The Court of Appeal has ordered that a claim for damages for alleged negligence against solicitor Bayer-Rosin, which was dismissed in the High Court in December 2000, should be reheard.
The appellants, Asiansky Television plc and Asiansky Properties Ltd, retained the solicitor in connection with the £1.3m purchase of 7.87 acres of land beside the A406 North Circular Road in 1992. Following the purchase, they discovered that contractor Balfour Beatty had access rights over part of the site under a compulsory purchase order (CPO) made by the Department of Transport pursuant to a road-improvement scheme.
The appellants subsequently brought a claim against the solicitor on the ground that it should have expressly advised them about the contractor’s right. However, the High Court held that the appellants would have purchased the site even if they had been given full and proper advice as to their title.
On appeal, Romie Tager QC, counsel for the appellants, argued that the judge had failed properly to consider whether the claimants would have proceeded with the purchase if they had been properly advised as to the full extent of the CPO and the resultant effect upon their ability to mortgage the site.
Agreeing, Laws LJ held that the solicitor had failed to put the appellants in a position where they were “able to decide what to do in the clear knowledge of the true effect of the implemented CPOs”.
The judge said: “The retainer, at the very least, embraced a duty to deal competently with issues directly touching the conveyance of the site. That obviously included the implications of the implemented CPOs.”
He added that, on the evidence, no sufficient basis existed for the lower court’s view that the appellants would have proceeded with the purchase regardless, and that the question of what they would have done if they had been properly advised could “unfortunately only be determined satisfactorily by a retrial at first instance”.
Asiansky Television plc and another v Bayer-Rosin Court of Appeal (Simon Brown, Laws and Arden LJJ) 11 November 2003.
Romie Tager and Neil Mendoza (instructed by Barker Gillette) appeared for the appellants; Christopher Gibson QC and Christopher Semken (instructed by Reynolds Porter Chamberlain) appeared for the respondent.
Linked to: Appeal Court to hear claim against solicitor in Asiansky property dispute; Solicitor’s negligence claim struck out
References: EGi Legal News 11/11/03
