Vendors selling land with development potential – Surveyors instructed to effect sale – Negotiations with two purchasers resulting in sale – Purchaser immediately selling land for substantial profit – Transactions completed – Vendors claiming surveyors had not obtained best possible price – Whether surveyors’ retainer restricted – Whether evidence had been properly considered – High Court dismissing vendors’ claim – Court of Appeal ordering retrial
The defendant firm of surveyors were instructed by the plaintiffs in relation to the sale of 15.32 acres of agricultural land owned by the first plaintiff and his sons. The land was part of the Ridgesgrove Farm situated east of Launceston, adjacent to Newport Industrial Estate. The site had development potential from April 1984 when it was so identified by North Cornwall District Council. The defendants negotiated with two prospective purchasers, Beazer Homes (West) Ltd (Beazers) and Wadebridge Co Ltd (Wadebridge). The outcome of the negotiation was that contracts were exchanged with Wadebridge on April 5 1988 for the sale of the site for a total of £1,302,000, conditional upon Wadebridge obtaining residential planning permission.
It was claimed that unknown to the plaintiffs, Wadebridge had entered into negotiations in April 1988 for a subsale of the site to Wiggins Homes Group plc (Wiggins) for a total price of £2,128,410, conditional upon the obtaining of residential planning permission. Planning permission was obtained and the transactions were completed. The plaintiffs issued proceedings and claimed that the defendant had negligently failed to market the property so as to produce the best price. The defendant claimed that they had suggested the possibility of widening the market by advertising it and throwing it open to any offers, but that the plaintiffs had rejected that suggestion, preferring to proceed with Wadebridge and Beazers. It was submitted therefore that the defendants’ retainer had been limited. The High Court held that the defendants had not acted in breach of its duty to advise and that in any event, if they had been advised as they claimed they should have been advised, the plaintiffs would still have proceeded as they had done. The plaintiffs appealed.
Held The appeal was allowed and a retrial was ordered.
1. There had been a substantial failure to deal with significant parts of the evidence relating to the plaintiffs’ witness statements disputing the defendants’ claim that the retainer had been restricted or limited, the plaintiffs’ evidence that it had no knowledge of Wiggins’s wish to purchase the site, and the defendants had not shown that if that evidence had been properly considered the judge would have come to the same conclusions.
2. Practice direction [1995] 1 WLR 262, which provided that witness statements were to stand as evidence in chief, should not be inflexibly applied. It would have been appropriate to ask the judge to exercise his discretion to order the key witnesses, between whom there was a conflict of fact, to give evidence in order to clarify the conflict of evidence to be resolved.
William Crowther QC and Daniel Pearce-Higgins (instructed by Foot & Bowden) appeared for the plaintiffs; Iain Hughes QC and Nicola Sheldon (instructed by Bond Pearce) appeared for the defendants.
