Category: Professional Negligence

Predeth v Castle Phillips Finance Co Ltd: 1986

A mortgagee who sold by private treaty at a discount in order to achieve a quick sale, instead of offering the property at market value, was held to have breached his duty.

Citations:

[1986] 2 EGLR 144

Jurisdiction:

England and Wales

Cited by:

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

Professional Negligence

Updated: 25 November 2022; Ref: scu.194823

Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited: CA 21 Jul 1998

Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. Sections 23 and 36 and the absence of express statutory mention in the 1980 Act of actions for breach of fiduciary duty do not mean that a claim for an account of profits in respect of a breach of fiduciary duty is outside the scope of the Act altogether and is free of any period of limitation. Unless the account sought is of property subject to a trust, a claim for an account in equity will be based on legal rights. In the case of an action for an account by a principal against an agent, where the claim is based on a contractual relationship. Even if the relationship is not contractual, but is exclusively equitable, a limitation period may be applied by the court under s 36 by analogy in the light of the position before 1 July 1940. There were two different types of constructive trust in respect of which an account can be claimed in equity and to which different considerations apply on questions of limitation: ‘The first covers those cases already mentioned, where the defendant, though not expressly appointed as trustee, has assumed the duties of a trustee by a lawful transaction which was independent of and preceded the breach of trust and is not impeached by the plaintiff. The second covers those cases where the trust obligation arises as a direct consequence of the unlawful transaction which is impeached by the plaintiff.’
The court considered the nature of a constructive trust. Millett LJ said: ‘A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the Property and deny the beneficial interest of another.’ There are two kinds of constructive trust: ‘A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of property (usually but not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case . . the constructive trustee really is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own use is a breach of that trust. Well-known examples of such a constructive trust are McCormick v Grogan (1869) LR 4 HL (a case of a secret trust) and Rochefoucald v Boustead[1897] 1 Ch 196 (where the defendant agreed to buy property for the plaintiff but the trust was imperfectly recorded). Pallant v Morgan [1952] 2 All ER 951, [1953] Ch 43 (where the defendant sought to keep for himself property which the plaintiff trusted him to buy for both parties) is another. In these cases the plaintiff does not impugn the transaction by which the defendant obtained control of the property. He alleges that the circumstances in which the defendant obtained control make it unconscionable for him thereafter to assert a beneficial interest in the Property.
The second class of case is different. It arises when the defendant is implicated in a fraud. Equity has always given relief against fraud by making any person sufficiently implicated in the fraud accountable in equity. In such a case he is traditionally though I think unfortunately described as a constructive trustee and said to be ‘liable to account as constructive trustee’. Such a person is not in fact a trustee at all, even though he may be liable to account as if he were. He never assumes the position of a trustee, and if he receives the trust property at all it is adversely to the plaintiff by an unlawful transaction which is impugned by the plaintiff. In such a case the expressions ‘constructive trust’ and ‘constructive trustee’ are misleading, for there is no trust and usually no possibility of a proprietary remedy; they are ‘nothing more than a formula for equitable relief’: Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 2 All ER 1073 at 1097, [1968] 1 WLR 1555 at 1582 per Ungoed-Thomas J. ‘
Millett LJ considered what was due diligence when looking at the discovery of a fraud for limitation: ‘The question is not whether the claimants should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take . . In the course of argument May LJ observed that reasonable diligence must be measured against some standard, but that the six-year limitation period did not provide the relevant standard. He suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and was motivated by a reasonable but not excessive sense of urgency. I respectfully agree.’

Judges:

Millett LJ, Pill LJ, May LJ

Citations:

Times 07-Aug-1998, Gazette 29-Jul-1998, Gazette 16-Sep-1998, [1998] EWCA Civ 1187, [1999] 1 All ER 400, [1998] EWCA Civ 1249

Links:

Bailii, Bailii

Statutes:

Limitation Act 1980 20 35(3) 35(4) 35(5)

Jurisdiction:

England and Wales

Citing:

Cited – Mara v Browne CA 17-Dec-1895
In a marriage settlement, the first defendant, a solicitor, advised the persons who were acting as trustees, though not yet formally appointed as such. He suggested a series improper of investments for the trust funds. The money was to be lent on . .
Cited – Selangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
Cited – McCormick v Grogan HL 23-Apr-1869
C made a will leaving his property to G, and appointed him executor. When about to die C sent for G and in a private interview told him of the will, and G asked whether that was right. C said that he would not have it otherwise. C then told G where . .
Cited – Rochefoucald v Boustead CA 12-Dec-1896
A property was purchased by the defendant which the court found to have been on the basis as trustee for the plaintiff. The defendant resisted the plaintiff’s claim on the ground of, inter alia, absence of writing.
Held: This defence was . .
Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .

Cited by:

Questioned – Birmingham Midshires Building Society v Infields (A Firm) TCC 20-May-1999
The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
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 – Taylor Aston Ltd v AON Ltd ComC 26-Jul-2005
The parties entered into a contract to support attempts to provide insurance in Khazakstan. The defendants argued limitation, the claimants argued for concealment.
Held: Deliberate concealment for limitation purposes meant just that. That had . .
Cited – Taylor Aston Ltd v AON Ltd ComC 26-Jul-2005
The parties entered into a contract to support attempts to provide insurance in Khazakstan. The defendants argued limitation, the claimants argued for concealment.
Held: Deliberate concealment for limitation purposes meant just that. That had . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Cited – National Trust for Places of Historic Interest v Birden ChD 31-Jul-2009
The parties had entered into an old-form share farm agreement in 1994. The tenant later became a farm business tenant on other land. The claimant sought a share of the Single Payment Scheme calculated with reference to the period in which the . .
Cited – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Cited – Stocker v Stocker QBD 10-Jun-2015
The claimant alleged defamation by his former wife in a post on facebook. The posting and associatedeEmails were said falsely to have accused him of serious abuse, and that the accusations had undermined his relationship with his new partner.
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Cited – Boyse (International) Ltd v Natwest Markets Plc and Another ChD 27-May-2020
Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence, Trusts

Leading Case

Updated: 25 November 2022; Ref: scu.144666

Kenyon-Brown v Desmond Banks and Co: 2000

Judges:

Mance LJ

Citations:

[2000] PNLR 266

Jurisdiction:

England and Wales

Cited by:

Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 24 November 2022; Ref: scu.224822

Preferred Mortgages Ltd v Bradford and Bingley Estate Agencies Ltd: CA 8 Mar 2002

Citations:

[2002] EWCA Civ 336

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Professional Negligence, Damages

Updated: 24 November 2022; Ref: scu.216973

Chappel v Hart: 2 Sep 1998

Austlii (High Court of Australia) Negligence – Causation – Failure to warn of inherent risk of operation about which patient had specifically inquired – Plaintiff would have inevitably required the same operation at some time in the future but would have postponed the operation performed if properly warned – Surgery was performed with due skill and care but risk materialised – Whether there was a causal connection between failure to warn and plaintiff’s physical injury – Whether damage suffered was physical injury or loss of chance. Negligence – Damages – Whether damages should be discounted to account for possible future events. Medicine – Medical practitioners – Failure to warn of inherent risk of operation about which patient had specifically inquired.

Judges:

Gaudron, Gummow and Kirby JJ

Citations:

(1998) 195 CLR 232

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 24 November 2022; Ref: scu.216514

Smith and Another v Peter North and Partners: CA 8 Oct 2001

The claimants bought property at a price based upon a valuation provided by the defendants. They sought damages being the costs of repairing the property, the necessity of such repairs not having been revealed by the report. Expert valuation showed that the property, even unrepaired, exceeded in value the price paid. The defendants obtained summary judgment on the basis that no damages were payable. The claimant appealed.
Held: the damages in negligence would be nil, but in contract, the damages payable were what was required in order to put the claimants in the position they would have been in the absence of a breach. Even so, the ‘cost of repairs’ basis would be inappropriate. It was irreconcilable with restitutionary or compensatory principles underlying the award of damages.
The appellants claim damages against the respondent in respect of an allegedly negligent survey carried out by the respondent for the appellants of a dwellinghouse

Judges:

Judge LJ, Parker LJ, Bodey J

Citations:

Gazette 25-Oct-2001, [2001] EWCA Civ 1553, [2001] 42 EGCS 138, [2002] 1 P and CR 37, 82 Con LR 126, [2002] Lloyd’s Rep PN 111, [2002] PNLR 12

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Damages, Contract

Updated: 24 November 2022; Ref: scu.201441

Macaulay and Farley v Premium Life Assurance Co Ltd: 29 Apr 1999

Executors claimed as damages the amount of Inheritance Tax which became payable on death as a result of the negligent advice given to the deceased by the defendant.
Held: The damage claimed (liability for inheritance tax) was not suffered until the date of death. ‘The claimants are not suing in respect of a lost opportunity suffered by Mrs Macaulay in her lifetime. They are suing in respect of the IHT liability which arose on Mrs Macaulay’s death and which did not exist until she died.’ and ‘the damage relied on as a central ingredient of the cause of action is the amount of IHT payable by Mrs Macaulay’s estate. In my judgment, it is of some relevance that the IHT payable on death is imposed directly on the personal representatives as such. It is not imposed on the deceased ‘

Judges:

Park J

Citations:

Unreported, 29 April 1999

Jurisdiction:

England and Wales

Cited by:

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

Professional Negligence, Damages, Wills and Probate

Updated: 24 November 2022; Ref: scu.196071

ABC v Shulmans Llp: ComC 25 Sep 2019

The Claimant seeks damages from the Defendant for alleged professional negligence in the conduct of certain legal proceedings commenced in 2014 and 2015. These proceedings, comprising a claim in the Employment Tribunal, a petition under section 994 of the Companies Act 2006 and a further claim for damages in the High Court, were for the purpose of resolving disputes between the Claimant, his former corporate employer, and the individual who owned that corporate employer.

Citations:

[2019] EWHC 2458 (Comm)

Links:

Bailii

Statutes:

Contempt of Court Act 1981 11, European Convention on Human Rights 8 10

Jurisdiction:

England and Wales

Professional Negligence

Updated: 24 November 2022; Ref: scu.642093

Lloyds Bank Plc and others v Cassidy: CA 1 Dec 2004

The defendant sought leave to appeal against orders for possession. The trial had been transcribed by the claimant. At the start of the application, a copy of the transcript was given to the judge but not the defendant despite his application.
Held: The judge should not be provided with a document which was not also to be provided to the other party. The failure to do so was a procedural irregularity. In this case however the transcript had been provided in time for the defence counsel to make use of it for his closing summary, and no prejudice had in fact occurred. The other grounds of appeal failed. Appeal dismissed.

Judges:

Lord Justice Auld, Lord Justice Chadwick, Lord Justice Clarke

Citations:

[2004] EWCA Civ 1767, Times 11-Jan-2005

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Lloyds Bank Plc and others v Cassidy CA 8-Nov-2002
. .
Cited – Meftah v Lloyds TSB Bank ChD 2001
Receivers of property under charge are not obliged before sale to spend money on repairs. . .
Cited – Routestone Ltd v Minories Finance ChD 1996
A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .
Cited – Garland v Ralph Pay and Ransom 1984
Receivers taking possession of a property are not under an obligation to make the property more attractive before marketing it. . .
Cited – Palk v Mortgage Services Funding Plc CA 1993
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds . .

Cited by:

See Also – Lloyds Bank Plc and others v Cassidy CA 8-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Professional Negligence, Litigation Practice

Updated: 23 November 2022; Ref: scu.220666

Grimm v Newman Chantry Vellacott DFK: CA 7 Nov 2002

Accountants appealed a finding of professional negligence. They had advised an american resident in Britain that he could transfer assets to his wife here without adverse tax consequences. At the trial the judge had considered an alternative scheme suggested now by the claimant.
Held: The judge should not have considered the alternative scheme. The defendants were not negligent and the appeal was allowed.

Judges:

The Vice-Chancellor, Lord Justice Potter, Lord Justice Carnwath

Citations:

[2002] EWCA Civ 1621, [2002] STC 1388, [2003] 1 All ER 67

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Grimm v Newman and Another ChD 1-Nov-2001
Mr Grimm was given advice about the tax consequences of bring foreign investments into the country as a gift to his wife so that she could purchase property. He was advised that it would not have adverse tax consequences, but after the event he was . .
Cited – Timpsons Executors v Yerbury CA 1936
A resident in the United Kingdom was the life tenant under a trust administered in accordance with the law of the State of New York. She directed the trustees to pay out of the income to which she was entitled allowances to her children resident in . .
Cited – Carter v Sharon 1936
A person domiciled in the United States but resident in England paid allowances to her daughter resident in England out of the income of her investments in the United States, by means of a banker’s draft drawn on a London bank payable to the . .
Cited – Thomson v Moyse HL 1958
A British subject resident in England but domiciled in the United States was the life tenant of trusts administered in accordance with the law of the State of New York. The income of the trusts was paid in US$ into the beneficiary’s bank account . .
Cited – Harmel v Wright ChD 1973
The taxpayer was domiciled in South Africa but resident in England. Before he came to England he arranged for the incorporation of two companies, Artemis Ltd and Lodestar Ltd. Artemis was controlled by the taxpayer but Lodestar, in which he had no . .
Cited – MacNiven (Inspector of Taxes) v Westmoreland Investments Ltd HL 15-Feb-2001
The fact that a payment of interest was made only to create a tax advantage did not prevent its being properly claimed. Interest was paid for the purposes of setting it against tax, when the debt was discharged. A company with substantial losses had . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 23 November 2022; Ref: scu.178107

Maes Finance Limited Mac No 1 Limited v Leftleys (a Firm): CA 27 Jul 1998

It was a proper exercise of a discretion by a judge to decide to try five similar cases together. Admissibility questions on one case becoming admissible in others could be set aside if there was a sufficiently similar factual basis alleged.

Citations:

[1998] EWCA Civ 1298

Jurisdiction:

England and Wales

Litigation Practice, Professional Negligence

Updated: 23 November 2022; Ref: scu.144777

Sullivan v Moody: 11 Oct 2001

(High Court of Australia) A medical practitioner who examines and reports on the condition of an individual may owe a duty to more than one person: ‘The duty for which the [appellant fathers] contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the [medical practitioners and others investigating allegations of child sex abuse], or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.’
Austlii Torts – Negligence – Duty of care – Appellants suspected of sexually abusing their children – Alleged negligence of respondents in investigating and reporting on allegations – Appellants claimed that they suffered shock, distress, psychiatric injury, and consequential personal and financial loss as a result of the accusations – Whether medical practitioners, social workers and departmental officers involved in investigating and reporting upon allegations of child sexual abuse owe a duty of care to suspects.

Judges:

Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ

Citations:

(2001) 207 CLR 562, [2001] HCA 59, 75 ALJR 1570

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – AD and OH (A Child) v Bury Metropolitan Borough Council CA 17-Jan-2006
The claimants, mother and son, sought damages from the respondent after they had commenced care proceedings resulting in the son being taken into temporary care. The authority had wrongly suspected abuse. The boy was later found to suffer brittle . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Professional Negligence

Updated: 22 November 2022; Ref: scu.224418

Jemma Trust Company Ltd v Kippax Beaumont Lewis and others: CA 22 Nov 2004

The defendants asserted that they had executed a trust deed on the advice of senior counsel in conference. The judge said the notes of the meeting did not justify that conclusion. The firm sought permission to appeal.
Held: There was room for an appeal court to construe the note in its own way, and leave was given.

Citations:

[2004] EWCA Civ 1645

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
See Also – Jemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 22 November 2022; Ref: scu.221007

Aylwen v Taylor Joynson Garrett (A Firm): CA 21 Feb 2001

Citations:

[2001] EWCA Civ 313

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Aylwen v Taylor Joynson Garrett CA 19-Jul-2001
The claimant sought damages for negligence against solicitors for failing to complete a purchase and to keep her informed of all relevant matters. She sought damages for the loss of the profit she might have made had she purchased the property and . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 22 November 2022; Ref: scu.200785

Asiansky Television Plc and Another v Bayer-Rosin: CA 11 Nov 2003

Judges:

Simon Brown, Laws, Arden LJJ

Citations:

[2003} EWCA Civ 1405

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Purdy v Cambran 17-Dec-1999
It is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. ‘For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at . .
See Also – Asiansky Television Plc and Another v Bayer-Rosin CA 19-Nov-2001
The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly . .

Cited by:

See Also – Asiansky Television Plc and Another v Bayer-Rosin (A Firm) CA 22-Nov-2005
Renewed application for permission to appeal. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 20 November 2022; Ref: scu.188121

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 accordingly. Alternatively he claimed damages on the basis that the solicitors’ breach of duty had caused him to lose the chance of securing an agreement on more favourable terms. He contended that the loss was only suffered when he ceased to be a member of the partnership.
Held: His cause of action accrued when he entered into the partnership agreement. That was the point in time when he suffered an actual loss.

Judges:

Lord Justice Pill, Lord Justice Latham, Mr Justice Morland

Citations:

[2003] EWCA Civ 425, [2003] Lloyd’s Rep PN 167, [2003] PNLR 25

Links:

Bailii

Jurisdiction:

England and Wales

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

Limitation, Professional Negligence

Updated: 20 November 2022; Ref: scu.180460

Western Trust and Savings Limited v Strutt and Parker (a Firm): CA 9 Jul 1998

A valuer giving negligent valuation of property could still be liable where the property charged was not identical to the property valued, so long as the differences did not take it outside the reasonable contemplation of the valuer

Citations:

Times 17-Sep-1998, [1998] EWCA Civ 1191

Jurisdiction:

England and Wales

Professional Negligence

Updated: 20 November 2022; Ref: scu.144670

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 report with the insurers’ expert witness, he was persuaded to agree that infilling with polystyrene, at a cost of only some pounds 21,000, would work. The case was settled on that basis, but the plaintiffs then brought an action claiming that their expert’s change of advice had been negligent.
Held: An expert giving a report for the purposes of proceedings had immunity from negligence since his first duty as an expert was to the court. An actual not a defensive view was needed from him. The protection of the immunity is available even if the trial does not take place.
Nourse LJ said that the extent of an expert witness’s immunity from suit was still in course of development and would and should be developed on a case by case basis: ‘. . . I see no justification for distinguishing between an expert and a lay witness, either on the ground that the expert is usually remunerated for his services or on the ground that he may be less likely than a lay witness to be deterred from giving evidence. Nor would I make any distinction between civil and criminal proceedings. An immunity founded on requirement of public policy that witnesses should not be inhibited from giving frank and fearless evidence cannot afford to make distinctions such as these. If they were allowed, it would never be certain that the public policy would not sometimes be put at risk.’
Otton LJ said: ‘immunity is not granted primarily for the benefit of the individuals who seek it. They themselves are beneficiaries of the overarching public interest, which can be expressed as the need to ensure that the administration of justice is not impeded. This is the consideration which should be paramount. And it is not only the conduct of the immediate hearing which we should consider to be the ‘administration of justice’. This is not a narrowly drawn phrase; it is best served by a purposive construction. ‘
Chadwick LJ summarised the authorities: ‘(i) an expert witness who gives evidence at a trial is immune from suit in respect of anything which he says in court, and that immunity will extend to the contents of the report which he adopts as, or incorporates in, his evidence; (ii) where an expert witness gives evidence at a trial the immunity which he would enjoy in respect of that evidence is not to be circumvented by a suit based on the report itself; and (iii) the immunity does not extend to protect an expert who has been retained to advise as to the merits of a party’s claim in litigation from a suit by the party by whom he has been retained in respect of that advice, notwithstanding that it was in contemplation at the time when the advice was given that the expert would be a witness at the trial if that litigation were to proceed. What, as it seems to me, has not been decided by any authority binding in this court is whether an expert is immune from suit by the party who has retained him in respect of the contents of a report which he prepares for the purpose of exchange prior to trial – say, to comply with directions given under RSC, Ord 38, r 37 – in circumstances where he does not, in the event, give evidence at the trial; either because the trial does not take place or because he is not called as a witness . . In my view, the public interest in facilitating full and frank discussion between experts before trial does require that each should be free to make proper concessions without fear that any departure from advice previously given to the party who has retained him will be seen as evidence of negligence. That, as it seems to me, is an area in which public policy justifies immunity. The immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice.’

Judges:

Otton LJ, Nourse LJ

Citations:

Gazette 15-Jul-1998, Gazette 03-Sep-1998, [1998] EWCA Civ 1176, [2000] QB 75, [1999] 2 WLR 745, [1998] EG 115, [1999] CPLR 31, 62 Con LR 1, (1999) 15 Const LJ 50, [1999] BLR 172, [1999] PNLR 116, [1998] 4 All ER 961, [1998] 3 EGLR 165, (1999) 1 TCLR 50

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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: . .
Approved – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .

Cited by:

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 – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
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 – 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 – Westcott v Westcott QBD 30-Oct-2007
The claimant said that his daughter in law had defamed him. She answered that the publication was protected by absolute privilege. She had complained to the police that he had hit her and her infant son.
Held: ‘the process of taking a witness . .
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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 20 November 2022; Ref: scu.144655

Reynolds v Kingston (Police Services Board): 14 Mar 2007

(Court of Appeal for Ontario ) Immunity from suit in negligence for witness evidence.

Citations:

2007 84 OR (3d) 738, 2007 280 DLR (4th) 311, 2007 221 O.A.C. 216

Links:

Canlii

Jurisdiction:

Canada

Cited by:

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

Professional Negligence

Updated: 19 November 2022; Ref: scu.431605

Zwebner v Mortgage Corporation Plc; Trustee of Property of Zwebner and Brooks and Co: CA 18 Jun 1998

The claimant applied for a loan secured against a property owned with his wife. The defendant instructed solicitors who reported on title with an undertaking that documents would be executed before completion. They sent the mortgage to Mr. and Mrs. Zwebner to sign, but Mr. Zwebner forged her signature. She now brought proceedings against the defendant saying that the mortgage did not bind her. The defendant claimed against the solicitors in negligence and for breach of contract in failing to comply with the undertaking given in the report on title. The court considered the general nature and scope of a solicitor’s duty acting for a lender. They argued that it would be wrong to construe the undertaking that the documents would be ‘properly executed’ as giving rise to a warranty that they had been signed by Mrs. Zwebner in the presence of a witness. This would transfer the entire risk of fraud onto one who was merely providing professional services. The expression ‘properly executed’ should be limited to matters of form and the mechanics of completion.
Held: It was difficult to read the undertaking in the way suggested. The consequences of giving weight to the word ‘properly’ were not so unreasonable as to justify a construction which largely disregarded it. The solicitors were in breach of contract, having accepted an unqualified obligation to obtain the signature of Mrs. Zwebner.

Judges:

Robert Walker, Hobhouse and Waller LJJ

Citations:

[1998] EWCA Civ 1035, [1998] PNLR 769

Jurisdiction:

England and Wales

Cited by:

Cited – Midland Bank Plc v Cox McQueen (A Firm) CA 26-Jan-1999
Solicitors were instructed by the bank to obtain the signature of a client and of his wife to a motgage. The deed was signed by the husband and a woman pretending to be the wife.
Held: The court said that it was asked whether the bank intended . .
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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 19 November 2022; Ref: scu.144514

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 authority and its inspector were both liable in negligence having certified an experimental aircraft as fit to be flown, and the duty extended to any passenger who was carried in the aircraft. ‘What the second and third defendants seek to achieve in this case is to extend the decisions upon ‘economic’ loss to cases of personal injuries. It represents a fundamental attack upon the principle of tortious liability for negligent conduct which has caused foreseeable personal injury to others. That such a point should be considered to be even arguable shows how far some of the fundamental principles of the law of negligence have come to be eroded.’ and ‘The denial of a duty of care owed by such a person in relation to the safety of the aircraft towards those who may suffer personal injuries, whether as passengers in the aircraft or upon the ground, would leave a gap in the law of tort notwithstanding that a plaintiff has suffered foreseeable personal injury as a result of the unsafety of the aircraft and the unreasonable careless conduct of the defendant. It would be remarkable if that were the law.’
Hobhouse LJ said: ‘It is a truism to say that any case must be decided taking into account the circumstances of the case, but where those circumstances comply with established categories of liability, a defendant should not be allowed to seek to escape from liability by appealing to some vaguer concept of justice or fairness; the law cannot be re-made for every case. Indeed, the previous authorities have by necessary implication held that it is fair, just and reasonable that the plaintiff should recover in the situations falling within the principles they have applied.’
‘Marc Rich should not be regarded as an authority which has a relevance to cases of personal injury or as adding any requirements that an injured plaintiff do more than bring his case within established principles. If a plaintiff is attempting to establish some novel principle of liability, then the situation would be different.’

Judges:

Hobhouse LJ, Swinton Thomas LJ

Citations:

Times 23-Jun-1998, 1999 SLT 224, [1998] EWCA Civ 884, [1998] 2 Lloyd’s LR 255, 1999 SCLR 126, (1999) 1 TCLR 1, [1999] BLR 35, [1999] Lloyds Rep IR 105, [1999] 1 WLR 9

Links:

Bailii

Statutes:

Air Navigation Order 1989

Jurisdiction:

England and Wales

Citing:

Cited – Adler v Dickson; ‘the Himalaya’ CA 29-Oct-1954
The defendants were the master and boatswain of the P and O passenger liner Himalaya. The plaintiff was a passenger who was injured when an insecure gangway slipped and he fell 16ft to the wharf. The plaintiff had a contract with P and O which . .
Cited – 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 . .

Cited by:

Considered – Michael Alexander Watson v British Boxing Board of Control Ltd, World Boxing Organisation Incorporated CA 19-Dec-2000
The claimant was seriously injured in a professional boxing match governed by rules established by the defendant’s rules. Ringside medical facilities were available, but did not provide immediate resuscitation. By the time he received resuscitation . .
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 – Sutradhar v Natural Environment Research Council HL 5-Jul-2006
Preliminary Report of Risk – No Duty of Care
The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
Cited – Portsmouth Youth Activities Committee (A Charity) v Poppleton CA 12-Jun-2008
The claimant was injured climbing without ropes (‘bouldering’) at defendant’s activity centre. The defendant appealed against a finding of 25% responsibility in having failed to warn climbers that the existence of thick foam would not remove all . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Negligence, Personal Injury

Updated: 19 November 2022; Ref: scu.144363

Watts v Savills: CA 16 Jun 1998

That a finding that land had a particular development value missed by the valuer was a question of fact, was itself mistaken. It was a question of opinion, not to be seen with the benefits of hindsight as issue of fact.

Judges:

Stuart-Smith, Evans, Mummery LJJ

Citations:

Gazette 24-Jun-1998, [1998] EWCA Civ 1014

Jurisdiction:

England and Wales

Professional Negligence

Updated: 19 November 2022; Ref: scu.90334

Little and others v Messrs George Little Sebire and Co: CA 14 Jun 2001

The defendant accountants appealed a finding of professional negligence. They had organised schemes with respect to tax saving for their client companies.
Held: The judge was correct to reject the defendant’s argument that the company could not have raised funds to make the alternative tax arrangement. The claimant’s argument that the inspector of taxes could have been persuaded to accept a low valuation of the shares at a slightly different date, thus reducing tax substantially succeeded, and the damages increased accordingly.
Failure of tax mitigation scheme

Citations:

[2001] EWCA Civ 895, [2001] EWCA Civ 894, [2001] STC 1065, [2001] BTC 292

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Little and Others v George Little Sebire and Co QBD 17-Nov-1999
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 18 November 2022; Ref: scu.201156

O’Driscoll v Dudley Health Authority: CA 30 Apr 1998

The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an adult, and made a claim.
Held: The defendant’s appeal succeeded. The court had applied the more stringent test of proof of causation and fault instead of the less rigorous test of attributability as required by the statute. Under that test, the plaintiff was fixed with knowledge at a time such that her claim was now out of time.

Judges:

Lord Justice Simon Brown, Lord Justice Otton, Sir Christopher Slade

Citations:

[1998] EWCA Civ 747, [1998] Lloyds Law Reports: Medical 210

Links:

Bailii

Statutes:

Limitation Act 1980 11 14

Jurisdiction:

England and Wales

Citing:

Cited – Davis v Ministry of Defence CA 26-Jul-1985
May LJ said: ‘Knowledge’ is an ordinary English word with a clear meaning to which one must give full effect; ‘reasonable belief’ or ‘suspicion’ is not enough. The relevant question merits repetition – ‘when did the appellant first know that his . .
Applied – Halford v Brookes CA 1991
The plaintiff, the mother and administratrix of the estate of a 16 year old girl, alleged that her daughter had been murdered by one or both of the Defendants. The claim was for damages for battery. Rougier J at first instance had decided that: . .
Cited – Broadley and Guy v Chapman and Co CA 26-Jul-1993
The limitation period starts when the plaintiff realizes that her injury may have been caused by the failure of the medical practitioner. ‘Attributable to’ means ‘capable of being attributed to’ and not ’caused by’. ‘Act or omission’ does not equate . .
Cited – Dobbie v Medway Health Authority CA 11-May-1994
The plaintiff had a lump on her breast. The surgeon, without first subjecting the lump to a microscopic examination in order to determine whether it was cancerous or benign, removed the breast. This was in 1973. The lump was subsequently found to be . .
Cited – Spargo v North Essex District Health Authority QBD 1996
A plaintiff’s knowledge that her injury could be attributed to hypoxia, is not knowledge that the injury is attributable to the act or omission alleged to constitute negligence as might be pleaded in a statement of claim and no ordinary plaintiff . .
Applied – Spargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
Cited – Nash v Eli Lilly and Co CA 1993
The court considered whether a solicitor acting for a potential plaintiff was considered to be an expert for the purposes of the section.
Held: Purchas LJ said: ‘Of course as advice from a solicitor as to the legal consequences of the act or . .
Cited – Forbes v Wandsworth Health Authority CA 21-Mar-1996
The plaintiff had a history of circulatory problems in his legs. He underwent surgery losing his leg. The question was when he should have sought advice as to why an attempted by-pass operation had resulted in one leg having to be amputated. He . .

Cited by:

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, Limitation

Updated: 18 November 2022; Ref: scu.144225

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 because as he moved down the birth canal the umbilical cord was wrapped round his neck and had a knot in it.
Held: Appeal dismissed

Judges:

Brooke LJ

Citations:

[1998] EWCA Civ 596, [1998] PIQR P324, 1998] Lloyd’s Rep Med 223, [1998] PIQR 324

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She 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.

Professional Negligence

Updated: 18 November 2022; Ref: scu.144074

Little and Others v George Little Sebire and Co: QBD 17 Nov 1999

Citations:

Times 17-Nov-1999

Jurisdiction:

England and Wales

Cited by:

Appeal from – Little and others v Messrs George Little Sebire and Co CA 14-Jun-2001
The defendant accountants appealed a finding of professional negligence. They had organised schemes with respect to tax saving for their client companies.
Held: The judge was correct to reject the defendant’s argument that the company could . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice, Professional Negligence

Updated: 18 November 2022; Ref: scu.83091

NKX v Barts Health NHS Trust: QBD 8 Apr 2020

Judges:

Simeon Maskrey QC, sitting as a Deputy High Court Judge

Citations:

[2020] EWHC 828 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – NKX v Barts Health NHS Trust (Costs) QBD 8-Apr-2020
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Professional Negligence

Updated: 17 November 2022; Ref: scu.650092

Ecclestone v Medway NHS Foundation Trust: QBD 12 Apr 2013

Judges:

Reddihough J

Citations:

[2013] EWHC 790 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She 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.

Professional Negligence, Personal Injury

Updated: 17 November 2022; Ref: scu.472651

Kapfunde v Abbey National Plc and Dr Daniel and Another: CA 25 Mar 1998

A Doctor employed by a potential employer to report on the health of applicants for employment, owed no duty of care to those applicants.

Judges:

Kennedy LJ

Citations:

Times 06-Apr-1998, [1998] ECC 440, [1998] IRLR 583, (1999) 46 BMLR 176, [1998] EWCA Civ 535, [1999] ICR 1, [1999] Lloyd’s Rep Med 48

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
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 – Cheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Professional Negligence

Updated: 14 November 2022; Ref: scu.144013

Nationwide Building Society v Lewis and Another: CA 24 Feb 1998

Employee solicitor held out as partner was not liable in negligence where he was neither involved in the advice nor holding out relied upon

Citations:

Gazette 18-Mar-1998, Times 06-Mar-1998, [1998] EWCA Civ 337, [1998] 3 All ER 143

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Nationwide Building Society v Lewis and Another ChD 16-Jun-1997
A solicitor’s firm is responsible for advice given by an employee signing correspondence in the firm’s name and where it seems apparent that a partner was acting. . .

Cited by:

Appealed to – Nationwide Building Society v Lewis and Another ChD 16-Jun-1997
A solicitor’s firm is responsible for advice given by an employee signing correspondence in the firm’s name and where it seems apparent that a partner was acting. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 14 November 2022; Ref: scu.143815

Ratcliffe v Plymouth and Torbay Health Authority Exeter and North Devon Health Authority: CA 11 Feb 1998

The plaintiff was given a spinal anaesthetic, but subsequently suffered a serious neurological defect on the right side. The cause was a mystery. The MRI Scan showed a lesion in the thoracic spine which the plaintiff claimed must have been the result of the spinal anaesthetic having been administered at the wrong level. The anaesthetist gave evidence that he had administered it at the lumbar spine. The judge accepted the anaesthetist’s evidence and dismissed the plaintiff’s claims.
Held: The court considered the value of the maxim res ipsa loquitur in professional negligence claims: ‘Res ipsa loquitur is not a principle of law and it does not relate to or raise any presumption. It is merely a guide to help identify when a prima facie case is being made out. Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted.’

Judges:

Hobhouse LJ, Brooke LJ

Citations:

[1998] EWCA Civ 206, [1998] Lloyd’s LR Med 162

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Professional Negligence

Updated: 14 November 2022; Ref: scu.143684

Bank of Credit and Commerce International (Overseas) Limited (In Liquidation); BCCI Holdings (Luxembourg) SA (In Liquidation); Bank of Credit and Commerce International SA (In Liquidation) v Price Waterhouse: CA 13 Feb 1998

The special relationship between an auditor and a bank, meant that a duty of care could extend even to a second bank with its own auditors. In determining whether there had been an assumption of responsibility, the the relevant factors would include (according to the authorities): ‘(a) the precise relationship between (to use convenient terms) the adviser and the advisee. This may be a general relationship or a special relationship which has come into existence for the purpose of a particular transaction. But in my opinion counsel for Overseas was correct when he submitted that there may be an important difference between the cases where the adviser and the advisee are dealing at arm’s length and cases where they are acting ‘on the same side of the fence.
(b) the precise circumstances in which the advice or information or other material came into existence. Any contract or other relationship with a third party will be relevant.
(c) the precise circumstances in which the advice or information or other material was communicated to the advisee, and for what purpose or purposes, and whether the communication was made by the adviser or by a third party. It will be necessary to consider the purpose or purposes of the communication both as seen by the adviser and as seen by the advisee, and the degree of reliance which the adviser intended or should reasonably have anticipated would be placed on its accuracy by the advisee, and the reliance in fact placed on it.
(d) the presence or absence of other advisers on whom the advisee would or could rely. This factor is analogous to the likelihood of intermediate examination in product liability cases.
(e) the opportunity, if any, given to the adviser to issue a disclaimer.’

Judges:

Neill LJ

Citations:

Times 04-Mar-1998, [1998] EWCA Civ 236, (1998) PNLR 564, [1998] Lloyd’s Rep Bank 85

Jurisdiction:

England and Wales

Citing:

Appeal from – Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse ChD 7-Feb-1997
No duty of care was owed by accountants who were not auditors to lenders to the company audited. The claim was struck out. . .
Cited – Morgan Crucible Company Plc v Hill Samuel and Co Ltd ChD 24-Jul-1990
The court laid down the procedure on a strike out application: ‘On an application to strike out a pleading under RSC Ord.18, r.19(1)(a) no evidence is admissible and since it is only the pleading itself which is being examined, the court is required . .
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 – 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 by:

Cited – 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 . .
Appealed to – Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse ChD 7-Feb-1997
No duty of care was owed by accountants who were not auditors to lenders to the company audited. The claim was struck out. . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
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 – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005
Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Banking

Updated: 14 November 2022; Ref: scu.143714

BCCI (Overseas) Ltd v Price Waterhouse (No 2); Orse Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (No 2): CA 1998

Sir Brian Neill discussed three paths by which a duty of care might be imposed on a party: ‘1. The threefold test of foreseeability, proximity and fair, just and reasonable. 2. The assumption of responsibiy 3. The incremental approach He then identified the following non-exhaustive list of factors to be taken into account in determining whether the threefold test and the assumption of responsibility test are met: ‘(a) the precise relationship between (to use convenient terms) the adviser and the advisee. This may be a general relationship or a special relationship which has come into existence for the purpose of a particular transaction. But in my opinion counsel for Overseas was correct when he submitted that there may be an important difference between the cases where the adviser and the advisee are dealing at arm’s length and cases where they are acting ‘on the same side of the fence’.
(b) the precise circumstances in which the advice or information or other material came into existence. Any contract or other relationship with a third party will be relevant.
(c) the precise circumstances in which the advice or information or other material was communicated to the advisee, and for what purpose or purposes, and whether the communication was made by the adviser or by a third party. It will be necessary to consider the purpose or purposes of the communication both as seen by the adviser and as seen by the advisee, and the degree of reliance which the adviser intended or should reasonably have anticipated would be placed on its accuracy by the advisee, and the reliance in fact placed on it.
(d) the presence or absence of other advisers on whom the advisee would or could rely. This factor is analogous to the likelihood of intermediate examination in product liability cases.
(e) the opportunity, if any, given to the adviser to issue a disclaimer.’
and ‘ the general trend of the authorities makes it clear that liability will depend not on intention but on the actual or presumed knowledge of the adviser and on the circumstances of the particular case.’

Judges:

Sir Brian Neill, Nourse and Brooke LJJ

Citations:

[1998] PNLR 564

Jurisdiction:

England and Wales

Cited by:

Cited – Patchett and Another v Swimming Pool and Allied Trades Association Ltd CA 15-Jul-2009
The claimant suffered damages when the contractor he engaged to construct his swimming pool went into liquidation. Before employing him, he had consulted the defendant’s web-site which suggested that its members were checked for solvency on becoming . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 13 November 2022; Ref: scu.374258

Platform Homes Limited v Oyston Shipways Limited and others: CA 19 Dec 1997

A lender’s imprudent lending policies could be taken into account and set off against damages for negligent valuation as contributory negligence.

Citations:

Gazette 08-Jan-1998, Times 15-Jan-1998, [1997] EWCA Civ 3071

Statutes:

Law Reform (Contributory Negligence) Act 1945

Jurisdiction:

England and Wales

Cited by:

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

Professional Negligence, Financial Services

Updated: 13 November 2022; Ref: scu.143470

Sansom and Another v Metcalfe Hambleton and Co: CA 17 Dec 1997

The court warned against finding a professional to have been negligent on the evidence of an expert who was not a member of the same profession. A structural survey was prepared by a chartered surveyor. Expert evidence for the plaintiff was given, not by a chartered surveyor, but by a structural engineer.
Held: A court should be slow to find a professionally qualified man guilty of a breach of duty of skill and care towards a client (or third party) without evidence from those within the same profession as to the standard expected on the facts of the case and the failure of a professionally qualified man to measure up to that standard. It is not an absolute rule but, unless it is an obvious case, in the absence of the relevant expert evidence, the claim will not be proved. The court held that the evidence of a structural engineer was not admissible evidence on the question whether a chartered surveyor had been negligent.

Judges:

Butler-Sloss LJ

Citations:

[1997] EWCA Civ 3019, [1998] 2 EGLR 103, [1998] PMLR 542

Jurisdiction:

England and Wales

Cited by:

Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Cited – Saunders v Gwent Community Health NHS Trust CA 31-Oct-2001
Second tier Application for leave to appeal – No point of principle at issue – leave denied. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 13 November 2022; Ref: scu.143418

NM v Lanarkshire Health Board: SCS 23 Jan 2013

Inner House – The pursuer and reclaimer sought reparation for son after grave injury sustained at his birth in a maternity hospital run by the defenders and respondents. She attributes that injury to negligence in a consultant obstetrician. Following a proof, the Lord Ordinary concluded that negligence had not been established and he assoilzied the defenders. The pursuer now reclaimed against that decision.
Held: The Lord Ordinary’s judgment was upheld.

Judges:

Lord Eassie, Lord Hardie, Lord Emslie

Citations:

[2013] ScotCS CSIH – 3, 2013 SC 245, 2013 GWD 5-136

Links:

Bailii

Citing:

Appeal from – Montgomery v Lanarkshire Health Board SCS 30-Jul-2010
Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the medical staff at the defender hospital. She said that she had been advised a cesarian birth for her child, but the doctors had not . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .

Cited by:

Appeal from – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence, Personal Injury

Updated: 13 November 2022; Ref: scu.470538