News In Focus
16 November 2007
Damages calculation relevant for proof
A professional negligence action against a solicitor who allegedly failed to advise on a restrictive title condition attached to a house has been allowed to go to proof despite a challenge to the calculation of losses claimed.
Chris Sayer, trading as Chris Sayer Solicitors, is said to have failed to advise a couple, the Hendersons, who bought a lakeside property in West Lothian as a retirement home, that the house had to be occupied in connection with the running of a fish hatchery and sport fishery operated on the planning unit. The Hendersons say they were unable to comply with the condition and sold the property at a loss.
Mr Sayer argued that the claim was irrelevant because as respects damages, the Hendersons had simply listed the sums they paid out, added interest on the purchase price, and then deducted receipts. There was no fallback approach, such as diminution in the value of the property consequential on the restriction in the title.
The case was based on a failure to provide information, and loss could only be recovered if it was a consequence of the information being wrong, not if it would still have been incurred had the information been correct, such as money spent on the property which was not reflected in the selling price.
Lord Malcolm in the Court of Session said however that he could not be satisfied that the case as pled was bound to fail. "I can identify no obvious disconnection between the scope of the averred duties and the claimed losses, albeit there may be room for dispute on particular heads of loss and the specific sums; and of course a different picture might emerge after a proof", he said.
The judge commented that while the Hendersons "might have been well advised to offer more than one approach to calculation of their loss, I do not consider that it would be proper to dismiss the action at the relevancy stage". And he added that it might be shown that the case might prove after evidence to be a "negligent advice" rather than a "negligent information" case, which would attract a different approach to damages.
Lord Malcolm's decision can be read at http://www.scotcourts.gov.uk/opinions/2007CSOH183.html .