Category: Professional Negligence

Moore v Southampton University Hospital NHS Trust: CA 12 Sep 2002

Application for permission to appeal from a decision dismissing the claim for damages for medical negligence relating to a biopsy with a number of supplementary applications. He applies for an extension of time in which to lodge his Appellant’s Notice. He also applies for permission to rely on additional evidence.

Citations:

[2002] EWCA Civ 1477

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 04 July 2022; Ref: scu.217599

Goodwill v British Pregnancy Advisory Service: CA 19 Jan 1996

The doctor executed a vasectomy, and advised the plaintiff that he need no longer take contraceptive precautions.
Held: No duty fell on a doctor to advise on the possibility of the failure of a vasectomy toward possible future sexual partners of the subject of the operation. The law could not extend a duty to a possible future partner. That was a tenuous relationship.

Citations:

Independent 19-Jan-1996, Gazette 07-Feb-1996, Times 29-Jan-1996, [1996] 2 All ER 161, [1996] 1 WLR 1397

Jurisdiction:

England and Wales

Cited by:

Cited – West Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Updated: 04 July 2022; Ref: scu.80916

Wates Construction Ltd v HGP Greentree Allchurch Evans Ltd: TCC 10 Oct 2005

A unit constructed by the claimant had collapsed under a weight of rainwater. It had been constructed according to a design provided by the defendants. The claimants had discontinued the action on the morning of the trial, and the defendants now sought costs on an indemnity basis.
Held: An order for indemnity costs may only be made where a party maintains a claim or application which it knew or ought to have known was doomed to fail on its facts and on the law.
The pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, provided that the claim was at least arguable. But the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order.

Judges:

Peter Coulson QC

Citations:

[2005] EWHC 2174 (TCC), [2006] BLR 45, 105 Con LR 47

Links:

Bailii

Citing:

Cited – Atlantic Bar and Grill Ltd v Posthouse Hotels Ltd 2000
The third defendant sought an order that the costs of the claim for an injunction against him, once it was discontinued on the second day of trial, should be assessed on an indemnity basis.
Held: The order should be made. The power of the . .
Cited – Reid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .
Cited – Kiam II v MGN Ltd (2) CA 6-Feb-2002
An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party . .

Cited by:

Cited – Evans and Others v The Serious Fraud Office QBD 12-Feb-2015
The claimants had had criminal charges brought against them by the defendants. A court had ordered them discharged, but the defendant had recommenced proceedings and these second set of proceedings had also been dismissed by the court. They now . .
Cited – Elvanite Full Circle Ltd v AMEC Earth and Environmental (UK) Ltd TCC 14-Jun-2013
Following the proncipal judgment there were disputes as to the basis of assessment of costs and the interaction between the existing costs management order (which approved the defendant’s budget costs of andpound;264,708) and the total costs now . .
Lists of cited by and citing cases may be incomplete.

Construction, Professional Negligence, Costs

Updated: 04 July 2022; Ref: scu.231287

Feakins v Burstow and Another: QBD 8 Sep 2005

Action against a solicitor for alleged negligence.

Judges:

Jack J

Citations:

[2006] PNLR 94, [2005] EWHC 1931 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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, Agriculture

Updated: 04 July 2022; Ref: scu.230120

Atkins v Dunn and Baker (A Firm): CA 19 Feb 2004

The claimant’s father had made a will leaving everything to her, but he had then remarried. He instructed his solicitors to prepare a will to revive the gift to her. They sent him a draft but did not chase it when it was not approved. It was agreed that the claimant was owed a duty of care. The recorder had concluded that there was no duty further to chase a client who may not have wished to take the matter any further.
Held: There may not always be a duty to chase up a client. This client was known to be meticulous, and his failure to reply seen properly as choosing not to go ahead. The appeal failed.

Judges:

Lord Justice Pill Lord Justice Thomas Lord Justice Jacob

Citations:

[2004] EWCA Civ 263

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Professional Negligence, Wills and Probate

Updated: 03 July 2022; Ref: scu.194417

Reeves v Thrings and Long: CA 1996

Solicitors were sued for failing to advise their client fully as to the wisdom of the transaction he was entering into. The client was an experienced businessman.
Held: The claim failed.
Hobhouse LJ said: ‘Once Mr Reeves was told what the legal position was, he required no further advice from Mr Sheppard in order to evaluate its implications and commercial significance. Mr Reeves was an experienced businessman and under no disability.’
Simon Brown LJ said: ‘I cannot accept that Mr Sheppard was under any further duty to his client, any duty to advise him upon the commercial implications or importance of the access provision or to warn him against the risks that it might pose for the future development, operation or sale of the hotel. These matters are well within the client’s competence to appreciate and evaluate for himself, business considerations rather than legal ones.’
Sir Thomas Bingham MR, dissenting, said: ‘It will always be relevant to consider what the solicitor is asked to do, the nature of the transaction and the standing and experience of the client. Thus on the facts here Mr Sheppard was not retained to advise on the wisdom of offering the price Mr Reeves had informally agreed to pay . . But it was in my view Mr Sheppard’s duty to draw Mr Reeves’ attention to any pitfall, particularly any hidden pitfall, the contract might contain.’

Judges:

Sir Thomas Bingham MR, Simon Brown LJ, Hobhouse LJ

Citations:

[1996] PNLR 265

Jurisdiction:

England and Wales

Cited by:

Cited – Pickersgill and Another v Riley PC 25-Feb-2004
PC (Jersey) The solicitor appealed a finding of negligence. He had failed to advise his client when he acted as a guarantor for a proposed assignee of a lease that the company may be a shell company. It had been . .
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.

Legal Professions, Professional Negligence

Updated: 03 July 2022; Ref: scu.194090

Glyn (T/A Priors Farm Equine Veterinary Surgery) v Mcgarel-Groves: ChD 23 Jul 2005

The claimants sought payment of their professional fees for veterinary surgeon services, and the defendant cross claimed for damages for professional negligence. The horse which had been treated had died.
Held: The animal’s condition was know to be one where the treatment risked killing the horse. The horse had been a very successful dressage competitor. One surgeon had injected two kinds of cortico steroids, and there was no clinical justification for this. The seond surgeon had the job of supervising the treatment, but had failed to establish just what treatment was being provided, and in so failing he was in breach of his duty of care, though the treating vet must bear the principla responsibility.

Citations:

[2005] EWHC 1629 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 01 July 2022; Ref: scu.229012

Taefi v Jeffrey Green Russell (A Firm): CA 25 Jul 2005

The appellant challenged dismissal of his claim for professional negligence against his former solicitors in their conduct of litigation against a tenant.
Held: The appeal failed. The factual findings had a proper basis in the evidence. Even if the failing alleged had been shown, it would not have caused the damage alleged.

Judges:

Brooke VP, Tuckey, Lloyd LJJ

Citations:

[2005] EWCA Civ 901

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Credit Lyonnais Sa (A Body Corporate) v Russell Jones and Walker (A Firm) ChD 2-Jul-2002
The claimant sought damages for professional negligence against the defendant solicitors. A corporate lawyer had been assigned to deal with a property matter, and he had failed to appreciate the need to comply strictly with time conditions in a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 01 July 2022; Ref: scu.228996

McDonnell v Holwerda: QBD 27 May 2005

The claimant sought damages alleging that the defendant doctor had failed to diagnose his child meningitis.
Held: The examination conducted by the doctor had been inadequate in the circumstances, and her approach inflexible: ‘although the defendant’s assessment on the first occasion did not fall below the standard required of her, it was marked by a measure of inattention to the vomiting and a significant measure of certainty. In my judgment, her overall assessment on the second occasion was reached in haste.’

Judges:

Newman J

Citations:

[2005] EWHC 1081 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Personal Injury

Updated: 01 July 2022; Ref: scu.226998

Haughey v Newry and Mourne Health and Social Care Trust: CANI 26 Sep 2013

Appeal from a decision dismissing the appellant’s claim for damages for clinical negligence against the servants and agents of the respondent Health and Social Care Trust.

Judges:

Higgins LJ, Coghlin LJ and Sir John Sheil

Citations:

[2013] NICA 78

Links:

Bailii

Jurisdiction:

Northern Ireland

Professional Negligence

Updated: 30 June 2022; Ref: scu.552612

Beary v Pall Mall Investments (A Firm): CA 19 Apr 2005

The independent financial advisor defendant had negligently failed to advise the claimant client about the possibility of taking out an annuity. However, the claimant would not have done so, unless he had been positively advised that he should. The Claimant argued that, had the IFA performed his duty of explaining about annuities, he would in fact have advised that one be taken out.
Held: Such an enquiry was inadmissible. Dyson LJ said: ‘In Bolitho, the claim would have succeeded either if the judge had found that the doctor who negligently failed to attend, would as a matter of fact have intubated if she had attended, or if it would have been negligent not to intubate. It was necessary on the facts of that case to consider what the doctor would have done if she had attended the child. But it does not follow that it is necessary in every case to ask what a defendant would have done if he or she had not been negligent. That question falls to be considered only where it is relevant on the facts of the particular case. In Bolitho it was relevant because the negligence lay in the failure to attend, and there was a causal link between that failure and the injury suffered by the child, because, if the doctor had attended and if she would have intubated, she would thereby have averted the injury. This causal link on the facts of that case was the hypothetical conduct of the defendant herself. In many negligence cases, the question is what would the claimant or some third person have done if the defendant had not been negligent. Usually, the only relevant question in relation to a defendant’s conduct is: what should the defendant have done? It will not often be meaningful to go on to ask what the defendant would have done if he had not been negligent. It is tautologous to say that, if the defendant had not been negligent, he would not have acted negligently.
In my judgment, there is no scope for the application of the Bolitho principle in the present case. The negligence lay in failing to advise on the possibility of an annuity, advice which the judge found would not have led Mr Beary to reject the recommendation of the PMI fund. In such a case, it is meaningless to ask what Mr Jefferies would have done if he had not been negligent. If he had not been negligent, what he should have done and what he would have done are one and the same: ie advise on the possible option of an annuity. I would reject the first ground of appeal’.

Judges:

Keene, Dyson LJJ, Wilson J

Citations:

[2005] EWCA Civ 415

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .

Cited by:

Cited – Robbins v London Borough of Bexley CA 17-Oct-2013
The claimant said that his house had been damaged by tree roots for which the appellant was responsible. The trees were 33 metres from the house.
Held: The appeal failed. The immediate cause of the damage was a failure to do something which . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 29 June 2022; Ref: scu.224251

Cohen v Kingsley Napley and Another: CA 10 Feb 2006

Judges:

Pill LJ, Sedley LJ, Scott Baker LJ

Citations:

[2006] EWCA Civ 66

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Cohen v Kingsley Napley QBD 12-May-2005
. .

Cited by:

Cited – Webster v Sandersons Solicitors (A Firm) CA 31-Jul-2009
The claimant apealed against refusal of permission to amend his claim for negligence against his former solicitors by adding claims from 1993 and 1994 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 29 June 2022; Ref: scu.238398

Devon County Council v Clarke: CA 17 Mar 2005

The claimant had succeeded in his claim for damages for professional negligence for having failed to diagnose his learning difficulties. The defendants appealed the order for costs.
Held: Though successful, his success had been against only one of the defendants, and had lost on wholly discrete issues. It was appropriate that he should receive only 70% of his costs. Those advising such claimants should consider carefully with their experts which of the professionals it was reasonable to allege were negligent.

Citations:

[2005] EWCA Civ 266

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Education, Costs

Updated: 29 June 2022; Ref: scu.223630

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 authority, relying on Gorringe, said it was fulfilling a purely statutory duty.
Held: Courts had not previously considered whether education officers were professionals who might be liable in negligence to pupils. There was no blanket answer to the question of whether there was a common law duty of care: ‘where an education officer, in the performance of his or her statutory functions, enters into relationships with or assumes responsibilities towards a child, then he or she may owe a duty of care to that child. Whether such a duty is in fact owed will depend on an application of the Caparo test. ‘

Judges:

Dame Elizabeth Butler-Sloss Oresident, Mummery, Dyson LJJ

Citations:

[2005] EWCA Civ 19, Times 03-Feb-2005, [2005] 1 WLR 2312

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Cited – Barrett v London Borough of Enfield HL 17-Jun-1999
The claimant had spent his childhood in foster care, and now claimed damages against a local authority for decisions made and not made during that period. The judge’s decision to strike out the claim had been upheld by the Court of Appeal.
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 – 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 – 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 by:

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 . .
Cited – Connor v Surrey County Council CA 18-Mar-2010
The claimant teacher said that she suffered personal injury from stress after the board of governors improperly failed to protect her from from false complaints. The Council now appealed against an award of substantial damages.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Education

Updated: 29 June 2022; Ref: scu.222933

Precis (521) Plc v William M Mercer Ltd: CA 15 Feb 2005

Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
Held: There was a paucity of authority as to when a duty of care was assumed. The words used and the subjective view of the information provider were not determinative, but in this case the defendants could not be taken to have assumed responsibility to the claimants.
Arden LJ said: ‘it is now well established that in finding the true meaning of the exchanges between the parties the court will apply not the dictionary meaning of the words used but the meaning which the parties may reasonably be supposed to have given those words in context’, and there was no list of guiding principles to help the court determine when an assumption of responsibility can be said to arise: ‘The courts have, therefore, to look at all the relevant circumstances and (following their approach to the duty of care generally . .) determine whether the circumstances fall within the situations in which an assumption of liability has previously been held to exist or whether the circumstances are closely analogous to and consistent with the situations in which liability has been imposed in previous cases.’

Judges:

Lord Justice Laws, Lord Justice Kennedy Lady Justice Arden

Citations:

[2005] EWCA Civ 114, Times 24-Feb-2005, [2005] PNLR 511

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Candler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
Cited – Williams and Another v Natural Life Health Foods Ltd and Another HL 30-Apr-1998
A company director was not personally reliable in negligence for bad advice given by him as director unless it could clearly be shown that he had willingly accepted such personal responsibility. A special relationship involving an assumption 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 – 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 – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Cited – Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) HL 24-Apr-1985
The plaintiff contracted to buy a cargo to be shipped on the defendant’s vessel. Because of poor stowage, the cargo was damaged. At the time of the damage the claimant was neither the owner nor possessor of the cargo, but under the terms of the . .
Cited – Bank of Credit and Commerce International (Overseas) Limited (In Liquidation); BCCI Holdings (Luxembourg) SA (In Liquidation); Bank of Credit and Commerce International SA (In Liquidation) v Price Waterhouse CA 13-Feb-1998
The special relationship between an auditor and a bank, meant that a duty of care could extend even to a second bank with its own auditors. In determining whether there had been an assumption of responsibility, the the relevant factors would include . .
Cited – Pacific Associates v Baxter CA 1990
A clause excluding responsibility of one party to a third party should be taken into account where the contract in question was the basis for the creation of the duty of care. . .
Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .

Cited by:

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

Professional Negligence

Updated: 29 June 2022; Ref: scu.222698

Steele v Mooney and others: CA 8 Feb 2005

The claimant had sought an extension of time for service of her claim form in her action for personal injury. The solicitors in error did not include the words ‘claim form’ in their request. The judge had initially held the error was one of drafting not of procedure, and refused rectification.
Held: The distinction was not well drawn. There was no need to give the rule a restricted meaning, and nor should it be used to overrule the effect of another rule. This was an application containing an error rather than no application. The applicant had good reason for non service and therefore rule 7.6(2) did not apply.

Judges:

May, Tuckey, Dyson LJJ

Citations:

[2005] EWCA Civ 96, Times 15-Feb-2005, [2005] 1 WLR 2819, [2005] 2 All ER 256

Links:

Bailii

Statutes:

Civil Procedure Rules 3.10

Jurisdiction:

England and Wales

Citing:

Applied – Vinos v Marks and Spencer plc CA 2001
The appellant claimed personal injuries. His solicitors issued a claim form within the limitation period, but only served it after the expiry of the four month period after the date of issue within which CPR 7.5 stipulated that the claim had to be . .

Cited by:

Disapproved – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
Cited – Cardiff County Council v Lee (Flowers) CA 19-Oct-2016
The court was asked: ‘can the court proceed to validate a warrant of possession where a landlord who seeks to enforce his right to possession because of an alleged breach of the terms of a suspended possession order has not complied with CPR 83.2? ‘ . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Professional Negligence

Updated: 29 June 2022; Ref: scu.222567

Hanbury and Another v Hugh James Solicitors (A Firm): QBD 30 Apr 2019

Claim for professional negligence brought on behalf of the widow and estate of Mr David Jack Hanbury (‘the claimants’) against solicitors who were instructed to pursue a claim arising out of his death from asbestos related lung cancer. The claim did not proceed after an unfavourable medical report was obtained. It is the claimants’ case that Hugh James omitted highly material evidence when instructing the medical expert and then failed to notice that this had not been considered.

Judges:

Yip DBE J

Citations:

[2019] EWHC 1074 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 28 June 2022; Ref: scu.636172

Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm): ChD 25 May 2000

The testatrix had executed her will, but it was left undated pending preparation and execution of a second deed. The will failed, and her executors sought damages from her solicitors for negligence.

Judges:

Eady J

Citations:

[2000] Lloyds Rep PN 805

Jurisdiction:

England and Wales

Cited by:

Appeal from – Corbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm) CA 11-Apr-2001
The testatrix had executed her will, but the will was dependent upon deeds of gift first taking place. The will was only later dated, once the deeds had been put into effect. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 27 June 2022; Ref: scu.223528

Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) and others: CA 30 Nov 2001

Citations:

[2001] EWCA Civ 2083

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – Ghafoor and others v Cliff and others ChD 11-Apr-2006
The applicant had obtained revocation of a grant of administration ad colligenda bona in the estate, and having succeeded, now sought costs. The question was whether there had been proper reasons for the application for the grant. The deceased’s . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 27 June 2022; Ref: scu.218514

Hawkesbrooke Leisure Ltd v Reece-Jones Partnership: ChD 18 Nov 2003

The claimant sued its solicitors for failing to make application in time for a new tenancy. The solicitors said that the claimant, a company limited by guarantee, and not allowed to distribute any trading profit, was not protected under the 1954 Act.
Held: An inability to distribute its profits did not mean a company was not carrying on a business. In any event, as a body corporate under the 1954 Act, it needed only to show that it carried on an activity.

Judges:

Etherton J

Citations:

[2003] EWHC 3333, (2004) 25 EG 172

Statutes:

Landlord and Tenant Act 1954

Jurisdiction:

England and Wales

Landlord and Tenant, Professional Negligence

Updated: 27 June 2022; Ref: scu.216551

Chappell v Somers and Blake (a Firm): ChD 8 Jul 2003

The will gave the deceased’s property to the local church. The claimant executrix instructed the defendants to administer the estate, but later terminated the retainer saying that they had done nothing for many years, depriving the estate of rents.
Held: Even though the claimant had no personal interest in the estate, she should be allowed to claim. Legal principle justified a conclusion which was consistent with the policy consideration. The loss occurred whilst the properties were vested in the administratrix, and she would be accountable to the parochial church council for the income lost. She therefore had a proper claim. The necessary policy point was to ensure that no double recovery arose, since the church could itself sue.

Judges:

Neuberger J

Citations:

Times 02-Sep-2003, [2003] EWHC 1644 (Ch)

Jurisdiction:

England and Wales

Citing:

Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate

Updated: 27 June 2022; Ref: scu.186098

John D Wood Ltd v Knatchbull: QBD 16 Dec 2002

The claimant sought payment of his commission as an estate agent. The defendant sought to set off a claim for damages, alleging that the agent had failed to keep him apprised of developments in the local market to his loss.
Held: The agent could not be under a duty to tell a client of every scrap of information, but did have a duty to advise on significant changes. A neighbouring property had been marketed at a significantly higher price, and the defendant should have been told of this.

Citations:

Times 16-Jan-2003

Jurisdiction:

England and Wales

Professional Negligence

Updated: 27 June 2022; Ref: scu.178768

Lowes and Another v Clarke Whitehill (a Firm): CA 21 Nov 1997

Citations:

[1997] EWCA Civ 2794

Jurisdiction:

England and Wales

Citing:

Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 27 June 2022; Ref: scu.143193

Barings Bank Plc and Another v Coopers and Lybrand (A Firm) and others: CA 18 Jul 2002

Application was made to set aside a leave to appeal in a case where the liquidators of the collapsed bank brought professional negligence claims against its auditors.
Held: The power to set aside leave is only to be exercised where some decisive authority has been overlooked so that the appeal is bound to fail, or where the court has been misled.

Judges:

Laws LJ, Jonathan Parker LJ

Citations:

[2002] EWCA Civ 1155

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 23 June 2022; Ref: scu.217359

Chester v Afshar: HL 14 Oct 2004

The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The evidence established that cauda equina syndrome was a random and inherent risk of the surgery, which would have been the same whenever and at whoever’s hand she had the operation. It was also established that she would have had the operation at some point in time, regardless of whether she was warned of the risk. The judge had not found that she would not have had the operation at that time if told. The doctor now appealed.
Held: The appeal failed. The claimant had established causation. The ‘but for’ test was satisfied, because she would not have had the operation when she had it if the appropriate warning had been given and on the probabilities the complication would not have arisen on another occasion The issue went as to causation. A surgeon owes a legal duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure. Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles. The doctor was liable (Bingham and Hoffmann dissenting).
Lord Hope of Craighead said: ‘To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty. . . I would hold that justice requires that Miss Chester be afforded the remedy which she seeks, as the injury which she suffered at the hands of Mr Afshar was within the scope of the very risk which he should have warned her about when he was obtaining her consent to the operation which resulted in that injury.
Lord Woolf said: ‘In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt. ‘

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe

Citations:

[2005] 1 AC 134, [2004] 3 WLR 927, [2004] UKHL 41, Times 19-Oct-2004, 67 BMLR 66

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Afshar v Chester CA 27-May-2002
The surgeon carried out the operation successfully, but the claimant suffered consequential post operative damage. He had not been warned of the risk, and sought damages.
Held: Failure to warn of a risk did not vitiate consent, and any . .
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 – Smith v Barking, Havering and Brentwood Health Authority 1994
The patient claimed damages.
Held: On the balance of probabilities the claimant would have consented to the operation even if properly advised as to the risk of tetraplegia. The defendant was not liable. . .
Cited – Pearce and Pearce v United Bristol Healthcare NHS Trust CA 20-May-1998
A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been . .
Cited – 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 – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – 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 – Smith v Tunbridge Wells Health Authority 1994
The patient was to undergo rectal surgery. He claimed that the doctor had failed to warn him of the risks.
Held: The claimant would have declined the operation if he had been properly advised of the risk of impotence and bladder malfunction, . .
Cited – McAllister v Lewisham and North Southwark Health Authority 1994
The patient claimed damages after suffering injury in an operation, saying the doctor had failed to warn of the risk.
Held: The claimant would not have had the operation if she had been properly warned and on balance of probabilities she would . .
Cited – Smith v Salford Health Authority 1994
The doctor had failed to warn the patient of the risks inherent in the planned operation.
Held: The court not have found him liable for a failure to warn, because he was not satisfied that the claimant would not have had the operation if he . .
Cited – Chappel v Hart 2-Sep-1998
Austlii (High Court of Australia) Negligence – Causation – Failure to warn of inherent risk of operation about which patient had specifically inquired – Plaintiff would have inevitably required the same operation . .
Cited – Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B HL 1949
Damages were sought for breach of contract.
Held: After reviewing the authorities on remoteness of damage, the court reaffirmed the broad general rule that a party injured by the other’s breach of contract is entitled to such money . .
Cited – Carslogie Steamship Co Ltd v Royal Norwegian Government HL 1952
The plaintiff’s vessel had been damaged in a collision, and underwent temporary repairs at Port Glasgow. It was certified as authorised ‘to be confirmed in her present class without fresh record of survey, subject to certain permanent repairs at the . .
Cited – Stapley v Gypsum Mines Ltd HL 25-Jun-1953
Plaintiff to take own responsibility for damage
The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the . .
Cited – Empress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .
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 – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Associated Portland Cement Manufacturers (1900) Ltd v Houlder Brothers and Co Ltd 1917
A vessel was delayed in sailing and torpedoed on 25 May 1916. It would not have been torpedoed if it had made the same voyage two or three days earlier.
Held: The claim failed. There was no cuasative link. . .

Cited by:

Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
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 – Meadows v Khan QBD 23-Nov-2017
Claim for the additional costs of raising the claimant’s son, A, who suffered from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, A would not have been born because his mother would have discovered during her . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 23 June 2022; Ref: scu.216461

Lenderink-Woods v Zurich Assurance Ltd and Others: ChD 14 Dec 2015

The court was asked whether the two principal defendants, Zurich Assurance Limited and Zurich Advice Network Limited had demonstrated that it was fanciful for the Claimant to assert that she lacked the relevant knowledge to bring her present claim until after 10 December 2011.

Judges:

Norris J VC

Citations:

[2015] EWHC 3634 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Limitation, Professional Negligence

Updated: 23 June 2022; Ref: scu.557071

Hyde v Thameside Area Health Authority: CA 1986

Judges:

Lord Denning MR

Citations:

[1986] PN 26

Jurisdiction:

England and Wales

Cited by:

Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 23 June 2022; Ref: scu.235776

JEB Fasteners Ltd v Marks, Bloom and Co: CA 1981

Accountants prepared audited accounts knowing that the company was in financial difficulties, and the the accounts would be relied upon by the plaintiffs.
Held: The accountants owed a duty of care to the plaintiffs. They knew that they would rely upon the accounts. However in this case, the plaintiffs would have proceeded in any event, and so the negligence did not cause any of the damage actually suffered. ‘as long as the misrepresentation plays a real and substantial part, though not by itself as decisive part, in inducing the plaintiff to act, it is a cause of his loss and he relies on it, no matter how strong or how many are the other matters which play their part in inducing him to act . . ‘.

Judges:

Stephenson LJ

Citations:

[1981] 3 All ER 289

Jurisdiction:

England and Wales

Cited by:

Distinguished – 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 – Axa Insurance Co Ltd v Swire Fraser Ltd CA 9-Dec-1999
Where an action was commenced before the new rules came into effect, but an application to strike out an action was issued and decided after they came into effect, that application could not be decided under the old rules. The new rules applied . .
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 – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 23 June 2022; Ref: scu.180651

Whiteoak v Walker: ChD 1988

The articles of association of a private company provided for shares to be valued by the auditor. The plaintiff transferred shares at a price fixed by the auditor, and subsequently alleged that the valuation was negligently made. One of the issues between the parties was whether the requisite standard of skill and care was that of a reasonably competent chartered accountant who professed specialist skills in valuing unquoted shares (‘the specialist standard’) or that of a reasonably competent chartered accountant in general practice acting as an auditor who has agreed to a request to undertake the valuation task (‘the auditor standard’).
Held: In favour of the latter, the choice facing the members of the company, when agreeing to the terms of the articles of association, was between opting for the specialist skills of a share valuer and the special knowledge of the company’s affairs that the auditor would have. As they were seeking a fair result, as to which a specialist share valuer would not have a special advantage over their own auditor, they intended the auditor to apply his skills and not the skills of a specialist share valuer.

Judges:

Terence Cullen QC

Citations:

(1988) 4 BCC 122

Jurisdiction:

England and Wales

Cited by:

Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 21 June 2022; Ref: scu.184177

Raggett, The Executors of The Estate of v Kings College Hospital NHS Foundation Trust and Others: QBD 1 Jul 2016

Claim for personal injuries loss and damage brought on behalf of the estate of the late John Raggett deceased, pursuant to the provisions of the 1934 Act.

Judges:

Sir Alistair MacDuff

Citations:

[2016] EWHC 1604 (QB)

Links:

Bailii

Statutes:

Law Reform (Miscellaneous Provisions) Act 1934

Jurisdiction:

England and Wales

Personal Injury, Professional Negligence

Updated: 19 June 2022; Ref: scu.567068

DS v Northern Lincolnshire and Goole NHS Foundation Trust: QBD 26 May 2016

DS acting by his mother and litigation friend sought damages for the injury and loss said to have been caused by the negligence of Northern Lincolnshire and Goole Hospital Trust’s midwifery and medical staff in the management of part of DS’s mother’s labour at Scunthorpe General Hospital. According to Myles Textbook for Midwives placental abruption is an accidental occurrence of haemorrhage that occurs in 0.49-1.8% of all pregnancies. Severe separation of the placenta is an acute obstetric emergency.

Judges:

Cheema-Grubb DBE J

Citations:

[2016] EWHC 1246 (QB)

Links:

Bailii

Statutes:

Congenital Disabilities (Civil Liability) Act 1976

Jurisdiction:

England and Wales

Professional Negligence

Updated: 19 June 2022; Ref: scu.564923