Conveyance of property on new estate – Unadopted drain – Necessity for licence – Strip of land containing drain not conveyed – Purchaser of property claiming solicitor failing to advise as to nature of licence – Judge finding solicitor not negligent – Appeal dimissed
In 1982 the plaintiff retained the defendant to act in his purchase from the vendor of 10 Church Road, Swindon, a property on a new estate. The garden was laid out conventionally and the plaintiff was led to believe that the whole plot was for sale. The plaintiff instructed P, an experienced solicitor who had acted for him in other matters. On investigating the title, P was told that running under a six-metre strip forming part of the garden was a storm water drain which had not been adopted. It was expected that there would be a licence agreement in respect of the strip, which would in due course be conveyed to the plaintiff, and that there would be a drainage easement in favour of the water authority. On November 24 1982 the vendor’s solicitor set out the position in a letter to P. Two days later the plaintiff signed a licence agreement for a period of two years. In 1990 the plaintiff wished to sell the property. An inquiry from a prospective purchaser revealed that the strip had never been conveyed to the plaintiff and the sale fell through. The plaintiff was unable to sell the property.
In April 1991 the vendor transferred the freehold of the strip to the plaintiff for £1. The plaintiff brought an action against the defendant claiming damages for negligence and contended, inter alia, that P had never explained the nature and concept of a licence. At some time before the trial the defendant’s conveyancing file was lost and the trial proceeded, on the issue of liability alone, on the basis of the recollection of witnesses. The judge dismissed the action and the plaintiff appealed.
Held The appeal was dismissed.
It was not disputed that P had not advised the plaintiff on the day when he had signed the licence, but, as the judge had found, P had explained to the plaintiff shortly beforehand both the nature of the licence and the fact that the plaintiff would not at that stage be acquiring the title to the whole. The judge had considered the documents with great care to see where they supported the evidence and had concluded that the plaintiff, who was 35 at the time and a successful man of business who had been involved in other property transactions in the past, had nevertheless shown himself to be in some measure careless of his own interests. The plaintiff had contended that P’s evidence had been concerned solely with what he would have done in the circumstances and not what he had actually done. However the court was not convinced that the judge’s approach to the assessment of the evidence was not correct. He had decided the matter on the basis of the contemporary documents and had been entitled to conclude that P had not fallen short of the standard of care reasonably expected in advising a client in such a transaction.
Nicholas Storey (instructed by Berrymans, London agents for Shakespeares, of Birmingham) appeared for the appellant; Patrick Lawrence (instructed by Wansbroughs Willey Hargrave, of Birmingham) appeared for the respondent.
