Barrister — Accusation of negligence — Freehold enfranchisement claim — Issue as to validity of appellant’s notice to enfranchise — Whether respondent should have advised appellant to serve second notice — Ruling for respondent — Appeal dismissed
The appellant purchased the remainder of a long lease of a property. In 1994, he served notice upon his landlords of his wish to acquire the freehold, pursuant to the Leasehold Reform Act 1967. The landlords initially admitted the claim, but then sought to withdraw that admission on the ground that the appellant had misrepresented the situation in his notice and did not, after all, satisfy the residence requirement in section 1(1)(b). They brought proceedings, challenging the validity of the notice and seeking an order under section 20(5) and (6) of the Act placing a five-year prohibition on the service of further notices.
In 1997, the respondent barrister was retained to advise on the defence to that claim. On the basis of the appellant’s instructions, he advised that the appellant had a strong case. He gave further advice at a conference in late 1998. At the hearing in 2000, judgment was given for the landlords. The judge found that the appellant had consciously or recklessly misrepresented or concealed a material fact, in that he had omitted to mention that, for part of the relevant period, he had not occupied the property as his sole or main residence, and had wrongly stated that he had had no other residences during that period. A five-year prohibition was placed on the service of further notices.
The appellant brought a claim against the respondent, alleging negligence. He contended that the respondent should have advised him in 1997 or late 1998 to consider protecting his position by serving a further notice on the landlords, without prejudice to the validity of the 1994 notice. The respondent gave evidence that he had considered that possibility, but had rejected it, concluding that it would be impossible to formulate the notice in such a way that it did not falsify the original notice or render itself vulnerable to attack on the same grounds as before. Ruling in favour of the respondent, the judge held that a new notice would have been unlikely to improve the appellant’s position in a significant way but could easily have worked to his disadvantage, and that the respondent had not been negligent in deciding not to advise on such a course. The appellant appealed.
Held: The appeal was dismissed.
The respondent had not been negligent in omitting to advise the appellant to serve a further notice. He had given advice and conducted the defence on the basis of the appellant’s instructions as to the relevant facts and the evidence that the appellant would give. The appellant’s claim had failed not because of any negligence on the part of the respondent, but because the judge had not accepted that evidence. When giving advice, the respondent had had no reason to doubt his client. His instructions had been to defend the original notice and for good reason, since the service of a second notice posed problems of presentation both as to the contents of the second notice and as to the appellant giving credible evidence about the original notice in court. There had been an obvious downside to serving a second notice under the Act, even one stated to be without prejudice, since it could still have provided useful material to the landlords for cross-examining the appellant on matters relevant to the validity of the first notice. It would also have been difficult to draft a notice that complied with the requirements of the Act. In those circumstances, the appellant had failed to show that service of a second notice had been a reasonably practical possibility that would have protected his position.
Richard de Lacy QC (instructed by Nicholas Morris) appeared for the appellant; David Halpern (instructed by Addleshaw Goddard, of Manchester) appeared for the respondent.
Sally Dobson, barrister
