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Francesca O’Neill successful in Professional Negligence trial

News | Mon 14th Mar, 2022

Professionals’ scope of duty examined at trial: some thoughts

Harry v Curtis Law LLP (“CWC”)

HHJ Mitchell

Since SAAMCO, and latterly MBS v Grant Thornton [2021] UKSC 20, lawyers generally think that they understand how arguments on the scope of duty for professionals should run. The law is constantly developing, but scope of duty is now rarely controversial. Despite that, the Claimant – a 2018 purchaser of a new build house on a large housing development in Derriford, Plymouth – got it wrong.

She had reserved the show home on an early phase of the development, on a quiet residential street, surrounded by what she assumed would be other quiet residential streets. CWC were a firm of local solicitors who had acted for her in selling a previous home, and the abortive purchase of another central Plymouth house. They acted for her on a low fixed fee conveyancing package. The scope of the written retainer promised to investigate title, and perform local authority searches. This they duly did, and the search did not give details of any major road schemes within 200m of the house.

The search was wrong. In fact, the Forder Valley Link Road (“FVLR”), a major new road development linking two parts of Plymouth was to be constructed along a route running past the end of the road on which her house was situated. The new road was less than 50m from her house. She sued CWC for breach of retainer/duty, claiming that they ought to have advised her about the road, and that she would not have bought it had she been so advised (although the claim was never pursued as a “non-tranaction”). She claimed that as a result she had suffered a diminution of value in the house, and considerable distress both of which sounded in damages.

The case has three interesting features. The first is the extent to which solicitors taking on large volume, low cost work (such as conveyancing, or low value personal injury claims) can limit the scope of their retainer. It is clear that paying less, or even nothing, for a professional service does not alter the standard of the work that must be completed (see Burgess v Lejonvarn [2017] EWCA Civ 254) However, in this case, it was successfully argued that the low fee and strict limitation of the retainer circumscribed the work that had to be done (following Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303, Denning v Greenhalgh Financial Services Ltd [2017] EWHC 143 (QB). In particular, HHJ Mitchell found that there was no obligation on CWC’s part to advise on matters which were features of the wider development as opposed to this particular property. They were entitled to rely on the results of the searches, which did not raise any particular concerns (therefore distinguishing Orientfield Holdings v Bird & Bird [2017] EWCA Civ 348). There was no need to make further enquiry, or read hundreds of pages of planning material that related to the development. The facts of this case certainly did not mirror those in Faragher v Gerber [1994] EGCS 122, on which the Claimant relied, where the purchaser was not told that the Limehouse Link Road was to be constructed directly outside her front door (and where her solicitors did not carry out their own searches, but relied on a photocopy provided by another firm!)

Secondly, there was a time pressure element. The Claimant had agreed to exchange and complete within 28 days of her reservation. In return, the developer offered a £3000 discount and various other incentives. The developer put huge pressure on the Claimant to abide by this timescale, and she in turn put huge pressure on CWC. Witnesses on both sides agreed that this was tantamount to bullying. The deadline was achieved. What role did this play? CWC’s primary position was that it would have been impossible to undertake the wider investigations that the Claimant alleged were necessary in the time allowed. Moreover — and more importantly – even if they had had the time, they still would not have gone beyond the search results, which gave no indication that the FVLR was to be built in such close proximity. The court preferred the second argument, which was supported by the evidence of the conveyancer at trial. Extra time would have made no difference, because there was no obligation to go further than the search.

However, professionals should be alert that merely being under significant time pressure is no bar to finding of breach in different circumstances. If it is not possible to complete the tasks mandated by the retainer in the time allotted, a professional should warn their client clearly and in writing. In my view, had the court found that CWC should have looked at the documents, but did not have time, that may well have amounted to a breach of duty.

Third, the quality of expert evidence matters. This claim failed because the Claimant could not show that there had been any breach. If the court had had to grapple with causation and loss, it would have been confronted by expert reports from local property surveyors with very different approaches. The Claimant’s report was from an accomplished expert witness who gave little appearance of bother in the witness box when the errors and inaccuracies in his report were pointed out. He immediately admitted that he was not experienced in undertaking individual home surveys (such as a RICS Homebuyer survey) and that parts of the report had been copied and pasted from earlier reports written in respect of other litigation. That meant that significant inaccuracies about the property in question had made its way into the report. Lastly, it was obvious that the Claimant’s surveyor felt quite strongly about the proximity of busy roads to houses. He would not want to live in a house on or near a busy road. That’s fine – horses for courses. However, it was obvious that he had allowed his subjective view to colour his objective, professional opinion.

This was all ripe for exploitation at trial. It was clear that the court would have trouble relying on the Claimant’s expert evidence, even if her expert’s performance in the witness box was polished. If there’s an error in a report, correct it. If an opinion is expressed in a section that purports to be an objective, expert assessment, remove it or qualify it.

Lastly, when should a claimant obtain an award of general damages for distress and inconvenience resulting from an alleged breach of contract? Farley v Skinner [2001] UKHL 49 plainly allows for it, but my view is that it should only be pursued in quite exceptional circumstances. It is not enough to say that because a professional (of any sort) is instructed, the object of that instruction is for peace of mind. The object of the instruction is for that professional to complete their work to a satisfactory standard and in compliance with the terms of their retainer. In this case, the Claimant claimed that the building work and the foreseeable possibility of pollution and heavy traffic passing close to her new house had caused her distress and would continue to do so. However, there was no medical or other evidence in support of this. Her witness statement did not detail any steps she had taken to mitigate or avoid the distress, and no detail of its impact was given. It was assumed. This is not enough.

This was a claim fought on all bases: breach, causation, and loss. Over the course of 2 days, lay and expert witnesses were cross-examined and their evidence and the law carefully considered.

The claim was dismissed, and a significant interim order for costs imposed.

Francesca O’Neill acted for the successful Defendant, instructed by Claire Collinson and Kitty Cheung of Reynolds Colman Bradley.

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