Matrimonial property – Valuation – Order of court providing for appointment of valuer in default of agreement – Valuer appointed – Husband challenging valuation – Appeal from order of district judge increasing valuation dismissed – Husband bringing action against valuer for professional negligence – Valuer seeking to strike out action – Whether husband attempting to relitigate – Application dismissed – Valuer’s appeal allowed
In proceedings in the Family Division following the dissolution of the plaintiff’s marriage, a deferred charge was ordered in favour of the plaintiff against his ex-wife’s replacement home with an option to the ex-wife to redeem by a payment based on a valuation of the property. A valuation was to be made, in default of agreement between the parties, by a valuer appointed under the auspices of the president of the RICS. In April 1992 the defendant was appointed as valuer. The property market was falling and in his report of July 1992 he valued the property at £70,000, which was £20,000 less than the value calculated by the plaintiff and £40,000 less that the amount offered by the former wife. The plaintiff applied to the district judge for a ruling as to the value of the property and subpoenaed the defendant to give evidence. The district judge thought the valuation ‘understated somewhat’, determined the value of the property as £80,000 and rejected the plaintiff’s complaints about the defendant’s professional competence. The plaintiff appealed and the judge, although upholding the district judge, commented upon the valuer’s duty of care and upon the power of district judge to make an alternative valuation. The plaintiff did not appeal but instead issued proceedings against the defendant claiming damages for negligence in undervaluing the property. The defendant sought to strike out the statement of claim and appealed against the refusal contending, inter alia, that the claim was an attempt to relitigate an issue which had already been decided.
Held The appeal was dismissed.
1. A valuer appointed as a result of an order made in the Family Division was not above challenge, although the policy now was to accord immunity from suit to such valuers. Where it was alleged that a valuation had been vitiated by negligence, the correct procedure was to apply to the original court under the mechanism afforded by the liberty to apply procedure . It was a matter to be corrected in the proceedings between the parties to the matrimonial settlement, one of whom would be disadvantaged by a correction in the figure arrived at a result of the valuation, and not by an action between the disadvantaged party and the valuer himself.
2.The district judge had been wrong to entertain the plaintiff’s application for a ruling and when the plaintiff had asserted that the valuation had been vitiated by professional negligence, the district judge, once he had satisfied himself that there had been no negligence, had no function to alter the valuer’s figure.
Lord Meston QC (instructed by Vizards) appeared for the appellant valuer; the respondent, Mr Northcote, appeared in person.