [1995] EWCA Civ 17, [1995] NPC 83, 46 Con LR 134, [1996] CLC 153, (1995) 70 P and CR D14, [1955-95] PNLR 701
Bailii
England and Wales
Citing:
Cited – McWilliams v Sir William Arrol and Company Ltd HL 21-Feb-1962
Damages were sought after the death of the pursuer’s husband working for the respondent. The trial judge had been satisfied that even if the defendants had performed their duty at common law and pursuant to statute, and had provided the deceased . .
Applied – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .

Cited by:
Cited – Brown and Another v Bennett and Others (No 2) ChD 16-Nov-2001
The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at . .
Cited – Prosser v Castle Sanderson Solicitors (a Firm), Geoffrey Martin and Co (A Firm) CA 31-Jul-2002
The claimant sought damages from the respondent solicitors and insolvency practitioners for professional negligence. He had substantial business interests, but fell into financial difficulties, and sought assistance from the defendants. He failed to . .
Cited – Equitable Life Assurance Society v Ernst and Young (A Firm) ComC 10-Feb-2003
The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale . .
Cited – Herring v Ministry of Defence CA 10-Apr-2003
The claimant had suffered serious injury in a parachuting accident which deprived him of the opportunity of pursuing his chosen career in the police force. The judge found ‘to the extent of virtual certainty’ that he would have applied to join the . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Cited – Harrison and Another v Bloom Camillin ChD 28-Oct-1999
When assessing the losses suffered by a plaintiff alleging that, through the professional negligence of his solicitors, he had lost the opportunity to pursue a similar action against his accountants, it was right to acknowledge, and allow for the . .
Cited – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Jackson and Another v Royal Bank of Scotland HL 27-Jan-2005
The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
Cited – Lawson v Glaves-Smith, Executor of the Estate of Dawes (Deceased) QBD 14-Nov-2006
The claimant sought damages saying that she had been falsely imprisoned, raped and drugged by the defendant who had since died.
Held: The court had only the evidence of the claimant, and must be careful in examining it. On that evidence the . .
Cited – Veitch and Another v Avery CA 12-Jul-2007
The claimants appealed the award of only nominal damages after they succeeded in their claim against their solicitors for negligence in their conduct of the defence of a mortgage possession action.
Held: The appeal failed. The judge was . .
Cited – 4 Eng Ltd v Harper and Another ChD 29-Apr-2008
The claimant sought damages for deceit in the purchase of shareholdings fropm the defendants. The defendants objected that the damages claimed were for a loss of chance and were irrecoverable.
Held: Such damages might be recoverable in an . .
Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – Martin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Cited – Joyce 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 . .
Cited – Parabola Investments Ltd and Others v Browallia Cal Ltd and Others CA 5-May-2010
The second defendant appealed against the level of damages awarded against him after he was found guilty of a fraud on the claimant, saying that the loss of profits element was unproven.
Held: The appeal failed. Where a claimant’s investment . .
Cited – Channon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.180542

Saif Ali v Sydney Mitchell and Co (a Firm): HL 1978

Extent of Counsel’s Immunity in Negligence

The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to such pre-trial work as was intimately connected with the conduct of the case in Court as distinct from more remote legal services such as advice (including advice not to go to Court). Barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss. The immunity of barristers from suit could be justified on two other grounds. The analogy of the general immunity from civil liability which attaches to all persons participating in proceedings before a court. Second was the public interest in not permitting decisions to be challenged by collateral proceedings.
Lord Diplock said that a barrister is not liable for an error of judgment ‘unless the error was such as no reasonably well-informed and competent member of that profession could have made.’
He considered the barrister’s overriding duty to the court: ‘The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered.’
Lord Wilberforce said: ‘Some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer.’ and ‘In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill. The immunity as regards litigation is an exception from this and applies only in the area to which it extends. Outside that area, the normal rule must apply.’ and ‘Much if not most of a barrister’s work involves the exercise of judgment – it is in the realm of art not science. Indeed the solicitor normally goes to counsel [for advice] precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is unlikely to succeed.’
Lord Salmon: ‘Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he had been negligent.’ However ‘it can only be the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court.’ and ‘The normal rule applied by the law is that if anyone holding himself out as possessing reasonable competence in his vocation undertakes to advise or settle a document, he owes a duty to advise or settle the document with reasonable competence and care.’

Lord Diplock. Lord Salmon, Lord Wilberforce, Lord Keith of Kinkel
[1980] AC 198, [1978] 3 All ER 1033, [1978] 3 WLR 849, [1978] UKHL 6
Bailii
England and Wales
Citing:
Considered – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .

Cited by:
Cited – Atwell v Perr and Co and Another ChD 27-Jul-1998
Counsel advising during conduct of case has immunity but a wrongful advice on appeal was outside his immunity. Work done before a hearing constituting the formulation of case was within the immunity from suit. . .
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Cited – Kelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
Cited – Hicks v Russell Jones and Walker (A Firm) ChD 27-Apr-2007
The claimants sought to pursue an action in negligence against their solicitors saying that they had conducted another case negligently, and thereby they had lost their chance in the action, on the basis that the hotel at the centre of the action . .
Cited – Abrahams v Commissioner of the Police for the Metropolis CA 8-Dec-2000
The claimant had been arrested for swearing at a police officer. After her arrest, the claimant made admissions to secure a caution, rather than risk prosecution. She later sought to begin a civil action for damages against the police in the course . .
Cited – Awoyomi 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 . .
Cited – Welsh v Chief Constable of Merseyside Police 1993
On conviction for one offence, the plaintiff asked for two other offences to be taken into consideration. He was bailed pending sentence. He was then arrested for the other offences and wrongfully held in custody. The Crown Prosecution Service had . .
Cited – Williams v Thompson Leatherdale (A Firm) and Another QBD 10-Nov-2008
The claimant sought damages from her legal advisers. They had allowed her to settle an ancillary relief application knowing that the case of White v White had been referred to the House of lords, and the settlement proved to have been on . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Pritchard Joyce and Hinds (A Firm) v Batcup and Another CA 5-May-2009
Standard expected of negligence claim on counsel
The claimant solicitors sought contributory damages from counsel for failing to advise them of the applicable limitation period in an action they were conducting against other solicitors in negligence. Counsel now appealed saying that the judged had . .
Cited – Jones 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 . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.181061

Mortgage Express Ltd v Bowerman and Partners (A Firm): CA 1 Aug 1995

A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in relation to facts discovered by them in the course of investigating title which a reasonably competent solicitor would realise might have a material bearing on the valuation of the lender’s security or some other ingredient of the lending decision.
Millett LJ said: ‘A solicitor who acts for both a purchaser and a mortgage lender faces a potential conflict of duty. A solicitor who acts for more than one party to a transaction owes a duty of confidentiality to each client, but the existence of this duty does not affect his duty to act in the best interests of the other client.’
Bingham LJ: ‘A client cannot expect a solicitor to undertake work he has not asked him to do, and will not wish to pay him for such work. But if in the course of doing the work he is instructed to do the solicitor comes into possession of information which is not confidential and which is clearly of potential significance to the client, I think that the client would reasonably expect the solicitor to pass it on and feel understandably aggrieved if he did not.’

Millett LJ, Bingham MR L
Times 01-Aug-1995, [1996] 2 All ER 836, [1996] 1 PNLR 62
England and Wales
Citing:
Appeal from – Mortgage Express Ltd v Bowerman and Partners (A Firm) ChD 19-May-1994
A solicitor who had been put on enquiry as to a valuation of a property must report his doubts to his mortgagee client also. . .

Cited by:
Cited – Hilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Nationwide Building Society v Balmore Radmore ChD 1999
Although the Bowerman duty is a species of obligation which the court will ordinarily imply where a solicitor acts for a lender, it will not imply such an obligation when to do so is inconsistent with the express terms of the retainer or with the . .
Cited – E.Surv Ltd v Goldsmith Williams Solicitors ChD 10-Apr-2014
The claimants had been found liable for mis-valuation of a property. They now sought a contribution from the solicitors acting uunder the mortgage saying that had they acted properly, they would have alerted the lender, and in turn the claimant of . .
Cited – Pepper (UK) Ltd (T/A Engage Credit) v Fox (P/A Barry Fox, Solicitors) ChNI 14-Jan-2016
Application by Pepper (UK) Ltd t/a Engage Credit against Emma Jane Fox practising as Barry Fox, Solicitors for the delivery up of all papers, documents and title deeds in the possession and custody of the Solicitors and belonging to the plaintiff . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.83873

South Australia Asset Management Corporation v York Montague Ltd etc: HL 24 Jun 1996

Limits of Damages for Negligent Valuations

Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without one of them being negligent. But once the valuer has been found to have been negligent, the loss for which he is responsible is that which has been caused by the valuation being wrong. A negligent valuer is not necessarily liable for the whole of the loss in such circumstances. The correct approach has been held to be to ascertain what element of loss suffered as a result of the transaction was attributable to the inaccuracy of the information supplied by the valuer. For this purpose the valuation negligently provided is to be compared with the figure which a reasonable valuer, using the information available at the relevant time, would have put forward as its most likely open market value. Thus the valuer may escape liability for a subsequent fall in market values. The court discussed the ‘mountaineer’s knee’: ‘A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee . . on what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctors bad advice because it would have occurred if the advice had been correct’.
Lord Hoffmann: ‘Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation . . Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful.’
Lord Hoffmann said: ‘The Court of Appeal (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd and other appeals [1995] 2 All ER 769, [1995] QB 375) decided that in a case in which the lender would not otherwise have lent (which they called a ‘no-transaction’ case), he is entitled to recover the difference between the sum which he lent, together with a reasonable rate of interest, and the net sum which he actually got back. The valuer bears the whole risk of a transaction which, but for his negligence, would not have happened. He is therefore liable for all the loss attributable to a fall in the market. They distinguished what they called a ‘successful transaction’ case, in which the evidence shows that if the lender had been correctly advised, he would still have lent a lesser sum on the same security. In such a case, the lender can recover only the difference between what he has actually lost and what he would have lost if he had lent the lesser amount. Since the fall in the property market is a common element in both the actual and the hypothetical calculations, it does not increase the valuer’s liability.
The valuers appeal. They say that a valuer provides an estimate of the value of the property at the date of the valuation. He does not undertake the role of a prophet. It is unfair that merely because for one reason or other the lender would not otherwise have lent, the valuer should be saddled with the whole risk of the transaction, including a subsequent fall in the value of the property.

Lord Hoffmann, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Slynn of Hadley, Lord Nicholls of Birkenhead
Gazette 04-Sep-1996, Times 24-Jun-1996, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] UKHL 10, [1996] 3 WLR 87, [1996] 3 All ER 365, [1996] 2 EGLR 93, 80 BLR 1, [1996] 5 Bank LR 211, [1996] CLC 1179, [1996] 50 Con LR 153
Bailii
England and Wales
Citing:
Appeal from – Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others CA 24-Feb-1995
The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and . .
Appeal from – Craneheath Securities v York Montague CA 1996
When testing whether a valuation was negligent, it would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong. would not be enough for the . .
Applied – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .
Cited – In re the Oropesa CA 1943
Two steam vessels collided. One’s Master sent fifty of his crew in boats to the other ship and about an hour and a half after the collision decided himself to go to that ship and confer with her Master on measures to be taken. He transferred in . .
At first instance – Banque Bruxelles Lambert Sa v Eagle Star Ins Co Ltd and Others QBD 7-Mar-1994
A negligent valuer was liable for the loss arising from an overvaluation, but the valuer was not liable for that proportion of the lender’s loss on the loan which was attributable to the fall in the market after the valuation date, even though (i) . .
Cited – Regina v Shulman, Regina v Prentice, Regina v Adomako; Regina v Holloway HL 1-Jul-1994
An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross . .

Cited by:
Cited – Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited HL 18-Oct-2001
Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining . .
Applied – Platform 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 . .
Cited – Petersen v Personal Petersen (Deceased), Representative of CA 31-Jan-2002
The claim was against a solicitor for negligence. The claimant had purchased a property in respect of which there was an unsettled dispute, He claimed that the solicitor had accepted a condition under which he accepted a proportion of the liability . .
Cited – Equitable Life Assurance Society v Ernst and Young (A Firm) ComC 10-Feb-2003
The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale . .
Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Cited – DP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Affirmed – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – A and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Cited – Roger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
Cited – McLoughlin v Jones; McLoughlin v Grovers (a Firm) CA 2002
In deciding whether a duty of care is established the court must go to the ‘battery of tests which the House of Lords has taught us to use’, namely: ‘. . the ‘purpose’ test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the ‘assumption . .
Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Cited – Green and Another v Alexander Johnson (A Firm) and Another ChD 26-May-2004
The judgment related to the assessment of damages for professional negligence by the defendants. The court deprecated the practice of separating off assessments of damages from the principal claim, since this created a risk of confusion. The . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – London General Holdings Ltd and others v USP Plc and Another CA 22-Jul-2005
Copyright was claimed in a draft legal agreement. Infringement was established, but the court was asked to look at the assessment of damages.
Held: ‘what is the basis upon which damages for breach of copyright are awarded? The question cannot . .
Cited – Weston v Gribben ChD 20-Dec-2005
. .
Cited – Phelps v Stewarts (A Firm) and Another ChD 2-Jul-2007
The claimant sought damages for the negligent drafting of a deed of trust, saying that he had not been advised of a charge to tax which would arise. The defendant said that her duties were limited, and did not include advice on this point, having . .
Cited – Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas) HL 9-Jul-2008
The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Meadows v Khan QBD 23-Nov-2017
Claim for the additional costs of raising the claimant’s son, A, who suffered from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, A would not have been born because his mother would have discovered during her . .
Cited – Kuddus v Regina CACD 16-May-2019
The defendant appealed his conviction for gross negligence manslaughter. He ran a takeaway food business. A meal was ordered by the victim through a third party website, adding that she suffered mild allergies. There was no evidence that the . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Cited – Manchester Building Society v Grant Thornton UK Llp ComC 2-May-2018
claim for damages by a building society caused by the admitted negligence of its accountant. . .
Cited – Manchester Building Society v Grant Thornton UK Llp CA 30-Jan-2019
Liability of an auditor for losses incurred on long term interest rate swap agreements which were entered into in reliance upon negligent accounting advice and which were closed out at a loss when the negligent advice came to light. . .
Cited – Manchester Building Society v Grant Thornton UK Llp SC 18-Jun-2021
Was the Court of Appeal was right to hold that the break costs claimed by the Appellant fell outside the scope of the Respondent’s duty of care as professional accountants? . .
Cited – Khan v Meadows SC 18-Jun-2021
‘ A woman approaches a general medical practice for testing to establish whether she is a carrier of a hereditary disease. Tests which are inappropriate to answer that question are arranged. A general medical practitioner when informing her of the . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Banking

Leading Case

Updated: 02 November 2021; Ref: scu.89405

Phelps v Mayor and Burgesses London Borough of Hillingdon: CA 4 Nov 1998

The plaintiff claimed damages for the negligent failure of an educational psychologist employed by a local authority to identify that the plaintiff was dyslexic.
Held: An educational psychologist has no duty of care to a child, as opposed to her employer, in failing to diagnose dyslexia which was not an injury but a congenital condition: (Evans LJ) ‘dyslexia is not itself an injury and I do not see how failure to ameliorate or mitigate its effects can be an injury.’ No economic loss damages occurred until the psychologist adopted a particular duty to the child.

Stuart-Smith LJ
Times 09-Nov-1998, Gazette 25-Nov-1998, [1998] EWCA Ci84699 1686, [1999] 1 WLR 500, [1998] ELR 38
Bailii
England and Wales
Citing:
Appeal from – Phelps v Hillingdon London Borough Council QBD 10-Oct-1997
An educational psychologist has a professional duty of care to a child when asked to assess for that child for dyslexia, even though the report may be for the local authority. . .
Distinguished – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Henderson 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 . .

Cited by:
Appeal from – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited – Adams 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.

Professional Negligence, Education, Limitation

Updated: 02 November 2021; Ref: scu.145165

Watkins and Another v Jones Maidment Wilson (A Firm): CA 4 Mar 2008

The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation period did not commence until the damage became more than contingent.
Held: The claimant’s appeal failed. Arden LJ said: ‘If the advice had not been negligent, the claimant would have had the chance of negotiating a better agreement. That chance was an asset with a measurable value. Its absence meant that there was an immediate loss.’

Arden LJ, Longmore LJ, Thomas LJ
[2008] EWCA Civ 134, [2008] PNLR 23, [2008] I EGLR 149
Bailii
Limitation Act 1980 3
England and Wales
Citing:
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Cited – D 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 . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – Anthony McCarroll v Statham Gill Davies (A Firm) CA 1-Apr-2003
The claimant said his solicitors had failed to protect his interests in a partnership agreement into which he subsequently entered. The agreement contained less favourable terms than those which should have been agreed and he claimed damages . .
Cited – Brunsden v Humphrey CA 1884
The defendant had negligently caused damage to a cab driver and his vehicle in the same accident. The cab driver obtained damages for the damage to his vehicle.
Held: He was not disentitled from bringing fresh proceedings for damages for . .
Cited – Hamlin and Another v Edwin Evans (A Firm) CA 15-Jul-1996
The plaintiffs had discovered that the defendant surveyors had negligently failed to observe that there was dry rot but did not start proceedings until other negligence was discovered more than six years later.
Held: Although the negligent . .

Cited by:
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Axa Insurance Ltd v Akther and Darby Solicitors and Others CA 12-Nov-2009
The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 02 November 2021; Ref: scu.266079

Farley 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 normally cover this question, but he had been asked the question and he had answered it. Could the buyer claim damages for non-pecuniary loss?
Held: The contract was a contract to secure pleasure, relaxation and peace of mind. That did not need to be the very object of the contract for damages to be awarded. The surveyor could not escape liability by saying he had not contracted to produce the result requested. Nor was the claimant obliged to move house or surrender his claim. The innocent party is entitled to be placed in the position that he would have been in had the party in breach exercised due care. Damages might be recoverable for distress and inconvenience for breach of contract where the matter was important to the claimant, that had been made clear to the defendant, and the required action had been incorporated into the contract. The court viewed an award of 10,000 pounds for the discomfort of suffering aircraft noise, as high and at the very top of an appropriate bracket.

Lord Steyn
Times 15-Oct-2001, Gazette 18-Oct-2001, [2001] UKHL 49, [2002] 2 AC 732, [2001] 3 WLR 899, [2001] All ER 801
House of Lords, Bailii
England and Wales
Citing:
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Watts 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 . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Appeal from – Farley 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: . .
Cited – 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 . .

Cited by:
Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Cited – Dunnachie v Kingston Upon Hull City Council; Williams v Southampton Institute; Dawson v Stonham Housing Association EAT 8-Apr-2003
EAT Unfair Dismissal – Compensation
In each case, The employee sought additional damages for non-economic loss after an unfair dismissal.
Held: The Act could be compared with the Discrimination Acts . .
Applied – Hamilton Jones v David and Snape (a Firm) ChD 19-Dec-2003
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children.
Cited – Yearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .
Cited – Milner and Another v Carnival Plc (T/A Cunard) CA 20-Apr-2010
Damages for Disastrous Cruise
The claimants had gone on a cruise organised by the defendants. It was described by them as ‘the trip of a lifetime.’ It did not meet their expectations. There had been several complaints, including that the cabin was noisy as the floor flexed with . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages, Contract

Leading Case

Updated: 02 November 2021; Ref: scu.166572

Law Society v Sephton and Co (a Firm) and Others: HL 10 May 2006

A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from the accountants. The accountants pleaded limitation.
Held: The Law Society faced a contingent liability on the fund, but that was insufficient to start the limitation period. Damage was an essential part of a claim for negligence, and the damages was not suffered until the Society received a claim.
Lord Scott said: ‘a cause of action in tort did not accrue in the Law Society’s favour against Sephtons until the Law Society first received a claim on the Compensation Fund from a Payne and Co client whose money had been misappropriated.’ The limitation period began at that point, and the claim could continue.

Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance
[2006] UKHL 22, Times 11-May-2006, [2006] 2 AC 543, [2006] 2 WLR 1091
Bailii, House of Lords
Limitation Act 1980
England and Wales
Citing:
Cited – Law Society v KPMG Peat Marwick and Others CA 29-Jun-2000
The respondent accountants had certified accounts for a firm of solicitors whose dishonest defaults later lead to substantial claims on the compensation fund set up by the claimants.
Held: The Law Society who collected funds from the . .
Appeal from – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
At First Instance – The Law Society v Sephton and Co and others ChD 2004
The Law Society claimed in negligence against the defendant firm of accountants who had wrongly certified the accounts of a firm of solicitors. The Society sought to recover the payments it had made from its compensation fund. The defendant pleaded . .
Mentioned – Cartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
Approved – Wardley Australia Ltd v Western Australia 1992
(High Court of Australia) A claim was based on a statutory trade indemnity scheme. The insurers claimed damages from Wardley, on the basis that its alleged deceit induced them to grant an indemnity, which was subsequently called on.
Held: . .
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – D 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 . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Helpful – First National Comercial Bank plc v Humberts CA 27-Jan-1995
The plaintiff loaned money on the basis of a negligent survey by the defendant. The borrower subsequently defaulted, and the lender issued a writ. The defendant said that the claim was time barred.
Held: The court allowed the plaintiff’s . .
Cited – Southern Railway of Peru Ltd v Owen HL 21-Jun-1956
When drawing up accounts where the company faces contingent laibilities and provision has to be made, the principles upon which such provisions are made does not depend upon (Lord Radcliffe) ‘any exact analysis of the legal form of the relevant . .
Cited – Clonard Developments Limited v Humberts (a Firm) CA 15-Jan-1999
A judge was right to acknowledge that a party’s expert witness might be biased, and assess accordingly. Where a surveyor’s valuation was negligent there was still no liability where the plaintiff did not show it had relied upon the valuation. . .
Cited – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Cited – Clonard Developments Limited v Humberts (a Firm) CA 15-Jan-1999
A judge was right to acknowledge that a party’s expert witness might be biased, and assess accordingly. Where a surveyor’s valuation was negligent there was still no liability where the plaintiff did not show it had relied upon the valuation. . .

Cited by:
Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Axa Insurance Ltd v Akther and Darby Solicitors and Others CA 12-Nov-2009
The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the . .

Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.241654

Webb v Macdonald and Another: ChD 29 Jan 2010

Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice given that the claimant’s argument would fail was correct. Nor did the claimant have any real prospect of establishing that the advice on the figures was negligent. The defendants had advised that unless the settlement proposed was accepted, Legal Aid would be withdrawn. In effect the claimant was arguing that his lawyers failed to circumvent the regulations. Summary judgment was granted against the claimant.

Vos J
[2010] EWHC 93 (Ch), [2010] BPIR 503, [2010] NPC 12
Bailii
Civil Legal Aid (General) Regulations 1989
England and Wales
Citing:
Cited – E D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Cited – Karpenko v Paroian, Courey, Cohen and Houston 1981
(Ontario High Court) Andersen J said: ‘What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, . .
Cited – Khan v Mortgage Express 2000
Secured creditors who had proved in respect of the expected shortfall over the value of their security, were not prevented from realising their security over and above its expected value. . .
Cited – Household Mortgage Corporation plc v Whitehead and Another CA 14-Nov-2002
The mortgage lender had proved in the voluntary arrangement as an unsecured creditor. It had valued the security as less than the debt, and accepted a dividend on the portion remaining unsecured. It now sought to enforce the security. It was argued . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Hanning v Maitland (No 2) CA 1970
Edmund Davies LJ rejected ‘serious impoverishment’ as a description of the test for severe financial hardship in the context of a Legal Aid: ‘the statute does not make impoverishment a prerequisite to the granting of relief to the unassisted . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Aid

Updated: 01 November 2021; Ref: scu.396454

Simmons v Pennington and Son: CA 1955

Solicitors Followed Historical Practice

Premises owned by the plaintiff were subject to an obsolete covenant restricting their use to that of a private dwelling house. It had in fact been used continuously for many years, both before and after the plaintiff became owner, for business purposes, without any complaint being made. In 1948 the plaintiff sold the premises by auction to B who paid a deposit. The particulars described the property as a ‘valuable and commanding freehold corner shop premises,’. A special condition stated that the property was subject to the restrictive covenants as to user contained in a deed of 1870 (which restricted the user to that of a private dwelling house), so far as those covenants were subsisting and capable of taking effect. In answering a requisition as to title whether the premises were subject to a restrictive covenant, the defendants acting as solicitors for the plaintiff, replied ‘Yes, see special condition 7. There appear to have been breaches of the covenant as to user but no notice of breach has been served.’ The purchaser took that reply as a repudiation and recovered his deposit. While that action was pending another purchaser offered to buy the premises, but the defendants advised him not to sell pending the trial of the first action. The property was then damaged by fire. The insurance lapsed. He claimed damages from his solicitors for negligence.
Held: His action failed. The defendants having in answering the requisition acted in accordance with the general practice of conveyancers, which had been followed for many years without any ill consequence, they could not be held to have acted negligently or failed to come up to a reasonable standard of care, for they could not reasonably have anticipated the result which had flowed from it. The answer given to the requisition on title by the solicitors’ managing clerk followed the form which the trial judge, Harman J. said had been used in answering such questions ‘from the time of the memory of man, or at all events for a long time.’ The solicitors had acted in accordance with the general practice of conveyancers; no ill consequences had ever been known to flow from an answer to a requisition in this form. Denning L.J. said that now the case had gone adversely to the vendor it was possible to see that a mistake had been made, but he warned against being wise after the event. The test to be applied was whether solicitors in that position had ‘failed to come up to a reasonable standard of care and skill such as is rightfully required of an ordinary prudent solicitor.’ It was impossible to say that these solicitors were guilty of a breach of duty to their client; it was one of those misadventures and misfortunes which sometimes happen in the best conducted businesses.

Lord Denning, Hodson L
[1955] 1 All ER 240, [1955] 1 WLR 183
England and Wales
Citing:
Cited – Fletcher and Son v Jubb, Booth and Helliwel CA 1920
Scrutton LJ said: ‘it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between that . .

Cited by:
Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.183165

Raja v Austin Gray (A Firm): CA 19 Dec 2002

A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: ‘(1) A mortgagee with the power of sale is not a trustee of that power, the power being given to the mortgagee for his own benefit.
(2) A mortgagee is not under a general duty of care to the mortgagor and can act in his own interests in deciding whether and when he should exercise his power of sale.
(3) A mortgagee, however, is subject to an equitable duty to act in good faith and to obtain the best price reasonably obtainable at the time he decides to sell. That duty is owed to those interested in the equity of redemption. They include the mortgagor, other mortgagees and a guarantor of the mortgage debt, but they do not include a tenant at will of the mortgaged property, nor, where the mortgagor is a trustee, a beneficiary of the trust.’

Peter Gibson LJ
[2002] EWCA Civ 1965, [2003] 1 EGLR 91, [2003] BPIR 725, [2003] 13 EG 117, [2003] 4 EGCS 151, [2003] Lloyd’s Rep PN 126
Bailii
England and Wales
Citing:
Appeal from – The Estate of Mohammed Sabir Raja (Deceased) v Austin Gray (A Firm) QBD 31-Jul-2002
The claimant sought damages for negligent valuation of properties belonging to the deceased, but taken into receivership under charges taken by a company who in turn charged its assets to a bank. When the debenture was enforced, the charges were . .
Cited – Cuckmere Brick Co Ltd v Mutual Finance Ltd CA 1971
A mortgagee selling as mortagee in possession must ‘take reasonable care to obtain the true value of the property at the moment he chooses to sell it’ and obtain the best price for the property reasonably obtainable on the open market. However, . .

Cited by:
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Bell v Long and others ChD 16-Jun-2008
Land had been sold by administrative receivers appointed under a charge. The owner said that the lands had been sold at an undervalue.
Held: The action failed. The claimant could not show any breach of duty or that the assessments made were . .
Cited – Silven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .

Lists of cited by and citing cases may be incomplete.

Land, Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.189022

Bolam v Friern Hospital Management Committee: QBD 1957

Professional to use Skilled Persons Ordinary Care

Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising or professing to have that special skill. It is the duty of a professional man to exercise reasonable skill and care in the light of his actual knowledge and whether he exercised reasonable care cannot be answered by reference to a lesser degree of knowledge than he had, on the grounds that the ordinary competent practitioner would only have had that lesser degree of knowledge. This is not a gloss upon the test of negligence as applied to a professional man. That test is only to be applied where the professional man causes damage because he lacks some knowledge or awareness. The test establishes the degree of knowledge or awareness which he ought to have in that context. Where, however, a professional man has knowledge, and acts or fails to act in way which, having that knowledge he ought reasonably to foresee would cause damage, then, if the other aspects of duty are present, he would be liable in negligence by virtue of the direct application of Lord Atkins’ original test in Donoghue v Stevenson. ‘it is not enough to show that another expert would have given a different answer . . the issue is . . whether [the defendant] has acted in accordance with practices which are regarded as acceptable by a respectable body of opinion in his profession’ and ‘How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man . . But where you get a situation which involves some special skill or competence, then the test of whether there has been negligence or not is not the test of the man on the top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.’

McNair J
[1957] 1 WLR 582, [1957] 2 All ER 118
England and Wales
Citing:
Cited – Donoghue (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 . .

Cited by:
Applied – Penney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
Applied – Mirza v Birmingham Health Authority QBD 31-Jul-2001
The claimant had undergone heart surgery as an infant in 1976, and claimed damages for professional negligence. The procedure involved a dangerous procedure, a resection of coarctation. As a consequence, the Claimant suffered a number of problems . .
Cited – Airedale NHS Trust v Bland FD 19-Nov-1992
The patient had suffered catastrophic injuries in 1989, leaving him in a persistent vegetative state (PVS). The doctors sought leave to discontinue life maintaining treatment and medical support. The inevitable result would be his death. The . .
Cited – Airedale 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 . .
Applied – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Cited – Regina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
Cited – Sahib Foods Limited and Co-operative Insurance Society Limited v Paskin Kyriakides Sands (A Firm) TCC 3-Mar-2003
The claimants were lessees of premises, and the second claimants had contracted to purchase it. The premises burned down, and the claimants sought damages from the architect respondents. The fire began because of negligence by the claimant’s . .
Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Cited – Zubaida v Hargreaves CA 1995
In the general run of actions for negligence against professional men it is not enough to show that another expert would have given a different answer. The issue is whether the defendant acted in accordance with practices which are regarded as . .
Cited – Singer and Friedlander Ltd v Wood 1977
Valuers acting competently and professionally may reach widely varying conclusions as to value. There is a permissible margin of error, the ‘bracket’. What can properly be expected from a competent valuer using reasonable care and skill is that his . .
Cited – Lloyds TSB Bank Plc v Edward Symmons and Partners TCC 12-Mar-2003
The defendants had carried out a survey and valuation for the claimants, who now sought damages alleging that the valuer had miscalculated the area of the premises, omitting certain areas which would affect the value.
Held: In order to make . .
Cited – Merivale Moore Plc; Merivale Moore Construction Limited v Strutt and Parker (a Firm) CA 22-Apr-1999
An agent valuing a commercial property and estimating the return to be obtained without qualification, was responsible in damages where the clients would not have proceeded on properly qualified advice. The process of valuation does not admit of . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Calver v Westwood Veterinary Group CA 24-Nov-2000
The defendants appealed a finding of professional negligence in their handing of a case in which a mare had miscarried. It was claimed that he had failed to spot a retained placenta. The laminitis she then suffered (found caused by negligence) led . .
Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Cited – A and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
Cited – Simms, PA v Simms (Acting By the Official Solicitor As Litigation Friend), an NHS Trust (Acting By the Official Solicitor As Guardian Ad Litem), an NHS Trust FD 11-Dec-2002
‘In a situation where there is no application to the court, and the patient does not have capacity to make a decision about medical or surgical treatment, the doctor has, in my judgment, two duties. First he must act at all times in accordance with . .
Cited – Roger Michael and others v Douglas Henry Miller and Another ChD 22-Mar-2004
Property had been sold by the respondents as mortgagees in possession. The claimants said the judge had failed to award the value of the property as found to be valued, and had not given a proper value to a crop of lavender.
Held: In . .
Cited – Pearce and Pearce v United Bristol Healthcare NHS Trust CA 20-May-1998
A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Carty v London Borough of Croydon CA 27-Jan-2005
The claimant sought damages in negligence from education officers employed by the respondent. He appealed refusal of his claim. A statement of special education needs had been made which he said did not address his learning difficulties. The . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Cited – Lillywhite and Another v University College London Hospitals’ NHS Trust CA 7-Dec-2005
The claimant sought damages for severe injuries suffered by their child at birth, and now appealed finding that the doctor had not been negligent. The allegation was simply that the injury could not have occurred but for negligence in the defendant. . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – Sutcliffe v BMI Healthcare Ltd CA 18-May-2007
The claimant had undergone an operation, after which he slept with the assistance of self administered morphine. Whilst asleep, he vomited, but did not awake to expel it, and he uffered massive brain damage.
Held: The judge had dealt properly . .
Dicta Approved – Chin Keow v Government of Malaysia PC 1967
. .
Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Mezey v South West London and St George’s Mental Health NHS Trust QBD 5-Dec-2008
The claimant psychiatrist allowed freedom within the insecure grounds of the hospital to a newly admitted but unexamined patient. He left and committed a homicide. She was suspended pending disciplinary proceedings by the Trust. An expert report . .
Cited – S v Airedale National Health Service Trust QBD 22-Aug-2002
The patient had been detained, and then secluded within the mental hospital for 11 days. He claimed to have been subjected to inhuman treatment, and false imprisonment.
Held: His claim failed. The policy allowed the authority to confine him to . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Christou and Another v London Borough of Haringey EAT 21-Feb-2012
EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellants, the social worker responsible for the care of Baby P and her team manager, were held not to have been unfairly dismissed by Haringey for . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Siddiqui v University of Oxford QBD 5-Dec-2016
The University applied to have struck out the claim by the claimant for damages alleging negligence in its teaching leading to a lower class degree than he said he should have been awarded.
Held: Strike out on the basis that the claim was . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Torts – Other

Leading Case

Updated: 01 November 2021; Ref: scu.179752

Jones 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 appeal succeeded. The immunity from civil suit in negligence or contract for an expert witness as regards evidence given in the course of proceedings should no longer apply (though it continued in defamation) (Phillips, Brown, Collins, Kerr, Dyson LL majority, Hope, Hale LL dissenting).
The fundamental rule is that every wrong should have a remedy and any exception to this rule must be justified as being necessary in the public interest and kept under review. The two principle reasons for the immunity, that witnesses might be deterred from giving their true opinion or at all, and that there might be a proliferation nof vexatious claims was no longer convincing. There was no genuine conflict between the duty that the expert had to provide services to his client with reasonable skill and care, and the duty which he would owe to the court under the Rules.
Lord Collins said: ‘There are no longer any policy reasons for retaining immunity from suit for professional negligence by expert witnesses. The danger of undesirable multiplicity of proceedings has been belied by the practical experience of the removal of immunity for barristers. A conscientious expert will not be deterred by the danger of civil action by a disappointed client, any more than the same expert will be deterred from providing services to any other client. It is no more (or less) credible that an expert will be deterred from giving evidence unfavourable to the client’s interest by the threat of legal proceedings than the expert will be influenced by the hope of instructions in future cases. The practical reality is that, if the removal of immunity would have any effect at all on the process of preparation and presentation of expert evidence (which is not in any event likely), it would tend to ensure a greater degree of care in the preparation of the initial report or the joint report. ‘
Lord Kerr said: ‘Pitched against the arguments that witnesses might be influenced to distort their evidence is the fundamental consideration that breach of a duty owed by a witness to his client should, in the normal course, give rise to a remedy. Properly examined, the claimed chilling factors that would descend on expert witnesses if there was removal of the immunity are highly unlikely to materialise. In the final analysis, the only possible reason for preservation of the rule is its supposed longevity.’
Lord Dyson said: ‘The general rule that where there is a wrong there should be a remedy is a cornerstone of any system of justice. To deny a remedy to the victim of a wrong should always be regarded as exceptional. As has been frequently stated, any justification must be necessary and requires strict and cogent justification’
Lady Hale thought that if a change was to be made it should be done in an orderly fashion through the Law Commission.

Lord Phillips, President, Lord Hope, Deputy President, Lady Hale, Lord Brown, Lord Collins, Lord Kerr, Lord Dyson
135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, [2011] UKSC 13, UKSC 2010/0034
Bailii, Bailii Summary, SC Summary, SC
Civil Procedure Rules 35.3
England and Wales
Citing:
Cited – Cutler v Dixon KBD 1585
‘It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he . .
Cited – Rex v Skinner 1772
Lord Mansfield said: ‘Neither party, witness, counsel jury or judge can be put to answer, orally or criminally, for words spoken in office.’ Where words are spoken which are opprobrious or irrelevant to the case, the court will take notice of them . .
Cited – Dawkins v Lord Rokeby 1873
dawkins_rokeby1873
Police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and . .
Cited – Hargreaves v Bretherton 1959
The Plaintiff pleaded that the First Defendant police officer had falsely and maliciously and without justification or excuse committed perjury at the Plaintiff’s trial on charges of criminal offences and that as a result the Plaintiff had been . .
Cited – Watson v M’Ewan HL 1905
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .
Cited – Marrinan v Vibart CA 1962
The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. . .
Cited – Marrinan v Vibart CA 2-Jan-1962
Two police officers gave evidence in a criminal prosecution of others, that the plaintiff, a barrister, had behaved improperly by obstructing a police officer in the execution of his duty and subsequently gave similar evidence at an inquiry before . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Medcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Stanton and Another v Callaghan and Others CA 8-Jul-1998
The defendant, a structural engineer, was retained by the plaintiffs in a claim against insurers for the costs of remedying subsidence of the plaintiffs’ house. He advised total underpinning for pounds 77,000, but later while preparing a joint . .
Cited – 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 . .
Cited – Reynolds v Kingston (Police Services Board) 14-Mar-2007
(Court of Appeal for Ontario ) Immunity from suit in negligence for witness evidence. . .
Cited – Evans v London Hospital Medical College and Others 1981
The defendants employed by the first defendant carried out a post mortem on the plaintiff’s infant son. They found concentrations of morphine and told the police. The plaintiff was charged with the murder of her son. After further investigation no . .
Cited – Palmer v Durnford Ford QBD 1992
The plaintiff had consented to judgment for his opponent in a case against both the supplier and a repairer of a lorry tractor unit. They subsequently sued an engineering expert on the ground that his incompetent report had led them to advance . .
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Chamberlains v Lai 11-Sep-2006
NZLII Supreme Court of New Zealand) [1] Access to the courts for vindication of legal right is part of the rule of law. Immunity from legal suit where there is otherwise a cause of action is exceptional. Immunity . .
Cited – D’Orta-Ekenaike v Victoria Legal Aid 10-Mar-2005
(High Court of Australia) Legal practitioners – Negligence – Immunity from suit – Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution – First . .
Appeal from – Jones v Kaney QBD 21-Jan-2010
The claimant sought damages in negligence against the defendant who had signed a joint expert witness report, but later admitted not approving its contents which led to the claimant losing his action. . .

Cited by:
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.431373

Green v Eadie and Others: ChD 18 Nov 2011

The claimant as PR of her husband’s estate sought damages for misrepresentation and, against his former solicitiors for negligence in regards to the boundaries of a property he had bought from the first defendants using the second defendants as his solicitors. The first defendant said the claim was time barred. The six year period had elapsed from the date of exchange, but not from the date of completion.
Held: The claim failed. By virtue of section 8(2) of the 1980 Act, the case did not fall within section 8(1). The limitation period was 6 years. The cause of action arose when the deceased entered into the transaction.
The claim was in tort, a civil wrong, and in the 1967 Act Parliament had intended that those inducing others to enter into contracts using representations later shown false should be liable to make compensation if they could not show reasonable grounds for belief in what they had said. Such a claim was properly described as the remedying of a civil wrong and as a statutory tort.
The continued failure by the solicitors to remedy the situation could not restart the clock.

Mark Cawson QC J
[2011] EWHC B24 (Ch), [2012] Ch 363, [2012] 2 WLR 510, [2012] PNLR 9, [2011] WLR(D) 335
Bailii, WLRD
Misrepresentation Act 1967 2(1), Limitation Act 1980 2 8(1) 8(2) 9(1)
England and Wales
Citing:
Cited – Laws and others v The Society of Lloyd’s CA 19-Dec-2003
The applicants sought to amend earlier pleadings to add a claim that their human rights had been infringed by the 1982 Act, which gave the respondents certain immunities.
Held: The Human Rights Act 1998 was not retrospective. At the time when . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Professional Negligence

Updated: 01 November 2021; Ref: scu.450237

Brennan v Bolt Burdon and Others, London Borough of Islington, Leigh Day and Co: CA 29 Jul 2004

The claimant sought damages for injury alleged to have been suffered as tenant of a house after being subjected to carbon monoxide poisoning, and also from her former solicitors for their delay in her claim. The effective question was whether the compromise of proceedings entered into by the parties on the basis of a common mistake of law was void by reason of that mistake.
Held: At the time of the agreement, the condition of the law suggested that an appeal would be unsuccessful. The CA in Anderton v Clwyd later reversed the postion. The established principle was that a mistake of law common to the parties could not vitiate a contract. That law had developed: ‘(1) As with any other contracts, compromises or consent orders may be vitiated by a common mistake of law. (2) It is initially a question of construction as to whether the alleged mistake has that consequence. (3) Whilst a general release executed in a prospective or nascent dispute requires clear language to justify an influence of an intention to surrender rights of which the releasor was unaware and could not have been aware (Ali), different considerations arise in relation to the compromise of litigation which the parties have agreed to settle on a give-and-take basis (Huddersfield Banking) (4) For a common mistake of fact or law to vitiate a contract of any kind, it must render the performance of the contract impossible (The Great Peace).’ This was not a contract which would be impossible to perform. ‘So important is the principle of seeking to uphold contracts of compromise that in my view the court should not permit them to be reopened for mistake of law created by the retrospective impact of the declaratory theory of judicial decisions except where, for some truly exceptional reason, justice very clearly demands.’

Lord Justice Kay, Mr Justice Bodey Lord Justice Sedley
[2004] EWCA Civ 1017, Times 27-Aug-2004, [2005] QB 303, [2004] 3 WLR 1321
Bailii
England and Wales
Citing:
Appeal from – Margaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Cited – Godwin v Swindon Borough Council CA 10-Oct-2001
The claimant appealed against an order striking out his claim for personal injuries. The claim had been issued in time, but not served. An extension of time was granted, and the notice sent by first class post the day before that period expired. The . .
Cited – Rhiannon Anderton v Clwyd County Council (2) QBD 25-Jul-2001
The claim form had been issued only just before the limitation period expired. Under the rules it would have been deemed to have been served on a Sunday, the day before the expiry of the period, but evidence suggested it was not received until after . .
Cited – Anderton v Clwyd County Council (No 2); Bryant v Pech and Another Dorgan v Home Office; Chambers v Southern Domestic Electrical Services Ltd; Cummins v Shell International Manning Services Ltd CA 3-Jul-2002
In each case, the applicant sought to argue that documents which had actually been received on a certain date should not be deemed to have been served on a different day because of the rule.
Held: The coming into force of the Human Rights Act . .
Cited – Lowry v Boirdeau 1780
‘ignorantia juris non excusat’ – ignorance of the law is no excuse. . .
Cited – Bilbie v Lumley and Others 28-Jun-1802
Contract Not Set Aside for Mistake as to Law
An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
Held: A contract . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Cooper v Phibbs HL 1867
There is an exception to the general rule that a mistake of law does not vitiate a contract where the mistake was as to private rights. . .
Cited – Huddersfield Banking Co Ltd v Henry Lister and Son Ltd CA 1895
A consent order, which had been completed and acted upon, but without affecting interests of third parties, was set aside by the Court upon the ground of common mistake of fact.
Kay LJ said: ‘A compromise takes place when there is a question . .
Cited – Andre and Cie v Michel Blanc CA 1979
The court criticised the doctrine that a mistake as to the law, common to the parties, does not vitiate a contract. . .
Cited – The Amazonia CA 1991
The court rehearsed the doctrine that a common mistake as to the law would vitiate a contract, Though the rule was well established, the particular contract was void on the basis of a mistake as to foreign law because foreign law is to be treated by . .
Cited – Pankhania v The London Borough of Hackney ChD 2002
A brochure listing properties to be sold at auction decribed the property as being subject to a terminable licence. In fact it was a secure tenancy. The question arose as to whether a misrepresentation of law could found a cause of action.
Cited – Hazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
Cited – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Grains and Fourrages SA v Huyton 1997
Where a contract had apportioned a risk, it was not for the court to allow it to be re-opened: ‘If the buyers had made their proposal in terms, or on a basis, which amounted to an acceptance of risk on their part that the facts might turn out . .

Cited by:
Cited – Graves v Graves and others CA 3-Jul-2007
The parties had divorced and settled financial provision, but the former wife and her children came to need a house and one of the claimant’s properties became vacant, and she was allowed to occupy it as a tenant, with the majority of the rent being . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Housing, Professional Negligence, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.199742

Barclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co: CA 21 May 1998

The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because undisclosed covenants variously restricted future development of the land.
Held: The standard solicitor’s undertaking to obtain a good and marketable title was not a warranty of title, but an acknowledgement of the use to be made of the title. A defect in title which was not serious enough to allow a rejection of a title was insufficient to leave the title short of being good and marketable. ‘The Bank submits that this means ‘a freehold title free from incumbrances’; and that such a title is better than ‘a good title’ since it must be both ‘good’ (in the sense of being without blemish) and ‘marketable’ (in the sense of relating to property which is readily saleable). Both propositions are quite untenable. They are the product of a growing unfamiliarity with the language which was once the common currency of conveyancers of unregistered land. They confuse the subject-matter of the sale (what has the vendor agreed to sell?) with the vendor’s duty to prove his title to the subject-matter of the sale (has the vendor sufficiently deduced title to what he has agreed to sell?) ‘
and ‘The expression ‘good marketable title’ describes the quality of the evidence which the purchaser is bound to accept as sufficient to discharge this obligation. It says nothing about the nature or extent of the property contracted to be sold to which title must be deduced. The expression is a compendious one which describes the title and not the property. It is used in contradistinction to ‘a good holding title’, by which is meant a title which a willing purchaser might reasonably be advised to accept, but which the Court would not force on a reluctant purchaser. ‘

Millet LJ, Pill LJ, May LJ
Gazette 28-May-1998, Gazette 24-Jun-1998, Times 15-Jun-1998, [1998] EWCA Civ 868, [1998] 3 All ER 213, [1999] QB 309
Bailii
England and Wales
Citing:
Appeal from – Barclays Bank Plc v Weeks Legg and Dean ChD 26-Feb-1996
The failure by a conveyancer to disclose a right of way either to his lay client or to the lender was not a breach of his undertaking to acquire a good and marketable title. The Solicitor had applied the money in accordance with the undertaking even . .
Cited – Timmins v Moreland Street Property Co Ltd CA 1958
The Court considered the effect of a note or memorandum evidencing the sale of a property where it was described as ‘6,8 and 41, Boundary Street, Shoreditch (freehold).’ It was sought to connect the signature on a purchaser’s deposit cheque with an . .
Cited – Re Stirrup’s Contract 1961
The parties disputed whether good title had been shown when an assent under seal had been used where a conveyance ordinarily should have been used.
Held: Good title had been shown. Though the law is concerned with substance rather than form, . .
Cited – MEPC Ltd v Christian-Edwards HL 8-Nov-1979
The testator had granted an option to his son, and in his will directed that if he did not exercise it, he should be granted a lease. A later deed then recited that the will had been varied by an agreement. That deed was referred to indirectly many . .
Cited – Pyrke v Waddingham ChD 1852
The seller sought specific performance of the contract for the sale of his land. The buyer said that the title shown was defective.
Held: Though the court found favour with the title, this had not been on any general rule of law, but on the . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
Cited – Cato v Thompson 1882
The phrase ‘a good marketable title’ must mean ‘to the property contracted to be sold’. It can have no other meaning. Where the contract is an open contract which describes the property in general terms without mentioning whether it is freehold or . .
Cited – Manning v Turner 1957
Where the title shown by a seller of land is less than perfect, the question is whether the risk to the purchaser is ‘so remote or so shadowy as to be one to which no serious attention need be paid . . the test must always be, would the court, in an . .
Cited – Re Spollon and Long’s Contract ChD 1936
The court considered the nature of title which could be imposed on a reluctant purchaser of land. One of the title deeds was not properly stamped. This defect was considered a matter of importance to the purchaser because if the title were . .

Cited by:
Cited – Platform 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 . .
Cited – Cornelius, Regina v CACD 14-Mar-2012
The defendant appealed against his conviction for fraud under the 2006 Act, saying that the judge had wrongly failed to give a Ghosh direction. As a solicitor he had organised a scheme for buying properties, obtaining finance by the nomination of . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Land, Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.144347

Orientfield Holdings Ltd v Bird and Bird Llp: ChD 26 Jun 2015

The c;aimant alleged breach of contract and or professional negligence by the defendant solicitors when acting for it in the purchase of land. Contracts had been exchnged but on the discovery of proposed development nearby, they had failed to complete, forfeiting the deposit. The claimant said that the solicitors had failed to reveal the planning proposals.
Held: The defendant had failed in its duties. ‘ the defendants could not be criticised if in fact they had not carried out a Plansearch. This follows from the first of the general propositions set out above. However, having carried out such a search, then in my judgment Mr Baker came under a duty to explain the results of that search to his client. ‘ and ‘The duty to communicate matters actually known to a solicitor is to communicate information that may be material, thereby setting the threshold for information to be communicated at an intentionally low level. Solicitors do not generally advise on the business merits of transactions they are instructed to facilitate. The business judgments involved are those of the client, not the solicitor, and it is for the client to judge the impact of the material that may be relevant, not the solicitor.’

Pelling QC HHJ
[2015] EWHC 1963 (Ch), [2015] PNLR 33, [2015] 6 Costs LO 667
Bailii
England and Wales
Citing:
Cited – Boateng v Hughmans (A Firm) CA 10-May-2002
The court was asked: ‘What has to be proved by the claimant in a case where the negligence of his solicitor has consisted of the failure to give him proper advice, in order to establish a sufficient causal link between the solicitor’s negligence and . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Costs, Contract, Legal Professions

Updated: 01 November 2021; Ref: scu.550034

Wapshott v Davis Donovan and Co: CA 1996

The defendant solicitors had negligently in 1986 failed to advise purchasers that there was no good title to part (an extension over an adjoining property) of a leasehold flat which they were buying. The problem came to light in 1988 when they wished to sell. They were unable to do so. In 1990 a property company, which had in the interim acquired the freeholds of both properties, registered the titles; and eventually in 1992 the original purchasers of the flat successfully registered the leasehold title to their flat, which thereby became sellable. The solicitors applied to adduce further evidence in negligence proceedings then current in order to rely on these subsequent events, it being said that the plaintiffs would otherwise be overcompensated.
Held: Such subsequent events were ‘irrelevant’ to the issue which had to be determined. Thus the Master assessing the actual value of the lease with a defective title in 1986 could not properly pay regard to events which were taking place in 1992.
Hobhouse LJ emphasised that: ‘Cases of this kind depend on their own facts.’

Beldam LJ, Hobhouse LJ
[1996] PNLR 361
England and Wales
Cited by:
Cited – Bacciottini and Another v Gotelee and Goldsmith (A Firm) CA 18-Mar-2016
A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the . .

Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 01 November 2021; Ref: scu.561224

Lloyds TSB Bank Plc v Markandan and Uddin (A Firm): ChD 14 Oct 2010

The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. The defendant was not suspected of being involved in the fraud. The court was asked whether the claimant could recover under section 61 of the 1925 Act, having paid the funds across to be held in express trust until the defendant could complete, and if so, whether the defendant could raise a defence of contributory negligence.
Held: The issue as to whether the Defendant made sufficient checks as to the identity of the solicitors purportedly acting on behalf of the vendors of the Property was not one of breach of trust. The express trusts created by the form of certificate of title did not extend to all the matters on it. However, the advance money had been paid away without receiving the proper documentation for completion and without an undertaking for them. The defendant was in breach of trust when so acting.
Any relief from liability under section 61 required the defendant to have acted both honestly and reasonably. His honesty was not challenged, but it was said that he had acted unreasonably. The defendant said that the claimant should itself have been alerted to the dangers by the circumstances of the transaction. The court found the defendant to have acted unreasonably, irrespective of any failing by the claimant. There was nothing in the case of Vesta v Butcher to allow the extension of the defence of contributory negligence to cases involving breach of trust.
The loss suffered was the entire loan amount.

Roger Wyand QC J
[2010] EWHC 2517 (Ch), [2011] PNLR 6
Bailii
Trustee Act 1925 61
England and Wales
Citing:
Cited – Edward Wong Finance Co Ltd v Johnson Stokes and Master PC 1984
(Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the . .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
Cited – Forsikringsaktieselskapt Vesta v Butcher HL 1988
A contract of insurance and a facultative reinsurance, under which part of the original risk was reinsured, contained warranties in identical terms.
Held: The warranty in the reinsurance policy, which was governed by English law, should be . .
Cited – Patel and Another v Daybells (a Firm) CA 27-Jul-2001
Land was purchased and a resale negotiated before it was registered. An undertaking was accepted that the seller’s solicitor would discharge all charges. The purchasers sought to avoid completion by saying the Act required them to be registered . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .

Cited by:
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Appeal from – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) CA 9-Feb-2012
The defendant solicitors appealed against judgment. They and the lenders had been subject to a mortgage fraud. Fraudsters had set up a false branch office of a firm of solicitors, and secured payment of a mortgage advance. . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Trusts, Professional Negligence

Updated: 01 November 2021; Ref: scu.425358

MP (a Child) v Mid-Kent Healthcare Trust: CA 5 Nov 2001

In medical negligence cases, where non-medical expert evidence was ordered to be provided to the court on a joint basis, as should normally be the case, it would be inappropriate for that expert to be cross examined by either of the parties, and nor should that expert meet with either of the parties not in the presence of the other. This was against the protocol published by the Academy of Experts.

Lord Woolf, Lord Chief Justice, Lord Justice Simon Brown and Lord Justice Buxton
Times 19-Nov-2001, Gazette 14-Dec-2001, [2001] EWCA Civ 1703, [2002] CPLR 27, (2002) 65 BMLR 43, [2002] Lloyd’s Rep Med 33, [2002] 3 All ER 688, [2002] 1 WLR 210
Bailii
Civil Procedure Rules 35.7
England and Wales
Cited by:
Cited – Childs and Another v Vernon CA 16-Mar-2007
The parties disputed the boundary between their properties, alleging various trespasses. The judge ordered a single expert witness. The court had been unable to establish the line of the boundary from the conveyances or the Land Registry plans. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Personal Injury, Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.166835

Minkin v Lesley Landsberg (Practising As Barnet Family Law): CA 17 Nov 2015

Appeal by the claimant in a solicitor’s negligence action against the dismissal of her claim on liability. The central issue in this appeal is whether the solicitor’s duties were limited to the extent that the defendant alleged and the judge has held.
King LJ said: ‘There would be very serious consequences for both the courts and litigants in person generally, if solicitors were put in a position that they felt unable to accept instructions to act on a limited retainer basis for fear that what they anticipated to be a modest and relatively inexpensive drafting exercise of a document (albeit complex to a lay person) may lead to them having imposed upon them a far broader duty of care.’
Jackson LJ summarised the relevant principles in assessing the scope of a solicitor’s duty of care: ‘(i) A solicitor’s contractual duty is to carry out the tasks which the client has instructed and the solicitor has agreed to undertake;
(ii) It is implicit in the solicitor’s retainer that he/she will proffer advice which is reasonably incidental to the work that he/she is carrying out;
(iii) In determining what advice is reasonably incidental, it is necessary to have regard to all the circumstances of the case, including the character and experience of the client;
(iv) In relation to (iii), it is not possible to give definitive guidance, but one can give fairly bland illustrations. An experienced businessman will not wish to pay for being told what he/she already knows. An impoverished client will not wish to pay for advice which he/she cannot afford. An inexperienced client will expect to be warned of risks which are (or should be) apparent to the solicitor but not to the client;
(v) The solicitor and the client may, by agreement, limit the duties which would otherwise form part of the solicitor’s retainer. As a matter of good practice the solicitor should confirm such agreement in writing. If the solicitor does not do so, the court may not accept that any such restriction was agreed.’

Jackson, Tomlinson, King LJJ
[2015] EWCA Civ 1152, [2015] WLR(D) 461, [2016] PNLR 14, [2016] Fam Law 167, [2015] WLR(D) 509, [2015] 6 Costs LR 1025, [2016] 1 FCR 584, [2016] 2 FLR 948, [2016] 1 WLR 1489
Bailii, WLRD
England and Wales
Cited by:
Cited – Seery v Leathes Prior (A Firm) QBD 24-Jan-2017
The claimant alleged professional negligence against his former solicitors in the settlement of his claim against his former partners.
Held: The claim failed. There had been no clear duty to give the advice the claimant said should have been . .
Cited – Seery v Leathes Prior (A Firm) QBD 24-Jan-2017
The claimant alleged professional negligence against his former solicitors in the settlement of his claim against his former partners.
Held: The claim failed. There had been no clear duty to give the advice the claimant said should have been . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 01 November 2021; Ref: scu.554674

Williams v Thompson Leatherdale (A Firm) and Another: QBD 10 Nov 2008

The claimant sought damages from her legal advisers. They had allowed her to settle an ancillary relief application knowing that the case of White v White had been referred to the House of lords, and the settlement proved to have been on unfavourable terms.
Held: The claimant’s evidence was unreliable. Though she might have been advised of the possible hearing in White, the claimant would have been happy to go ahead on the proposal before her. She was determined to have a clean break, and to start a new life, and felt that her husband would take advantage of any further delay. The claim failed.

Field J
[2008] EWHC 2574 (QB)
Bailii
England and Wales
Citing:
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
Cited – Dart v Dart CA 2-Jul-1996
A strictly mathematical approach to calculating ancillary relief can be inappropriate in large sum cases. The statutory jurisdiction has to provide for all applications for ancillary financial relief, from the poverty stricken to the . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .

Cited by:
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 01 November 2021; Ref: scu.277748

Hosseini v Central Manchester University and Another: QBD 4 May 2016

Trial on liability and quantum of the claim of clinical negligence at Defendant’s Royal Manchester Children’s Hospital when she was 12. Sara had a pre-existing condition of cerebral palsy and had developed a progressive curvature of the lumbar spine (neuromuscular scoliosis). A correctional operation was performed on her. The scoliosis was corrected but she sustained damage to her cauda equina with consequent and permanent lower paralysis. Damage to the spinal cord is a known risk of such surgery.

Soole J
[2016] EWHC 974 (QB)
Bailii, Judiciary
England and Wales

Professional Negligence, Personal Injury

Updated: 01 November 2021; Ref: scu.563196

Burton v Islington Health Authority: CA 18 Mar 1992

The court was asked ‘can a child who is born alive, but suffering from disabilities occasioned by negligence on the part of the proposed defendant at a time when the child was en ventre and unborn, maintain an action for damages for negligence against the defendant.’
Held: The actions could be maintained. The appeals failed. The Court relied upon American and Australian authority and the civil law maxim that ‘an unborn child shall be deemed to be born whenever its interests require it’.

Dillon, Balcombe, Leggatt LJJ
[1992] EWCA Civ 2, [1993] QB 204, [1992] 3 All ER 833
Bailii
England and Wales

Professional Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.262620

Bolitho v City and Hackney Health Authority: HL 24 Jul 1997

The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain damage.
Held: In cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence.
What other professionals do is persuasive evidence as to what is acceptable, but a consistent body of expert medical opinion may still be ignored by the judge, if he can be sure that no logical basis for the opinion has been shown to the court: ‘a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person’s duty towards the plaintiff required that she take that action.’
Lord Browne-Wilkinson said: ‘it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such an assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant’s conduct falls to be assessed.’
. . And in all cases of causation: ‘the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure of the doctor to attend) that factual enquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred’.

Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Hoffmann, Lord Clyde
Gazette 10-Dec-1997, Times 27-Nov-1997, [1997] UKHL 46, [1998] AC 232, [1997] 4 All ER 771, [1997] 3 WLR 1151
House of Lords, Bailii
England and Wales
Citing:
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Joyce v Merton, Sutton and Wandsworth Health Authority CA 1996
Hobhouse LJ said: ‘Thus, a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward who was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .
Cited – Edward Wong Finance Co Ltd v Johnson Stokes and Master PC 1984
(Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the . .

Cited by:
Cited – Patel and Another v Daybells (a Firm) CA 27-Jul-2001
Land was purchased and a resale negotiated before it was registered. An undertaking was accepted that the seller’s solicitor would discharge all charges. The purchasers sought to avoid completion by saying the Act required them to be registered . .
Cited – Regina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
Cited – Calver v Westwood Veterinary Group CA 24-Nov-2000
The defendants appealed a finding of professional negligence in their handing of a case in which a mare had miscarried. It was claimed that he had failed to spot a retained placenta. The laminitis she then suffered (found caused by negligence) led . .
Cited – Wisniewski (a Minor) v Central Manchester Health Authority CA 1-Apr-1998
Whether there existed a respectable body of medical opinion which would have taken the same steps as the doctor, leaving in the circumstances, the baby with d irreversible damage to his brain in the 13 minutes immediately prior to his birth at . .
Cited – Izzard and Another v Field Palmer (a Firm) and others and Ministry of Defence CA 30-Jul-1999
The plaintiffs purchased their property after a valuation report to their lenders prepared by the respondent. The property was on an estate which proved to have serious faults of construction, and the design had proved at fault. The property could . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Cited – Pearce and Pearce v United Bristol Healthcare NHS Trust CA 20-May-1998
A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Penney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Sutcliffe v BMI Healthcare Ltd CA 18-May-2007
The claimant had undergone an operation, after which he slept with the assistance of self administered morphine. Whilst asleep, he vomited, but did not awake to expel it, and he uffered massive brain damage.
Held: The judge had dealt properly . .
Cited – Pierce v Doncaster Metropolitan Borough Council QBD 13-Dec-2007
The claimant sought damages, saying that the local authority had failed to protect him when he was a child against abuse by his parents.
Held: The claimant had been known to the authority since he was a young child, and they owed him a duty of . .
Cited – Mezey v South West London and St George’s Mental Health NHS Trust QBD 5-Dec-2008
The claimant psychiatrist allowed freedom within the insecure grounds of the hospital to a newly admitted but unexamined patient. He left and committed a homicide. She was suspended pending disciplinary proceedings by the Trust. An expert report . .
Cited – O’Donnell and Another v Imray and others SCS 25-Apr-2003
The pursuer said that the defendants, her former solicitors, had been negligent when advising her. She was to claim for personal injury, but when the limitation period expired, they closed the file without advising her of the possibility of applying . .
Cited – Maguire v North West Strategic Health Authority QBD 16-Nov-2012
maguire_westMSHAQBD2012
The claimant General Practitioner doctor had been found liable for professional negligence leading to very severe injury. He now sought a contribution from the Authority, saying that their similar mistake within a few days had similarly caused the . .
Cited – Robbins v London Borough of Bexley CA 17-Oct-2013
The claimant said that his house had been damaged by tree roots for which the appellant was responsible. The trees were 33 metres from the house.
Held: The appeal failed. The immediate cause of the damage was a failure to do something which . .
Cited – Beary v Pall Mall Investments (A Firm) CA 19-Apr-2005
The independent financial advisor defendant had negligently failed to advise the claimant client about the possibility of taking out an annuity. However, the claimant would not have done so, unless he had been positively advised that he should. The . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Thwaytes v Sotheby’s ChD 16-Jan-2015
The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more. . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.135010