The claimant market owners alleged negligence in their brokers leading to a loss when the market was damaged by fire.
Blair J
[2011] EWHC 124 (Comm), [2011] PNLR 15
England and Wales
Updated: 13 November 2022; Ref: scu.429635
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective adopters pending their decision on adoption. Hale LJ: ‘Whenever the question of a common law duty of care arises in the context of the statutory functions of a public authority, there are three potential areas of inquiry: first, whether the matter is justiciable at all or whether the statutory framework is such that Parliament must have intended to leave such decisions to the authorities, subject of course to the public law supervision of the courts; second, whether even if justiciable, it involves the exercise of a statutory discretion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of the discretion; third in any event whether it is fair just and reasonable in all the circumstances to impose such a duty of care. The considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them.’
The general adoption process is not in law a matter of contract, and contractual analysis cannot be applied to it.
Lady Justice Hale Lord Justice Ward Lord Justice Scott Baker
[2003] EWCA Civ 1848, Times 22-Jan-2004, [2004] 1 WLR 1881
England and Wales
Applied – Page v Smith HL 12-May-1995
The plaintiff was driving his car when the defendant turned into his path. Both cars suffered considerable damage but the drivers escaped physical injury. The Plaintiff had a pre-existing chronic fatigue syndrome, which manifested itself from time . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Cited – B and others v Attorney General and others PC 16-Jul-2003
(New Zealand) Children were removed from their home. The father was interviewed for suspected child abuse, but no charges were laid. He sought damages in negligence for the way the matter had been handled. Children whose allegations against adopted . .
Cited – JD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal CA 31-Jul-2003
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not ‘fair just and reasonable’ to . .
Cited – W v Essex County Council and Another HL 17-Mar-2000
A foster child was placed with a family. The child had a history of abusing other children, but the foster parents, who had other children were not told. The foster child caused psychiatric damage to the carers.
Held: It was wrong to strike . .
Cited – W and B (Children) and W (Children) CA 23-May-2001
If the state is to interfere in the child’s right to respect for his family life, it has a duty to use its best endeavours to make good what it has taken away. . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Appeal from – A, B v Essex County Council QBD 18-Dec-2002
The applicants sought damages after they had had placed with them for adoption a child who proved to be destructively hyperactive.
Held: The authority might be liable where they failed to disclose to adoptive parents known characteristics of a . .
Cited – Carty v London Borough of Croydon CA 27-Jan-2005
The claimant sought damages in negligence from education officers employed by the respondent. He appealed refusal of his claim. A statement of special education needs had been made which he said did not address his learning difficulties. The . .
Cited – 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 – B and B v A County Council CA 21-Nov-2006
The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that . .
Cited – Jain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.188910
The claimant alleged that the defendant firm of solicitors had acted negligently in failing to complete by dating a deed securing an agreement for the commercial development of its invention. He sought to extend the limitation period, arguing that the solicitors had hidden their failing. The solicitors now appealed.
Coulson J
[2012] EWHC 3523 (QB)
England and Wales
Updated: 12 November 2022; Ref: scu.467072
[2012] EWCA Civ 1626, [2013] PNLR 188
England and Wales
Cited – Schubert Murphy (A Firm) v The Law Society QBD 17-Dec-2014
The claimant solicitors’ firm had acted in a purchase, but the vendors were represented by fraudsters presenting themselves as solicitors, registering with the defendant in names of retired solicitors, and who made off with the money intended for . .
Cited – Purrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.467060
Auditors who were in a position to advise a company’s directors as to the legality of them making loan payments to a shell company which was acquiring there shares had a duty so to advise. The directors of a company sued them for failing to warn them that a loan made by the company might constitute a breach of section 151 of the Companies Act 1985 and thus should have led to a qualified audit report: their claim was for the loss which disqualification proceedings consequent upon the breach of section 151 had caused them. The auditors sought to strike out the claim on the ground that it was no part of auditors’ duties to protect directors personally from the consequences of their mistakes and wrongdoing. The auditors succeeded.
Held: On appeal the court allowed the directors’ appeal. The complaint involved an allegation that the existence of the loan should have led to a qualified report: ‘I remind myself that this is an application to strike out . . In my view the liability of professional advisers, including auditors, for failure to provide accurate information or correct advice can, truly, be said to be in a state of transition or development. As the House of Lords has pointed out, repeatedly, this is an area in which the law is developing pragmatically and incrementally. It is pre-eminently an area in which the legal result is sensitive to the facts. I am very far from persuaded that the claim in the present case is bound to fail whatever, within the confines of the pleaded case, the facts turn out to be. That is not to be taken as an expression of view that the claim will succeed; only as an expression of view that this is not one of those plain and obvious cases in which it could be right to deny the plaintiffs the opportunity to establish their claim at trial.’
Chadwick LJ
Times 18-Dec-1997, [1997] EWCA Civ 2837, [1998] 1 BCLC 143, [1998] PNLR 276
England and Wales
Cited – Equitable Life Assurance Society v Ernst and Young (A Firm) ComC 10-Feb-2003
The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – 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 – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Lists of cited by and citing cases may be incomplete.
Updated: 12 November 2022; Ref: scu.143236
[1997] EWCA Civ 2813
England and Wales
Updated: 11 November 2022; Ref: scu.143212
A nine year old pupil was injured by a fellow pupil whirling an anorak around his head. The accident occurred when they were on their way from the school buildings to the school gates at the end of school day. There was no member of staff on duty to supervise the passage of pupils on their way home. The claim against the school succeeded before the trial judge.
Held: The defendant’s appeal was allowed. A primary school was not negligent in not employing someone to supervise the playground after the close of school hours and until all the children had left. The teachers’ evidence that no playground supervision was provided before school hours at any secondary schools where they had taught was the best evidence of the requirements of reasonableness. Mantell LJ: ‘the very short period in which pupils moved from the exit from the school building to the gate at the other end of the playground is quite different, even allowing for the fact that, as the headmaster accepted and Mr Turton emphasised, departing pupils are likely to be high spirited at that particular moment of the day. Moreover, and to my mind most importantly, there was no evidence that supervision at that juncture, as contrasted with the lunch break, is standard procedure, as it surely would be if it was an equally reasonable requirement. I therefore would also allow the appeal.’
Hirst LJ, Mantell LJ
Times 28-Nov-1997, [1997] EWCA Civ 2644, [1998] PIQR P145
England and Wales
Cited – Kearn-Price v Kent County Council CA 30-Oct-2002
The claimant was injured, being hit in the face by a football in a school playground. It was before school started. There had been accidents, and there were rules which had not been enforced. The school appealed a finding of negligence.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 November 2022; Ref: scu.143043
The claimant firm of solicitors sought payent of its fees by their client. The defendant sought damages alleging professional negligence when pursuing another firm of solicitors for professional negligence in their own pursuit of a further firm of solicitors.
Gross J
[2002] EWHC 3170 (QB)
England and Wales
Updated: 09 November 2022; Ref: scu.381553
The claimant child had become paraplegic in the course of an operation to straighten her spine. The parties disputed whether this arose from negligence.
[2009] EWHC 3175 (QB)
England and Wales
Updated: 09 November 2022; Ref: scu.381771
An executor does not usually owe a duty to advise a beneficiary in connection with the affairs of the beneficiary. Tax avoidance is not an idea that runs naturally or should be attributed to ordinary people or to legal executives in a small firm of high street solicitors.
[1997] STC 1425, [1998] PNLR 592
England and Wales
Cited – Martin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
Cited – Royal Society for The Prevention of Cruelty To Animals v Sharp and Others CA 21-Dec-2010
The Society appealed against an order construing a will. The will had made a gift of the maximum allowed before payment of inheritance tax, and then a gift of a house. The Society argued that the house gift should be deducted before calculation of . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.371289
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant suffered damage when the policy was entered into: ‘the cause of action can accrue and the plaintiff have suffered damages once he has acted upon the relevant advice ‘to his detriment’ and failed to get that to which he was entitled. He is less well off than he would have been if the defendant had not been negligent. Applying this to the present case, the plaintiffs paid their renewal premium without getting in return a binding contract of indemnity from the insurance company. They had acted to their detriment: they did not get that to which they were entitled. The fact that how serious the consequences of the negligence would be depended upon subsequent events and contingencies does not alter this; such considerations go to the quantification of the plaintiffs’ loss not to whether or not they have suffered loss. The risk of loss existed from the outset and in the absence of better evidence would have to be evaluated and assessed as a risk and damages awarded accordingly.’
and ‘It is immaterial that at some later time the damage suffered by the plaintiffs became more serious or was capable of more precise quantification. Provided that some damage has been suffered by the plaintiffs as a result of the second defendant’s negligence which was ‘real damage’ (as distinct from purely minimal damage) or damage ‘beyond what can be regarded as negligible’ that suffices for the accrual of the cause of action.’
Hobhouse LJ
[1997] EWCA Civ 2616, [1998] PNLR 172, [1998] Lloyds Rep IR 390
England and Wales
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Baker v Ollard and Bentley CA 12-May-1982
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to . .
Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Cited – Khan v R M Falvey and Co (a Firm) CA 22-Mar-2002
The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
Cited – Hatton v Messrs Chafes (A Firm) CA 13-Mar-2003
The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
Held: By the time that the . .
Cited – 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 – Iqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
Cited – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Spencer v Secretary of State for Work and Pensions, Moore v Similar CA 1-Jul-2008
Frankovich claim – arises with measurable loss
Each claimant sought Frankovich damages alleging a failure to implement European law leading to a loss.
Held: Such a claim was available against the government after it had failed to implement the Directive so as to provide them with the . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.143015
[1997] EWCA Civ 2564, [1997] EG 146, [1998] PNLR 122, [1997] NPC 150, [1998] 1 EGLR 104, [1998] 06 EG 146
England and Wales
Updated: 09 November 2022; Ref: scu.142963
A claim under an insurance policy was not made when the writ was issued but rather when it was served on the insured; Insurer’s denial of liability was valid.
Gazette 29-Oct-1997, Times 30-Oct-1997, [1997] EWCA Civ 2507
England and Wales
Updated: 09 November 2022; Ref: scu.142905
The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate of over andpound;150,000.
[1997] EWCA Civ 531, [2001] Lloyd’s Rep PN 501, [2001] 3 All ER 769, [2001] PNLR 31, [2001] WTLR 419
England and Wales
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Otter v Church Adams Tatham and Co ChD 1953
The plaintiff was sole administratix of her son’s estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed . .
See Also – Corbett v Newey and Others CA 15-Feb-1996
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary . .
See Also – Corbett v Newey and Others CA 15-Feb-1996
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2022; Ref: scu.142691
Trial of the issue of causation in a clinical negligence claim.
Bean J
[2012] EWHC 3063 (QB)
England and Wales
Updated: 06 November 2022; Ref: scu.465900
The defendants appealed against the quantum of damages awarded against them for professional negligence in the valuation of a factory outlet centre. They said that in calculating damages for the trust claimants, the court should allow for the tax relief obtained by the claimants as a result of the losses suffered.
Eder J
[2012] EWCA Civ 1417
England and Wales
Appeal from – Capita Alternative Fund Services (Guernsey) Ltd and Another v Drivers Jonas (A Firm) ComC 9-Sep-2011
. .
See Also – Othman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 November 2022; Ref: scu.465653
The clamant’s daughter had been born with serious brain defects. The defendant’s doctor had failed to spot the defect in an ultra scan before her birth. There had been discussions about the scan, and the claimant had considered having an abortion, but acted upon the doctor’s re-assurance.
Held: The ultrasound system does not produce clear images.
Jack Mr Justice Jack
[2004] EWHC 2452 (QB)
England and Wales
Cited – Penney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
Appeal from – 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.
Updated: 06 November 2022; Ref: scu.219170
A Local Authority is only vicariously liable for the negligence of a social worker to a child in care.
The Master Of The Rolls (Lord Woolf) Lord Justice Evans Lord Justice Schiemann
Times 22-Apr-1997, [1999] 3 WLR 79, [1997] EWCA Civ 1330
England and Wales
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – JD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal CA 31-Jul-2003
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not ‘fair just and reasonable’ to . .
Cited – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Cited – David Lannigan v Glasgow City Council OHCS 12-Aug-2004
The pursuer said the teachers employed by the defendant had failed to identify that was dyslexic, leading him to suffer damage. The defenders said the claim was time barred, which the pursuer admitted, but then said that the claim ought to go ahead . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 November 2022; Ref: scu.141726
The purchaser of a fishing boat had relied on an incorrect safety certificate in respect of the vessel. He sought to claim in negligence.
Held: The object of the statutory scheme pursuant to which the certificate had been issued was to promote safety at sea and not to safeguard the economic interests of purchasers of the vessels. The court must consider the purpose of a statement, when deciding whether the maker of it owed a duty of care to a claimant, and it recognised the connection between the purpose of the statement and the transaction said to have resulted from reliance upon it. ‘The cases show that before a plaintiff can recover compensation for financial loss caused by negligent mis-statement his claim must meet a number of conditions. Among these are three particularly relevant here. The statement must be plaintiff-specific: that is, it must be given to the actual plaintiff or to a member of a group, identifiable at the time the statement is made, to which the actual plaintiff belongs. Secondly, the statement must be purpose-specific: the statement must be made for the very purpose for which the actual plaintiff has used it. Thirdly, and perhaps overlapping with the second condition, the statement must be transaction-specific: the statement must be made with reference to the very transaction into which the plaintiff has entered in reliance on it.’
Bingham LJ, Phillips LJ
[1997] EWCA Civ 1355, [1997] PNLR 618, [1997] 2 Lloyds Rep 648
England and Wales
Cited – DP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
Cited – Customs and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
Cited – Trent Strategic Health Authority v Jain and Another HL 21-Jan-2009
The claimants’ nursing home business had been effectively destroyed by the actions of the Authority which had applied to revoke their licence without them being given notice and opportunity to reply. They succeeded on appeal, but the business was by . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 November 2022; Ref: scu.141751
A solicitor was not negligent for failing to pass on information about a client’s credit worthiness in the absence of a specific request of the lender.
Times 09-Oct-1997, [1997] EWCA Civ 1893
England and Wales
Updated: 06 November 2022; Ref: scu.84183
Opinion – The pursuer alleged negligence in the defenders conduct of a hysterectomy.
Lord Tyre
[2012] ScotCS CSOH – 152
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.
Updated: 05 November 2022; Ref: scu.464412
The customer appealed after his bank was found to have been negligent in its sales to him of investments, but the losses were found to have derived from general market turmil.
Rix, Lloyd, Moore-Bick LJJ
[2012] EWCA Civ 1184
England and Wales
Appeal from – Rubenstein v HSBC Bank Plc QBD 2-Sep-2011
The claimant alleged that the defendant bank has missold to him securities in the form of an AIG Premier Access Bond.
Held: Though the bank had acted negligently and otherwise incorrectly, those faults were not the cause of the substantial . .
Principal judgment – Rubenstein v HSBC Bank CA 12-Sep-2012
Order finalised after successful appeal in bank mis-selling claim. . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.464227
Appeal on failure of claim for damages – child injured during birth. Whether could have been avoided.
[2007] EWCA Civ 290
England and Wales
Updated: 05 November 2022; Ref: scu.254352
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…’
The court set out the tests for striking out claims for want of prosecution. Lord Denning MR stated: ‘It was urged that we ought not to strike out a man’s action without trial because it meant depriving him of his right to come to the Queen’s Courts. Magna Carta was invoked against us as if we were in some way breaking its provisions. To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. ‘To no one will we deny or delay right or justice.’
All through the years men have protested at the law’s delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time. Dickens tells how it exhausts finances, patience, courage, hope. To put right this wrong, we will in this court, do all in our power to enforce expedition; and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent jurisdiction of the court. And the Rules of Court expressly permit it. It is the only effective sanction they contain. If a plaintiff fails within the specified time to deliver a statement of claim, or to take out a summons for directions, or to set down the action for trial, the defendant can apply for the action to be dismissed…’
Diplock LJ discussed a strike out: ‘It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default . . The power should be exercised only where the court is satisfied either: (i) that the default has been intentional and contumelious, e.g. disobedience to a pre-emptory order of the court or conduct amounting to an abuse of the process of the court; or (ii) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and plaintiff or between each other or between them and a third party.’
Lord Diplock stated that: ‘But also, if after the plaintiff has been guilty of unreasonable delay the defendant so conducts himself as to induce the plaintiff to incur further costs in the reasonable belief that the defendant intends to exercise his right to proceed to trial notwithstanding the plaintiff’s delay, he cannot obtain dismissal of the action unless the plaintiff has thereafter been guilty of further unreasonable delay.’
A strike out for abuse of process might be available where there had been ‘inordinate and inexcusable delay such that there is a substantial risk that a fair trial of the issues in the litigation will not be possible’
The court should look also to the prejudice to the defendant from the delay: ‘And where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the courts been able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard’.
‘The underlying principle of civil litigation is that the court takes no action in it of its own motion but only on the application of one or other of the parties to the litigation, the assumption being that each will be regardful of his own interest and take whatever procedural steps are necessary to advance his cause.’
There is a need to ‘temper logic with humanity’.
An ‘amicus curiae’ is a person or organisation, not a party to the proceedings, who offers to assist a court or tribunal by providing representation to an unrepresented person or in some other way assisting by expounding the law impartially.
Salmon LJ explained the meaning of inordinate delay: ‘(1) . . It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognise when it occurs.’
Lord Denning MR, Diplock LJ, Salmon LJ
[1968] 2 QB 229, [1968] 2 WLR 366, [1968] 1 All ER 543
England and Wales
Cited – Armory v Delamirie KBD 1722
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 . .
Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
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 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Cited – Dixon v Clement Jones Solicitors (A Firm) CA 8-Jul-2004
The defendant firm had negligently allowed a claim for damages against a firm of accountants to become statute barred. The defendants said the claim was of no or little value, since the claimant would have proceeded anyway.
Held: The court had . .
Cited – Eagle (By Her Litigation Friend) v Chambers CA 29-Jul-2004
The claimant had been severely injured, and a substantial damages award made. Cross appeals were heard as to the several elements awarded. The claimant sought as part of her award of damages for personal injuries the fees she would have to pay to . .
Cited – In re Jokai Tea Holdings Ltd CA 1989
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 22-Jun-2000
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 . .
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.200642
Lord Justice Pill Sir Christopher Staughton Lady Justice Smith
[2005] EWCA Civ 1611
England and Wales
Updated: 05 November 2022; Ref: scu.237713
The Honourable Mr Justice Buckley
[2003] EWHC 3104 (QB)
England and Wales
Updated: 05 November 2022; Ref: scu.188896
The claimant sought damages alleging that she had been injured by the defendants’ negligence in conducting her birth. The parties sought determination of whether the court should restrict the number of expert witnesses.
Held: Nothing in the rules set a specific limit of one such witness. Where the question was substantial and complex, the overriding objective required the court to keep a balance between the parties. Inevitably the defence would include evidence from the doctors themselves, and the claimant was not to be limited too strictly.
[2003] EWCA Civ 1284, Gazette 02-Oct-2003
England and Wales
Updated: 05 November 2022; Ref: scu.186539
[2003] EWCA Civ 1342
England and Wales
Cited – Charles Church Developments Ltd v Stent Foundations Ltd and Another TCC 5-Dec-2006
The land owner sought damages for negligence against its builder and a sub-contractor. Having left the issue too late to complete the pre-action protocol, it issued proceedings, but then had to seek to amend the pleadings to add a further claim out . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.186690
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 to bear in mind the distinction between the loss of chance directly through the professional negligence of a defendant, and the assessment where the chance lost was to sue for professional negligence. Questions of causation were relevant in the first case, but in the latter the task was to assess the value of the underlying claim. There was no requirement on the claimant to prove that she would not have proceeded if she had the right advice.
Rix LJ said: ‘There is no requirement in such a loss of a chance case to fight out a trial within a trial, indeed the authorities show as a whole that that is what should be avoided. It is the prospects and not the hypothetical decision in the lost trial that has to be investigated . . .The test is not to find out what the original decision of the underlying mitigation would have been as if that litigation had been fought out, but to assess what prospects were.’
Lord Justice Rix, Lord Justice Carnwath, Lord Slynn of Hadley
[2004] EWCA Civ 1005, Times 02-Aug-2004, [2007] Lloyds Rep PN 20
England and Wales
Cited – Lackersteen v Lackersteen 1860
The court has power to rectify a settlement notwithstanding that it is a voluntary settlement and not the result of a bargain, such as an ante-nuptial marriage settlement. . .
Cited – Armory v Delamirie KBD 1722
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 . .
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Cited – Allen v Sir Alfred McAlpine and Sons Ltd CA 1968
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 . .
Cited – Sharif and Others v Garrett and Co CA 31-Jul-2001
The applicants sought damages from the defendant solicitors who had failed to prosecute properly a claim for damages. Their building was damaged by fire, but they had not been insured. The action was against the brokers. The court had awarded them . .
Cited – Hatswell v Goldbergs (a firm) CA 2002
The claimant sought damages from his solicitors where his claim for medical negligence was struck out for delay. The High Court declared his claim as of no value.
Held: The underlying claim in medical negligence was made simply impossible by a . .
Cited – Pritchard Joyce and Hinds v Batcup and Another QBD 17-Jan-2008
The claimant solicitors sought contributions from counsel to the damages they had been obliged to pay to their client in negligence.
Held: Underhill J said: ‘My task is not to seek to decide definitively whether LL were liable in negligence to . .
Cited – Haithwaite v Thomson Snell and Passmore (A Firm) QBD 30-Mar-2009
The claimant sought damages from his former solicitors for admitted professional negligence. The court considered the loss suffered in the handling of his claim against a health authority. The solicitors received advice after issuing that the . .
Cited – Hannon and Another v News Group Newspapers Ltd and Another ChD 16-May-2014
The claimants alleged infringement of their privacy, saying that the defendant newspaper had purchased private information from police officers emplyed by the second defendant, and published them. The defendants now applied for the claims to be . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 November 2022; Ref: scu.199605
[1997] EWCA Civ 1834
England and Wales
Updated: 05 November 2022; Ref: scu.142230
The defendant firm of solicitors acted for the plaintiffs when they purchased land. The registered title showed that part of the land which appear to be within their curtilage, was registered to the neighbours. A writ was issued to claim damages for professional negligence, but was delayed pending the outcome of a claim for the possession of the land. After losing that claim, their claim against the solicitors was struck out for the delay. They appealed that striking out. They denied the delay was unreasonable, and that the defendants had been prejudiced by the delay. In this case the delay was so substantial (ten years), that prejudice to the defendant’s ability to put their case was to be assumed.
[1997] EWCA Civ 1146
England and Wales
Updated: 05 November 2022; Ref: scu.141542
The exclusion of weak but merely arguable heads from pleadings was not negligent.
Times 13-Feb-1997, [1997] EWCA Civ 934
England and Wales
Updated: 05 November 2022; Ref: scu.141330
The Claimant alleges, and the Defendant admits, that the Defendant negligently failed to diagnose and then to treat the pituitary tumour for more than three years and that as a result of that failure the Claimant grew both in height and frame to a size which considerably exceeds what would have been expected.
Stuart Baker HHJ
[2012] EWHC 2167 (QB)
Updated: 04 November 2022; Ref: scu.463366
Claim against GP for failure to diagnose sub-arachnoid haemorrhage after fall in shower.
Scott Baker LJ
[2007] EWCA Civ 602
England and Wales
Updated: 04 November 2022; Ref: scu.254439
Rix, Dyson LJJ
[2002] EWCA Civ 1961
England and Wales
Updated: 04 November 2022; Ref: scu.188955
The court considered the effect of a party failing to bring evidence in support of its case, as regards the court drawing inferences: ‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.’
Brooke LJ
[1997] PIQR 324, [1998] Lloyds Rep Med 223
England and Wales
Cited – Chapman v Copeland 1966
. .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – McQueen v Great Western Rly Co CA 1875
If a prima facie case is made out capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that . .
Cited – O’Donnell v Reichard 1975
. .
Cited – Hughes v Liverpool City Council CA 11-Mar-1988
. .
Cited – Regina v Inland Revenue Commissioners, Ex parte T C Coombs and Co HL 1991
The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax . .
Cited – Benham Limited v Kythira Investments Ltd and Another CA 15-Dec-2003
The appellant complained that the judge had accepted a case of no case to answer before the close of the claimant’s case and without putting them to their election. The claimant estate agents sought payment of their account. The defendants alleged a . .
Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .
Cited – UK Insurance Ltd v Gentry QBD 18-Jan-2018
Calim for damages by insurance company claiming that a claim by the defendant on which it had paid had in fact been fraudulent. The claim was made in deceit.
Held: ‘I have the required very high level of confidence that the Claimant’s . .
Cited – AB (Preserved FTT Findings; Wisniewski Principles) Iraq UTIAC 11-Aug-2020
Preserving findings of fact
(1) Whether and, if so, when the Upper Tribunal should preserve findings of fact in a decision of the First-tier Tribunal that has been set aside has been considered by the Higher Courts in Sarkar v Secretary of . .
Cited – Scott v Bridge and Others ChD 25-Nov-2020
Claim to recover money and property said to have been transferred by the claimant to the defendants or one or more of them. The money concerned came from a bank account belonging to the claimant. The property concerned consisted of two . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 November 2022; Ref: scu.188866
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant.
The Honourable Mr Justice Eady
[2003] EWHC 1091 (QB)
England and Wales
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Wrexham County Borough Council v Berry; South Buckinghamshire District Council v Porter and another; Chichester District Council v Searle and others HL 22-May-2003
The appellants challenged the refusal to grant them injunctions to prevent Roma parking caravans on land they had purchased.
Held: Parliament had given to local authorities exclusive jurisdiction on matters of planning policy, but when an . .
See Also – Browning and Another v Messrs Brachers (A Firm) QBD 13-Feb-2004
. .
See Also – Browning v Messrs Brachers CA 20-Jun-2005
. .
Lists of cited by and citing cases may be incomplete.
Updated: 04 November 2022; Ref: scu.182221
Gilliatt A solicitors’ firm had been paid for work done in a case by the Legal Services Commission. The LSC had a right to a statutory charge against a property which had been preserved as a result of the proceedings. The solicitors should have reported to the LSC that they had recovered the property by December 1999. In February 2000 the firm applied to have the legal aid certificate discharged. It was not until August 2000 that they made the report to the LSC about the recovery of property giving rise to the statutory charge. The LSC did not actually receive the report until mid September. The LSC then applied to register a caution against the property. In the meantime the litigant had put the property on the market and a prospective purchaser had lodged an official search with the land registry. The upshot was that the purchaser’s application to register title had priority over the LSC’s application to register a charge. The property was transferred to the purchasers. By the time the LSC were told their charge had not been registered, the solicitors had been paid and the litigant had been paid by the purchaser. The LSC then tried to claw back the money paid out for costs from other sums claimed by the solicitors in respect of different cases.
Held: Despite the fact that the solicitors had not done everything they should have done promptly, there was no actual power, on a construction of the regulations on the part of the LSC to take back the money.
Scott Baker J said: ‘[Counsel for the Commission] submits that . . Section 4(1)(b) of the Legal Aid Act 1988 gives the defendants a statutory power to operate a running account. This however does not in my judgment give a right to relocate or move money that has been earned and paid in case ‘A’ to case ‘B’ or to recoup money.’
Mr Justice Scott Baker
[2002] EWHC 1017 (Admin)
England and Wales
Updated: 04 November 2022; Ref: scu.172254
The respondent sought security for costs against an appeal by the plaintiff company.
Held: Substantial sums had been paid into court, and which could be treated as money belonging to the plaintiff. Accordingly there was no need for any security for costs.
Lord Justice Nourse Mr. Justice Cazalet
[1997] EWCA Civ 769
England and Wales
Updated: 04 November 2022; Ref: scu.141165
Poole J
[1996] EWCA Civ 1196, [1996] 7 Med LR 408, (1997) 37 BMLR 146
England and Wales
Updated: 04 November 2022; Ref: scu.141064
Defendant’s application for summary judgment in claim alleging clinical negligence.
Stockdale QC HHJ
[2011] EWHC 3980 (QB)
Updated: 03 November 2022; Ref: scu.462548
[2010] EWHC 2253 (Ch), [2011] PNLR 5
England and Wales
Updated: 03 November 2022; Ref: scu.425360
The applicants sought damages after they had had placed with them for adoption a child who proved to be destructively hyperactive.
Held: The authority might be liable where they failed to disclose to adoptive parents known characteristics of a child. A person exercising a particular skill might owe a duty of care where its negligent performance might adversely affect others (Phelps). The local authority can be vicariously liable for any damages resulting. It was foreseeable that a child known to be violent to people and property might cause injury in the future.
The Honourable Mr Justice Buckley
Times 24-Jan-2003, [2002] EWHC 2707 (QB)
England and Wales
Cited – Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council HL 28-Jul-2000
The plaintiffs each complained of negligent decisions in his or her education made by the defendant local authorities. In three of them the Court of Appeal had struck out the plaintiff’s claim and in only one had it been allowed to proceed.
Appeal from – A and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 November 2022; Ref: scu.178521
The choice of the telephone as a means of alerting and re-assuring people, who had received treatment from a health worker later found to be HIV+, was proper. The was no breach of a duty care, even though some people called had suffered distress: ‘once the defendants had decided to inform their patients at all, they were under a duty to take such steps to inform them as were reasonable, having regard both to the foreseeable risk that some of them might suffer psychiatric injury (or any existing psychiatric injury might be materially aggravated) upon receipt of the information ‘ and ‘the judge has to perform the familiar role of considering the factual evidence carefully, listening to the expert evidence, and forming a view as to whether in all the circumstances these public health authorities fell below the standards reasonably to be expected of them when they selected their preferred method of communicating the information to the patients.’
Brooke LJ
Gazette 04-Dec-1996, Times 27-Nov-1996, [1996] EWCA Civ 938, [1996] 35 BMRLR 39
England and Wales
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Lists of cited by and citing cases may be incomplete.
Updated: 03 November 2022; Ref: scu.140805
Damages awarded against a surveyor for a negligent survey which had missed certain defects, were not to be reduced for repairs later carried out by the landlord at his own expense. The trial judge decided to award damages reflecting the difference between the value of the property without the defects and its value with them at the date of purchase.
Held: (Peter Gibson LJ dissenting) The damages were calculated assuming a hypothetical sale. The issue of the landlord’s repairs were res inter alios, and were collateral to the surveyors negligence.
Hirst LJ, after reviewing a number of authorities, described the case ‘as a straightforward Philips v Ward type of case’, and as to the argument that the loss had been avoided, he said: ‘having regard to intervening events and to the long interval of time, the repairs executed in 1990 were not part of a continuous transaction of which the purchase of the lease as a result of [the surveyors] negligence was the inception. Furthermore, these repairs undertaken by [the landlords] at the plaintiff’s insistence were res inter alios acta and therefore collateral to [the surveyor’s] negligence.’
Pill LJ agreed as to the facts, concluding that ‘the facts relied upon as affecting the measure of damages are too remote to be taken into consideration . .’
Peter Gibson LJ said: ‘The law does not permit the plaintiff to recover more than is seen to be his actual loss and the rules of mitigation may deprive the plaintiff of all or part of the damages for loss which otherwise he might have recovered.’
if a plaintiff in fact avoids or mitigates his loss he could not recover for the loss thereby avoided even if the steps taken were more than could reasonably be required under the duty to mitigate. He said this at p.508, after reviewing various authorities: ‘Whilst Philips v Ward establishes that the measure of damages is the price paid less the market value of the property at the date of the breach, even though the cost of repairing the property may be greater or smaller than that, it does not follow that the rules of mitigation can never apply to such a case. That would be contrary to the British Westinghouse principle. Indeed as Mustill LJ pointed out in Hussey v Eels [1990] 2 QB 227, 233, any generalisation that where a loss has crystallised in terms of there being a conventional measure of damages at the date of breach, there can be no mitigation as shown by the Pagnan case [1970] 1 WLR 1306 to be unsound. For my part I cannot see why the advantage accruing from the action of the plaintiff in that case to mitigate his loss, viz. the elimination of the risk to the house by the felling of the poplars, should be left out of account in arriving at the award of damages and there is nothing in Philips v Ward [1956] 1 WLR 471 to compel such a result . . ‘
He described Hussey v Eels as ‘an exceptional case turning on its own facts’ and said: ‘The common sense of the situation in the present case is that once the Plaintiffs were aware that they had purchased a structurally defective property of less value than the price they had paid as a result of the Defendants’ negligence, they sensibly and promptly took steps to eliminate their loss by procuring the remedying by the freeholder of the defect. That seems to me plainly an act of mitigation resulting in a benefit to the Plaintiffs which eliminated their loss. I repeat what the Judge said, that they have a rectified property worth the equivalent of what they had paid for it without any extra cost to them. The significant point is that this occurred as a result of the pressure applied to the freeholder by the Plaintiffs. To take an example suggested by Mr. Brunner, if the Plaintiffs had sued both the freeholder under the Defective Premises Act 1972 and the Defendants in negligence in the same action they could not expect to recover damages in full from the freeholder as well as damages in full from the Defendants. Once the property had been put in repair at no cost to the Plaintiffs, in my judgment they cannot be allowed to obtain double recovery by an award of damages against the Defendants. To adapt the words of Salmon L.J. in R. Pagnan and Fratelli v Corbisa Industrial Agropacuria Limitada [1970] 1 WLR 1306, 1316, to allow the plaintiffs’ claim would be contrary to justice, common sense and the British Westinghouse Electric and Manufacturing Co. Ltd v Underground Electric Railways Co. of London Ltd. [1912] A.C. 673 principle.’
Hirst LJ, Pill LJ
Gazette 13-Dec-1996, Times 02-Dec-1996, [1996] EWCA Civ 940, [1997] 1 WLR 489, [1997] PNLR 362
England and Wales
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Catlin Estates Ltd and Another v Carter Jonas (A Firm) TCC 31-Oct-2005
The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims. . .
Cited – Bacciottini and Another v Gotelee and Goldsmith (A Firm) CA 18-Mar-2016
A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 November 2022; Ref: scu.80750
House owners brought proceedings agains the defendant builder of their properties, saying that the foundations had been inadequate, leading to structural damages.
Hughes, Aikens, McFarlane LLJ
[2012] EWCA Civ 904
England and Wales
Updated: 03 November 2022; Ref: scu.461951
[2009] EWHC 2725 (Ch), [2010] PNLR 7
England and Wales
Updated: 01 November 2022; Ref: scu.424106
Lord Justice Buxton Lady Justice Arden Lord Justice Wall
[2004] EWCA Civ 583, [2004] PNLR 43
Unfair Contract Terms Act 1977
England and Wales
Updated: 01 November 2022; Ref: scu.197055
The claimant instructed the defendant firm to act in advising in support of an investment in Russia. The investment was declared invalid in the courts of Russia, and the claimant said that the defendant should have forewarned them of the problem, avoiding expense and loss of profit. The defendants denied instructions to act in this way. The bid documents were prepared by the claimant, and the defendants denied any duty to act to correct them.
Held: The scope of the duties did include the identification of problems in the documentation, between the invitation to tender and the bid. Any uncertainty as to a solicitor’s instructions ought to be resolved by the solicitor. Misunderstandings should not arise; there ought to be some record of instructions and variations to them. Since the client would have gone ahead, the damages fell to be calculated on a loss of chance basis.
The Honourable Mr Justice Buckley
[2003] EWHC 191 (QB)
England and Wales
Appeal from – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 November 2022; Ref: scu.179487
[2020] EWHC 189 (Ch)
England and Wales
Updated: 01 November 2022; Ref: scu.648549
Lord Justice McCombe
[2020] EWCA Civ 358
England and Wales
Updated: 01 November 2022; Ref: scu.648857
(Opinion)
Lady Smith
[2012] ScotCS CSOH – 102
Updated: 01 November 2022; Ref: scu.460438
Richard Seymour QC HHJ
[2009] EWHC 2906 (QB)
England and Wales
Updated: 01 November 2022; Ref: scu.393029
A contribution to a damages award was sought. The two year period under section 10 had expired between the anniversary of the date on which an agreement to settle the victim’s claim had been made and the anniversary of the consent order which had given effect to the agreement. The court had to decide whether the period for limitation purposes was fixed by subsection 10(3) or 10(4).
Held: A consent order amounted to a ‘judgment’. Subsection 10(4) applied and the contribution claim was time barred: ‘My principal reason for doing so is if a firm agreement is made, as here, time undoubtedly starts to run at that moment. It would be different if the agreement required the making of a consent order before it took effect. Neither party so contends here. Although Parliament could have decided that a consent order should restart the clock, there are insufficiently clear words to indicate that. Indeed the words in subsection (1) ‘Where . . any person becomes entitled’ and the words in subsection (4) ‘the earliest date on which the amount . . is agreed’ suggest that the crucial moment is the first moment when liability arises. It is tidy to conclude that subsections (3) and (4) deal separately with cases decided by a court (or arbitrator) and cases of agreement.’
Mr Justice Crane
[2003] EWHC 1831 (QB), [2004] 1 WLR 371
Limitation Act 1980 10(3) 10(4)
England and Wales
Cited – Aer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 October 2022; Ref: scu.184876
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 be assessed.
Held: It was not clear that the first firm were negligent in not joining the author having failed to identify that the defendant company was impecunious. The total claim must be reduced to allow for the effect of the impecuniosity of the final defendants on the settlement which would have been obtained.
Gray J
[2002] EWHC 2727 (QB)
England and Wales
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Duchess of Argyll v Beuselinck ChD 1972
The court found that the plaintiff’s solicitor had not been under a duty to give tax advice in the context of the particular transaction. The performance must be judged in the light of the events known at the time. The court advised against the use . .
Cited – 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 . .
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 October 2022; Ref: scu.178902
Accountants’ appointment as auditors made them officers and protected as such.
Times 15-Oct-1996, [1996] EWCA Civ 704
England and Wales
Updated: 31 October 2022; Ref: scu.84144
Andrew Lewis QC
[2020] EWHC 158 (QB)
England and Wales
Updated: 31 October 2022; Ref: scu.648886
Geoffrey Tattersall QC
[2020] EWHC 310 (QB)
England and Wales
Updated: 31 October 2022; Ref: scu.648911
Peter Smith J
[2012] EWHC 1474 (Ch)
England and Wales
Updated: 31 October 2022; Ref: scu.459891
[2006] EWCA Civ 1616
England and Wales
Updated: 31 October 2022; Ref: scu.246966
The plaintiffs had discovered that the defendant surveyors had negligently failed to observe that there was dry rot but did not start proceedings until other negligence was discovered more than six years later.
Held: Although the negligent survey had led to two heads of loss there was only one cause of action. Since the plaintiffs had discovered the dry rot over six years previously, the action was statute barred. Only one cause of action arises from a negligent survey; and there is only one applicable limitation period.
Gazette 17-Jul-1996, Times 15-Jul-1996, [1996] PNLR 398
England and Wales
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.
Updated: 31 October 2022; Ref: scu.81199
Stewart J
[2020] EWHC 416 (QB)
England and Wales
Updated: 31 October 2022; Ref: scu.648921
The appropriate standard against which a defendant patent agent’s conduct is to be measured is that of what the reasonably competent patent agent would do having regard to the standards normally adopted in his profession.
Simon Brown LJ
[1996] PNLR 45
England and Wales
Cited – Kerr v Laurence Shaw and Associates Ltd (T/A Laurence Shaw and Associates (In Liquidation)) ChD 19-Mar-2010
The claimant sought damages, alleging that the defendant patent agents had failed to make a timely application for a Canadian patent.
Held: The evidence was conflicting, but the court found that the claimant had made a decision to limit his . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.403478
Millett LJ commented that if a judge needed assistance with regard to conveyancing practice the proper way was to cite the relevant textbooks.
Simon Brown LJ, Millett LJ
[1996] 1 PNLR 130
England and Wales
Approved – 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 . .
Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
Cited – Kandola v Mirza Solicitors Llp ChD 27-Feb-2015
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.242867
The deceased’s widow claimed that the GP defendant had failed to ensure the proper treatment of the deceased, leading to his death. The court had found the defendant negligent, but that the negligence had not caused the death.
Held: The judge had been faced with competing evidence from two experts who had fallen too far into the role of advocates. The defendant’s expert had misinterpreted two research papers with the result that the court was misled. The issue of causation was to be reheard.
Sedley, Rix LJJ, Bennett J
[2005] EWCA Civ 223
England and Wales
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Wardlaw v Dr Farrar CA 27-Nov-2003
The claimant appealed an award of andpound;1,000 damages for the death of his wife for professional negligence. Doctors had differed as to whether the delay complained of had contributed to the death.
Held: It was vital now that medical . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.223270
The defendants had carried out works of construction on the premises. They subcontracted the design, but not the supervision, of the works to architects. Years later there was a fire, which spread rapidly because of negligence in the design of a wall intended to restrain any fire. The architects said their duty was limited to responding to the first defendant’s requests for plans, and they did not themselves have responsibility for failures of specification.
Held: The omissions in design were the responsibility of the architects, who owed a duty of care to purchasers of a building as beneficial owners, where they had been involved in the construction, in respect of latent defects in the building of which there is no reasonable possibility of inspection.
Lord Justice Potter Lord Justice May Sir Anthony Evans
[2002] EWCA Civ 1823
England and Wales
Approved – Baxall Securities Ltd Norbain SDC Ltd v Sheard Walshaw Partnership TCC 30-Oct-2000
. .
Cited – Murphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
Cited – Moresk Cleaners Ltd v Hicks 1966
If a dangerous defect arises as the result of a negligent omission on the part of an architect, he cannot excuse himself from liability on the grounds that he delegated the duty of design of the relevant part of the building works, unless he obtains . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
See Also – Bellefield Computer Services Limited, Unigate Properties Limited; Unigate Dairies Limited; Unigate (Uk) Limited; Unigate Dairies (Western) Limited v E Turner and Sons Limited Admn 28-Jan-2000
The Defendant builders constructed a steel building to be used as, inter alia. a dairy. The original owners sold it to the appellants. A fire spread from the storage area to the rest of the dairy and caused much damage. The Builders, had they . .
Cited – Sahib Foods Limited and Co-operative Insurance Society Limited v Paskin Kyriakides Sands (A Firm) TCC 3-Mar-2003
The claimants were lessees of premises, and the second claimants had contracted to purchase it. The premises burned down, and the claimants sought damages from the architect respondents. The fire began because of negligence by the claimant’s . .
Cited – Independiente Ltd and others v Music Trading On-Line (HK) Ltd and others ChD 13-Mar-2003
The claimants claimed damages for the sale by the defendants in the UK of CD’s manufactured for sale only in the far East. The defendants challenged the right of a claimant phonographic society to have the right to sue on behalf of its members.
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.178522
When testing whether a valuation was negligent, it would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong. would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong (Mount Banking).
Balcombe, Otton and Aldous LJJ
[1996] 1 EGLR 130
England and Wales
Cited – Mount Banking Corporation Ltd v Brian Cooper and Co QBD 1992
The plaintiff submitted that where the final valuation figure is within the Bolam principle, an acceptable figure, albeit towards the top end, but where none the less the valuer has erred materially in reaching that figure, the plaintiff can succeed . .
Cited – Lloyds TSB Bank Plc v Edward Symmons and Partners TCC 12-Mar-2003
The defendants had carried out a survey and valuation for the claimants, who now sought damages alleging that the valuer had miscalculated the area of the premises, omitting certain areas which would affect the value.
Held: In order to make . .
Cited – Lloyds TSB Bank Plc v Edward Symmons and Partners TCC 12-Mar-2003
The defendants had carried out a survey and valuation for the claimants, who now sought damages alleging that the valuer had miscalculated the area of the premises, omitting certain areas which would affect the value.
Held: In order to make . .
Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Appeal from – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2022; Ref: scu.182923
A solicitor’s wrongful termination of a retainer occasioned a loss, but wasn’t the actual cause of it.
Times 07-Nov-1995
England and Wales
Updated: 27 October 2022; Ref: scu.90679
[2018] ScotCS CSOH – 101
Scotland
Updated: 27 October 2022; Ref: scu.634423
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 with ‘negligence’, ‘actionable’ or ‘tortious’.
Ind Summary 26-Jul-1993, Times 06-Jul-1993, [1993] 4 Med L R 328
England and Wales
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.78661
Underwriters owe a professional duty of care to Lloyds names in underwriting, even though they were acting as agents.
Times 30-Dec-1993, Independent 14-Dec-1993
England and Wales
Appeal from – Arbuthnot and Others v Feltrim and Others; Deeny and Others v Gooda Walker Ltd and Others QBD 12-Oct-1993
Lloyds’ names sought damages from their underwriting agents for negligence. The court had to decide as a preliminary issue whether any duty of care arose to the names.
Held: Until 1990, names signed an agreement with a member’s agent who in . .
Appeal from – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2022; Ref: scu.77859
[2001] EWCA Civ 1288
England and Wales
Updated: 25 October 2022; Ref: scu.201113
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when their losses could be minimalised. They appealed a judgment limiting the claim to 500 million pounds.
Held: The case should not be limited to a claim of any certain size. The issues were an an area of developing jurisprudence, and were fact dependent. In such cases a strike out was inappropriate, and the Court should not be drawn into a mini-trial of complex cases at this stage.
Brooke LJ said: ‘The overriding concern is the interests of justice. So far as facts are concerned, the simpler the case is the easier it is likely for a court to be able to take a view that the basis of a claim is fanciful or contradicted by all the documentary material on which it is founded. More complex cases are unlikely to be capable of being resolved in that way. There is a danger of injustice in seeking to try such cases summarily on the documents and thus without disclosure and oral evidence tested by cross-examination. It should not be done unless the court can be confident that all the relevant facts had already been satisfactorily investigated.’
Lord Justice Brooke Lord Justice Rix And Lord Justice Dyson
[2003] EWCA Civ 1114, Gazette 02-Oct-2003, [2003] 2 BCLC 603, [2007] Lloyds Rep PN 22, [2004] PNLR 16
England and Wales
Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Wenlock v Moloney CA 1965
The plaintiff alleged a conspiracy to deprive him of his shares and interest in a company. Each side filed affidavit evidence raising issues of fact. With no oral evidence or cross examination on the affidavits, the Master, after a four day hearing, . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Farah and Others v Home Office, British Airways Plc and Another CA 6-Dec-1999
The applicants claimed in negligence against the Home Office after its advisers had wrongly advised the first defendants that the claimants’ travel documents were not valid. The claim was struck out, and the claimants appealed. The strike out was . .
Cited – Aneco Reinsurance Underwriting Limited (In Liquidation) (a Body Incorporate Under the Laws of Bermuda) v Johnson and Higgins Limited HL 18-Oct-2001
Brokers contracted to obtain re-insurance of risks undertaken by the claimants. They negligently failed to obtain full cover. The question at issue was whether they were liable for the full loss, or whether their duty was limited to obtaining . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – First Interstate Bank of California v Cohen Arnold and Co CA 11-Dec-1995
If a guarantor’s negligent accountant had not misled the bank by misrepresenting his client’s wealth, the bank would have demanded repayment of its secured loan on 30th June 1990. In the event it did not realise the true position until 17th August. . .
Cited – Skipton Building Society v Stott CA 2001
The issue was whether a mortgagee had sold at an undervalue, and if so what the damages should be.
Held: In a well-developed property market where a sale is assured and the only possible issue is as to the market level, damages for loss of . .
Cited – E (A Minor) v Dorset County Council CA 1995
It is generally unwise to give summary judgment in cases where the relevant law is uncertain or in a state of development: ‘This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of . .
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 – Coulthard, Ashton Shuttleworth, and Dawes v Neville Russell (a Firm) CA 27-Nov-1997
Auditors who were in a position to advise a company’s directors as to the legality of them making loan payments to a shell company which was acquiring there shares had a duty so to advise. The directors of a company sued them for failing to warn . .
Cited – Sasea Finance Ltd v KPMG (Formerly KPMG Peat Marwick Mclintock) ChD 10-May-2001
It was complained that the auditors had failed timeously to warn the company of fraud by a senior employee. The appeal concerned an application to strike out heads of claim in an action brought by the company against its auditors for negligence.
Cited – Weston v Gribben ChD 20-Dec-2005
. .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd QBD 26-Jan-2009
The claimants sought damages after delays by the bank in processing transfer requests. The bank said that the delays were made pending reports of suspected criminal activity. The bank’s delay had stigmatised the claimant causing further losses. The . .
Cited – Land Securities Plc and Others v Fladgate Fielder (A Firm) CA 18-Dec-2009
The claimants wanted planning permission to redevelop land. The defendant firm of solicitors, their tenants, had challenged the planning permission. The claimants alleged that that opposition was a tortious abuse because its true purpose was to . .
Cited – Webb v Macdonald and Another ChD 29-Jan-2010
Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice . .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd CA 4-Feb-2010
Money laundering suspicion to be explained
The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 October 2022; Ref: scu.184820
Field J
[2002] EWHC 1649 (QB)
England and Wales
Updated: 25 October 2022; Ref: scu.189162
The claimant sought damages against its former directors for negligence and breach of fiduciary duty. The defendants asked that the claims be struck out.
Held: It was no longer good law that directors might leave the conduct of the company’s business to competent management. Though section 727 might give relief to directors who had been negligent, but who had nevertheless acted reasonably, summary relief in this case was inappropriate. On the issue of the various elements of negligence claims it was not correct to characterise the claims as without a real prospect of success.
The Honourable Mr Justice Langley
[2003] EWHC 2263 (Comm)
See also – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Re D’ Jan of London Limited 1993
The court described the roles of a director of a company: ‘ . . the duty of care owed by a director at common law is accurately stated in sec. 214(4) of the Insolvency Act 1986. It is the conduct of: a reasonably diligent person having both- (a) the . .
Cited – In re Barings plc (No 5) CA 2000
A finding of breach of duty is neither necessary nor of itself sufficient for a finding of unfitness. As the judge (at first instance) observed a person may be unfit even though no breach of duty is proved against him or may remain fit . .
No longer good law – In Re City Equitable Fire Insurance Company Limited ChD 1924
The duty of reasonable care expected of a company’s directors is generally said to be that of an ordinary prudent person might be expected to take in the circumstances on his own behalf, with the knowledge and experience of the director concerned. . .
Cited – Re Lands Allotment Company CA 1894
A limited company is not a trustee of its funds, but their beneficial owner. However, the fiduciary character of the duties of its directors mean that they are treated as if they were trustees of those funds of the company which are in their hands . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 October 2022; Ref: scu.187126
[2007] EWCA Civ 353
England and Wales
Updated: 24 October 2022; Ref: scu.251440
clinical negligence claim relating to aortic valve replacement surgery
The Honourable Mrs Justice Eady
[2021] EWHC 643 (QB)
England and Wales
Updated: 24 October 2022; Ref: scu.660816
A claim was brought against a firm of fine art auctioneers outside London who failed to spot that two small paintings of foxhounds might in fact be the work of the celebrated painter of animals George Stubbs. The paintings, which had been very dirty and overpainted when assessed by the auctioneer, were given a reserve price of pounds 40 for the pair and sold for pounds 840. They were subsequently sold as being by Stubbs for pounds 88,000.
Held: The auctioneer’s appeal succeeded.
The two pictures had initially been consigned by the claimants to the auctioneer ‘for research’. Slade LJ held that this term had no standard, recognised meaning but that in the context of that case the duty of the auction house was: ‘to express a considered opinion as to the sale value of the foxhound pictures, and for this purpose to take further appropriate advice.’
The Court then considered what was the standard of skill and care which the plaintiff had the right to expect of the auction house in the discharge of their duties. Each member of the Court emphasised that the defendant was a provincial auction house and not a leading London house. In the leading judgment Slade LJ referred to the analogy with the distinction in the medical world between general practitioners and specialists.
Slade LJ regarded the defendants as akin to ‘general practitioners’ rather than ‘specialists’ and held that the standard of skill and care required of them was to be judged only by reference to what may be expected of a general practitioner. He also warned against assessing the defendant’s behaviour with the benefit of hindsight and set out an important rider: ‘The valuation of pictures of which the artist is unknown, pre-eminently involves an exercise of opinion and judgment, most particularly in deciding whether an attribution to any particular artist should be made. Since it is not an exact science, the judgment in the very nature of things may be fallible, and may turn out to be wrong. Accordingly, provided that the valuer has done his job honestly and with due diligence, I think that the court should be cautious before convicting him of professional negligence merely because he has failed to be the first to spot a ‘sleeper’ or the potentiality of a ‘sleeper’: . . ‘
Slade LJ, Mann LJ, Sir David Croom-Johnson
[1990] 1 WLR 1009
England and Wales
Cited – Thwaytes v Sotheby’s ChD 16-Jan-2015
The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more. . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 October 2022; Ref: scu.648602
[2007] EWCA Civ 340
England and Wales
Updated: 23 October 2022; Ref: scu.251441
The court was asked whether a defendant vendor of shares in a company, who is sued by the purchaser for breach of the warranties in the share sale agreement, can seek a contribution, pursuant to section 1 of the Civil Liability (Contribution) Act 1978, from the purchaser’s investigative accountants on the basis that those accountants are also liable to the purchaser in respect of the same damage as the vendor of the shares.
Lord Justice Longmore
[2001] EWCA Civ 1446, [2002] CP Rep 7, [2002] CLC 144, [2002] PNLR 9, [2002] 1 WLR 642, [2001] CPLR 525, [2001] 2 All ER (Comm) 1050, [2002] Lloyd’s Rep PN 11
England and Wales
Updated: 23 October 2022; Ref: scu.201389
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.’
Lord President Clyde
[1955] SLT 213, [1955] ScotCS CSIH – 2, 1955 SC 200, [1955-95] PNLR 1
England and Wales
Cited – Penney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
Adopted – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Thwaytes v Sotheby’s ChD 16-Jan-2015
The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more. . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2022; Ref: scu.219196
Mr Justice Birss
[2014] EWHC 2149 (Ch)
England and Wales
Updated: 23 October 2022; Ref: scu.533773
[2007] EWCA Civ 387
England and Wales
Updated: 22 October 2022; Ref: scu.251505
May LJ, Dyson LJ, Smith LJ
[2007] EWCA Civ 71, [2007] BLGR 507, [2007] LS Law Medical 254, [2007] PIQR Q3, [2007] 1 WLR 923, (2007) 10 CCL Rep 123
England and Wales
Updated: 22 October 2022; Ref: scu.248394
Longmore J
[2005] EWCA Civ 357
England and Wales
Updated: 22 October 2022; Ref: scu.224080
[2002] EWCA Civ 1406
England and Wales
Updated: 22 October 2022; Ref: scu.178097
Lord Justice Hooper
[2012] EWCA Civ 1212
England and Wales
Updated: 21 October 2022; Ref: scu.464553
Claim for ‘wrongful birth’, limitied to liability only.
Burnett J
[2008] EWHC 2468 (QB)
England and Wales
Updated: 21 October 2022; Ref: scu.277901
Pill LJ, Maurice Kay LJ, Wilson LJ
[2007] EWCA Civ 397
England and Wales
Updated: 19 October 2022; Ref: scu.251527
The claimant’s premises had been destroyed by fire. They sought damages from the designers for negligence.
The Vice-Chancellor Sir Andrew Morritt Lord Justice Buxton Lord Justice Laws
[2003] EWCA Civ 1790
England and Wales
Cited – Blatch v Archer 1774
Lord Mansfield said: ‘It is certainly a maxim that all evidence is to be weighed according to proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’ . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 October 2022; Ref: scu.190083
The claimant claims damages for the consequences of what is alleged to have been negligence in the management of aspects of her mother’s pregnancy and her birth.
[2019] EWHC 2053 (QB), [2019] 7 WLUK 57
England and Wales
Updated: 19 October 2022; Ref: scu.659864
(Gilbraltar) The respondent had made a claim against his former lawyers, the appellants, alleging that he had lost out on a very significant personal injury claim for their failure to issue a writ in time.
Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance
[2007] UKPC 28, [2007] PNLR 27, [2007] Lloyd’s Rep PN 34
England and Wales
Cited – Channon (T/A Channon and Co) v Ward QBD 12-May-2015
The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2022; Ref: scu.251627
A cause of action against a broker in respect of a voidable policy arose when the premium was paid, and not when the policy was avoided.
Times 17-Nov-1997
England and Wales
Updated: 17 October 2022; Ref: scu.82669
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to show that the negligence contributed to the loss. Here, the claimant’s disease had a poor prognosis in any event, and he had not been able to show that any actual damage had been caused. The case fell squarely within Hotson, and the claim failed.
Simon Brown, Mance, Latham LLJ
Times 04-Nov-2002, Gazette 12-Dec-2002, Gazette 19-Dec-2002, [2002] EWCA Civ 1471
England and Wales
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Appealed to – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited) CA 27-Feb-2004
The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a . .
Appeal from – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2022; Ref: scu.177848
The Hon Mr Justice Turner
[2020] EWHC 91 (QB)
England and Wales
Updated: 16 October 2022; Ref: scu.647450
[2008] ScotCS CSOH – 90, 2008 SLT 835, 2009 SCLR 1, 2008 Rep LR 130, [2008] BLR 481, 2008 GWD 27-429, [2008] CSOH 90
Scotland
Updated: 16 October 2022; Ref: scu.431599
The Honourable Mrs Justice Lambert DBE
[2020] EWHC 20 (QB)
England and Wales
Updated: 15 October 2022; Ref: scu.647451
Extra Division – Inner House – the parties agreed that the midwives had been negligent in failing to call quickly enough for medical assistance, and that the child had suffered injury, but disagreed as to whether the failure had contributed to the injury.
Lady Clark of Calton
[2014] ScotCS CSIH – 78
Scotland
Updated: 15 October 2022; Ref: scu.537044
Lord Justice Brooke, Lord Justice Kay, Lord Justice Dyson
[2002] EWCA Civ 1655, [2003] PNLR 14, [2002] NPC 140, [2003] 4 Costs LR 518
England and Wales
Updated: 14 October 2022; Ref: scu.178078
Lord Justice Patten
[2020] EWCA Civ 42
England and Wales
Updated: 14 October 2022; Ref: scu.647008
