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 which would take effect on his leaving the business. Through careless drafting the covenant was ineffective. The agreement (entered into in 1971 and renewed with the same defect in 1975) continued until 1980 when, on the director’s departure from the business, the covenant was found to be defective. The company issued a writ against the solicitors in 1985. The appellant plaintiff argued that a defective covenant or similar legal document was a mere defect or weakness, that only ripened into relevant damage when the client actively and unsuccessfully sought to rely upon it.
Held: The plaintiff’s argument and appeal was rejected. The measure of damages was the measure sometimes loosely referred to as the contract or warranty measure. Had the solicitor done his job properly the plaintiffs would have obtained the benefit of an effective restraint of trade covenant. As it was, they received a worthless covenant. They suffered damage when the transaction was entered into. The limitation period ran from the date of a negligently drafted contract. However, each such case depended upon its own facts.
Bingham LJ said that if the liability is for the difference between what the plaintiff got and what he would have got if the defendant had done what he was supposed to have done, it may be relatively easy, to infer that the plaintiff has suffered some immediate damage, simply because he did not get what he should have got and: ‘On the plaintiffs’ case, which for purposes of this issue may be assumed to be wholly correct, the covenants against competition were intended, and said by the defendants, to be effective but were in truth wholly ineffective. It seems to me clear beyond argument that from the moment of executing each agreement the plaintiffs suffered damage because instead of receiving a potentially valuable chose in action they received one that was valueless.’ and
‘If, in a contractual claim for negligence, the court would have awarded other than nominal damages, I do not see how it can be said that an action in tort based on the same negligence would have been bound to fail for want of any damage as an essential ingredient of the cause of action.’
Neill LJ said: ‘In the present case the judge rightly rejected the notion that where a solicitor gives negligent advice, damage is presumed to occur at the time when the advice is acted upon. I am satisfied that there is no such presumption. It is a question of fact in each case whether actual damage has been established.’ and
‘The plaintiffs suffered damage ‘because [they] did not get what [they] should have got.’ The plaintiffs’ rights under the two agreements were demonstrably less valuable than they would have been had adequate restrictive covenants been included.’ He continued: ‘it is a question of fact in each case whether actual damage has been suffered.’
Neill LJ, Bingham LJ, Kerr LJ
 1 WLR 267, (1988) 1 All ER 400
England and Wales
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 – 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 – Pegasus Management Holdings Sca and Another v Ernst and Young (A Firm) and Another ChD 11-Nov-2008
The claimants alleged professional negligence in advice given by the defendant on a share purchase, saying that it should have been structured to reduce Capital Gains Tax. The defendants denied negligence and said the claim was statute barred.
Cited – Spencer v Secretary of State for Work and Pensions, Moore v Similar CA 1-Jul-2008
Frankovich claim – arises with measurable loss
Each claimant sought Frankovich damages alleging a failure to implement European law leading to a loss.
Held: Such a claim was available against the government after it had failed to implement the Directive so as to provide them with the . .
Cited – Martin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
Cited – Axa Insurance Ltd v Akther and Darby Solicitors and Others CA 12-Nov-2009
The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Limitation
Updated: 18 November 2021; Ref: scu.271021