Professional negligence – Breach of contract – Solicitor – Respondent suing appellant solicitor for negligence and/or breach of contract in relation to property transaction – High Court finding for respondent that summary of Plansearch report would have revealed existence of potentially significant development – Appellant appealing – Whether judge failing to make finding of precise terms of Plansearch summary – Whether judge erring in finding that summary would have revealed existence of development – Whether only proper conclusion being that respondent would not have pulled out of transaction – Appeal dismissed
The respondent agreed to purchase from P a property known as 56 Avenue Road London NW8. The appellant acted as the respondent’s solicitors in relation to the transaction. Contracts were exchanged and the respondent paid a deposit of £2.575 million. Before completion was due to take place, the respondent (represented by a different solicitor) served a notice purporting to rescind the contract. P sought a declaration that the respondent’s deposit was forfeit. The respondent counterclaimed for the return of its deposit and damages for breach of contract. Those proceedings were settled on the basis that the deposit and all interest accrued thereon would be split equally between the respondent and P.
The respondent then claimed damages against the appellant for alleged breach of contract and/or negligence. The respondent’s case was that the appellant was in breach of duty by failing to discover or inform the respondent of the redevelopment of two small schools near the property to create an academy and specialist school for about 1,400 pupils in total, together with some residential units, despite carrying out a Plansearch report.
The High Court gave judgment in favour of the respondent. He found in the respondent’s favour in relation to the issues of negligence, causation and mitigation: [2015] EWHC 1963 (Ch); [2015] PLSCS 215. Permission to appeal was subsequently granted in relation to the issue of causation.
The appellant contended that: (i) despite finding that the appellant ought to have provided the respondent with a summary of the results of the Plansearch report, the judge erred in failing to make a finding as to what the terms of that summary should have been; (ii) the judge erred in finding that a summary of the Plansearch report would have revealed the existence of the development; and (iii) if the judge had made a finding as to precisely what the appellant should have told the respondent in the summary, and given that the development would not have been thereby revealed, the only proper conclusion was that the respondent would not have pulled out of the purchase and the losses would have been suffered in any event.
Held: The appeal was dismissed.
(1) It was clear from a proper analysis of the judgment in the context of the pleadings, the evidence and the way in which the arguments were presented at trial, that the judge had reached positive findings to the effect that a proper summary would have highlighted the development and explained its potential significance, the respondent would have then instructed the appellant to look into the development and the details of the development would have emerged.
(2) The sole focus of the case as opened and presented at trial was on the planned redevelopment of the schools and its potential significance. It would have been obvious to the informed reader from the face of the Plansearch report that the school development was, or was potentially at least, highly significant. In those circumstances, it would not have been difficult for any non-negligent solicitor to have prepared a brief summary of the features of the development, together with a recommendation as to what further steps were necessary to ascertain what the impact of such a development might be. Against that background, the fact that the judge did not himself formulate precisely the terms in which a non-negligent solicitor should have formulated the summary went nowhere. He had clearly and sufficiently considered what an appropriate summary of the Plansearch report would have revealed and his conclusion could not be faulted.
(3) Once the argument that the judge failed to consider the content of the summary had been rejected, there was no basis for the Court of Appeal to upset the judge’s conclusion that a summary of the Plansearch report would have revealed the development to the respondent. The judge had heard all the evidence and reached the wholly unsurprising conclusion that a non-negligent summary would have resulted in the detail of the development emerging. The respondent would have known about the development before the exchange and the conclusion that the respondent would have withdrawn from the purchase at that time was unassailable.
Joanna Smith QC and Tiffany Scott (instructed by Triton Global Ltd (t/a Robin Simon), of Leeds) appeared for the appellant; John Wardell QC and Geoffrey Zelin (instructed by Wedlake Bell LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read transcript: Orientfield Holdings Ltd v Bird & Bird LLP