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 purchasers from their clients later undertook a commons search. In fact the registration was erroneous, but the question took some time to resolve.
Held: In the light of the defendants’ knowledge about the plantiff intending to develop the land, any loss of profits was an appropriate head of damages including the cost of making good the error. Registration of common rights was conclusive evidence of the matters registered. Evidence was admitted from four solicitors as to best conveyancing practice as to whether commons searches were necessary. If the land is open land, a search of the commons registers should normally be undertaken to check that land is not subject to undisclosed rights of common. The fact that the land was vacant, and that it had previously been in the ownership of a lord of the manor should have alerted the defendants. However, a solicitor should not search in every case, but exercise a discretion.
Judges:
Mocatta J
Citations:
[1978] 1 WLR 266, [1977] 2 All ER 118
Links:
Statutes:
Commons Registration Act 1965 10
Jurisdiction:
England and Wales
Citing:
Cited – Attorney-General v Hanmer 1858
Letters patent granted mineral rights in the waste lands.
Held: the term included the lands between the high and low water marks. . .
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 – In re Britford Common 1977
. .
Cited – Central Electricity Generating Board v Clwyd County Council 1976
The owner of a farm applied late for the registration of a right of common over the Dee Marsh Saltings which had been provisionally registered as common land. After an inquiry the Commons Commissioner, Hugh Francis QC, confirmed the registration of . .
Cited – In re Chewton Common 1977
. .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
Cited – 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 . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – New Windsor Corporation v Mellor CA 1975
The respondent had obtained registration of land, Bachelors’ Acre, a grassed area of land in New Windsor, now used as a car park in the register of town and village greens under the Act as a customary green. It had been used for archery in mediaeval . .
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 . .
Cited – In re Yateley Common, Hampshire 1977
Rights of common were held to exist in land even though the land had been requisitioned for use as an airfield and had been used for that purpose for over thirty years. . .
Lists of cited by and citing cases may be incomplete.
Land, Professional Negligence, Damages
Updated: 29 May 2022; Ref: scu.178042