Tag: Professional Negligence

Channon (T/A Channon and Co) v Ward: QBD 12 May 2015

The claimant had lost significant sums through his accountancy practice, but now claimed that his insurance broker, the defendant had negligently failed to renew his professional indemnity policies, even though he had supplied policy numbers to the claimant. The defendant disputed whether the losses were part of the claimant’s practice.
Held: a burden lay on Claimant to establish that but for the negligence of the Defendant there would have been a policy in existence that covered the claim in question. Ordinarily such a step will not be difficult. Thereafter the burden is carried by the defendant broker if he seeks to establish that the insurer would have repudiated for some reason, whether that be by reason of breach of a condition or exemption.

Judges:

Cotter QC HHJ

Citations:

[2015] EWHC 4256 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Munro Brice and Co v War Risks Association 1918
Bailhache J discussed the principle that if there is a qualification of the general risk which covers the policy’s whole scope (so that there is no unqualified risk left), the burden is on the insured to prove facts which bring the case within the . .
Cited – Fraser v B N Furman (Productions) Ltd CA 1967
The employer’s liability policy contained a condition precedent that the insured should take reasonable precautions to prevent accidents and disease. The company sought to rely upon the clause to avoid liability.
Held: ”Reasonable’ does not . .
Cited – Armory v Delamirie KBD 1722
A jeweller to whom a chimney sweep had taken a jewel he had found, took the jewel out of the socket and refused to return it. The chimney sweep sued him in trover. On the measure of damages, the court ruled ‘unless the defendant did produce the . .
Cited – Phillips and Co and Another v Whatley PC 2-May-2007
(Gilbraltar) The respondent had made a claim against his former lawyers, the appellants, alleging that he had lost out on a very significant personal injury claim for their failure to issue a writ in time. . .
Adopted – Everett v Hogg Robinson 1973
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 . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 20 December 2022; Ref: scu.572351

De Freitas v O’Brien: CA 2 Feb 1995

The plaintiff appealed refusal of her claim for damages for personal injury.

Judges:

Leggatt LJ, Swinton Thomas LJ, Otton LJ

Citations:

[1995] EWCA Civ 28, [1995] PIQR 281, [1995] 6 Med LR 108, [1955-95] PNLR 680

Links:

Bailii

Jurisdiction:

England and Wales

Personal Injury, Professional Negligence

Updated: 12 December 2022; Ref: scu.259338

Harrison and Another v Bloom Camillin: ChD 28 Oct 1999

When assessing the losses suffered by a plaintiff alleging that, through the professional negligence of his solicitors, he had lost the opportunity to pursue a similar action against his accountants, it was right to acknowledge, and allow for the fact that the vast majority of such actions came to be settled rather than going to full trial. The damages should reflect the uncertainties of litigation. The issue of law which would have arisen in the lost action should be treated as a question of fact in this dependent action.

Judges:

Neuberger J

Citations:

Gazette 25-Nov-1999, Times 12-Nov-1999, (2001) PNLR 195

Jurisdiction:

England and Wales

Citing:

Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 09 December 2022; Ref: scu.81257

Esterhuizen and Another v Allied Dunbar Assurance Plc: QBD 10 Jun 1998

A non-professional will writing agency should be subject to the same standards of professional negligence in drawing up wills as a recognised lawyer. This is necessary to protect members of the public using will writing services. ‘the process of signature and attestation is not completely straightforward and disaster may ensue if it is not correctly done. Any testator is entitled to expect reasonable assistance without having to ask exprssly for it. It is in my judgment not enough just to leave written instructions with the testator. In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but also in my view negligent.’

Citations:

Gazette 15-Jul-1998, Times 10-Jun-1998

Jurisdiction:

England and Wales

Citing:

Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Wills and Probate

Updated: 09 December 2022; Ref: scu.80378

Wild and Another v Southend University Hospital NHS Foundation Trust: QBD 3 Dec 2014

Claim for damages arising from alleged want of care of child in the womb, leading to a stillbirth. The claimant father suffered psychiatric damage after being told of the death of his wife’s baby in utero as a result of negligent treatment by clinicians working for the defendant hospital. He argued that Taylor v A. Novo could not preclude a claim ‘in a case where the first manifestation of the injuries sustained by the primary victim occurs in front of (or within sight or hearing of) the secondary victim (or where he comes across the primary victim in the immediate aftermath of this injury) but is separated in time from the act or omission constituting negligence’. In a clinical negligence case where the first manifestation of the negligent act or omission was a shocking event seen, heard or otherwise directly experienced by the secondary victim, a claim would lie. It was argued that it could be seen from the reference to Walters that the Court of Appeal in Taylor v A. Novo had not intended to state any new principle.
Held: The argument failed.
Michael Kent QC, expressed ‘difficulty’ with the proposition because of Lord Dyson’s approval of Auld J’s observation in Taylor v Somerset and his observation that Peter Gibson LJ’s remarks in Walters were obiter. The term ‘external event’ was ‘explained by the context of these claims which is that they are all made by those who are not directly participating in the events which have been engulfed the primary victims and which are in that sense external to the claimant’. It was ‘arguably going too far’ to argue, as the defendant had, that Lord Wilberforce’s reference to the ‘fact and consequence of the negligence’ meant that the negligence must itself be synchronous with the sustaining of shock by the secondary victim. It was ‘a little unlikely’ that the Court of Appeal in Walters had overlooked the fact that the fit was a result of the earlier negligent treatment, so that the cause of action had already accrued prior to the start of the relevant ‘event’. Ultimately, however, it was not necessary to resolve any of these points, because the claimant learned of the death after it had happened and witnessed no shocking event. This was fatal to the claim:

Judges:

Michael Kent QC

Citations:

[2014] EWHC 4053 (QB), [2016] PIQR P3

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Liverpool Women’s Hospital NHS Foundation Trust v Ronayne CA 17-Jun-2015
The respondent was an experienced ambulance driver. His wife underwent emergency treatment at the appellant’s hospital. He had claimed as a secondary victim for the distress he suffered witnessing her suffering.
Held: The hospital’s appeal . .
Cited – Paul and Another v The Royal Wolverhampton NHS Trust QBD 4-Jun-2020
Nervous shock – liability to third parties
The claimants witnessed the death of their father from a heart attack. They said that the defendant’s negligent treatment allowed the attack to take place. Difficult point of law about the circumstances in which a defendant who owes a duty of care . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury

Updated: 30 November 2022; Ref: scu.539569

Lowick Rose Llp v Swynson Ltd and Another: SC 11 Apr 2017

Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was revealed.
Held: The accountants’ appeal succeeded. As a general rule ‘collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss’ and loss which has been avoided is not recoverable as damages, although expense reasonably incurred in avoiding it may be recoverable as costs of mitigation. To this there is an exception for collateral payments (res inter alios acta), which the law treats as not making good the claimant’s loss. It is difficult to identify a single principle underlying every case. In spite of what the Latin tag might lead one to expect, the critical factor is not the source of the benefit in a third party but its character. Broadly speaking, collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss.
In this case: ‘subrogation is not being invoked for its proper purpose, namely to replicate some element of the transaction which was expected but failed. It is being invoked so as to enable Mr Hunt to exercise for his own benefit the claims of Swynson in respect of an unconnected breach of duty under a different transaction between different parties more than two years earlier.’

Judges:

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord, Hodge

Citations:

[2017] UKSC 32, [2017] 3 All ER 785, [2017] 2 WLR 1161, [2017] 1 CLC 764, [2017] WLR(D) 257, 171 Con LR 75, [2018] AC 313, [2017] PNLR 18, UKSC 2015/0170

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC 2017 Apr 11 Video

Jurisdiction:

England and Wales

Citing:

Cited – Dunlop v Lambert HL 16-Jun-1839
A cargo of whisky was lost in carriage by sea between Leith and Newcastle. A second shipment was made and the loss was claimed. The House was asked whether ‘in a question between a carrier and the person to whom the carrier is responsible in the . .
Cited – In Re Lee’s Patent PC 16-Jun-1856
. .
Cited – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .
Appeal from – Swynson Ltd v Lowick Rose Llp CA 25-Jun-2015
This appeal concerns the amount of damages recoverable by a lender from a negligent firm of accountants who failed to do a proper exercise of due diligence on the borrower to whom the money was lent. The majority of the loan was repaid by utilising . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Parry v Cleaver CA 9-May-1967
The plaintiff policeman was hit by a car whilst he was on traffic duty. When he claimed damages in negligence the defendant sought to have deducted from his award an amount received by way of additional pension payments received which had been . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Burston Finance Ltd v Spierway Ltd ChD 1974
The lender took a charge over a property held by a company which subsequently became void because it was not registered within the required period at Companies House.
Held: A voidable charge is a valid charge unless and until set aside: . .
Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
At First Instance – Swynson Ltd and Another v Lowick Rose Llp ChD 30-Jun-2014
The claimant said that it had received negligent advice from the defendant accountants in its financing of the purchase of a company in the US. After the company fell into difficulties, further advances were made. The parties disputed the . .
Cited – Chetwynd v Allen 1899
A lender M advanced pounds 1,200 to pay off an existing mortgage held by T over a property owned by the plaintiff. M made the advance on the basis of certain misleading representations and non-disclosures by the plaintiff’s husband. M was told that . .
Cited – Paul v Speirway Ltd (in liquidation) 1976
The plaintiff had made a loan to a company in which he had a joint interest in order to enable it to pay the price due under a contract for the purchase of development land. The company failed, and he now claimed to be a secured creditor by . .
Cited – Boscawen and Others v Bajwa and Others; Abbey National Plc v Boscawen and Others CA 10-Apr-1995
The defendant had charged his property to the Halifax. Abbey supplied funds to secure its discharge, but its own charge was not registered. It sought to take advantage of the Halifax’s charge which had still not been removed.
Held: A mortgagee . .
Cited – Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
Cited – Bank of Cyprus UK Ltd v Menelaou SC 4-Nov-2015
The bank customers, now appellants, redeemed a mortgage over their property, and the property was transferred to family members, who in turn borrowed from the same lender. A bank employee simply changed the name on the mortgage. This was ineffective . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .
Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .
Cited – London and South of England Building Society v Stone CA 1983
A claim was by lenders against negligent valuers after they failed to spot subsidence. They sought for the difference of pounds 11,880 between the amount advanced and the amount which would have been lent upon a proper valuation. The borrowers’ . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – Edinburgh and District Tramways Co Ltd v Courtenay SCS 29-Oct-1908
(Court of Session Inner House First Division) There was contract between a tramway company and an advertising firm, under which the firm paid a rental for the right to display advertising on the tramcars. It was up to the firm to provide the boards . .
Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL 6-Jun-1991
The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
Cited – TFL Management Services Ltd v Lloyds Bank Plc CA 14-Nov-2013
The court was asked: ‘A spends money seeking a judgment for the recovery of a debt from B. A fails to recover the debt because, so the court holds, the debt is not in fact owed by B to A (as A mistakenly thought), but owed by B to C. C then recovers . .

Cited by:

Cited – Tiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd SC 29-Nov-2017
Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial . .
Lists of cited by and citing cases may be incomplete.

Company, Professional Negligence, Damages

Updated: 27 November 2022; Ref: scu.581644

Tiuta International Ltd (In Liquidation) v De Villiers Surveyors Ltd: SC 29 Nov 2017

Allegation of professional negligence. The claimant sought damages against the defendant surveyors for negligently valuing a partially completed residential development over which it proposed to take a charge to secure a loan. On an initial application for summary judgment, an issue arose as to damages.
Held: The appeal succeeded, though the court emphasised that the decision was sensitive to facts assumed for the purpose of the pre-trial application.
The measure of damages is, with qualifications, the sum needed to restore the claimant as closely as possible to the position that he would have been in if he had not been wronged. Where a claimant lends money, and but for a negligent valuation would not have done so, the measure is the difference between: (a) the position the claimant would have been in, had the defendant not been negligent and (b) the claimant’s actual position. This is the ‘basic comparison’ discussed by Lord Nicholls in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627. The basic comparison is typically between: (a) the amount of money lent by the claimant, plus interest on that money and (b) the value of the rights acquired under >the loan agreement plus the true value of the overvalued property

Judges:

Lady Hale, President, Lord Kerr, Lord Sumption, Lord Lloyd-Jones, Lord Briggs

Citations:

[2017] UKSC 77, [2017] 1 WLR 4627, [2018] 2 All ER 203, [2018] 1 BCLC 179, UKSC 2016/0156

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2017 Nov 06am Video, SC 2017 Nov 06pm Video

Jurisdiction:

England and Wales

Citing:

Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Appeal from – Tiuta International Ltd v De Villiers Surveyors Ltd CA 1-Jul-2016
Appeal against an order giving summary judgment for the respondent, De Villiers Surveyors Ltd, on one issue relating to the claim by the appellant, Tiuta International Ltd, for damages for professional negligence.
Held: The appeal succeeded . .
Cited – Lowick Rose Llp v Swynson Ltd and Another SC 11-Apr-2017
Losses arose from the misvaluation of a company before its purchase. The respondent had funded the purchase, relying upon a valuation by the predecessor of the appellant firm of accountants. Further advances had been made when the true situation was . .
Cited – Preferred Mortgages Ltd v Bradford and Bingley Estate Agencies Ltd CA 8-Mar-2002
. .
Cited – Komercni Banka, A S v Stone and Rolls Ltd and Another ComC 15-Nov-2002
Toulson J discussed a set off against a claim for damages: ‘The question whether an alleged benefit should or should not be taken into account cannot be determined by mere application of the ‘but for’ test. Where the wrongful conduct consists of . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 25 November 2022; Ref: scu.599718

Little and Others v George Little Sebire and Co: QBD 17 Nov 1999

Citations:

Times 17-Nov-1999

Jurisdiction:

England and Wales

Cited by:

Appeal from – Little and others v Messrs George Little Sebire and Co CA 14-Jun-2001
The defendant accountants appealed a finding of professional negligence. They had organised schemes with respect to tax saving for their client companies.
Held: The judge was correct to reject the defendant’s argument that the company could . .
Lists of cited by and citing cases may be incomplete.

Damages, Litigation Practice, Professional Negligence

Updated: 18 November 2022; Ref: scu.83091

National Home Loans Corporation Plc v Giffen Couch and Archer (A Firm): CA 18 Jun 1997

A solicitor was not negligent for failing to pass on information about a client’s credit worthiness in the absence of a specific request of the lender.

Citations:

Times 09-Oct-1997, [1997] EWCA Civ 1893

Jurisdiction:

England and Wales

Professional Negligence

Updated: 06 November 2022; Ref: scu.84183

Woodward v Leeds Teaching Hospitals NHS Trust: QBD 1 Aug 2012

The Claimant alleges, and the Defendant admits, that the Defendant negligently failed to diagnose and then to treat the pituitary tumour for more than three years and that as a result of that failure the Claimant grew both in height and frame to a size which considerably exceeds what would have been expected.

Judges:

Stuart Baker HHJ

Citations:

[2012] EWHC 2167 (QB)

Links:

Bailii

Professional Negligence

Updated: 04 November 2022; Ref: scu.463366

Hamlin and Another v Edwin Evans (A Firm): CA 15 Jul 1996

The plaintiffs had discovered that the defendant surveyors had negligently failed to observe that there was dry rot but did not start proceedings until other negligence was discovered more than six years later.
Held: Although the negligent survey had led to two heads of loss there was only one cause of action. Since the plaintiffs had discovered the dry rot over six years previously, the action was statute barred. Only one cause of action arises from a negligent survey; and there is only one applicable limitation period.

Citations:

Gazette 17-Jul-1996, Times 15-Jul-1996, [1996] PNLR 398

Statutes:

Limitation Act 1980 14A

Jurisdiction:

England and Wales

Cited by:

Cited – Watkins and Another v Jones Maidment Wilson (A Firm) CA 4-Mar-2008
The claimants alleged professional negligence by the defendant solicitors in advising them to agree to a postponment of a completion. The defendants raised as a preliminary issue the question of limitation. The claimant said that the limitation . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Limitation

Updated: 31 October 2022; Ref: scu.81199

Broadley and Guy v Chapman and Co: CA 26 Jul 1993

The limitation period starts when the plaintiff realizes that her injury may have been caused by the failure of the medical practitioner. ‘Attributable to’ means ‘capable of being attributed to’ and not ’caused by’. ‘Act or omission’ does not equate with ‘negligence’, ‘actionable’ or ‘tortious’.

Citations:

Ind Summary 26-Jul-1993, Times 06-Jul-1993, [1993] 4 Med L R 328

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – O’Driscoll v Dudley Health Authority CA 30-Apr-1998
The plaintiff sought damages for the negligence of the respondent in her care at birth. Years later the family concluded that her condition was a result of negligence. They waited until she was 21, when they mistakenly believed that she became an . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence

Updated: 26 October 2022; Ref: scu.78661

Arbuthnott v Feltrim; Deeny v Gooda Walker; Henderson v Merrett: CA 14 Dec 1993

Underwriters owe a professional duty of care to Lloyds names in underwriting, even though they were acting as agents.

Citations:

Times 30-Dec-1993, Independent 14-Dec-1993

Jurisdiction:

England and Wales

Citing:

Appeal from – Arbuthnot and Others v Feltrim and Others; Deeny and Others v Gooda Walker Ltd and Others QBD 12-Oct-1993
Lloyds’ names sought damages from their underwriting agents for negligence. The court had to decide as a preliminary issue whether any duty of care arose to the names.
Held: Until 1990, names signed an agreement with a member’s agent who in . .

Cited by:

Appeal from – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Lists of cited by and citing cases may be incomplete.

Agency, Professional Negligence

Updated: 26 October 2022; Ref: scu.77859

AIB Group (UK) Plc v Mark Redler and Co (A Firm): ChD 23 Jan 2012

The claimant bank sought damages from the defendant solicitors, saying that they had paid on mortgage advance moneys but failed to deliver as promised and required, a first mortgage over the property purchased. The solicitors had failed to discharge an existing first charge (to Barclays). The parties now disputed whether the sum due to the bank was the entire sum loaned, or only the net sum lost after the sale.
Held: The solicitors had acted in good faith, but in breach of trust.
Prima facie the bank was entitled to reconstitution of the trust fund by repayment of the amount wrongly paid away. As to the bank’s alternative claim for equitable compensation or damages, he said that where the breach consisted of failure to discharge a prior mortgage, with the result that the bank’s interest had been postponed to the Barclays charge, the bank was entitled to equitable compensation for the additional amounts due to Barclays for which Barclays had security in priority to the bank. The solicitors were therefore liable to the bank for the additional amount ultimately obtained by Barclays by reason of its prior security.
The court analysed the breach of trust: ‘ In the present case, . . . what the defendant’s instructions authorised them to do with the funds paid to them was to pay to Barclays (or to its account) such sum as was required to procure a release of its charge, and pay the balance to the borrowers or to their order. Had they complied with their instructions they would have paid (taking all the figures in round terms) andpound;1.5m to Barclays and andpound;1.8m to the borrowers. In the event they paid andpound;1.2m to Barclays and andpound;2.1m to the borrowers. In my judgment, in so doing they committed a breach of trust in so far as payment was made contrary to the authority they had been given.
It does not however in my judgment necessarily follow that the whole of the payment of andpound;3.3m was made in breach of trust. The difference between what the defendant did and what it ought to have done if it had complied with its instructions was the andpound;300,000 that should have been paid to Barclays but was instead paid to the borrowers. That in my judgment was the extent of the breach of trust committed. It was not a breach of trust to pay andpound;1.2m to Barclays; that payment was made as partial performance of the authority and obligation to discharge Barclays’ secured debt. It was not a breach of trust to pay andpound;1.8m to the borrowers, as that was the sum to which they were entitled. The breach consisted of the failure to retain an additional andpound;300,000 and apply that to the discharge of the Barclays debt.’

Judges:

David Cooke HHJ

Citations:

[2012] EWHC 35 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Appeal from – AIB Group (UK) Plc v Mark Redler and Co Solicitors CA 8-Feb-2013
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
At ChD – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Torts – Other, Equity, Damages

Updated: 04 October 2022; Ref: scu.450453

Asiansky Television Plc and Another v Khanzada and Others: QBD 4 Nov 2011

Judges:

Andrew Smith J

Citations:

[2011] EWHC 2831 (QB)

Links:

Bailii

Citing:

Cited – Mount v Barker Austin (a Firm) CA 18-Feb-1998
The plaintiff sought damages for professional negligence from his former solicitors in respect of their conduct of a claim on his behalf. He succeeded, but was awarded no damages because the judge had found that his action would be bound to fail. He . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 26 September 2022; Ref: scu.448157

XX v Whittington Hospital NHS Trust: QBD 18 Sep 2017

The defendant Trust admitted a failure to diagnose cancer in the claimant. As a result of the necessary treatment, she became infertile. An earlier treatment might have avoided this. She now sought damages, inter alia for losses associated with the costs of a foreign surrogate pregnancy.
Held: Damages were calculated and awarded including a sum toward the costs of the surrogacy arrangement.

Judges:

Sir Robert Nelson

Citations:

[2017] EWHC 2318 (QB), [2018] PIQR Q2

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Briody v St Helens and Knowlsey Area Health Authority CA 29-Jun-2001
The appellant had claimed and been awarded damages for a negligently performed caesarean operation. She had been refused damages for the cost of later going to California to go through a commercial surrogacy procedure.
Held: Such claims were . .

Cited by:

Appeal from – XX v Whittington Hospital NHS Trust CA 19-Dec-2018
The defendant had failed to diagnose cancer in the claimant. The court was now asked whether the judge was correct in law to refuse (or limit) Ms X’s recovery of damages for expenses of surrogacy arrangements which she intended to make, either in . .
At QBD – XX v Whittington Hospital NHS Trust (Leave) CA 19-Dec-2018
Refusal of permission to appeal to Supreme Court . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 19 September 2022; Ref: scu.597495

Janin Caribbean Construction Ltd v Wilkinson and Another: PC 11 Oct 2016

(Grenada)

Judges:

Lord Clarke, Lord Wilson, Lord Sumption, Lord Hodge, Sir John Gillen

Citations:

[2016] UKPC 26

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rees v Sinclair 1974
(New Zealand Court of Appeal) The court discussed the indemnity given to witnesses: ‘But I cannot narrow the protection to what is done in court: it must be wider than that and include some pre-trial work. Each piece of before-trial work should, . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 16 September 2022; Ref: scu.570455

Scullion v Bank of Scotland Plc (T/A Colleys): CA 17 Jun 2011

The surveyor defendant appealed against an award of damages by a purchaser, alleging negligent valuation of property for intended buy to let.

Judges:

Lord Neuberger MR, Etherton, Gross LJJ

Citations:

[2011] EWCA Civ 693

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 13 September 2022; Ref: scu.440849

Eagle Trust Plc v SBC Securities Ltd; Same v Sbci Bank Corporation Investment Banking Ltd: ChD 28 Sep 1994

A financial adviser was not liable in negligence for the allegedly negligent selection of sub-underwriters. On the issue of knowing receipt in a claim for restitution, ‘What the decision in Belmont (No 2) . . shows most clearly is that in a ‘knowing receipt’ case it is only necessary to show that the defendant knew that the monies paid to him were trust monies and of circumstances which made the payment a misapplication of them. Unlike a ‘knowing assistance’ case it is not necessary, and never had been necessary, to show that the defendant was in any sense a participator in the fraud.’

Judges:

Vinelott J

Citations:

Independent 28-Sep-1994, [1993] 1 WLR 484

Jurisdiction:

England and Wales

Citing:

Cited – Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .

Cited by:

Approved – Bank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Cited – Criterion Properties Plc v Stratford UK Properties Llc and others ChD 27-Mar-2002
Criterion sought to set aside a shareholders agreement. Their partner had said they were concerned that another party was taking Criterion over and that this would put at risk their working relationships. The agreement sought to add a poison pill to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Equity

Updated: 24 August 2022; Ref: scu.80209

Phillips v Ward: CA 1956

A negligent survey had been provided to prospective purchasers of a house. It would have cost andpound;7,000 to put the property into the condition in which it had been described in the report.
Held: The correct measure of damages was not andpound;7,000 but andpound;4,000. The latter figure represented the difference between the value of the property as it should have been described at the time of its acquisition and its value as described.
Denning LJ stated that: ‘The general principle of English law is that damages must be assessed at the date when the damage occurred, which is usually the same day as the cause of action arises . . ‘ and ‘The proper measure of damages is . . the difference between the value in its assumed good condition and the value in the bad condition which should have been reported to the client.’

Judges:

Denning LJ

Citations:

[1956] 1 WLR 471, [1956] 1 All ER 874

Jurisdiction:

England and Wales

Cited by:

Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 22 August 2022; Ref: scu.567831

Higgins and Others v ERC Accountants and Business Advisers Ltd: ChD 18 Sep 2017

The claimants seek damages or equitable compensation from the defendants as their former accountants and financial advisors for alleged loss and damage alleged to have been caused by the defendants alleged breaches of contract, negligence and breach of fiduciary and/or statutory duty.

Judges:

Pelling QC HHJ

Citations:

[2017] EWHC 2190 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 20 August 2022; Ref: scu.597460

Magill v Royal Group of Hospitals and Another: QBNI 28 Jan 2010

Citations:

[2010] NIQB 10

Links:

Bailii

Citing:

Cited – Hucks v Cole CA 1968
(Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward. She was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Professional Negligence

Updated: 15 August 2022; Ref: scu.403399

Gregory v Shepherds: ChD 17 Feb 1999

An English solicitor, employing a lawyer in another jurisdiction to purchase land for a client, was not himself negligent, for a failure of that foreign lawyer. The lawyer was not employed as a kind of sub-contractor.

Citations:

Gazette 17-Feb-1999, Gazette 24-Feb-1999

Jurisdiction:

England and Wales

Cited by:

Appeal from – Gregory v Shepherds CA 13-Jul-2000
An English solicitor, employing a lawyer in another jurisdiction to purchase land for a client was not himself negligent for a failure of that foreign lawyer. The lawyer was not employed as a kind of sub-contractor. Nevertheless the solicitor was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 06 August 2022; Ref: scu.81025

Green v Hancocks (A Firm) and Another: ChD 15 Aug 2000

Whether a party had the appropriate standing to commence an action against another was something which should be within the normal competence expected of a solicitor. It would be wrong to transfer the responsibility for an error as to such capacity to counsel who had not expressly requested to advise on the issue.

Citations:

Times 15-Aug-2000

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 06 August 2022; Ref: scu.81004

Hooper v Fynmores: ChD 21 Jun 2001

The elderly testator had wanted to make a new will which would have increased the claimant’s share of his estate by one eighth. The appointment to sign the will was cancelled when the solicitor was himself hospitalised, and the testator died before the second appointment. The solicitors appealed on the basis that the finding against them effectively imposed a higher duty to the beneficiary than would have been due to the testator.
Held: The appeal was dismissed. In undertaking to prepare a will, the solicitor entered into a special relationship with the beneficiaries, an incident of which was a duty to them to act with due expedition and care. The proposed appointment should not have been cancelled without enquiry as to the testator’s health and considering whether to send a substitute. It should not have been missed without the client’s consent.

Citations:

Gazette 21-Jun-2001, Times 19-Jul-2001

Jurisdiction:

England and Wales

Professional Negligence, Wills and Probate, Legal Professions

Updated: 06 August 2022; Ref: scu.81463

Hemmens v Wilson Browne (A Firm): ChD 30 Jun 1993

A solicitor was not liable in negligence, where his mistake might be yet be rectified; this was an inter vivos transaction and the parties could still resolve the position. Though a solicitor had a duty to the beneficiary of a settlement, the settlor could still perfect the deed.

Judges:

Judge Moseley QC

Citations:

Gazette 08-Dec-1993, Times 30-Jun-1993, [1993] 4 All ER 826

Jurisdiction:

England and Wales

Cited by:

Cited – Humblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 05 August 2022; Ref: scu.81313

Guild (Claims) Ltd v Eversheds (A Firm) and Others: ChD 16 Aug 2000

A professional adviser’s duty not to stand by while a client makes a statement he knows to be false does not extend to the offering of unsought advice as to the wisdom of an act or omission which fell short of such a misleading act. When the advice of a professional was challenged, the standard by which it came to be judged was whether he acted in accordance with practice accepted by a responsible body of skilled practitioners at the time.

Citations:

Times 16-Aug-2000

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 05 August 2022; Ref: scu.81078

Gold v Mincoff Science and Gold: ChD 18 Jan 2001

A sleeping partner in a business executed several charges over partnership property, unaware that the funds raised were being used for purposes other than the partnership business. Their solicitors admitted negligence in not advising them sufficiently closely as to the effect of the all monies nature of the charges. A claim was brought to recover money, but then enlarged when the creditor appreciated the extent of the all monies charge. The claimant sought damages for negligence from the solicitor.
Held: The limitation defence succeeded only in part. Where the solicitor had chosen to hide the effect of the clause from his client on signing later charges, liability arising under earlier charges continued.

Judges:

Neuberger J

Citations:

Gazette 18-Jan-2001

Statutes:

Limitation Act 1980

Jurisdiction:

England and Wales

Cited by:

Appeal From – Gold v Mincoff Science and Gold (A Firm) CA 19-Jul-2002
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Land, Limitation

Updated: 25 July 2022; Ref: scu.80896

Harris v Bolt Burdon (A Firm): CA 2 Feb 2000

A case is suitable for striking out which raises an unwinnable case, where continuance of the proceedings is without any possible benefit and would waste resources on both sides.

Citations:

[2000] EWCA Civ 3037, [2000] CP Rep 70, [2000] CPLR 9

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Dowson and Others v Northumbria Police QBD 30-Apr-2009
Nine police officers claimed damages for alleged harassment under the 1997 Act by a senior officer in having bullied them and ordered them to carry out unlawful procedures. Amendments were sought which were alleged to be out of time and to have . .
Lists of cited by and citing cases may be incomplete.

Limitation, Professional Negligence, Litigation Practice

Updated: 24 July 2022; Ref: scu.342142

Gordon, Marquess of Aberdeen and Temair v Messrs Turcan Connell: SCS 23 Dec 2008

The pursuer sought damages in professional negligence saying that the defender solicitors had failed to advise them properly in the management of the family trusts so as to minimise the liability to tax.

Judges:

Lady Smith

Citations:

[2008] ScotCS CSOH – 183

Links:

Bailii

Scotland, Professional Negligence

Updated: 22 July 2022; Ref: scu.279820

Banque Bruxelles Lambert Sa v Eagle Star Insurance Co Ltd and Others: CA 24 Feb 1995

The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the property market collapsed and the various borrowers defaulted and on sale the plaintiffs obtained substantially less than the sums they had advanced. The relevant question was whether the plaintiffs could include in their damages the difference in the value of the properties between the time of entering into the mortgages and the sale of the properties.
Held: The appeal succeeded. Damages payable to a secured lender for a negligent valuation included losses attributable to general market. Discussing liability where two causes contributed to the damages: ‘the event which the plaintiff alleges to be causative need not be the only or even the main cause of the result complained of: it is enough if it is an effective cause’
Sir Thomas Bingham MR described the valuer’s task: ‘In the absence of special instructions, it is no part of V’s duty to advise L on future movements in property prices, whether nationally or locally. The belief among buyers and sellers that prices are likely to move upwards or downwards may have an effect on current prices, and to that extent such belief may be reflected by V in his valuation. But his concern is with current value only. He is not asked to predict what will happen in the future. His valuation is not sought to protect L against future decline in property prices. In no sense is he a guarantor of L’s investment decision.’
He spoke also as to the measurement of damages: ‘where a mortgage lender would not, but for the negligent valuation, have entered into the transaction with the borrower he could recover the net loss he had sustained as a result of having done so; that a fall in the market was foreseeable, and since, in such a case, the lender would not have entered into the transaction but for the valuer’s negligence and could not escape from it unless and until the borrower defaulted, that negligence was the effective cause of his loss, and a fall in the market was not to be treated as a new intervening cause breaking the link between the valuer’s negligence and the damage sustained; accordingly on the assumed facts the mortgagees were entitled to recover damages in respect of the loss they had sustained which was attributable to market fall.’
. . And: ‘In a no-transaction purchase case, it seems clear on English authority that effect will be given to the restitutionary principle by awarding the buyer all that he has paid out less what (acting reasonably to cut his losses including selling the property) he has recovered. In no case before [the present case] has any head of foreseeable damage been excluded from the calculation.’
. . And: ‘In no-transaction mortgage lending cases it has been the practice since Baxter v Gapp [1939] 2 AER 752 to award the lender the net loss sustained as a result of entering into the transaction, which may be expressed as the difference between what the lender advanced and what the lender would have advanced if properly advised (which is always nil). Thus related expenses of sale and realisation less sums recovered . . Should a rise in the market have contributed to [a full recovery] then, as in the successful transaction case, that contribution will not be ignored so as to treat the lender as sustaining a financial loss which in fact he has not sustained. If in such a case a fall in the property market between the date of the transaction and the date of realisation contributes to the lender’s overall loss sustained as a result of entering into the transaction, it would seem to us, on a straight forward application of the restitutionary principle, that the lender should be entitled to recover that element of his loss against the negligent party.’
. . And :’Where a buyer is claiming damages for negligence in a successful transaction case the diminution in value rule ordinarily provides an adequate measure of the buyers loss. As the cases show, to award, for example, the full cost of repairs will usually lead to over-compensation. This assessment will ordinarily be made as at the date of breach, for there is no other appropriate date. The same rule will usually be applied where the buyer decides to keep the property with knowledge of its defective condition or over-valuation even if, with that knowledge, he would not have bought in the first place. In such a case no account is taken of later fluctuations in the market, for he remains the owner of the property as a result of his own independent decision and not of the negligence of the valuer or surveyor.’

Judges:

Sir Thomas Bingham MR

Citations:

Times 24-Feb-1995, Gazette 22-Mar-1995, Times 21-Feb-1995, [1995] QB 375, [1995] 2 All ER 769

Jurisdiction:

England and Wales

Citing:

Appeal from – Banque Bruxelles Lambert Sa v Eagle Star Ins Co Ltd and Others QBD 7-Mar-1994
A negligent valuer was liable for the loss arising from an overvaluation, but the valuer was not liable for that proportion of the lender’s loss on the loan which was attributable to the fall in the market after the valuation date, even though (i) . .

Cited by:

Appeal from – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Paterson and Another v Humberside County Council QBD 19-Apr-1995
A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
Cited – Helmsley Acceptances Ltd v Hampton CA 11-Mar-2010
The claimant lender sought damages from an allegedly negligent valuation by the defendant. It had syndicated its loan, and the defendant now argued that it could only claim for that part of the loan for which it retained ownership.
Held: The . .
Cited – Downs and Another v Chappell and Another CA 3-Apr-1996
The plaintiffs had suceeded in variously establishing claims in deceit and negligence, but now appealed against the finding that no damages had flowed from the wrongs. They had been sold a business on the basis of incorrect figures.
Held: . .
Cited – BPE Solicitors and Another v Hughes-Holland (In Substitution for Gabriel) SC 22-Mar-2017
The court was asked what damages are recoverable in a case where (i) but for the negligence of a professional adviser his client would not have embarked on some course of action, but (ii) part or all of the loss which he suffered by doing so arose . .
Lists of cited by and citing cases may be incomplete.

Damages, Professional Negligence

Updated: 21 July 2022; Ref: scu.78174

Dhillon and Another v Siddiqui and others: ChD 13 Aug 2008

Claim to recover damages for financial losses which were said to have been suffered as the result of various breaches of duty on the part of one or more of the defendant accountants

Judges:

Bernard Livesey QC

Citations:

[2008] EWHC 2020 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 19 July 2022; Ref: scu.277329

Matthews v Hunter and Robertson Ltd: SCS 11 Jun 2008

Judges:

Lord Brodie

Citations:

[2007] ScotCS CSOH – 88

Links:

Bailii

Citing:

Cited – Clarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .
Lists of cited by and citing cases may be incomplete.

Scotland, Professional Negligence

Updated: 15 July 2022; Ref: scu.268803

Vision Golf v Weightmans (a Firm): ChD 26 Jul 2005

The defendant solicitors were joint tortfeasors, having failed to make an application to court in a timely fashion, when it might have succeeded. It defended the claim saying that had the claimant issued proceedings against a second firm that firm would also have been liable.
Held: The ‘but for test’ set out in Iraqi Airways was satisfied in this case. The claim fell within the purpose of the law imposing liability for professional negligence. Nothing prevented the claim against the defendant. The possible liability of a second party did not absolve the defendant.

Judges:

Lewison J

Citations:

Times 01-Sep-2005

Jurisdiction:

England and Wales

Citing:

Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .

Cited by:

Cited – Finecard International Ltd (T/A the Ninja Corporation) v Urquhart Dyke and Lord (A Firm) and Another ChD 10-Nov-2005
The defendants sought an interim ruling that they were not the cause of the claimant’s losses. They had acted as patent agents to license to exploit the claimant’s patent in the UK. They alleged that the failure to complete the registration of the . .
See Also – Vision Golf Ltd v Weightmans (A Firm) ChD 21-Jul-2006
. .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 13 July 2022; Ref: scu.229997

Vision Golf Ltd v Weightmans (A Firm): ChD 21 Jul 2006

Judges:

Nugee QC DHCJ

Citations:

[2006] EWHC 1766 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Vision Golf v Weightmans (a Firm) ChD 26-Jul-2005
The defendant solicitors were joint tortfeasors, having failed to make an application to court in a timely fashion, when it might have succeeded. It defended the claim saying that had the claimant issued proceedings against a second firm that firm . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Damages

Updated: 07 July 2022; Ref: scu.243988

Toth v Jarman: CA 19 Jul 2006

The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: The presence of a conflict of interest in an expert need not necessarily disqualify an expert, though ‘where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence or indeed to give permission for his evidence to be adduced.’ The test was as to the independence of his opinion. The court made suggestions for the Rules committee as to possible amendments to the expert’s standard declaration.

Judges:

Sir Mark Potter President, Arden LJ, Wall LJ

Citations:

[2006] EWCA Civ 1028, Times 17-Aug-2006, [2006] 4 All ER 1276

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Cited – North Glamorgan NHS Trust v Walters CA 6-Dec-2002
A new mother woke in hospital to see her baby (E) fitting. E suffered a major epileptic seizure leading to coma and irreparable brain damage. E was transferred to a London hospital and the following day the claimant was told by a consultant that E’s . .
Cited – Liverpool Roman Catholic Archdeacon Trustees Inc v Goldberg (No 2) 2001
The claimant brought proceedings for professional negligence against a barrister specialising in tax. The Defendant wished to rely upon the expert evidence of another tax barrister in the same set of chambers as him, who was a friend of many years’ . .
Cited – Pollivitte Ltd v Commercial Union Assurance Company Plc 1987
An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. . .
Cited – Field and Another v Leeds City Council CA 8-Dec-1999
The parties were involved in a dispute as to repairs on a tenanted property. The court had ordered an independent surveyor’s report. The claimant objected to the use by the defendant of an employee for this purpose, and was involved in their claims . .
Cited – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .

Cited by:

See Also – Toth v Jarman CA 21-Nov-2006
. .
Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Cited – Kennedy v Cordia (Services) Llp SC 10-Feb-2016
The appellant care worker fell in snow when visiting the respondent’s client at home. At issue was the admission and status of expert or skilled evidence.
Held: Mrs Kennedy’s appeal succeeded. ‘There are in our view four considerations which . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury, Litigation Practice, Evidence

Updated: 07 July 2022; Ref: scu.243326

Palmer v Tees Health Authority and Another: QBD 1 Jun 1998

A Health authority was not liable in negligence for failing to restrict the freedom of a mental health out-patient who had threatened to kill and did so. The threat was not specific enough to allow action.

Citations:

Times 01-Jun-1998

Jurisdiction:

England and Wales

Cited by:

Appeal from – Palmer (Administratrix of the Estate of Rose Frances Palmer) v Tees Health Authority and Hartlepool and East Durham NHS Trust CA 2-Jun-1999
A claim for damages on behalf of a murdered child’s estate and the child’s mother for psychiatric damage against a health authority for negligence in having failed to manage a psychiatric outpatient who had abducted and murdered the child, was bound . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 06 July 2022; Ref: scu.84545

Goodwill v British Pregnancy Advisory Service: CA 19 Jan 1996

The doctor executed a vasectomy, and advised the plaintiff that he need no longer take contraceptive precautions.
Held: No duty fell on a doctor to advise on the possibility of the failure of a vasectomy toward possible future sexual partners of the subject of the operation. The law could not extend a duty to a possible future partner. That was a tenuous relationship.

Citations:

Independent 19-Jan-1996, Gazette 07-Feb-1996, Times 29-Jan-1996, [1996] 2 All ER 161, [1996] 1 WLR 1397

Jurisdiction:

England and Wales

Cited by:

Cited – West Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Updated: 04 July 2022; Ref: scu.80916

Wates Construction Ltd v HGP Greentree Allchurch Evans Ltd: TCC 10 Oct 2005

A unit constructed by the claimant had collapsed under a weight of rainwater. It had been constructed according to a design provided by the defendants. The claimants had discontinued the action on the morning of the trial, and the defendants now sought costs on an indemnity basis.
Held: An order for indemnity costs may only be made where a party maintains a claim or application which it knew or ought to have known was doomed to fail on its facts and on the law.
The pursuit of a weak claim will not usually, on its own, justify an order for indemnity costs, provided that the claim was at least arguable. But the pursuit of a hopeless claim (or a claim which the party pursuing it should have realised was hopeless) may well lead to such an order.

Judges:

Peter Coulson QC

Citations:

[2005] EWHC 2174 (TCC), [2006] BLR 45, 105 Con LR 47

Links:

Bailii

Citing:

Cited – Atlantic Bar and Grill Ltd v Posthouse Hotels Ltd 2000
The third defendant sought an order that the costs of the claim for an injunction against him, once it was discontinued on the second day of trial, should be assessed on an indemnity basis.
Held: The order should be made. The power of the . .
Cited – Reid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .
Cited – Kiam II v MGN Ltd (2) CA 6-Feb-2002
An appeal against a damages award in a defamation case had been unsuccessful. The claimant now appealed for the award of indemnity costs. The claimant had made an offer of compromise, which had been ignored by the defendant.
Held: If a party . .

Cited by:

Cited – Evans and Others v The Serious Fraud Office QBD 12-Feb-2015
The claimants had had criminal charges brought against them by the defendants. A court had ordered them discharged, but the defendant had recommenced proceedings and these second set of proceedings had also been dismissed by the court. They now . .
Cited – Elvanite Full Circle Ltd v AMEC Earth and Environmental (UK) Ltd TCC 14-Jun-2013
Following the proncipal judgment there were disputes as to the basis of assessment of costs and the interaction between the existing costs management order (which approved the defendant’s budget costs of andpound;264,708) and the total costs now . .
Lists of cited by and citing cases may be incomplete.

Construction, Professional Negligence, Costs

Updated: 04 July 2022; Ref: scu.231287

Glyn (T/A Priors Farm Equine Veterinary Surgery) v Mcgarel-Groves: ChD 23 Jul 2005

The claimants sought payment of their professional fees for veterinary surgeon services, and the defendant cross claimed for damages for professional negligence. The horse which had been treated had died.
Held: The animal’s condition was know to be one where the treatment risked killing the horse. The horse had been a very successful dressage competitor. One surgeon had injected two kinds of cortico steroids, and there was no clinical justification for this. The seond surgeon had the job of supervising the treatment, but had failed to establish just what treatment was being provided, and in so failing he was in breach of his duty of care, though the treating vet must bear the principla responsibility.

Citations:

[2005] EWHC 1629 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence

Updated: 01 July 2022; Ref: scu.229012

Taefi v Jeffrey Green Russell (A Firm): CA 25 Jul 2005

The appellant challenged dismissal of his claim for professional negligence against his former solicitors in their conduct of litigation against a tenant.
Held: The appeal failed. The factual findings had a proper basis in the evidence. Even if the failing alleged had been shown, it would not have caused the damage alleged.

Judges:

Brooke VP, Tuckey, Lloyd LJJ

Citations:

[2005] EWCA Civ 901

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Credit Lyonnais Sa (A Body Corporate) v Russell Jones and Walker (A Firm) ChD 2-Jul-2002
The claimant sought damages for professional negligence against the defendant solicitors. A corporate lawyer had been assigned to deal with a property matter, and he had failed to appreciate the need to comply strictly with time conditions in a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 01 July 2022; Ref: scu.228996

McDonnell v Holwerda: QBD 27 May 2005

The claimant sought damages alleging that the defendant doctor had failed to diagnose his child meningitis.
Held: The examination conducted by the doctor had been inadequate in the circumstances, and her approach inflexible: ‘although the defendant’s assessment on the first occasion did not fall below the standard required of her, it was marked by a measure of inattention to the vomiting and a significant measure of certainty. In my judgment, her overall assessment on the second occasion was reached in haste.’

Judges:

Newman J

Citations:

[2005] EWHC 1081 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Professional Negligence, Personal Injury

Updated: 01 July 2022; Ref: scu.226998

John D Wood Ltd v Knatchbull: QBD 16 Dec 2002

The claimant sought payment of his commission as an estate agent. The defendant sought to set off a claim for damages, alleging that the agent had failed to keep him apprised of developments in the local market to his loss.
Held: The agent could not be under a duty to tell a client of every scrap of information, but did have a duty to advise on significant changes. A neighbouring property had been marketed at a significantly higher price, and the defendant should have been told of this.

Citations:

Times 16-Jan-2003

Jurisdiction:

England and Wales

Professional Negligence

Updated: 27 June 2022; Ref: scu.178768