The plaintiff bought freehold land from a seller conveying as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller having been the trustee of the property and having committed a breach of trust in buying it himself. In the plaintiff’s action against the defendant solicitor for negligence, the latter admitted negligence but contended that before suing him the plaintiff ought to have mitigated his damage by suing the seller on an implied covenant of title.
Held: The plaintiff was not obliged, even under an indemnity against his costs, to undertake ‘complex litigation’. Even accepting that the seller was solvent and therefore worth suing, it was clear that the seller would both resist the claim and also claim over against his own solicitors and it was not clear that the plaintiff had a good claim against the seller.
Harman J: ‘I do not propose to attempt to decide whether an action against [the seller] would lie or be fruitful. I can see it would be one attended with no little difficulty. I am of opinion that the so-called duty to mitigate does not go so far as to oblige the injured party, even under an indemnity, to embark on a complicated and difficult piece of litigation against a third party. The damage to the plaintiff was done once and for all directly the voidable conveyance to him was executed. This was the direct result of the negligent advice tendered by his solicitor, the defendant, that a good title had been shown; and, in my judgment, it is no part of the plaintiff’s duty to embark on the proposed litigation in order to protect his solicitor from the consequences of his own carelessness.’
Harman J
[1953] Ch 770, [1953] 2 All ER 810
England and Wales
Cited by:
Cited – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – Powell v Haywards (a Firm) CA 18-Feb-1999
Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their . .
Cited – Olafsson v Foreign and Commonwealth Office QBD 22-Oct-2009
The claimant sought damages after the defendant had negligently failed to arrange for the service of the claimant’s defamation proceedings on a defendant in Iceland leaving the action time barred.
Held: The Claimant had not acted unreasonably . .
Cited – Joyce v Bowman Law Ltd ChD 18-Feb-2010
The claimant asserted negligence by the defendant licensed conveyancers in not warning him of the effect of an option in the contract. He had been advised that it would allow him to choose to buy additional land, but it was in fact a put option. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.241680 br>