Assured periodic tenancy — Right to buy — Appellant seeking transfer of tenancy on death of father — Respondent solicitor acting for appellant — Respondent suing for fees — Appellant counterclaiming on ground of negligent advice — Whether respondent negligent in conduct of litigation — Whether appellant establishing loss — Appeal dismissed
The appellant’s father held an assured periodic tenancy of a property from the landlord housing association. The tenancy had a restricted right of succession but the appellant’s father had a right to buy pursuant to Part V of the Housing Act 1985. He died intestate in 1999.
The housing association rejected both the appellant’s claim for the tenancy to be transferred to him and his assertion of the right to buy. It served notices to quit on the appellant and the public trustee pursuant to section 18 of the Law of Property (Miscellaneous Provisions) Act 1994. The appellant instructed the respondent firm of solicitors to act on his behalf. A summons for possession was issued against the personal representatives of the deceased and the appellant and the housing association successfully applied for summary judgment on its claim. An order for possession was subsequently made. The appellant then changed solicitors and the litigation was eventually compromised, with a new tenancy being granted to the appellant together with an option to purchase the property.
However, the respondent brought an action for the balance of its fees. The appellant entered a defence, contending that the respondent’s advice had been inadequate and negligent, and he was not therefore obliged to pay for its services. He counterclaimed for the sums he had paid on account together with the costs of the possession order. The county court entered judgment for the respondent and dismissed the appellant’s counterclaim. Permission to appeal was granted on the grounds that it was arguable that the respondent had been negligent in failing to advise the appellant at the outset that reliance by the landlord upon the notice to quit served on the public trustee was bound to lead to a possession order and that some loss had resulted therefrom.
Held: The appeal was dismissed.
The appellant had failed to establish that he would have acted differently had he been advised of the lack of any prospect of success in the litigation. Consequently, he could neither recover damages nor deny his solicitor its fees and disbursements.
The fact that the appellant had relied upon the limited advice given and had followed it when putting in his defence and counterclaim was not sufficient to establish causation where the real cause of complaint was that his solicitor had failed to provide him with the advice that he was entitled to expect in order to make an informed decision about his response to the claim against him.
The judge’s findings of fact made it clear that the appellant would have persisted with the same course of action even if he had been fully warned of the associated dangers. He could not therefore prove a causal link between any loss suffered and the respondent’s failure to give the relevant advice.
There had been no failure of consideration in respect of the respondent’s entitlement to its fees. The respondent had put in a defence and counterclaim that had kept the appellant’s hopes alive. He remained in occupation and continued to assert his right to buy, which eventually succeeded. A lack of skill on the part of the respondent which would not have affected the way in which the case had been conducted, was no justification for depriving the respondent of remuneration for work done pursuant to its instructions.
The appellant appeared in person; Simon Mills (instructed by Paul Davidson Taylor, of Horsham) appeared for the respondent.
Eileen O’Grady, barrister