PROVING THINGS 86: CLAIMANTS PROVE THE FACTS BUT FAIL TO PROVE CAUSATION: A SALUTARY TALE

The decision of His Honour Judge Simpkiss in O’Neill -v- Bull & Bull* (Canterbury County Court 5th February 2018) is an almost classical example of the need to prove things. It also provides a warning to non-contentious lawyers on the need to keep notes.   The claimants established negligence but then failed to establish causation and, thus, they had suffered any loss.

THE CASE

The claimants were buying a house and instructed the defendant solicitors. The mortgage company put a condition on the mortgage offer that a specialist report be obtained in relation to movement of the house. The report had to be available before the mortgage funds would be advanced. Contracts were exchanged. Completion was delayed because of the need to obtain a report, which was only appreciated after exchange. The claimants eventually obtained a report and the purchase was completed. They brought an action against the defendant solicitors claiming the diminution in value.

THE EVIDENCE OF THE SOLICITOR

The defendant’s major problem was that the solicitor could remember nothing of the precise words of the transaction and no attendance notes were taken. The solicitor gave evidence of his “normal practice” in advising clients at this stage.  The judge accepted the evidence as straightforward but there were no notes or letters that recorded that the claimants had been told a report was necessary.  The solicitor had been ” taken by surprise” when the mortgage company had refused because the condition had not been satisfied.

Consequently the judge preferred the evidence of the claimants and went on to find that this omission was negligent.

THE CLAIMANTS’ FAILURE TO PROVE CAUSATION

However the judge then went on to find that the claimants had not established that they had suffered any loss as a result of the negligence.  If the claimants had known of the condition on the mortgage they would have obtained a report which, eventually, would have satisfied the mortgage lenders.  The purchase would have proceeded.  The judge found that the claimants would have exchanged contracts at about the same time they exchanged contracts if the defendant had told them that a structural survey was necessary.

If, as was contended by the claimants, the house was now suffering from progressive movement and subsidence, this was not caused by the defendant’s breach of duty.

The claimants had not pleaded, in the alternative, the lost chance of negotiating a lower price with the vendor.

A SURPRISING OMISSION IN THE EXPERT EVIDENCE

Earlier in the judgment the judge observed that, although the case was listed for the purpose of liability and damages,  there was a problem with the expert evidence. The claimant had instructed a chartered surveyor/valuer but not an engineer. They sought permission to rely on an engineering report annexed to the valuer’s report, but no permission had been given to rely on it, “… it is a little surprising that this issue was not raised by anyone at the original CMC when directions for experts were given.”  In any event the problem was side-stepped by the court deciding to determine liability and causation.

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