Category: Professional Negligence

Fuji Seal Europe Ltd v Catalytic Combustion Corporation: TCC 20 Jul 2005

Claim for damages for alleged negligence and breach of contract in relation to the supply of chemical abatement plant to a printing works in Kent.

Judges:

Jaclson J

Citations:

[2005] EWHC 1659 (TCC), 102 Con LR 47

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence, Construction

Updated: 16 August 2022; Ref: scu.229231

Herrmann and Another v Withers Llp: Admn 30 May 2012

Judges:

Newey J

Citations:

[2012] 4 Costs LR 712, [2012] EWHC 1492 (Ch), [2012] PNLR 28

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 16 August 2022; Ref: scu.459825

Magill v Royal Group of Hospitals and Another: QBNI 28 Jan 2010

Citations:

[2010] NIQB 10

Links:

Bailii

Citing:

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

Northern Ireland, Professional Negligence

Updated: 15 August 2022; Ref: scu.403399

Shaw v London Borough of Redbridge: QBD 16 Feb 2005

Citations:

[2005] EWHC 150 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barber v Somerset County Council HL 1-Apr-2004
A teacher sought damages from his employer after suffering a work related stress breakdown.
Held: The definition of the work expected of him did not justify the demand placed upon him. The employer could have checked up on him during his . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Education

Updated: 15 August 2022; Ref: scu.236695

Nahome and Others v Last Cawthra Feather Solicitors: ChD 29 Jan 2010

The claimants said that the defendant firm of solicitors had acted negligently and in breach of contract in failing to secure the renewal of their business lease. A notice had omitted the word ‘not, and falsely indicated that possession would be granted. Liability having been entered the parties now disputed the damages to be awarded.

Judges:

David Cooke HHJ

Citations:

[2010] EWHC 76 (Ch), [2010] PNLR 19,

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence, Damages

Updated: 13 August 2022; Ref: scu.396452

Flanaghan v University Hospitals Plymouth NHS Trust: QBD 26 Jul 2019

Clinical negligence claim arising out of the treatment afforded to the Claimant at the Hospital, when the Claimant was first seen in May 2008 and then in October 2012 when she underwent spinal surgery at the Hospital following an admission consequent on her having tripped over a hole in the street, fallen and hit her head. Following that surgery, the Claimant is now tetraplegic.

Judges:

HHJ McKenna

Citations:

[2019] EWHC 1898 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 11 August 2022; Ref: scu.641718

Bole and Another v Huntsbuild Ltd: CA 15 Jun 2009

Renewed application for leave to appeal.

Judges:

Waller, Carnwath LJJ

Citations:

[2009] EWCA Civ 770

Links:

Bailii

Statutes:

Defective Premises Act 1972 1

Jurisdiction:

England and Wales

Citing:

Appeal from – Bole and Another v Huntsbuild Ltd and Another TCC 13-Mar-2009
. .

Cited by:

Leave – Bole and Another v Huntsbuild Ltd CA 20-Oct-2009
. .
Lists of cited by and citing cases may be incomplete.

Construction, Professional Negligence

Updated: 11 August 2022; Ref: scu.384116

Bole and Another v Huntsbuild Ltd: CA 20 Oct 2009

Judges:

Pill, Dyson, Longmore LJJ

Citations:

[2009] EWCA Civ 1146

Links:

Bailii

Statutes:

Defective Premises Act 1972 1

Jurisdiction:

England and Wales

Citing:

Appeal from – Bole and Another v Huntsbuild Ltd and Another TCC 13-Mar-2009
. .
Leave – Bole and Another v Huntsbuild Ltd CA 15-Jun-2009
Renewed application for leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Construction

Updated: 11 August 2022; Ref: scu.384117

Parry v Clwyd Health Authority: QBD 1996

The court preferred the more objective approach as to looking at when a plaintiff was to be fixed with knowledge of his injury: ‘If the purpose of section 14(3) is to create deemed or constructive knowledge in circumstances where there is no actual knowledge, it is highly improbable that Parliament intended that the application of that subsection should be qualified by taking into account the very characteristic of the plaintiff by reason of which he failed to appreciate the subsection (1) facts known to him and therefore to acquire actual knowledge. For these reasons it would seem that, as a matter of principle, the criteria relevant for the purpose of applying the reasonableness test under subsection (3) should be exclusively objective.’

Judges:

Colman J

Citations:

[1996] PIQR P1

Statutes:

Limitation Act 1980 14(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Mirza v Birmingham Health Authority QBD 31-Jul-2001
The claimant had undergone heart surgery as an infant in 1976, and claimed damages for professional negligence. The procedure involved a dangerous procedure, a resection of coarctation. As a consequence, the Claimant suffered a number of problems . .
Cited – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Professional Negligence

Updated: 06 August 2022; Ref: scu.183055

Morgan v Perry: QBD 1973

The defendant surveyors had failed to notice cracks and other defects in a property. The plaintiff relied on their report and purchased, and now sought damages.
Held: The defendants had failed to exercise the reasonable care and skill of a prudent surveyor. The damages were to be measured as the difference in value of the property in the condition as described and the condition in fact as at the time of the repport. An expert valuer would have seen the possibility of the substantial subsidence and advised against buying – which gave the house a nil market valuation. The plaintiff could also recover the reasonable costs of discovering the true loss.

Judges:

Jones J

Citations:

(1973) 229 EG 1737

Jurisdiction:

England and Wales

Cited by:

Cited – McKinnon and another v E Survey Ltd (formerly known as GA Valuation and Survey Ltd) ChD 14-Jan-2003
The claimants purchased a house relying upon a survey by the defendants. Although the defendants reported long standing movement of the property, the defendants failed to report that to be saleable, a long investigation would be required, reducing . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 06 August 2022; Ref: scu.182974

Rex Goose v Wilson Sandford and Co (a Firm) (No 2): CA 14 Mar 2000

Judges:

Morritt, Robert Walker LJJ, Sir Ronald Waterhouse

Citations:

[2000] EWCA Civ 73, [2001] Lloyd’s Rep PN 189

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Goose v Wilson Sandford and Co and Mainon CA 13-Feb-1998
A judge was properly criticised for failing to write up a judgment when the witness’ evidence was still fresh in his mind. A two year delay required a re-trial.
Peter Gibson LJ explained the potential effect of delay on the formulation and . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 06 August 2022; Ref: scu.147106

Gregory v Shepherds: ChD 17 Feb 1999

An English solicitor, employing a lawyer in another jurisdiction to purchase land for a client, was not himself negligent, for a failure of that foreign lawyer. The lawyer was not employed as a kind of sub-contractor.

Citations:

Gazette 17-Feb-1999, Gazette 24-Feb-1999

Jurisdiction:

England and Wales

Cited by:

Appeal from – Gregory v Shepherds CA 13-Jul-2000
An English solicitor, employing a lawyer in another jurisdiction to purchase land for a client was not himself negligent for a failure of that foreign lawyer. The lawyer was not employed as a kind of sub-contractor. Nevertheless the solicitor was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 06 August 2022; Ref: scu.81025

Hooper v Fynmores: ChD 21 Jun 2001

The elderly testator had wanted to make a new will which would have increased the claimant’s share of his estate by one eighth. The appointment to sign the will was cancelled when the solicitor was himself hospitalised, and the testator died before the second appointment. The solicitors appealed on the basis that the finding against them effectively imposed a higher duty to the beneficiary than would have been due to the testator.
Held: The appeal was dismissed. In undertaking to prepare a will, the solicitor entered into a special relationship with the beneficiaries, an incident of which was a duty to them to act with due expedition and care. The proposed appointment should not have been cancelled without enquiry as to the testator’s health and considering whether to send a substitute. It should not have been missed without the client’s consent.

Citations:

Gazette 21-Jun-2001, Times 19-Jul-2001

Jurisdiction:

England and Wales

Professional Negligence, Wills and Probate, Legal Professions

Updated: 06 August 2022; Ref: scu.81463

Green v Hancocks (A Firm) and Another: ChD 15 Aug 2000

Whether a party had the appropriate standing to commence an action against another was something which should be within the normal competence expected of a solicitor. It would be wrong to transfer the responsibility for an error as to such capacity to counsel who had not expressly requested to advise on the issue.

Citations:

Times 15-Aug-2000

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 06 August 2022; Ref: scu.81004

Hemmens v Wilson Browne (A Firm): ChD 30 Jun 1993

A solicitor was not liable in negligence, where his mistake might be yet be rectified; this was an inter vivos transaction and the parties could still resolve the position. Though a solicitor had a duty to the beneficiary of a settlement, the settlor could still perfect the deed.

Judges:

Judge Moseley QC

Citations:

Gazette 08-Dec-1993, Times 30-Jun-1993, [1993] 4 All ER 826

Jurisdiction:

England and Wales

Cited by:

Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 05 August 2022; Ref: scu.81313

Guild (Claims) Ltd v Eversheds (A Firm) and Others: ChD 16 Aug 2000

A professional adviser’s duty not to stand by while a client makes a statement he knows to be false does not extend to the offering of unsought advice as to the wisdom of an act or omission which fell short of such a misleading act. When the advice of a professional was challenged, the standard by which it came to be judged was whether he acted in accordance with practice accepted by a responsible body of skilled practitioners at the time.

Citations:

Times 16-Aug-2000

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 05 August 2022; Ref: scu.81078

Carradine Properties Ltd v DJ Freeman and Co: CA 1982

(From 1982) It was alleged that solicitors should have asked their property company client whether it had public liability insurance which would have covered the company’s liability for damage caused by its demolition contractors to a third party.
Held: The solicitors had not been negligent. The judges did not speak with one voice as to the extent that a solicitor may owe duties to his client beyond the terms of his express retainer. Each judge however based his decision on the fact that the solicitors were entitled to assume that their experienced client would have told them if they had insurance; it was not for the solicitors to ask.

Judges:

Lord Denning MR, Eveleigh and Donaldson LJJ

Citations:

[1999] Lloyds Law Rep. P N 483

Jurisdiction:

England and Wales

Cited by:

Cited – John Mowlem Construction Plc v Neil F Jones and Co CA 1-Jul-2004
The defendant’s solicitors were alleged to have failed to advise their clients when an issue was raised, to notify their professional negligence insurers, with the result that the insurers had been able to repudiate liability.
Held: In the . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 05 August 2022; Ref: scu.198485

Luke v Kingsley Smith and Company and Others: QBD 23 Jun 2003

The claimant sued various of those who had represented him in a claim against the Ministry of Defence. He believed that he had had to accept an inadequate sum in settlement after being at risk of losing the claim for non-prosecution. The defendant solicitors sought contribution from the solicitors who had taken over the case and from counsel.
Held: The question was: ‘when did the loss of the right to proceed further with the action occur?’ It was wrong to say on behalf of the second and subsequent lawyers that the action had already been lost by the time they assumed responsibility. All three defendants may have contributed to the loss. There had been only one loss and: ‘one damage; that is, the loss of the chance to pursue the action successfully to trial; and that that loss was occasioned by the combined effect of the torts of Kingsley Smith and of Wansbroughs and Miss Addy.’

Judges:

Davis J

Citations:

[2003] EWHC 1559 (QB), [2007] Lloyd’s Rep PN 29

Links:

Bailii

Statutes:

Civil Liability (Contribution) Act 1978 1(1)

Citing:

Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
Cited – Royal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
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 . .
Cited – Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust CA 16-Jul-2001
The claimant had suffered polio almost all her life. She fell, and was recommended to wear a calliper. She refused. Ultimately, an amputation was advised and in due course her leg was amputated above the knee by surgical operation. She commenced . .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 28 July 2022; Ref: scu.347394

Hilton v Barker Booth and Eastwood: HL 3 Feb 2005

The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and also that the solicitor had himself leant the deposit in the transaction to his other client. The claimant sought damages when the other client proved a man of straw.
Held: If a solicitor accepted conflicting duties, he had a duty to fulfil them both, and could not prefer the interests of one client over another. The fact of the conviction was not as such confidential, but the solicitors had a duty to further the interests of that client which would require them not to volunteer the information.
Lord Walker of Gestingthorpe said: ‘A solicitor’s duty to his client is primarily contractual and its scope depends on the express and implied terms of his retainer . . The relationship between a solicitor and his client is one in which the client reposes trust and confidence in the solicitor. It is a fiduciary relationship . . A solicitor’s duty of single-minded loyalty to his client’s interest, and his duty to respect his client’s confidences, do have their roots in the fiduciary nature of the solicitor-client relationship. But they may have to be moulded and informed by the terms of the contractual relationship.’ The Appeal court was wrong to distinguish Moody v Cox, and the appeal succeeded: ‘it is now 15 years since Mr Hilton suffered a grievous wrong for which he has not been compensated. For the good name of the solicitors’ profession his compensation should be agreed, on a generous scale, without further delay.’

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood

Citations:

[2005] UKHL 8, Times 04-Feb-2005, [2005] 1 WLR 567, [2005] 1 All ER 651, [2007] Lloyds Rep PN 1

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Moody v Cox and Hatt CA 1917
An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of . .
Appeal from – Hilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
Cited – Hospital Products Ltd v United States Surgical Corporation 25-Oct-1984
High Court of Australia – A solicitor’s duty of loyalty to his client’s interest, and his duty to respect his client’s confidences, have their roots in the fiduciary nature of the solicitor-client relationship, but may have to be moulded and . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Kelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
Cited – Farrington v Rowe McBride and Partners 1985
(New Zealand) When a solicitor acts for two clients and there is a conflict in his responsibilities, the solicitor must ensure that he fully discloses the material facts to both clients and obtains their informed consent to his so acting. There may . .
Cited – Clark Boyce v Mouat PC 4-Oct-1993
(New Zealand) No duty of wisdom is owed to client in full command of his faculties by a lawyer. If the client requires only action from his lawyer, that is what is required. Informed consent can be sufficient to allow a solicitor to act for two . .
Cited – Mortgage Express Ltd v Bowerman and Partners (A Firm) CA 1-Aug-1995
A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in . .

Cited by:

Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – Quinn Direct Insurance Ltd v The Law Society of England and Wales CA 14-Jul-2010
Q had provided professional indemnity insurance to a firm of solicitors in which the Law Society had intervened. Claims were made against the firm, but Q declined to pay, saying that the apparently fraudulent activities of the firm fell outside the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Professional Negligence

Updated: 26 July 2022; Ref: scu.222204

Land and others v the Executive Counsel of the Joint Disciplinary Scheme: QBD 15 Oct 2002

The applicants were partners and staff in Ernst and Young. They sought a stay of disciplinary proceedings brought against them by the accountancy regulators pending resolution of the civil claim against them in respect of closely related issues involving the Equitable Life insurance company.
Held: There was at this stage no sufficient burden imposed on the defendants to amount to an unfairness. It was not to be presumed that documents produced for the disciplinary proceedings would prejudice the litigation.

Judges:

Mr Justice Stanley Burton

Citations:

[2002] EWHC 2086 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Institute of Chartered Accounts and Others, Ex Parte Brindle and Others CA 12-Jan-1994
The Bank’s liquidator action was to be concluded before a disciplinary enquiry, and the enquiry should be stayed accordingly. . .
Cited – Regina v Chance, ex parte Smith QBD 1995
The applicant sought to delay disciplinary proceedings by the accountancy body pending the outcome of civil litigation over a related matter.
Held: ‘ . . as Parliament has entrusted the initial valuation of the case against the applicants to . .
Adopted – Regina v Executive Counsel of the JDS, ex parte Hipps ChD 1996
The court considered the law as to whether disciplinary procedings should be stayed pending the outcome of civil proceedings.
Held: The court was not reviewing the decision not to adjourn the proceedings, but exercising an original . .
Cited – Huddersfield Police Authority v Watson 1947
A judge of the High Court should respect (but is not bound to follow) a decision of another judge of the High Court, but must follow decisions of the Court of Appeal and the House of Lords. . .
Cited – Thames Launches v Trinity House 1961
. .
Cited – Conteh v Onslow Fane and another CA 26-Jun-1975
Mr Conteh, a boxer, was accused of misconduct in breaking his contracts with his former manager and former promoter, and the High Court proceedings had been brought by him for declarations that these contracts were not binding on him. It was . .
Cited – Regina v Manchester Coroner, ex parte Tal 1985
The court asked whether the Divisional Court was bound by previous decisions of that court, and answered: ‘we find it difficult to imagine that a single judge exercising this (supervisory) jurisdiction (of the High Court) would ever depart from a . .
Cited – Regina v Panel on Take-overs and Mergers, ex parte Fayed CA 1992
This was a renewed application for leave to apply for judicial review of decisions of the Panel not to adjourn its disciplinary proceedings against Mr Fayed. . .
Cited – Regina v Panel on Takeovers and Mergers ex parte Guinness Plc CA 1989
The court asked about the standard of decision making at which a court could intervene: ‘Irrationality, at least in the sense of failing to take account of relevant factors or taking account of irrelevant factors, is a difficult concept in the . .
Lists of cited by and citing cases may be incomplete.

Administrative, Professional Negligence

Updated: 25 July 2022; Ref: scu.178413

Rind v Theodore Goddard (A Firm) and others: ChD 11 Mar 2008

Judges:

Morgan J

Citations:

[2008] EWHC 459 (Ch), [2008] Lloyd’s Rep PN 10

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Clarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 25 July 2022; Ref: scu.304547

Gold v Mincoff Science and Gold: ChD 18 Jan 2001

A sleeping partner in a business executed several charges over partnership property, unaware that the funds raised were being used for purposes other than the partnership business. Their solicitors admitted negligence in not advising them sufficiently closely as to the effect of the all monies nature of the charges. A claim was brought to recover money, but then enlarged when the creditor appreciated the extent of the all monies charge. The claimant sought damages for negligence from the solicitor.
Held: The limitation defence succeeded only in part. Where the solicitor had chosen to hide the effect of the clause from his client on signing later charges, liability arising under earlier charges continued.

Judges:

Neuberger J

Citations:

Gazette 18-Jan-2001

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Appeal From – Gold v Mincoff Science and Gold (A Firm) CA 19-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Land, Limitation

Updated: 25 July 2022; Ref: scu.80896

Howkins and Harrison (A Firm) v Tyler and Another: ChD 9 Mar 2000

Having paid out pounds 400,000 to a lender as damages for a negligent survey valuation after default in repayments by the defendant, the claimant sought to recover the payment from the defendant under the Act. The application was refused. The Act could only operate for a claim for the same damage. What was lost by the lender from the default was not the same. Compensation was not the same as recovery of a debt, and the claimant could not claim a subrogation for the lender.

Citations:

Gazette 09-Mar-2000

Statutes:

Civil Liability (Contributions) Act 1978 1(1)

Jurisdiction:

England and Wales

Citing:

Appealed to – Howkins and Harrison (A Firm) v Tyler and Another CA 3-Aug-2000
Having paid out andpound;400,000 to a lender as damages for a negligent survey valuation after default in repayments by the defendant, the claimant also sought to recover the payment from the defendant under the Act. The application to stay the . .

Cited by:

Cited – Royal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
Appeal from – Howkins and Harrison (A Firm) v Tyler and Another CA 3-Aug-2000
Having paid out andpound;400,000 to a lender as damages for a negligent survey valuation after default in repayments by the defendant, the claimant also sought to recover the payment from the defendant under the Act. The application to stay the . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 25 July 2022; Ref: scu.81503

Hicks v Russell Jones and Walker (A Firm): ChD 27 Apr 2007

The claimants sought to pursue an action in negligence against their solicitors saying that they had conducted another case negligently, and thereby they had lost their chance in the action, on the basis that the hotel at the centre of the action had a value attributed of ten million pounds when it should have been eighteen million.
Held: The defendant lawyer should have taken the time to obtain leading counsel’s advice. As a relatively inexperienced solicitor he was not given the support he needed from senior staff. The claimant’s case was made out to that extent, but even had advice been taken, the result would have been the same: ‘Such advice would not have been negligent, even if with the benefit of hindsight it may appear to have been mistaken, and RJW could not have been criticised for following it. I am therefore unable to see any basis for saying that RJW were themselves in breach of duty by failing to prepare such evidence in reply, or failing to obtain a further valuation. The case succeeds in part on liability, but fails on causation. ‘

Judges:

Henderson J

Citations:

[2007] EWHC 940 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 25 July 2022; Ref: scu.251539

Harris v Bolt Burdon (A Firm): CA 2 Feb 2000

A case is suitable for striking out which raises an unwinnable case, where continuance of the proceedings is without any possible benefit and would waste resources on both sides.

Citations:

[2000] EWCA Civ 3037, [2000] CP Rep 70, [2000] CPLR 9

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence, Litigation Practice

Updated: 24 July 2022; Ref: scu.342142

Large v Hart and Another: CA 15 Jan 2021

Whether, on the particular facts of this surveyor’s negligence case, the judge was right to assess the diminution in value in a way which rendered the appellant surveyor liable for many of the financial consequences of the respondents’ decision to purchase the property.

Citations:

[2021] EWCA Civ 24

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 23 July 2022; Ref: scu.657294

Baxter v Gapp (FW) and Co Ltd: CA 1939

Where there would have been no transaction (loan) but for the valuers’ negligence, it was held that the plaintiff was entitled to recover the actual loss suffered, rather than the difference between the real value of the property at the date of valuation and the amount of the valuation. No issue of novus actus interveniens arose in Baxter.
du Parcq LJ said: ‘It is of course quite clear that the mere fact that there is an over evaluation does not of itself show negligence … Gross over valuation, unless explained may be strong evidence either of negligence or of incompetence. I have no doubt that there was in this case gross over valuation, and one looks to see whether or not there is any explanation of it, and whether it can be seen that the defendant has failed to take any steps which he ought to have taken or to pay regard to matters to which he ought to have paid regard.’

Judges:

MacKinnon LJ, du Parcq LJ

Citations:

[1939] 2 KB 271, [1939] 2 All ER 752

Jurisdiction:

England and Wales

Cited by:

Not Followed – Swingcastle Ltd v Alastair Gibson HL 1991
A lender made a claim against a surveyor after a negligent survey. the lender would have made no loan at all, there would have been no transaction, if it had known the true position. At first instance and in the Court of Appeal the Claimant’s loss . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 23 July 2022; Ref: scu.640550

Portman Building Society v Bevan Ashford (a firm): CA 2000

The lender alleged negligence in the defendant solicitors.
Held: Otton LJ, delivering the leading judgment, declined to ask himself whether the scope of the solicitor’s duty extended to the lender’s decision or only to the material which the solicitor contributed to that decision, because in his view the distinction was irrelevant in a case where the facts withheld were sufficiently grave. He put the point in this way: ‘where a negligent solicitor fails to provide information which shows that the transaction is not viable or which tends to reveal an actual or potential fraud on the part of the borrowers, the lender is entitled to recover the whole of his loss. In other words, the whole of the loss suffered by the lender is within the scope of the solicitor’s duty and is properly recoverable.’

Judges:

Otton LJ

Citations:

[2000] PNLR 344

Jurisdiction:

England and Wales

Cited by:

Criticised – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 23 July 2022; Ref: scu.640552

Swingcastle Ltd v Alastair Gibson: HL 1991

A lender made a claim against a surveyor after a negligent survey. the lender would have made no loan at all, there would have been no transaction, if it had known the true position. At first instance and in the Court of Appeal the Claimant’s loss was held to include the contractual interest it would have earned from the transaction mainly on the basis that it was bound by the Court of Appeal decision in Baxter v Gapp [1939] 2 KB 271.
Held: This was incorrect. Lord Lowry analysed the decision in Baxter v Gapp, and continued: ‘The approach of the valuer in this case and the analysis of Neill LJ . . seem to me to be correct. What the lenders lost, in addition to their other damages, was the use of the pounds 10,000 while it was perforce locked up in the loan. I say ‘perforce’ because I do not overlook the duty of the injured party to mitigate his loss or the fact that, once the borrowers had well and truly defaulted, the lenders had access to their remedy and thereby to their money.
There is, as Neill L.J. perceived, no cut and dried solution to calculating the amount of damages in cases of this kind. It depends on the evidence.
After considering the figures in relation to the loan and realisation, he continued: ‘In the absence of any evidence as to how the lenders financed the loan or evidence showing how the money, if not lent to the borrowers, could have been profitably employed, I consider that 12 per cent interest, which would correspond to the 9 per cent. allowed by Ralph Gibson J. in Corisand Investments Ltd. v. Druce and Co., 248 E.G. 315, is the proper rate at which to recompense the lenders for being deprived of their pounds 10,000. The actual time was two years, which would yield a result of pounds 2,400, but one may ask whether it was reasonable for the tortfeasor to bear the liability up to the date of sale in February 1987, possession of the property having been surrendered on 30 June 1986. Moreover, it is not clear how a calculation of damages would be affected by the incidence of tax or whether this is a case in which it would have been reasonable for the court to contemplate partial recovery by the lenders against the borrowers: see London and South of England Building Society v. Stone [1983] 1 WLR 1242.
It was for the lenders to furnish the evidence by which to prove their case on the correct basis.

Judges:

Lord Lowry

Citations:

[1991] 2 All ER 353, [1991] 2 WLR 1091

Jurisdiction:

England and Wales

Citing:

Not Followed – Baxter v Gapp (FW) and Co Ltd CA 1939
Where there would have been no transaction (loan) but for the valuers’ negligence, it was held that the plaintiff was entitled to recover the actual loss suffered, rather than the difference between the real value of the property at the date of . .

Cited by:

Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 23 July 2022; Ref: scu.640549

Gabriel v Little and Others: CA 22 Nov 2013

The claimant sought repayment of sums loaned to the defendant by them under a facility letter supported by a legal charge. The charge had been enforced but the sums realised had been insufficient.

Judges:

Maurice Kay LJ VP, Gloster, Fulford LJJ

Citations:

[2013] EWCA Civ 1513, 16 ITELR 567

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – BPE Solicitors and Another v Gabriel SC 17-Jun-2015
Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued . .
Appeal from – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Contract, Professional Negligence

Updated: 22 July 2022; Ref: scu.518395

Haugesund Kommune and Another v Depfa ACS Bank and Another: CA 28 Jan 2011

Lawyers had negligently advised that a Norwegian local authority had legal capacity to enter into a loan agreement, when it did not. A local authority’s legal capacity to borrow might fairly be thought fundamental to any decision to lend it money, and the evidence was that but for the lawyer’s advice the bank would not have lent. But under Norwegian law the debt would not have been enforceable against the assets of the authority even if legal capacity had existed, making the debt in effect one of honour only.
Held: It was an ‘information’ case, because legal capacity was only one factor in a wider assessment of whether to lend the money, with which the lawyers were not concerned.
Rix LJ said: ‘It is of course true that Depfa would not have entered into the transactions at all unless it could be advised that the contracts were valid and within the kommunes’ capacity. In effect, that causal connection between advice and loss goes without saying in all such cases. It is not in itself the reason for finding that the scope of duty concerned embraces all the loss consequential upon entering into the transaction concerned. For these reasons it does not seem to me that it is a sufficient explanation for characterising a case as a category 2 [sc ‘advice’] case to say that, without the forthcoming albeit negligent advice, the transaction concerned would not have been ‘viable’. That is simply another way of saying that, if the claimant had not received the advice it did, it would not have entered into the transaction.’

Judges:

Rix, Gross LJJ, Peter Smith J

Citations:

[2011] EWCA Civ 33, [2011] PNLR 14, 134 Con LR 51, [2011] 1 CLC 166, [2011] 3 All ER 655, [2012] Bus LR 230, [2012] 1 All ER (Comm) 65

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 22 July 2022; Ref: scu.428310

Gordon, Marquess of Aberdeen and Temair v Messrs Turcan Connell: SCS 23 Dec 2008

The pursuer sought damages in professional negligence saying that the defender solicitors had failed to advise them properly in the management of the family trusts so as to minimise the liability to tax.

Judges:

Lady Smith

Citations:

[2008] ScotCS CSOH – 183

Links:

Bailii

Scotland, Professional Negligence

Updated: 22 July 2022; Ref: scu.279820

Jemma Trust Company Limited v Kippax Beaumont Lewis and others: ChD 1 Apr 2004

Judges:

Mr Justice Evans-Lombe

Citations:

[2004] EWHC 703 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .

Cited by:

Appeal from – Jemma Trust Company Ltd v Kippax Beaumont Lewis (A Firm) and others CA 11-Mar-2005
The defendant firm of solicitors, acting as executors had sought to arrange matters to minimise Inheritance Tax. A deed of variation was put in place after approval by the court, but the CTO interpreted the deed differently. The executors believed . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence

Updated: 21 July 2022; Ref: scu.195028

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 the permission of his employer to do so. A consultant in that situation must either decline the work, advise the client to obtain expert advice for that particular part of the work or engage an expert itself whilst retaining all responsibility to the client.

Judges:

Sir Walker Carter OR

Citations:

[1966] 2 Lloyds Rep 338, (1966) 4 BLR 50

Jurisdiction:

England and Wales

Cited by:

Cited – Bellefield Computer Services and others v E Turner and Sons Limited and others CA 18-Dec-2002
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 . .
Lists of cited by and citing cases may be incomplete.

Construction, Professional Negligence

Updated: 21 July 2022; Ref: scu.185194

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 satisfactory excess of loss protection.
Held: The appeal failed. The case of SAAMCo did not affect the existing rule. The brokers had a duty to inform the insured of any limitation on the cover obtained. They were liable for failing to advise the company of the unavailability of the re-insurance on the market, and were therefore reliable for the entire loss accepted. It was an ‘advice’ case. This had the ironic consequence that although the claimant had apparently been content to assume an exposure of $35m on the reinsurance with protection by way of retrocession for only $11m, they recovered the whole $35m as damages, two thirds of which they would have suffered even if the retrocession had been effective. The broker’s responsibility was found to extend beyond the placing of the retrocession to the entire transaction including the writing of the reinsurance itself. In particular, his duty was found to include reporting to the reinsurer the market’s highly adverse assessment of the reinsured risk.

Judges:

Lord Slynn of Hadley Lord Browne-Wilkinson Lord Lloyd of Berwick Lord Steyn Lord Millett

Citations:

[2001] UKHL 51, [2002] 1 Lloyd’s Rep 157, [2002] CLC 181, [2002] Lloyds Rep IR 91, [2002] 1 LLR 157, [2002] PNLR 8, 2001] 2 All ER (Comm) 929, [2002] Lloyd’s Rep IR 91

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Youell v Bland Welch and Co Ltd (‘The Superhulls Cover-Case) (No 2) QBD 1990
In estoppel it is necessary for there to have been an unequivocal representation of fact by words or conduct: ‘A party can represent that he will not enforce a specific legal right by words or conduct. He can say so expressly – this of course he can . .
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 . .
See Also – Aneco Reinsurance Underwriting Ltd (In Liquidation) v Johnson and Higgins CA 14-Nov-1997
Claims against insurance brokers for negligence are to be heard at the same time as a claim with regard to repudiation of liability; need for notes of arrangements. . .
Appeal from – Aneco Reinsurance Underwriting Limited (In Liquidation) v Johnson and Higgins Limited CA 30-Jul-1999
. .

Cited by:

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 . .
Limited to the particular facts – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Insurance, Professional Negligence, Damages

Updated: 21 July 2022; Ref: scu.166629

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

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

Judges:

Sir Thomas Bingham MR

Citations:

Times 24-Feb-1995, Gazette 22-Mar-1995, Times 21-Feb-1995, [1995] QB 375, [1995] 2 All ER 769

Jurisdiction:

England and Wales

Citing:

Appeal from – Banque Bruxelles Lambert Sa v Eagle Star Ins Co Ltd and Others QBD 7-Mar-1994
A negligent valuer was liable for the loss arising from an overvaluation, but the valuer was not liable for that proportion of the lender’s loss on the loan which was attributable to the fall in the market after the valuation date, even though (i) . .

Cited by:

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 . .
Cited – Paterson and Another v Humberside County Council QBD 19-Apr-1995
A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
Cited – Helmsley Acceptances Ltd v Hampton CA 11-Mar-2010
The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 21 July 2022; Ref: scu.78174

Aneco Reinsurance Underwriting Ltd (In Liquidation) v Johnson and Higgins: CA 14 Nov 1997

Claims against insurance brokers for negligence are to be heard at the same time as a claim with regard to repudiation of liability; need for notes of arrangements.

Citations:

Times 14-Nov-1997

Jurisdiction:

England and Wales

Cited by:

See Also – Aneco Reinsurance Underwriting Limited (In Liquidation) v Johnson and Higgins Limited CA 30-Jul-1999
. .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Insurance, Professional Negligence

Updated: 21 July 2022; Ref: scu.77797

Wootton v J Docter Ltd and Another: CA 19 Dec 2008

The claimant sought damages saying that the contraceptive pill dispensed by the defendant was not the one prescribed by her doctor, and that she had become pregnant and suffered the losses claimed namely care, expenses and loss of earnings flowing from the pregnancy and a period of post-natal psychosis. She appealed against rejection of her expert’s evidence suggesting an increased risk of pregnancy from the alternately supplied drug.
Held: The Court had ample evidence on which to base its rejection of the expert evidence that the drug dispensed was less effective.

Judges:

Waller LJ, Moses LJ, Hallett LJ

Citations:

[2008] EWCA Civ 1361

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – Sanderson v Hull CA 5-Nov-2008
Insufficient proof of cause of infection
The claimant worked as a turkey plucker. She caught an infection (campylobacter enteritis) at work, and the employer now appealed against a finding of liability. The employer said that the only necessary protection was regular washing of hands. The . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – Clough v First Choice Holidays and Flights Ltd CA 25-Jan-2006
The appellant broke his neck slipping from a wall in a swimming pool in Lanzarote. The wall was not coated with fully non-slip paint. At first instance the failure to use such paint was held negligent for the purpose of the contract between them and . .
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 . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Professional Negligence

Updated: 21 July 2022; Ref: scu.278985

Vancouver General Hospital v McDaniel: PC 27 Jul 1934

British Columbia A hospital owes a duty to establish adequate procedures to safeguard patients from cross-infection. Howeber it was a good defence to show that the defendants had acted in accordance with a general practice.
Lord Alness said: ‘A defendant charged with negligence can clear [himself] if he shows that he has acted in accord with a general and approved practice.’

Judges:

Lord Alness

Citations:

[1934] 56 LT 56, [1934] UKPC 60

Links:

Bailii

Cited by:

Cited – Bralsford v Conoco Ltd CA 14-Feb-1997
The employers appealed against a finding of negligence causing the plaintiff personal injury. The plaintiff lorry driver for the defendants, had his boot lace caught as he was on top of the tanker. He fell, but was left suspended. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Commonwealth

Updated: 19 July 2022; Ref: scu.277722

Dhillon and Another v Siddiqui and others: ChD 13 Aug 2008

Claim to recover damages for financial losses which were said to have been suffered as the result of various breaches of duty on the part of one or more of the defendant accountants

Judges:

Bernard Livesey QC

Citations:

[2008] EWHC 2020 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 19 July 2022; Ref: scu.277329

Halifax Plc and Another v Curry Popeck (A Firm) and Another: ChD 18 Jun 2008

This case concerns how the loss should fall on innocent victims of mortgage frauds practised by Tracy and John Whale (otherwise known as John Sinclair) with the assistance of an apparently incompetent or fraudulent conveyancing clerk employed by Messrs Curry Popeck and then later by Messrs Pulvers. The exercise is necessary so that those suffering loss may pursue professional negligence claims or enforce the respective firms’ vicarious liability for the fraud of their employee, which claims have yet to be adjudicated upon.’
Held: On the registration of a registrable disposition, equitable interests binding the disponer do not bind the disponee as interests in land, even if the disponee was a party to the creation of those interests

Judges:

Norris J

Citations:

[2008] EWHC 1692 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Professional Negligence, Registered Land

Updated: 19 July 2022; Ref: scu.277328

Merrett v John RH Babb: CA 15 Feb 2001

The applicant had been employed as a surveyor by a firm which had subsequently become insolvent. The firm’s run off professional indemnity insurance had lapsed. He had provided the negligent survey, and he was sued in person.
Held: He was personally liable. The case of Smith v Bush suggested that he was responsible, and subsequent glosses on that case had not changed the fundamentals. He was liable even though the buyers had not seen his report for the lender.
May LJ said: ‘If the damage is what has been characterised as foreseeable economic loss, there may be a problem, the more so if what causes the loss is the giving of advice or the providing of information. In such cases especially – but, I think, in every case – reliance is an intrinsically necessary ingredient which appears in every formulation of a test.’

Judges:

May LJ, Aldous LJ, Wilson J

Citations:

Gazette 29-Mar-2001, Times 02-Mar-2001, [2001] EWCA Civ 214, [2001] QB 1174, (2001) EGCS 20, [2001] 3 WLR 1

Links:

Bailii

Statutes:

Building Societies Act 1986 13

Jurisdiction:

England and Wales

Citing:

Cited – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
Cited – Smith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .

Cited by:

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 – Jane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 19 July 2022; Ref: scu.135570

Mortgage Express v Hafeez: 2011

The claimant advanced money for the purchase of various properties. These were paid by the defendant solicitors (acting for the claimant) to the account of ‘McGraths’ which the defendant thought was a firm of solicitors, and against undertakings given by ‘McGraths’ for completion of the purchase transactions. In fact the whole transaction was a fraud, the owners of the properties had never agreed to sell them, there was no such firm as McGraths, the undertakings were therefore not undertakings by a solicitor and had no value. It was common ground that the solicitors had been obliged to hold the funds until ‘completion’ of the transaction.
Held: The Court considered the two cases put by the claimant, the primary case being that insofar as ‘completion’ of a transaction involved accepting a solicitor’s undertaking, it must be truly an undertaking given by a solicitor.
Alternatively, it was said, it must be from someone who is reasonably and honestly believed to be a solicitor. The defendant accepted the second proposition, and the judge, as I read his decision, founded it mainly on his finding that the solicitor had no reasonable grounds for believing that ‘McGraths’ were a firm of solicitors. He dealt briefly with the primary case however, saying that if necessary he would have accepted that only a genuine solicitor’s undertaking would suffice.

Judges:

John Randall QC J

Citations:

[2011] EWHC 3037 (Ch)

Jurisdiction:

England and Wales

Cited by:

Cited – UCB Loans v Grace and others 2011
The solicitors paid out the mortgage advance without having received a mortgage document executed by the borrower at all. It was conceded that such payment was made without authority.
Held: The solicitors had acted in breach of trust. No . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 19 July 2022; Ref: scu.450475

UCB Loans v Grace and others: 2011

The solicitors paid out the mortgage advance without having received a mortgage document executed by the borrower at all. It was conceded that such payment was made without authority.
Held: The solicitors had acted in breach of trust. No charge was ever executed, and so the solicitors were not saved from the obligation to reconstitute the trust by the later completion of the transaction, as had been envisaged in Target.

Citations:

[2011] EWHC 851 (Ch)

Jurisdiction:

England and Wales

Citing:

Cited – Mortgage Express v Hafeez 2011
The claimant advanced money for the purchase of various properties. These were paid by the defendant solicitors (acting for the claimant) to the account of ‘McGraths’ which the defendant thought was a firm of solicitors, and against undertakings . .
Cited – Knight and Another v Haynes Duffell, Kentish and Co (A Firm) CA 14-Feb-2003
Solicitors had allowed the claimants’ cause of action against their original solicitors to become time barred. One issue now was whether the trial judge was right to find that the original solicitors had improperly paid out monies held on client . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 19 July 2022; Ref: scu.450474

Kent v Griffiths and others: CA 3 Feb 2000

A doctor attended the home of a patient suffering from an asthma attack and called for an ambulance to take her immediately to hospital. The control replied ‘Okay doctor.’ After 13 minutes the ambulance had not arrived and the patient’s husband made a further call. He was told that an ambulance was well on the way and should arrive in seven or eight minutes. For unexplained reasons it did not arrive until 40 minutes after the first call. The patient suffered a respiratory arrest which would have been prevented if the ambulance had arrived in a reasonable time. The patient’s doctor gave evidence that if she had been told that it would take the ambulance service 40 minutes to come, she would have advised the patient’s husband to drive her to hospital and would have gone with them.
Held: The defendant owed a duty of care to the claimant. The ambulance service, as part of the health service, should be regarded as providing services equivalent to those provided by hospitals, and not as providing services equivalent to those rendered by the police and fire services. Accordingly, the staff of the ambulance service owed a similar duty of care to that owed by doctors and nurses operating in the health service.

Judges:

Lord Woolf MR

Citations:

[2000] EWCA Civ 3017, [2000] 2 WLR 1158, [2000] 2 All ER 474, [2001] QB 36, [2000] PIQR P57, [2000] Lloyd’s Rep Med 109

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

To be confined to its facts – Alexandrou v Oxford (Chief Constable of the Merseyside Police) CA 16-Feb-1990
A shop was burgled. The shop-owner blamed the police for their negligent investigation.
Held: The police were not liable in negligence. . .
See Also – Kent v Dr Griffiths, Dr Roberts, London Ambulance Service CA 11-Dec-1998
Though there is no duty at large to help someone in need of urgent assistance, an ambulance service, by accepting a 999 call, may have accepted a duty to the caller. It remained open to argue as to whether it was fair just and reasonable to impose . .
Appeal from – Kent v Doctor Griffiths, Doctor Roberts, The London Ambulance Service QBD 16-Jul-1999
The claimant suffered a respiratory arrest after an emergency ambulance called by the first defendant, did not arrive for 40 minutes.
Held: the ambulance service was negligenct and liable. The acceptance of the doctor’s request for an . .

Cited by:

Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury, Health Professions

Updated: 19 July 2022; Ref: scu.276303

Beech v Timney and Another: QBD 29 Jul 2013

Allegation of clinical negligence against the defendants.
Held: ‘What happened to Joseph Beech on 6 November 2003 was a personal catastrophe for him and a tragedy for his family. His life and their lives were changed forever. In these circumstances, it is impossible not to feel the utmost sympathy for his plight and to empathise with the emotional impact it has had upon his relatives and close friends.
Sadly, however, in this case, it is not possible to mitigate the consequences of this disaster with an award of damages. The evidence simply did not demonstrate that a causative act of negligence lay behind the terrible brain haemorrhage he suffered nearly ten years ago. This claim must, therefore, be dismissed.’

Judges:

Turner J

Citations:

[2013] EWHC 2226 (Admin), [2013] EWHC 2345 (QB)

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 18 July 2022; Ref: scu.513772

Bole and Another v Huntsbuild Ltd and Another: TCC 13 Mar 2009

Judges:

Toulmin QC HHJ

Citations:

[2009] EWHC 483 (TCC), 124 Con LR 1, [2009] CILL 2697

Links:

Bailii

Statutes:

Defective Premises Act 1972 1

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bole and Another v Huntsbuild Ltd CA 15-Jun-2009
Renewed application for leave to appeal. . .
Appeal from – Bole and Another v Huntsbuild Ltd CA 20-Oct-2009
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Construction

Updated: 18 July 2022; Ref: scu.317991

Bailey v The Ministry of Defence and Another: CA 29 Jul 2008

The claimant had suffered brain damage following cardiac arrest after inhaling vomit. She had inhaled her vomit because she was in a very weakened state. Two causes had contributed to her weakness, one tortious, the other not. The judge below held that the tortious cause had made a material contribution to the weakness and the claimant succeeded in full. The employer appealed.
Held: The appeal failed. It was not possible to say with any confidence whether, without the tortious contribution, the claimant would have been so weak as to inhale her vomit. It was not suggested either in this court or below that the damages should be apportioned.
Waller LJ said: ‘I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that ‘but for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed.’

Judges:

Lord Justice Waller, Lord Justice Sedley and Lady Justice Smith

Citations:

[2008] EWCA Civ 883, Times 26-Aug-2008, [2009] 1 WLR 1052

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Dickins v O2 Plc CA 16-Oct-2008
The employer appealed against a finding that it was responsible for the personal injury of the claimant in the form of psychiatric injury resulting from stress suffered working for them. She had told her employers that she was at the end of her . .
Cited – Leigh v London Ambulance Service NHS Trust QBD 20-Feb-2014
The claimant was injured, and an ambulance was called. There was an unnecessary and neligent delay. The claimant suffered post-traumatic stress and now sought to recover damages from the trust.
Held: The claimant had unfortunately suffered a . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Professional Negligence, Personal Injury

Updated: 18 July 2022; Ref: scu.271219

Khairule v North West Strategic Health Authority: QBD 4 Jul 2008

Cox J considered the circumstances required to justify the extension of time for limitation: ‘In my view the crucial question in cases such as these, when considering the effects of the passage of time generally and the Section 33 discretion, is whether it is still possible to have a fair trial of the issues on the available evidence. Of relevance to this question will be when the Defendants first had knowledge of the claim and the opportunity they have had to investigate it and secure relevant evidence, and can prepare to meet it at trial.’

Judges:

Cox J

Citations:

[2008] EWHC 1537 (QB)

Links:

Bailii

Statutes:

Limitation act 1980 33

Jurisdiction:

England and Wales

Cited by:

Cited – McDonnell and Another v Walker CA 24-Nov-2009
The defendant appealed against the disapplication of section 11 of the 1980 Act under section 33.
Held: The appeal succeeded. The defendant had not contributed significantly to the delay: ‘the defendant received claims quite different in . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 17 July 2022; Ref: scu.270820

Brayshaw v The Partners of Apsley Surgery and Another: QBD 30 Nov 2018

‘ A doctor who uses, or abuses, his position to inculcate his patients with his religious beliefs is acting unprofessionally and deserves to be struck off. The issue in this case is whether such a doctor is also tortiously liable to his patient where the patient is occasioned harm and whether, if he is, liability transfers to his employer or quasi-employer through the doctrine of vicarious liability.’

Citations:

[2018] EWHC 3286 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions, Professional Negligence

Updated: 17 July 2022; Ref: scu.630780