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Professional Negligence - From: 1970 To: 1979

This page lists 15 cases, and was prepared on 02 April 2018.

 
Ministry of Housing and Local Government v Sharp [1970] 2 QB 223; [1970] 1 All ER 1009
1970
CA
Lord Denning MR, Salmon LJ, Cross LJ
Professional Negligence, Administrative
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."
Land Charges Act 1925 17(1) 17(2) 17(3) - Land registration Act 1925 131
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Selfe v Ilford and District Hospital Management Committee Times, 26 November 1970
26 Nov 1970

Hinchcliffe J
Professional Negligence

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Everett v Hogg Robinson [1973] Lloyds Rep 217
1973

Kerr J
Insurance, Professional Negligence
The court was asked whether a re-insurer would have repudiated by reason of a failure to disclose an adverse claims record had the broker not been negligent. Held: if a broker relies on a causation defence he must satisfy the court that the insurer would in fact have exercised its rights and declined to meet the claim; if this is established no loss flows from the breach. If it is not established then damages are assessed on a loss of a chance basis and the court will value the chance of recovering a full or partial indemnity. Kerr J said: "once a plaintiff has proved that as the result of the defendant''s negligence he has lost the benefit of a contract which would have been valid if concluded, but which would have been voidable at the election of the other party, then in my view the burden of proof shifts to the defendant to show that on the balance of probabilities the plaintiff would in any event have lost all or part of the benefit of the contract as the result of the probable action of the other party."
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Wroth v Tyler [1974] Ch 30; [1973] 1 All ER 897
1973
ChD
Megarry J
Professional Negligence, Land
The plaintiff had contracted to purchase a house for £6,000 but the defendant failed to complete. Damages were awarded in lieu of specific performance under a Lord Cairns' Act provision. At the date of the repudiatory breach the value of the house was £7,500. At the date of the order the value of the house was £11,500. The award to the plaintiff, which but for some matters which have no bearing on the point of principle, would have been the difference between the purchase price and the value at the date of the order, namely £5,500. Held: The presence of a class F Land Charge registered against a property was a breach of the condition requiring vacant possession. A solicitor failing to complete a registration becomes liable to his client in negligence.
Megarry J said: "No doubt in exercising the jurisdiction conferred by the 1858 Act a court with equitable jurisdiction will remember that equity follows the law, and will in general apply the common law rules for the assessment of damages; but this is subject to the overriding statutory requirement that damages shall be 'in substitution for' the injunction or specific performance . .
In my judgment, therefore, if under Lord Cairns' Act damages are awarded in substitution for specific performance, the court has jurisdiction to award such damages as will put the plaintiffs into as good a position as if the contract had been performed, even if to do so means awarding damages assessed by reference to a period subsequent to the date of the breach. This seems to me to be consonant with the nature of specific performance, which is a continuing remedy, designed to secure, inter alia, that the purchaser receives in fact what is his in equity as soon as the contract is made, subject to the vendor's right to the money, and so on. On the one hand, a decree may be sought before any breach of contract has occurred, and so before any action lies for common law damages; and on the other hand the right to a decree may continue long after the breach has occurred. On the facts of this case, the damages that may be awarded are not limited to the £1,500 that is appropriate to the date of the breach, but extend to the £5,500 that is appropriate at the present day, when they are being awarded in substitution for specific performance."

 
Wroth v Tyler [1974] Ch 30; [1973 1 All ER 897
1973


Land, Professional Negligence
The buyer's solicitor failed to register the contract to purchase the house after exchange. The seller's wife then registered a class F Land Charge to protect her right to occupy the house. The buyer refused to complete. Held: The seller was not giving vacant possession under the contract, and the buyer's solicitor was negligent.
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 Morgan v Perry; QBD 1973 - (1973) 229 EG 1737
 
Sutcliffe v Thackrah and Others [1974] AC 727; [1974] 1 All ER 859; [1974] 2 WLR 295; [1974] 1 Lloyds Rep 318
1974
HL
Lord Reid, Lord Hodson, Lord Morris and Lord Salmon, Viscount Dilhorne
Construction, Arbitration, Professional Negligence
In acting under clause 66 of the ICE conditions, the Engineer was in the intermediate position of a quasi-arbitrator. The House described in terms of 'fairness' the duty of an architect when acting not as an arbitrator or quasi-arbitrator but in the role of valuer or certifier.
An action for damages for negligence will lie against a valuer to whom the parties have referred the question of valuation if one of them suffers loss as the result of his negligent valuation.
Lord Reid spoke of a duty to act in a fair and unbiased manner or fairly and impartially. Viscount Dilhorne regarded an honest exercise of professional skill and judgment as enough.
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McInerny v Lloyds Bank [1974] 1 Ll L R 246
1974
CA
Megaw LJ.
Professional Negligence
When looking at liability for a negligent misstatement the court must find both a transaction which was the purpose of the giving of the advice and the foreseeability that the advice or statement would be relied upon in that transaction. While the test whether these requirements are fulfilled is objective, it must be answered by reference to what was, or ought to have been, within the parties knowledge.

 
Morris v Duke Cohan (1975) 119 SJ 826
1975


Legal Professions, Professional Negligence
A solicitor has a duty to explain to a client buying land what are the consequences of accepting a reduced deposit, and is acting outside his implied authority unless he has his client's consent.


 
 Heywood v Wellers; CA 1976 - [1976] QB 446; [1976] 2 WLR 101; [1976] 1 All ER 300; [1976] 2 Lloyd's Rep 88; (1976) 120 SJ 9; Times, 15 November 1975; [1975] EWCA Civ 11
 
Singer and Friedlander Ltd v Wood [1977] 2 EGLR 84
1977

Watkins J
Professional Negligence
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 valuation falls within this bracket. A valuation that falls outside the permissible margin of error calls into question the valuer's competence and the care with which he carried out his task.
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Buckley v Lane Herman and Co [1977] CLY 3143
1977


Land, Professional Negligence, Legal Professions
A solicitor instructed to exchange contracts on a related sale and purchase must achieve simultaneous exchange. If he failed to do so he will be liable in negligence to the client for any losses.

 
G and K Ladenbau (UK) Ltd v Crawley and De Reya [1978] 1 WLR 266; [1977] 2 All ER 118
25 Apr 1977
QBD
Mocatta J
Land, Professional Negligence, Damages
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.
Commons Registration Act 1965 10
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Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) [1979] Ch 384; [1978] 3 All ER 571; [1978] 3 WLR 167; [1955-95] PNLR 95
1978
ChD
Oliver J
Professional Negligence, Legal Professions
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: "Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact that Mr Stubbs was Geoffrey's solicitor under some sort of general retainer imposing a duty to consider all aspects of his interest generally whenever he was consulted, but that cannot be. There is no such thing as a general retainer in that sense. The expression 'my solicitor' is as meaningless as the expression 'my tailor' or 'my bookmaker' in establishing any general duty apart from that arising out of a particular matter in which his services are retained. The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.
While No doubt the duties owed by a solicitor to his client are high in the sense that he holds himself out as practising a highly skilled and exacting profession. But I think that the court must beware of imposing upon solicitors - or upon professional men in other spheres - duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client's general interest, take it upon himself to pursue a line of enquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases . . demonstrate that the duty is directly related to the confines of the retainer." The solicitors accepted "a common law duty not to injure their client by failing to do what they had undertaken to do and which, at their invitation, he relied on them to do."
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Saif Ali v Sydney Mitchell and Co (a Firm) [1980] AC 198; [1978] 3 All ER 1033; [1978] 3 WLR 849; [1978] UKHL 6
1978
HL
Lord Diplock. Lord Salmon, Lord Wilberforce, Lord Keith of Kinkel
Legal Professions, Professional Negligence
The House considered the extent of a barrister's immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings. Held: A barrister’s immunity from suit extended only to such pre-trial work as was intimately connected with the conduct of the case in Court as distinct from more remote legal services such as advice (including advice not to go to Court). Barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss. The immunity of barristers from suit could be justified on two other grounds. The analogy of the general immunity from civil liability which attaches to all persons participating in proceedings before a court. Second was the public interest in not permitting decisions to be challenged by collateral proceedings.
Lord Diplock said that a barrister is not liable for an error of judgment "unless the error was such as no reasonably well-informed and competent member of that profession could have made."
He considered the barrister's overriding duty to the court: "The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered."
Lord Wilberforce said: "Some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer." and "In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill. The immunity as regards litigation is an exception from this and applies only in the area to which it extends. Outside that area, the normal rule must apply." and "Much if not most of a barrister's work involves the exercise of judgment – it is in the realm of art not science. Indeed the solicitor normally goes to counsel [for advice] precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is unlikely to succeed."
Lord Salmon: "Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he had been negligent." However “it can only be the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court.” and "The normal rule applied by the law is that if anyone holding himself out as possessing reasonable competence in his vocation undertakes to advise or settle a document, he owes a duty to advise or settle the document with reasonable competence and care."
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