Category: Professional Negligence

LAT v East Somerset NHS Trust (Now Yeovil District Hospital NHS Foundation Trust): QBD 8 Jul 2016

Application on behalf of the claimant under CPR 25.7 for an interim payment in respect of his claim for damages against the defendant arising out of the defendant’s negligent failure properly to treat him during the neonatal period and in particular in failing to treat his hypoglycaemia appropriately.

Judges:

Reddihough HHJ

Citations:

[2016] EWHC 1610 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Professional Negligence

Updated: 18 June 2022; Ref: scu.567067

Ward v The Leeds Teaching Hospital NHS Trust: QBD 2004

The court considered a claim by a mother who had witnessed her 22 year old daughter motionless in the recovery unit after failing to emerge from anaesthesia following a routine operation to remove a wisdom tooth. Four events said to be shocking were relied upon:
(a) Seeing Catherine motionless in the recovery unit and touching her hand;
(b) Seeing her in the intensive care unit with a variety of tubes present;
(c) Seeing her in the chapel of rest bleeding from her ears with her neck and chest area bruised as if she had been battered;
(d) Being informed that the brain would be kept for examination.
Held: The judge was to decide whether Mrs Ward had suffered PTSD. He said this of the evidence of the Defendants’ consultant psychiatrist: ‘Dr Reveley’s opinion as to PTSD is founded upon a wide experience of reporting upon incidents which without question met the relevant criteria for PTSD – Kings Cross, Hillsborough and other such major disasters. Her insistence that a necessary criterion must be a clearly shocking event of a particularly horrific nature seemed to me to accord with the diagnostic criteria produced in evidence. An event outside the range of human experience, sadly, does not it seems to me encompass the death of a loved one in hospital unless also accompanied by circumstances which were wholly exceptional in some way so as to shock or horrify. Mrs Ward’s own descriptions of these incidents did not strike me as shocking at the time in that sense, although undoubtedly they were distressing. To describe an event as shocking in common parlance is to use an epithet so devalued that it can embrace a very wide range of circumstances. But the sense in which it is used in the diagnostic criteria for PTSD must carry more than that colloquial meaning.’

Judges:

Hawkesworth QC HHJ

Citations:

[2004] EWHC 2106 (QB)

Jurisdiction:

England and Wales

Cited by:

Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 18 June 2022; Ref: scu.567372

Catlin Estates Ltd and Another v Carter Jonas (A Firm): TCC 31 Oct 2005

The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims.

Citations:

[2005] EWHC 2315 (TCC)

Links:

Bailii

Statutes:

Defective Premises Act 1972

Jurisdiction:

England and Wales

Citing:

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

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Brown and Root v Sun Alliance CA 2001
Until there has been a transfer in accordance with the provisions of the Land Registration Act the legal title to the estate remains with the vendor . .
Cited – Gardner v Marsh and Parsons (a Firm), Dyson CA 2-Dec-1996
Damages awarded against a surveyor for a negligent survey which had missed certain defects, were not to be reduced for repairs later carried out by the landlord at his own expense. The trial judge decided to award damages reflecting the difference . .
Cited – British Westinghouse Electric and Manufacturing Company Limited v Braulik CA 1910
Between 1904 and 1906 British Westinghouse supplied 8 steam turbines. They were defective in design and used excessive quantities of steam. The railway company did not reject them but reserved its claim to damages for breach of contract. In 1907 the . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Contract, Professional Negligence

Updated: 18 June 2022; Ref: scu.237601

Regina v Investors Compensation Scheme Ltd Ex Parte Weyell and Others: QBD 22 Jul 1993

A brokers’ liability for his bad advice was continuous. He had a continuing obligation to correct earlier bad advice.

Citations:

Independent 22-Jul-1993, Times 18-Aug-1993

Jurisdiction:

England and Wales

Financial Services, Professional Negligence

Updated: 17 June 2022; Ref: scu.86962

Redstone Mortgages Ltd v B Legal Ltd: ChD 17 Oct 2014

The claimant made allegations of professional negligence brought against conveyancing solicitors by a purchaser of residential mortgage backed securities. The trial required the determination of preliminary issues in four selected cases, but with implications for many other cases.

Judges:

Norris J

Citations:

[2014] EWHC 3398 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 17 June 2022; Ref: scu.537777

Webster v Cooper and Burnett: CA 2000

Citations:

[2000] PNLR 240

Jurisdiction:

England and Wales

Cited by:

Cited – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 16 June 2022; Ref: scu.200461

Prudential Assurance Company Ltd v McBains Cooper: TCC 27 Jun 2000

The claimant sought damages from the defendant firm of surveyors, alleging negligence in their survey of commercial property.

Citations:

[2000] EWHC Technology 85

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Prudential Assurance Company Ltd v McBains Cooper (A Firm) and Others CA 23-May-2000
A judge who had submitted a draft judgment to the parties for comment before publishing a final version, was entitled to go ahead and publish his judgment notwithstanding that the parties had reached a settlement after seeing the draft. The judge . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract

Updated: 13 June 2022; Ref: scu.201814

UCB Bank Plc v David J Pinder Plc, Hepherd Winstanley and Pugh: TCC 14 May 1998

This was an action by a mortgagee against the First Defendant for negligence in advising as to the value of the mortgage security and against the Second Defendants for negligence as the Plaintiff’s solicitors. The action against the Second Defendants had been discontinued. The First Defendant, which was in creditors’ voluntary liquidation, took no part in the trial but had served a Defence alleging (inter alia) contributory negligence. The Plaintiff attended to prove its case and contended that no effect could be given to the defence of contributory negligence in the First Defendant’s absence, whatever the state of the evidence.
Held: the issue of contributory negligence, having been pleaded, must be resolved on the evidence, but for that purpose the evidence was that tendered by the Plaintiff, and the Court was under no duty to peruse documents included in the trial bundles but not so tendered. On that basis contributory negligence had not been established in this instance.

Judges:

Hicks QC HHJ

Citations:

[1998] EWHC Technology 320

Links:

Bailii

Professional Negligence

Updated: 13 June 2022; Ref: scu.201753

Dubai Aluminium Company Ltd v Deloitte Haskins and Sells and others: ComC 4 Dec 2000

The claimant sued its professional advisers, alleging that they had failed to advise the claimant of the fraudulent activities of its own executive. A substantial action was under way, and the parties sought directions from the court in the transition to the new Civil Procedure Rules.

Citations:

[2000] EWHC 209 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Litigation Practice

Updated: 13 June 2022; Ref: scu.201691

Griffin v Kingsmill and others: CA 8 Jun 2001

Appeal from a decision of Buckley J given on 20th February 1998 dismissing the claimant’s claim for professional negligence against solicitors and counsel who advised her and her parents in relation to a road accident.

Judges:

Schiemann, Kay LJJ, Sir Murray Stuart-Smith

Citations:

[2001] EWCA Civ 934

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 13 June 2022; Ref: scu.201137

BTI 2014 Llc v Pricewaterhousecoopers Llp and Another: ChD 15 Nov 2019

Claim for damages for professional negligence

Judges:

Mr Justice Fancourt

Citations:

[2019] EWHC 3034 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – BTI 2014 Llc v Pricewaterhousecoopers Llp and Another ChD 25-Nov-2019
. .
Appeal from – Pricewaterhousecoopers Llp v BTI 2014 Llc CA 11-Jan-2021
Claim for damages for professional negligence . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 11 June 2022; Ref: scu.646159

A v B Hospitals NHS Trust: Admn 10 Nov 2006

The claimant baby had suffered catastrophic injuries at birth in the defendant’s hospital. Liability having been admitted, the court now considered whether damages should be paid as a lump sum or by periodical payments.
Held: ‘ the form of award which best meets this Claimant’s needs in respect of the provision of future care is a lump sum award. For the reasons set out above I consider that it is most unlikely that periodical payments linked to RPI will meet the future care costs in this case. On the contrary, I consider that there is a very strong probability that divergence between RPI and the actual cost of the provision of care will result in a massive shortfall of provision. By contrast, I consider that there is, realistically, a good prospect of meeting actual care costs from the lump sum award. ‘

Judges:

Lloyd Jones J

Citations:

[2006] EWHC 2833 (Admin), (2007) 95 BMLR 240, [2007] LS Law Medical 303

Links:

Bailii

Statutes:

Damages Act 1996 2 2A

Jurisdiction:

England and Wales

Citing:

Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Wells v Wells; Thomas v Brighton Health Authority; etc HL 16-Jul-1998
In each of three cases, the plaintiffs had suffered serious injury. They complained that the court had made a substantial reduction of their damages award for loss of future earnings and the costs of future care.
Held: The appeals succeeded. . .
Cited – Flora v Wakom (Heathrow) Ltd CA 28-Jul-2006
The claimant was severely injured and claimed for loss of future earnings and future care. The defendant admitted liability. In the statement of case for damages, the claimant contended that, if the court made an order for periodic payments, it . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury, Damages

Updated: 11 June 2022; Ref: scu.376257

Popat v Barnes: QBD 7 Apr 2004

The claimant had at first been convicted of a rape, but acquitted after a second appeal. He now sued the barrister who had represented him at the trial alleging negligence in (inter alia) failing to present fully the alibi evidence.
Held: Defence counsel should have reconsidered the decision whether or not to seek an alibi direction. Nevertheless, he could not sue his barrister for the choices made in the trial, the decision had been made as a tactical one within the trial: ‘Neither counsel nor the Judge had dwelt on or ‘compartmentalised’ the topic of alibi. All had addressed the jury on the basis that the issue was identification. Viewed objectively, the alibi was probably not water-tight and for the Defendant to form the view that the less said on the topic the better and the last thing she wanted was for attention to be focussed on possible lies in that respect by the defendant, let alone his parents, was entirely reasonable. Her view was that there were valid points to be made on the identification evidence and therein lay Mr Popat’s best chance of an acquittal. Put more legalistically; the Defendant’s view of the matter and her decision cannot, in my view, fairly be described as one that no competent counsel could share.’

Judges:

Buckley J

Citations:

Times 05-Jul-2004, [2004] EWHC 741 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Application for leave to appeal – Popat v Barnes CA 10-Jun-2004
The claimant’s allegation of professional negligence against his barrister for the conduct of his criminal trial had been dismissed. He now sought leave to appeal. The decision had been made not to alert the judge to a deficiency in the alibi . .

Cited by:

Appeal from – Popat v Barnes CA 10-Jun-2004
The claimant’s allegation of professional negligence against his barrister for the conduct of his criminal trial had been dismissed. He now sought leave to appeal. The decision had been made not to alert the judge to a deficiency in the alibi . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 11 June 2022; Ref: scu.198721

Popat v Barnes: CA 10 Jun 2004

The claimant’s allegation of professional negligence against his barrister for the conduct of his criminal trial had been dismissed. He now sought leave to appeal. The decision had been made not to alert the judge to a deficiency in the alibi warning he had given.
Held: The judge was entitled to conclude that the applicant had failed to establish that there was a breach of duty. The choice made by counsel might have been better, but had not been shown to have been negligent.

Citations:

[2004] EWCA Civ 820

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Popat v Barnes QBD 7-Apr-2004
The claimant had at first been convicted of a rape, but acquitted after a second appeal. He now sued the barrister who had represented him at the trial alleging negligence in (inter alia) failing to present fully the alibi evidence.
Held: . .

Cited by:

Application for leave to appeal – Popat v Barnes QBD 7-Apr-2004
The claimant had at first been convicted of a rape, but acquitted after a second appeal. He now sued the barrister who had represented him at the trial alleging negligence in (inter alia) failing to present fully the alibi evidence.
Held: . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 11 June 2022; Ref: scu.198509

County Personnel (Employment Agency) v Pulver (Alan R) and Co: CA 1987

The parties were negotiating for an under-lease. The lease provided for rent to increase along with rent reviews under the head lease. The solicitors failed to ascertain the rent under the head lease, to advise his client to have the property valued, or to explain the unusual clause. The rent was reviewd to an uneconomic rent, and the client sued his solicitor for negligence. He appealed dismissal of his claim.
Held: The solicitor was negligent. In exercising reasonable professional judgement he should have alerted his client to the consequences of the unusual clause. As to damages, the court was not restricted to the diminution in value. The plaintiff was entitled also to the costs of surrender and possibly to the cost of a lease whch would be saleable.

Citations:

[1987] 1 All ER 289

Jurisdiction:

England and Wales

Cited by:

Cited – Neighbour v Barker CA 1992
Purchasers had set out to buy the property without having a survey, relying upon representations as to its condition, later found to be fraudulent, from the vendor. The condition was discovered only after exchange of contracts. The purchasers’ . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 11 June 2022; Ref: scu.219184

Perotti v Collyer-Bristow (A Firm): CA 21 May 2004

The claimant had been dissatisfied with the way in which the defendant had administered the estate of his deceased uncle. The court had faced 14 applications by him.
Held: ‘They are all totally devoid of merit. They were all made long after the hearing ended on 29th November 2002.’ ‘Chadwick LJ dismissed 11 further applications by Mr Perotti on the same grounds. It has been drawn to the court’s attention that, putting on one side certain pending matters, since 1997 Mr Perotti has made 80 different applications to the court in different matters, of which two have been allowed, 75 refused, and three have been disposed of by different orders. ‘
A Grepe v Loam order and civil restraint orders had been made against him. Neuberger J considered that in his experience of litigants in person, Mr Perotti was second to none in terms of his persistence, and in terms of the aggressiveness, rudeness and unreasonableness with which he conducted his applications. The existing extended civil restraint order was to be extended yet further.

Judges:

Lord Justice Brooke Vice-President Of The Court Of Appeal (Civil Division) And Lord Justice Maurice Kay

Citations:

[2004] EWCA Civ 639, [2004] 4 All ER 53

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Perotti v Watson and others CA 26-Feb-2004
The appellant seeking leave to appeal had previously asked for legal assistance. Mr Perottis had been involved in litigation against his father’s administrator over many years. A civil restraint order had been made against him. The first defendant . .
Cited – Grepe v Loam; Bulteel v Grepe CA 1887
The court was asked for an order restricting the right of a group of litigants be restrained from beginning further court actions without first obtaining the court’s consent, they having been accused of issuing vexatious proceedings.
Held: The . .
Cited – Bhamjee v Forsdick and Others (No 2) CA 25-Jul-2003
The Court set out the range of remedies available to protect court processes from abuse by litigants who persist in making applications totally devoid of merit. The courts are facing very serious contemporary problems created by the activities of . .

Cited by:

See also – Perotti v Watson and others CA 26-Feb-2004
The appellant seeking leave to appeal had previously asked for legal assistance. Mr Perottis had been involved in litigation against his father’s administrator over many years. A civil restraint order had been made against him. The first defendant . .
See also – Angelo Perotti v Iliffes Booth Bennett (A Firm), Bird and Bird (A Firm), Richard Francis Dudley Barlow (Sued As Francis Barlow) ChD 28-Oct-2003
. .
See also – Perotti v Collyer-Bristow (A Firm) and others CA 6-Oct-2003
So far as civil proceedings are concerned, the funding of particular cases by civil legal aid was a matter for the Legal Services Commission. The courts have no residual power to make an order for assistance. The most it could do would be to . .
Cited – Grace, Regina (on The Application of) v Secretary of State for The Home Department CA 9-Jun-2014
What is ‘totally without merit’?
The claimant had sought judicial review. Her case had been certified as being ‘totally without merit’, thus denying to her any opportunity to renew her application for leave at an oral hearing, leaving only recourse to a judge of the Court of Appeal . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 10 June 2022; Ref: scu.197054

Baker v Ollard and Bentley: CA 12 May 1982

The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to grant separate long leases of the first floor to the plaintiff and the ground floor to the Bodmans respectively. Instead he simply had the house conveyed into their joint names on trust for sale. The plaintiff obtained neither security of tenure nor any interest which she could separately dispose of and, when subsequently the Bodmans decided to move out and sell the house by enforcing the trust for sale, she had to expend further money purchasing the freehold.
Held: Her cause of action accrued at the time of the original transaction rather than at the later time when the Bodmans decided to enforce the trust for sale. Templeman LJ said: ‘Damages were suffered on that date because the plaintiff did not receive the long lease and joint tenancy which the solicitors should have secured for her. She secured instead some other different interest. She has suffered damage because she did not get what she should have got.’ The court did not compare the value of the interest that the claimant in fact received with the amount that she paid for it. The mere fact that ‘she did not get what she should have got’ was sufficient to amount to damage.

Judges:

Templeman LJ

Citations:

[1982] 126 SJ 593, [1982] CLY 1845, CA Transcript 155 of 1982

Jurisdiction:

England and Wales

Citing:

Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .

Cited by:

Cited – Daniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
Applied – D W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
Cited – DW Moore and Co Ltd v Ferrier CA 1988
A solicitor was instructed to prepare an agreement providing for the introduction of a new working director into an insurance broking business carried on by a company. His instructions called for the new director to enter into a restrictive covenant . .
Cited – Tabarrok v E D C Lord and Co (A Firm) CA 14-Feb-1997
The appellant wanted to open a pizza restaurant. He and his partners acquired a company for the purpose, which was to take a lease of premises. They sought advice from the defendants who, they said, failed to advise them of the need to be aware of . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Cited – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 10 June 2022; Ref: scu.196069

Ministry of Housing and Local Government v Sharp: CA 1970

Mr Sharp was the local land registrar with statutory duty to maintain the local registry, issuing certificates in response to search requests. A clerk who had been seconded by another Council to assist him negligently issued an inaccurate certificate to a prospective purchaser of land, omitting any reference to a claim to reimbursement of compensation which the Ministry had against the seller. The result was to extinguish the right which the Ministry would otherwise have had to pursue its claim against the purchaser. It was conceded that, if the clerk was liable in negligence to the Ministry, then the council was vicariously liable for its clerk.
Held: The clerk was liable. The Court rejected the argument that a voluntary assumption of responsibility was the sole criterion for imposing a duty of care for the negligent preparation of a search certificate in the local land charges register.
Lord Denning MR disagreed with the proposition that a duty of care could not fall on someone accepting an assumption of responsibility non-voluntarily: ‘It has been argued . . that since the council did not voluntarily make the search or prepare the certificate for their clerk’s signature they did not voluntarily assume responsibility for the accuracy of the certificate and accordingly owed no duty to the Minister. I do not accept that, in all cases, it necessarily depends upon a voluntary assumption of responsibility.’ and ‘The object of the register is to provide security for two classes of people, incumbrancers and purchasers.’
Cross LJ saw ‘no sufficient reason why in an appropriate case the liability should not extend to cases in which the defendant is obliged to make the statement which proves to be false.’
he said: ”In 1888 the registrar [i.e. the Chief Land Registrar] was expressly exempted from liability to be sued for acts done in exercise of his powers under the Land Transfer Act, 1875; so Parliament at that date cannot have thought that there was anything inherently objectionable in the fact that members of the public who suffered through innocent mistakes in the registry should have no civil remedies. As he was exempt from liability under the Land Transfer Act, to subject him to liability under the Land Charges Act would, prima facie, be anomalous. The anomaly would, however, be explicable if and so far as the various officers of the Supreme Court who were directed to maintain registers by the Acts scheduled to the Conveyancing Act, 1881, and similar Acts, were themselves liable to be sued, for the provisions for official searches and certificates made applicable to the registrar in 1888 were taken from the provisions in section 2 of the Conveyancing Act, 1882. Further, in 1900, two registers formerly kept by the registrar of judgments were transferred to the land registrar. But if and so far as the court officials were not themselves liable to be sued I find it very difficult to suppose that Parliament intended to subject the land registrar to liability by the Act of 1888. The natural assumption would be that Parliament either considered that no express exemption corresponding to the Land Transfer Act provision was necessary or, more probably, simply forgot to put one in.
So the point which to my mind is crucial is to what extent, if at all, the various ‘proper officers’ were liable to be sued. Douglass v. Yallop, (1759) 2 Burr. 722, to which the Master of the Rolls refers, shows that the senior master of the Court of Common Pleas, who received five shillings for each entry, would have been liable to be sued for any damages suffered by the plaintiff for his failure to register a judgment presented for registration under the Judgments Act, 1838. Of course, by 1888, the registrar of judgments (the senior master of the Queen’s Bench Division) received a fixed salary and it might perhaps be argued that his personal liability to be sued for the failure of one of his clerks to register a judgment did not survive the legislation which reorganised the courts. But even if that is not so, what we are concerned with is the obligation to issue certificates of search which was first created by the Conveyancing Act, 1882. That Act was a code applicable to all registers kept, or apparently to be kept, in the Central Office under the Acts scheduled to the Conveyancing Act, 1881, and any other Acts; so that it might apply to functionaries of varying status. I find it difficult to suppose that Parliament in the year 1882 intended by such an Act to make these unidentified officers of the court paid by salary personally liable to ensure the accuracy of the certificates of search issued in respect of registers under their charge.’
Salmon LJ held that the local registrar was not liable for breach of an absolute statutory duty, which was what had been alleged. It had been accepted that the local registrar had not been negligent in any way and that he was not vicariously responsible for the negligence of the council’s servant who had carried out the search and issued the certificate. He noted indications in favour of civil liability, on the basis of an absolute obligation, saying: ‘It is clear that section 17(1), (2) and (3) of the Land Charges Act 1925 were enacted particularly for the benefit of chargees, incumbrancers (of whom the Minister is one) and purchasers rather than for the benefit of the general public. Purchasers, chargees and incumbrancers may suffer the most grave financial loss if the search which section 17(2) requires is not properly carried out or the certificate which it requires is inaccurate.’
The statutory duty was one of due diligence, not an absolute duty and because the claim had been put on the basis of an absolute duty, he held that it failed. As to section 131, he said: ‘It was, in my view, designed to protect those working in the registry from being plagued by vexatious actions. It accordingly provided that any claim, save a claim in fraud, could be struck out in limine. The indemnity in section 85 was a beneficent provision, possibly in part to compensate for the loss of a cause of action in negligence, and which, in any event, justice demanded. It might well have been introduced into the Land Charges Act, 1925, but only in so far as concerned Her Majesty’s Land Registry, for in 1925 Parliament could hardly have been expected to set up a central fund in effect to indemnify local authorities against the mistakes of their own servants. Accordingly, the fact that no provisions corresponding to sections 83, 85 or 131 of the Land Registration Act appear in the Land Charges Act seems to me to be irrelevant to the question we have to decide.’

Judges:

Lord Denning MR, Salmon LJ, Cross LJ

Citations:

[1970] 2 QB 223, [1970] 1 All ER 1009

Statutes:

Land Charges Act 1925 17(1) 17(2) 17(3), Land Registration Act 1925 131

Jurisdiction:

England and Wales

Citing:

Cited – Douglass, Widow And Administratrix, v Yallop, Esq 1759
The senior master of the Court of Common Pleas, who received five shillings for each entry in his registry of judgments, would have been liable to be sued for any damages suffered by the plaintiff for his failure to register a judgment presented for . .

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 – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Poulton v Ministry of Justice CA 22-Apr-2010
The claimant was trustee in bankruptcy but the court failed to register the bankruptcy petition at the Land Registry as a pending action. The bankrupt was therefore able to sell her land, and the trustee did not recover the proceeds. The trustee . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Administrative

Updated: 10 June 2022; Ref: scu.186284

Fletcher and Son v Jubb, Booth and Helliwel: CA 1920

Scrutton LJ said: ‘it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia, or lata culpa mentioned in some of the cases, for which he is undoubtedly responsible. It is a question of degree and there is a borderland within which it is difficult to say whether a breach of duty has or has not been committed.’

Judges:

Scrutton LJ

Citations:

[1920] 1 KB 275

Jurisdiction:

England and Wales

Cited by:

Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Cited – Simmons v Pennington and Son CA 1955
Solicitors Followed Historical Practice
Premises owned by the plaintiff were subject to an obsolete covenant restricting their use to that of a private dwelling house. It had in fact been used continuously for many years, both before and after the plaintiff became owner, for business . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 10 June 2022; Ref: scu.182176

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 the value until the result was available.
Held: The starting point for measuring damages was the difference in value between its assumed good condition, and the condition reported. That was subject to the overriding need to put the claimant back into the position he would have been but for the negligence. Hindsight was admissible in calculating the loss.

Judges:

Jonathan Gaunt QC

Citations:

Gazette 23-Jan-2003, [2003] EWHC 475 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Philips v Ward CA 1956
The Plaintiff had relied on a negligent survey to purchase a substantial Elizabethan property and land. The report did not mention that the timbers of the house were badly affected by death watch beetle and worm so that the only course left to him . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
Cited – Kennedy v K B Van Emden and Co; Jordan v Gershon Young Finer and Green and Similar CA 27-Mar-1996
A solicitor failed in 1983 to advise a purchaser of the fact that premium she was paying on purchasing a leasehold flat was unlawful under the Act, and would be unrecoverable on the sale. Before trial however, in 1989 the law changed and the premium . .
Cited – Charles v Hugh James Jones and Jenkins (A Firm) CA 22-Dec-1999
Where a personal injury claimant’s claim had been lost because of the solicitor’s negligence, the notional time for assessment of damages was the time at which a trial might properly have been expected to have been held. This did not however . .
Cited – 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 . .

Cited by:

Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 10 June 2022; Ref: scu.178848

Kennedy v K B Van Emden and Co; Jordan v Gershon Young Finer and Green and Similar: CA 27 Mar 1996

A solicitor failed in 1983 to advise a purchaser of the fact that premium she was paying on purchasing a leasehold flat was unlawful under the Act, and would be unrecoverable on the sale. Before trial however, in 1989 the law changed and the premium would now be recoverable.
Held: It was wrong to assess damages mechanistically, and though the usual rule would be to test the damages at the date of loss, it was right to include an assessment at the date of trial if that gave a better view of the actual loss.
Nourse LJ said: ‘the damages are to be assessed in the real world. Compensation is a reward for real, not hypothetical, loss. It is not to be made an occasion for recovery in respect of a loss which might have been, but has not been, suffered.’

Judges:

Lord Justice Nourse, Lord Justice Ward and Lord Justice Schiemann

Citations:

Gazette 01-May-1996, Times 05-Apr-1996, [1997] 2 EGLR 137

Statutes:

Rent Act 1977 127

Jurisdiction:

England and Wales

Citing:

Cited – County Personnel (Employment Agency) Ltd v Alan R Pulver and Co (a Firm) CA 1987
The claimant sought damages after his negligent solicitors had saddled him with a ruinous underlease. They had had to buy themselves out of the lease. The court considered the date at which damages were to be calculated.
Held: The starting . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .

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 . .
Cited – Bacciottini and Another v Gotelee and Goldsmith (A Firm) CA 18-Mar-2016
A property subject to a planning condition was purchased by the appellant under the advice of the respondent, who failed to notify him of the existence of a planning condition. The judge had awarded the claimant pounds 250 being the cost of the . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence, Landlord and Tenant

Updated: 10 June 2022; Ref: scu.82731

Triodos Bank, Dobbs, Acorn Televillages Limited v Dobbs and Others: ChD 19 Apr 2004

Judges:

The Honourable Mr Justice Lewison

Citations:

[2004] EWHC 845 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Triodos Bank Nv v Dobbs and Another ChD 8-Feb-2005
. .
Appeal from – Dobbs v Triodos Bank Nv (No 1) CA 15-Apr-2005
The defendant a litigant in person sought to stay his appeal. He asked the court to stay his appeal so that he could get legal aid, and to encourage the LSC to grant legal aid.
Held: The court refused. The defendant asserted that courts would . .
Lists of cited by and citing cases may be incomplete.

Banking, Professional Negligence

Updated: 10 June 2022; Ref: scu.195715

Flaxman-Binns v Lincolnshire County Council: CA 5 Apr 2004

When looking at whether to lift a stay on an action imposed before the coming into effect of the Civil Procedure Rules, the court should look at each of the items listed in the rule, and should then stand back and look at the overall needs of justice.

Judges:

Lord Justice Clarke Lord Phillips Of Worth Matravers, Mr Lord Justice Jacob

Citations:

[2004] EWCA Civ 424, Times 27-May-2004, [2004] 1 WLR 2232

Links:

Bailii

Statutes:

Civil Procedure Rules 39.2

Jurisdiction:

England and Wales

Citing:

Cited – Woodhouse v Consignia Plc; Steliou v Compton CA 7-Mar-2002
The claimant continued an action brought in her late husband’s name. The action had begun under the former rules. After the new rules came into effect, the action was automatically stayed, since no progress had been made for over a year. Her . .
Cited – La Baguette Ltd and Others v Audergon CA 23-Jan-2002
Judges should be careful not to create judicial checklists which added a gloss to the civil procedure rules. The claimant’s action had been stayed automatically for not having progressed for a year. The judge applied the checklist in Annodeus to . .
Lists of cited by and citing cases may be incomplete.

Education, Professional Negligence, Civil Procedure Rules

Updated: 10 June 2022; Ref: scu.195623

Capita Alternative Fund Services (Guernsey) Ltd and Another v Drivers Jonas (A Firm): ComC 9 Sep 2011

Judges:

Eder J

Citations:

[2011] EWHC 2336 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Capita Alternative Fund Services (Guernsey) Ltd and Another v Drivers Jonas (A Firm) CA 8-Nov-2012
The defendants appealed against the quantum of damages awarded against them for professional negligence in the valuation of a factory outlet centre. They said that in calculating damages for the trust claimants, the court should allow for the tax . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 10 June 2022; Ref: scu.444181

McLoughlin v Jones; McLoughlin v Grovers (a Firm): CA 2002

In deciding whether a duty of care is established the court must go to the ‘battery of tests which the House of Lords has taught us to use’, namely: ‘. . the ‘purpose’ test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the ‘assumption of responsibility’ test (Henderson v Merrett Syndicates Ltd); the ‘principles of distributive justice’ test (Frost v Chief Constable of South Yorkshire Police); and the ‘three-pronged’ test (Caparo Industries plc v Dickman). The fact that these tests are usually deployed in cases involving pure financial loss does not mean that they are inappropriate for use when the only damage in question is psychiatric illness’.
David Steel J considered the proper approach to preliminary isues: ‘In my judgement, the right approach to preliminary issues should be as follows: (a) Only issues which are decisive or potentially decisive should be identified. (b) The questions should usually be questions of law. (c) They should be decided on the basis of a schedule of agreed or assumed facts. (d) They should be triable without significant delay, making full allowance for the implications of a possible appeal. (e) Any order should be made by the court following a case management conference.’

Judges:

Brooke LJ, David Steel J

Citations:

[2001] EWCA Civ 1743, [2002] 2 WLR 1279, [2002] QB 1312, [2002] PNLR 2, [2002] PIQR P20

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – 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 – White, Frost and others v Chief Constable of South Yorkshire and others HL 3-Dec-1998
No damages for Psychiatric Harm Alone
The House considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy.
Held: The general rules restricting the recovery of damages for pure psychiatric harm applied to the . .
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 – Walker v Northumberland County Council QBD 16-Nov-1994
The plaintiff was a manager within the social services department. He suffered a mental breakdown in 1986, and had four months off work. His employers had refused to provide the increased support he requested. He had returned to work, but again, did . .

Cited by:

Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Cited – Bella Casa Ltd v Vinestone Ltd and others TCC 9-Dec-2005
. .
See Also – Mcloughlin v Jones and others CA 5-Jul-2006
. .
Cited – Calvert v William Hill Credit Ltd ChD 12-Mar-2008
The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages, Negligence

Updated: 10 June 2022; Ref: scu.195016

Daniels v Thompson: CA 18 Mar 2004

The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance Tax liability because she continued to live in the house.
Held: In this case the claim was statute barred in any event, but had the claim continued, it would have been asked when the loss occurred, and it would have been at the date of the gift, and not at any later date. Accordingly there would have been no damages to claim as by the executor, and the claim would have also failed for this reason. The court considered ‘inadequate transactions’: ‘There have been several cases where a negligent person (usually a solicitor) failed adequately to protect the client’s interests and/or procured less valuable rights for the client than should have been procured and/or did not secure for the client that to which he or she was entitled. In each of these cases the court has held that the client suffered loss when what I shall for convenience call ‘the inadequate transaction’ was concluded, and not at the later date when the risk against which the solicitor had failed to provide protection eventuated.’

Judges:

The Hon Mr Justice Gray Lord Justice Dyson Lord Justice Carnwath

Citations:

[2004] EWCA Civ 307, Times 23-Mar-2004, [2007] Lloyd’s Rep PN 16

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
Cited – Bell v Peter Browne and Co CA 1990
Mr Bell asked his solicitors to transfer the matrimonial home into his wife’s sole name. He was to receive a one-sixth interest of the gross proceeds on a sale. His interests were to be protected by a trust deed or mortgage. The solicitor drafted . .
Cited – Milton v Walker and Stanger 1981
The plaintiff instructed her solicitor to prepare documents and advise on a gift from P’s uncle to P and her cousin W in the proportions 2/3:1/3. P and W agreed that, should the farm be sold, the costs and capital gains tax (CGT) arising there from . .
Cited – D W Moore and Co Ltd v Ferrier CA 1988
The company took in a new director and shareholder, and relied upon their solicitors to draft a covenant to restrain him competing within a set time of leaving the company. The covenant turned out to be ineffective. The defendant solicitors replied . .
Cited – Baker v Ollard and Bentley CA 12-May-1982
The plaintiff and a Mr and Mrs Bodman agreed to buy a house. The plaintiff intended to live on the first floor and the Bodmans on the ground floor. The solicitor should have advised them to convey the freehold into their joint names and then to . .
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Macaulay and Farley v Premium Life Assurance Co Ltd 29-Apr-1999
Executors claimed as damages the amount of Inheritance Tax which became payable on death as a result of the negligent advice given to the deceased by the defendant.
Held: The damage claimed (liability for inheritance tax) was not suffered . .
Cited – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .

Cited by:

Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 10 June 2022; Ref: scu.194571

Haward and Others v Fawcetts (A Firm) and Another: CA 11 Mar 2004

The court looked at the date from which the limitation period ran in an action for professional negligence: ‘It is clear from the words of the section itself . . that it is concerned with knowledge of facts, as opposed to knowledge of matters of law. In particular, subsection (9) specifically excludes knowledge that the defendant acted negligently.’ (Jonathan Parker L.J)

Judges:

Mr Justice Charles Lord Justice Potter Lord Justice Parker

Citations:

[2004] EWCA Civ 240

Links:

Bailii

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Denekamp v Denekamp CA 8-Dec-2005
Appeal against striking out of claim and civil restraint order. . .
Appeal from – Haward and others v Fawcetts HL 1-Mar-2006
The claimant sought damages from his accountants, claiming negligence. The accountants pleaded limitation. They had advised him in connection with an investment in a company which investment went wrong.
Held: It was argued that the limitation . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 10 June 2022; Ref: scu.194410

Woodward v Wolferstans (A Firm): ChD 20 Mar 1997

The plaintiff purchased a house. Her mortgage was to be guaranteed by her father. The defendant solicitors acted for her and her father, but the father had almost exclusive contact with the firm, and was in practice their princpal client. She said that the solicitors had been negligent in faiing to advise her that she and not the guarantor would be liable as principle to make payments under the charge.
Held: Her claim failed. Though the solicitor’s duty of care extended beyond that to his immediate guarantor client to the person executing the mortgage also, and the solicitor had adopted the special relationship with the plaintiff so as to owe her a duty of care, his duty did not extend beyond securing proper execution of the deed, and the obtaining of a proper title. The solicitor’s contract was with the father, and the contract could not be rewritten by the court to add duties to a third party.

Judges:

Mrs Martin Mann QC

Citations:

Times 08-Apr-1997

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 . .

Cited by:

Cited – Hughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ) CA 9-Mar-2004
Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 10 June 2022; Ref: scu.90594

Glaister v Greenwood: ChD 26 Feb 2001

Judges:

Collins J

Citations:

[2001] EWHC Ch 453, [2001] PNLR 602

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Adams v Bracknell Forest Borough Council HL 17-Jun-2004
A attended the defendant’s schools between 1977 and 1988. He had always experienced difficulties with reading and writing and as an adult found those difficulties to be an impediment in his employment. He believed them to be the cause of the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 10 June 2022; Ref: scu.135552

Williams v Fanshaw Porter and Hazelhurst: CA 18 Feb 2004

The claimant alleged that her solicitors had concealed from her the fact that they had entered a consent order which dismissed her claim for medical negligence.
Held: The solicitor had failed to inform the client that her original claim against a doctor had been struck out although he was aware at the time that it was his duty to do so. The result was to postpone commencement of the limitation period against the claimant. The relationship of solicitor and client created a particular duty of disclosure.
Park J said: ‘ii) Although the concealed fact must have been relevant to the right of action, the paragraph does not say, and in my judgment does not require, that the defendant must have known that the fact was relevant to the right of action. In most cases where s.32(1)(b) applies the defendant probably will have known that the fact or facts which he concealed were relevant, but that is not essential. All that is essential is that the fact must actually have been relevant, whether the defendant knew that or not. The paragraph does of course require that the fact was one which the defendant knew, because otherwise he could not have concealed it. But it is not necessary in addition that the defendant knew that the fact was relevant to the claimant’s right of action. iv) The requirement is that the fact must be ‘deliberately concealed’. It is, I think, plain that, for concealment to be deliberate, the defendant must have considered whether to inform the claimant of the fact and decided not to. I would go further and accept that the fact which he decides not to disclose either must be one which it was his duty to disclose, or must at least be one which he would ordinarily have disclosed in the normal course of his relationship with the claimant, but in the case of which he consciously decided to depart from what he would normally have done and to keep quiet about it.’ Some of the claims succeeded and other failed.

Judges:

Mr Justice Brooke Lord Justice Mance Mr Justice Park

Citations:

[2004] EWCA Civ 157, Times 27-Feb-2004, Gazette 25-Mar-2004, [2004] PNLR 544, [2004] 1 WLR 3185

Links:

Bailii

Statutes:

Limitation Act 1980 32(1)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Sheldon and Others v R H M Outhwaite (Underwriting Agencies) Ltd and Others HL 5-May-1995
The limitation period did not run whilst relevant facts were deliberately concealed after the damage had been concealed. Section 32 could apply where the concealment of the relevant fact took place after the event as well as at the time of it. The . .

Cited by:

Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Taylor Aston Ltd v AON Ltd ComC 26-Jul-2005
The parties entered into a contract to support attempts to provide insurance in Khazakstan. The defendants argued limitation, the claimants argued for concealment.
Held: Deliberate concealment for limitation purposes meant just that. That had . .
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 09 June 2022; Ref: scu.193640

Society of Lloyd’s v Laws and others: ComC 28 Jan 2004

Judges:

The Honourable Mr Justice Cooke

Citations:

[2004] EWHC 71 (Comm), [2004] EWHC 130 (Comm)

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Laws and others v The Society of Lloyd’s CA 19-Dec-2003
The applicants sought to amend earlier pleadings to add a claim that their human rights had been infringed by the 1982 Act, which gave the respondents certain immunities.
Held: The Human Rights Act 1998 was not retrospective. At the time when . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Professional Negligence, Insurance

Updated: 09 June 2022; Ref: scu.192353

Wyatt v Curtis: CA 30 Oct 2003

The first defendant, Dr Curtis, then a locum general practitioner, failed to warn the claimant, Miss Wyatt, who presented with chickenpox, about the consequent risk to her unborn child. It was admitted at trial that this had been negligent. It was accepted also that the child was born with serious abnormalities caused by the chickenpox. What was not admitted was that, had she been warned by Dr Curtis, Miss Wyatt would have sought and obtained a termination of her pregnancy, which was then in its fourteenth week.
Sedley LJ commented that there was something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about.

Judges:

Schiemann, Sedley, Kay LJJ

Citations:

[2003] EWCA Civ 1779

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Professional Negligence

Updated: 08 June 2022; Ref: scu.188725

Marsh v Sofaer and Another: ChD 3 Dec 2003

The claimant had instructed the defendant firm of solicitors in civil proceedings. At a later time, she was prosecuted convicted and sentenced for criminal acts. She claimed that the defendant solicitor who had come to believe that she did not have mental capacity, should have passed on that view to the other firm, which may have affected the outcome of her criminal trial.
Held: The claim failed. The solicitor had no duty to inform the other solcitor of his view. The second solicitor could be assumed toi be able to make such an assessment himself, and it would have been a breach of his duty of confidence to the claimant.

Judges:

Sir Andrew Morritt, VC

Citations:

Times 10-Dec-2003, [2003] EWHC 3334 (Ch), [2007] Lloyd’s Rep PN 10

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Marsh v Sofaer and Another ChD 25-May-2006
. .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 08 June 2022; Ref: scu.188701

Wardlaw v Dr Farrar: CA 27 Nov 2003

The claimant appealed an award of andpound;1,000 damages for the death of his wife for professional negligence. Doctors had differed as to whether the delay complained of had contributed to the death.
Held: It was vital now that medical negligence cases were being conducted in the county court that practice as to experts’ disclosure of research in the High Court should be followed there also. Had that been done here there would have been a much more orderly approach to the medical evidence.

Judges:

Dame Elizabeth Butler-Sloss (President of the Family Division) Lord Justice Brooke (Vice-President of the Court of Appeal (Civil Division)) and

Citations:

[2004] Lloyd’s Rep Med 98, Gazette 22-Jan-2004, Times 05-Dec-2003, [2003] EWCA Civ 1719

Links:

Bailii

Statutes:

Law Reform (Miscellaneous Provisions) Act 1934, Fatal Accidents Act 1976

Jurisdiction:

England and Wales

Citing:

Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
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 by:

Cited – Breeze v Ahmad CA 8-Mar-2005
The deceased’s widow claimed that the GP defendant had failed to ensure the proper treatment of the deceased, leading to his death. The court had found the defendant negligent, but that the negligence had not caused the death.
Held: The judge . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice

Updated: 08 June 2022; Ref: scu.188279

Gene Chandler Laib v Renuka Aravindan (Practicing As HKH Partnership Solicitors) Khurram Mian: QBD 30 Oct 2003

The appellant claimed damages for professional negligence against his former solicitors. His bank had obtained posession of his mortgaged flat. He had requested his solicitors to issue a counterclaim. His action was dismissed on the basis that the possibility of a counterclaim had been lost with the order for possession.
Held: There were circumstances where the action might have continued after the possession order, and in those proceedings he might have counterclaimed. He had now lost that chance. There was a difference between a satisfied judgment and a satisfied claim.

Judges:

The Hon Mr Justice Morland

Citations:

[2003] EWHC 2521 (QB), Times 13-Nov-2003

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence

Updated: 08 June 2022; Ref: scu.187279

Sinclair Roche and Temperley (A Firm) v Somatra Ltd (Damages): CA 23 Oct 2003

The ‘Somatra’ was lost at sea. The insurance claim had been refused on the basis that the ship was unseaworthy. The owners came to instruct the appellant solicitors to represent them in the insurance claim. Having lost confidence in the solicitors, they had to change solicitors shortly before the trial, and said they were unable to claim the 75% of their claim they would have settled for at trial. The solicitors appealed against an award of the difference between that sum and the sum actually received.
Held: The appeal failed. There had been a clear chance of settling at the figure claimed.
The judge was entitled to make the award of costs he had ordered because of his findings as to the behaviour of the solicitor-partner involved.

Judges:

Schiemann, Tuckey, Longmore LJJ

Citations:

[2003] 2 Lloyd’s Rep 855, [2003] EWCA Civ 1474

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – ABCI v Banque Franco-Tunisienne and others CA 27-Feb-2003
‘The thinking behind the CPR was that they would speak for themselves and that courts would not have to refer to an ever increasing body of authority in order to apply them.’ . .
Cited – Home Office v Lownds (Practice Note) CA 21-Mar-2002
The respondent had been ordered to pay costs of over pounds 16,000 in an action for clinical negligence where the final award was only pounds 4,000. The Secretary of State appealed claiming that the costs were disproportionate.
Held: In such . .
Cited – Somatra Ltd v Sinclair Roche and Temperley CA 28-Mar-2003
. .

Cited by:

Main Judgment – Sinclair Roche and Temperley (A Firm) v Somatra Ltd (Documents) CA 23-Oct-2003
The court refused an application for further documents to be disclosed, the application being made on the day before the hearing of the appeal. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 08 June 2022; Ref: scu.187061

European International Reinsurance Co Ltd v Curzon Insurance Ltd and Others: CA 22 Jul 2003

Re-insurers sought to repudiate liability under policies taken out to provide cover against asbestos claims. The primary insurers obtained oredrs joinging in the brokers who had arranged the re-insurance, and the brokers appealed those orders.
Held: It was arguable that the insurance brokers arranging the re-insurance owed a duty of care to the primary insurers to use reasonable skill and care in placing that re-insurance, and also that their employers were vicariously liable for any negligence of their employees in such placements. The case was stronger than in Punjab National and should proceed.

Judges:

Judge, Kay, Longmore LJJ

Citations:

[2003] EWCA Civ 1074, Times 21-Aug-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Punjab National Bank v de Boinville CA 1992
The plaintiff was a person whom the broker knew was to become the assignee of an insurance policy, and the plaintiff had actively participated in giving instructions to the broker for the purchase of the relevant policy.
Held: A duty of care . .
Lists of cited by and citing cases may be incomplete.

Insurance, Professional Negligence

Updated: 08 June 2022; Ref: scu.186035

Hammersmith Hospitals NHS Trust and Others v Troup Bywaters and Anders (A Firm): TCC 12 Nov 1999

Contract – professional negligence – duty of care – general consulting engineers – advice to NHS trust whether negligent – expert evidence – admissibility of evidence in the same profession with specialist professional expertise.

Judges:

His Honour Judge John Toulmin Cmg Qc

Citations:

[1999] EWHC Technology 273

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Professional Negligence, Evidence

Updated: 08 June 2022; Ref: scu.185886

Nina Naicker Gow v Dr Rosemary Harker: CA 31 Jul 2003

The defendant had taken a blood sample. The claimant asserted that because the needle had been inserted incorrectly she had suffered damage to her wrist.
Held: Guidance from cases involving allegations of fraud could be relevant when assessing evidence in a case which was inherently unlikely. Something happened, but it was very unlikely to be what the claimant described. The judgment could not be upheld. A retrial was ordered.

Judges:

Lord Justice Brooke Mr Justice Holman Lord Justice Waller

Citations:

[2003] EWCA Civ 1160, Gazette 02-Oct-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) CA 1985
Proof of corruption not needed for bribe
In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the . .
Cited – Grace Shipping v CF Sharp and Co (Malaya) Pte Ltd PC 10-Dec-1986
(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord . .

Cited by:

Cited – Henry v British Broadcasting Corporation QBD 9-Mar-2006
The claimant said that the defendant had accused her of falsifying hospital waiting statistics. The defendant pleaded justification.
Held: There were stark differences in the evidence given by different witnesses. Nevertheless the evidence . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 07 June 2022; Ref: scu.185229

Polley v Warner Goodman and Streat (A Firm): CA 30 Jun 2003

A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much less than the loss which he ultimately suffers as a result of the negligence. The the issues identified in Hatton should be added ‘a sixth proposition, namely: damage often occurs before it can be crystallised, and difficulties of quantification do not prevent damage from being said to have occurred.’

Judges:

Clarke LJ

Citations:

[2003] EWCA Civ 1013, [2003] PNLR 40

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .

Cited by:

Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract, Legal Professions

Updated: 07 June 2022; Ref: scu.184814

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 valuation.
Held: Part of the skills of a chartered accountant, especially one who is willing to undertake a valuation of shares, is the valuation of shares. The properties should not have been valued on a portfolio basis. Too great a deduction for contingent tax was allowed. A deduction for non-listed status was based on an error of principle, but was within the permissible range. He was not negligent in making a deduction to reflect a 75 per cent probability that the options would be exercised. The permissible range is between 50 and 75 per cent. The mean is 62.5 per cent. The valuation remained within the permissible range. Negligence would not be shown if the figure advised was within the range of permissible figures, even if it was reached negligently. Where a figure was made up of several others, a brackert was to calculated for each, not just for those involving negligence. No loss was shown and the action dismissed.

Judges:

The Honourable Mr Justice Lewison

Citations:

Gazette 11-Sep-2003, HC 02 C00884, [2003] EWHC 1574 (Ch), Times 16-Jul-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Singer and Friedlander Ltd v Wood 1977
Valuers acting competently and professionally may reach widely varying conclusions as to value. There is a permissible margin of error, the ‘bracket’. What can properly be expected from a competent valuer using reasonable care and skill is that his . .
Cited – Mount Banking Corporation Ltd v Brian Cooper and Co QBD 1992
The plaintiff submitted that where the final valuation figure is within the Bolam principle, an acceptable figure, albeit towards the top end, but where none the less the valuer has erred materially in reaching that figure, the plaintiff can succeed . .
Cited – Zubaida v Hargreaves CA 1995
In the general run of actions for negligence against professional men it is not enough to show that another expert would have given a different answer. The issue is whether the defendant acted in accordance with practices which are regarded as . .
Cited – Craneheath Securities v York Montague CA 1996
When testing whether a valuation was negligent, it would not be enough for the plaintiff to show that there have been errors at some stage of the valuation unless they can also show that the final valuation was wrong. would not be enough for the . .
Cited – Lion Nathan Limited and others v C C Bottlers Limited and others PC 14-May-1996
(New Zealand) A company was sold with a warranty that the sales figures would meet projected earnings. The purchaser successfully complained after the event that the figures were false and misleading. They appealed an order increasing the damages on . .
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 – Legal and General Mortgage Services v HPC Professional Services 1997
The claimant submitted that he was entitled to succeed in his claim gthat a valuation was negligent, either by showing that the valuer’s final figure was outside the bracket within which any competent valuer using reasonable skill and care could . .
Cited – Merivale Moore Plc; Merivale Moore Construction Limited v Strutt and Parker (a Firm) CA 22-Apr-1999
An agent valuing a commercial property and estimating the return to be obtained without qualification, was responsible in damages where the clients would not have proceeded on properly qualified advice. The process of valuation does not admit of . .
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 – Curry’s Group Plc v Martin QBD 13-Oct-1999
The valuer valued a lease for a rent review clause, after advice, on the basis that the rent stated was to be a headline rent. The claim was dismissed because a valuer acting in such a situation was not substantially different from one undertaking a . .
Cited – Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
Cited – Sansom and Another v Metcalfe Hambleton and Co CA 17-Dec-1997
The court warned against finding a professional to have been negligent on the evidence of an expert who was not a member of the same profession. A structural survey was prepared by a chartered surveyor. Expert evidence for the plaintiff was given, . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence

Updated: 07 June 2022; Ref: scu.184170

Douglas Williams and others v Glyn Owen and Co: CA 11 Jun 2003

Land was sold at auction. The particulars appeared to included valuable milk quota. The vendor was unable to complete, but no completion notice was served. The judge had held that the correct measure of damages was the difference (in financial terms) between what would have happened had a completion notice been served by Mr Williams and what actually happened. That sum was small.
Held: the judge’s treatment of the evidence was unsatisfactory. Had the purchaser obtained possession, he might have been able to trade at a profit for the intervening period. Damages were increased to reflect those losses.

Judges:

Lord Justice Auld Lord Justice Clarke Lord Justice Jonathan Parker

Citations:

[2003] EWCA Civ 750

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Banco de Portugal v Waterlow and Sons Ltd HL 28-Apr-1932
Lord Macmillan said: ‘Where the sufferer from a breach of contract finds himself in consequence of that breach placed in position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 07 June 2022; Ref: scu.183376

O’Donnell and Another v Imray and others: SCS 25 Apr 2003

The pursuer said that the defendants, her former solicitors, had been negligent when advising her. She was to claim for personal injury, but when the limitation period expired, they closed the file without advising her of the possibility of applying for an extension of time.
Held: To establish a claim, the pursuer had to show that the lost claim had some ‘ascertainable, measurable, non-negligible value’. Here the pursuer would have the burden of persuading the court that it was right that her claim should proceed out of time. Looking at the matter in all probability, she would have failed, and nor indeed had she succeeded at that stage was there any great prospect of success. Though the solicitors had been negligent, they were entitled to a decree of absolvitur because the pursuer’s claim had little value.

Judges:

Lord Emslie

Citations:

[2003] ScotCS 122

Links:

Bailii, ScotC

Statutes:

Prescription and Limitation (Scotland) Act 1973 19A

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

Scotland, Professional Negligence

Updated: 07 June 2022; Ref: scu.181528

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 account for completion of an investment in shares of a private company and were in consequence liable to reconstitute the trust fund. The instructions given to the original solicitors were only to pay over the monies held against completion of both the issue of shares to the investors and the assignment to them of the benefit of a trade name, which they required as security for their investment. In fact the funds were released at the completion meeting when the shares were issued but the assignment of the trade name was not executed. If it had been, it would probably have been valueless in any event, as matters transpired, and it was argued that the investors had therefore suffered no loss.
Held: Aldous LJ said: ‘The second ground upon which the defendants sought permission to appeal was that the judge had wrongly concluded that the breach of trust had caused the applicants loss. They submitted upon the basis of the speech of Lord Browne-Wilkinson in Target Holdings Ltd v Redferns [1996] AC 421, that the remedy for the breach of this trust was not reconstitution of the trust fund, but to put the claimants in the position that they would have been in but for the breach. In the present case the breach had been the failure to obtain the assignment. To remedy that breach Linnells needed to compensate the claimants for the loss of that assignment. In the present case that loss was negligible in that the trade mark had proved to be valueless or there was no evidence to prove that it was of substantial value.
I reject that submission for two reasons. First, in the present case the breach was the release of the money. The trust required the money to be held against provision of both the shares and the assignment. As there had been no assignment, the money should not have been paid out. Second, the principle in Target only applies where the underlying transaction covered by the trust had been completed . .
In the present case there was a trust fund made up of money supplied by Mr Knight, Mr Hodgkinson, Mr McIntosh and subsequently Mr Keay. The transaction had not been completed. The breach was the payment and the remedy for that breach is reconstitution of the trust fund. The judge was right to reject this submission and there are in my view no grounds for giving permission to appeal.’

Judges:

Aldous LJ

Citations:

[2003] EWCA Civ 223

Links:

Bailii

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.

Company, Professional Negligence

Updated: 07 June 2022; Ref: scu.181131

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 negligence arose, the first claim was worthless. The claimant knew of the negligence of his solicitors at that time, both as to the existence of any damage, and of the possibility of a claim. The court summarised the principles as follows: ‘(i) A cause of action in negligence does not arise until the claimant suffers damage as a result of the defendant’s negligent act or omission. (ii) The damage must be ‘real’ as distinct from minimal: Cartledge v Jopling [1963] AC 758 per Lord Reid . . and Lord Evershed MR . . (iii) Actual damage is any detriment, liability or loss capable of assessment in money terms and includes liability which may arise on a contingency: Forsted v Outred [1982] 1 WLR 86 per Stephenson LJ at 94, approved by the House of Lords in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd No 2 [1995] 1 WLR 1627, per Lord Nicholls (with whom the other members of the appellate committee agreed) . . (iv) The loss must be relevant in the sense that it falls within the measure of damages applicable to the wrong in question: Nykredit at 1630F. (Propositions (i) to (iv) were confirmed by Sir Murray Stuart-Smith in Khan v Falvey [2002] EWCA Civ 400, [2002] PNLR 28, at paragraphs 11 and 12.)
(v) A claimant cannot defeat the statute of limitations by claiming only in respect of damage which occurs within the limitation period if he has suffered damage from the same wrongful act outside that period: Khan v Falvey . . following Knapp v Ecclesiastical Insurance Group Plc [1998] PNLR 172 per Hobhouse LJ . .’ The claim now was time barred. Appeal allowed.
Clarke LJ said: ‘Khan v Falvey is authority for the proposition that it is not a condition precedent for any claim against defendant solicitors that the underlying action should have been struck out. That is because the claimant may have suffered relevant damage before an order is made striking the action out. The question remains by what criteria to judge when that moment arises. Although that question was discussed in the judgments in Khan v Falvey, as I read them it was not necessary to decide it for the purposes of the decision in that case. Nor is it to my mind necessary for it to be determined for the purposes of the decision in this appeal.
It seems to me that there are three possibilities as to when damage is caused by negligence in such a case so that the claimant’s cause of action has accrued and time begins to run against him. The first is when the claimant has no arguable basis for avoiding the claim being struck out, the second is when it is more probable than not that the claim will be struck out and the third is when there is a real (as opposed to a minimal or fanciful) risk of the claim being struck out. The reason why it is not necessary to determine which of those possibilities is correct here is that, in my opinion, this is an example of the first class of case on the facts.
As I read it, Khan v Falvey was also an example of such a case. This can be seen with particular clarity in the judgment of Schiemann LJ. He noted in paragraphs 65 and 66 that in both Case 1 and Case 3 (which were the first two of the cases being considered) the claimant had pleaded that by a certain date his claim (or in one case counterclaim) was ‘amenable to be struck out for want of prosecution’.’
Sir Anthony Evans agreed that at the relevant time, the action was already doomed to fail, and added: ‘This is clear, in my judgment, because any attempt to proceed with the action against the accountants in October 1994 would have been met with an application to dismiss the claim for want of prosecution, and the application would certainly have succeeded. The action was, on any view, ‘amenable to striking out.’ The fact that the striking out order was not made until June 1999, after an even more belated attempt to revive the proceedings in January 1999, does not alter the circumstances as they were in 1994.
It is unnecessary, therefore, in the present case to define the precise nature of the evidential burden which rests upon the claimant in cases of this sort. Nevertheless, an issue does arise, which was argued before us. Is it sufficient to prove that there was some chance – a ‘real’ or ‘substantial’ chance – that the claim would have been struck out at the relevant date, if an application had been made? Or must the claimant prove something more – perhaps, that an application would probably have succeeded, if one had been made?
The former view receives some support from statements which are found in the authorities to the effect that the relevant kind of loss is the diminished value of the claim. Some diminution occurs when a striking out application would have some prospect of success, though falling short of 50 per cent. Yet in such a case it could not be said that the application would probably succeed or that the claim was probably worthless.’

Judges:

Lord Justice Peter Gibson Lord Justice Clarke Sir Anthony Evans

Citations:

[2003] EWCA Civ 341, [2003] PNLR 24, [2007] Lloyd’s Rep PN 15

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Khan v R M Falvey and Co (a Firm) CA 22-Mar-2002
The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
Cited – Cartledge v E Jopling and Sons Ltd HL 1963
The plaintiffs were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of . .
Cited – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – Knapp v Ecclesiastical Insurance Group Plc and Another CA 30-Oct-1997
A claim in negligence was brought against insurance brokers for failing to advise the claimant of certain matters with the result that an insurance policy entered into by the claimant was voidable for non-disclosure.
Held: The claimant . .
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 by:

Cited – Polley v Warner Goodman and Streat (A Firm) CA 30-Jun-2003
A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice, Limitation

Updated: 07 June 2022; Ref: scu.179741

Sahib Foods Limited and Co-operative Insurance Society Limited v Paskin Kyriakides Sands (A Firm): TCC 3 Mar 2003

The claimants were lessees of premises, and the second claimants had contracted to purchase it. The premises burned down, and the claimants sought damages from the architect respondents. The fire began because of negligence by the claimant’s employee in a preparation area after leaving a gas fire burning.
Held: The defendants had failed in their design to provide proper safeguards. Damages were to be assessed by first assessing the total loss to Sahib (both physical and consequential in terms of trading loss), and then deducting the total of what would have been lost (both physical and consequential) if the fire had been contained but for the design fault.

Judges:

His Honour Judge Bowsher Q.C.

Citations:

[2003] EWHC 142 (TCC)

Links:

Bailii

Citing:

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 . .
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 – Pride Valley Foods Limited v Hall and Partners and Hall and Partners (Contract Management) Limited CA 28-Jun-2001
The defendants had advised on the construction of a plant. It later burned down, and the fire would have been less damaging but for materials used. The plaintiff sought damages for breach of contract and negligence. The judge at first instance held . .

Cited by:

Appeal from – Sahib Foods Limited (In Liquidation) v Paskin Kyriakides Sands (A Firm) CA 19-Dec-2003
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Construction, Damages

Updated: 07 June 2022; Ref: scu.179554

Carr v Bower Cotton: CA 18 Dec 2002

The claimant had been victim to a substantial fraud. The defendant solicitors had been an innocent tool of the fraud. The claimant sought damages alleging professional negligece.

Judges:

Lord Justice Chadwick Lord Justice Ward Lady Justice Arden

Citations:

[2002] EWCA Civ 1788

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence

Updated: 07 June 2022; Ref: scu.178816

The Estate of Mohammed Sabir Raja (Deceased) v Austin Gray (A Firm): QBD 31 Jul 2002

The claimant sought damages for negligent valuation of properties belonging to the deceased, but taken into receivership under charges taken by a company who in turn charged its assets to a bank. When the debenture was enforced, the charges were also enforced. The defendants denied a duty of care to the deceased. The defendants knew that the claimant’s equity of redemption would be affected by the sale prices.
Held: Medforth said that a receiver had duties in equity to the chargor. Both foreseeability and proximity were satisfied, though the contracts did not form a sufficient contractual chain, to impose a duty in contract.

Judges:

Mr Justice Buckley

Citations:

[2002] EWHC 1607 (QB)

Links:

Bailii

Citing:

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 – Medforth v Blake and others CA 26-May-1999
A receiver appointed to manage a business had duties over and above those of mere good faith. A receiver who failed to obtain discounts normally obtainable for supplies to the business might be liable for that failure. when considering the position . .

Cited by:

Appeal from – Raja v Austin Gray (A Firm) CA 19-Dec-2002
A mortgagee is at all times free to consult his own interests alone as to whether and when to exercise his power of sale. The relationship and duties owed by the receiver are equitable only. Peter Gibson LJ said: ‘(1) A mortgagee with the power of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract

Updated: 06 June 2022; Ref: scu.174431

Moy v Pettman Smith (A Firm): CA 19 Jun 2002

The claimant had pursued an action for damages for professional negligence against a hospital treating his broken tibia. He now sought damages after the defendant firm of solicitors acting for him in the first action had, he said, failed to obtain further medical reports in time, which adequately and properly addressed the issues of prognosis and causation, particularly in relation to lost earning capacity.

Judges:

Brooke, Latham, LJJ, Hart J

Citations:

[2002] EWCA Civ 875, [2002] Lloyd’s Rep PN 513

Links:

Bailii

Statutes:

Civil Liability (Contribution) Act 1978 1(5)

Jurisdiction:

Scotland

Cited by:

See Also – Moy v Pettman Smith (A Firm) and Another CA 25-Mar-2003
. .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 06 June 2022; Ref: scu.174171

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 liability was in negligence not trespass (Chatterton) The doctor must still properly inform the patient of risks so that the patient can take an informed decision in consenting. The Chappel case was properly followed, and the doctor was liable in negligence.

Judges:

Lady Justice Hale

Citations:

Times 13-Jun-2002, Gazette 18-Jul-2002, [2002] EWCA Civ 724, [2003] QB 356, [2002] 3 All ER 552, [2002] 3 WLR 1195, 67 BMLR 66

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Chatterton v Gerson QBD 1980
The doctor failed to explain possible consequences of an operation both on a first operation, and on a subsequent corrective operation.
Held: The failure to explain the general nature of an operation negatived the patient’s consent. The doctor . .

Cited by:

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

Professional Negligence, Health Professions

Updated: 06 June 2022; Ref: scu.171338

Boateng v Hughmans (A Firm): CA 10 May 2002

The court was asked: ‘What has to be proved by the claimant in a case where the negligence of his solicitor has consisted of the failure to give him proper advice, in order to establish a sufficient causal link between the solicitor’s negligence and the loss which he has sustained and thus entitle him to substantial damages?’
Held: Sir Christopher Slade said: ‘It is by now trite law that it does not suffice for a claimant who seeks to recover substantial damages arising out of his solicitors’ failure to give him proper advice as to the risks of a proposed transaction to show that such failure occurred and that he suffered loss under the transaction. In such a case, it cannot be presumed that the negligent solicitor caused the loss. The claimant has to prove a connection, sometimes called a ‘causal link’, between the negligence and the loss which justifies making the solicitor pay substantial damages. Simple logic requires that, to show such causal link, he must first satisfy the court as to what action, if any, he would have taken to avoid the loss if proper advice had been given. If he fails to satisfy the court on this point, he can recover no more than nominal damages. Even if he satisfies the court that, in the events which happened, the loss would have been avoided if relevant advice had been given, the court will still have to decide whether the loss suffered was in fact caused by the failure to give such advice.’

Judges:

Mummery, Latham LJJ, Sir Christopher Slade

Citations:

[2002] EWCA Civ 593, [2002] Lloyds Reports PN 449

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Orientfield Holdings Ltd v Bird and Bird Llp ChD 26-Jun-2015
The c;aimant alleged breach of contract and or professional negligence by the defendant solicitors when acting for it in the purchase of land. Contracts had been exchnged but on the discovery of proposed development nearby, they had failed to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 06 June 2022; Ref: scu.171244

Johnson v Gore Wood and Co (A Firm): ChD 3 May 2002

The respondent firm acted on behalf of the claimant’s companies in land transactions. An option had been taken to purchase land, and he instructed the defendants to exercise it. The landowner claimed the notice to exercise the option was invalidly served. By the time the issue was resolved the land had again fallen in value. The respondents argued that the losses incurred by the claimant personally rather than by his company’s were the result of his business decisions. The respondents also argued that they owed any duties to their company client rather than the claimant in person. In this case because of the origin and nature of the original instructions such a duty did exist. However the claimant failed to establish that several heads of losses did flow from the negligence of the defendants.

Judges:

The Honourable Mr Justice Hart

Citations:

[2002] EWHC 776 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – Lee v Sheard CA 1956
The negligence of a car driver resulted in an injury to the plaintiff who was one of two directors and shareholders of a limited company and did outside work of buying and selling linen goods for it. As a consequence of the accident the plaintiff . .
See Also – Johnson v Gore Wood and Co (A Firm) QBD 20-Feb-2002
The claimant alleged negligence by the defendant solicitors. . .
See Also – 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 . .

Cited by:

See Also – William John Henry Johnson v Gore Wood and Co CA 3-Dec-2003
. .
See Also – William John Henry Johnson v Gore Wood and Co CA 27-Jan-2004
The defendant had made a substantial payment into court in protracted proceedings.
Held: The comparison between the payment in and the eventual amount of damages awarded should be assessed on the basis of the damages calculated as at the date . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 06 June 2022; Ref: scu.171258

Cape and Dalgleish v Fitzgerald and others: HL 25 Apr 2002

The employee was dismissed. After a compromise of the claims and counter claims, the employers sought damages from their accountants for failing to spot the losses. The accountants then sought to recover the damages awarded from the employee, not having been party to the settlement. Did the settlement extinguish his liability?
Held: The case of Heaton applied. Whether a settlement was a compromise of such a claim, is a matter of construction, having regard to all the relevant surrounding facts of each case. The settlement appeared to have been intended to be a broad brush approach. In this case it could not be read to be a full settlement of all losses.

Judges:

Lord Bingham of Cornhill Lord Mackay of Clashfern Lord Steyn Lord Hope of Craighead Lord Rodger of Earlsferry

Citations:

[2002] UKHL 16

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Cited – Jameson and Another v Central Electricity Generating Board and others HL 16-Dec-1998
A joint tortfeasor’s concurrent liability was discharged entirely by a full and final settlement and compromise of the claim against the other tortfeasor if in respect of the same harm. A dependency claim made by the claimant’s executors could not . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 06 June 2022; Ref: scu.171308

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 solicitors had a duty to them to disclose this fact about the other party.
Held: The solicitors were not under a duty to disclose to their client something which had come to their knowledge in an unrelated earlier transaction. The duty of disclosure depended upon the extent of the retainer. He had a duty to keep confidential information derived from an earlier transaction. If a solicitor acted for two parties, he may become obliged to disclose to the other information obtained in the course of that retainer, and could not excuse his duty to one by reference to the duty to the other.

Judges:

Lord Justice Jonathan Parker, Walker LJ

Citations:

Times 06-Jun-2002, Gazette 06-Jun-2002, [2002] EWCA Civ 723, [2002] Lloyds Rep PN 500

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – Bristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Distinguished – 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 . .

Cited by:

Appeal from – 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 . .
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 – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Contract

Updated: 06 June 2022; Ref: scu.171276

Dougan v Lanarkshire Acute Hospitals NHS Trust: OHCS 3 Apr 2001

Judges:

Lord Nimmo Smith

Citations:

[2001] ScotCS 83

Links:

Bailii, ScotC

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.

Scotland, Professional Negligence

Updated: 05 June 2022; Ref: scu.169053

Ezekiel v Lehrer: CA 30 Jan 2002

The applicant claimed that his solicitor had been negligent with regard to the execution of a mortgage. The solicitor said his claim was time barred. The claimant said the solicitor had hidden the true situation from him, and the solicitor replied that he had merely refused to answer a question put to him, but had instead advised him to take independent advice. The claimant appealed a finding against him.
Held: The claimant asserted that he had learned of the facts, then forgotten them until five years later. He could not claim to have been unaware of them so as to extend the limitation period.

Judges:

Lord Justice Ward Lord Justice Jonathan Parker And Mr Justice Harrison

Citations:

[2002] EWCA Civ 16, [2002] Lloyd’s Law Rep PN 260

Links:

Bailii

Statutes:

Limitation Act 1980 32(1)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Sheldon and Others v R H M Outhwaite (Underwriting Agencies) Ltd and Others HL 5-May-1995
The limitation period did not run whilst relevant facts were deliberately concealed after the damage had been concealed. Section 32 could apply where the concealment of the relevant fact took place after the event as well as at the time of it. The . .
Appeal from – Ezekiel v Lehrer ChD 21-Mar-2001
The claimant had given instructions to the defendant with regard to a charge. The defendant came to know that he had made an error, and when asked by the claimant, declined to answer, and referred the claimant to independent advice. The claimant now . .
Cited – Cave v Robinson Jarvis and Rolf CA 20-Feb-2001
The court was asked as to the meaning of the word ‘deliberate’ as it appeared in section 32(2) of the 1980 Act. . .
Cited – James Brocklesby v Armitage and Guest (a Firm) CA 9-Jul-1999
A failure by an adviser to make his position clear when he thought he had been negligent, could constitute a ‘deliberate’ act within section 32 even if the defendant’s actions were not motivated by any intention to deceive the claimant: ‘it is not . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Limitation

Updated: 05 June 2022; Ref: scu.167903

Petersen v Personal Petersen (Deceased), Representative of: CA 31 Jan 2002

The claim was against a solicitor for negligence. The claimant had purchased a property in respect of which there was an unsettled dispute, He claimed that the solicitor had accepted a condition under which he accepted a proportion of the liability for the action. The estate of the client now appealed a finding of no damages for the one head of liability allowed.
Held: The court must examine the scope of the relevant duty by reference to the kind of damage from which the solicitor must take care to save the plaintiff harmless. The transaction was entirely neutral as to the value of the assets eventually held by the estate. The appeal failed.

Judges:

Lord Justice Potter Lord Justice May Sir Murray Stuart Smith

Citations:

[2002] EWCA Civ 194

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Professional Negligence, Legal Professions

Updated: 05 June 2022; Ref: scu.167914

YAH v Medway NHS Foundation Trust: QBD 5 Nov 2018

The Claimant claimed damages for psychiatric injuries associated with her daughters birth.
The Defendant resists this claim and argues that the Claimant is not entitled to recover damages for psychiatric injury.

Judges:

Mrs Justice Whipple

Citations:

[2018] EWHC 2964 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Personal injury

Updated: 05 June 2022; Ref: scu.628232

Gribbon v Lutton and Another: CA 19 Dec 2001

The defendant solicitors acted in obtaining and holding a deposit on the sale of land. They issued interpleader proceedings which decided that the deposit was payable to the purchaser. The vendor then sued the solicitors in negligence. The solicitors were faced with two courts making different and contradictory decisions on the same facts as to the destination of the deposit, and claimed that the decision of the first court was incorrect.
Held: The solicitor had initiated the interpleader proceedings, and could not be heard to complain about it. The application was an abuse of process. The claim in negligence succeeded because the defendants had failed to secure for their client an enforceable bipartite agreement under which the deposit would be forfeit if the prospective purchaser did not proceed. No issue estoppel arose in their favour because they were not parties in any real sense to the original proceedings.
Laddie J, sitting as a judge of the Court of Appeal, said (as to Chillingworth): ‘All the judge was saying was that if that [the 10 July document] had been a binding contract, suitable wording could have been inserted into it to make the deposit non-refundable.’

Judges:

Lord Justice Pill, Lord Justice Robert Walker and Mr Justice Laddie

Citations:

Times 04-Dec-2001, [2001] EWCA Civ 1956, [2002] 2 EGCS 100, [2002] NPC 2, [2002] QB 902, [2002] PNLR 19, [2002] 2 WLR 842, [2002] Lloyd’s Rep PN 272

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Explained – Chillingworth v Esche CA 1923
The purchasers agreed in writing to purchase land ‘subject to a proper contract to be prepared by the vendors’ solicitors’ accepting andpound;240 ‘as deposit and in part payment of the said purchase money’. A contract was prepared by the vendor’s . .

Cited by:

Cited – Sharma and Another v Simposh Ltd CA 23-Nov-2011
The parties created an oral (and therefore void) contract for a development, the claimants paid a deposit, expressed to be non-refundable, and the defendant builders completed the building work. The buyers backed out. The developer now appealed . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice, Estoppel

Updated: 05 June 2022; Ref: scu.167323

Gooden v Northamptonshire County Council: CA 20 Nov 2001

The Council went above and beyond its statutory duty to maintain a list of the streets maintainable at public expense when responding to a specific enquiry about certain roadways.
Held: When responding to the enquiry, the council was aware of the identified individual purchaser.

Judges:

The Vice-Chancellor, Lord Justice Buxton, And, Lady Justice Arden

Citations:

[2001] EWCA Civ 1744, [2001] 49 EGCS 116, [2002] PNLR 18, [2002] 1 EGLR 137, [2001] NPC 167

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 04 June 2022; Ref: scu.166853

Groom v Selby: CA 18 Oct 2001

The defendant negligently failed to discover the claimant’s pregnancy. A severely disabled child was born. The question was as to the responsibility for payment of excess costs of raising a severely disabled child, a claim for economic loss. The child was damaged as a foreseeable result of contamination as it passed through the birth canal. An award of compensation limited to the special upbringing associated with rearing a child with a serious disability was fair, just and reasonable.
Held: (Brook LJ) ‘there was no difficulty in principle in accepting the proposition that the doctor should be deemed to have assumed responsibility for the foreseeable and disastrous consequences of performing her services negligently. The doctor knew that the claimant had been sterilised and wanted no more children (let alone children with serious handicaps) and the duty of care included the purpose of ensuring that if the claimant was pregnant again she should be informed of that to allow her to prevent the birth of another child if she wished. He also found an award of compensation limited to the special upbringing associated with rearing a child with serious disability would be fair, just and reasonable.’
‘The principles applicable in wrongful birth cases cannot sensibly be distinguished from the principles applicable in wrongful conception cases.’
Brooke LJ said: ‘Since [the defendant’s] breach of duty caused the claimant’s pregnancy to continue, when it would otherwise have been terminated, and since Mr Coghlan conceded that the chain of events that took place in this case was foreseeable even if it was extremely rare, then if this was a straightforward personal injuries claim the way would ordinarily be open for the claimant to recover damages for negligence.’
Hale LJ said: ‘It is fair, just and reasonable that a doctor who has undertaken the task of protecting a patient from unwanted pregnancy should bear the additional costs if that pregnancy results in a disabled child.’

Judges:

Lord Justice Brooke, Lady Justice Hale, And Mr Justice David Steel

Citations:

[2001] EWCA Civ 1522, [2002] Lloyds Rep Med 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – Hughes v Lord Advocate HL 21-Feb-1963
The defendants had left a manhole uncovered and protected only by a tent and paraffin lamp. A child climbed down the hole. When he came out he kicked over one of the lamps. It fell into the hole and caused an explosion. The child was burned. The . .
Applied – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .

Cited by:

Cited – Farraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
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: 04 June 2022; Ref: scu.166636