Lawyers often find themselves in a cleft stick. Their clients require confident advice on which they can act. However, they also need to be advised on the potential risks of doing so. The problem is particularly acute in cases where conveyancers are asked to advise on the meaning or enforceability of rights that benefit or burden land.
In Herrmann v Withers LLP [2012] EWHC 1492 (Ch) the court had to decide whether a firm of solicitors had negligently advised their client that the house they were purchasing enjoyed access to an enclosed garden in Ovington Square in London.
The use of the garden was governed by a local statute, which was open to different interpretations. After consideration, the solicitors acting for the buyer came to the conclusion that their clients would be entitled to use the garden. They advised their client accordingly, without expressing any doubts about their conclusion or explaining that a court might take a different view.
Following completion, the buyers were refused a key to the garden because their house was on a side street and did not face, or form part of, the square, even though the property was known as “37 Ovington Square”. The buyers pressed their claim in court and lost – and then issued proceedings against the law firm that had acted for them. They alleged that the firm had negligently failed to advise them that the seller’s replies to enquiries about the use of the garden had been unsatisfactory and that there was a risk that the Kensington Improvement Act 1851 did not extend as far as the property.
However, that did not mean that the firm had been entitled to regard the position as clear-cut. The seller had not been able to answer their questions about access to the garden and the 1851 Act was unclear. Consequently, they ought to have realised that there was a serious risk that their interpretation might be wrong and had negligently failed to warn their clients that there was scope for argument over their entitlement to use the garden.
The court applied the decision in Queen Elizabeth’s Grammar School Blackburn Ltd v Banks Wilson [2001] EWCA Civ 1360, which has been followed in a series of subsequent cases. The ruling reminds us that the law is not an exact science and that lawyers and judges frequently construe documents differently.
Consequently, practitioners would be well-advised to warn clients if the provisions of a document are ambiguous and, when advising on the interpretation of such provisions, to add a caveat that a court might construe them differently. This is especially important now that the courts take a contextual – as opposed to a literal – approach to interpreting documents, since this can sometimes produce unexpected results.
Allyson Colby is a property law consultant
