Solicitor’s negligence — Mortgage — Solicitor acting for mortgagee — Mortgagor forging claimant’s signature on documents — Whether solicitor owing duty to claimant — Claim dismissed
The third-party mortgagee brought proceedings against the claimant and her husband in respect of a mortgage that it had granted in respect of their jointly owned property. The claimant subsequently brought a Part 20 claim against the defendant firm of solicitors, which had acted for the mortgagee.
The mortgage had been granted to the husband following the couple’s separation. The transaction had required, inter alia, a letter of consent and a form of transfer signed by the claimant. The husband forged the claimant’s signature on both documents. The defendant proceeded to register the transfer and mortgage on behalf of the mortgagee.
The mortgagee succeeded in its claim against the claimant and her husband, obtaining a charge on the husband’s beneficial half-interest in the property and possession for purposes of sale. In the meantime, the claimant and her husband finalised their divorce.
In her Part 20 claim, the claimant contended that the defendant had acted negligently and in breach of duty in registering the transfer and the mortgage. She argued that the defendant’s action had lost her the chance to obtain possession of her husband’s equitable interest in the property free of any charge, thereby causing her loss and damage.
Held: The claim was dismissed.
The circumstances could not justify the imposition on the defendant of a duty of care to the claimant, or any breach of such duty. The defendant had at all times been acting for the mortgagee alone, and had had no reason to suspect the authenticity of the relevant documents.
In any event, the claimant had suffered no loss. The transaction with the mortgagee did not affect any legal or equitable interest that she might have had in the property. Her claim, based upon the loss of a chance in the divorce proceedings, to obtain her husband’s interest free of any charge, was unrealistic. On the evidence it appeared that the intention had always been for the property to be sold and the proceeds divided, which was what, in fact, had occurred.
The claimant appeared in person; Grant Armstrong (instructed by Robin Simon LLP) appeared for the defendant.
Sally Dobson, barrister
