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Professional Negligence - From: 2003 To: 2003

This page lists 66 cases, and was prepared on 02 April 2018.

 
RK and MK v Oldham NHS Trust [2003] Lloyds Rep Med 1
2003

Simon J
Professional Negligence, Damages
Apprehension, fear and discomfort are not generally compensatable.
1 Citers


 
JD v East Berkshire Community Health [2003] Lloyd's Rep Med 9
2003
QBD
Judge Hale
Professional Negligence, Health Professions
The claimants sought damages after being wrongfully accused of abusing their children. Held: Public policy considerations militated strongly against the existence of any duty on the facts of the case. No duty of care can be owed by the doctor or the social worker to the parent, and accordingly no claim may lie and these claims must be dismissed with no evidence called and no detailed examination of the facts.
1 Citers


 
McKinnon and another v E Survey Ltd (formerly known as GA Valuation and Survey Ltd) Gazette, 23 January 2003; [2003] EWHC 475 (Ch)
14 Jan 2003
ChD
Jonathan Gaunt QC
Damages, Professional Negligence
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.
1 Cites

1 Citers

[ Bailii ]
 
Bentleys Stokes and Loweless v Eagle Major Ltd [2003] EWHC 41 (Ch)
23 Jan 2003
ChD
The Honourable Mr Justice Peter Smith
Professional Negligence

1 Cites

[ Bailii ]
 
Matlaszek and Another v Bloom Camillin (A Firm) [2003] EWCA Civ 154
5 Feb 2003
CA

Professional Negligence

[ Bailii ]
 
Sunley and Another v Gowland White (Surveyors and Estate Agents) Ltd [2003] EWCA Civ 240
10 Feb 2003
CA

Professional Negligence, Evidence

[ Bailii ]
 
Equitable Life Assurance Society v Ernst and Young (A Firm) Times, 24 February 2003; [2003] EWHC 112 (Comm); Gazette, 03 April 2003
10 Feb 2003
ComC

Professional Negligence
The company complained that its auditors had failed to give appropriate warning of the Society's exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale earlier, reducing later substantial losses. The defendant sought to strike out the claims. Held: The defendant had a statutory duty as company auditor under the Act, the range of which was set out in the South Australia case, and Caparo. The extent should not be restricted below what the client could properly expect, nor extend the duty beyond that expected by the adviser. The auditors duties did include advice as to the values available to support payment of bonuses, but not as to a potential sale. The claimant was given an opportunity to amend its bonus claims.
Duty of care - auditors failing to advise on provision for liabilities to policyholders guaranteed fixed level of income - not liable for losses sustained by directors failing to sell business sooner owing to contingent liabilities but potentially liable for losses caused by payment of overlarge bonuses in reliance on audited accounts
1 Cites

[ Bailii ]
 
Knight and Another v Haynes Duffell, Kentish and Co (A Firm) [2003] EWCA Civ 223
14 Feb 2003
CA
Aldous LJ
Company, Professional Negligence
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."
1 Citers

[ Bailii ]

 
 Calden (Administrator of the Estate of Amanda Calden) v Dr Nunn and Partners; CA 19-Feb-2003 - [2003] EWCA Civ 200
 
Normans Bay Limited (Formerly Illingworth Morris Limited) v Coudert Brothers (A Firm) [2003] EWHC 191 (QB)
19 Feb 2003
QBD
The Honourable Mr Justice Buckley
Professional Negligence
The claimant instructed the defendant firm to act in advising in support of an investment in Russia. The investment was declared invalid in the courts of Russia, and the claimant said that the defendant should have forewarned them of the problem, avoiding expense and loss of profit. The defendants denied instructions to act in this way. The bid documents were prepared by the claimant, and the defendants denied any duty to act to correct them. Held: The scope of the duties did include the identification of problems in the documentation, between the invitation to tender and the bid. Any uncertainty as to a solicitor's instructions ought to be resolved by the solicitor. Misunderstandings should not arise; there ought to be some record of instructions and variations to them. Since the client would have gone ahead, the damages fell to be calculated on a loss of chance basis.
1 Cites

1 Citers

[ Bailii ]
 
Sahib Foods Limited and Co-operative Insurance Society Limited v Paskin Kyriakides Sands (A Firm) [2003] EWHC 142 (TCC)
3 Mar 2003
TCC
His Honour Judge Bowsher Q.C.
Professional Negligence, Construction, Damages
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.
1 Cites

1 Citers

[ Bailii ]
 
Lloyds TSB Bank Plc v Edward Symmons and Partners [2003] EWHC 346 (TCC); Gazette, 03 April 2003
12 Mar 2003
TCC
Judge Richard Seymour QC
Professional Negligence
The defendants had carried out a survey and valuation for the claimants, who now sought damages alleging that the valuer had miscalculated the area of the premises, omitting certain areas which would affect the value. Held: In order to make out a case of professional negligence against a valuer a claimant must first demonstrate that the valuation in fact made fell outside whatever is the appropriate range of permissible non-negligent valuations in the particular case. If the claimant fails to do that, his claim fails. If the claimant does demonstrate that the valuation does fall outside the range of permissible non-negligent valuations, the scope of the enquiry broadens to a consideration of whether the valuer was in fact negligent. As to that enquiry, the evidential burden is on the defendant to show that he did exercise what was, in the circumstances, appropriate skill and care, which means that the fact that a valuation falls outside the range of permissible non-negligent valuations must be some evidence in itself of negligence. The claimant had not done this and the court was not therefore required to move on to consider whether any negligence was involved.
1 Cites

[ Bailii ]
 
Hatton v Messrs Chafes (A Firm) [2003] EWCA Civ 341; [2003] PNLR 24; [2007] Lloyd's Rep PN 15
13 Mar 2003
CA
Lord Justice Peter Gibson Lord Justice Clarke Sir Anthony Evans
Professional Negligence, Litigation Practice, Limitation
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."
1 Cites

1 Citers

[ Bailii ]

 
 Harwood and Another v Taylor Vintners (a Firm); ChD 18-Mar-2003 - Times, 01 April 2003; Gazette, 29 May 2003
 
Somatra Ltd v Sinclair Roche and Temperley [2003] EWCA Civ 509
28 Mar 2003
CA

Professional Negligence

1 Citers

[ Bailii ]
 
Anthony McCarroll v Statham Gill Davies (A Firm) [2003] EWCA Civ 425
1 Apr 2003
CA
Lord Justice Pill, Lord Justice Latham, Mr Justice Morland
Limitation, Professional Negligence
The claimant said his solicitors had failed to protect his interests in a partnership agreement into which he subsequently entered. The agreement contained less favourable terms than those which should have been agreed and he claimed damages accordingly. Alternatively he claimed damages on the basis that the solicitors' breach of duty had caused him to lose the chance of securing an agreement on more favourable terms. He contended that the loss was only suffered when he ceased to be a member of the partnership. Held: His cause of action accrued when he entered into the partnership agreement. That was the point in time when he suffered an actual loss.
1 Citers

[ Bailii ]
 
Bournemouth and Boscombe Athletic Football Club Ltd v Lloyds TSB Bank Plc [2003] EWHC 834 (Ch)
16 Apr 2003
ChD
The Honourable Mr Justice Peter Smith
Banking, Professional Negligence, Litigation Practice

1 Cites

1 Citers

[ Bailii ]
 
O'Donnell and Another v Imray and others [2003] ScotCS 122
25 Apr 2003
SCS
Lord Emslie
Professional Negligence, Scotland
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.
Prescription and Limitation (Scotland) Act 1973 19A
1 Cites

[ Bailii ] - [ ScotC ]
 
William Browning, Maureen Browning v Messrs Brachers (A Firm) [2003] EWHC 1091 (QB)
15 May 2003
QBD
The Honourable Mr Justice Eady
Professional Negligence
The claimants sought damages for professional negligence, in having failed to pursue a claim for professional negligence against a previous firm of solicitors who had acted for the claimant.
1 Cites

1 Citers

[ Bailii ]
 
Enright and another v Kwun and Another Times, 20 May 2003; Gazette, 17 July 2003
16 May 2003
QBD
Morlan J
Professional Negligence
The claimant had a third child, but she had been born with Down's syndrome. She now sought damages, saying she had not been counselled about the increased risk of such a birth, and that had she been told, she would have had the pregnancy terminated. Held: She had not been given counselling at all in relation to the screening tests or amnioscentesis. Had she been advised, she would have taken the test. That failure was negligent

 
Akasuc Enterprise Limited, A K S Choudhury, T Choudhury v Farmar and Shirreff (A Firm) [2003] EWHC 1275 (Ch)
5 Jun 2003
ChD
The Honourable Mr Justice Peter Smith
Legal Professions, Professional Negligence

[ Bailii ]
 
Douglas Williams and others v Glyn Owen and Co [2003] EWCA Civ 750
11 Jun 2003
CA
Lord Justice Auld Lord Justice Clarke Lord Justice Jonathan Parker
Damages, Professional Negligence
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.
1 Cites

[ Bailii ]

 
 Barings Plc and Another v Coopers and Lybrand (A Firm) and Others; ChD 11-Jun-2003 - [2003] EWHC 1319 (Ch)
 
D v South Tyneside Health Care NHS Trust [2003] EWCA Civ 878
11 Jun 2003
CA

Professional Negligence, Health

Mental Health Act 1983 3
[ Bailii ]
 
Luke v Kingsley Smith and Company and Others [2003] EWHC 1559 (QB); [2007] Lloyd's Rep PN 29
23 Jun 2003
QBD
Davis J
Professional Negligence, Damages
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 solicitors sought contribution from the solicitors who had taken over the case and from counsel. Held: The question was: "when did the loss of the right to proceed further with the action occur?" It was wrong to say on behalf of the second and subsequent lawyers that the action had already been lost by the time they assumed responsibility. All three defendants may have contributed to the loss. There had been only one loss and: "one damage; that is, the loss of the chance to pursue the action successfully to trial; and that that loss was occasioned by the combined effect of the torts of Kingsley Smith and of Wansbroughs and Miss Addy."
Civil Liability (Contribution) Act 1978 1(1)
1 Cites

[ Bailii ]
 
John Mowlem Construction Plc v Neil Jones and Co. Solicitors (A Firm) [2003] EWHC 1477 (TCC)
23 Jun 2003
TCC
Wilcox J
Professional Negligence, Construction

[ Bailii ]
 
Polley v Warner Goodman and Streat (A Firm) [2003] EWCA Civ 1013; [2003] PNLR 40
30 Jun 2003
CA
Clarke LJ
Professional Negligence, Contract, Legal Professions
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."
1 Cites

1 Citers

[ Bailii ]
 
Goldstein v Levy Gee ( A Firm) Gazette, 11 September 2003; HC 02 C00884; [2003] EWHC 1574 (Ch); Times, 16 July 2003
1 Jul 2003
ChD
The Honourable Mr Justice Lewison
Company, Professional Negligence
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.
1 Cites

[ Bailii ]
 
Kennecott Utah Copper Corp and others v Minet Ltd and others [2003] EWCA Civ 905
2 Jul 2003
CA

Insurance, Professional Negligence

[ Bailii ]
 
Moresfield Limited, Kenneth Swift, Jeremy Swift v Banners (A Firm) [2003] EWHC 1602 (Ch)
3 Jul 2003
ChD
Mr Justice Lawrence Collins
Professional Negligence

[ Bailii ]
 
Chappell v Somers and Blake (a Firm) Times, 02 September 2003; [2003] EWHC 1644 (Ch)
8 Jul 2003
ChD
Neuberger J
Professional Negligence, Wills and Probate
The will gave the deceased's property to the local church. The claimant executrix instructed the defendants to administer the estate, but later terminated the retainer saying that they had done nothing for many years, depriving the estate of rents. Held: Even though the claimant had no personal interest in the estate, she should be allowed to claim. Legal principle justified a conclusion which was consistent with the policy consideration. The loss occurred whilst the properties were vested in the administratrix, and she would be accountable to the parochial church council for the income lost. She therefore had a proper claim. The necessary policy point was to ensure that no double recovery arose, since the church could itself sue.
1 Cites


 
European International Reinsurance Co Ltd v Curzon Insurance Ltd and Others [2003] EWCA Civ 1074; Times, 21 August 2003
22 Jul 2003
CA
Judge, Kay, Longmore LJJ
Insurance, Professional Negligence
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.
1 Cites

[ Bailii ]
 
Martin Knight v Rochdale Healthcare NHS Trust, the National Health Service Litigation Authority, the Secretary of State for Health [2003] EWHC 1831 (QB); [2004] 1 WLR 371
23 Jul 2003
QBD
Mr Justice Crane
Health Professions, Professional Negligence, Limitation
A contribution to a damages award was sought. The two year period under section 10 had expired between the anniversary of the date on which an agreement to settle the victim's claim had been made and the anniversary of the consent order which had given effect to the agreement. The court had to decide whether the period for limitation purposes was fixed by subsection 10(3) or 10(4). Held: A consent order amounted to a "judgment". Subsection 10(4) applied and the contribution claim was time barred: "My principal reason for doing so is if a firm agreement is made, as here, time undoubtedly starts to run at that moment. It would be different if the agreement required the making of a consent order before it took effect. Neither party so contends here. Although Parliament could have decided that a consent order should restart the clock, there are insufficiently clear words to indicate that. Indeed the words in subsection (1) "Where…any person becomes entitled" and the words in subsection (4) "the earliest date on which the amount…is agreed" suggest that the crucial moment is the first moment when liability arises. It is tidy to conclude that subsections (3) and (4) deal separately with cases decided by a court (or arbitrator) and cases of agreement."
Limitation Act 1980 10(3) 10(4)
1 Citers

[ Bailii ]
 
Sharpe v Addison (T/A Addison Lister) [2003] EWCA Civ 1189
23 Jul 2003
CA

Professional Negligence

[ Bailii ]
 
Independents' Advantage Insurance Company Ltd v Cook and Another [2003] EWCA Civ 1103
24 Jul 2003
CA

Professional Negligence, Civil Procedure Rules
"The power of the court to strike out a statement of case under CPR 3.4(2)(a) — and the related power to give summary judgment under CPR 24.2 — has an important place in the disposal of claims in accordance with the Civil Procedural Rules. The exercise of those powers, in an appropriate case, gives effect to the overriding objective set out in CPR Part 1."
Civil Procedure Rules 1
1 Citers

[ Bailii ]
 
ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284; Gazette, 02 October 2003
25 Jul 2003
CA

Professional Negligence, Litigation Practice, Civil Procedure Rules
The claimant sought damages alleging that she had been injured by the defendants' negligence in conducting her birth. The parties sought determination of whether the court should restrict the number of expert witnesses. Held: Nothing in the rules set a specific limit of one such witness. Where the question was substantial and complex, the overriding objective required the court to keep a balance between the parties. Inevitably the defence would include evidence from the doctors themselves, and the claimant was not to be limited too strictly.
Civil Procedure Rules 35.1
[ Bailii ]
 
Equitable Life Assurance Society v Ernst and Young [2003] EWCA Civ 1114; Gazette, 02 October 2003; [2003] 2 BCLC 603; [2007] Lloyds Rep PN 22; [2004] PNLR 16
25 Jul 2003
CA
Lord Justice Brooke Lord Justice Rix And Lord Justice Dyson
Professional Negligence, Litigation Practice
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when their losses could be minimalised. They appealed a judgment limiting the claim to 500 million pounds. Held: The case should not be limited to a claim of any certain size. The issues were an an area of developing jurisprudence, and were fact dependent. In such cases a strike out was inappropriate, and the Court should not be drawn into a mini-trial of complex cases at this stage.
Brooke LJ said: "The overriding concern is the interests of justice. So far as facts are concerned, the simpler the case is the easier it is likely for a court to be able to take a view that the basis of a claim is fanciful or contradicted by all the documentary material on which it is founded. More complex cases are unlikely to be capable of being resolved in that way. There is a danger of injustice in seeking to try such cases summarily on the documents and thus without disclosure and oral evidence tested by cross-examination. It should not be done unless the court can be confident that all the relevant facts had already been satisfactorily investigated."
1 Cites

1 Citers

[ Bailii ]
 
Baron W R Jay and others v Wilder Coe (A Firm) [2003] EWHC 1786 (QB)
30 Jul 2003
QBD
The Honourable Mr Justice Tugendhat
Professional Negligence

[ Bailii ]
 
JD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal [2003] EWCA Civ 1151; Times, 21 August 2003; [2003] 3 FCR 1; [2003] 4 All E R 796; [2004] QB 558
31 Jul 2003
CA
Lady Justice Hale Lord Justice Latham Lord Phillips Of Worth Matravers, Mr
Torts - Other, Professional Negligence, Human Rights
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not 'fair just and reasonable' to impose such a duty. The appellants sought to distinguish X v Bedfordshire in different ways. Held: The appeals concerned a fundamental aspect of the law of negligence. The courts would not extend the duty of care unless it was 'fair just and reasonable.' No infringement or article 6 was involved in that decision. Human rights law as regards the infringement of the right to family life would require investigation of the individual facts, and was an extension of the pre-existing law, but that could not assist parties affected by acts predating the Human Rights Act. For claims by children there would always be conflicting interests, but for parents their interests would always be for the child to stay with them. Therefore there would be no investigation of the facts of their circumstances required, and no claim.
European Convention on Human Rights 6 8.1
1 Cites

1 Citers

[ Bailii ]
 
Nina Naicker Gow v Dr Rosemary Harker [2003] EWCA Civ 1160; Gazette, 02 October 2003
31 Jul 2003
CA
Lord Justice Brooke Mr Justice Holman Lord Justice Waller
Professional Negligence
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.
1 Cites

1 Citers

[ Bailii ]
 
Mulkerrins v Pricewaterhouse Coopers [2003] 4 All ER 1; [2003] All ER (D) 539; [2004] PNLR 5; [2003] UKHL 41; Gazette, 02 October 2003; [2003] 1 WLR 1937; [2003] BPIR 1357
31 Jul 2003
HL
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Millett, Lord Lord Scott of Foscote, Lord Walker of Gestingthorpe
Insolvency, Professional Negligence
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, and brazenly sought to avoid laibility by denying the claimant's standing to sue them. Held: The claim by the bankrupt was of a special kind, it related to the very bankruptcy itself, and so could not vest in the trustee. Right or wrong this was in any event res judicata between these parties. As to the respondents, their right to be heard on this issue was severely limited.
Lord Millett said that a bankrupt's creditors are privies of the trustee in bankruptcy and generally bound by res judicata estoppels binding a trustee.
1 Cites

1 Citers

[ Bailii ] - [ House of Lords ]
 
Slattery v Moore Stephens (A Firm) [2003] EWHC 1869 (Ch)
31 Jul 2003
ChD

Professional Negligence

[ Bailii ]
 
DP Mann and others v Coutts and Co [2003] EWHC 2138 (Comm)
16 Sep 2003
ComC
The Honourable Mr Justice Andrew Smith
Banking, Professional Negligence
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 had relied. Held: The letter could not be taken as a representation that the bank would hold any particular sum, and the bank could not expect it to be used as a representation that it would. The claimants had had reason to enquire as to whether the account was in fact being conducted in the way required, and had not done so. Claim Dismissed.
1 Cites

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Hemmingway and Another v Smith Roddam (A Firm) and others [2003] EWCA Civ 1342
18 Sep 2003
CA

Professional Negligence, Limitation

1 Citers

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 Rees v Darlington Memorial Hospital NHS Trust; HL 16-Oct-2003 - [2004] 1 AC 309; [2003] UKHL 52; Times, 21 October 2003; [2003] 3 FCR 289; [2004] Fam Law 22; [2004] Lloyds Rep Med 1; [2004] PIQR P14; [2004] 1 FLR 234; [2003] 4 All ER 987; [2003] 3 WLR 1091; (2004) 75 BMLR 69
 
Equitable Life Assurance Society v Bowley and others [2003] EWHC 2263 (Comm)
17 Oct 2003
ComC
The Honourable Mr Justice Langley
Company, Professional Negligence
The claimant sought damages against its former directors for negligence and breach of fiduciary duty. The defendants asked that the claims be struck out. Held: It was no longer good law that directors might leave the conduct of the company's business to competent management. Though section 727 might give relief to directors who had been negligent, but who had nevertheless acted reasonably, summary relief in this case was inappropriate. On the issue of the various elements of negligence claims it was not correct to characterise the claims as without a real prospect of success.
Companies Act 1985 727
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Sinclair Roche and Temperley (A Firm) v Somatra Ltd (Damages) [2003] 2 Lloyd's Rep 855; [2003] EWCA Civ 1474
23 Oct 2003
CA
Schiemann, Tuckey, Longmore LJJ
Professional Negligence, Damages
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.
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Gene Chandler Laib v Renuka Aravindan (Practicing As HKH Partnership Solicitors) Khurram Mian [2003] EWHC 2521 (QB); Times, 13 November 2003
30 Oct 2003
QBD
The Hon Mr Justice Morland
Legal Professions, Professional Negligence
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.
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 Wyatt v Curtis; CA 30-Oct-2003 - [2003] EWCA Civ 1779
 
Six Continents Retail Ltd v Carford Catering Ltd, R Bristoll Ltd [2003] EWCA Civ 1790
5 Nov 2003
CA
The Vice-Chancellor Sir Andrew Morritt Lord Justice Buxton Lord Justice Laws
Professional Negligence
The claimant's premises had been destroyed by fire. They sought damages from the designers for negligence.
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Asiansky Television Plc and Another v Bayer-Rosin [2003} EWCA Civ 1405
11 Nov 2003
CA
Simon Brown, Laws, Arden LJJ
Professional Negligence

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1 Citers

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Hawkesbrook Leisure v The Reece-Jones Partnership [2003] EWHC 3333 (Ch)
18 Nov 2003
ChD
Etherton J
Professional Negligence

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Hawkesbrooke Leisure Ltd v Reece-Jones Partnership [2003] EWHC 3333; (2004) 25 EG 172
18 Nov 2003
ChD
Etherton J
Landlord and Tenant, Professional Negligence
The claimant sued its solicitors for failing to make application in time for a new tenancy. The solicitors said that the claimant, a company limited by guarantee, and not allowed to distribute any trading profit, was not protected under the 1954 Act. Held: An inability to distribute its profits did not mean a company was not carrying on a business. In any event, as a body corporate under the 1954 Act, it needed only to show that it carried on an activity.
Landlord and Tenant Act 1954

 
Wardlaw v Dr Farrar [2004] Lloyd's Rep Med 98; Gazette, 22 January 2004; Times, 05 December 2003; [2003] EWCA Civ 1719
27 Nov 2003
CA
Dame Elizabeth Butler-Sloss (President of the Family Division) Lord Justice Brooke (Vice-President of the Court of Appeal (Civil Division)) and
Professional Negligence, Litigation Practice
The claimant appealed an award of £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.
Law Reform (Miscellaneous Provisions) Act 1934 - Fatal Accidents Act 1976
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William John Henry Johnson v Gore Wood and Co [2003] EWCA Civ 1728
3 Dec 2003
CA
Lady Justice Hale Lord Justice Potter Lady Justice Arden
Professional Negligence

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Marsh v Sofaer and Another Times, 10 December 2003; [2003] EWHC 3334 (Ch); [2007] Lloyd's Rep PN 10
3 Dec 2003
ChD
Sir Andrew Morritt, VC
Legal Professions, Professional Negligence
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.
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Yousif v Jordan Times, 22 January 2004; [2003] EWCA Civ 1852
10 Dec 2003
CA
Ward LJ, Wilson J
Litigation Practice, Professional Negligence
It was wrong for a court to make a finding of no case to answer in a medical negligence case where there was conflicting medical evidence. The claimant was a foreign national acting in person. The court had failed to acknowledge the conflict in the medical evidence, and he should himself survey that evidence before considering such a finding.
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Mohammed Waris Ali v Keith Hudson (Trading As Hudson Freeman Berg) [2003] EWCA Civ 1793
11 Dec 2003
CA
Lord Justice Clarke Lord Justice Potter Lord Justice Ward
Professional Negligence

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A and Another v Essex County Council [2003] EWCA Civ 1848; Times, 22 January 2004; [2004] 1 WLR 1881
17 Dec 2003
CA
Lady Justice Hale Lord Justice Ward Lord Justice Scott Baker
Adoption, Professional Negligence
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child. Held: Any such duty extended only during the period where the child was with the prospective adopters pending their decision on adoption. Hale LJ: "Whenever the question of a common law duty of care arises in the context of the statutory functions of a public authority, there are three potential areas of inquiry: first, whether the matter is justiciable at all or whether the statutory framework is such that Parliament must have intended to leave such decisions to the authorities, subject of course to the public law supervision of the courts; second, whether even if justiciable, it involves the exercise of a statutory discretion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of the discretion; third in any event whether it is fair just and reasonable in all the circumstances to impose such a duty of care. The considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them."
The general adoption process is not in law a matter of contract, and contractual analysis cannot be applied to it.
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Hansom and others v E Rex Makin and Wright [2003] EWCA Civ 1801
18 Dec 2003
CA
Lord Justice Keene Lord Justice Mance
Professional Negligence, Civil Procedure Rules, Litigation Practice
The court considered a strike out application. Held. Although there might be many cases where the possibility or otherwise of a fair trial is highly important to the exercise of discretion under CPR 3.9. it does not follow that where a fair trial is still possible, relief will necessarily be granted: "CPR 3.9 deals generally with the relief from sanctions imposed for failure to comply with a rule, practice direction or court order. It could not be the case that whenever such a sanction has been imposed and however flagrant or persistent the failure, the defaulting party could have it set aside by showing that a fair trial was still possible. The present appeal does not, however, involve flagrant or persistent misconduct, but, rather, all too familiar inefficiency and lack of diligence. And in such a case it is likely to be very material that a fair trial is still possible. But this cannot necessarily be decisive. All the circumstances must be considered. Prejudice to professional defendants is among them and it may exist even though it does not involve prejudice to the fairness of the trial process. In the present case, prejudice in the form of the detriment involved in having litigation hanging over professional defendants' heads was a decisive factor identified by the master and judge."
Civil Procedure Rules 3.9
1 Citers

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Hamilton Jones v David and Snape (Solicitors) [2003] EWHC 3147 (Ch)
18 Dec 2003
ChD

Professional Negligence

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Wade and Wade v Poppleton and Appleby [2003] EWHC 3159 (Ch)
19 Dec 2003
ChD
The Honourable Mr Justice David Richards
Professional Negligence, Insolvency

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Sahib Foods Limited (In Liquidation) v Paskin Kyriakides Sands (A Firm) [2003] EWCA Civ 1832; [2003] EWCA Civ 1920
19 Dec 2003
CA
Lord Justice Clarke Lord Justice Potter Lord Justice Ward
Professional Negligence, Construction

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Safia Deriche v Ealing Hospital NHS Trust [2003] EWHC 3104 (QB)
19 Dec 2003
QBD
The Honourable Mr Justice Buckley
Professional Negligence

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Sutton v Mishcon de Reya (a Firm) and Another Times, 28 January 2004
19 Dec 2003
ChD
Hart J
Professional Negligence, Contract
Two men entering into a relationship of 'master and slave' signed a document entitled a 'statement of trust' intended to regulate the property arrangements as between themselves. They later signed a cohabitation agreement. They were advised that it was unenforceable, and were advised to seek independent advice. Property was conveyed into one name. They later claimed the defendant was negligent in referring to the statement of trust which was likely to be void as contrary to public policy. Held: The court should distinguish between a property contract between two people whose sexual relationship brought them to live together, and a property relationship springing from the sexual relationship. A contract between consenting adults would not be avoided under public policy unless it was meretritious or for prostitution. The statement of trust was an attempt to express the sexual relationship in a property contract. Neither law firm was negligent. Even had the statement of trust been void, it would have had to have been referred to.

 
Hamilton Jones v David and Snape (a Firm) Gazette, 29 January 2004; [2004] 1 WLR 924; [2004] 1 All ER 657
19 Dec 2003
ChD
Neuberger J
Professional Negligence, Damages
The claimant was represented by the respondent firm of solicitors in an action for custody of her children. Through their negligence the children had been removed from the country. She sought damages for the distress of losing her children. Held: The head of damages was proper and recoverable.
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