Francesca O'Neill Successful In Professional Negligence Trial

• Published date: 16 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Ms Francesca O'Neill

Professionals' scope of duty examined at trial: some thoughts

Harry v Curtis Law LLP ("CWC")

HHJ Mitchell

Since SAAMCO, and latterly MBS v Grant Thornton [2021] UKSC 20, lawyers generally think that they understand how arguments on the scope of duty for professionals should run. The law is constantly developing, but scope of duty is now rarely controversial. Despite that, the Claimant - a 2018 purchaser of a new build house on a large housing development in Derriford, Plymouth - got it wrong.

She had reserved the show home on an early phase of the development, on a quiet residential street, surrounded by what she assumed would be other quiet residential streets. CWC were a firm of local solicitors who had acted for her in selling a previous home, and the abortive purchase of another central Plymouth house. They acted for her on a low fixed fee conveyancing package. The scope of the written retainer promised to investigate title, and perform local authority searches. This they duly did, and the search did not give details of any major road schemes within 200m of the house.

The search was wrong. In fact, the Forder Valley Link Road ("FVLR"), a major new road development linking two parts of Plymouth was to be constructed along a route running past the end of the road on which her house was situated. The new road was less than 50m from her house. She sued CWC for breach of retainer/duty, claiming that they ought to have advised her about the road, and that she would not have bought it had she been so advised (although the claim was never pursued as a "non-tranaction"). She claimed that as a result she had suffered a diminution of value in the house, and considerable distress both of which sounded in damages.

The case has three interesting features. The first is the extent to which solicitors taking on large volume, low cost work (such as conveyancing, or low value personal injury claims) can limit the scope of their retainer. It is clear that paying less, or even nothing, for a professional service does not alter the standard of the work that must be completed (see Burgess v Lejonvarn [2017] EWCA Civ 254) However, in this case, it was successfully argued that the low fee and strict limitation of the retainer circumscribed the work that had to be done (following Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303, Denning v Greenhalgh Financial Services Ltd [2017] EWHC 143 (QB). In particular, HHJ Mitchell found that there was no obligation on...