Sale of property — Defect in title — Solicitors failing to notice defect — Action for damages against solicitor for negligence — High Court holding purchaser entitled to damages for legal expenses and cost of building works — No loss from diminution in value of property
The plaintiff instructed the defendant solicitors to act for him in the purchase of Warren Cottage, Camp End Road, which formed part of St George’s Hill Estate, St George’s Hill, Weybridge, Surrey. The estate agents’ particulars showed an open frontage and a raised circular brick planter 18ins by 6ft adjacent to the edge of the road. A residents association owned all land in the estate that did not form part of individual holdings. There was a continuing dispute concerning a strip of land on the eastern boundary of the property which required investigation before purchase.
The defendants sent a letter to the plaintiff to say that they had received draft contracts. It was accompanied by a copy of the file plan of the property. The plan showed clearly that the northern boundary of the property fell short of the road, contrary to the impression gained on site. Neither the defendant nor the plaintiff noticed that fact.
The plaintiff was concerned about the boundaries, generally and instructed the defendants to inspect them. The defendants subsequently reported that they had inspected the eastern, southern and western boundaries, but made no mention of the northern boundary. The plaintiff went ahead with the purchase oblivious of the defect in title relative to the north of the property and carried out building works. After nine months the residents association informed him of the correct position of the boundary. The plaintiff negotiated a licence to occupy the disputed land. The plaintiff later conveyed the property to a company owned by himself and his wife. It was sold for the current market value taking no account of the defect in title. The plaintiff claimed damages against the defendants under three heads: (1) for legal and incidental expenses, (2) for the cost of building works, and (3) for the diminution in value which accrued to the property because of the defendants’ negligent failure to give proper advice in relation to the northern boundary. A surveyor employed by the plaintiff to survey the eastern boundary was joined as third party.
Held Judgment was given for the plaintiff in part.
1. On the facts the third party was not guilty of any breach of duty to either party and the case against him failed.
2. Damages were recoverable under the first two heads because the plaintiff had reasonably expended money under the delusion that he owned the land right up to the road which was lost as a direct result of the defendants’ negligence.
3. A solicitor was under no duty under a general retainer to visit a site and inspect the boundaries, but once he accepted an instruction to do so, he was under a duty to take reasonable care to make a proper inspection.
4. In this case the defendants’ special instructions were not limited to particular boundaries but covered all sides of the property. Therefore, the defendants were in breach of duty to the plaintiff.
5. Damages were to be assessed in the real world: see Kenley v Endon unreported March 27 1996.
6. However, damages were not recoverable under the third head. In this case the plaintiff had suffered no loss in the diminution in value of the property because it was transferred at full value to the company.
Timothy Scott QC (instructed by Crellins, of Weybridge) appeared for the plaintiff; Glenn Campbell (instructed by Wansborough Willey Hargrave) appeared for the defendants; Oliver Ticciati (instructed by Berrymans) appeared for the third party.
