Professional Negligence

Integral Memory plc v Haines Watt (QB) 22/2/12

Mon, 30 Apr 2012 15:31:16 GMT

Accountants were retained to provide tax advice on a bonus scheme. The Deputy Master granted summary judgment on the basis that the claim was time-barred. The appeal was refused. It was held that in 2003 they should have advised that there was a material change in the law affecting the bonus scheme. Proceedings could have been brought then and there was no continuing breach. All that there was, was a failure to remedy the existing breach. In terms of liability it was not a case of contingent liability. There was either an actual liability to pay the contributions and interest or there was not. It was not contingent on the outcome of proceedings in the tax tribunal. That Revenue and Customs could waive a liability was different to whether the liability existed in the first place. For the purposes of s.14A of the Limitation Act the contemporaneous correspondence indicated in 2003 that the company had sufficient knowledge of the relevant facts or at least to investigate further. The Claimant has informed Law Brief Update that it is seeking to appeal the decision.

Lloyds Tsb Bank Plc v Markandan & Uddin (a firm) [2012] EWCA Civ 65 (09 February 2012)

Thu, 16 Feb 2012 22:50:39 GMT

Solicitor and partner Mr Anis Waiz of Mohindra Maini LLP continues his critical review of current case law. This important case arose from a mortgage fraud and facts which are all too familiar to lenders and solicitors.

There are a number of key issues as to completion and breach of trust in the judgment which are essential to grasp and of keen interest to conveyancers and Lenders .

Part of the claim against the defendant was that they were in breach of trust in paying away the advance. The defendant sought to rely on section 61 of the Trustee Act 1925 ("the 1925 Act"). Lord Justice Rimer noted

"The careful, conscientious and thorough solicitor, who conducts the transaction by the book and acts honestly and reasonably in relation to it in all respects but still does not discover the fraud, may still be held to have been in breach of trust for innocently parting with the loan money to a fraudster. He is, however, likely to be treated mercifully by the court on his section 61 application"

Background

In 2007 Cheltenham & Gloucester PLC (C&G) now a wholly owned subsidiary of Lloyds instructed the defendant solicitors to act for it on a proposed mortgage loan of £742,500 to a purported borrower.

The loan was to buy a property. The repayment was to be secured by a first legal charge over certain property. In fact the genuine owners of the property had not agreed to sell it to the purported borrower or to anyone, and were ignorant of the fraud that was being carried on.

Upon what they claimed was the completion of the purchase and charge, the defendant remitted the loan money to (so they believed) a firm of solicitors acting for the vendors. The bogus firm had contacted M&U to inform them that they were acting for the owners of the property, on the proposed sale to the borrower.

However this was a fictitious branch office. One or more individuals pretended to be carrying on practice of a branch office for which they printed some bogus notepaper. The fraudsters duped the defendant into paying the loan money to them.

As a result C&G received no legal charge over the property . The only potential recovery was from the defendant.

The reader is referred to the Judgment for the full facts including a number of anomalies in the application for the mortgage and startling facts.

The defendants Retainer

C&G's letter of instruction to the Defendant noted

'C&G has adopted the CML [Council of Mortgage Lenders] Lenders' Handbook for England and Wales (the "Handbook") and we therefore require you to act in accordance with the instructions contained in it."

There were some key provisions in the handbook which the court considered. Again the reader is referred to the judgment:

1 Clause 5.8 On completion, we require a fully enforceable first charge by way of legal mortgage over the property..

2 Clause 10.3.1 You are only authorised to release the loan when you hold sufficient funds to complete the purchase of the property and pay all stamp duty land tax and registration fees to perfect the security as a first legal mortgage or, if you do not have them, you accept responsibility to pay them yourself.

3 Clause 10.3.4 You must hold the loan on trust for us until completion. If completion is delayed, you must return it to us when and how we tell you (see part 2)….

As was standard the defendant signed a certificate of title for the property and sent it to C&G. The certificate was in the terms of the Appendix to Rule 6(3) of the Solicitors' Practice Rules 1990.

Completion

Completion was to be by post. The then applicable Law Society's code for completion by post applied. Under that code, the defendant should have received from the Vendor' solicitors the signed part of the vendors' contract, the executed transfer, the DS1 certificate of discharge in respect a prior charge and the charge certificate. In fact they received nothing.

From the Judgment the reader will note some unusual facts surrounding payment of the purchase price and the TR1

At a later date the defendants remitted from their client account £702,613.25 to another account of the supposed Vendors solicitors. No transfer was ever produced by the Purported vendors.

Matters then came to light. when the real owners of the property re mortgaged . The claimant had thus parted with the loan and had no security.

The Claims

C&G issued proceedings against the defendant under three alternative heads.

1 In parting with the loan money, they acted in breach of trust and were liable to reconstitute the trust fund (the loan money) and restore it to C&G.

2 They had parted with the money in breach of its undertakings to C&G.

3 They were liable in negligence and breach of contract.

The Issues

The defendants admitted in their Defence that they had held the loan money 'on bare trust for C&G with C&G's authority to pay it away in connection with the purchase of the property. Accordingly the court directed a trial of certain preliminary issues:

1 had there been a breach of trust by the defendant?

2 If 'yes', could the defendant rely on the 1925 Act to relieve them from liability?

3 was any loss or damage suffered by C&G caused or contributed to by C&G's own fault?

Those issues were tried in 2010 before Mr Roger Wyand QC,. He held there had been a breach and the defendant could not rely on the 1925 Act. As to question 3 he entered judgment against the defendant for £742,500, with interest.

As to the 1925 Act , the court noted that section empowered the court to relieve a defendant wholly or partly from personal liability if they had 'acted honestly and reasonably, and ought fairly to be excused for the breach of trust.

There was no question as to the defendant's honesty. However there was a challenge to the reasonableness of their actions. In his judgment, the judge gave his reasons for concluding that their conduct had not been reasonable. There was no appeal on that point.

The defendant appeal was on the basis they had not committed a breach of trust and as a matter of causation even if there was a breach that had not caused any loss to C&G.

The Appeal

There was no dispute that upon C&G's payment of the loan money to the defendant, the defendant , held it upon trust for C&G until 'completion'. Clause 10.3.4 of the CML Handbook expressly provided for that.

Importantly the Court of Appeal noted even if this was not provided for the money would anyway have been held on such a trust. Money held by a solicitor on client account is trust money (see Target Holdings Ltd v. Redferns (a Firm) and Another [1996] 1 AC 421, at 436A to C, per Lord Browne-Wilkinson).

A number of issue arose on the Appeal:

1 Was there completion?

The instructions provided that the defendant were authorised to release the money for the purpose of completing the purchase (clause 10.3.1 of the Handbook); and upon such release, the trust would come to an end.

The key was the meaning of completion in clause 10.3.4 of the handbook. Lord Justice Rimer noting:

In my view, therefore, the judge was right to hold that 'completion' in clause 10.3.4 did not refer to the successive moments when the transfer and charge were respectively registered. It referred to the prior date when conventional completion occurred. M&U were authorised by C&G to release the loan money to enable such completion to take place. The trust was only destined to subsist until such time as it did.

The defendant sought to argue that completion had taken place. To enable it to take place, the defendant had remitted the required moneys to the vendors solicitors and expected those solicitors to honour their undertakings to send them by first class post the documents listed in paragraph 3.2 of replies to requisitions on title.

However there was no solicitors for the vendors. There were no vendors, in fact selling the property; they had no intention of paying any of the loan money in the redemption of a prior charge; and they had no genuine documents to send to the defendants.

The Court of Appeal agreed with the judge at first instance who held there was no completion. The defendant parted with the advance money without receiving either (i) 'the requisite documents' or (ii) a solicitor's undertaking to provide such documents. A number of reasons were given.

1.1 The purported contract was a nullity, since the vendor had not agreed to sell their property, nor had they authorised anyone to sell it to him in their name;

1.2 The purported completion of that nullity by way of the exchange of purchase money for forged documents could not have amounted to completion.

1.3 Completion must mean the completion of a genuine contract by way of an exchange of real money in payment of the balance of the purchase price for real documents that will give the purchaser the means of registering the transfer of title to the property that he has agreed to buy and to charge.

1.4 An exchange of real money for worthless forgeries in purported performance of a purported contract was a nullity and not completion at all.

2 The trust point.

For the defendant it was argued that it was unfair that they were liable having become innocently mixed up in the fraud and be held accountable as trustees for parting with the loan money in the belief that they were doing so for the purposes of completing a genuine transaction.

However as noted by the Court of Appeal they failed to obtain relief under the 1925 Act , although they had acted honestly because they had not acted reasonably and so were not deserving of the merciful exercise by the court of its exculpatory discretion.

Their material failings were numerous and include failing to check the vendors solicitors which constituted a breach of clause A3.2 of Section 3 (Safeguards) of the Handbook; and to part for a second time with the money when they knew that the purported solicitors had breached their earlier undertakings.

The defendant Appealed was dismissed.

Conclusion

This may appear to be a harsh decision. However there were clear failings by the solicitors to conduct the transaction properly and in accordance with accepted practice and their professional duties.

A warning for lawyers and a useful reminder as to the courts exercise of discretion under the 1925 Act. The final word goes to Lord Justice Rimer

"Whilst it is impossible not to have sympathy for M&U in becoming enmeshed in the fraud, the judge's conclusion was that, by these two shortcomings, they brought their misfortune upon themselves. If they had instead performed their role as solicitors with exemplary professional care and efficiency, but had still parted with the loan money in circumstances that were objectively reasonable, the decision on the section 61 application might have been different"

Paratus AMC Ltd & Anr v Countrywide Surveyors Ltd (Ch) 14/12/11

Thu, 16 Feb 2012 22:29:34 GMT

In assessing the market valuation of a property, evidence based on sales evidence taken from comparable properties on the Land Registry at the time immediately before the contested valuation was to be preferred to evidence based upon the application of a price per square metre to the floor area of the property.

Padden v Bevan Ashford Solicitors (CA) 21/12/11

Thu, 16 Feb 2012 22:28:21 GMT

In proceedings against a firm of solicitors it was alleged that the solicitors had failed properly to advise the Claimant in respect of a transaction where she effectively lost the interest in her home and certain endowment policies, shares and pensions. When her husband had been accused of obtaining money be deception from a third party, she was told their house and savings would need to be sold to save him from prison. Her husband's solicitor prepared draft documents recording her agreement to give up her interest in the house and savings. She sought advice from the Defendant where she was advised to proceed with the transaction following a short meeting. At a subsequent meeting she and her husband provided the solicitors with a mortgage, charges over certain shares and a deed in favour of the third party. One of the defendant's partners witnessed her signature on the document and certified that it had been explained to her and she understood them. Her evidence was that she had received no advice at all. H er husband was subsequently convicted and she began divorce proceedings. When her husband died, the third party enforced her rights under the mortgage and the property was sold. The Claimant brought proceedings alleging a failure to advise her properly. During the trial of the claim, the judge heard evidence from the Claimant and then stopped the trial finding that there was no case for the solicitors to answer. On appeal the Court of Appeal emphasised the importance of the observations of Lord Nicholls in Royal Bank of Scotland v Etridge (No 2) as a very good guide to the appropriate approach where an individual sought advice from a solicitor about an intended provision of security for the sole financial benefit of someone else in a close personal relationship with them, subject of course to the fact of each case. The purpose of a solicitor giving advice was not simply to protect the client, but also so that the other parties could rely on his involvement to counter any subsequent set-aside application. Eve n though a meeting was short and free of charge it did not divest the solicitors of his duty to ensure that the client understood the effect of the documentation and was free of undue influence or misrepresentation. In the circumstances of the case, the solicitor should have advised the Claimant to investigate the possible implications of the criminal proceedings further. Active case management of the sort taken by the judge was appropriate in some cases. However it was a high-risk course that was only to be taken in a very clear case.

Chapper v Jackson (Ch) 21/12/11

Thu, 16 Feb 2012 22:27:17 GMT

An application against a trustee in bankruptcy that he pay £200,000 to the estate as loss alleged to have been occasioned by the sale of a property at an undervalue failed. Following proceedings relating to the property the court ordered that it should sold for not less than £650,000. That was the price at which the property was sold. This was said to be at an undervalue and the trustee should have applied to the court to increase the minimum sale price and also by failing to initiate rent reviews in respect of the property. The court held that the in general terms the prospects of an intervention were poor. There was no possibility of reversing most of the orders previously obtained including the charging order and the order for sale. Central to the decision not to join the litigation was the limited costs in the estate and of the administration and the potential liability for the other party's costs. Without a new valuation there was no prospect of an application succeeding and the omission not to obtain s uch a valuation did not fall short of the trustee's duty. For similar reasons it was not a breach of duty not to have pursued rent reviews.

AIB Group (UK) Plc v Mark Redler & Co (A Firm) [2012] EWHC 35 (Ch) (23 January 2012)

Thu, 26 Jan 2012 21:56:00 GMT

We are pleased to welcome Anis Waiz, Partner at Mohindra Maini LLP as he continues his critical review of current case law. In this post, Anis considers AIB Group (UK) Plc v Mark Redler & Co (A Firm) [2012] EWHC 35 (Ch) (23 January 2012):-

Introduction

This is an important case for all solicitors acting for lenders taking security. It also provides a salutary lesson when dealing with redemptions and has a useful summary of the law relating to breach of trust claims and the appropriate remedy.

Here the lender was seeking to recover the balance of an advance which it said was paid away to the borrowers in breach of trust.

At the outset it should be noted that once a conveyancing transaction has been completed the client has no right to have the solicitor's client account reconstituted as a trust fund (see Target Holdings Ltd v Redferns [1996] AC 421 as per Lord Browne- Wilkinson).

Background Facts

AIB's borrowers sought a remortgage advance of circa £ 3 million on their home valued at around £ 4 million. There was a first charge in favour of Barclays Bank to be redeemed from the advance. Barclays were owed circa £1.5 million on two accounts.

Before completion the solicitors were given a redemption figure circa £1.23m. They paid that to Barclays and the remainder of the advance to the borrowers.

The solicitors failed to notice that the redemption figure related to only one of the two accounts and insufficient to redeem the Barclays mortgage. The reader is referred to the judgment as to the facts surrounding the redemption. The solicitors whilst acting in good faith admitted that they were negligent.

As is standard the Solicitors provided a Certificate of Title as per Rule 6(3) of the Solicitors Practice Rules 1990 which noted

"Except as otherwise disclosed to you in writing…we have investigated title to the property, we are not aware of any other financial charges secured on the property which will affect the property after completion of mortgage and, upon completion of the mortgage, but you and the mortgagor … will have a good and marketable title to the property … free from prior mortgages or charges …which title will be registered with absolute title. "

The sum sent to Barclays was insufficient to discharge its secured debt and it subsequently refused to remove its charge. The defendant was not able to register AIB's charge until it was in a position to redeem Barclays' charge.

In April 2008, AIB and Barclays entered into a deed of postponement by which Barclays permitted AIB's charge to be registered as a second charge on the property, limiting its priority in respect of its own charge to circa £274k, plus interest, costs and expenses. That was less than the balance outstanding by reason of payments that the borrowers had made.

AIB obtained judgment against the borrowers for circa £3.5 million, and an order for possession of the property which was sold for £1.2 million. £300,000 was paid to Barclays in satisfaction of their first charge, and the balance (after costs) of £867,697.78 to AIB. Bankruptcy orders were made against the Borrowers.

The Claim

AIB 's claim was that the solicitors acted in breach of trust by paying away the advance , which was admitted was held as trust money, without obtaining a first charge. As a result the solicitors were liable to reconstitute the trust fund of £3.3m,, credit being given for £867,697 recovered, with a liability of about £2.4m before interest.

The solicitors argue that payment was not a breach of trust, or if it was their liability was limited to the loss in the value of the bank's security caused by their failure to pay off the whole of Barclays' secured debt. In other words £300,000 paid to Barclays from the sale proceeds.

There were two issues for the court to consider

1 Did the defendant act in breach of trust in releasing the Advance Monies.
2 If so, to what remedy, if any, was the Claimant entitled to ?

Breach of Trust

The starting point was Target Holdings Ltd v Redferns [1996] AC 421 where a solicitor had paid away monies to a third party. Lord Browne- Wilkinson analysed the principles on which a court would order restoration of trust monies wrongly paid away, or compensation in lieu. He stated at page 435

"The depositing of money with the solicitor is but one aspect of the arrangements between the parties, such arrangements being for the most part contractual. Thus, the circumstances under which the solicitor can part with money from client account are regulated by the instructions given by the client: they are not part of the trusts on which the property is held.

I do not intend to cast any doubt on the fact that moneys held by solicitors on client account are trust moneys or that the basic equitable principles apply to any breach of such trust by solicitors.

But the basic equitable principle applicable to breach of trust is that the beneficiary is entitled to be compensated for any loss he would not have suffered but for the breach. I have no doubt that, until the underlying commercial transaction has been completed, the solicitor can be required to restore to client account moneys wrongly paid away. But to import into such trust an obligation to restore the trust fund once the transaction has been completed would be entirely artificial.

To impose such an obligation in order to enable the beneficiary solely entitled (i.e. the client) to recover from the solicitor more than the client has in fact lost flies in the face of common sense and is in direct conflict with the basic principles of equitable compensation.

In my judgment, once a conveyancing transaction has been completed the client has no right to have the solicitor's client account reconstituted as a "trust fund."

On the first issue HHJ David Cooke noted

1 the terms on which a solicitor is authorised to pay out monies held in his client account are to be determined by construction of his contract of retainer. Thus Lord Browne Wilkinson held that they are regulated by the retainer rather than being terms of the trust. However a payment out of monies in breach of those terms of the retainer that govern the authority to pay would amount to a breach of trust.

2 not all the terms of the solicitor's retainer relate to their authority to pay out monies from client account. A payment of money at a time when the solicitor is in breach of one of these other terms will not necessarily amount to a breach of trust

3 The court's task is to construe the terms of the retainer in order to ascertain what authority they confer on the solicitor to pay out money that they hold on trust for the client.

4 In the present case, the written terms of the retainer did not deal explicitly with the precise circumstances in which the solicitor could pay out the money. It was necessary to fill in any gaps using the ordinary basis of construction. The reader is referred to the judgment for a more detailed analysis.

5 The defendant's instructions authorised them to pay to Barclays such sum as was required to procure a release of its charge, and to pay the balance to the borrowers. Had they complied with their instructions they would have £1.5m to Barclays and £1.8m to the borrowers. However they paid £1.2m to Barclays and £2.1m to the borrowers. In so doing they committed a breach of trust as payment was made contrary to the authority they had been given.

The Remedy

What was AIB's remedy? On their behalf it was argued that the defendant held the advance on trust to be released only against a first legal charge. A first legal charge was never provided. What the bank received was a second legal charge, but a second charge.

It was submitted that was a different asset altogether. Counsel for AIB drew an analogy with a trustee who was authorised to buy a new car, but spent trust funds on a second hand one instead. Therefore it would not be an authorised use of funds and the trustee would be liable to reconstitute the fund by paying the whole price back. In this case, the solicitors had never obtained a first charge and so were not authorised to disburse any of the advance.

This was rejected by HHJ Cooke. He noted the solicitors' instructions to obtain a first charge required them first to obtain a duly executed charge in favour of the bank, which they did, and then to apply the advance so that the charge took effect as a first charge. The only precondition to the release of any funds was the receipt of a valid form of charge.

HHJ David Cooke noted that it did not necessarily follow that the whole of the payment out of £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 that £300,000 should have been paid to Barclays. Instead it was paid to the borrowers. In HHJ Cooke judgment that was the extent of the breach of trust committed.

However, It was not a breach of trust to pay £1.2m to Barclays. That payment was made as partial performance of the authority and obligation to discharge Barclays secured debt. Neither was it a breach of trust to pay £1.8m to the borrowers. That was the sum to which they were entitled. The breach consisted of the failure to retain an additional £300,000 and apply that to discharge of Barclays debt.

AIB was entitled to reconstitution of the trust fund by repayment of the amount wrongly paid away.

Where as here the breach consists of failure to discharge a prior mortgage, with the result that the claimant's interest has been postponed to Barclays debt to the extent of the capital, plus interest and charges subsequently accruing due to Barclays and also secured by its charge, the claimant is entitled to equitable compensation for the additional amounts accruing due to Barclays, which have increased the amount secured in priority to the claimant's interest.

The claimant had to give credit for the amounts paid by the borrowers to their Barclays account, since these have had the effect of reducing the loss caused by the defendant's breach of trust.

Thus the defendant's liability at the date at which Barclays charge was eventually redeemed would be the amount paid at that date to Barclays circa £274k .

Conclusion

Here a simple mistake led to very serious consequences for the lender. More importantly, no doubt the Solicitors insurers having to meet substantial costs.

There is much to command the wisdom of hindsight . Had the solicitors re checked any redemption figure from their instructions and sought further instructions from AIB a claim could have been averted.

Whilst it was not raised practitioners should note section 61 Trustee Act 1925 which provides:

If it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed such breach, then the court may relieve him either wholly or partly from personal liability for the same.

Padden v Bevan Ashford Solicitors [2011] EWCA Civ 1616 (21 December 2011)

Thu, 12 Jan 2012 15:46:00 GMT

We are pleased to welcome Anis Waiz, Partner at Mohindra Maini LLP as he writes a comprehensive case note on the recent Padden v Bevan Ashford Solicitors decision.

Introduction

First let me wish you all a very happy and peaceful new year.

Continuing with my blogs on current case law this case from December is an important and a stark warning for lawyers who witness documents without considering fully their potential liability.

The Court of Appeal noted in this case the ultimate purpose of consulting a solicitor is not normally to be advised in terms whether or not to enter into the contemplated transaction. It is to ensure that a person understands the nature, effect, and potential consequences of the transaction, and is not under a misapprehension or undue influence.

Background

The claimant and her husband jointly owned a property near Exeter, in Devon ('the house'). They also had a joint bank account, and some shares and endowment.The husband was a financial consultant.

In March 2003 the claimant's husband returned home with his solicitor a Mr Lawson, who told the claimant that a dispute had arisen between her husband and another. That dispute involved monies taken by the husband from a third party.

The claimant alleged she was told that in order to avoid a criminal prosecution the house would have to be sold and the money repaid to the third party. The claimant was told she should get independent legal advice.

Following the meeting , Mr Lawson sent the claimant a letter recording that, in order 'to assist' her husband, the claimant had said that she was 'willing to effectively give up her interest in the house and the endowment policies, pension rights and shares.

The claimant attended the defendant's and met with a newly qualified Solicitor. She explained the matter to the solicitor , who advised the claimant not to proceed with the projected transaction. Against that the claimant decided to proceed. The defendant did not charge for this meeting.

The defendants sent a fax to Mr Lawson, the claimant's husband's solicitor, stating that they had been asked by the claimant to write to 'confirm her consent to transfer her interest in the house and other assets having taken independent legal advice from the firm as to the consequences of doing so', and adding that it was her wish that the transaction 'should be dealt with as quickly as possible.

Four draft documents were taken by the claimant's husband to the defendants, which he visited with the claimant. The claimant then met another solicitor at the defendant's office.

The claimant signed the four documents, (i) a second mortgage ('the mortgage') over the house as security for a debt (which was recorded as being £740,000), (ii) a charge over certain shares ('the shares'), (iii) a charge over certain endowment policies ('the policies'), and (iv) a Deed ('the Deed', which referred to the other three documents), all in favour of a third party.

A solicitor employed by the defendant witnessed the signature of the claimant and her husband on each of the four documents.

He also certified that the claimant had 'had the consequences of this deed and the obligations which it imposes on her explained by a solicitor/ legal executive' and that he was 'satisfied' that she 'understands the nature of this deed and its meaning and effect' and that 'to the best of [his] knowledge [she] has freely consented to it without undue influence or … in reliance upon any misrepresentation.

The claimant's husband was prosecuted in mid-2005 for obtaining money by deception from third parties including the mortgagee and was convicted

Later the Mortgagee sought to enforce its security. The Claimant tried to set aside the documents on the ground of undue influence and in subsequent proceedings which were eventually compromised the house was sold, with the proceeds being paid to the Mortgagee.

The Proceedings

The claimant issued proceedings against the defendants in early April 2009, claiming damages for their negligently having failed to advise her properly in connection with the transaction.

By their defence, the defendants contended that (i) they were not in breach of any duty to the claimant, (ii) any claim based on the March meeting was time-barred, and (iii) the claim anyway on causation. At trial the claimant was unsuccessful. In effect the trial judge found there was no case for the defendants to answer.

The Appeal

The main issue before the Court of Appeal was whether the Judge was entitled to conclude at the end of the claimant's evidence that the defendant solicitors had satisfied their duty to her.

The defendants raise an alternative argument namely that, even if breach of duty were established, the claim should fail on causation, because the claimant would have acted no differently, even if she had been advised as she contends that she should have been.

Duty of Care

The Court of Appeal reviewed the authorities. The reader is referred to the judgment but in summary it noted:

1 Where the extent of a solicitor's duty is in issue, 'the court must beware of imposing upon solicitors … duties beyond the scope of what they are requested and undertake to do' as per Oliver J in Midland Bank Ltd v Hett, Stubbs & Kemp [1979] Ch 384, 403,

2 The test familiar to all is 'what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession'.

3 Fletcher Moulton LJ said in Re Coomber [1911] 1 Ch 723, 730 The solicitor 'is not bound to say … "if I were you I would do it"; or "if I were you I would not do it", …

4 The solicitor should put clearly before the client the nature and consequences of the act so that from the clear language of an independent mind they should know what they are doing.

5 Where a wife is charging the matrimonial home as security for the husband's business debts to a bank, 'the scope of the responsibilities of a solicitor who is advising the wife' was considered by Lord Nicholls of Birkenhead in Royal Bank of Scotland plc v. Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773, see paras 64-68:

The Court of Appeal then reviewed the Judge's findings that there was no breach of duty . The following are germane:

1 As to the finding that at no stage were the defendant's asked to advise the claimant' but 'were simply being asked to witness the signing of certain documents, crucially by signing the certificate the solicitor confirmed that the claimant (i) had been given appropriate legal advice about the mortgage, and (ii) to the best of the solicitor's knowledge, understood the effect of the mortgage, and was not acting under undue influence or pursuant to a misrepresentation.

2 The effect of (i) must be that the solicitor either had given appropriate advice or had taken reasonable care to ensure that the claimant had received such advice.

3 As to the Deed, the Solicitor witnessed the claimant's signature on a document which stated that the firm had advised her and could be said to be less clear. It might be said that the solicitor may not have read the document if only witnessing signatures. However, given that the claimant's husband took the claimant to a solicitor to witness their signatures on the four documents, and to give the certificate, a judge may well conclude that it was likely that a competent solicitor would have ensured that they understood the basic nature of the transaction contained in the four documents, of which the mortgage, on which they were providing the certificate, was clearly part of.

4 The reason for the claimant consulting the defendants, and as the defendants should have appreciated, and appear to have appreciated from correspondence , was to ensure as far as a reasonable solicitor could have done in the circumstances, that the claimant understood the effect of the documentation and was free of any undue influence or misrepresentation. Providing the bald advice not to enter into the transaction cannot have been a sufficient discharge of the defendants' duty to the claimant if that duty was reflected in correspondence.

5 Merely advising a person in the position of the claimant that she should not enter into the contemplated transaction, appeared to the Court of Appeal to fall well short of the duty imposed on a solicitor when called on to perform the duty which culminates in signing a certificate such as that in this case.

6 A solicitor should have emphasised to the claimant the desirability of exploring why she was prepared to put her home and assets at severe risk simply to protect her husband. The most important purpose of independent legal advice in this case would have been to explain to her that her main, or perhaps sole, purpose for entering into the transaction was very weak as it would very probably not be achieved.

The Court of Appeal allowed the appeal on as the judge was wrong to conclude that the defendants had complied with their duty to the claimant. The other issues raised by the defendant namely any claim was time-barred, and failed on causation remained live and would be retried.

Conclusion

This is a salutary warning for all lawyers. Merely witnessing documents does not necessary avoid liability. Each case turns on it's own facts. Given the certificates signed there was clearly an arguable duty of care owed to this Claimant.

It is worth repeating Fletcher Moulton LJ great words of wisdom in Coomber [1911] 1 Ch 723, 730. The ultimate purpose of consulting a solicitor is not normally to be advised in terms whether or not to enter into the contemplated transaction: it is to ensure that one understands the nature, effect, and potential consequences of the transaction, and is not under a misapprehension or undue influence.

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Please see below for the original Padden judgement in full.

Green v Eadie & Ors (Ch) 18/11/11

Thu, 05 Jan 2012 20:20:26 GMT

Causes of action against a seller of a property and against solicitors for a breach of their duty of care for failure to discover the true property boundary accrued upon the purchaser entering in to the flawed contract for sale rather than at a later time. Accordingly its claims were time-barred.

Scott & Anr v Kennedys Law LLP & Anr. (Ch) 16/11/11

Thu, 05 Jan 2012 20:19:49 GMT

In assessing quantum where the second defendant had been in breach of duty and not advised the potential purchaser of the planning implications of a property being divided and inhabited by two parties on sale, issues arose as to the assessment of quantum. The correct method of assessment was the no transaction basis. The loss must have been foreseeable as having been with the reasonable contemplation of the parties. As the purchaser had sold the property back to the original vendor he had incurred mortgage redemption costs which were recoverable. However the costs of a postponed holiday were not recoverable. Reasonable business expenses incurred after the discovery of the problem were recoverable. The capital loss method better reflected the real loss sustained as a result of the breach of the retainer.

French v Carter Lemon LLP (QB) 18/11/11

Thu, 05 Jan 2012 20:19:00 GMT

The solicitors were entitled to terminate the retainer following allegations of bullying by one solicitor at the practice despite having continued to represent the client at a case management conference following the allegations being made. The nature of the complaint was not such as to require the solicitors to advise the client to appoint another solicitor instead of terminating the retainer.

Bethell Construction Limited & Anr v Deloitte & Touche (CA) 18/11/11

Thu, 05 Jan 2012 20:18:04 GMT

The Claimants issued a claim form and provided a copy of it expressly 'not by way of service' in 2007. The parties then entered in to an agreement to allow an extension of time for service of the Claim Form and the Particulars of Claim terminable on 14 days notice. In 2010 the Claimants purported to serve Particulars of Claim on the Defendants. The Defendant's solicitors realised that the Particulars of Claim could not be served without service of the Claim Form and responded to the effect that the notice was being served to end the extension of time. After the relevant time had expired the Defendant took the point that the claim was statute barred. The Claimants sought to dispense with serviced and alleged that the Defendant was estopped having effectively (and successfully) set a trap for the Claimants. The Court of Appeal held that the conduct of the Defendant's solicitors was perfectly proper and they had done enough not to fall foul of the test in the Stolt Loyalty by their response and the Defendant wa s entitled to rely on its limitation defence.

Farnon v Devonshires Solicitors (QB) 6/12/11

Thu, 05 Jan 2012 20:17:13 GMT

Solicitors retained to advise on the exit from a limited liability partnership that formed part of the client's employer, an investment management group, were not under a duty to give comprehensive advice to her on a potential claim for sexual discrimination when this had only been mentioned as part of the means of securing preferable terms for exit from the partnership.

Squirrell v Bradleys Surveyors Ltd (CC) 25/11/11

Thu, 05 Jan 2012 20:16:23 GMT

A property developer sought a valuation only after contracts had been exchanged on a number of properties. An offer of finance was obtained which was in turn subject to a valuation. The surveyors provided a valuation, but then withdrew it, because they alleged that the developer had inflated the overall purchase price. The developer alleged that the surveyors owed him a duty of care to perform their contract with the finance company to provide a valuation. It was held that the surveyors did not owe a duty because the relationship between the surveyors and the developer was not of sufficient proximity.

Jones v Environcom & Ors (CA) 13/10/11

Thu, 22 Dec 2011 14:35:42 GMT

Where a party's appeal depended on raising a new legal argument on appeal it would not be permitted. The fact that a party may be compensated in costs is not sufficient.

Asiansky Televison Plc & Anr. v Khanzada & Ors (QB) 4/11/11

Thu, 22 Dec 2011 14:32:56 GMT

A claim against the party's former legal representatives in respect of an earlier professional negligence action was dismissed on a summary basis. Earlier attempts to appeal the original decision out of time had failed because they were out of time. The Claimants alleged that their barristers were negligent in pursuing a less meritorious ground of appeal than one which was available. Although the issue was not straightforward it was appropriate for summary determination because the complexity was in relation to the background rather than the issue of professional negligence; there was little or no real dispute about the material facts and no indication of further issues that would be explored if the case went to trial; and the case considered by the Court of Appeal (and rejected) included reference to the supposed more meritorious argument and the case was therefore one of an absence of reality.

Stiedl v Enyo Law and Anr. 28/10/11

Thu, 22 Dec 2011 14:31:42 GMT

Where a law firm acting for an opponent in litigation had come in to possession of privileged material and some of it had been reviewed, in deciding whether that firm could continue to act the first question for the Court was whether there was a real risk that information in the documents over which privilege and confidentiality had been claimed could be used to yield an advantage or disadvantage. Where a Tier 1 style review (a preliminary overview assessment to exclude obviously irrelevant) was conducted then it is unlikely that substantive information will be obtained. The next question is whether the contents of the documents are likely to cause real prejudice to the Claimant even where the firm has given an undertaking not to rely on their contents. No such prejudice arose on the facts.

Kirkton Investments Limited v. VMH LLP, [2011] CSOH 200, 8 December 2011

Wed, 21 Dec 2011 16:06:55 GMT

Outer House case concerning the damages payable as a result of a solicitor’s professional negligence. VMH LLP advised Kirkton in relation to the purchase of a site at 144 to 148 Slateford Road in Edinburgh in 2005 from HBJ 590. The site had the benefit of conditional planning permission for 19 terraced townhouses and 8 apartments.

Two of the conditions related to a requirement for the installation of a ventilation system to a fish and chip shop (the Codfather) situated adjacent to the site to ensure that odours from the shop exited at a suitable level.

In March 2005, the owner of the Codfather, Slateford Developments entered into an agreement with HBJ 590 allowing HBJ 590 to carry out the works to install the ventilation system.

Kirkton [1] concluded missives for the sale of the site from HBJ 590 in April 2005 and in July 2005 Slateford Developments sold the Codfather to Ian McDonald Enterprises.

Kirkton began construction of the Development in autumn 2005. However, Ian McDonald disputed Kirkton’s entitlement to install the ventilation system and requested a payment of £75k in return for allowing the installation. Kirkton refused this offer on advice from VMH to the effect that they had a legal right to install the system. However, it was subsequently found that Kirkton did not have a real right enforceable against the new owner of the Codfather.

In November 2007, having sought and failed to obtain a variation of the planning permission, Kirkton agreed to pay Ian McDonald £324k in return for the grant of a right to install the vent. In the meantime Kirkton had postponed active marketing and the launch of the development. Unfortunately for Kirkton the events also coincided with the onset of the property slump.

Kirkton argued that, as a result of VMH’s breach of duty, marketing and sales were delayed and VMH were liable for the consequences of the delay including the additional bank borrowing costs and lower sales prices as obtained a result of their increased exposure to the vagaries of the property market.

Having initially argued otherwise, VMH accepted that an enforceable right could have been constituted against the shop owner, it was their duty to advise Kirkton of that and take the required steps to constitute the right and that, by failing to do so, they were in breach of their duties to Kirkton. However, they contended that the losses claimed in respect of additional bank charges and diminution in sales proceeds were not within the scope of their duties. VMH had not assumed the risk of such losses and it would not be fair and reasonable to impose it on them.

Lord Doherty disagreed:

“In my opinion the scope of the [VMH’s] duties to [Kirkton] was sufficiently wide to include the duty to avoid causing them each of the kinds of loss and damage they say were sustained…

They were not merely providing information to [Kirkton]. Their duties were more exacting. They were under a duty to take the necessary legal steps to protect the position of the [Kirkton] in relation to the ventilation issue at the time they concluded missives; and they were under a duty to advise them correctly of their legal position at the time of the proposal by [Ian McDonald] so that a properly informed decision could be made then as to what action to take…

Having regard to the nature and content of [VMH's] duties to [Kirkton], and to the whole circumstances in which they arose and were breached, it appears to me to be fair, just and reasonable that the scope of [VMH’s] duties should extend to the kinds of loss and damage claimed… It was reasonably forseeable that [VMH’s] breach of duty might result in interruption to the planned progress of the development and sale of the properties, and might occasion delay and expense. [VMH] were aware that the development was being financed by bank borrowing. It was reasonably foreseeable that delay would result in additional borrowing costs. It was reasonably foreseeable that delay in achieving sales might result in longer exposure to the vagaries of the property market.”

After discussion as to causation and valuation of the loss, Lord Doherty awarded damages of more than £1.1m broken down as follows:

the settlement payment paid to Ian McDonald- £324,000

the other extrication costs- £55,812

diminution in sales proceeds- £545,818

additional bank borrowing costs- £209,742

_______________________________________________

[1] The missives were in fact entered by Kirkton Developments Limited (a related company working in conjunction with Kirkton Investments Limited on the development).

Mortgage Express v Iqbal Hafeez Solicitors (Ch) 10/10/11

Thu, 17 Nov 2011 12:04:46 GMT

A mortgage lender was entitled to the return of mortgage moneys that a firm of solicitors had paid to fraudsters in breach of the terms of its instructions. The claim was advanced on the basis of breach of trust, breach of contract and in tort. The conduct of the principal indicated that he had little knowledge of conveyancing law and the firm was naive and had not maintained good professional standards. The firm should have been put on guard by the fact that it was instructed by purchasers in respect of three properties all using the same firm of solicitors; that there had been unusually large deposits and exchange of contracts was complete and completion was due on the same date. Even if the firm was not in breach of duty it was in breach of trust. The firm was not entitled to relief under s.61 of the Trustee Act. There was no contributory negligence by the bank or the mortgage packaging process which did not amount to imprudent lending.

Preston v BBH Solicitors (CA) 7/10/11

Thu, 17 Nov 2011 12:03:48 GMT

A judge had been correct to dismiss a claimant's claim for professional negligence against a firm of solicitors because it was debarred by the limitation period which ran from the date of knowledge in 2005 which was when the claimant's absestosis was confirmed.

Community Gateway Association ltd v Beha Williams Norman Ltd (TCC) 12/9/11

Thu, 17 Nov 2011 12:02:28 GMT

A housing association brought a claim against housing consultants for alleged negligent advice in respect of the transfer to it of the social housing stock of the local authority. The claim failed.

Hodge Jones & Allen LLP v Mclaughlin (QB) 23/9/11

Thu, 17 Nov 2011 12:01:47 GMT

Where a solicitors' firm had breached its retainer in two minor respects, it was entitled to recover its fees for services undertaken in connection with her matrimonial affairs because those breaches had not caused the client to suffer any loss.

Page & Anr v Hewetts Solicitors & Anr. (Ch) 29/9/11

Thu, 17 Nov 2011 12:00:00 GMT

Solicitors retained to assist in the administration of an estate were instructed to sell a property within the estate and another property belonging to the administrators. A legal executive working for the solicitors also had a business as a property developer through a separate company. That company entered in to a profit sharing development agreement with the prospective purchaser of the properties being sold. None of this was disclosed to the administrators. The property was sold for £190,000 in March 1999. The administrators shortly thereafter discovered the true value of the property was £350,000. They wrote to the Office for the Supervision of Solicitors on 25 November 2000. On 5 December 2002 the legal executive sent a letter to the Claimants explaining some, but not all of the matters and providing a cheque for £6,000 for overage. Proceedings were issued in February 2009. Limitation was raised as a defence. In answer the Claimants argued that the Defendants held any secret profit on constructive trus t for Claimants and there was no limitation period by virtue of the Limitation Act 1980 s. 21 (1) (b); that the Claimants were only aware of the facts when they received the letter of 5 December 2002; and as the Defendants had deliberately concealed some of the facts until 2009 time did not start to run until then. The judge rejected the argument that the claim was for trust property. The secret profit obtained by the legal executive was not and had never been beneficially the property of the Claimants and it was not acquired by taking advantage of an opportunity or right of the Claimants - it was obtained by doing a wrong and was not money which was part of the Property subject to the legal executive's fiduciary duties. The judge also held that the findings of the Master as to knowledge were unassailable and the appeal was dismissed.

Capita Alternative Fund Services (Guernsey) Ltd & Anr. V Drivers Jonas (Comm) 9/9/11

Thu, 27 Oct 2011 20:28:00 GMT

The claim arose out of the acquisition of a long leasehold interest in a Grade II* listed structure for £62,850,000 in the Chatham Historic Dockyard which was to be converted in to a factory outlet shopping centre. The Defendants had provided advice about the commercial prospects of the investment and its valuation which the Claimants alleged was overstated. The Claimant alleged that the Defendant's analysis was defective because they had failed to consider properly the likely ability of the outlet centre to attract consumer spend and that this was essential to providing a proper valuation. Although the consultant's had not taken this in to account and this amounted to a breach of duty, the expert evidence adduced by the Claimant to show what should have been the correct conclusion of the report could not be relied upon. However other aspects of the report which were defective including the failure to carry out proper due diligence as to the intended developer's identity, lack of market credibility and appro priate expertise was significant failures and the disadvantages of the design, layout and listed building status of the site and the consequences this would have for attracting consumer spend, tenants and running costs. Further the taking of a rental figure at the top of the range was inappropriate. The correct valuation was £44,800,000 and ignoring the enterprise zone allowance £34,375,000 as compared to the valuations of £62,850,000 and £48,150,000 and the Claimant was entitled to damages in the sum of £18.05m.

Cherney & Ors v Frank Neuman & Ors 5/8/11 (Ch)

Tue, 06 Sep 2011 17:50:42 GMT

Solicitors who acted in various property transactions were not liable to their clients for professional negligence, or for any breach of fiduciary duty or breach of trust. The client's agent had actual or at least ostensible authority to act on behalf of the client. The scope of their retainer did not extend to providing advice on the commercial aspects of the transaction. If the client wished for advice on the commercial merits and values of the properties he could have obtained expert advice. The solicitors' knowledge of side payments to the client's agent alter the position because the client was fully aware of the same.

Scullion v Bank of Scotland Plc t/a Colleys (CA) 17/6/11

Thu, 04 Aug 2011 13:59:22 GMT

The proposition that a surveyor owed a duty of care to a mortgagor to prepare his or her valuation report with skill and care did not extend to a purchaser of a buy-to-let property.

Thompson & Ors v Bruce (QB) 1/7/11

Thu, 04 Aug 2011 13:58:35 GMT

In a Part 8 Claim for professional negligence against a GP a Part 36 Offer was made and accepted following exchange of pre-action correspondence. The question arose as to whether CPR 36.10 applied to costs incurred pre-issue. By contrast to CPR 36.3, CPR 36.10 applied to pre-issue costs as much as to post-issue costs. Where the defendant had delayed for more than 11 months beyond the time for responding to the pre-action protocol letter and the case involved the need for consideration of causation and quantum with experts and an infant approval settlement the Court would exercise its discretion to permit acceptance of the Part 36 Offer after the 21 days permitted even where the Claimants had failed to ask for an extension of time for its acceptance.

Smith v Revenue & Customs Commissioners (Tax), 10 May 2011

Fri, 01 Jul 2011 11:46:05 GMT

A tribunal had been entitled to find that an accountant's preparation of a taxpayer's accounts had constituted negligent conduct when considering an appeal against assessments raised in reliance on the Taxes Management Act 1970.

Wright v Cambridge Medical Group [2011] EWCA Civ 669, 9 June 2011

Fri, 01 Jul 2011 11:27:39 GMT

The finding that a negligent delay by a GP in referring a child to hospital was not causative of permanent injuries because of a subsequent delay in diagnosis at the hospital was wrong on the law and the facts. The GP's negligence was a causative factor in the infant's permanent injury.

Lane v. (1) Cullens Solicitors (2) Bowling & Co LLP (3) Bowling & Co (Solicitors) LLP, CA, 11/5/11

Mon, 20 Jun 2011 07:57:00 GMT

Limitation Period In Professional Negligence Claim Ran From The Date Of Payment Out Of The Estate’s Account

The Court of Appeal held that the personal representative’s professional negligence claim had been bought out of time in circumstances where it had been issued more than 6 years after the distribution of payments out of the estate account. The alleged negligence was that the solicitors of the deceased, who had died intestate, had failed to advise him against distribution of his assets. The Court of Appeal held that the loss suffered by the estate had been sustained as at the date the payment out of the estate’s account and thus limitation began to run from this time.

Renwick & Anor v Simon and Michael Brooke Architects & Ors [2011] EWHC 874 (TCC) 05/05/2011

Thu, 09 Jun 2011 16:08:21 GMT

For the purposes of s.14A of the Limitation Act 1980 in respect of a claim following the construction of a large, supposedly waterproofed basement room beneath a rear garden, the Claimants had sufficient knowledge of the material facts about the damage when they knew of the serious water penetration or the financial loss of having a concrete structure which was not waterproofed which was substantially valueless and they knew that the structural engineer had been retained to give structural advice and to design the room so as to be fit for purpose. Accordingly steps should have been taken to investigate the claim further.

Lane v Cullens Solicitors & Ors [2011] EWCA Civ 547 11/05/2011

Thu, 09 Jun 2011 16:07:14 GMT

The alleged failure to advise an administrator of an estate that if he made a distribution from the estate that he would be potentially liable to any claim of which he had notice before the distribution constituted damage for the purposes of the Limitation Act 1980 from the moment of the distribution even though the claim had not at that stage been pursued. Until the claim was withdrawn the administrator would remain exposed to the claim and the fact that it still needed to be proved was not a relevant contingency.

Rice v Health Professions Council QBD 06/05/2011

Thu, 09 Jun 2011 16:06:29 GMT

The appellant was a paramedic. On 18 April, the appellant gave his colleague a bag full of drugs, which included a quantity of out-of-date diamorphine, some of which were injected by his colleague. When questioned by the competence and conduct committee (the defendant Health Professions Council) it was decided that the appellant would be sanctioned with a striking off order. On appeal, it was found that the sanction was proportionate between public protection and the rights of the practitioner. It was concluded that the allegation against the appellant had been proved.

Ground Gilbey Ltd & Anor v Jardine Lloyd Thompson UK Ltd [2011] EWHC 124 (Comm) 02/02/2011

Fri, 25 Feb 2011 00:11:03 GMT

Where insurers imposed a risk improvement measure on the terms of cover this had a material and potentially deleterious effect on the insured and the insurance brokers were under a duty to draw it the assured’s attention and obtain their instructions in relation to it.

Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 (QB) 21/01/2011

Fri, 25 Feb 2011 00:10:24 GMT

Solicitors should make enquiries in to a person’s mental capacity to contract only where circumstances were such as to raise a doubt in the mind of a reasonably competent practitioner. There was no general duty to obtain medical evidence on every occasions upon which they were instructed by an elderly client just in case they lacked capacity.

Haugesund Kommune & Anor v Depfa Acs Bank & Anor [2011] EWCA Civ 33 28/01/2011

Fri, 25 Feb 2011 00:09:28 GMT

Where lawyers had mistakenly advised a bank that the Norwegian municipalities with whom it was to enter swap agreements could do so within their powers and that mistake had been wrong leaving the bank with no contractual claim, the lawyers were not liable for damages because the bank had a claim in restitution and its inability to recover from the municipalities arose from a credit risk which was outside the lawyers’ scope of duty.

Ganz v Childs & Ors [2011] EWHC 13 (QB) 11/01/2011

Fri, 25 Feb 2011 00:08:32 GMT

A failure to recognise the development of mycoplasma pneumonia in a child by two successive general practitioners had caused the child loss. Had she been diagnosed earlier her referral to hospital would have meant that she received the care needed and the circumstances leading to irreversible brain damage would have been reduced or avoided. There had been a further breach by the hospital staff in failing to act with appropriate expedition, however it could not be proved that that had caused or materially contributed to the child’s brain damage.

Inventors Friend Ltd v Leathes Prior (QB) 12/1/1

Thu, 03 Feb 2011 23:56:41 GMT

An application for security for costs of the trial was heard a week prior to the trial commencing. Although the application had been made late, there was evidence that the beneficial owner of the Claimant had equity in a property and that as it was impossible to raise a sum representing £100,000 as security for costs in advance of the trial it was appropriate in light of the solicitors’ acceptance of a personal guarantee from the beneficial owner to order security in that form.

Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC), 02/12/2010

Thu, 03 Feb 2011 23:51:32 GMT

Wrong In Law And Principle To Make Unsupported Allegations Of Professional Negligence

Santander UK plc v. Allied Surveyors Scotland plc [2011] CSOH 13

Fri, 28 Jan 2011 00:38:49 GMT

In this action, the pursuers (who were the successors to the rights and claims of Girobank plc) sued the defenders for breach of contract. The defenders were chartered surveyors, who had provided Girobank with a valuation report in respect of certain properties in October 2001. The pursuers argued that the defenders had breached their contract, through failing to exercise reasonable skill and care to be expected of ordinarily competent chartered surveyors providing such a valuation report.

The defenders argued that any cause of action available to the pursuers had been extinguished by short negative prescription, as the occurrence of iniuria and damnum had occurred in October 2001 when the incorrect report had been rendered and in any event, certainly prior to October 2003. The defenders therefore argued that any claim would have prescribed in October 2008 at the latest, by virtue of section 11(3) of the Prescription and Limitation (Scotland) Act 1973. By contrast, the pursuers submitted that iniuria and damnum had only occurred in August 2005, when insolvency proceedings resulting from the sale of the properties concluded and it was established that the pursuers were worse off as a result of the defenders’ negligence.

Having heard evidence and submissions, the court noted that it was clear from the authorities that there is only point at which iniuria and damnum can both occur. The Lord Ordinary noted from the evidence that it was clear that Girobank would not have provided a loan over the properties, had the valuation report reflected the correct information available at the time. Thus, the Lord Ordinary concluded that from the moment they advanced monies in October 2001, they had made a loss and that Girobank could have sued from that moment onwards.

The Lord Ordinary concluded that any obligation of the defenders to make reparation to the pursuers was extinguished by short negative prescription and dismissed the action on the plea-in-law of the defenders.

David Clark v. Argyle Consulting Limited [2010] CSOH 154

Sun, 02 Jan 2011 19:02:32 GMT

The pursuer became a client of the defenders in July 2000. The defenders were a firm of independent financial advisers. At the time of engaging the defenders’ services, the pursuer sought to review his pension provision. After the pursuer’s investments were not as successful as was originally hoped, the pursuer submitted the defenders had been negligent in a number of respects. On 8 October 2003, the pursuer made a complaint to the Financial Ombudsman, who upheld part of the pursuer’s complaint in September 2005, however one part of the complaint was rejected. The Ombudsman required the pursuer to notify him before 26 October 2005 whether he accepted the final decision, however the pursuer failed to do so and the decision was not made binding upon the defenders.

Three years later, the current action was raised, where the pursuer sought a total of £81,973 by way of compensation for his alleged loss, with his claim founded on grounds of breach of contract, delict and breach of statutory duty.

The defenders submitted that any claim the pursuer had was now prescribed, as the action had been raised more than five years after the cause of action arose. While the pursuer accepted this fact, the pursuer submitted that the prescriptive period was interrupted as his reference to the Financial Ombudsman constituted an “arbitration”. It was therefore submitted that it was a “relevant claim” for the purposes of section 6 of the Prescription and Limitation (Scotland) Act 1973.

The court noted that while there are similarities between references to the Financial Ombudsman and other schemes of arbitration, there were important differences. For example, the court noted that the Financial Ombudsman is not required to determine a complaint in accordance with the common law. Moreover, at arbitration both parties would be bound by the final decision, whereas the decision of the Ombudsman required the acceptance of the party who referred the dispute. The court found that these were material distinctions and the court was therefore unable to conclude that referring a dispute to the Financial Ombudsman was a form of arbitration. The court found that the pursuer had not made a relevant claim and that therefore his claim had prescribed.

Greene Wood McLean Llp v Templeton Insurance Ltd [2010] EWHC 2679 (Comm) 26/10/2010

Fri, 26 Nov 2010 01:54:31 GMT

Where Counsel were retained to advise on obtaining a Group Litigation Order that had been unsuccessful no duty of care was owed by either Counsel or solicitors to the ATE insurers because no advice had been sought before the issue of the ATE policy. In any event the advice of Counsel and the conduct of solicitors were not negligent.

O’Sullivan v Healys (a firm) (Ch) 14/10/10

Fri, 26 Nov 2010 01:53:33 GMT

A claim was brought against a guarantor’s former legal advisors following a claim on the guarantee. Where no appropriate legal advice had been received as to the nature and effect of a guarantee given to a bank as a precondition to a loan and the assistant solicitor had nonetheless confirmed that such advice had been given to the bank, that did not found a claim for fraudulent misrepresentation. The representations as to legal advice had been made to and relied on by the bank alone. In any event the claimant had understood the legal consequences of the signing the guarantee and not suffered any loss.

Lloyds TSB Bank Plc v Markandan & Uddin (a firm) [2010] EWHC 2517 (Ch) 14/10/2010

Fri, 26 Nov 2010 01:52:40 GMT

A mortgage fraud took place whereby the purchaser’s solicitors transferred the mortgage money to a fictitious vendor’s equally fictitious firm of solicitors who made off with the mortgage sums which had been transferred to a supposed client account. The bank sought to recover from the solicitors on several grounds. At a hearing of preliminary issues it was held that the payment away of the mortgage sums before receipt of the completion documents or a solicitor’s undertaking to provide such documents was a breach of trust. The Defendant firm’s payment of money before it had received the signed contract, transfer and discharge certificates and its subsequent agreement to pay the sum of money to another account as well as a failure to establish that the supposed firm of solicitors actually had an office in Holland Park was not reasonable conduct such that the firm could rely on s. 61 of the Trustee Act 1925.

Scullion v Bank of Scotland Plc (t/a Colleys) [2010] EWHC 2253 (Ch) 08/10/2010

Fri, 26 Nov 2010 01:51:35 GMT

In earlier proceedings the Court had held that the surveyor’s valuation of a buy-to-let property was outside the permissible range of valuations in terms of both the likely rental return per month and the open market value. The Claimant had in fact paid just less than the open market value estimated by the surveyors because he had received a ‘gifted deposit’ of 15% and a term as to deferred payment of 10%. The Claimant nonetheless sought to recover the difference between the amount paid for the property and the amount which it was subsequently sold for; his costs and expenses on the basis that the true rental value was insufficient to cover them and he would not have proceeded with the purchase at all had he been advised properly. Applying the principles in SAAMCO the Claimant could not recover any loss in tort in respect of the capital valuation. However the Claimant was entitled to recover in respect of the overstated rental sums because it was li kely that the mortgagee would have relied on this in its lending decision and even if not it was something the Claimant was likely to rely on. Permission to appeal was granted on the issue of whether the valuer owed a duty of care and if so, whether the scope of that duty extended to the losses in respect of the defective rental valuation.

Nouri v Marvi & Ors [2010] EWCA Civ 1107 14/10/2010

Fri, 26 Nov 2010 01:50:49 GMT

Cause Of Action In Professional Negligence Claim Against Solicitors Accrued When Fraudulent Property Transaction Was Completed

Appeal by the Council of the Law Society of Scotland v. The Scottish Legal Complaints Commission [2010] CSIH 79

Sun, 26 Sep 2010 21:20:33 GMT

This appeal by the Law Society of Scotland under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 against a decision by the Scottish Legal Complaints Commission, concerned whether a complaint made against Mr Alastair Dean, solicitor, of the Alastair Dean Law Practice Ltd was “totally without merit”, within the meaning of section 2(4)(a) of the 2007 Act. The appellants contended the respondent should have rejected the complaint, and should not have remitted the complaint to them for investigation.

In July 2009, the solicitor had sent a letter to the complainers, the factual allegations of which they refuted, and the tone of which they deemed “aggressive, threatening and intimidating”. The letter informed the complainers that if they continued to access land belonging to the solicitor’s client, court action would be contemplated. Following receipt of the complaint by the respondents, their initial conclusion and recommendations documented that the solicitor in question was acting under client instructions and was simply narrating facts as to put to him by his client. At that stage, the respondents deemed the letter to be a standard letter from solicitor to another party when they are being advised that they are doing something they should not be doing, asking them to desist and narrating what could happen if they carried on doing the same thing. At that stage, the respondents concluded the complaint should be deemed totally without merit.

Subsequently however, and in spite of these initial recommendations, the respondents proceeded to determine that the complaint should not be rejected on the grounds that it was totally without merit, and that it should be remitted to the appellants for investigation and determination as a conduct complaint in accordance with section 6 of the 2007 Act.

On appeal to the Inner House, the respondents submitted that the term “totally without merit”, in terms of section 2(4)(a) of the 2007 Act was a low threshold and only allowed complaints to be rejected at this stage, if it would be an “abuse of process” for it to continue. While accepting the test was of a low threshold, the court was not persuaded by the latter submission, noting that the Act did not import a notion of “abuse of process” into the test, and that it was unhelpful to put gloss on the language of this clear statutory provision.

As regards the content and nature of the letter sent on July 2009, the court deemed the letter to be of standard fare where adversarial proceedings are contemplated by a client, and refuted the suggestion that the solicitor had an obligation to verify the veracity of the facts communicated to him by his client, when fulfilling his instructions. On this basis, the court considered that the respondents had erred in law, and had proceeded on a misunderstanding of the role and duty of the solicitor when handling the complaint.

The appeal was accordingly allowed and the court substituted the decision of the respondents for the decision that the relevant complaint was totally without merit in terms of section 2(4)(a).

Lord Malcolm provided a dissenting opinion from that of the body of the court, noting that he would have refused the appeal, as the complaint may have raised issues which may have been of interest to the professional body, insofar as it regulated conduct and standards of the whole profession. The complaint was therefore, in his view, not totally without merit, and was worthy of investigation due to the general issues of concern it raised for the profession as a whole.

Chauhan v General Medical Council [2009] EWHC 2093 (Admin), 6/8/10

Thu, 23 Sep 2010 16:35:51 GMT

The appellant applied for a position as a consultant orthopaedic and trauma surgeon at the Southend University Hospital NHS Trust. He had stated in his written application and his curriculum vitae that he had an interest in lower limb surgery and had 'a broad surgical ability in lower limb arthoplasty and revision arthoplasty and ... hip resurfacing'. The appellant was interviewed and subsequently offered the post, which he took up on 23 December 2002. He soon expressed an interest in undertaking the procedure known as Birmingham Hip Resurfacing. In November 2004, the appellant extracted a loose particle of cartilage from the knee of patient A, for use in an Autologous Cartilage Transplantation procedure without making a note pre-operatively of any such procedure. In June 2005, the appellant performed an orthopaedic procedure on the left leg of patient B following a severe crushing injury that the patient had sustained in a car accident. The appellant closed the wound, contrary to advice he had received from a consultant plastic surgeon. The leg subsequently became infected and required amputation. Following this procedure, the appellant was restricted from undertaking other surgery without further re-training. However, disciplinary proceedings were started against the appellant alleging that he had been misleading and dishonest in his application and interview. The appellant’s contention that the panel had failed to weigh up the evidence fairly in coming to its conclusions was accepted.

English v. Hodge Jones & Allen (A Firm) & Ors, [2010] EWHC 2058 (Ch), 03/8/10

Thu, 23 Sep 2010 16:34:36 GMT

HH Judge David Cooke (sitting as a judge of the High Court) dismissed the claimant’s professional negligence claim against the defendant firm of solicitors arising out of a loan document and consequent legal charge secured against her house and in respect of which her signature had been forged onto the documents by her son. It was alleged by the claimant that she had not been by advised by the solicitors as to the consequences of entering into a loan and legal charge agreement, notwithstanding that she had signed a solicitors verification certificate in which she confirmed that she had been so advised, and that she believed that a completely different financial transaction was being entered to. It was held that the claimant bore the burden of proving that the verification certificate was not a true reflection of what had taken place between her and the solicitors and on the evidence such burden of proof was not discharged.

Hay v Szterbin & Ors, [2010] EWHC 1967 (Ch), 29/07/2010

Wed, 08 Sep 2010 21:01:13 GMT

A consent order following a professional negligence action required the firm to pay the Claimant’s costs of the action against the firm only and expressly excluded costs related to the claim for overage against vendors of a property which had been compromised on a no order as to costs basis. The question arose as to whether a portion of common costs was recoverable against the firm or only costs exclusively incurred in respect of the professional negligence action were recoverable. Only costs that were properly divisible were recoverable against the firm and that common costs did not fall to be apportioned.

Warner v Penningtons & Others (QB), 12/7/10

Wed, 08 Sep 2010 20:59:45 GMT

A contribution claim against a care expert was dismissed on the basis that there was no prospect of the solicitors succeeding a trial in establishing that the care expert should have advised the solicitors that a case management and / or support work should have been appointed before trial to report separately on the Claimant’s needs. The expert was entitled in providing her report in advance of trial to assume that the solicitors would take the appropriate action to appoint a case manager to address the needs of the Claimant that she had identified and to expect that her recommendations would be implemented before trial.

Cannon & Anr v Hart Brown (a Firm) (Ch), 8/7/10

Wed, 08 Sep 2010 20:58:38 GMT

The Claimants purchased a property for development at a price of £600,000 plus 50% of the excess of £1,000,000 on any subsequent resale or if no resale took place then the same based on an independent valuation. Following exchange of contracts the Claimants received their mortgagee’s valuation indicating that they had paid more at the pre-development stage than the valuation indicated the property was worth. On the evidence the Claimants’ concerns as to the issues of valuation did not arise until receipt of that valuation and therefore there the solicitors could not be criticised for failing to negotiate alternative terms prior to exchange.

Lockheed Martin Corp v Willis Group Ltd, [2010] EWCA Civ 927, 30/07/2010

Wed, 08 Sep 2010 20:56:22 GMT

Claims were brought in respect of the alleged failure of insurance brokers to maintain proper records in respect of placement slips which had meant that Lockheed had been unable to identify the relevant policies and names of company underwriters in respect of certain claims in the period 1946 to 1990. The claim was brought against Willis Group Holdings Limited. When it was served in London the in-house solicitor advised the Claimant’s solicitors that the company was a Bermudan company that was not incorporated until long after the material events complained of and that she had no authority to accept service. The Claimant then amended its claim to bring a claim against Willis Group Limited and Willis Limited, the holding company and the company responsible for UK broking, respectively. On an application to set aside the Master’s permission to amend, the order was set aside and the claim dismissed. The Court of Appeal considered the requirements for an application under CPR 19.5 and held that the only requirement (other than the tests of necessity and discretion) is that it is possible to identify the intending claimant or intended defendant by reference to a description which was more or less specific to the particular case. On the facts the application was refused because the only Defendant then pursued was the UK holding company and there was not identifiable cause of action on the pleadings.

Tods Murray W.S. v. Arakin Limited [2010] CSOH 90

Sun, 22 Aug 2010 15:50:57 GMT

The pursuers sought recovery of £87,831.11, a sum due to them in professional fees and outlays for their legal services, provided to the defenders over the period 1986 to 1994. The defenders disputed the pursuers' entitlement to the sum claimed for, on three main grounds. First, the defenders maintained that on a proper calculation, they had actually overpaid the pursuers; secondly, that as the pursuers had not issued any VAT invoices for the sums claimed, no debt was due; thirdly and finally, the defenders submitted that in any event, they were entitled to offset any debt due against their counterclaim. The defenders’ counterclaim alleged that the pursuers’ legal services were deficient in a number of aspects and as a result, they sought a sum of over £62,000,000.

In rejecting the defenders’ counterclaim, the court found that it had no jurisdiction to consider the defenders’ claims of professional misconduct, with the court only able to concern itself with questions of professional negligence. Such a determination on professional negligence would require to be supported by the evidence of expert witnesses, to prove that the course of action employed was one that no solicitor exercising ordinary skill and care would have taken. The defenders were not able to offer any such expert evidence, and accordingly, the court found the defenders’ accusations of professional negligence were based entirely on their own unfounded complaints. The court accordingly dismissed the defenders’ counterclaim, holding it to be an abuse of process. Counterclaim dismissed; proof before answer allowed on the sole issue of the sums paid by the defenders in respect of the taxed accounts and whether any sum is due by them to the pursuers.

Nadine Montgomery v. Lanarkshire Health Board [2010] CSOH 104

Thu, 05 Aug 2010 18:19:24 GMT

Proof:- In this personal injury action the pursuer sought reparation, as the mother and guardian of her son, Sam Montgomery, from the defenders following complications at the birth of her son on 1 October 1999. Quantum was agreed at £5.25million pounds and the only issue at proof was liability. The circumstances relating to the birth of the child were that when the child’s head was delivered he had exhibited signs of shoulder dystocia and because of that the rest of his body was not delivered for a further 12 minutes resulting in a period of acute hypoxia lasting for at least 12 minutes. Due to this the child was clinically dead and required to be resuscitated which left him with renal damage, causing epileptic seizures. The child has subsequently been diagnosed with cerebral palsy and a brachial plexus injury involving Erb's palsy of the upper limb due to the shoulder dystocia. The pursuer’s claim for loss, injury and damages sustained by her son were based on the ground that no ordinarily competent obstetrician acting with reasonable skill and care would have:- (1) allowed a diabetic woman of short stature with macrosomic foetus in "early trial of labour" whose foetal heartbeat was grossly abnormal to continue in labour and attempt a vaginal delivery; (2) failed to recommend delivery by caesarean section between 08.10 and 17.00 hours on 1 October at the latest; and (3) failed to take foetal blood samples between 08.10 and 17.00 hours. It was further contended that in the antenatal period no ordinarily competent obstetrician acting with reasonable skill and care would have:- (1) failed to advise the pursuer of the risks of vaginal delivery; (2) failed to inform the pursuer of the risks during vaginal delivery of shoulder dystocia; and (3) failed to offer the pursuer the option of delivery by caesarean section. At proof the court hard from the pursuer, the pursuer's mother, the pursuer's ex-husband, Dr McLellan, Dr Willocks and a midwife regarding the factual evidence of the antenatal period. There were only two matters of dispute in relation to the antenatal period, firstly, whether the pursuer had concerns about her ability to deliver Sam prior to the 36 week appointment and expressed these to Dr McLellan and, secondly, whether she had expressed such concerns to Dr McLellan and, in particular, had expressly raised the question of what the risks of vaginal delivery were with Dr McLellan. In relation to the labour period the pursuer and Dr McLellan gave factual evidence regarding what had happened. The only issue in dispute during this period related to the interpretation of the CTG. Four expert medical witnesses, Professor Neilson and Dr Stewart on behalf of the pursuer and Dr Owen and Dr Mason on behalf of the defenders gave their opinions in relation to the issues of informed consent and the interpretation of the CTG. It was accepted that the test to be applied was that the pursuer had to prove that the doctor who was said to be negligent had been guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care and that to establish liability where a deviation from normal medical practice was alleged the pursuer had to prove:- (i) that there was a normal and usual practice; (ii) that the doctor had not adopted that practice; and (iii) that the course which the doctor adopted was one which no professional man of ordinary skill would have taken if acting with ordinary care. In relation to the alleged failure in the management of care during labour the issue between the parties related to the alleged misinterpretation by Dr McLellan of the CTG trace during four periods of the pursuer's labour. Here the court considered whether the opinion evidence led on behalf of the defenders withstood logical analysis, in particular, in relation to a decision taken at 12.30 on 1 October 1999 and that leading to a decision taken at 15.50. It was further contended on behalf of the pursuer that she had not been informed of the risk of shoulder dystocia. Here the court considered whether there was a substantial risk of grave consequences having regard to the figures for the risk of an adverse outcome and whether the pursuer should have been advised. The court considered whether the pursuer established a breach of duty by the defenders in terms of the case based on lack of informed consent.

R (on the application of Colman) v General Medical Council 6/7/10

Thu, 29 Jul 2010 22:56:07 GMT

The claimant challenged decisions of the Professional Conduct Committee (PCC) of the General Medical Council (GMC) that the applicant was guilty of serious professional misconduct and his name be erased from the medical register. The claimant sought judicial review of the decision. The issue was whether the determination of the PCC was rendered unlawful by virtue of apparent bias.

However, the application was dismissed. When applying the role of a fair minded and informed observer, 'being neither complacent nor unduly sensitive or suspicious', there was not a real possibility that the panel was biased.

Khader v Aziz & Anr and Davenport Lyons, [2010] EWCA Civ 716, 23/6/10

Thu, 29 Jul 2010 20:41:33 GMT

A defamation action brought against a solicitor in respect of comments made by him to the Daily Mail in response to an article made against his client was protected by the defence of qualified privilege as it was made within the scope of his retainer to act in his client’s interest.

Mayhew v King & Ors, [2010] EWHC 1121 (Ch), 20/5/10

Thu, 01 Jul 2010 18:35:24 GMT

Insurance brokers compromised a claim for professional negligence from a client in respect of a policy of insurance following insurers’ refusal to indemnify the client on the basis of an exception in the policy. The compromise agreement provided an indemnity to the client in respect of a third party claim subject to a cut-off provision in the event that the client became insolvent. The court struck down the clause because it had the effect of disfavouring one of the client’s creditors (the third party claimant) in an administration and offended against the anti-deprivation principle.

Roberts v Gill & Co Solicitors and Ors, [2010] UKSC 22, 19/5/10

Thu, 01 Jul 2010 18:34:27 GMT

A claim by a beneficiary under a will for negligence against solicitors who were instructed in the administration of the estate and had allegedly allowed his brother, who was also a beneficiary and then the administrator of the estate to acquire and dispose of land which should have been part of the residuary estate was initially brought in the beneficiary’s personal capacity. After the initial limitation period the beneficiary sought to amend the proceedings to claim in a representative capacity on behalf of the estate. The Supreme Court considered whether on the interpretation and application of s. 35 of the Limitation Act 1980 and the rules of court that enacted it the beneficiary should be permitted to amend the proceedings to bring a derivative action on behalf of the estate. As the addition of the administrator of the estate was not necessary for the determination of the original litigation the beneficiary needed to show that either the administrator did not need to be joined to the proceeding s at all or that he could be joined subsequently. There were no special circumstances that would entitled the beneficiary to carry on a claim on behalf of the estate and while there was some dissent as to whether the requirement to join an administrator was absolute on the facts of the case there was no basis to justify a departure of the rule.

K/S Lincoln & Ors v CB Richard Ellis Hotels Ltd, [2010] EWHC 1156 (TCC), 24/5/10

Thu, 01 Jul 2010 18:33:21 GMT

A surveyor’s valuations of hotels took in to account provisions in the leases relating to the calculation of any increase in rent by reference to turnover, but its future forecasts did not. The purchasers of the hotels had sold interests to third party investors who claimed that they had not been warned that there was likely to be no or limited rental growth and that the yield percentages used by the surveyors were too low meaning that the hotels had been overvalued. Although the surveyors were in breach of duty in respect of the valuation of the forecasts the breach was of no consequence because no reliance had been placed on it as the implications of the lease provisions had been explained to the client and had understood that advice. Although the methodology employed was inappropriate the ultimate valuation figure was within a range that a reasonably competent surveyor would have come to and was within 10% of the correct figure even though taking in to account the limited number of comparables, t he immature nature of the investment market and the fact that it was an improving market at the time a permissible margin error might well have been more than 10%.

Youlton v Charles Russell LLP, [2010] EWHC 1032 (Ch), 13/5/10

Thu, 01 Jul 2010 18:31:59 GMT

A claim was brought against solicitors in relation to advice regarding a company pension scheme and dealings with property held by the company pension scheme. The firm’s duty to exercise reasonable care and skill in advising the company and a trustee of the pension scheme included taking reasonable care and skill to ensure that the draft agreed became a binding instrument and was not subject to subsequent challenge on the basis of want of authority by the company or by breach of fiduciary duty arising from a conflict of interest as between the company and its pension fund’s trustees. This required the firm to confirm that a board resolution had been passed approving the relevant agreement and advising the director trustees to make a sufficient disclosure for ratification of their acts. The claimant’s claims as trustee of the pension scheme and in a personal capacity in respect of the difference of what should have been recovered against what was recovered in a mediation from the company were resisted on the basis that by that stage the company was so financially decrepit that the claimant could not have achieved more than it did. This was rejected and the claimant was permitted to recover damages for loss of a chance. The limitation defence in respect of one of the claimant’s claim in a personal capacity was defeated by the court permitting the claimant to be joined as a party in a personal capacity to an earlier action where there was a sufficiently close link between his claim and a claim brought by the pension fund even though that latter claim had itself been introduced by way of amendment.

Williams v Lishman, Sidwell, Campbell & Price Limited, 21/4/10, [2010] EWCA Civ 418

Thu, 20 May 2010 22:04:36 GMT

In a claim relating to pension switching advice the Court of Appeal considered how s. 32 (1) (b) of the Limitation Act 1980 applied where there were multiple losses arising from a single unlawful act and one of those losses was deliberately concealed. On the facts, the Court held that the claimants’ suffered both a concealed loss and another unconcealed loss at the same time and thus the cause of action could be completed by reference to the unconcealed loss. Lord Justice Rix went on to consider what the position would have been had the first loss been deliberately concealed in terms of postponing the commencement of the limitation period even where a subsequent loss making complete the initial cause of action was present and discoverable sufficient to start time running under s. 14A of the Limitation Act 1980. He concluded that the deliberate concealment would permit a claim to be brought in such circumstances even where time had expired in respect of the second loss under s. 14A of the Limitation Act 1980 because s. 32 (1) (b) was a separate regime. Lord Justice Elias considered that while there was much to be said for this conclusion he did not wish to decide the point and Lord Justice Moses took a similar position.

Adris & Ors v The Royal Bank of Scotland Plc, 29/4/10, [2010] EWHC 941 (QB)

Thu, 20 May 2010 22:03:16 GMT

A claims management company passed its cases to Consumer Credit Litigation Solicitors, the trading name for a sole solicitor’s practice. Those claims were brought against a large number of finance companies and high street banks. Costs orders were made against the Claimants in a large number of claims. The consequence was that a large number of Claimants sought to discontinue their proceedings, but attempted to recover some or all of their costs from the Defendant banks. Those applications were dismissed and costs awarded to the finance companies and banks. The finance companies and banks then sought to obtain non-party costs orders against the claims management company and the solicitor’s practice. The claims management company accepted that it should be liable, jointly and severally with the relevant Claimants for costs orders made against them. The firm of solicitors failed to obtain legal costs insurance or to advise its clients of this and was acting without instructions. In such circumst ances this rendered it liable to be made the subject of a non-party costs order.

Levicom International Holdings BV & Anr v Linklaters, 11/5/10, [2010] EWCA Civ 494

Thu, 20 May 2010 22:02:04 GMT

Where a client is given positive legal advice as to the prospects of his claim it would be expected that the client relied on that advice in continuing his claim and the evidential burden of disproving a causative effect should shift to the law firm to disprove it. The advice given by the law firm was overly optimistic on facts of the case particularly in the context of an arbitration and the difficulty of challenging a decision of arbitrators on the construction of a clause by way of appeal. Accordingly the client was allowed to recover its losses for not having compromised the dispute at an earlier stage.

Vinton & Ors v Fladgate Fielder & Anr, 30/4/10, [2010] EWHC 904 (Ch)

Thu, 20 May 2010 22:01:16 GMT

The Defendant law firm had provided the family business with corporate advice for many years. The business needed to raise capital. One of the main shareholders was very unwell and thus consideration was given as to how a capital raising process might be of benefit to that shareholder’s estate for inheritance tax purposes. It was believed that business property relief would attract to shares held in the business and thus reduce the potential inheritance tax liability that would arise on the equivalent sum held by an individual’s estate as cash or equivalents. However the business property relief did not apply to the shareholder’s new subscription as at the time of her death as she had not held the shares for two years and the subscription could not benefit from being linked to her earlier shareholding as it did in respect of an earlier rights issue. Claims were brought by the shareholder’s executors and beneficiaries under her will. The Defendant law firm sought to strike out the c laims and applied for summary judgment. Although the individual could only suffer nominal damage during her lifetime the contractual retainer might provide a duty upon which the estate could sue for damage in respect of loss suffered after death. Although the parallel claim in tort could not succeed the area was one in a field of developing law which the Court of Appeal may wish to consider particularly in light of the different nature of personal representatives and residuary beneficiaries and was unsuitable for summary judgment.

Jones v Environcom Ltd & Ors, 15/4/10, [2010] EWHC 759 (Comm)

Thu, 20 May 2010 22:00:25 GMT

An insurance broker was under a duty to satisfy itself that its client understood the obligation of disclosure to insurers. That would usually require a specific oral or written exchange on the subject at the time of placement and again on any subsequent renewal, particularly if the client representative changed. In the absence of such an exchange the insurance broker’s duty to elicit material information for disclosure had to be performed more rigorously. However the claim failed on causation: further enquiries as to previous incidents of fire would have revealed the use by the client of high heat plasma guns in its operations, the prospects of the client obtaining insurance from the same or any other underwriter were highly speculative for such operations. In any event as the client had been conducting its operations in breach of its waste management licence and that had not been disclosed the cover was highly vulnerable to avoidance for further non-disclosure.

Dennard & Ors v PriceWaterhouseCoopers LLP, 23/4/10, [2010] EWHC 812 (Ch)

Thu, 20 May 2010 21:36:57 GMT

Accountants had been asked to value the shares in a company undertaking projects in the PFI sector. Following a valuation of £5.1 million the Claimants sold their shares in the company to a third party for £5.5 million. 11 months later the third party managed to sell on the shares for £40 million. The Claimants alleged that the accountants had negligently under-valued their shares. It was also alleged that the accountants suffered from a conflict of interest through its long-standing relationship with the initial third party purchaser and that accordingly a clause in the accountants’ retainer limiting liability to £1 million did not apply. The methodology of the accountants applied too great a discount on the basis of equity alone rather than equity and subordinated debt. However there was no evidence to support the allegation of conflict of interest: the mere fact that the third party purchaser had indicated that the accountants would be “first in line” for any subsequent refinancing work did not give rise to a conflict. It was perfectly sensible in light of the knowledge of their portfolio. Equally it was a matter of public knowledge that the accountants and its predecessors had for many years audited the third party’s accounts: that did not give rise to a conflict of interest particularly where the Claimants knew this. Accordingly the Claimants’ damages were limited to the loss of opportunity of obtaining a greater sum on the initial sale, but limited to damages of £1 million. However the court’s assessment of damages fell within that level in any event and so the point was immaterial. The Court held that the Claimants had sold 57% of the Company and there prospects of obtaining an increased valuation of £1 million were 75% and their damages were £427,500.

Brenda Louise Rennie on behalf of DMF v. The Lothian Health Board [2010] CSOH 61

Thu, 13 May 2010 13:50:42 GMT

Procedure Roll:- In this action the pursuer, a solicitor who had been appointed curator bonis of DMF, sought damages from the defenders of £5,000,000 in relation to alleged negligent acts and omissions in 1980 in relation to the birth of DMF on 18 July 1980 when, following her birth by emergency caesarean section, she had cerebral palsy and was incapax. At debate on the procedure roll the following pleas of the defender were considered:- (1) a plea in law that the action be barred as a result of mora taciturnity and acquiescence and the defenders should be assoilzied, which failing the action should be dismissed; and (2) having delayed unwarrantably in prosecuting the action and as a consequence through that delay the defenders were prejudiced in their ability to defend the action and the defenders should be assoilzied, which failing the action should be dismissed. It was agreed between parties as a matter of law that the present action had neither prescribed nor limited as DMF has always been incapax and would remain so and that for a period the non-age provisions also applied to DMF as part of the history of the action, albeit she had now reached the age of majority. Here the court considered the various elements of mora taciturnity and acquiescence and whether there was an effective plea of mora. Further, the court considered the effect and implications of prejudice to the defenders. The court also went on to consider the second plea of the defenders and whether there was anything in the delay in proceedings since the action was raised which would allow the court to conclude that the delay was inordinate, and if so, whether that delay was excuseable.

Ternent v Ashford & St Peters NHS Trust, [2010] EWHC 593 (QB), 24/3/10

Thu, 06 May 2010 20:11:07 GMT

On a preliminary issue the surgeon’s suturing following a caesarean section was not proved to have been negligent. It was inappropriate to raise allegations about a hospital and a surgeon that the surgeon was working excessive hours or was otherwise less than fully fit to perform an operation unless based on evidence and formally pleaded. Introducing by means of a report from an expert was not proper.

Fonexco Group Ltd & Ors v Manches, [2010] EWHC 493 (QB), 19/3/10

Thu, 06 May 2010 20:10:25 GMT

A law firm had not issued proceedings against an Italian company immediately on being instructed with the consequences that the Italian company issued proceedings in Italy first and the case proceeded in Italy. The law firm was not in breach of any duty because it had not been instructed to issue proceedings immediately. The client’s evidence to the contrary was inconsistent with the contemporaneous documents and the commercial reality of the position.

Kerr v Laurence Shaw & Associates Ltd (In Liquidation), [2010] EWHC 585 (Ch), 19/3/10

Thu, 06 May 2010 20:09:29 GMT

Although the patent agent should have advised that there was a possibility of filing an application for a Canadian patent after the deadline on payment of a penalty that failure caused no loss because the claimant would not have made any such application.

Mason v Richard Freeman & Co, [2010] EWCA Civ 287, 25/3/10

Thu, 06 May 2010 20:08:18 GMT

A claim against conveyancing solicitors for an indemnity in respect of a liability to an unsecured lender by the purchaser of the property who had subsequently sold on the property without any repayment of the unsecured loan failed. The conveyancing solicitors owed no duty to the unsecured lender. The instructions from the vendor that ‘there must be no remaining liability in this property on my part after completion’ when construed against the relevant background meant that he would be released from liability against the original secured mortgage as opposed to any other liability to the unsecured lender.

Goldberg & Ors v Miltiadous & Ors, [2010] EWHC 450 (QB), 15/3/10

Thu, 06 May 2010 19:54:23 GMT

Clients of an accountancy firm were entitled to recover from the partners of the firm as the negligent representations were made by a partner in his capacity as a partner of the other Defendants and in the course of the ordinary business of the firm. It did not matter that those representations were made fraudulently.

Tom Hoskins Plc v EMW Law (a Firm), [2010] EWHC 479 (Ch), 11/3/10

Thu, 06 May 2010 19:50:05 GMT

The scope of a solicitors’ duty in the sale of business premises extended to advising on the need for obtaining consents from the landlords for assignment of the leases. In assessing consequential losses the principles of loss of a chance under Allied Maples v Simmons would apply even though there was evidence from the third parties available where there was a possibility that not all the evidence relevant to the loss of a chance had been called. As a matter of principle trading losses are recoverable where it can be shown which losses flowed from the breach of duty and such losses fell within the solicitors’ duty of care. The purpose of the solicitors’ advice and assistance was to prevent the clients from being exposed to the risk of loss and thus the ongoing trading losses caused by the solicitors’ delay were recoverable as damages.

Pegasus Management Holdings SCA & Anr v Ernst & Young (CA) 10/3/10

Thu, 25 Mar 2010 14:29:55 GMT

For the purposes of determining when damage occurred following alleged negligent advice in a “wrong transaction” case damage may arise where the claimant has not received what he ought to have received even if he was not put in a position that was not immediately worse financially.

Whiston v London Strategic Health Authority (CA) 5/3/10

Thu, 25 Mar 2010 14:28:00 GMT

The Court of Appeal again considered the issue of actual and constructive knowledge under sections 11 and 14 of the Limitation Act 1980 for claims for personal injury. The Claimant suffered from cerebral palsy caused by brain damage sustained at birth. His case was that his injuries were caused by the unsuccessful attempts by a junior doctor to deliver him using forceps. The Claimant’s health had been stable from his birth in 1974 until 2005 when the Claimant’s mother told him of her concerns over his delivery. While the Claimant knew that his birth had been by way of forceps long before 2005 that did not capture the essence of his claim for the purpose of assessing actual knowledge under s. 11 of the Limitation Act 1980. The Claimant’s claim was that his injury was attributable to the junior doctor’s conduct and the Claimant did not have actual knowledge until 2005. The test under s. 14 (3) following Adams v Bracknell Forest LBC did not provide that actual or constructive knowledge that the injury was significant was determinative of the constructive knowledge issue, the issue should be determined by reference to the knowledge which a person might reasonably be expected to acquire, depending on all the circumstances of the case. The existence of the discretion in section 33 and the reasoning in Adams heightened the requirements of constructive knowledge and the degree of curiosity of the reasonable claimant. A reasonable position in the Claimant’s position would have enquired more of his birth from his mother by the Claimant’s early 20s. As she would have provided sufficient details of her concerns the Claimant should be taken to have constructive knowledge long before 2005. That a fair trial was still possible was not decisive, however taking in to account all the circumstances including the factors in section 33, the discretion to extend the limitation period was granted.

Priory Caring Services Ltd v Capita Property Services Ltd (CA) 11/3/10

Thu, 25 Mar 2010 14:23:45 GMT

Non-suit clauses. A firm of surveyors was entitled to rely on an undertaking in a letter not to issue proceedings against it in given when providing a witness statement for an arbitration claim brought by its former client against insurers. The client knew at the time of giving the undertaking that the competence and honesty of the particular employee working on the client’s project was at best suspect and that on its proper construction the undertaking was sufficiently broad to extend to those previous acts even though the primary focus of the undertaking was in respect of the witness statement.

Biddle & Company v Tetra Pak Limited & Ors (Ch) 21/1/10

Thu, 25 Feb 2010 00:24:08 GMT

Limitation

Griffin v UHY Hackery Young & Partners (Ch) 4/2/10

Thu, 25 Feb 2010 00:22:11 GMT

Ex turpi causa

Nahome & Ors v Last Cawthra Feather Solicitors (Ch) 29/1/10

Thu, 25 Feb 2010 00:08:35 GMT

Damages

Yechiel v Kerry London Ltd (Comm) 12/2/10

Thu, 25 Feb 2010 00:01:55 GMT

Insurance Brokers

Webb v John Macdonald QC & Anr (Ch) 29/1/10

Wed, 24 Feb 2010 23:59:58 GMT

Lawyers liability

Jones v Kaney (QB) 21/1/10

Wed, 24 Feb 2010 23:59:00 GMT

A claim for professional negligence against an expert witness who had signed a joint statement which did not reflect her true expert opinion accurately was struck out because the Court was bound by the decision in Stanton v Callaghan [2000] QB 75 which provides immunity from suit for expert witnesses on the basis of public policy. The Court rejected the Claimant’s submissions that in light of the House of Lords decision in Hall v Simons or the effect of the coming in to force of the Human Rights Act 1998 was that Stanton v Callaghan was no longer binding law. However because of the developments in the law the Court considered that there was a substantial likelihood that on re-examination by a superior court the public policy justifications for the rule will be found unable to support the rule.

Parkinson Engineering Services v Swann & Anr (CA) (21 December 2009)

Thu, 04 Feb 2010 16:21:13 GMT

An application by a liquidator to apply to join himself as a party to proceedings brought by a company against its former administrators and to bring a claim under s. 212 of the Insolvency Act after the expiry of the limitation period was permitted because the liquidator’s claim under s.212 was identical to that put forward originally by the company and was necessary because without a claim under s.212 the company’s claim would be struck out by reason of the administrators’ earlier statutory release under section 20. While a s. 212 claim was required to be issued by way of application within the liquidation and within the Companies Court rather than through originating process in the Chancery Division those differences were without significance.

Nayyar & Ors v Denton Wilde Sapte & Anr. (ChD) (16 December 2009)

Thu, 04 Feb 2010 16:20:08 GMT

Facilitating the payment of a sum of money to secure an agency agreement went far beyond the primary role of a law firm’s marketing manager even though she had a limited legal advisory role. Thus it would not be fair and just to hold the law firm vicariously liable for such acts if proved. Equally she was not acting within her actual or ostensible authority. Further as the payment of the money intended a breach of a fiduciary duty on the part of the recipient decision maker, a fact which must have been known by those making the payment it amounted to a civil law bribe. As the action to recover the sums paid or related damages had a sufficiently clear and close connection with this the claim was barred by the principle of ex turpi causa.

Beresford & Anor v The Solicitors Regulation Authority & Anor [2009] EWHC 3155 (Admin) (02 December 2009)

Tue, 29 Dec 2009 23:43:53 GMT

The SRA received complaints that the two partners in a solicitors firm had each been guilty of conduct unbefitting of a solicitor as they had failed to give sufficient information to clients about costs and funding of claims generally and had accepted referrals of business in breach of the Solicitors' Introduction and Referral Code. The tribunal ordered that the partners be struck off the Roll of Solicitors. They appealed, but the appeal was dismissed as it was held that the tribunal had made findings of fact in relation to each allegation which related back to the evidence and submissions. In all the circumstances, the tribunal had been entitled to reach the conclusions which it had in respect of the allegations. The tribunal had properly found against the two partners on the allegations.

Dunlop Haywards (DHL) Ltd & Ors v Barbon Insurance Group Ltd & Ors [2009] EWHC 2900 (Comm) (19 November 2009)

Tue, 29 Dec 2009 23:37:08 GMT

A claim was brought against insurance brokers in respect of the renewal of an excess layer of insurance. Cover under the new policy was limited to the Claimant’s commercial property management activities and did not extend to valuation activities which are distinct activities in terms of professional indemnity insurance. The brokers’ claim that the policy should be rectified so that that cover included valuation activities failed on the evidence. Similarly the brokers’ allegation of contributory negligence failed against because the Claimant was entitled to rely on the broker to obtain the terms of insurance requested and had failed to draw attention to the limiting condition in its summary of the renewal terms. The Lloyd’s placing broker was negligent in failing to query the change from cover for the Claimant and that cover would be on equivalent terms to the expiring cover. It terms of relative responsibility the Lloyd’s broker was 20% responsible for the losses and the ins urance broker 80% responsible.

Emmanuel v South Gloucestershire Primary Care Trust & Anor [2009] EWHC 3260 (Admin) (11 December 2009)

Tue, 29 Dec 2009 23:35:40 GMT

In 1999 Mr Emmanuel joined a surgery as a partner and general practitioner. In January 2004 he was included on the first respondent care trust's medical performers list. In June 2008, the trust was informed of allegations relating to Mr Emmanuel, namely that he had engaged in an improper relationship with a former patient by whom he had fathered a child. The complaint was investigated by the trust and there followed an oral hearing after which he was suspended from the list. In March 2009, Mr Emmanuel was removed from the list on the grounds of unsuitability. He appealed this decision as the tribunal had exercised its discretion not to call the former patient to give evidence before it. It was held that as the date when the sexual relationship started had been fundamental and a contested matter of fact, the panel had made an error of law in not allowing Mr Emmanuel to cross-examine the former patient regarding the allegations.

Richard J. Howlett v Health Professions Council (09 December 2009)

Tue, 29 Dec 2009 23:34:47 GMT

Mr Howlett was a physiotherapist working as a sole practitioner. On referral, he treated a whiplash patient. She made complaints that Mr Howlett carried out inappropriate treatment without providing adequate reasons for treating the subject of her complaint. The matter was referred to the Competence and Conduct Committee panel of the respondent Health Professions Council. At the hearing, the panel heard evidence from another person who had made a complaint against Mr Howlett. On 28 November 2008, Mr Howlett was struck off from the register of authorised physiotherapists as his fitness to practise was found to be impaired by reason of misconduct. Mr Howlett appealed. On appeal it was held that the panel needed to explicitly set out precisely why it had reached the conclusion it had in light of the evidence. It was not clear whether the panel had considered the changes to his practice or sufficient changes in his attitude or whether it was Mr Howlett’s bedside manner that was absent and the fact t hat he had treated others without complaint. In addition, by failing to further consider Mr Howlett’s age, the panel had fallen into error. It was held that the matter would be remitted for reconsideration on sanction.

Farraj & Anr v King’s Healthcare NHS Trust & Anr (CA) (13 November 2009)

Thu, 03 Dec 2009 20:05:14 GMT

Where a hospital was asked to provide a DNA analysis of foetus tissue it did not owe a non-delegable duty of care to the parents in respect of the testing. The non-delegable duty arguably owed to patients was of a different ilk. Where the independent testing laboratory had an admitted duty of care to report any doubts about the testing there was no positive duty on the hospital to make enquiry as to the satisfactory nature of the samples provided for testing. The hospital was entitled in the absence of communication of doubts from the laboratory to assume that all was well.

Prudential Plc & Anor, R (on the application of) v Special Commissioner of Income Tax & Anor [2009] EWHC 2494 (Admin) (14 October 2009)

Thu, 03 Dec 2009 20:02:00 GMT

The defence of legal advice privilege did not extend to legal advice provided by accountants.

Lexi Holdings (In Administration) v Pannone and Partners [2009] EWHC 2590 (Ch) (26 October 2009)

Thu, 03 Dec 2009 20:00:15 GMT

The authorities on actual and apparent authority do not offer a sufficiently clear guide for the purposes of summary judgment to the effect that a purely negligent failure to inquire about an instruction suggesting an underlying serious lack of commercial judgment by the director is sufficient to prevent a solicitor acting upon that instruction from relying upon the usual authority of the director, where the instruction in question, namely to pay a sum of money out of the firm’s client account, is on its face squarely within that director’s usual authority.

Charalambous & Ors v B & C Associates & Anr (Ch) (22 October 2009)

Thu, 03 Dec 2009 19:59:14 GMT

A claim against the administrator and her partnership by creditors was struck out because at common law no general duty of care was owed in relation to the conduct of the administration unless there was some special relationship. Knowledge of the identity of the company’s sole secured creditor and the need of that creditor for sums could not, without more, create a special relationship.

S v Health Professions Council (Admin) (23 October 2009)

Thu, 03 Dec 2009 19:58:04 GMT

A delay of sixteen months from the initial hearing of a complaint to the final hearing was a reasonable timeframe and did not infringe on the health professional’s human rights. Even if it had it would have been necessary to show that the unreasonable delay had affected the fairness of the trial or that it would be unfair to proceed, neither of which applied on the facts.

Littlewood v Radford & Anor (Formerly T/a Boston Carrington Pritchard) [2009] EWCA Civ 1024 (13 October 2009)

Mon, 02 Nov 2009 11:49:28 GMT

The surveyor’s retainer in respect of a lease extension had not terminated as early as the first instance judge had found. Although it might be said that if a professional person gives clear advice on a particular point to his client as the need to take a particular step by a particular timer, there cannot be any general principle that he is under a duty to keep repeating that advice, as the first instance judge had found that the surveyor was in this case under such a duty to advise as the deadline for applying to the LVT neared and there was no appeal against that issue judgment would be entered against the surveyor.

Morgan Stanley & Co International Plc v China Haisheng Juice Holdings Co Ltd [2009] EWHC 2409 (Comm) (05 October 2009)

Mon, 02 Nov 2009 11:48:10 GMT

A dispute arose in respect of an ISDA swap arrangement entered in to between the parties with an exclusive English law and forum jurisdiction clause. The swap agreement had gone against the Defendant. The Defendant had brought proceedings in China against the Morgan Stanley affiliate as well as the Claimant in respect of advice given as to the swap agreements. Issues arose as to whether the exclusive jurisdiction clause in the ISDA Master Agreement (2002 form) required claims against non-parties to the agreement to be brought in England. The Court concluded that it could not be so construed and declined to grant an anti-suit injunction against the Defendant other than in respect of the claims against the Claimant. The result was that there would be separate proceedings in separate jurisdictions with the risks of inconsistent decisions.

K/S Lincoln & Ors v CB Richard Ellis Hotels Ltd [2009] EWHC 2344 (TCC) (02 October 2009)

Mon, 02 Nov 2009 11:46:45 GMT

One of the defences raised by valuation surveyors was that the acquisition of various hotels by the Claimants, Danish companies included an 8% uplift that amounted to tax evasion under the Danish law and that the entire claim for professional negligence should fail for illegality. As the claim was founded not on any illegal act the prospects of it being a complete defence were very slim. However as to the 8% uplift aspect of the claim the prospects were stronger. Accordingly in response to the Claimants’ strike out application they would be put to an election as to whether to continue with the claim in respect of the 8% uplift. If it was no longer pursued then the costs of disclosure were to be paid on an interim basis by the Defendant with any reversal of such order to take place after judgment on the issue.

Rawnsley & Anr v Weatheral Green & Smith North Ltd & Anr. (DR) (30 September 2009)

Mon, 02 Nov 2009 11:44:35 GMT

During the insolvency process the liquidator sold the company’s principal asset. The company and its principal director (also a major shareholder and trustee of a major creditor) brought a claim against the liquidator and the surveyor who had valued the property on the basis that the sale was at an undervalue. The director’s claims against both defendants brought in his capacity as a shareholder were bound to fail because of the rule against reflective loss. The director’s claims against the liquidator brought under a purported assignment of the Company’s actions were bound to fail because the assignment did not extend to any cause of action against the liquidator. The director could prosecute his claims on the basis of an assignment to him of the creditor’s cause of action. The assignment of the cause of action against the surveyors was permissible because it was a cause of action belonging to the company and not arising out of the liquidator’s statutor y role. Ruttle Plant Ltd v Sec of State for Environment Food and Rural Affairs was distinguishable.

Coke-Wallis v Institute of Chartered Accountants In England and Wales [2009] EWCA Civ 730 (15 July 2009)

Thu, 08 Oct 2009 19:51:44 GMT

An accountant had been convicted of failing to comply with an order of the Jersey Financial Services Commission the effect of which included a prohibition of removal of records and files from his offices after being caught with original trust deeds, computer and network equipment and other materials on board a ferry departing Jersey. The Institute commenced proceedings alleging discreditable conduct. The defendant did not attend the hearing and was not presented. The tribunal dismissed the complaint no the basis that they were not satisfied that the offence of which the defendant was convicted in Jersey corresponded with any indictable offence which had been the mistaken assumption in the complaint. A second complaint was then brought on the basis that his conduct in seeking to remove the documents in contravention of the direction of the Jersey Financial Services Commission. The accountant sought to dismiss the second complaint on the basis that it was an abuse of process. The principles of autre-fois acquit did not apply on the facts – the two complaints were different even though part of the factual background of the former complaint was the foundation of the second complaint. The second complaint was not an abuse of process.

JP Morgan Chase Bank, N.A. & Anr. v Berliner Verkehrsbetriebe (BVG) (Comm) (9 July 2009)

Thu, 08 Oct 2009 19:48:44 GMT

Where a case raises different issues, one of which would if tried alone result in the exclusive jurisdiction of the court of the domicile of the company the question for the Court is whether the proceedings are in substance or principally concerned with a decision of the organ of the company by taking an overall classification of the issues and forming an overall judgment and that preliminary or incidental matters will not play a major feature in the assessment. A claim to enforce the terms of a commercial agreement for a swap met with a defence of professional negligence in which the defence of ultra vires arose only subsequently was not one in which the proceedings are principally concerned with the decision of the organ of the company.

Webster v Sandersons Solicitors (A Firm) [2009] EWCA Civ 830 (31 July 2009)

Thu, 08 Oct 2009 19:44:24 GMT

In 1993 and 1994 the Claimant, a company of which he was a majority shareholder and a pension fund invested sums in to a project on the basis of solicitors’ advice. The project was disastrous. The Claimant sought to recover the total amount invested against these solicitors however proceedings were not issued in time. The Claimant therefore brought a claim against his second set of solicitors on the basis that their breach of duty had caused him to lose all chance or a significant chance of recovering his loss from the first set of solicitors. In an application to amend the Particulars of Claim claims for loss of a chance in respect of the investments of the company and the pension fund were not permitted because unlike in Giles v Rhind the company and the pension fund had not been prevented from brining proceedings as a result of the wrongdoing being complained about and even assessing how the law would have been applied at the time of the notional trial the law was well established such that there was no loss of a chance.

Martin v Triggs Turner Bartons (a firm) & Ors [2009] EWHC 1920 (Ch) (31 July 2009)

Thu, 08 Oct 2009 19:41:47 GMT

An action by a widow against solicitors relating to the drafting of her late husband’s will and subsequent advice to her in administering the estate succeeded. The will provided for a discretionary charitable trust with an express power of advancement of capital in favour of the widow. However the wording of the trust limited the maximum advancement to £100,000 rather than providing for no maximum but requiring at least £100,000 to be retained in the trust. The widow sought rectification of the will in proceedings against the Attorney General and the charities in remainder which were compromised. The widow alleged that had the power of advancement been drafted correctly then she would have been able to obtain a more favourable settlement. The Court held that the solicitors had failed to understand properly the husband’s instructions and that the will had been incorrectly drafted and that damages should be awarded. The Court also found that the solicitors had assumed a responsibility to advise the widow in respect of a widow’s pension and had failed to act properly in this regard and in respect of the tax treatment of National Savings certificates in the estate.

Clark & Anr v Lucas Solicitors LLP (Ch) (31 July 2009)

Thu, 08 Oct 2009 19:38:19 GMT

Vendors’ solicitors who had provided an undertaking to redeem existing charges over property following completion of the sale of a single plot on the development scheme were required to pay the full sum owed under the charge in order to perform the undertaking even though this was vastly in excess of the purchase price of the single plot. The matter was suitable for summary judgment as there was nothing impossible about the performance of the undertaking or a real dispute as to the amount need to pay the charge.

CC & Anr v Blackpool, Flyde & Wyre Hospitals NHS Trust (QB) (27 July 2009)

Thu, 08 Oct 2009 18:32:00 GMT

An action was brought against the hospital’s ultrasound sonographer in respect of the 20 weeks scan. It was said that abnormalities should have been detected on the scan that would have led to further scans and identification of the underlying condition of schizencephaly and termination of the pregnancy. On the balance of probabilities the Court could not be satisfied that a defect was detectable at the time of the scan.

Brown & Ors v Innovatorone Plc & Ors [2009] EWHC 1376 (Comm) (19 June 2009)

Wed, 19 Aug 2009 18:47:48 GMT

Service by fax on a Defendant’s solicitors was ineffective service unless the Claimant had been told that the solicitors were authorised to accept service under CPR 6.7. The mere mention of a fax number in solicitors’ letterhead was not sufficient.

Imperial Cancer Research Fund & Anor v OVE ARUP & Partners Ltd & Anor [2009] EWHC 1453 (TCC) (23 June 2009)

Wed, 19 Aug 2009 18:43:29 GMT

Where a party required further investigations to determine whether or not a claim for professional negligence could be properly particularised and the solicitors for the Claimants had acted responsibly in their investigations then it was appropriate to extend the time for service of the claim form even though in the intervening period some of the causes of action might have become statute barred.

Pickthall & Anor v Hill Dickinson Llp [2009] EWCA Civ 543 (11 June 2009)

Wed, 19 Aug 2009 18:42:04 GMT

Where a Claimant knows that his cause of action is vested in a third party then his issue of a claim is an abuse of process even where he hopes and expects to obtain a valid assignment of the cause of action and the purpose of issue was to avoid the cause of action becoming statute barred.

Varley v General Osteopathic Council (QBD) (09 June 2009)

Wed, 19 Aug 2009 17:49:00 GMT

In October 2007, Mr Varley, a registered osteopath, was convicted and sentenced in respect of an offence of incitement to supply a Class B drug. The facts supporting the conviction were that the Mr Varley had incited his osteopathy patients to join him in creating amphetamine for sale as slimming pills to members of the public. In January 2008, the Professional Conduct Committee (PCC) suspended him from the Register of Osteopaths (the Register) for a period of six months. In February 2008, Mr Varley had advertised as an osteopath despite his suspension from the Register. The PCC found him guilty of unacceptable professional conduct and decided to remove his name from the Register. Mr Varley appealed this decision. The appeal was dismissed. In the circumstances, the sanction imposed by the PCC was both reasonable and proportionate.

Pritchard Joyce & Hinds (A Firm) v Batcup & Anor [2009] EWCA Civ 369 (05 May 2009)

Mon, 04 May 2009 23:00:00 GMT

Leading and junior Counsel successfully challenged a first instance finding that that they should have advised as to the potential expiry of a limitation period because although the lower court had identified the correct legal test in its application the judge had instead applied his own view as to what the solicitor should have done rather than determining what any reasonably competent solicitor would have done. On analysis a reasonably competent solicitor would not have considered it necessary to look beyond an extensive 10 page note for identifying his complaints against his former solicitors for further earlier causes of actions. The Court of Appeal was able to consider the matter without the oral evidence because most of the first instance findings were based on documents. Accordingly there was no real prospect of success in the claim and there could be no criticism of the barristers instructed for not appreciating that there was a possible underlying complaint thereafter.

Levicom International Holdings BV & Anor v Linklaters (a firm) [2009] EWHC 812 (Comm) (21 April 2009)

Mon, 20 Apr 2009 23:00:00 GMT

The solicitors advice as to the prospects of success on the construction of the territorial extent of a non-compete clause was while more optimistic than some more cautious solicitors might have given, within the range of opinions that could properly be given. There was no breach of duty in not advising explicitly that arbitrators might not agree with that construction. Similarly the advice as to the appropriate level of compensation under the agreement and that the initial offer did not reflect fair compensation was also acceptable. There was some fault in that the first letter of advice did not properly convey the intended advice and was reasonably understood by the clients as indicating an entitlement to more substantial damages than was likely and the second letter should have advised seeking damages as well as a declaration and warned of the risks of not obtaining a declaration. However even if the claimants had been given more pessimistic advice they would not have accepted an earlier offer or conducted settlement negotiations differently, there was therefore no proof of loss. Nominal damages only were awarded.

Haitwaite v Thomson Snell & Passmore (QB) (30 March 2009)

Mon, 30 Mar 2009 17:55:00 GMT

In March 1998 the claimant retained the defendant solicitors' firm for advice and to act on his behalf with respect to proceedings which he wished to bring against the Mid-Sussex National Health Service Trust. The proceedings against the Trust concerned alleged delays in diagnosing and treating the claimant's Subdural Haematoma which had developed. The defendant solicitors’ firm failed to bring the action against the Trust in time, which meant that the claimant lost the opportunity to pursue his claim and he was compelled to discontinue. The claimant brought proceedings against the defendant solicitors’ firm for negligence arising out of that failure. The defendant admitted negligence and also conceded that the claimant would have been financially able to pursue his claim through to trial, should that have been necessary. The court held that when a court was called upon to put a value on a claimant's lost chance of pursuing litigation against a third party, its task was not normally to determine definitively how that litigation would have been decided. Further, it was the prospects and not the hypothetical decision in the lost trial that had to be investigated

S. v. Argyll and Clyde Acute Hospitals [2009] CSOH 43

Wed, 25 Mar 2009 17:12:00 GMT

In this action S. sought damages on behalf of her son, J. in respect of negligence in the management of the delivery of J. J. who is now 9 years of age suffers from cerebral palsy and is severely disabled. The action was settled extra-judicially on the basis of payment to the pursuer of a sum of damages which amounted to £5.25 million. Subsequently the following motion was enrolled on behalf of the pursuer:- "On behalf of the pursuer, and in respect that this action has settled and the pursuer has received a capital sum in her capacity as mother and guardian of the child [J.] for directions as to the future administration of the award for the benefit of the child in terms of section 13 of the Children (Scotland) Act 1995; and in particular to approve the purchase and adaption of [a specified property] as a suitable property for the child; and further to approve the purchase of computer equipment for the child as recommended in [a specified report]." Here the court considered whether it had jurisdiction to make such an order on the basis that the Court's power was conferred under section 13(1) of the Children (Scotland) Act 1995 which provides:- "Where in any court proceedings a sum of money becomes payable to [emphasis added], or for the benefit of, a child under the age of sixteen years, the court may make such an order relating to the payment and management of the sum for the benefit of the child as it thinks fit." There was a difficulty in the present case given the sum had in the present case been paid. The court went on to consider whether the pursuer was entitled to apply the whole sum of damages paid by the defender for the benefit of J. without any further authorisation from the court.

Land Securities Plc & Ors v Fladgate Fielder (Ch) 25/03/09

Wed, 25 Mar 2009 00:00:00 GMT

A claim by developers for £17 million for the tort of abuse of process in respect of an objection to an application for planning permission which was allegedly made for the improper and collateral purpose of seeking to procure a collateral benefit in money or money’s worth was struck out because there was no prospect of the developers showing that the firm’s predominant purpose in threatening and using the judicial review proceedings was collateral to the scope of such proceedings or improper.

Tamlura NV v CMS Cameron MckEnna [2009] EWHC 538 (Ch) (19 March 2009)

Thu, 19 Mar 2009 18:46:00 GMT

Solicitors acting for the vendor of a company where consideration was part cash and part shares, the latter to be paid over time but valued at the market price were not negligent in drawing an apparent error in the preparation of the documentation to the purchaser’s representatives before checking with the vendor. They were acting in accordance with their instructions. Given the nature of the original instructions; the discussions and explanations given from time to time; the events that refined the commercial elements of the transaction; the provision of drafts; the knowledge of the clients; and the speed of the transaction the solicitors were under no additional duty to explain the agreement once it was in its final form.

Brian and Evelyn Dickson v. A & W M Urquhart, W.S. [2009] CSOH 38

Wed, 18 Mar 2009 14:56:00 GMT

Proof:- In 1987 the pursuers purchased a warehouse in a Georgian terrace overlooking Leith Links. The defenders acted for the pursuers in the purchase of the property. By a disposition dated 9 and 29 July 1986, the property was conveyed into the joint names of the pursuers. Certain additional burdens were inserted in the title to reflect the terms of a Memorandum. In particular, the disposition stated:- "... the warehouse will be used in connection with our said Disponees' business of plasterers and slaterers and for no other purpose whatever without the consent of in writing of us and our successors as proprietors of the office". In 2000, a local motorcycle business wished to lease the property for storage purposes and the pursuers contacted the defenders and asked them to prepare a draft lease. The defenders replied reminding them that in terms of their title, any change of use required consent. The pursuers contacted the defenders to say that they were unaware of any such title condition. The issue in this action of damages for negligence was whether the defenders informed the pursuers about the restrictive title condition at the time of the purchase. The pursuers based their case on:- (1) their recollection that the defenders had never sought their instructions about the Memorandum or the disposition; and (2) their lack of confidence in the completeness and accuracy of the defenders' records of the transaction. Here the court considered the evidence of those involved in the transaction at the time of the purchase in considering whether the defenders had been negligent.

Watson & Anr v Irwin Mitchell (QB) (11 March 2009)

Wed, 11 Mar 2009 18:52:00 GMT

Where allegations of professional negligence had been made in earlier proceedings which were stayed a second action should be struck out for abuse of process.

Tann v Herrington [2009] EWHC 445 (Ch) (10 March 2009)

Tue, 10 Mar 2009 17:49:00 GMT

A partner whose responsibilities included the notification of potential claims to insurers under the provisions of professional indemnity insurance was required to act with reasonable care and skill judged by an objective standard. The personal belief that a third party claim was spurious was insufficient. The partner was liable to the other partner in respect of his share of the sums that would otherwise have been indemnified.

Kituma v Nursing and Midwifery Council (Rev 1) [2009] EWHC 373 (Admin) (09 March 2009)

Mon, 09 Mar 2009 18:53:00 GMT

The court could not interfere with a decision of the Conduct and Competence Committee of the Nursing and Midwifery Council that a midwife had been guilty of misconduct in her management of a patient’s labour and delivery.

Penny & Anor v Digital Structures Ltd [2009] EWCA Civ 144 (02 March 2009)

Mon, 02 Mar 2009 00:00:00 GMT

In a surveyors’ negligence case, the Defendant’s expert gave new evidence orally at trial as to the stability of roof trusses which formed the basis for the judge’s finding that there was no defect in the roof. There was no procedural irregularity in allowing such evidence where the Claimant’s Counsel had an opportunity to consider the issues with his expert and to cross-examine thereafter. An application to adduce further evidence from the Claimant’s expert on appeal would fail where no application had been made to recall that expert at trial.

John McEwan v. Ayrshire and Arran Acute Hospitals NHS Trust [2009] CSOH 22

Thu, 19 Feb 2009 11:44:00 GMT

Proof:- In this action the pursuer sought damages for losses said to have been sustained by him as a result of medical negligence following his admssion to hospital on 22 April 2002 following a complaint of abdominal pains. He underwent a number of operations at Crosshouse Hospital in Kilmarnock before his transfer to the Glasgow Western Infirmary on 7 May 2002 where he underwent plastic surgery to provide skin cover to his abdomen and reconstructive surgery to his scrotum after a number of complications arose. The principal issue between the parties, on liability, was whether there was at the time a usual and normal practice in respect of examination of the small bowel following release of a band adhesion and, if so, of what that practice consisted, whether the surgeon, Mr Kingsmore, a specialist registrar in the third year of his higher surgical training, and a pre-registration House Officer, did or did not adopt that practice and whether the course which he did adopt was one which no surgeon of ordinary skill would have taken if he had been acting with reasonable care. Here the court considered whether the pursuer had established his case together with the quantification of the claim for the pursuer who was thirty eight years of age at the time of the operations.

Lesley Bothwell v. Messrs D.M. Hall and Others [2009] CSOH 24

Thu, 19 Feb 2009 11:32:00 GMT

Proof:- In this action the pursuer, the owner of a nursery business, sought damages from the defenders, a firm of chartered surveyors, for an alleged breach of contract and professional negligence arising out of a failure to exercise the standard of skill and care reasonably to be expected from a competent chartered surveyor in the marketing and possible sale of the pursuer's nursery. The only issue before the court was whether the defenders were liable, the quantification of the claim to be assessed in the event that the defenders were found liable. Here the court considered whether the pursuer had established that the chartered surveyor had been guilty of such failure as no chartered surveyor of ordinary skill would have been guilty of if acting with ordinary care. It was submitted on behalf of the pursuer that the breaches of duty by the defenders had been established by:- (1) the failure to inform the pursuer of the material part of a letter of 5 August 2003 by the time she had to decide whether or not to proceed with the proposed sale; and (2) the failure to inform prospective purchasers of that letter, having obtained the pursuer's permission to do so. Here the court considered whether the pursuer had established his case to the requisite standard.or whether the conduct of the defenders had been based on a rational professional judgement.

Nationwide Building Society v Dunlop Haywards (DHL) Ltd (t/a Dunlop Heywood Lorenz) & Anor [2009] EWHC 254 (Comm) (18 February 2009)

Wed, 18 Feb 2009 00:00:00 GMT

In a lender’s claim against valuers who had fraudulently overstated the value of the property and against solicitors who had acted on the lender’s behalf in respect of the security for the loans, the solicitors compromised their claim. The solicitors were entitled in their contribution claim against the valuers to recover amounts reflecting their relative responsibility taking in to account a deduction for the Claimants’ contributory negligence. However the amounts reflecting the valuers’ liability in deceit exclusively (i.e. non-foreseeable damages) would not be taken in to account as not amounting to ‘the same damage’.

Tutin, R (on the application of) v General Medical Council [2009] EWHC 553 (Admin) (13 February 2009)

Fri, 13 Feb 2009 00:00:00 GMT

After allegations of sexual impropriety made by patients against a general practitioner the General Medical Council determined that he had a case to answer. The general practitioner asserted that insufficient evidence had been adduced in respect of the allegations to find the facts proven. The General Medical Council’s consideration as an expert panel that there was sufficient evidence for the case to be answered was made after considering the correct test and the credibility of the allegations before it. It should stand.

Guy v Pannone LLP [2009] EWCA Civ 30 (10 February 2009)

Tue, 10 Feb 2009 00:00:00 GMT

Solicitors served a statutory demand for outstanding fees. The client applied to set it aside on the basis of substantial cross-claim for professional negligence. The claim for professional negligence was in two parts. First it was said that the solicitor failed to register a caution on a property which had been registered to a third party after a bogus transaction. This depended on whether the solicitors’ initial written instructions had been countermanded. The second allegation was that the solicitor should have warned the claimant as to its knowledge that the third party had previously been accused of being involved in fraud. The first allegation stood no prospect of success on the facts, particularly because the solicitors’ version of events had not been challenged in any meaningful way in parallel civil proceedings. Additionally on the facts a priority charge had already been registered prior to his instruction and thus his action could not have been causative of any substantial loss. The second allegation was hopeless as by the time he retained the solicitors, the client was already fully cognisant of the third party’s fraudulent activities.

Rushmer v Smith (QB) 30/1/09

Fri, 30 Jan 2009 00:00:00 GMT

Where the guarantor of a company loan from a bank was also the company’s main shareholder and sole director and on the facts did not believe the audited accounts, the fact that they were negligently prepared and grossly overstated the company’s profits and the company was subsequently liquidated did not allow the guarantor to recover damages. On the evidence the auditor owed no duty of care to the guarantor because even those it was very probably that there might be a guarantor the auditor did not specifically that the identity of the guarantor nor had the guarantor sought advice from the auditor and any loss was not recoverable because under the principle of reflective loss it fell outside the scope of duty.

McFaddens (a firm) v Platford [2009] EWHC 126 (TCC) (30 January 2009)

Fri, 30 Jan 2009 00:00:00 GMT

The Claimant was a firm of solicitors who had instructed a barrister to provide advice and represent three claimants at the trial of the underlying action. Shortly before trial both solicitors and Counsel became concerned as to whether one of the claimants was capable of providing instructions. After consultation an application was made to the Court to adjourn the trial in order to determine whether that claimant should be represented by a litigation friend. Despite being ordered to attend the application the claimant absented himself from the jurisdiction. The Court issued an unless order in respect of that claimant’s claim requiring him to submit to a medical examination. The Claimant failed to. Proceedings were then brought against the firm on the basis that they should not have issued the application and had lost the claimant the opportunity of obtaining judgment. The firm compromised the claim and sought an indemnity and / or contribution from the barrister. The firm contended that it had been bound to follow the advice of the Defendant and that advice given by the Defendant was negligent. The Court had to consider the appropriate test to be applied in determining whether the Defendant was negligent and the relationship between solicitor and barrister. First, it was a proper use of the Bar for a solicitor without experience in a particular field to rely on counsel's advice particularly on questions of law. The test to apply was that a barrister should conduct himself in his professional work with the care and skill of a barrister of ordinary skill who would be competent to handle that type of and weight of work, and a breach of that duty occurred when the error was one which no reasonably competent member of the profession possessing those skills should have made. A relevant consideration was the number of years call of that barrister. Second, the barrister might be instructed to draft pleadings or prepare schedules on the facts presented to him and should do so according to the solicitor's instructions provided that he could comply with the rules of professional conduct. In between, the roles of the barrister and the solicitor would normally reflect the co-operative relationship between the barrister and solicitor in a particular case. By reason of the solicitor's closer relationship with the client, the barrister would have to rely to a greater or lesser extent on the solicitor for the factual basis on which advice should be given. The advice of the barrister was appropriate in the circumstances and even if it had been wrong it would have been a mere error of judgment not amounting to negligence.

Hageman v Holmes & Seddons (a firm) (Ch) 21/1/09

Wed, 21 Jan 2009 00:00:00 GMT

The main proceedings related to the construction of a Deed of Covenant drafted by Seddons. The Court held that the Deed of Covenant did not create the fiduciary duty alleged by the Claimant and that accordingly there was no liability on the solicitors. The learned judge went on to consider whether if her construction of the Deed of Covenant was wrong and there had also been a fraudulent misrepresentation by the Defendant that any liability of the firm for failing to advise the Defendant would have been discharged because irrespective of their assumed advice the Defendant would still have entered in to the Deed of Covenant. Equally if the Defendant had been liable both as a trustee or fiduciary under the Deed of Covenant and for alleged misrepresentation the chain of causation would have been broken. For the same reasons Seddons could not be held liable for damage of a kind they could not reasonably have foreseen as a result of their negligence.

Wootton v J Docter Ltd & Anor [2008] EWCA Civ 1361 (19 December 2008)

Fri, 19 Dec 2008 00:00:00 GMT

The judge had been entitled to conclude that the negligent dispensing of the wrong contraceptive pill had not caused or materially contributed to the contraceptive failure and subsequent pregnancy of the Claimant. The case was not one in which the exception to the “but for” test identified in Fairchild v Glenhaven Services and Barker v Corus could be extended even if applicable because there had been no finding of additional risk.

Shields, R (on the application of) v Secretary of State for Justice [2008] EWHC 3102 (Admin) (17 December 2008)

Wed, 17 Dec 2008 00:00:00 GMT

Pardons and Transferred Prisoners

An English soccer fan, S, who had been in Bulgaria to watch a game, was convicted of attempted murder and sentenced to prison: but another man, G, made a signed confession to the offence from the UK. The Bulgarian courts rejected an appeal on the basis of G’s confession. S was then returned to the UK to serve his sentence under the Council of Europe Convention on the Transfer of Sentenced Persons 1983, as enacted in domestic law through the Repatriation of Prisoners Act 1984. He sought a pardon, a prerogative power exercised by the Secretary of State for Justice: it was refused on the basis that it was not possible when the Convention was involved. The question arising in the judicial review of the refusal was whether this was a correct interpretation of the Convention. The key provisions are Article 12, which provides that "Each Party may grant pardon, amnesty or commutation of the sentence in accordance with its Constitution or other laws." And Article 13, which states that "The sentencing State alone shall have the right to decide on any application for review of the judgment." The Secretary of State suggested that a pardon could only be granted by a detailed review of the merits of the conviction, which would be an impermissible review of the judgment of the Bulgarian courts. S submitted that the prerogative was a flexible power expressly preserved for use by Art 12 without qualification by Art 13. The Court accepted the claimant’s arguments: Art 12 permitted pardons to be granted (which was an executive power), whereas Art 13 was limited to judicial processes; a pardon was a flexible process designed to secure justice where a completed court process had failed to do that, as for example where fresh evidence became available which could not be raised in a court – but this did not amount to a review of the court decision.

Parker & Anor v SJ Berwin & Co & Anor [2008] EWHC 3017 (QB) (17 December 2008)

Wed, 17 Dec 2008 00:00:00 GMT

The Claimants sought to recover their wasted costs expenditure in their unsuccessful attempt to acquire Leicester City Football Club. The Claimants’ case was that they had retained the Defendants on the basis of assurances from one of its partners that it would be able to obtain funding and provide the relevant legal services to achieve that goal. The complaint was that no effective steps had been made to progress the funding or bid and expenditure was wasted. The claim was not issued until the cusp of the limitation period and after its expiry the Claimants sought to amend their claim. While permission was granted in respect of certain amendments it was refused in respect of others. A claim for the difference in value between the notional sale price of the First Claimant’s shares in the club that would have been achieved had he sold them after the failed bid and the price he would have achieved had he sold them at the time he retained the Defendants’ was refused:- it had no real prospect of success. Another adviser might have offered its services; there was no actual loss because the shares had not been sold; and the nature of the loss (protecting the client from suffering a diminution in the market value of his shareholding) fell outside the scope of the duty of care owed. A claim for the costs of a subsequent bid advanced through another firm of solicitors on the premise that the club would not have accepted alternative funding had the Defendants acted more efficiently was not permitted. The decision to advance a second bid was made in full knowledge of the Defendants’ failures and was an intervening cause or novus actus. Additionally it was far from clear whether the Defendants’ delay was causative as there was subsequent delay in progressing the second bid. An averment that the there was a presumption that the Claimants could recover their wasted expenditure in full based on CCC Films (London) Ltd v Impact Quadrant Films Ltd thereby side-stepping the loss of a chance principles in Allied Maples Group plc v Simmons & Simmons was not permitted. The CCC Films principle did not apply to claims for breach of a duty of care in professional relationships and there was no unfairness in any event because of the availability of assessment under the Allied Maples approach.

Hutchinson v General Dental Council [2008] EWHC 2896 (Admin) (28 November 2008)

Fri, 28 Nov 2008 00:00:00 GMT

Allegations against a dentist’s misuse of dental instruments for personal hygiene while vague in respect of the charges were clear in terms of the behaviour alleged. As even isolated instances would have been unacceptable. A fair hearing was still possible. Issues of delay and lack of specificity and any prejudice caused could be taken in to account by the tribunal. In considering these charges the tribunal had implicitly rejected part of the evidence of the witness on whose evidence some of the charges depended. In such circumstances the evidence was too weak to satisfy the burden of proof.

Williams v Thompson Leatherdale (a firm)& Anor [2008] EWHC 2574 (QB) (10 November 2008)

Mon, 10 Nov 2008 00:00:00 GMT

Proceedings were brought against the wife’s solicitor and barrister after a settlement agreement was entered in to in respect of financial provision arising from a divorce. At the time of the settlement, as the barrister was aware, the House of Lords had heard argument in the case of White v White as to whether principle of equality of division of assets should take priority over the then practice of reasonable requirements. The failure by the barrister not to advise as to the implications of a favourable decision from her perspective in White (as in fact eventuated) was a breach of duty and was not a mere error of judgment. There was no duty to advise beyond the pros and cons of suspending the negotiations – that was a matter for the client. On the facts such advice would not have led the wife to take a different route and accordingly there was no loss. The solicitors were not under a duty to operate a system that alerted them to any appellate judgment concerned with family law and thus they could only have been under a duty to take steps to withdraw the application for a consent order or to advise further had they become aware of the decision in White. On the evidence the wife had failed to make good her case.

Hugh Cameron & Alice Mary Steuart Cameron v. Hughes Dowdall [2008] CSOH NUMBER151

Wed, 29 Oct 2008 10:12:00 GMT

Debate:- In this action, the pursuers sought damages in respect of alleged professional negligence by the defenders, a firm of solicitors, whom, it is claimed, negligently omitted to incorporate certain terms into a sale and purchase agreement and a related contract of service. The contract giving rise to the claim was concluded on 11 July 1989, the claim was intimated on behalf of the pursuers on 18 September 1990 and a summons was served on the defenders on 7 July 1994. Here a debate took place on the defenders' minute for dismissal for want of prosecution of the action. Here a detailed chronology was provided on behalf of the defenders and sought to persuade the court that:- (1) there had been both inordinate and inexcusable delay; and (2) there was an element of unfairness having regard to the particular circumstances of the delay. It was submitted on behalf of the pursuers that there had not been inexcusable delay in the case, and the period of delay must be looked at as a whole as to do otherwise would suggest that a short period of inexcusable delay tainted the whole period. Here the court considered the various distinct periods of time in the case to deteremine whether there had been inordinate and inexcusable delay, resulting in an added element of unfairness to the defenders specific to the factual context of the case.

CHRYSALIS SCOTLAND LIMITED v CLYDESDALE BANK INSURANCE BROKERS LIMITED [2008] CSOH 144

Thu, 16 Oct 2008 12:31:00 GMT

Action for damages for professional negligence. Advice, on an investment, had been given to the pursuers by a finance planning manager employed by the defenders. The investment amounted to one million pounds. The advice was to invest in Clerical Medical Premier Offshore with Profits Bond. Disputed, whether the defenders failed to advise of the possibility of a Market Value Adjustment ('MVA') being applied, were the Bond to be cashed earlier than 2012. Whether the defenders failed to mitigate their loss by encashing the bond on realisation of the existence of the MVA. Whether there had been contributory negligence on the ground that the pursuer should have read documents of advice following direct advice from the defenders. Defenders held liabile with no contribution by the pursuer. Award calculated as the difference between the amount realised on encashment and the sum they would have obtained at that date had they placed sum in a deposit.

Winters v Mishcon de Reya (Ch) 15/10/08

Wed, 15 Oct 2008 00:00:00 GMT

The professional conduct rules governing solicitors may well not create a private law right actionable at the suit of a client.

Pickthall v Hill Dickinson LLP and Martindale (Ch) 13/10/08

Mon, 13 Oct 2008 00:00:00 GMT

In a claim for professional negligence in respect of the preparation of a share agreement the Claimant’s loss arose at the point the chance of obtaining a better agreement i.e. at the date the agreement was entered in to. Although at the time the Claim Form was issued the cause of action was vested in his trustee in bankruptcy as the Claimant always intended to pursue the claim by way of assignment the claim was not an abuse of process. Both the Claim Form and particulars of claim should be amended to reflect the assignment.

June Greenhorn (A.P.) v. South Glasgow University Hospital Trust [2008] CSOH 128

Tue, 09 Sep 2008 18:20:00 GMT

Proof:- The pursuer underwent a hysterectomy in December 1994 and thereafter developed symptoms of incontinence, for which she received extensive medical treatment. On 26 August 1999 in the course of an operation she suffered serious blood loss, which ceased only after pelvic vessel embolisation had been carried out following an emergency angiography which had revealed leakage of blood from a branch of the right iliac artery. In this action the pursuer claimed that her blood loss was caused by uncontrollable haemorrhage from the branch of the right iliac artery due to one of the doctors who performed the operation having damaged the right ileopectineal vessels as a result of having negligently inserted sutures near those vessels and too laterally deep in the right pelvis and the blood loss resulted in a neurological injury. Here the court applied the test for medical negligence, namely, whether the doctor in question was guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care, and in particular whether Dr Lingam was professionally negligent in her performance of the colposuspension.

Dayman v Lawrence Graham (a firm) [2008] EWHC 2036 (Ch) (28 August 2008)

Thu, 28 Aug 2008 00:00:00 GMT

Lawyers: A firm of solicitors, retained to act for the wife of one of its partners, will be vicariously liable for any omission to provide legal advice even where that advice was to be provided by the husband who, as it subsequently emerged, had been concealing his true financial affairs from his wife and his firm. In the absence of any suspicion of undue influence it would have been sufficient for the firm to provide such advice in writing. There was no need to have a face to face meeting. Where the alleged loss in a professional negligence claim is in respect of the loss of opportunity of negotiating a reduced liability with a third party, the Claimant has to show not only that there was a substantial chance of the third party negotiating but that on the balance of probabilities the Claimant would have accepted the deal proposed. The process the Court should adopt is to identify the least favourable offer that might have been acceptable to the third party (its bottom line figure) and ask whether that deal would probably have been accepted by the Claimant. If not then causation is not established. If so, then the Court must repeat the exercise with the next level of offer that the third party might have proposed. If on the balance of probabilities that would have been rejected then the Court must evaluate the chance that the third party would have proposed its bottom line figure. This exercise is repeated until the Court can identify the deal that is both closest to the third party’s bottom line that would probably have been accepted by the Claimant. Once that is identified then the Court must evaluate the chance that the third party would have proposed that deal. In assessing a third party’s hypothetical action, the more potentially relevant material there is before the court, the more ready a court should be to make a realistic assessment of the prospects of any proposed hypothetical course having eventuated and where relevant third party material, although available has, without proper explanation and justification, been withheld from the court, the court should not be astute to make allowances for its absence in its assessment of those prospects.

Platform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) [2008] EWCA Civ 930 (31 July 2008)

Thu, 31 Jul 2008 00:00:00 GMT

Surveyors: A surveyor would in a normal retainer be under an inherent obligation to inspect and value the right property such that inspection and valuation of a completely different property would be a breach of contract even when this mistake had arisen without any breach of the duty of care. Additionally a certificate of valuation of a particular property amounted to a warranty.

Shore v Sedgwick Financial Services Ltd. [2008] EWCA Civ 863 (23 July 2008)

Wed, 23 Jul 2008 00:00:00 GMT

Financial Advisers: The date of loss for limitation purposes in an action arising out of negligent advice to transfer benefits under an occupational pension scheme to a personal pension fund withdrawal scheme was suffered immediately on the transfer of benefits. The transfer did not involve a contingent liability as in Sephton because the personal scheme was immediately less advantageous because of its uncertain income stream which was contrary to his intentions and caused him detriment. The loss was the possibility of actual financial harm. It did not matter that the risk of loss to which the Claimant was exposed might not eventuate.

Roberts v Gill & Co & Anor [2008] EWCA Civ 803 (11 July 2008)

Fri, 11 Jul 2008 00:00:00 GMT

This was a claim against solicitors who had acted in the administration of an estate. The will provided that the whole estate should be passed to one beneficiary if that beneficiary met the applicable inheritance tax within a limited period of time. Otherwise the estate was to be distributed among residuary beneficiaries. One of the residuary beneficiaries brought an action alleging that the administrators had failed in their duty to him in distributing the estate the primary beneficiary despite no payment of the inheritance tax. During the course of his personal proceedings, and after the limitation period had expired, this residuary beneficiary sought to amend his claim to bring a representative claim on behalf of all the residuary beneficiaries. The application was refused on the basis that the claim would require the addition of a new party, the personal representative, which was not strictly necessary to the personal claim. Generally a beneficiary will not be permitted to bring a representative claim save in exceptional circumstances as described in Hayim ‘which embrace a failure, excusable or inexcusable, by the trustees in the performance of a duty and by the trustees to the beneficiary to protect the trust estate, or to protect the interests of the beneficiary in the trust estate.’

Nicolle & Anor v Saunders Morgan Harris Ltd [2008] EWHC 1518 (TCC) (02 July 2008)

Wed, 02 Jul 2008 00:00:00 GMT

Surveyors: Where a marine surveyor had not obtained sight of a non-standard design rigid inflatable boat’s technical file he was in breach of duty where despite the limitation on his survey he had advised as to the hull’s likely compliance with statutory and international codes.

Cuby & Anr. v Benjamin Kay and Brummer (a firm) (QB) 25/6/08

Wed, 25 Jun 2008 00:00:00 GMT

In proceedings against accountants in respect of tax advice as to the issue of dividends, a new cause of action based on a personal contractual retainer was permitted to be brought after the expiry of the limitation period as it arose out of the same or substantially the same facts as the pleaded claim in respect of the corporate retainer.

Moore Stephens (A Firm) v Stone & Rolls Ltd (In Liquidation) [2008] EWCA Civ 644 (18 June 2008)

Wed, 18 Jun 2008 00:00:00 GMT

Accountants: A company could not recover damages from its accountants in respect of allegedly defective audits where its losses arose out of its own illegality and the company was not the intended victim of the fraud. The company had been engaged in letter of credit fraud on banks and had been subject to the sole directing mind and will of one of its directors. The company became liable in deceit for these frauds and went in to liquidation. Its liquidators sought to recover these liabilities from its accountants on the basis that they should have identified the fraud when carrying out the audit. The accountants sought to rely on the ex turpi causa non oritur maxim. At first instance the Court held that this did not avail accountants where they had retained for the very purpose of detecting dishonesty. On appeal the Court of Appeal overturned this and held that the exception to attribution of knowledge under Hampshire Land only applied where the fraud was being carried out on the company. The Court of Appeal doubted the decision in Arab Bank Plc v Zurich Insurance Co and stated that it would not be enough to engage the Hampshire Land principle that an agent’s acts might result in harm to the company.

Ramco Ltd & Anor v Weller Russell & Laws Insurance Brokers Ltd [2008] EWHC 2202 (QB) (13 June 2008)

Fri, 13 Jun 2008 00:00:00 GMT

Insurance Brokers: After a fire in which the Claimants’ stock was destroyed insurers refused to settle the claims on the ground that the policy did not provide cover. In construing the policy the Court found partly for insurers on the basis that the wording of the policy only provided cover for damage to stock “held by the insured in trust for which the insured is responsible” and that this did not extend to the Second Claimant’s stock which was held without any contractual liability in respect of the same. The Claimants brought proceedings against their insurance broker seeking to recover damages in respect of the Second Claimant’s losses and the costs of the proceedings against insurers. As a bailee could insure the goods of a bailor the inclusion of the above quoted words was to limit the scope of the insurance and the brokers had failed to obtain a suitable policy. The Claimants were entitled to obtain the full value of the insurance as damages notwithstanding that they were bailees as they would be duty bound to pass on the additional amounts to the bailor.

Peter Alexander Hope Matthews v. Hunter and Robertson Limited [2007] CSOH 88

Wed, 11 Jun 2008 13:34:00 GMT

Procedure Roll:- The pursuer in this action was the executor nominate of Isabella Urquhart who died on 22 October 2005. As a firm of solicitors the defenders succeeded to the liabilities of the former partnership of Hunter & Robertson. In this action the pursuer sought damages as executor of the deceased, and contended that he had suffered loss and damage as a result of the negligence of the defenders' predecessors'. In 1975, the deceased and Mr Urquhart decided to separate and they agreed that the deceased would purchase Mr Urquhart's one half share in their home. In the disposition prepared by the defenders' predecessors in terms of the dispositive clause, Mr Urquhart disponed his "whole right, title and interest, present and future, in and to the said one half share pro indiviso of the said subjects". No steps were taken to evacuate the survivorship destination in respect of the deceased's one half share of the subjects and no advice was given by the defenders' predecessors to the deceased to the effect that such steps were necessary, if the deceased did not wish her share of the subjects to pass to Mr Urquhart in the event of her death. In consequence of the unevacuated survivorship destination, a one half pro indiviso share of the subjects did not vest in the pursuer, who was appointed the deceased's executor in 2003 following her death, by virtue of sections 14(1) and 36(2)(a) of the Succession (Scotland) Act 1964. As a consequence a one half pro indiviso share of the subjects was transferred directly to Mr Urquhart. In this action the pursuer sought half of the net proceeds after deduction of the costs associated with the sale of the subjects. The defenders denied any negligence. At debate on behalf of the defenders it was submitted that there was an insufficient basis for the pursuers to establish liability on the part of the defenders and challenged the relevancy of the averments that the pursuer had suffered loss.

L v The Law Society [2008] EWCA Civ 811 (10 June 2008)

Tue, 10 Jun 2008 00:00:00 GMT

An appeal of the Law Society’s decision to revoke student membership on the grounds that the student member did not have the necessary character or suitability to be a student member or ultimately to be permitted admission to the Solicitors’ roll should be heard in public under even though it involved consideration a number of criminal convictions which were spent under the Rehabilitation of Offenders Act 1974 as this did not amount to exceptional reasons under rule 10 of the Master of the Rolls (Appeals and Applications) Regulations 2001; the spent convictions were not confidential as such and a public hearing would not breach the SRA’s policy statement of confidentiality regarding information provided to it; and would not infringe Article 6 (1) or Article 8 of the ECHR.

Michelle Hepburn v. Royal Alexandra Hospital & Another [2008] CSOH 81

Tue, 03 Jun 2008 10:45:00 GMT

Motion for dismissal:- In this minute the defenders sought dismissal of the action on the basis of inordinate and inexcusable delay on the part of the pursuer in proceeding with the action. The pursuer raised a professional negligence action in 1998 against a consultant gynaecologist and a consultant plastic surgeon in connection with a rare congenital condition she suffered from which led to urinary symptoms for which she had sought medical treatment. The action was sisted on 28 May 1998 for further investigation and for a legal aid application to be processed. Nothing was done thereafter by the agents who were at that time instructed and who subsequently withdrew from acting on 21 September 2004. A new firm of solicitors received instructions in November 2004. It was submitted on behalf of the defenders that the delay between 1998 and the end of 2004 was inordinate and inexcusable and the pursuer could not justify it. It was submitted on behalf of the pursuers that the motion should be refused as it was a draconian power of last resort and the newly instructed agents could not be criticised in their actings and had performed satisfactorily since receiving their instructions in November 2004. Here the court considered whether the apparent delay had led to unfairness to the defenders.

Nicholson v Knox Ukiwa & Co (a firm) & Anor [2008] EWHC 1222 (QB) (02 June 2008)

Mon, 02 Jun 2008 00:00:00 GMT

This was a professional negligence action arising out of the allegedly negligent handling of an underlying professiaonal negligence action. In the underlying action judgment had been agreed and there was a mediation in respect of quantum. In advance of that mediation parameters for settlement were to be agreed for among other things fixing the mediator’s fee. These were agreed at £25,000 to £100,000 exclusive of interest. Interest was significant as the losses stemmed back 15 years and amounted to £300,000. Settlement was reached at £105,000. The Claimant alleged that he had not been properly advised that the figure included a sum for interest. The Court held that as the Claimant had seen the Tomlin order before it was signed he was likely to have been aware that it included interest and that on the evidence it was highly unlikely he would have agreed to it without knowing whether it contained interest.

K v Central & North West London Mental Health NHS Trust & Anor [2008] EWHC 1217 (QB) (30 May 2008)

Fri, 30 May 2008 00:00:00 GMT

Local Authority: The Claimant was allowed to argue at trial that the local authority owed him a duty in respect of its after-care services after providing him with care in the community even though the case was fraught with difficulties because the law was still developing and the decision in Clunis v Camden and Islington HA was not the last part of that development. The Claimant was also permitted to argue that in light of Artilces 3 and 8 of the ECHR the limitation on liability under s. 117 (2) of the Mental Health Act 1983 did not extend to the facts of the case although arguments based on Article 2 were hopelessly weak and could not be permitted to continue.

Daniel Stalker v. Lothian Health Board [2008] CSOH 77

Fri, 23 May 2008 07:19:00 GMT

Proof - Professional Negligence:- The pursuer, a 51 year old man, was married in 1980 and he and his wife had four children. Following the birth of their fourth child in 1995 the pursuer decided to have a vasectomy. On 7 May 1996 he attended the Family Planning and Well Woman Clinic at 18 Dean Terrace, Edinburgh for a vasectomy under local anaesthetic. In this action the pursuer claimed that in the course of the operation he sustained injury as a result of the professional negligence of the surgeon who was employed by the defenders. The case proceeded to proof and the issue in question was whether the injury suffered by the pursuer during the course of the vasectomy was caused by the professional negligence of the surgeon.

Daniel Stalker v. Lothian Health Board [2008] CSOH 77

Fri, 23 May 2008 07:19:00 GMT

S & Ors v Chapman & Anor [2008] EWCA Civ 800 (20 May 2008)

Tue, 20 May 2008 00:00:00 GMT

Schools: A claim was brought against the board of governors of his son’s school in respect of the education provided. The Particulars of Claim alleged that the school had negligently discharged its duty to properly educate and intregrate the sone into its school and that this has caused both the son and his parents to suffer personal injury. However there was no further praticulariseation with any clarity of the grounds on which the acitons in negligence were founded. Generally courts would be loathe to uphold a decision to strike out for lack of sufficiency in the particulars of claim. However where a party’s particulars of claim failed almost entirely to specify and particularise allegations of negligence and damage that were integral to the proper advancement of the case and despite opportunity to amend, the Claimant had failed to do so then the particulars of claim should be struck out for lack of sufficiency.

Blass v Randall [2008] EWHC 1007 (QB) (14 May 2008)

Wed, 14 May 2008 00:00:00 GMT

Vets: The Claimant had purchased a horse after a pre-purchase examination by the vet. The vet knew that the horse had undergone procedures known as neurectomies which would preclude the horse from competing in international dressage competition. The vet claimed that she had pointed out the neurectomy scars to the Claimant and on the basis of that evidence and in the absence of any knowledge of the Claimant’s apparent (but not accepted by the Court) intention to compete at international dressage level the vet was not in breach of duty.

Chyc v General Medical Council [2008] EWHC 1025 (Admin) (09 May 2008)

Fri, 09 May 2008 00:00:00 GMT

Professional Conduct: A doctor found guilty of serious professional misconduct lost his appeal on the basis that the panel had been entitled on the evidence to come to the conclusions of fact that they had. The doctor had been accused of a sexually assaulting a patient during a domiciliary visit, behaving indecently towards a work colleague and failing to refer a number of patients to specialist as well as administrative failings. The panel’s decision on the charges was open to its members having had the benefit of detailed submissions from both sides and the advice of a legal assessor.

Cook and M&S Tarpaulins Ltd v Green & Ors (Ch) 2/5/08

Fri, 02 May 2008 00:00:00 GMT

Accountants: The directors and shareholders of a company (X) arranged a scheme whereby they could sell their shares in X to another company Y set up by them for that purpose. Y would fund the purchase of their shares with a loan from X. In apparent compliance with Companies Act 1985 s. 155, the directors instructed the accountants to perform an audit of X in order that they could sanction such a loan. Once the transaction was completed it was discovered that the directors had significantly over-valued their shares in X. The directors then carried out further dissipation of X’s remaining liquidity. The company in liquidation sought to recover damages from both the directors and the accountants. It was said against the accountants that they had failed to carry out a competent report. The directors then argued that they could recover a contribution from the accountants because their own liability for damages arose out of the same loss. The Court accepted that both were liable for the same damages and that as the directors had profited from the windfall over-valuation they should repay the company the difference between the true value of the shares and the sums they received and the accountants should pay the balance.

Manches LLP v Green (t/a Green Denman & Co) [2008] EWHC 917 (QB) (29 April 2008)

Tue, 29 Apr 2008 00:00:00 GMT

The solicitors had acted for financial advisers in a claim against a pensions scheme company on the basis that the latter had induced one of the financial adviser’s clients to switch from a commission based scheme to a non-commission based scheme. Solicitors and Counsel had advised that the evidence of the third party’s financial director would be highly relevant to show that the client would have stayed with the commission based scheme but for the pensions scheme company’s actions. The financial director was not contacted until much later and his evidence was not particularly supportive of the financial advisers. The financial advisers sought to avoid payment of the balance of fees due and recover sums paid. First it was said that the solicitors should have ascertained early on what the evidence of the financial director was to have been. The Court rejected this on the basis of the evidence which was that the reason for not approaching the financial director was at the financial advisers’ request. The second ground was that as the matter had been handled by an unqualified managing clerk with over thirty years experience whom the solicitors had mistakenly described as a partner in their initial retainer later, there was a fundamental breach of duty as they had expected the services of a qualified solicitor. This failed on the basis that the solicitors had advised subsequently that the managing clerk was unqualified and this had been accepted. Finally liability for the outstanding costs was denied on the basis that the bills issued were not signed by a partner. This again failed on the evidence.

Perkin & Anor v Lupton Fawcett (a firm) [2008] EWCA Civ 418 (24 April 2008)

Thu, 24 Apr 2008 00:00:00 GMT

Solicitors: The Claimants were shareholders in a company whose value was mainly represented by debts owed to it by customers. In selling their shares the purchaser wished to retain part of the purchase price pending determination of the recoverability of the debts. The parties put in place a mechanism to achieve this which involved the Claimants providing a warranty that the debts would be recovered within a limited period of time and a warranty to pay a sum equivalent to that. During negotiations the purchaser resisted the Claimants’ request that their warranty be subject to the purchaser’s use of reasonable endeavours. When advising the solicitor had misunderstood the effect of the clause, but held that on the balance of probabilities the purchaser would not have agreed to any other term. In overturning the decision the Court of Appeal held that it was very difficult to say that there was no chance of negotiating a clause that they believed had been agreed and awarded damages on a loss of a chance basis.

Ellis v The Law Society [2008] EWHC 561 (Admin) (23 April 2008)

Wed, 23 Apr 2008 00:00:00 GMT

The tribunal had been entitled to suspend a solicitor indefinitely where in the course of complaint proceedings he had made numerous allegations against the Law Society and the judiciary of corruption and perversion of the course of justice.

Hibbert Pownall & Newton (A Firm) v Whitehead & Anor [2008] EWCA Civ 285 (04 April 2008)

Fri, 04 Apr 2008 00:00:00 GMT

Solicitors: Claims were brought against counsel and solicitors in respect of a wrongful birth claim with even more tragic consequences than normal in such cases. In 1995, before the trial of her claim against the hospital authority, the mother committed suicide. The effect of this was that any claim for future care was limited to the period between birth and her death. The proceedings were adjourned sine die in 1995. In the absence of any further steps, the authority applied to strike out the proceedings for want of prosecution. Before the strike out hearing the claim was compromised for £20,000 by the administrator of the mother’s estate. It was said that the solicitors should have brought the matter on for trial before 1995 and accordingly the sum recoverable by the mother would have included ongoing future losses. It was also alleged the settlement for £20,000 was at an undervalue. A further claim was brought by the father against solicitors for failing to advise and prosecute a clam on his behalf against the local authority. The Court of Appeal held that although the solicitors had been in breach of duty damages should not include any future losses. In terms of the father’s personal claim, as he had been separately represented in contested custody proceedings, the solicitors were not retained by him other than in his role as administrator, did not assume responsibility to him and the only basis for a duty of care would be on the “fair, just and reasonable” basis. Although the solicitors were concerned to protect the infant’s claim for future care costs it did not give rise to a duty to the father particularly in the context of the contested litigation. Obiter, Laws LJ noted that any claim by a father for ‘wrongful birth’ would be subject to many difficulties. Rix LJ differed on this point indicating that in certain cases such a claim may well succeed.

Salsbury v The Law Society [2008] EWHC 889 (Admin) (18 March 2008)

Tue, 18 Mar 2008 00:00:00 GMT

Professional Conduct: A solicitor who acted as clerk to the trustees of a school in a personal capacity received payment on an ad hoc basis by cheque. The solicitor altered a cheque made out to him so that he received £1,000 extra. On prosecution for theft the solicitor received a conditional discharge on the basis that he believed he was entitled to the additional money. The Law Society’s subsequent decision to strike him from the roll was disproportionate as the case fell within the small group of residual cases where striking off was inappropriate and suspension was more appropriate.

Rind v Theodore Goddard (a firm) & Ors [2008] EWHC 459 (Ch) (11 March 2008)

Tue, 11 Mar 2008 00:00:00 GMT

The solicitors had advised on a trust settlement. As a result of allegedly negligent advice the settlor had retained a residual interest in the settled property exposing the estate to inheritance tax that could otherwise have been avoided. A claim by the residuary beneficiary of the estate would not be struck out because of the Court of Appeal decision in Daniels v Thompson. It was arguable that the residual beneficiary was owed a duty of care even where he was not identified at the time of the advice given.

Yerolemou v The Law Society [2008] EWHC 682 (Admin) (11 March 2008)

Tue, 11 Mar 2008 00:00:00 GMT

Professional Conduct: It was inappropriate to strike a solicitor off the roll where he had failed to comply with undertakings to register charges on property on the behalf of mortgage lenders and his only previous misconduct had been an offence of incorrectly holding funds in an office account and his explanation for the former was that he had been under pressure of time as a result of the intervention in his practice.

Watkins & Anor v Jones Maidment Wilson (A Firm) [2008] EWCA Civ 134 (04 March 2008)

Tue, 04 Mar 2008 00:00:00 GMT

In a claim for wrongful advice in respect of a building agreement, the claimants would if properly advised have had the chance to negotiate a better agreement. That chance was an immediate loss once the agreement was entered in to leading to a completed cause of action against the solicitors. There was no separate cause of action for a residual claim for loss of a chance of renegotiation. The claim was therefore statue barred.

Burke v Chapman & Chubb 29/2/08 (QB)

Fri, 29 Feb 2008 00:00:00 GMT

In divorce proceedings the husband became insolvent before a property adjustment order was made. The wife brought proceedings against her solicitors alleging that they had failed to take sufficient steps to advise her of the effect of bankruptcy on her ancillary relief and that she should not defer seeking a decree of divorce absolute until financial matters had been settled. Although in breach of duty for failing to advise her of the effects of a bankruptcy order on her ancillary relief claim this did not cause the loss complained of. The parties were so hostile that there was no realistic possibility of a negotiated settlement.

Fulham Leisure Holdings Ltd v Nicholson Graham & Jones (A Firm) [2008] EWCA Civ 84 (28 February 2008)

Thu, 28 Feb 2008 00:00:00 GMT

The Claimant company and its owner sought to acquire Fulham football club. The vendors wished to keep a stake in the club and so the vehicle for the acquisition was a joint venture company in which the Claimant was to hold “A” shares and the vendors “B” shares. The vendors were protected by certain provisions in the Articles of Association whereby as long as the “B” shares represented at least 10% of the nominal value of the issued share capital, their written consent was required before certain steps could be taken. In a previous draft of the shareholders’ agreement provided that once the Claimant company’s owner had invested over £60 million in the joint venture company he could subscribe for further A shares at part without the need for the consent of the B shareholders. That was omitted from the executed draft and the owner eventually bought out the vendors’ shareholding. He sought to recover that sum from the solicitors who had advised him and the Claimant company in respect of the acquisition. The burden of proof was on the Claimant to satisfy the judge that a probable explanation other than omission of the solicitors ought to be rejected and it was very unlikely that solicitors would have removed a clause from a draft unless they understood the position had changed.

Hicks v Russell Jones & Walker [2008] EWCA Civ 340 (29 February 2008)

Thu, 28 Feb 2008 00:00:00 GMT

The Claimant obtained permission to appeal. The Court of Appeal referred at the behest of the defendant solicitors that the trial judge determine a further question the result of which was that the appeal stood no prospect of success. The Claimant then sought to amend its grounds of appeal on the basis that the judge was predisposed to find against the Claimant. Although something the Claimant evidently believed, there was no material on which such an objection could properly be sustained.

Realstone Limited v. Messrs J & E Shepherd & Others [2008] CSOH 31

Mon, 25 Feb 2008 11:32:00 GMT

Procedure Roll - Relevancy of Pleadings:- This was an action by a developer against chartered surveyors arising out of alleged professional negligence in the preparation of a plan of a plot of ground. The defenders challenged the relevancy of the pursuers' pleadings at debate and sought to have the action dismissed. The pursuers sought to have the defenders' plea to the relevancy repelled. It was submitted on behalf of the defenders that the pursuers had not pleaded a relevant case that the defenders owed them a common law duty of care to avoid financial loss. Counsel on behalf of the pursuers invited the court to repel the defenders' plea-in-law to the relevancy and to allow a proof on the basis that the court could conclude that a duty of care arose in the averred circumstances. Here the court considered whether the action should be dismissed on the relevancy of the pleadings, in particular, whether, even if the pursuers were to prove their record in all material points, the action would nonetheless be bound to fail.

Standard Life Assurance Ltd v Oak Dedicated Ltd & Ors [2008] EWHC 222 (Comm) (13 February 2008)

Wed, 13 Feb 2008 00:00:00 GMT

Insurance Brokers: Standard Life was exposed to multiple low value claims from retail customers in respect of mortgage endowment advice. Under its policy it had cover for £100 million excess £25 million. The aggregation clause for calculating the excess was in respect of “each and every claim and / or claimant”. This did not permit the aggregation of related claims made by separate claimants notwithstanding that the effect was to render the cover almost useless and the market would not have understood the words to have that effect. The placing brokers were in breach of duty despite the problem not have been identified by solicitors who were instructed to consider other aspects of the policy. Although Standard Life was an insurer no deduction should be made for contributory negligence a because the brokers had repeatedly reassured Standard Life that it had cover in respect of its liability for claims which in their nature were individually likely to be well under the policy excess but which together might exceed that figure.

Leonard & Anor v Byrt & Ors [2008] EWCA Civ 20 (29 January 2008)

Tue, 29 Jan 2008 00:00:00 GMT

Lawyers, Valuers and Experts: The Claimants’ plans to sail around the world in their newly commissioned yacht and then offer it for charter out of Spain were dashed when the steering failed on her maiden voyage in 1990. In May 1994 proceedings were brought against the boat builders, marine surveyors and designers. For the most part they were struck out for delay on 13 November 2002 for delay. Subsequent proceedings were brought against the Claimants’ solicitors, expert witness and barrister alleging that had it not been for their respective breaches of duty the Legal Services Commission would have granted them further public funding. There was no real prospect of showing a breach of duty. The barrister had advised correctly that there would be difficulties in introducing a report from a second expert and his advice that it might be adopted by the current expert was appropriate. The allegations against the late expert professional were based on an attendance note of limited significance. The complaint against the former solicitor that in one representation to the Legal Aid Board he had not pursued their interests sufficiently strongly overlooked the assiduous efforts made on previous occasions. Similarly the prospects of amending the claim some ten years after the matters complained of and seven years after commencement was negligible and accordingly there was no real prospect of establishing causation.

Martin v Triggs Turner Barton & Ors (Ch) 25/1/08

Fri, 25 Jan 2008 00:00:00 GMT

Lawyers, Valuers and Experts: A widow brought proceedings against her late husband’s solicitors in respect of their preparation of his will and the administration of his estate. An application for specific disclosure of the solicitors’ estate administration files was resisted. Before the lunch time adjournment the Deputy Master indicated to the solicitors’ counsel that disclosure would be ordered and that the mechanics should be resolved over the adjournment. It was agreed that the Claimant’s could inspect the files and prepare a list and the issue of costs reserved. This was recorded in the order together with an order that the solicitors pay the costs of the application in their entirety. On appeal it was held that the parts of the order dealing with disclosure could not be taken as being part of a consent order or compromise. Although it was commonplace for a deduction to be made from the costs sought and the Master’s Order was equivalent in its effect to an order for indemnity costs, it was within the Master’s discretion.

Cheshire Building Society v Dunlop Haywards (DHL) Ltd & Ors [2008] EWHC 51 (Comm) (18 January 2008)

Fri, 18 Jan 2008 00:00:00 GMT

Surveyors: In a case of alleged mortgage fraud, summary judgment was appropriate where the Defendants had not offered a positive case in response to the alleged over valuation and there were no prospects of obtaining any assistance from the individual surveyor involved.

Stuart v Goldberg & Ors [2008] EWCA Civ 2 (17 January 2008)

Thu, 17 Jan 2008 00:00:00 GMT

Abuse of Process: A claimant who kept a second claim in reserve was at risk of being found to have abused the court’s process. It might not be enough simply to alert the proposed defendant to the second action. However on the facts of the case (where a party had chosen to pursue an undertaking against a law firm), it was not an abuse of process to subsequently bring a claim for inducement and misrepresentation although the factual grounds for the matters at issue were very similar, because it was reasonable to seek an early determination of the undertaking issue. Delay alone was not a factor in determining whether the second claim amounted to an abuse of process.

Pritchard Joyce & Hinds v Batcup & Anor [2008] EWHC 20 (QB) (17 January 2008)

Thu, 17 Jan 2008 00:00:00 GMT

Barristers: A claim against a client’s former lawyers in respect of a missed limitation expiry meant that the subsequent expiry of a limitation date in respect of the professional negligence action was within the scope of instructions of counsel instructed. The junior barrister was aware that the solicitors were instructed in respect of a potential claim before the limitation period ran out and was liable even where specific details were not known. Counsel was required to share the greater share of blame.

Walker v. The Royal College of Veterinary Surgeons (RCVS) (21 November 2007) [2007] UKPC 64 (21 November 2007)

Fri, 21 Dec 2007 00:00:00 GMT

Professional Conduct: Where a vet with an otherwise unblemished record had backdated the entries of two vaccinations by 14 days or less to save the animals having to recommence a vaccination programme the punishment of removal from the register was disproportionate in the absence of personal gain and taking in to account the shame and disgrace already suffered. A suspension for a period of six months was appropriate.

Low, R (on the application of) v General Osteopathic Council [2007] EWHC 2839 (Admin) (15 November 2007)

Sat, 15 Dec 2007 00:00:00 GMT

Professional Conduct: Although the seriousness of a criminal offence measured by the sentence imposed was not necessarily a reliable guide to its gravity in terms of maintaining public confidence in a particular profession, the particular offences of possession of indecent photographs of children were so serious whatever the profession the Professional Conduct Committee was entitled to regard them as being of grave concern in terms of damaging public confidence. The Professional Conduct Committee had to consider the possibility of reoffending in the particular professional context and given the very close relationship between an osteopath and his patient the committee was entitled to conclude that even a low risk of reoffending was not an acceptable risk. The removal from the register was a proportionate sanction.

Kamar v Nightingale & Anor [2007] EWHC 2982 (QB) (14 December 2007)

Thu, 13 Dec 2007 00:00:00 GMT

Barrister: A personal injury claim for mental distress against a barrister arising out of an alleged failure to introduce good character evidence in a criminal trial some nine years ago court was time barred. The judge should not have extended the limitation period under s. 33 of the Limitation Act 1980 as the delay was culpable and the prejudice to the barrister in having to rely on an expert's attempting to reconstruct the mental state of the Claimant some nine years previously and the uncertainty of the impact of the good character evidence could not be balanced.

Seventh Earl of Malmesbury & Ors v Strutt & Parker (a Partnership) [2007] EWHC 2641 (QB)

Mon, 10 Dec 2007 00:00:00 GMT

Costs: Where a party took an unrealistic and unreasonable stance at mediation it was equivalent to an unreasonable refusal to engage in mediation and could be marked in costs in accordance with the principles in Halsey. Further reductions to the Claimants’ costs were made on the basis that they had exaggerated their claims and had lost on discrete issues.

Evans v Birmingham & the Black Country Strategic Health Authority [2007] EWCA Civ 1300 (06 December 2007)

Thu, 06 Dec 2007 00:00:00 GMT

Although the health authority accepted that it was in breach of duty in failing to control drug levels during labour, the judge had been entitled to find that this was not causative of the hypoxic event that caused damage to the brain. Although one part of the judgment was not fully reasoned that did not undermine the ultimate finding on causation.

Mohammed v The General Medical Council (Admin) 21/11/07

Wed, 21 Nov 2007 00:00:00 GMT

Professional Conduct: The medical practitioner had previously been registered as a doctor with the Irish Medical Council where he had been requested to prepare a medical report. He agreed to do so and accepted payment. No report was prepared. The medical practitioner did not respond to the complaint when the Irish Medical Council commenced its investigations and he was eventually suspended for six months. Thereafter the Irish Medical Council notified the General Medical Council who in turn suspended Dr Mohammed for thee months on the basis that his fitness to practise was impaired. This was a proportionate sanction in the circumstances.

William Henderson & Another v. Chris Sayer, t/a Chris Sayer Solicitors [2007] CSOH 183

Tue, 20 Nov 2007 19:03:00 GMT

Professional Negligence – Procedure Roll:-The defenders acted for the pursuers when the pursuers bought a property known as Lakeside, Torphichan, West Lothian for £793,763 which they intended to live in it after the first pursuer's retirement. The pursuers plead that the solicitor failed to advise them of a burden in the Land Certificate which stated:- "THIRD [the subjects] shall be used as a single dwelling house in all time coming solely for the occupation of one person and his or her family …and said person must be solely or mainly employed in the management and or running of the fish hatchery and sport fishery operated on the planning unit." It was averred that before the conclusion of missives the defender should have advised the pursuers as to the burden on the title and its implications. In particular, that failure to comply with the title burdens would be a breach of planning control, and thus the relevant planning permissions could be revoked. At debate counsel for the defenders submitted that the action should be dismissed. Here the court considered whether the defender was bound to be assoilzied due the irrelevancy of the damages claim.

Taylor Walton (A Firm) v Laing [2007] EWCA Civ 1146 (15 November 2007)

Thu, 15 Nov 2007 00:00:00 GMT

Where the foundation of a professional negligence action rested on a challenge of the findings of fact in an earlier case between the protagonist and a third party in which the defendant had participated as a witness and as solicitor for one of the parties then it should be struck out as an abuse of process.

Williams v General Medical Council [2007] EWHC 2603 (Admin) (09 November 2007)

Fri, 09 Nov 2007 00:00:00 GMT

The evidence of a pathologist had led to the conviction of the mother for the deaths of her two children. On overturning the conviction the Court of Appeal criticised the evidence of the pathologist for failing to include in his evidence the possibility of death by natural causes. In responding to a complaint against the pathologist the Fitness to Practise Panel was advised as to the appropriate test. Where the Court of Appeal judgment was before the panel it was unrealistic for it to disregard it and the panel were capable of considering it in context and that it was for the panel to make its own decision in respect of the issue before it. While the consequences of an act of misconduct were not directly relevant to the breach, they were relevant to the context and could bear on the obligation undertaken by the professional, issues of foreseeability and other matters which were relevant to consideration of the practitioner’s conduct. Mitigation was only relevant to the sanction to be imposed and should not impact on whether or not a finding of serious professional misconduct had been made. Although there had been a 15 month delay in bringing the complaint this had not caused any prejudice.

Rumbold v The General Medical Council [2007] EWHC 2569 (Admin) (09 November 2007)

Fri, 09 Nov 2007 00:00:00 GMT

Where the practitioner had downloaded and stored indecent photographs of children on his computer it was open to the GMC to take in to account the nature and seriousness of the criminal offences and the fact that the practitioner’s name remained on the Sex Offender’s Register. The panels’ decision on the understanding of the practitioner was open to it and its extension of his suspension from practice for a further 12 months was justified.

Shore v Sedgwick Financial Services Ltd & Ors [2007] EWHC 2509 (QB) (08 November 2007)

Thu, 08 Nov 2007 00:00:00 GMT

The Claimant’s financial advisers failed to advise him as to the benefits obtainable by purchasing an annuity and the potential benefits under a personal pension fund withdrawal scheme and a comparison of their respective risks and benefits. For the purposes of limitation the claimant had not suffered loss at the time of the transfer as he was then only exposing himself to the risk of a possible future loss. Rather the period ran from when he had become demonstrably worse off. As he had knowledge of his actual loss of entitlement to income and of income its causes and the relevant conduct of the financial advisers more than three years before he commenced proceedings and the limitation period had run seven months before he commenced his action, his claim was to be dismissed.

R (on the application of Hide & Ors) v Staffordshire CC (Admin) 26/10/07

Fri, 26 Oct 2007 00:00:00 GMT

Despite the Court concluding that the solicitor advocate had conducted the proceedings unreasonably and negligently and that they were doomed to failure no order for wasted costs would be made where the consequences would be the possibility of the solicitor advocate being made bankrupt.

Moody v General Osteopathic Council [2007] EWHC 2465 (Admin) (25 October 2007)

Thu, 25 Oct 2007 00:00:00 GMT

An osteopath had taken a limited history on a patient’s first visit. At the second appointment the patient initially indicated an improvement. The following day he reported a deterioration. The osteopath advised him to rest rather than go for an MRI scan that had been booked. There was no improvement. A scan a few days later indicated two prolapsed discs. The Professional Conduct Committee was entitled to find the osteopath guilty of professional incompetence because the case history notes were severely lacking in detail and there had been a failure to evaluate the patient’s condition. The decision to remove him from the register was appropriate given the general and fundamental flaw in the osteopath’s approach to practice.

Al-Ruby v Quist Solicitors (A Firm) [2007] EWHC 2297 (QB) (11 October 2007)

Thu, 11 Oct 2007 00:00:00 GMT

Before instructing solicitors, the Claimant issued two sets of proceedings. The first was a libel action based on a letter written in February 1998. The claim form was issued in December 2003. The second was a claim for negligent misstatement based on a letter written on 9 March 1998. He issued the claim form in this latter action on 5 March 2004. The Claimant instructed the defendant firm in May 2004. The claim forms were not served in time and the actions became statute barred. The Defendant firm successfully struck out the claims. On appeal the Court accepted that the limitation period would not have been extended as there was no material to demonstrate that there was a realistic prospect that a court would have disapplied the primary limitation period in respect of the libel action and that the defence of qualified privilege would have applied in any event. The claim for negligent misstatement was bound to fail and could not be made good by way of a claim for negligence.

Man Nuzfahrzeuge AG and Anr v Freightliner Ltd and Ernst & Young (CA) 12/9/07

Wed, 12 Sep 2007 00:00:00 GMT

Ernst & Young were the auditors of a truck company which was 100% owned by Western Star. From 1997 the subsidiary’s financial controller manipulated the accounts. In 1999 whilst completing the accounts, the auditors were aware that Western Star was in negotiations to sell the subsidiary to Man and that they would be provided with the audited accounts. The Court of Appeal confirmed the trial judge’s reasoning that Ernst & Young owed no general audit duty to Western Star in respect of the loss claimed (the liability for damages for deceit arising from the financial controller’s statement). Ernst & Young would only owe a special audit duty if it knew and intended that their statement in the audited accounts would be communicated to and relied on by a particular person or class of person for a particular purpose in connection with a particular transaction. Although it was foreseeable that Western Star would rely on the accounts in negotiations with Man as presenting a true and fair view of the subsidiary’s financial position it was not established that Ernst & Young know that Western Star (via the financial controller) would make the representations to Man it did as to the accuracy of the 1999 accounts to Man. Similarly Ernst & Young had not assumed responsibility for the use made by the financial controller of the information provided. However Ernst & Young did owe a special audit duty to protect Western Star from the consequences of representations and warranties made and given by Western Star in the agreement for the sale of ERF on the basis of the accounts which Ernst & Young had audited.

Robinson v Cartledge & Ors (Cty Court) 10/8/07

Fri, 10 Aug 2007 00:00:00 GMT

The claim against the senior partner of a law firm arose out of instructions to prepare a will for a lady who was suffering from a brain tumour. The will was executed days before the lady was to undergo an operation. The will divided the lady’s assets save for her interest in a property in Kettlewell. The Claimant alleged that the solicitor omitted to include reference to the property despite the lady’s instructions. The solicitor successfully resisted the claim on the basis that he had been expressly instructed to make no mention of the property in the will and that there was no loss to the Claimant because a subsequent will had been signed which left everything to a third party. The Court rejected the assertion that the subsequent will was a forgery.

Robinson v Cartledge & Ors (Cty Court) 10/8/07

Fri, 10 Aug 2007 00:00:00 GMT

IFE Fund SA v Goldman Sachs International [2007] EWCA Civ 811 (31 July 2007)

Tue, 31 Jul 2007 00:00:00 GMT

The Defendant was the arranger of a syndication of credit provided to a French purchaser of an English company. Between the date of the information memorandum and the date of investment the arranger had received information from accountants giving rise to the possibility that the previous information supplied was or might have been materially incorrect. After the investment accounting frauds were discovered in the English company leading to it going in to receivership. This led to a restructuring of the French purchaser and a bondholders’ agreement which included a provision under French law preventing the bringing of proceedings of any kind. The claim failed because not only did the arranger not make the implied representations or owe the duty of care alleged but any such claim was barred by the terms of a subsequent bondholders’ agreement.

Carter v Basildon & Thurrock University Hospitals NHS Foundation Trust [2007] EWHC 1882 (QB) (30 July 2007)

Mon, 30 Jul 2007 00:00:00 GMT

The Claimant’s late wife had given birth at the Defendant hospital and returned home the following day. The baby remained in the hospital’s special care unit. Six days later the Claimant’s wife had complained of headaches in the mornings. The following day she was too unwell to attend hospital. She subsequently suffered fits and fell unconscious. The following day she passed away of cerebral vinous sinus thrombosis. The hospital admitted breach of duty and accepted that had she been admitted for assessment she would have been given heparin. The hospital failed in its argument that the administering of heparin would not have prevented her death.

Stone & Rolls Ltd v Moore Stephens (a firm) [2007] EWHC 1826 (Comm) (27 July 2007)

Fri, 27 Jul 2007 00:00:00 GMT

Allegations of negligence against the company’s auditors on the basis that they should have “blown the whistle” in respect of a letter of credit fraud on banks were met with the response that no recovery could exist where the loss arose through the conduct of the company’s own controlling mind. The applications for summary judgment failed as to permit recovery would not offend the conscience of the ordinary citizen particularly where the principal beneficiaries would be the creditors of the company and not the company.

Raja v Van Hoogstraten & Ors [2007] EWHC 1743 (Ch) (26 July 2007)

Thu, 26 Jul 2007 00:00:00 GMT

The intervenor claimed damages from the Claimant estate and its solicitors for trespass and conversion by sequestrators in respect of enforcement of a writ of sequestration which had extended to its assets which had subsequently been set aside.

Stone Heritage Developments Ltd & Ors v Davis Blank Furniss (A Firm) [2007] EWCA Civ 765 (24 July 2007)

Tue, 24 Jul 2007 00:00:00 GMT

Solicitors were retained to act in connection with a development and sale of properties in Bolton. The Claimant entered into a development agreement with the landowners. The development might encroach on adjoining land owned by the local authority to which the Claimant believed it held possessory title. The Claimant instructed the solicitors not to concern themselves with the adjoining land. Subsequently the local authority took the point and ultimately the landowners were forced to purchase the land. By this stage the Claimant and the landowners had fallen out and proceedings were commenced. Once these were settled the Claimant sought to recover from its former solicitors on the basis that they should have included a grant of rights by the landowners in the event of its acquisition in the development agreement. Because the solicitors were not retained to advise on the commerciality of the transaction, their retainer was limited to preparation of a development agreement.

Veitch & Anor v Avery [2007] EWCA Civ 711 (12 July 2007)

Thu, 12 Jul 2007 00:00:00 GMT

The claimants ran a family hotel. They fell behind with loan repayments to their bank. The bank commenced possession proceedings. The solicitor wrongly advised that they were in default under the loan agreement and that they had no defence to the possession proceedings. Accepting such advice they did not defend the proceedings. Proceedings were brought for damages in negligence for the loss of the hotel, the business and their home alternatively for loss of a chance of being able to retain them. The judge had been entitled to find that although the loss of the hotel had been caused by the failure to make repayments in accordance with the consent order those terms had only been agreed to by reason of the solicitor’s advice and accordingly the failure to advise was responsible. However as the business was doomed to fail no recovery could be made.

Awoyomi v Radford & Anor [2007] EWHC 1671 (QB) (12 July 2007)

Thu, 12 Jul 2007 00:00:00 GMT

The decision removing the immunity of Counsel from suit in Hall v Simons had retrospective effect. Thus the Claimant’s action for negligence was time barred despite it having been issued within six years of the decision because the actual negligence had occurred some years before.

Vance v Taylor [2007] EWHC 1602 (QB) (06 July 2007)

Fri, 06 Jul 2007 00:00:00 GMT

After experiencing severe back-pain the Claimant was taken to hospital. He was diagnosed as having acute back sprain and prescribed various drugs. His condition did not improve. He began vomiting and sweating profusely. The Defendant attended to provide a home consultation. Shortly before the Defendant’s arrival the Claimant changed his shirt such that it was not obvious that he had been sweating. The Defendant checked leg movement but did not otherwise carry out a physical examination. He prescribed new medication which resolved the vomiting within two days. It was only after subsequent visits by a physiotherapist and an increase in pain that the Claimant was referred to a neurosurgeon. After a scan and further consultation the Claimant was diagnosed with an infection. The Claimant failed to show that the Defendant had been negligent in not undertaking a full physical examination or to admit him to hospital a second time and accordingly the infection had been prolonged unnecessarily. His response to the pain was appropriate as was that to the nausea. He could not have known about the sweating. Causation would have been very difficult to prove without really cogent evidence to in effect defy the medical probabilities – the infection had features that were unusual almost to the point of being unique.

David Truex, Solicitor (a firm) v Kitchin [2007] EWCA Civ 618 (04 July 2007)

Wed, 04 Jul 2007 00:00:00 GMT

A solicitor should consider at the outset whether or not a client might be eligible for legal aid. It was wrong for a firm to incur fees on a private basis and then to recommend that the client transfer to a legal aid firm as to the transfer to another firm after advice had been given and a relationship built up was more difficult than having a different firm involved from the outset.

David Truex, Solicitor (a firm) v Kitchin [2007] EWCA Civ 618 (04 July 2007)

Wed, 04 Jul 2007 00:00:00 GMT

Phelps v Stewarts (a firm) & Anor [2007] EWHC 1561 (Ch) (02 July 2007)

Mon, 02 Jul 2007 00:00:00 GMT

Where a sole practitioner had engaged a specialist firm to assist in respect of a discretionary trust, the retainer of the specialist firm was not limited to the drafting of the trust document. Without any express written limitation as to the retainer the specialist firm should have provided advice as was appropriate to the circumstances including the potential exposure to a tax charge of 20% above the threshold allowance.

Zambia v Meer Care & Desai (a firm) & Ors (No. 2) [2007] EWHC 1540 (Ch) (29 June 2007)

Fri, 29 Jun 2007 00:00:00 GMT

After judgment finding that some of the Defendants were liable for breach of fiduciary duty and others for conspiracy or dishonest assistance in breach of a fiduciary duty the Court made a number of findings related to consequential orders distinguishing between those liable for breach of fiduciary duties and the others. Neither compound interest nor indemnity costs could be claimed against those liable for conspiracy or dishonest assistance. Equally unlike those liable for breach of fiduciary duty those liable for conspiracy or dishonest assistance were entitled to be given credit for realisations by the Claimant. By contrast the Defendants would be jointly and severally liable for the costs. The Claimants use of five Counsel amounted to over representation and a deduction of 35% would be made.

Gregory v The Law Society [2007] EWHC 1724 (Admin) (28 June 2007)

Thu, 28 Jun 2007 00:00:00 GMT

The Solicitors Disciplinary Tribunal had been entitled to make an order under s. 43 of the Solicitors Act 1974 against an individual who falsely represented himself as a solicitor and sought legal fees despite that fact that he had not been dishonest.

White v Greensand Homes Ltd & Ors [2007] EWCA Civ 643 (28 June 2007)

Thu, 28 Jun 2007 00:00:00 GMT

In an action against building contractors for the foundations of a property subsequently damaged by tree roots, the contractors admitted during the pre-action process and in the Defence that they were the designers of the foundations. Subsequently the contractors applied to amend their defence on the basis that they had not been responsible for the design of the works. The party identified had been dissolved long before proceedings were issued and the limitation period in respect of a claim under the Defective Premises Act 1972 had expired after the admission in the pre-action protocol. However the Defendant should be allowed to amend its Defence as it would be more unfair for the trial to proceed on a wholly false basis when the Claimant still had a possible claim against the party identified in negligence.

Holt v Edge [2007] EWCA Civ 602 (22 June 2007)

Fri, 22 Jun 2007 00:00:00 GMT

The doctor was not liable for failing to diagnose a subarachnoid haemorrhage because the key symptoms were not present. Although the doctor had failed to ask the patient the relevant questions there was insufficient evidence to show that had he asked that the answers would have been such as to require immediate referral to hospital.

Ogunrinde & Anr v The Law Society (ChD) 25/5/07

Fri, 25 May 2007 00:00:00 GMT

The Law Society had acted properly in intervening in a solicitors’ practice where in two successive years there had been deficiencies in the firm’s accounts irrespective of whether or not the accounts of the firm’s external bookkeepers would have clarified the position.

Sutcliffe v BMI Healthcare Ltd [2007] EWCA Civ 476 (18 May 2007)

Fri, 18 May 2007 00:00:00 GMT

Following a routine knee operation the Claimant died after swallowing his own vomit. The allegation that the nursing staff had been negligent not to assess his consciousness in the morning was held not to be negligent. Although the preferred expert had not come across this particular event before, the court was entitled to prefer his evidence given his knowledge of morphine and anesthesia.

Connolly v Law Society [2007] EWHC 1175 (Admin) (17 May 2007)

Thu, 17 May 2007 00:00:00 GMT

Of 50 charges presented against the solicitor, the disciplinary tribunal had found 36 proved. Of those contested on appeal the Court found that (a) not paying Counsel’s fees having received the client’s payment for those fees was a breach of duty even without a fee note from Counsel; (b) the honest decision of a solicitor on an issue of professional judgment did not of itself give rise to a disciplinary defence. However where a solicitor acted with a significant risk of a conflict of interest he or she might be subject to a disciplinary offence; (c) oral instructions to act on behalf of a third party would normally not suffice except where justified by urgency. As a matter of practice the Law Society should not formulate charges that included “and / or” allegations comprising numerous alternatives. In such a situation the tribunal should make specific findings as to which charge had been proved.

Lawrence v Pembrokeshire County Council [2007] EWCA Civ 1446 15/5/07

Tue, 15 May 2007 00:00:00 GMT

In cases of child protection, social workers did not owe a duty of care to the parents of children wrongfully taken in to care. Such a duty of care could conflict with the primary duty owed to the children. The right to freedom from interference with family life under the Human Rights Act did not require such a duty.

Malmesbury & Ors v Strutt & Parker (a partnership) & Anor [2007] EWHC 999 (QB) (11 May 2007)

Fri, 11 May 2007 00:00:00 GMT

The surveyors acted on behalf of a trust in respect of several leases of land for car parking at Bournemouth International Airport. It was said that they failed to negotiate leases reflecting the rental income of the land as car parks. Contribution claims were brought by the surveyors against the trust’s lawyer. In relation to the negotiation of later leases of land the surveyor did not seek to determine what an appropriate rent should have been or the inherent value of the land. In determining the loss of opportunity the Court found that had the surveyor complied with his duty he would have negotiated an agreement of 10% of the net turnover of the car parks. In quantifying such loss it was appropriate to take a valuation approach rather than a loss of earnings style approach.

The Trustees of Edmond Stern Settlement v Simon Levy (QBD) TCC 11/5/07

Fri, 11 May 2007 00:00:00 GMT

In response to the surveyor’s claim for unpaid fees the trustees alleged a failure to supervise the extensive domestic works for which he had been engaged. The issues were sent to arbitration. The trustees applied to the court under sections 68 and 69 of the Arbitration Act 1996. Although an alternative construction was open to the arbitrator it was not for the court to interfere on that basis under section 69. The conduct of the arbitrator was not sufficiently untoward for section 68.

Whitehead & Anr v Searle & Anr [2007] EWHC 1060 (QBD) 9/5/07

Wed, 09 May 2007 00:00:00 GMT

The claim centred on allegations that the late Claimant’s lawyers had failed to prosecute with due expedition her claim for clinical negligence against the health authority and then advised her estate to enter in to a settlement at an under-value. Doctors had failed to identify from scans taken in pregnancy that her then unborn child was suffering from spina bifida. Before the case had been set down for hearing the Claimant committed suicide. On her death any claim she had for future care costs of her child was extinguished. There were then significant delays in applying for letters of administration and in appointing administrators. The Health Authority applied to strike out the claim for want of prosecution and abuse of process. Pending the application the claim was settled for £20,000. It was said that the claim should have been settled or brought to final resolution on a date on or before the suicide of the Claimant such that the damages would have extended to include the future costs of care of her child. Alternative claims were brought by the father and the child on the basis that they were owed a duty of care by the solicitors. Although the case was not vulnerable to strike out at the time of the Claimant’s death there still had been a breach of duty by the solicitors in not having had the matter set down for trial by that time. There was no basis for concluding that a reasonably competent solicitor would have concluded that there was a risk of suicide. Counsel had been negligent in not advising the husband to be joined to the proceedings and in advising acceptance at an under-value.

Phillips & Co & Anor v. Whatley (Gilbraltar) [2007] UKPC 28 (2 May 2007)

Wed, 02 May 2007 00:00:00 GMT

The employee of a construction firm was injured in an accident on 2 August 1994. A firm of Barristers and Solicitors failed to issue a writ and his action became time barred. Proceedings against the firm and its owner were not issued until 21 July 2003. Consequently the negligence complained of only related to the failure to issue proceedings between 21 July 1997 and 2 August 1997. For the first time before the Privy Council the Claimant sought to argue that damages should not be assessed on the traditional basis by assessing the prospects of success and assessing damages on a broad percentage basis, but rather to take an “all or nothing” approach in light of the decision in Greg v Scott. The Board refused to permit such an argument to be run.

Gouldsmith v Mid Staffordshire General Hospitals NHS Trust [2007] EWCA Civ 397 (27 April 2007)

Fri, 27 Apr 2007 00:00:00 GMT

Where the treating doctor should have referred the Claimant to a specialist the Bolitho test is inapplicable to the test of causation.

Hicks v Russell Jones & Walker (a firm) [2007] EWHC 940 (Ch) (27 April 2007)

Fri, 27 Apr 2007 00:00:00 GMT

The shareholders and former directors of a hotel company wished to pursue an action in conspiracy on behalf of the company against its financiers and accountants. Successful at first instance their complaints against their solicitors in respect of the handling of their appeal and in particular for failing to obtain new valuation evidence to be introduced on appeal. Although the failure by the solicitors to arrange a conference with Leading Counsel in sufficient time meant that it was too late to file evidence in reply, Leading Counsel would have advised in any event not to file such evidence.

Smith v Southampton University Hospital NHS Trust [2007] EWCA Civ 387 (26 April 2007)

Thu, 26 Apr 2007 00:00:00 GMT

During a successful operation to remove the Claimant’s potentially cancerous lymph nodes her right obturator nerve (controlling the abductor muscles of the right leg) was severed and her left external iliac vein was perforated leaving her with substantial disabilities. The risk of damage to the nerve as recognized had a risk of occurrence of less than 1%. Although the evidence of the treating doctor and the experts was to some extent supposition there was sufficient evidence before the Court to show that the surgeon had been negligent.

Bridge UK.Com Ltd (t/a Bridge Communications) v Abbey Pynford Plc [2007] EWHC 728 (TCC) (04 April 2007)

Wed, 04 Apr 2007 00:00:00 GMT

The engineering contractors failed to construct the foundations for the claimant printing company’s printing press within the contractual period of ten days and were liable for consequential losses including the cost of outsourced work, the cost of transport for that work, manufacturing disruption, wasted wages and for loss of profits and other wasted expenditure.

Rao v Central Liverpool Primary Care Trust [2007] EWHC 773 (QB) (04 April 2007)

Wed, 04 Apr 2007 00:00:00 GMT

After the GMC imposed supervisory requirements upon the Claimant’s continuation of his single handed general practice no suitable arrangements could be found before the time at which the requirements were set to commence. The local health authority in exercising its statutory responsibility for ensuring health care services were available to the local population appointed a locum to manage the surgery. Subsequently the GMC varied the supervisory requirements. However after the Claimant had undertaken a test, the supervisor determined that the supervision would not be effective in restoring the Claimant to a suitable level of practice. After subsequent hearings the Claimant’s name was removed from the official list and his application to join the supplemental list was not granted. The Claimant sued the local health authority for damages equivalent to the sums he claimed he would have earned until retirement. The local authority was entitled to set off in equity the sums it had expended in respect of the locum cover. Not only were the local authority not liable for the decision to suspend the Claimant but there was nothing wrong in the decision making process. Finally there was no contractual right to damages against the local health authority. His entitlement to payment was under the regulations.

Miah v Birmingham and the Black Country Strategic Health Authority [2007] EWCA Civ 290 (03 April 2007)

Tue, 03 Apr 2007 00:00:00 GMT

During the final stages of labour at the Claimant’s birth the umbilical cord had prolapsed. As a result he suffered from athetoid cerebral palsy which would have been avoided had he been born five minutes earlier. Although the events had taken place more than twenty-five years prior to the trial, the Court was entitled to find on the basis of the other evidence that the prolapse had not occurred prior to the inspection by the midwife.

Bishara v Sheffield Teaching Hospitals NHS Trust [2007] EWCA Civ 353 (26 March 2007)

Mon, 26 Mar 2007 00:00:00 GMT

Duty of Care. Whilst visiting the NHS Trust’s premises for career advice, the Claimant had suffered a severe migraine. She claimed that the NHS Trust was in breach of its general duty of care to her in ignoring her request for an ambulance and that she had suffered personal injuries. It was inappropriate before testing the Claimant’s evidence at trial to say that she had no prospects of being believed and that consequently summary judgment should not have been ordered.

Antoniades v East Sussex Hospitals NHS Trust [2007] EWHC 517 (QB) (16 March 2007)

Fri, 16 Mar 2007 00:00:00 GMT

Clinical Negligence. The Claimant was born with poor respiratory ability. Despite attempts by clinicians to establish a clear airway this was not achieved until a thick plug of mucus was removed from his trachea some 30 minutes after birth. The Claimant had begun to suffer severe and permanent brain damage 17 minutes after his birth due to the lack of oxygen to his brain. The NHS Trust was liable because the paediatric registrar had failed to report the blockage that he had discovered in the first endotracheal tube inserted. This contributed to a lack of understanding in the other clinicians. A subsequent failure had been not to implement his training of using suction directly through an endotracehal tube when narrow bore suctioning failed to establish the airway. Although the obstruction was rare, the fact of it should have been obvious at the latest 12 minutes after birth.

MacClancy v Carenza (t/a the Vine Riding & Livery Yard) [2007] EWHC 479 (QB) (16 March 2007)

Fri, 16 Mar 2007 00:00:00 GMT

Duty of Care. A riding instructor owed a duty to guard against presenting a nervous rider with an unfamiliar situation or circumstance. On the facts of the case there was no danger or appearance of danger on the course that the instructor should have warned about.

Vranicki v Architects Registration Board [2007] EWHC 506 (Admin) (16 March 2007)

Fri, 16 Mar 2007 00:00:00 GMT

Professional Conduct. An architect engaged to supervise had to take all reasonable steps to ensure that a project ran as smoothly as possible by advising clients on the appropriate contractual arrangements and monitoring the progress, identifying poor or defective workmanship and requiring it to be remedied and what should be done was done and done on time. A failure to do so could substantiate a finding of serious professional misconduct.

FFSB Ltd (Formerly known as Fortis Fund Services (Bahamas) Ltd v. Seward & Kissel LLP (The Bahamas ) [2007] UKPC 16 (13 March 2007)

Tue, 13 Mar 2007 00:00:00 GMT

Jurisdiction. The Administrator to a mutual fund that had collapsed brought contribution proceedings against the fund’s legal advisers. Where lawyers do not provide advice in a jurisdiction but know that their advice is likely to be communicated to and relied on by a client in a foreign jurisdiction it is at least arguable that to the extent that advice is negligent that the tort is committed within that foreign jurisdiction. Whilst a claim for contribution under the Bahamian Act was a statutory cause of action it was founded upon a tort within the jurisdiction. Where the potential liability of the law firm extended to preventing the fund from making improper investments then it could be liable for the “same damage” as the administrators. Permission to serve out of the jurisdiction was permitted on the basis that it was arguable that the writ was founded on a tort committed within the jurisdiction. The absence of that ground in the application notice was no bar to relying on it when the Court at first instance had heard full argument on the point.

JAC Richards v Swansea NHS Trust [2007] EWHC 487 (QB) 13/3/07

Tue, 13 Mar 2007 00:00:00 GMT

Clinical Negligence. Once the decision to deliver by emergency Caesarean section had been taken, the hospital owed a duty of care to deliver the Claimant as quickly as possible with the aim of delivering him within 30 minutes in accordance with the guidelines. Where the Defendant had provided no evidence of logistical constraints the Court was entitled to draw an inference that there were no such restraints on the Hospital and find that the Claimant had established on the balance of probabilities that his delivery some 55 minutes after the decision had been taken to carry out the Caesarean amounted to a breach of duty.

Donkin v The Law Society [2007] EWHC 414 (Admin) (07 March 2007)

Wed, 07 Mar 2007 00:00:00 GMT

Professional Conduct. A solicitor used monies from his client account to meet the expenses of his practice. Those sums were repaid with interest. The solicitor accepted that he had been remiss in not advising his clients to obtain independent advice and in respect of two in not advising them of what he was doing. Whilst referring to the appropriate test of dishonesty in Twinsectra Ltd v Yardley [2002] UKHL 12 the Law Society had not applied it properly. In addition no account had been taken of the considerable evidence of good character. Whilst not a defence it was relevant to the issue of dishonesty.

Reader & Ors v Molesworths Bright Clegg Solicitors [2007] EWCA Civ 169 (02 March 2007)

Fri, 02 Mar 2007 00:00:00 GMT

Duty of Care. The Claimant’s husband was involved in a road traffic accident. The other driver had admitted liability. As a result of psychological injuries attributable to the accident her husband later died. His solicitors without authority notified the other side that proceedings would be discontinued. As the solicitors had ostensible authority to do so, that notification was binding on the estate of the husband. The Claimant brought proceedings against her late husband’s solicitors on the basis that they owed her and her children a duty of care as a dependent in respect of a claim under the Fatal Accidents Act 1976 and that the action of discontinuance had extinguished not only her late husband’s claim but also those of her and her children under the Fatal Accidents Act. Those proceedings failed because they amounted to separate causes of action. The dependents’ action survived the discontinuance of the personal injuries claim. In addition on the facts of the case the solicitors owed the Claimant a duty only as administratix of the estate from the date of their retainer. No duty was owed to the Claimant’s children until such time as they sought their own legal advice.

Tagg v Countess of Chester Hospital Foundation Trust [2007] EWHC 509 (QBD)(Date Uncertain)

Thu, 01 Mar 2007 00:00:00 GMT

Clinical Negligence. During a mini-laparotomy to release a cyst and re-attach an ovary to her pelvic wall the Claimant’s bowel had become perforated. A reasonably competent gynaecologist would have carried out an inspection of the area after such a procedure. That inspection would have detected the perforation.

McFaddens v Chandrasekaran [2007] EWCA Civ 220 (26 February 2007)

Mon, 26 Feb 2007 00:00:00 GMT

In an action to recover unpaid fees from its former client in professional negligence proceedings the Claimant solicitors were entitled to summary judgment. That the Master had originally refused the application did not preclude the judge on appeal from conducting a review of the application which could properly extend to reference to all the material that had been before the master.

Pearson Education Ltd v The Charter Partnership Ltd (CA) 21/02/07

Wed, 21 Feb 2007 00:00:00 GMT

Architects owed a duty of care to occupiers of premises in respect of latent defects in a gutter drainage system despite a previous flood having occurred as a result of the same defect. The decision in Baxall & Norbain v Sheard & Ors [2002] BLR 100 is authority for one or other of the following principles: (a) where it is reasonable to expect that an occupier will inspect a property before entering into occupation, no duty of care will be owed in respect of a defect that such an inspection should disclosed; (b) where an occupier could reasonably have been expected in his own interests to carry out an inspection that would have revealed the defect, failure to carry out such an inspections, or to carry it out with reasonable skill and care, will break the chain of causation. Neither was considered satisfactory by the Court of Appeal.

Laing v Taylor Walton [2007] EWHC 196 (QBD)

Tue, 20 Feb 2007 00:00:00 GMT

Lawyers were instructed to prepare documents reflecting an oral agreement between property developers. The developers fell out and a dispute arose as to how much interest in the project was held by one. Proceedings in the TCC found against Mr Laing. During those proceedings Mr Laing had called a witness from the law firm instructed to prepare the document. Mr Laing subsequently brought these proceedings against the lawyers for failing to prepare the documentation in accordance with his instructions. The lawyers sought to obtain summary judgment and / or to strike out the claim on the basis of abuse of process. The relevant test is whether or not to permit that attack would be manifestly unfair to the lawyers or would otherwise bring the administration of justice into disrepute. There were no absolutes or prescriptive rules to be applied in reaching a judgment on whether or not one or the other of those criteria is met. As there was a real prospect of success of showing that the first judge’s decision was wrong and that would not of itself bring the administration of justice into disrepute the proceedings were permitted to continue.

Jasmine Trustees Ltd & Ors v Wells & Hind (A Firm) & Anor [2007] EWHC 38 (Ch) (19 January 2007)

Fri, 19 Jan 2007 00:00:00 GMT

Solicitors. The Defendant solicitors were alleged to have failed to have identified and advised in respect of the validity of trust appointment documents by previous advisers and the consequential income and capital gains tax. The Court determined as preliminary issues whether the trustees were resident or ordinarily resident in the United Kingdom and whether the appointments and subsequent actions of subsequent trustees were effective.

Petition of Campbell Riddell Breeze Paterson v The Council of the Law Society of Scotland & Henry James Lloyd [2007] CSIH 1

Thu, 04 Jan 2007 00:00:00 GMT

Appeal by way of petition against a decision of the Scottish Solicitors Discipline Tribunal

Diamond v Mansfield & Ors [2006] EWHC 3290 (QB) (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

The Defendants were granted summary judgment in respect of the Claimant's claim against members of the Bar Council and its employees in respect of a withdrawn prosecution relating to the Claimant's publication of an article in a magazine that he considered would be distributed within a small closed group. There was no contract between the Claimant and the individual members of the Bar Council pursued nor is there any implied duty in membership of the Bar that the Bar Council must act fairly. The tort of malicious prosecution does not apply to Professional Conduct Proceedings.

Thames Trains Ltd & Anor v Adams [2006] EWHC 3291 (QB) (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

Where solicitors were negotiating a compromise and one party made an offer to compromise at a greater figure than that which had previously been offered by the other party but through mistake had not yet been received by the present offeror, there was no duty to advise of the earlier offer. Consequently the compromise agreement entered into could not be avoided by mistake or any estoppel.

The Legal Services Centre Limited v. Miller Samuel LLP Others [2006] CSOH 191

Fri, 15 Dec 2006 00:00:00 GMT

Procedure Roll - Prescription

Marilyn Louise McDonald-Grant v. Sutherland & Co & [2006] CSOH 171

Thu, 07 Dec 2006 00:00:00 GMT

Procedure Roll - Professional Negligence

Hurst v BDO Stoy Hayward Llp [2006] EWHC 2974 (Ch) (24 November 2006)

Fri, 24 Nov 2006 00:00:00 GMT

The Claimant brought proceedings against her husband's insolvency practitioners on the basis that they owed her a duty of care as a result of representations made. The court found that the representations relied upon had not been made.

Zarb v Odetoyinbo [2006] EWHC 2880 (QB) (20 November 2006)

Mon, 20 Nov 2006 00:00:00 GMT

Causation: In an action for damages against her general practitioner the Claimant alleged that he should have immediately referred her to an orthopaedic surgeon for an appointment that day rather than providing a standard written referral. In considering the issue of whether the general practitioner should have made an immediate referral it was appropriate to consider what the consultant would have done had a same day referral been made. In the circumstances the advice of the GP to return if similar symptoms occurred coupled with the referral were not in breach of his duty.

Robinson v (1) Buss Murton LLP & Anr. (QBD) 17/11/06

Fri, 17 Nov 2006 00:00:00 GMT

Causation: The Claimant had been advised by his legal advisers that the prospects of a full recovery on his construction of an agreement were unlikely. On receipt of the Defence, the Claimant was advised to compromise the proceedings. The Claimant elected to continue on his own as a litigant in person. When his action was unsuccessful he sought damages on the basis that his lawyers should have sought further and better particulars of the Defence and that there had been a conspiracy between them to engineer the withdrawal of his legal aid. The court granted summary judgment on the basis that there was no evidence for the alleged causes of action and there was no real prospect of success in showing causation.

Redbus LMDS Ltd. v Jeffrey Green and Russell (a firm) [2006] EWHC 2938 (Ch) (17 November 2006)

Fri, 17 Nov 2006 00:00:00 GMT

Damages: The drafting of a licence agreement was not sufficiently clear so as to preclude an argument that the counter-party could argue for termination on six month's notice. In respect of the costs incurred in pursuing the successful claim against the terminating party who was now insolvent, the Claimant was not entitled to recover from his former legal advisers more than the sums that would have been awarded on an assessment by costs judge on the standard basis.

Horton v Evans & Anor [2006] EWHC 2808 (QB) (10 November 2006)

Fri, 10 Nov 2006 00:00:00 GMT

Causation: In proceedings arising out of a mistakenly high strength of a prescription drug, the dispensing pharmacist should have been put on notice of the significant increase in the dosage from the pharmacy's own records and should have checked with the prescribing doctor. However that breach of itself was not causative of any loss as there was no evidence that the prescribing doctor would have corrected the strength. The pharmacist should however have enquired about the frequency of dose absent any reference to it in the prescription. That failure was causative of the losses suffered by the Claimant. The chain of causation was not breached by the subsequent non negligent repeat prescription given by another doctor.

Nesbitt v Holt [2006] EWCA Civ 1542 (02 November 2006)

Thu, 02 Nov 2006 00:00:00 GMT

In proceedings brought against the adviser from the Citizens Advice Bureau who had assisted him in employment proceedings, the Claimant was granted permission for a second appeal to in respect of the strike out of his claim for abuse of process. Although the Employment Appeal Court had considered whether the Defendant had authority to enter in to the compromise agreement on behalf of the Claimant, the Defendant was merely a witness of fact in those proceedings. The single judge was concerned at the extension of the scope of abuse of process to claims where the parties were different.

General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006)

Thu, 26 Oct 2006 00:00:00 GMT

Immunity of Experts. The GMC has discretion to consider the conduct of an expert witness. There is no absolute common law privilege that protects a witness in giving evidence. On the facts, by a majority, the conduct of the expert was not sufficiently grave to justify his being struck off.

Miller v Garton Shires (a firm) [2006] EWCA Civ 1386 (25 October 2006)

Wed, 25 Oct 2006 00:00:00 GMT

Summary Judgment. The Claimant instructed two firms of solicitors in succession. Both failed to issue proceedings within the relevant time period for personal injuries arising out of a near fatal road traffic accident. It was appropriate despite the possible dispute of fact in respect of the cause of the accident for the first instance judge to entertain the application for summary judgment on the basis that the underlying claim was hopeless and there had therefore been no loss of a chance.

Jessup & Ors v Wetherell & Anor [2006] EWHC 2582 (QB) (20 October 2006)

Fri, 20 Oct 2006 00:00:00 GMT

Limitation. In cases where a claim was struck out, the date of accrual of the cause of action was the date upon which the damage was incurred which for the majority of cases would be before the case was actually struck out. The retention of papers by solicitors under a valid lien did not give rise to a postponement of the limitation period under s. 32 of the Limitation Act 1980. There was no substantive basis for suspecting either that disclosure or expert evidence would reveal anything to assist the Claimants such that it would be inappropriate to grant summary judgment on the Limitation arguments. It was irrelevant that both negligence and loss had been admitted.

Bonham & Ors v Blake Lapthorn Linell (A Firm) & Anor [2006] EWHC 2513 (Ch) (16 October 2006)

Mon, 16 Oct 2006 00:00:00 GMT

Summary Judgment. The Claimant and a trust of which he was a beneficiary lost an action in respect of the recovery of certain shares. The Claimant and the Trustees sought to recover the costs incurred and for which they were liable from the original trustee and the legal representatives on the basis that the action brought in his name should never have been commenced or at the very least should have been withdrawn at a far earlier stage. The Court concluded that the original trustee was entitled to believe that the original action had real prospects of success and had not acted outside of his fiduciary duties and that the conduct of the solicitors was wholly appropriate.

West Bromwich Albion Football Club Ltd v Medhat El-Safty (CA) 11/10/06

Wed, 11 Oct 2006 00:00:00 GMT

Duty of Care. The football club sought damages in respect of financial losses caused as a result of one of its players being negligently treated. The defendant surgeon did not provide any advice to the football club nor did he receive payment for any such advice from the insurance company that covered the club’s players. The Court of Appeal rejected the club’s contention that an express contract came in to being when the club’s physiotherapist made an appointment for the player to attend or alternatively that the club was entitled to rely on the surgeon’s advice and that the surgeon knew or should have known that important financial interests were involved and that consequently it was akin to a contract and was just and equitable for the surgeon to be liable for such consequences. It was not sufficient that the surgeon could recover his fees from the football club if payment was not received from insurers.

Garcia v East Lancashire Hospitals NHS Trust [2006] EWHC 2062 (QB) (11 August 2006)

Fri, 11 Aug 2006 00:00:00 GMT

Causation. The NHS trust admitted breaching its duty to the Claimant in its failure to manage her mother’s pregnancy and labour. The Claimant suffered from hypoxia, but was unable to prove on the balance of probabilities that this was caused as a result of the delayed caesarean section as Causation. The NHS trust admitted breaching its duty to the Claimant in its failure to manage her mother’s pregnancy and labour. The Claimant suffered from hypoxia, but was unable to prove on the balance of probabilities that this was caused as a result of the delayed caesarean section as opposed to a stroke suffered earlier on.

Gatfield v Whitbread Plc (QBD) 9/8/06

Wed, 09 Aug 2006 00:00:00 GMT

Causation. Whilst unloading a lorry belonging to his employers, the Claimant was struck on the head by a barrel of cider. Although somewhat shaken he returned to his work shortly after the incident and continued as normal. Six weeks later, he suffered a severe epileptic seizure which then recurred causing him to give up work. Although the Claimant had no history or predisposition to epilepsy, he could not establish on the balance of probabilities that he had suffered from a brain injury that had increased the risk that he would later suffer epilepsy.

Fulham Leisure Holdings Ltd v Nicholson Graham & Jones [2006] EWHC 2017 (Ch) (31 July 2006)

Mon, 31 Jul 2006 00:00:00 GMT

Breach of Duty. The Claimant company represented the interest of Mohammed al Fayed in the majority stake he acquired in Fulham Football club. The solicitors who prepared the documentation included various clauses to protect the dilution of the minority stake of the former owners. During the acquisition process a clause relating to limits on this dilution once the Claimant had provided finance of £60 million. In order to achieve overall control, the Claimant bought out the minority share-holders for £7.75 million. The Claimant then sought to recover this sum from the solicitors. The court rejected their defence that the deletion of the relevant clause had been done on instructions and awarded damages on the “cost of cure” basis. However in calculating such damages, the court had to take in to account that the sums expended by the Claimant to buy out the minority stake had an element of betterment and were disproportionate to the benefit received. Damages were limited to part of the legal fees sought.

Talisman Property Co (UK) Ltd v Norton Rose (a firm) [2006] EWCA Civ 1104 (28 July 2006)

Fri, 28 Jul 2006 00:00:00 GMT

Loss of a Chance. In anticipation of the renewal of a lease the solicitors served the wrong notice under the Landlord & Tenant Act 1954. After corporate assignments there was doubt as to the identity of the tenant at law. In assessing the appropriate award for loss of a chance the judge at first instance had concluded that given the sums at stake the Claimant would have undoubtedly taken Counsel’s advice notwithstanding the evidence that the Claimant would have followed the advisor’s advice and that the advisor held a strong (but mistaken) view. Whilst it was open to a judge when assessing hypothetical situations in assessing the loss of a chance to reject such evidence, such rejection should be reasoned. The Court of Appeal concluded that there was a 50% chance that the Claimant would have taken Counsel’s advice and increased the damages accordingly.

McHugh v Gray [2006] EWHC 1968 (QB) (27 July 2006)

Thu, 27 Jul 2006 00:00:00 GMT

Limitation. The Claimant sought damages for personal injuries against a consultant psychiatrist who had reported that he had a moderate degree of post-traumatic stress disorder arising out of the Hillsborough disaster in 1989. Given the prognosis of rapid recovery the Claimant settled his claim for personal injuries against the South Yorkshire Police. The Claimant alleged that the diagnosis was wrong and that as a result it had led to the breakdown of his relationship, continuing depression and heavy drug use. Proceedings for personal injuries were issued in 2002. On an application to disapply the primary limitation period under s. 33 of the Limitation Act 1980, the judge was entitled to exercise his discretion even where the prejudice to the Defendant was not more than minor.

Holt v Edge (QBD) 26/7/06

Wed, 26 Jul 2006 00:00:00 GMT

Duty of Care. The Claimant had attended her general practitioner after falling in the shower. He had diagnosed a musculoskeletal injury. A few days later the Claimant was taken to hospital and diagnosed as having suffered a sub-arachnoid haemorrhage. The surgery led to complications causing the Claimant to suffer a stroke. The Court preferred the general practitioner’s account of the portrayal of symptoms and concluded that there had been no breach of duty in either failing to diagnose the injury or in to enquiring as to the symptoms. In addition the absence of diagnosis was not causative of the surgery.

Jassi v Gallagher [2006] EWCA Civ 1065 (25 July 2006)

Tue, 25 Jul 2006 00:00:00 GMT

Breach of Duty. The Claimant had sought to purchase the freehold of one of his properties by serving a notice under the Leasehold Reform Act 1967. That notice contained a number of material inaccuracies. The landlord successfully withdrew its admission of the notice and obtained a prohibition order against the Claimant from serving another notice for 5 years. The Claimant then sought to sue his Counsel for a failure to advise him to serve a second notice as a “protective” measure during the course of the proceedings. Counsel’s evidence was that he had considered such a course of action but rejected it on the basis that it would have been inconsistent with his instructions and any second notice would have undermined the Claimant’s credibility. The Court of Appeal agreed that such a position was not negligent on the facts of the case.

Regent Leisuretime Ltd. v Amos [2006] EWCA Civ 1184 (21 July 2006)

Fri, 21 Jul 2006 00:00:00 GMT

Scope of Duty. A solicitor’s duties are limited by the scope of his or her retainer. There is no general duty to consider all aspects of a client’s interest whenever the solicitor is consulted. A solicitor is not assumed to know all aspects of the law. On the facts of the case there was nothing that would have put a competent solicitor exercising a reasonable degree of care and skill that a relevant time limit was about to expire. The solicitor was entitled to rely on counsel’s advice.

Krivinskas v Law Society [2006] EWHC 1808 (Admin) (18 July 2006)

Tue, 18 Jul 2006 00:00:00 GMT

Disciplinary. The introduction by a solicitor of one client in need of funds to a third party known to have been involved in improper credit arrangements without giving him any warning of his reputation was something that solicitors would regard as a dishonest. On the basis of this and the solicitor’s subsequent evasions, the Disciplinary Tribunal had been entitled to find the solicitor as dishonest.

Glyn v McGarel-Groves [2006] EWCA Civ 998 (14 July 2006)

Fri, 14 Jul 2006 00:00:00 GMT

Breach of Duty. A dressage horse was inadequately treated by a French vet. The owner had requested that the horse’s usual vet attend the treatment. The Court of Appeal found (Ward LJ dissenting) that the owner’s vet was in breach of his duty in failing to ask questions of the French vet as to the type and dose of the injections administered.

Demery v Cardiff and Vale NHS Trust [2006] EWCA Civ 1131 (11 July 2006)

Tue, 11 Jul 2006 00:00:00 GMT

Causation. The diagnosis of the Claimant’s injured left ankle failed to identify significant ligament damage resulting in delay between the time that she would have had the operation had the diagnosis been made. On the expert evidence, the experts’ opinion was that in most cases the surgery was successful. The judge had been wrong to find that because neither expert had experience of delay causing complications in the surgery that the Claimant had not established causation. The judge should have considered the fact that on most occasions the surgery was successful and whether delay might have been a factor. The case should be remitted for a rehearing.

Farrukh v Irwin Mitchell (Ch) 7/7/06

Fri, 07 Jul 2006 00:00:00 GMT

Causation. Solicitors’ advice in respect of rule 9 of the City Code on Takeovers and Mergers was not negligent save in respect of one isolated part. As the client would not on the balance of probabilities have been prepared to risk the success of the company by requiring the beneficial ownership in the shares to be transferred to him, that breach of duty was not causative of any loss. In assessing loss in such a situation it was inappropriate to take the market price for shares as at the date of the breach as this did not represent the price that the client could have obtained had he wished to sell them all. The client was entitled to nominal damages in the sum of £2.

Smith v Southampton University Hospitals NHS Trust (QBD) 3/7/06

Mon, 03 Jul 2006 00:00:00 GMT

Breach of Duty. Where surgeons had caused injury to the Claimant during a radical hysterectomy operation, their employer was not liable as the damage caused was a recognised risk of the surgery albeit less than 1% and 5%, respectively, and the expert evidence did not conclude on such facts as were proved that the Bolam test was met.

Brundsdon v Pattison & Brewer (A Firm) and Anr. (QBD) 29/6/06

Thu, 29 Jun 2006 00:00:00 GMT

Scope of Duty. The failure to advise in respect of a time limit for bringing a complaint in the employment tribunal for unfair dismissal was not within the scope of the solicitors’ instructions and the claim failed.

The Football League Ltd v Edge Ellison (a firm) [2006] EWHC 1462 (Ch) (23 June 2006)

Fri, 23 Jun 2006 00:00:00 GMT

The solicitors did not owe an implied duty to advise commercially experienced and advised of the possibility of seeking guarantees from the parent companies of a start-up venture.

Riyad Bank & Ors v Ahli United Bank (UK) Plc [2006] EWCA Civ 780 (13 June 2006)

Tue, 13 Jun 2006 00:00:00 GMT

Contractual Relationship – Duty of Care – Investment Advice. The Defendant was a specialist in lease investments that were consistent with Sharia law. The Claimant bank wished to set up a similar scheme to that run by the Defendant. For commercial reasons the contractual structure between the Claimant, Defendant and the fund created no direct contractual duties between the Defendant and the fund. The fund lost considerable sums as a result of the alleged negligent performance by the Defendant. Again for commercial reasons no claim was made by the fund against the Claimant. Therefore to make good its claim, the Claimant needed to show that the Defendant owed a duty in tort direct to the fund. The burden of proof for establishing no concurrent duty in tort lay with the Defendant. Notwithstanding the commercial contractual nexus avoided any direct duties, given the Defendant’s knowledge that the Claimant would be relying entirely on it and other factors, the Court was prepared to find that a duty of care existed in tort.

Farraj & Anor v King's Healthcare NHS Trust & Anor [2006] EWHC 1228 (QB) (26 May 2006)

Fri, 26 May 2006 00:00:00 GMT

Clinical Negligence – Duty of Care – Proximity – Fair, Just and Reasonable – Limitation – Date of Knowledge – s. 33 Discretion. The Claimants were based in Jordan. They were carriers of a hereditary blood disease. The disease had not affected either the Claimants or their first child. Their second child did develop the disease. During the next pregnancy, the parents sought tests to determine whether the foetus would develop the disease. Their Jordanian doctor sent a sample of tissue for analysis to the Defendant hospital. Prior to DNA analysis, the sample needed to be cultured. The hospital sent the sample to an external clinic for this process. The clinic did not report to the hospital that the sample was possible contaminated or that another sample should be taken. The hospital carried out the DNA analysis on the cultured sample and reported that the foetus would not develop the disease. On birth, the third child did develop the disease. The parents brought a claim for damages arising out of the invalid loss. On a preliminary issue to determine whether the clinic owed a duty of care to the parents, the court ruled that it was not conclusive that the parents were unaware of the involvement of the clinic. There was a sufficiently proximate relationship and it was fair just and reasonable in the circumstances to impose a duty of care. However the scope of that duty could not be determined until the full trial. For limitation purposes under s. 14 (1) (b) of the Limitation Act 1980, the Claimants had obtained sufficient knowledge that the injury was attributable to the clinic when it had been identified in the Hospital’s Defence. Although the primary limitation had expired, the Court would exercise its discretion under s. 33 of the Limitation Act 1980.

Siddiqui & Anor v James and Charles Dodd (A Firm) [2006] EWHC 1295 (QB) (24 May 2006)

Wed, 24 May 2006 00:00:00 GMT

The Claimants had employed the Defendant solicitors in assisting them in respect of an application for registration to carry out various medical procedures under local and general anaesthetic. It was accepted that the solicitors were in breach of duty in failing to lodge the appeal in time. The court considered the claim for substantial losses in respect of lost potential profits from the nascent business.

Hobson & Ors v Ashton Morton Slack Solicitors & Ors [2006] EWHC 1134 (QB) (18 May 2006)

Thu, 18 May 2006 00:00:00 GMT

It was inappropriate to pursue different firms of solicitors under a Group Litigation Order when the issues arising against each firm were patently different.

L v Pembrokeshire CC, High Ct, 11/5/2006

Thu, 11 May 2006 00:00:00 GMT

Effect of Human Rights Act 1998 and ECHR 1950 Art 8 and the principle in JD v East Berkshire Community NHS Trust (2005) UKHL 23, (2005) 2 AC 373. The policy consideration underlying the principle in JD v East Berkshire Community NHS Trust (2005) UKHL 23 , (2005) 2 AC 373, that doctors or social workers who failed to exercise reasonable care and skill in erroneously concluding that a child was at risk of abuse from one or both of its parents were not liable in negligence to the parents of the child, was not rendered invalid or otherwise inapplicable by the fact that, after the coming into force of the Human Rights Act 1998, such a parent might have a claim under the European Convention on Human Rights 1950 Art.8.

Poll v Viscount Asquith of Morley v Viscountess Asquith of Morley, High Ct, 11/5/2006

Thu, 11 May 2006 00:00:00 GMT

Landowners’ duty of care to road users in respect of trees abutting highway. Landowners who owed a duty of care to road users in respect of their trees that abutted the highway were found to be in breach of that duty where a tree had fallen into the road as a result of a combination of a visible structural defect and a concealed fungal defect. Their forestry inspector had not been suitably qualified to be deemed a competent inspector, and if a competent inspector had carried out a reasonable and proper examination on the tree, the fungal defect would, on the balance of probabilities, have been detected.

3M United Kingdom Plc & Anor v Linklaters & Paines (A Firm) [2006] EWCA Civ 530 (03 May 2006)

Wed, 03 May 2006 00:00:00 GMT

Limitation Act 1980, s.14A. Tenants had failed to bring proceedings against their solicitors for negligence within three years of the date when they knew or ought to have known for the purposes of the Limitation Act 1980 s.14A that an assignment of a lease had caused the loss of the break clause in it, which was personal to the original tenant, and that the damage attributable to that loss had occurred as a result of the acts and omissions of the solicitors.

Bates & Anr v Mishcon de Reya (CA) 24/3/06

Fri, 24 Mar 2006 00:00:00 GMT

Causation: A property acquisition fell through because conditions attached to the mortgage offer could not be met before the date for exchange leading to the loss of deposit and the refusal by the vendor to sell. Having accepted that a breach had arisen by not checking whether the mortgage conditions could be met the solicitors contested causation. The court found in favour of the solicitors on the basis that completion would not have occurred because the mortgage company had not obtained the valuations it required and thus the opportunity of a bargain had been lost.

Dudarec v Andrews & Ors [2006] EWCA Civ 256 (22 March 2006)

Wed, 22 Mar 2006 00:00:00 GMT

Causation: Proceedings were brought against solicitors after a personal injuries action was struck out for want of prosecution under the old procedural rules. Liability was not in issue and in considering the damages for loss of a chance the Defendant solicitors took the same point as had been relied on by the original Defendants, that the Claimant had breached his duty to mitigate his loss in not undergoing an operation. Many years later in the run up to the hearing of a preliminary issue on the point it was discovered that the Claimant was not suffering after all from the problems considered. There is a distinction between facts that were unknowable at the notional trial date and facts that were knowable but undiscovered. The Court should take the latter into account when assessing loss of a chance.

Skipper v Calderdale Metropolitan Borough Council & Anor [2006] EWCA Civ 238 (15 March 2006)

Wed, 15 Mar 2006 00:00:00 GMT

Damages: In a claim against her primary and secondary school it was determined that general damages could be awarded for the frustration, loss of self-confidence and loss of self-esteem resulting from the failure of a school and local authority to identify and ameliorate the effects of dyslexia and it was inappropriate to strike out a claim for general damages and damages for lost earning capacity based on such a failure.

JP Morgan Chase Bank & Ors v Springwell Navigation Corporation [2006] EWCA Civ 161 (02 March 2006)

Thu, 02 Mar 2006 00:00:00 GMT

Investment Advice. Springwell alleged that as a result of poor investment advice from Chase, their investment portfolio had declined by some US$280 million. Springwell allege that Chase knew that they intended to use the profits on the portfolio to expand and refurbish their related shipping fleet. As a result of the poor investment advice Springwell claim they could only purchase 2 rather than 20 additional vessels and sought a claim for loss of profits as well. Whilst care would need to be taken in ensuring there was no overlap, the claim would not be struck out on the basis of double recovery.

Haward & Ors v. Fawcetts (a firm) & Ors [2006] UKHL 9 (1 March 2006)

Wed, 01 Mar 2006 00:00:00 GMT

Limitation. Under the Limitation Act 1980 s. 14 A (8) (a), the information required to determine whether the damage was “attributable” was knowledge of the facts giving rise to the “essence” of the pleaded case. Whilst s. 14 A (9) expressly excluded the relevance of knowledge negligence, inevitably language of “fault” might well be used to described the knowledge required under s. 14 A (8) (a). This could be done without subverting the purpose of s. 14 A (9). In respect of negligent advice to invest in a company the relevant act for which knowledge was required was the act of recommending investment in the first place rather than knowing that the recommendation had been made with out having carried out proper investigations.

Qureshi v Royal Brompton & Harefield NHS Trust [2006] EWHC 298 (QB) (24 February 2006)

Fri, 24 Feb 2006 00:00:00 GMT

Clinical Negligence. An operation to correct a congential heart defect was carried out and the patient discharged. The child patient was re-admitted one week later and a pericardial effusion was drained. The patient was discharged and reviewed a week later by a senior registrar. He found her recovering well and arranged for a review one month later. 10 days later the patient suffered a very large pericardial effusion which led eventually to cardiac arrest and re-admission. There was consequential brain damage. The Court found that given the circumstances of the patient history a reasonable body of senior registrars would have acted similarly in reducing the patient’s medication and only calling for review after a month rather than the normal seven days.

C v D and SBA 23/2/06 CA

Thu, 23 Feb 2006 00:00:00 GMT

Schools. In the case of sexual abuse against a pupil, the court took into account similar fact evidence in establishing the alleged acts which included both physical contact and non-contact videoing. The fact that the headmaster had not touched the pupil did not prevent liability in negligence for psychiatric injury caused by a breach of duty. Recovery was only available if the harm suffered was a recognised psychiatric injury as opposed to emotional distress. Although the video had caused emotional distress it was not actionable. However as the physical contact had occurred when the Claimant was vulnerable the headmaster’s conduct was one of the causes of the psychiatric injury. The school was “unquestionably” vicariously liable.

Andrews v Waddingham & Anor [2006] EWCA Civ 93 (21 February 2006)

Tue, 21 Feb 2006 00:00:00 GMT

Causation. Consulting actuaries despite express instructions to do so failed to advise properly about the protection provided by the Policyholders Protection Act 1975 in respect of the potential insolvency of a life insurance for a with-profits investment. The Claimant purchased a with-profits policy. Had the Claimant been advised about the absence of protection under the Act he would not have purchased the with-profits policy. The company suffered a downturn but did not go insolvent. The Claimant could not recover as the kind of harm for which it was the Defendant’s duty to protect the Claimant had not arisen and was not likely to occur.

Fulham Leisure Holdings Ltd. v Nicholson Graham & Jones [2006] EWHC 158 (Ch) (14 February 2006)

Tue, 14 Feb 2006 00:00:00 GMT

Privilege. It was said that the Defendant firm had failed to properly advise the Claimant when it had acquired an interest in a football club. The Claimant voluntarily disclosed notes of an advice from its Counsel and Solicitor in support of its claim. The Defendant sought disclosure of the other advice taken by the Claimant. Although it was open to a party to disclose some, but not all, of the documents falling within a privileged category, the issue depended upon the scope of the “transaction” for which privilege had been waived. Disclosure would only be required of any further advice on the same issue.

Cohen v Kingsley Napley & Anor [2006] EWCA Civ 66 (10 February 2006)

Fri, 10 Feb 2006 00:00:00 GMT

Causation. The defendant solicitors were blamed for an alleged failure to take steps in an action against architects arising out of flood damage. On an appplication to strike out the claim, the court at first instance held that with the exception of one claim there was no value to the claimant's underlying action as it would have been struck out by an application made by the architects. The Court of Appeal held that the underlying claim would still have some value if on a consideration of the facts there was a substantial chance that the application to strike out might not have been made. The legal burden of proving that something of value had been lost was on the Claimant. However the evidential burden of showing that the litigation was of no value waas on the defendant solicitor. The investigation of the facts was a matter for trial.

London Helicopters Ltd v Heliportugal LDA-INAC [2006] EWHC 108 (QB) (09 February 2006)

Thu, 09 Feb 2006 00:00:00 GMT

Jurisdiction. In an action for negligent misstatement based upon the defendant's test certificate of an helicopter engine, the English Court had jurisdiction as for the purposes of Art. 5 (3) of Council Regulation 44/2001 the damage occurred where the certificate was relied upon (England) albeit that the place where the event that gave rise to the damage was Portugal.

Walker v Chruszcz [2006] EWHC 64 (QB) (30 January 2006)

Mon, 30 Jan 2006 00:00:00 GMT

Advice on Settlement. On the morning of the first day of a personal injury trial, having assessed the Claimant's likely performance in the witness box, Leading Counsel advised the Claimant to accept the monies that had already been offered. A moderately higher offer was obtained from the Defendant. Although the offer did not reflect a percentage analysis by Leading Counsel of the risks and the overall likely recovery of quantum, given the risks of the Claimant recovering "not a penny" such advice was within the range to be expected of reasonably competent Leading Counsel specialising in personal injury. The certainty of settlement had much to offer.

Burne v A (CA) 25/1/06

Wed, 25 Jan 2006 00:00:00 GMT

Expert Evidence. In proceedings against a general practitioner who had not diagnosed a condition by questions over the telephone, experts for both parties had agreed that the use of "open" questions was sufficient. The trial judge rejected both experts' evidence and found liability on the basis that "closed" questions should have been used to elicit further details about the child's medical history. The judge should have done one or both of two things: to ask the claimant's counsel whether, should his findings reach the position that he found the joint expert evidence as to general medical practice unacceptable, he should consider the credibility of the expert evidence in support of the doctor; and if, claimant's counsel said yes, to ensure that the defendant's side had a proper opportunity to respond.

Demarco v Perkins [2006] EWCA Civ 188 (23 January 2006)

Mon, 23 Jan 2006 00:00:00 GMT

Insolvency. A bankrupt brought proceedings against chartered accountants for a failure to seek annulment of his bankruptcy prior to it being automatically discharged. The chartered accountants had been retained to put proposals to his creditors with the objective of persuading them to agree to IVAs. This would have enabled the application for an annulment of the bankruptcy order under s. 261 (1) (a) of the Insolvency Act 1986. It was said this would have avoided the stigma of being a discharged bankrupt. The Court found that as the bankrupt had never been in a position to pay the underlying debt he had suffered no loss of a chance of obtaining the annulment other than by way of s. 261 (1) (a). Whilst an award for non-pecuniary damages should be modest, a sum of £6,000 would be more appropriate than the £2,000 awarded at first instance.

Constable v Salford & Trafford Health Authority & Anr (QBD) 21/12/05

Wed, 21 Dec 2005 00:00:00 GMT

Medical. On the basis of the general practitioner's records it appeared that she had given proper advice. The hospital that had requested the claimant to be treated for the STD was in breach of duty for failing to have the claimant's mother retested. The expert evidence and the facts meant that it was impossible to find that the breach of duty caused or materially contributed to the premature birth of the claimant.

Jassi v Gallagher & Anr. (Ch. D) 21/12/05

Wed, 21 Dec 2005 00:00:00 GMT

Legal. In proceedings against a barrister who had acted in an unsuccessful attempt by the claimant to enfranchise under the Leasehold Reform Act 1967, it was alleged that he failed to advise the service of a protective notice whilst the validity of an earlier notice was being contested. Whilst there might have been a form of wording for a protective notice that would not have prejudiced the one already challenged and yet been effective in the event that the former notice had been found defective, the failure to advise in respect of that wording was not negligent. In addition on the facts of the case, the barrister had not been appraised of the necessary information until late in the day. The assessment of the Claimant as a credible witness was again not negligent given his apparent intellect and background.

Clare v Buckle Mellows (a firm) [2005] EWCA Civ 1611 (21 December 2005)

Wed, 21 Dec 2005 00:00:00 GMT

The firm of solicitors had advised the claimant in connection with the dissolution of a partnership with her former husband in a road haulage business. It was alleged that the firm had failed to advise her to effect the immediate dissolution of the partnership and to avoid or limit her future liability for the debts of the business. By a majority the Court of Appeal found that although there had been a breach of duty that as the alleged loss was not put to the court at first instance, was not supported by the the joint expert or by the additional expert called by the claimant it could not be recovered. Damages for distress, inconvenience and such like were not recoverable.

Batty v Danaher (Practising As Jack Danaher & Co) [2005] EWHC 2763 (QB) (20 December 2005)

Tue, 20 Dec 2005 00:00:00 GMT

Correspondence was overlooked by the solicitor retained to advised the Claimant in respect of his rights and obligations under a consultant service agreement. The defence allegations that the consultant's employment would have been terminated in any event failed. The actions of the consultant had to be considered in the context of the solicitor's failure to advise. Had such advice been provided then the counsultant would on the balance of probabilities have returned to work and his employers would have accepted him back. There was a 70% chance of him remaining for the full length of the five year contract. In addition the consultant was entitled to recover the costs of employment tribunal proceedings brought together with contemporaneous court proceedings.However the costs of his failed appeal would not be recoverable in the light of strong advice to the contrary.Negligence was not in issue.

Hickman v Lapthorn & Anor [2005] EWHC 2714 (QB) (16 December 2005)

Fri, 16 Dec 2005 00:00:00 GMT

Advice on Settlement. The Claimant brought proceedings against an uninsured driver and the MIB. The case was listed for a trial on liability. On the day of the trial a key witness failed to attend. Proceedings were settled for £70,000. The Claimant complained that the advice to settle had failed to take into account his inability to work and that his claim was worth £500,000 or more. Although Counsel's assessment of the prospects was correct there had been a failure on his part to consider the possibility of the Claimant never working again. Although Counsel took the lead in the discussions, the solicitor should have raised a query when Counsel did not raise this possibility. Liability apportioned Counsel two thirds, Solicitor one third.

Gosfield School Ltd v Birkett Long (QBD) 16/12/05

Fri, 16 Dec 2005 00:00:00 GMT

Advice on Settlement. After an action relating to unpaid school fees and an alleged breach of contract in respect of the education provided was compromised, the two children brought separate proceedings against the school. The school sued its former counsel and solicitors for failing to protect it from this subsequent litigation. The risk of the subsequent actions by the children was not at the time of the former settlement great and there was no breach of duty.

West Bromwich Albion Football Club Ltd. v El-Safty [2005] EWHC 2866 (QB) (14 December 2005)

Wed, 14 Dec 2005 00:00:00 GMT

Medical. The Defendant surgeon performed unsucessful reconstructive surgery on one of the Claimant's players. The advice to go down that route was negligent. On a preliminary issue to determine whether there was any duty to the club as opposed to the player, the Court found that despite paying the bills there was no contract with the club. Although a doctor can owe a duty to a person with whom he is not in a doctor / patient relationship on the facts of the case there was insufficient proximity between the specialist and the football club and it would not have been fair, just or equitable to impose a duty.

Garbutt & Anor v Edwards & Anor [2005] EWCA Civ 1206 (27 October 2005) (

Thu, 27 Oct 2005 00:00:00 GMT

Costs: A party can rely in reducing its liability to pay costs to the receiving party of that party’s solicitor’s failure to provide an estimate of costs in accordance with Rule 15 of the Solicitors’ Code in so far as that would have reduced the costs of the work incurred. However significant weight should be given to the receiving party’s solicitors’ certificate on the bill of costs and such an investigation will be exceptional.

Viasystems (Tyneside) Ltd. v Thermal Transfer (Northern) Ltd & Ors [2005] EWCA Civ 1151 (10 October 2005)

Mon, 10 Oct 2005 00:00:00 GMT

Vicarious Liability: The long-standing assumption that dual vicarious liability could not exist was incorrect. More than one employer can be vicariously liable for the negligence of a single employee. Each situation will depend upon a close examination of the facts. In respect of contribution between two vicariously liable employers, the presumption will be that each is 50% responsible.

LMS International Ltd & Ors v Styrene Packaging and Insulation Ltd & Ors [2005] EWHC 2113 (TCC) (30 September 2005)

Fri, 30 Sep 2005 00:00:00 GMT

Rylands v Fletcher: Cutting polystyrene blocks with a hot wire machine in factory premises constituted non-natural user of land for the strict liability of Rylands v Fletcher to apply. Further nuisance and negligence were established against the factory owners. Although the landlord was not negligent, it was liable for failing to meets its obligations under various deeds to provide proper support to the party wall by carrying out appropriate remedial works after the fire.

Bellarby v Worthing & Southlands NHS Trust QBD 20/09/05

Tue, 20 Sep 2005 00:00:00 GMT

Duty of Care:The Claimant failed to show that his treating hospital was in breach of duty in failing to seek third party advice failed before employing an intravenous anti-fungal drug failed when there were conflicting medical views and no scientific comparisons of the possible treatments.

Carisbrooke Shipping CV5 v Bird Port Ltd [2005] EWHC 1974 (Admlty) (13 September 2005)

Tue, 13 Sep 2005 00:00:00 GMT

The port operator owed the owners of vessels a duty of care to inspect and regularly dredge its berths and intermittent inspections subject to other operational commitments were not sufficient to discharge that duty.

BE Studios Ltd. v Smith & Williamson Ltd [2005] EWHC 1506 (Ch) (15 July 2005)

Fri, 15 Jul 2005 00:00:00 GMT

Causation: Accountants who did not advise a computer software company in respect of potential research and development tax-relief were not liable for the company’s subsequent demise. The revenue had subsequently provided relief outside the scope of the legislation. There was insufficient evidence of the alleged research and development. Causation could not be made out.

Woolwich Plc v Jones-Dunross & Anor [2005] EWHC 1488 (Ch) (13 July 2005)

Wed, 13 Jul 2005 00:00:00 GMT

Duty: Solicitors acting for a building society alone in respect of a mortgage had not owed a duty to a joint-tenant in respect of a forged signature put forward by her co joint- tenant. On the facts there had been nothing to give rise to any suspicion that there was a forgery. There was no causation of loss.

Panesh Chimanlal Mistry v Thakor & Ors [2005] EWCA Civ 953 (05 July 2005)

Tue, 05 Jul 2005 00:00:00 GMT

Imputed Knowledge: A chartered surveyor employed to manage a building showing visible signs of deterioration refused to inspect it, but advised the owner to employ a building contractor to carry out an inspection. The Claimant, injured as a consequence of the subsequent deterioration succeeded in his claim against the owned on the basis that it had imputed knowledge and potential consequences of the defect. It was entitled to recover a significant contribution from the surveyor whose refusal was exceptional.

3M United Kingdom Plc & Anor v Linklaters & Paines [2005] EWHC 1382 (Ch) (01 July 2005)

Fri, 01 Jul 2005 00:00:00 GMT

Limitation: For the purposes of section 14 A of the Limitation Act 1980, the relevant knowledge of a corporate organisation could be aggregated from different personnel if in the context of the organisation it was reasonable to suppose that the information would have been aggregated. A damage-causing legal consequence can be a “fact” as much as a damage-causing physical consequence where the attribution of causation is in issue.

Green & Anor v Alexander Johnson (A Firm) & Anor [2005] EWCA Civ 775 (28 June 2005)

Tue, 28 Jun 2005 00:00:00 GMT

Damages: Any departure from the conventional “diminution in value” approach for the assessment of damages in a negligent property advice matter had to be justified by the evidence and internally consistent.

Brown v Birmingham and Black Country Strategic Health Authority & Ors [2005] EWHC 1098 (QB) (22 June 2005)

Wed, 22 Jun 2005 00:00:00 GMT

Breach: Although a cohort of doctors might have referred the Claimant to hospital, others could equally well and properly have not done so. The doctor’s view of the symptoms was justified.

Browning v Messrs Brachers [2005] EWCA Civ 753 (20 June 2005)

Mon, 20 Jun 2005 00:00:00 GMT

In assessing damages for loss of a chance a court was entitled to assess the amount of damages likely to have been awarded at a notional trial and then discount the sum to take into account uncertainties on the issue of liability.

London Borough of Islington v University College London Hospital NHS Trust [2005] EWCA Civ 596 (16 June 2005)

Thu, 16 Jun 2005 00:00:00 GMT

Duty: A NHS Trust did not owe a duty of care to the local authority in respect of the treatment of a patient such that the local authority could recover the costs of care of that patient injured by negligent treatment by that NHS Trust.

Thomson v Christie Manson & Woods Ltd & Ors [2005] EWCA Civ 555 (12 May 2005)

Thu, 12 May 2005 00:00:00 GMT

There was no duty on auctioneers who held on reasonable grounds a certain and definite opinion as to the provenance of an item offered for sale to qualify a description in the catalogue as any alternative would be fanciful rather than real.

Cohen v Kingsley Napley [2005] EWHC 899 (QB) (12 May 2005)

Thu, 12 May 2005 00:00:00 GMT

In considering the valuation of a loss of a chance arising out of the alleged professional negligence of a lawyer it was appropriate to consider the laws as it had been found to be subsequently rather than looking at the incorrect perception of the law at the time.

JD v. East Berkshire Community Health NHS Trust & Ors [2005] UKHL 23 (21 April 2005)

Thu, 21 Apr 2005 00:00:00 GMT

Duty of Care: The subject of an investigation into suspected child abuse could not recover damages against the investigating health authority of that investigation was carried out in good faith but carelessly. The duty of care was different to that owed to the children by the health authority.

Beary v Pall Mall Investments (A Firm) [2005] EWCA Civ 415 (19 April 2005)

Tue, 19 Apr 2005 00:00:00 GMT

Financial Services: The principle in Chester v Afshar should not be applied generally in claims for negligent financial advice.

Devon County Council v Clarke [2005] EWCA Civ 266 (17 March 2005)

Thu, 17 Mar 2005 00:00:00 GMT

Causation: A dyslexic pupil’s claim against his educational psychologist in respect of the loss of a chance of remedial teaching did not require proof that there would have been “a measurable difference”, but rather “a real difference”. Where several claims of education negligence were made they were not a single claim for a failed education, but discrete claims for professional negligence. Failure to establish negligence on discrete issues would be reflected in the award of costs.

Convergence Group Plc & Anor v Vellacott [2005] EWCA Civ 290 (16 March 2005)

Wed, 16 Mar 2005 00:00:00 GMT

Procedure: Under CPR 17.4.2, determining whether a new claim arose out of substantially the same facts was a matter of impression to be derived from a reasoned assessment of the relevant factors. A continuing retainer was relevant in considering the introduction of a new claim arising out of facts under the same retainer.

Al Hamwi v Johnston & anr (QBD, Simon J)

Fri, 18 Feb 2005 00:00:00 GMT

Duty of Care: A clinician was under a duty to take reasonable care to give a warning that was adequate in scope, content and presentation and to take reasonable and appropriate steps to satisfy themselves that that warning had been understood. This was not a duty to ensure the patient understood.