Category: Professional Negligence

Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm): ChD 1978

A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact that Mr Stubbs was Geoffrey’s solicitor under some sort of general retainer imposing a duty to consider all aspects of his interest generally whenever he was consulted, but that cannot be. There is no such thing as a general retainer in that sense. The expression ‘my solicitor’ is as meaningless as the expression ‘my tailor’ or ‘my bookmaker’ in establishing any general duty apart from that arising out of a particular matter in which his services are retained. The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.
While No doubt the duties owed by a solicitor to his client are high in the sense that he holds himself out as practising a highly skilled and exacting profession. But I think that the court must beware of imposing upon solicitors – or upon professional men in other spheres – duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client’s general interest, take it upon himself to pursue a line of enquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases . . demonstrate that the duty is directly related to the confines of the retainer.’ The solicitors accepted ‘a common law duty not to injure their client by failing to do what they had undertaken to do and which, at their invitation, he relied on them to do.’
References: [1979] Ch 384, [1978] 3 All ER 571, [1978] 3 WLR 167, [1955-95] PNLR 95
Judges: Oliver J
Jurisdiction: England and Wales
This case cites:

  • Cited – Candler v Crane Christmas and Co CA 15-Dec-1950 ([1951] 2 KB 164, [1951] 1 All ER 426, 36 Digest (Rep 1) 17, [1951] 1 TLR 371)
    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 ([1964] AC 465, [1963] 2 All ER 575, , , [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101, )
    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 – Griffiths v Evans CA 1953 ([1953] 2 All ER 1364, [1953] 1 WLR 1424)
    The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
    Held: Where there is a dispute between a . .

This case is cited by:

  • Cited – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998 (, [1998] EWCA Civ 1763, [1999] BCC 474)
    The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
  • Cited – Brinn and Another v Russell Jones and Walker (A Firm) QBD 12-Dec-2002 (, [2002] EWHC 2727 (QB))
    Police officers had instructed their solicitor to sue in defamation. By their negligence the chance of a claim was lost. They instructed a second firm of solicitors to claim against the first, but this firm also were negligent. The damages fell to . .
  • Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004 (, [2004] EWCA Civ 130, Times 25-Feb-04, Gazette 18-Mar-04, [2004] 2 All ER 266)
    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 – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
    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 – John Mowlem Construction Plc v Neil F Jones and Co CA 1-Jul-2004 (, [2004] EWCA Civ 768, Times 27-Aug-04, (2005) 83 BMLR 175)
    The defendant’s solicitors were alleged to have failed to advise their clients when an issue was raised, to notify their professional negligence insurers, with the result that the insurers had been able to repudiate liability.
    Held: In the . .
  • Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005 (, [2005] EWCA Civ 114, Times 24-Feb-05, [2005] PNLR 511)
    Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
    Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
  • Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005 (, [2005] EWCA Civ 1302, Times 29-Nov-05, [2006] 1 All ER 571)
    The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
  • Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006 (, [2006] EWHC 1462 (Ch))
    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 – Glyn v McGarel-Groves CA 14-Jul-2006 (, [2006] EWCA Civ 998, Times 22-Aug-06)
    The claimant had employed a French veterinary surgeon to treat her horse ‘Anna’. She engaged the defendant English veterinary surgeon to attend the treament and observe. The horse died at the principal negligence of the French vet. The English vet . .
  • Cited – Hicks v Russell Jones and Walker (A Firm) ChD 27-Apr-2007 (, [2007] EWHC 940 (Ch))
    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 – Associated Newspapers Ltd, Regina (on The Application of) v Rt Hon Lord Justice Leveson Admn 20-Jan-2012 (, [2012] EWHC 57 (Admin))
    The defendant was conducting a public enquiry into the culture, ethics and practices of national newspapers. The claimant and others objected to the admission of anonymous evidence from journalists afraid of career blight. The claimants complained . .
  • Approved – Bown v Gould and Swayne CA 1996 ([1996] 1 PNLR 130)
    Millett LJ commented that if a judge needed assistance with regard to conveyancing practice the proper way was to cite the relevant textbooks. . .
  • Cited – Kandola v Mirza Solicitors Llp ChD 27-Feb-2015 (, [2015] EWHC 460 (Ch))
    The claimant alleged professional negligence by the defendant solicitors who had acted for him in the purchase of a property. The deposit paid by the claimant had been lost after being paid to the seller’s solicitors as agents for the vendor. The . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.190233

Vision Golf Ltd. v Weightmans (A Firm): ChD 26 Jul 2005

References: [2005] EWHC 1675 (Ch)
Links: Bailii
Coram: Lewison J
Ratio: A lease had been forfeited. The defendant firm of solicitors had negligently failed to apply for relief. They argued that that failure had in fact caused no loss to the claimants, since they would have lost the lease anyway.
Held: The ‘but for’ test set out in the Kuwait Airlines case was passed. ‘But for’ the negligence relief would have been obtained. The law has abandoned the theory that a claimant’s impecuniosity absolves a tortfeasor from liability. As to damages, the value of the lease would include a sum in respect of loss of profits.
This case cites:

  • Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL (House of Lords, Times 21-May-02, Bailii, [2002] 2 WLR 1353, [2002] 2 AC 883, [2002] UKHL 19)
    After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
    Held: The appeal failed. No claim . .
  • Cited – Hopkins v Mackenzie CA (Times 03-Nov-94, Independent 27-Oct-94, Gazette 07-Dec-94, [1995] PIQR 43)
    A loss arising from a solicitor’s failure to pursue a case arose only when the claim was struck out, not earlier when compromised, and even though value already diminished. Accordingly the limitation period began to run from that time. . .
  • Cited – Khan v R M Falvey and Co (a Firm) CA (Times 12-Apr-02, Bailii, Gazette 10-May-02, [2002] EWCA Civ 400, [2002] Lloyd’s Rep PN 369, [2002] PNLR 28)
    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 – Billson and Others v Residential Tenancies Ltd CA ([1992] 1 All ER 141)
    As to the exercise of relief in equity outside the limitation period: ‘This is not to say that courts of equity should now grant relief without any regard to the statutory provisions. Equity follows the law, but not slavishly nor always: see Cardozo . .
  • Cited – Lagden v O’Connor HL (House of Lords, [2003] UKHL 64, Bailii, Times 05-Dec-03, [2004] 1 AC 1067, [2004] 1 All ER 277, [2003] 3 WLR 1571, [2004] Lloyd’s Rep IR 315, [2004] RTR 24)
    The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
  • Cited – Billson and Others v Residential Tenancies Ltd HL (Gazette 22-Jan-92, [1992] 1 AC 494, [1992] 2 WLR 15, Bailii, [1991] UKHL 7, [1991] 3 WLR 264)
    Relief from forfeiture was available against a landlord who had peaceably re-entered property subject to a tenancy without a court order. Such a landlord was still ‘proceeding’ to enforce his rights of forfeiture until he obtained a judgment for . .
  • Cited – Lovelock v Margo ([1963] 2 All ER 13, [1963] 2 QB 786)
    The tenant wished to assign the lease. The lease contained the ‘usual covenant’ not to assign without consent, that consent not to be unreasonably withheld. The landlord had refused a request from the tenant to assign the lease because she was ‘not . .
  • Cited – Thatcher v CH Pearce and Sons (Contractors) Ltd ([1968] 1 WLR 748)
    (Bristol Assizes) The tenant was the tenant of a scrap yard. He had paid his rent promptly, until he was sent to prison. Thereafter he failed to pay the rent; and had no access to legal advice. The landlord peaceably re-entered for non-payment of . .
  • Cited – Crehan v Inntrepreneur Pub Company (CPC) CA (Bailii, [2004] EWCA Civ 637, Times 28-May-04, [2004] 3 EGLR 128, [2004] EuLR 693)
    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 . .

(This list may be incomplete)

Last Update: 06 June 2019
Ref: 234731

Le Lievre v Gould: CA 1893

References: [1893] 1 QB 491, (1893) 9 The Times LR 243, 62 LJQB 353, 68 LT 626, 57 JP 484
Coram: Lord Esher MR, AL Smith LJ, Bowen LJ
Ratio: Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no contract between them. The surveyor was negligent, and his certificates contained untrue statements as to progress, but there was no fraud on his part.
Held: The surveyor owed no duty to the mortgagees to exercise care in giving his certificates, and they could not maintain an action against him by reason of his negligence.
Lord Esher MR said: ‘But can the plaintiffs rely upon negligence in the absence of fraud? The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. The case of Heaven v. Pender has no bearing upon the present question. That case established that, under certain circumstances, one man may owe a duty to another even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.’
Bowen LJ said: ‘the law . . does not consider that what a man writes on paper is like a gun or other dangerous instrument’ and also refered to the principle: ‘that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.’
Smith LJ said: ‘The decision of Heaven -v- Pender was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other. Heaven v. Pender goes no further than this, though it is often cited to support all kinds of untenable propositions.’
This case cites:

  • Distinguished – Heaven v Pender, Trading As West India Graving Dock Company CA ((1883) 11 QBD 503, 52 LJQB 702, 49 LT 357, 47 JP 709)
    The plaintiff was a painter. His employer engaged to repaint a ship, and the defendant erected staging to support the work. The staging collapsed because one of the ropes was singed and weakened, injuring the plaintiff.
    Held: The defendant had . .

(This list may be incomplete)
This case is cited by:

  • Cited – Mutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC (lip, [1971] 2 WLR 23)
    The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
    Held: The company was not itself in the business of giving such . .
  • Cited – Donoghue (or M’Alister) v Stevenson HL ([1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317, Hamlyn, [1932] All ER Rep 1, (1932) 101 LJPC 119, (1932) 147 LT 281, [1932] SLT 317, (1932) 48 TLR 494, (1932) 37 Com Cas 350, Bailii, [1932] UKHL 100, [1932] Sol Jo 396, [1932] WN 139, [1932] SC 31, (1933) 4 DLR 337, 533 CA 47)
    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 – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL ([1964] AC 465, [1963] 2 All ER 575, UBC, Bailii, [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101, Bailii)
    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 – Candler v Crane Christmas and Co CA ([1951] 2 KB 164, [1951] 1 All ER 426, 36 Digest (Rep 1) 17, [1951] 1 TLR 371)
    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 – Sutradhar v Natural Environment Research Council HL (Bailii, [2006] UKHL 33, Times 07-Jul-06, [2006] 4 All ER 490)
    The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
  • Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD (lip, [1991] 2 WLR 814, [1991] CLY 2671)
    Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
  • Cited – Manners v Whitehead SCS ((1898) 1 F 171, 36 Sc LR 94, 6 SLT 190)
    (Inner House) An innocent misrepresentation does not give rise to damages. To be actionable it must be made fraudulently, but a person to whom a fraudulent representation of the profitability of a business, or a business opportunity, had been made . .
  • Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 181006

Allen v Alfred MacAlpine and Sons Ltd: CA 1968

References: [1968] 2 QB 259, [1968] 1 All ER 543
Coram: Diplock LJ
Ratio: The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were fought, the court which tried it would have to assess what those chances were. But on this issue the plaintiff would be in a much more advantageous position than if he had sought, despite the inordinate delay, to establish liability against the defendant in the action which had been dismissed. Not only would there be available to him any advice or material which had been given or obtained by his solicitor in support of his case in the dismissed action, but the principle of Armory v Delamirie (1722) 1 Stra. 505 would apply and would impose upon the solicitor the onus of satisfying the court that the plaintiff’s claim in the dismissed action would not have succeeded had it been prosecuted with diligence. This would be a heavy onus to sustain after so a great a lapse of time.’ and ‘The probabilities are that in any case in which the plaintiff had been advised to bring the action which had been dismissed and had never been advised to discontinue it, his subsequent action against his solicitor for negligence would be settled. One would hope that, for the good name of the profession, it would be settled promptly.’ As to the breach of the court rules the Court might strike out a claimant’s case where the breach ‘has been intentional and contumelious…’
Jurisdiction: England and Wales
This case cites:

  • Cited – Armory v Delamirie KBD ((1722) 1 Stra 505, Bailii, [1722] EWHC KB J94, [1722] 93 ER 664)
    A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .

(This list may be incomplete)
This case is cited by:

  • Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD (Times 08-Dec-99, Bailii, [1999] EWCA 198, [2000] BCLC 187)
    The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
  • Cited – Mount v Barker Austin (a Firm) CA (Bailii, [1998] EWCA Civ 277, (1998) PNLR 493)
    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 – Dixon v Clement Jones Solicitors (A Firm) CA (Bailii, [2004] EWCA Civ 1005, Times 02-Aug-04, [2007] Lloyds Rep PN 20)
    The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
    Held: The court had . .
  • Cited – In re Jokai Tea Holdings Ltd CA ([1992] 1 WLR 1196)
    An ‘unless order’ for the service of particulars of defence was a not obeyed but application was made to amend the defence involving the abandonment of the paragraphs of which particulars had been ordered.
    Held: ‘it appears to me that there . .
  • Cited – Arrow Nominees Inc and Another v Blackledge and Others CA (Times 07-Jul-00, [2000] CP Rep 59, Bailii, [2000] EWCA Civ 200, [2001] BCC 591, [2000] BCLC 167)
    A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .

(This list may be incomplete)

Last Update: 08 March 2019
Ref: 180392

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appealsz: CA 24 Feb 1995

References: Times 24-Feb-1995, Gazette 22-Mar-1995, Times 21-Feb-1995, [1995] QB 375, [1995] 2 All ER 769
Coram: Sir Thomas Bingham MR
Ratio: 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 on sale the plaintiffs obtained substantially less than the sums they had advanced. The relevant question was whether the plaintiffs could include in their damages the difference in the value of the properties between the time of entering into the mortgages and the sale of the properties.
Held: Damages payable to a secured lender for a negligent valuation included losses attributable to general market. Discussing liability where two causes contributed to the damages: ‘the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of: it is enough if it is an effective cause’
Sir Thomas Bingham MR described the valuer’s task: ‘In the absence of special instructions, it is no part of V’s duty to advise L on future movements in property prices, whether nationally or locally. The belief among buyers and sellers that prices are likely to move upwards or downwards may have an effect on current prices, and to that extent such belief may be reflected by V in his valuation. But his concern is with current value only. He is not asked to predict what will happen in the future. His valuation is not sought to protect L against future decline in property prices. In no sense is he a guarantor of L’s investment decision.’
He spoke also as to the measurement of damages: ‘where a mortgage lender would not, but for the negligent valuation, have entered into the transaction with the borrower he could recover the net loss he had sustained as a result of having done so; that a fall in the market was foreseeable, and since, in such a case, the lender would not have entered into the transaction but for the valuer’s negligence and could not escape from it unless and until the borrower defaulted, that negligence was the effective cause of his loss, and a fall in the market was not to be treated as a new intervening cause breaking the link between the valuer’s negligence and the damage sustained; accordingly on the assumed facts the mortgagees were entitled to recover damages in respect of the loss they had sustained which was attributable to market fall.’
. . And: ‘In a no-transaction purchase case, it seems clear on English authority that effect will be given to the restitutionary principle by awarding the buyer all that he has paid out less what (acting reasonably to cut his losses including selling the property) he has recovered. In no case before [the present case] has any head of foreseeable damage been excluded from the calculation.’
. . And: ‘In no-transaction mortgage lending cases it has been the practice since Baxter v Gapp [1939] 2 AER 752 to award the lender the net loss sustained as a result of entering into the transaction, which may be expressed as the difference between what the lender advanced and what the lender would have advanced if properly advised (which is always nil). Thus related expenses of sale and realisation less sums recovered. … Should a rise in the market have contributed to [a full recovery] then, as in the successful transaction case, that contribution will not be ignored so as to treat the lender as sustaining a financial loss which in fact he has not sustained. If in such a case a fall in the property market between the date of the transaction and the date of realisation contributes to the lender’s overall loss sustained as a result of entering into the transaction, it would seem to us, on a straight forward application of the restitutionary principle, that the lender should be entitled to recover that element of his loss against the negligent party.’
. . And :’Where a buyer is claiming damages for negligence in a successful transaction case the diminution in value rule ordinarily provides an adequate measure of the buyers loss. As the cases show, to award, for example, the full cost of repairs will usually lead to over-compensation. This assessment will ordinarily be made as at the date of breach, for there is no other appropriate date. The same rule will usually be applied where the buyer decides to keep the property with knowledge of its defective condition or over-valuation even if, with that knowledge, he would not have bought in the first place. In such a case no account is taken of later fluctuations in the market, for he remains the owner of the property as a result of his own independent decision and not of the negligence of the valuer or surveyor.’
This case cites:

(This list may be incomplete)
This case is cited by:

  • Appeal from – South Australia Asset Management Corporation v York Montague Ltd etc HL (Gazette 04-Sep-96, Times 24-Jun-96, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] 3 WLR 87, Bailii, [1996] UKHL 10, [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)
    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 – Paterson and Another v Humberside County Council QBD (Times 19-Apr-95, [1995] CLY 3661, [1996] Const LJ 64)
    A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
  • Cited – Helmsley Acceptances Ltd v Hampton CA (Bailii, [2010] EWCA Civ 356)
    The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
    Held: The . .
  • Cited – Downs and Another v Chappell and Another CA (Bailii, [1996] EWCA Civ 1358, [1996] 3 All ER 344, [1996] CLC 1492, [1997] 1 WLR 426)
    The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
    Held: . .

(This list may be incomplete)

Last Update: 31 July 2018
Ref: 78174

Cornish and Another, R v: QBD 15 Apr 2016

References: [2016] EWHC 779 (QB)
Links: Bailii
Coram: Coulson J
Ratio: Mrs Francis Cappuccini died whilst in the care of the second defendant (‘the Trust’). There can be no doubt that she should not have died and, in the absence of any clear explanation of what had happened, there were concerns that she may not have received proper anaesthetic care.
Jurisdiction: England and Wales

Last Update: 19 July 2017
Ref: 562792

Selfe v Ilford and District Hospital Management Committee; 26 Nov 1970

References: Times 26-Nov-1970
Coram: Hinchcliffe J
Ratio:
This case cites:

  • Applied – Thorne v Northern Group Hospital Management Committee (Times 06-Jun-64)
    At common law, ‘as a matter of general principle a hospital is under a duty to take precautions to avoid the possibility of injury, whether self-inflicted or otherwise, occurring to patients who it knows, or ought to know, have a history of mental . .

(This list may be incomplete)
This case is cited by:

  • Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL (Bailii, [2008] UKHL 74, HL, Times, [2009] HRLR 12, [2009] 1 All ER 1053, [2009] PTSR 469, [2009] UKHRR 480, [2009] 2 WLR 115, (2009) 12 CCL Rep 125, [2009] 1 AC 681, (2009) 105 BMLR 180, [2009] LS Law Medical 40)
    The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
    Held: The Trust’s appeal failed. The fact that . .

(This list may be incomplete)

Last Update: 11-Sep-16
Ref: 278776

Thorne v Northern Group Hospital Management Committee; 6 Jun 1964

References: Times 06-Jun-1964
Coram: Edmund Davis J
Ratio: At common law, ‘as a matter of general principle a hospital is under a duty to take precautions to avoid the possibility of injury, whether self-inflicted or otherwise, occurring to patients who it knows, or ought to know, have a history of mental illness.’
This case is cited by:

(This list may be incomplete)

Last Update: 08-Aug-16
Ref: 278775

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

References: [1984] 2 Ll LR 499, Times 03-May-1984, [1984] CLY 2340
Coram: Webster J
Ratio:The defendant offered a professional skill, but held itself out as offering such skills to a higher degree than normal. The plaintiff sought to hold it to the high standard proclaimed.
Held: The standard of care remained that of the ordinary and competent practitioner, and not the standard vaunted.
This case is cited by:

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 179751

Stone and Rolls Ltd v Moore Stephens (A Firm); Comc 27 Jul 2007

References: [2007] EWHC 1826 (Comm), [2008] Bus LR 304, (2007) 157 NLJ 1154, [2008] PNLR 4, [2008] 1 BCLC 697
Links: Bailii
Coram: Langley J
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 company against its auditors infringe the maxim, still familiarly expressed in Latin, that ex turpi causa non oritur actio.’
Held: The company itself were primarily, and not just vicariously, responsible for the fraudulent conduct and that the Hampshire Land principle did not apply. However, ex turpi causa could not prevent a claim founded on fraud that would not have occurred had Moore Stephens properly complied with their ‘very duty’ as auditors of the company.
This case cites:

  • Cited – Re Hampshire Land Company ([1896] 2 Ch 743)
    A company had borrowed from a building society. The borrowing was not properly authorised by resolution. The court was asked whether whether the knowledge of the company secretary common to both the company and the society, as to the irregularity . .

(This list may be incomplete)
This case is cited by:

  • Appeal from – Moore Stephens (A Firm) -v- Stone & Rolls Ltd CA (Bailii, [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)
    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 . .
  • At First Instance – Moore Stephens (A Firm) -v- Stone Rolls Ltd (in liquidation) HL (Bailii, [2009] UKHL 39, Times, [2009] 1 AC 1391, [2009] Bus LR 1356, [2009] PNLR 36, [2009] 3 WLR 455)
    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 . .

(This list may be incomplete)
Last Update: 22-Oct-15 Ref: 259323

Popat v- Barnes: QBD 7 Apr 2004

References: Times 05-Jul-2004
Coram: Buckley J
The claimant had been defendant where, after a retrial and two appeals he had eventually been acquitted. He sought to sue his counsel.
Held: Defence counsel should have reconsidered the decision whether or not to seek an alibi direction. Nevertheless, he could not sue his barrister for the choices made in the trial, the decision had been made as a tactical one within the trial.
This case cites:

  • Application for leave to appeal – Popat -v- Barnes CA (Bailii, [2004] EWCA Civ 820)
    The claimant’s allegation of professional negligence against his barrister for the conduct of his criminal trial had been dismissed. He now sought leave to appeal. The decision had been made not to alert the judge to a deficiency in the alibi . .

This case is cited by:

  • Appeal from – Popat -v- Barnes CA (Bailii, [2004] EWCA Civ 820)
    The claimant’s allegation of professional negligence against his barrister for the conduct of his criminal trial had been dismissed. He now sought leave to appeal. The decision had been made not to alert the judge to a deficiency in the alibi . .

D’Orta-Ekenaike v Victoria Legal Aid; 10 Mar 2005

References: [2005] HCA 12, (2005) 223 CLR 1, (2005) 214 ALR 92, (2005) 79 ALJR 755
Links: Austlii
(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 respondent retained second respondent, a barrister, to appear for applicant at committal proceedings – Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial – Evidence of guilty plea led at first trial – Applicant convicted but verdict quashed on appeal and new trial ordered – Applicant acquitted on retrial – Respondents alleged to have been negligent in advising applicant to plead guilty at committal – Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding – Whether advocate’s immunity available to respondents – Whether advocate’s immunity applied in respect of advice allegedly given in conference.
Legal practitioners – Immunity from suit – Legal Profession Practice Act 1958 (Vic) – Barristers liable for negligence to same extent as solicitor as at 1891 – Extent of solicitor’s liability for negligence in 1891.
Courts – Judicial process – Judicial process as an aspect of government – Nature of the judicial process – The need for finality of judicial determination – Whether advocate’s immunity necessary to ensure finality of judicial process.
Courts – Abuse of process – Whether rules about abuse of process provide sufficient satisfaction of the finality principle – Nature of client’s complaint – Whether distinction exists between civil and criminal proceedings – Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.
High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered – Relevance of statutory changes since Giannarelli v Wraith – Relevance of developments in common law in England and Wales – Relevance of experience in other jurisdictions.
Courts – Practice and procedure – Summary determination of action without trial – Whether claim revealed an arguable cause of action.
This case is cited by:

  • Cited – Jones -v- Kaney SC (135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, Bailii, [2011] UKSC 13, Bailii Summary, SC Summary, SC, UKSC 2010/0034)
    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 . .

Rosenberg v Percival; 5 Apr 2001

References: 205 CLR 434, 75 ALJR 734, [2001] HCA 18
Links: Austlii
Coram: Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ
Austlii High Court of Australia – Negligence – Breach of duty – Surgeon’s duty to warn of material risk in proposed surgery – Identification of the material risk – Meaning of material risk.
Negligence – Causation – Whether failure to warn of a material risk causative of plaintiff’s injury – Whether patient would not have undergone treatment if warned.
Appeal – Appeal by rehearing – Powers of appellate court – Decision dependent on credibility findings – Authority of appellate court to reach conclusions different from trial judge.
Evidence – Credibility of witnesses – Limits of appellate review in respect of findings of fact based on assessment of the credibility of a witness.
Gummow J said that courts should not be too quick to discard the possibility that a medical practitioner was or ought reasonably to have been aware that the particular patient, if warned of the risk, would be likely to attach significance to it, merely because it emerges that the patient did not ask certain kinds of questions.
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    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 inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Hunter v Hanley; 4 Feb 1955

References: [1955] SLT 213, [1955] ScotCS CSIH_2, 1955 SC 200, [1955-95] PNLR 1
Links: Bailii
Coram: Lord President Clyde
The pursuer had been injured when the hypodermic needle being used by the defender doctor broke in use. The pursuer said that the direction by the judge as to accepted practice for the use of such needles.
Held: The court considered the dangers in establishing simple medical standards to judge medical treatments: ‘In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men . . The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.’
This case is cited by:

  • Cited – Penney and Others -v- East Kent Health Authority CA (Times 25-Nov-99, Gazette 08-Dec-99, [2000] PNLR 323, Bailii, [1999] EWCA Civ 3005)
    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 . .
  • Adopted – Maynard -v- West Midlands Regional Health Authority HL ([1985] 1 WLR 685, [1985] 1 All ER 635)
    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 – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    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 inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Rogers v Whitaker; 19 Nov 1992

References: [1992] HCA 58, (1992) 175 CLR 479
Coram: Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ
High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to his left eye had not explained the associated risks. Those risks had become realised. The plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks.
Held: Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. ‘Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.’
The court restated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    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 inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others Appeals: CA 24 Feb 1995

References: Times 24-Feb-95, Gazette 22-Mar-95, Times 21-Feb-95, [1995] QB 375
Damages payable to a secured lender for a negligent valuation included losses attributable to general market. Discussing liability where two causes contributed to the damages: ‘the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of: it is enough if it is an effective cause’
This case cites:

This case is cited by:

  • Appeal from – South Australia Asset Management Corporation -v- York Montague Ltd etc HL (Gazette 04-Sep-96, Times 24-Jun-96, [1997] AC 191, [1996] PNLR 455, [1996] 27 EG 125, [1996] 3 WLR 87, Bailii, [1996] UKHL 10, [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)
    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 – Paterson and Another -v- Humberside County Council QBD (Times 19-Apr-95, [1995] CLY 3661, [1996] Const LJ 64)
    A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
  • Cited – Helmsley Acceptances Ltd -v- Hampton CA (Bailii, [2010] EWCA Civ 356)
    The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
    Held: The . .