Licensed conveyancer – Sale of land – Sale not completed – Whether licensed conveyancer negligent – Whether plaintiffs losing chance that sale would have been completed – Judge finding for defendant – Plaintiffs’ appeal dismissed
The plaintiffs were the owners of a plot of land known as Boskennal Farm, Cornwall. In 1989 the plaintiffs entered into two agreements, the first, for the sale of the farmhouse, was completed in March 1989. By one the terms, the plaintiffs agreed to build an access road to the land being sold over the land which they retained, granting the purchaser a right of way over the road. The second agreement was for the sale of the balance of the land on which stood barns in respect of which planning permission had been granted. The purchaser was Pembercross and the price was £380,000. The plaintiffs instructed the defendant, B, a licensed conveyancer, to act for them in relation to this sale. B entered into negotiations with solicitors acting for Pembercross, in the course of which B agreed that the contract would provide for title to be deduced from a conveyance dated January 17 1911. The plaintiffs were not in a position to trace their title back to that conveyance, but could prove a good title deduced from a conveyance dated April 11 1930.
Completion should have taken place on June 2 1989, but problems arose as to the site of the access road and a variation was proposed to deal with this. A deed of rectification was drawn up varying the purchaser’s access rights to which the purchaser’s solicitors objected, alleging that the plaintiffs had made a number of promises not incorporated in the deed. By June 2 the disputes had not been resolved. Between June 5 and June 24 B, a sole practitioner, was away on his honeymoon. He had made arrangements to deal with his absence, but returned to find no progress had been made with the plaintiffs’ sale, which in fact was never completed. On May 5 Pembercross had been prepared to buy the land for £380,000, but by mid-July had withdrawn an offer of £300,000. In 1993 the plaintiffs commenced proceedings claiming that the sale fell through because of the breaches of a duty of care owed by B in contract and in tort, and because a falling market prevented them from finding an alternative buyer. They also alleged that B had robbed them of the chance of completion of their sale. The judge found for B, and the plaintiffs appealed alleging that the judge wrongly failed to find that the plaintiffs had made out eight separate allegations of negligence.
Held The appeal was dismissed.
1. On the facts, the judge had been correct to hold that the loss of the sale was not caused by negligence on the part of the defendant, whose conduct had not fallen below that expected of a reasonably competent conveyancer.
2. The use of the form of a deed of rectification to give effect to agreed variations to the contract had no causative effect on subsequent events, and could not reasonably have been foreseen as posing any potential impediment to completion.
3. The defendant had not caused the plaintiffs to lose the chance of completing the contract that had been concluded: that chance had always been there. The reasons why the plaintiffs had not availed themselves of it were complex and were not the fault of the defendant.
Jonathan Marks QC and Laurence Marsh (instructed by Preston Goldburn, of Falmouth) appeared for the appellants; Grant Crawford (instructed by Lloyd Cooper) appeared for the respondent.
