CAUSATION: LEGAL ADVICE : LOSS : PROFESSIONAL NEGLIGENCE : SOLICITORS : FAILURE TO GIVE PROPER ADVICE DID NOT CAUSE LOSS
The failure of solicitors to give proper advice did not cause any loss because the claimant would not have acted any differently if he had had the correct advice.
The appellant (W) appealed against a decision that his former solicitors (P) were entitled to their costs of acting for him and dismissing W’s counterclaim for damages for negligence. W had lived with his father in a housing association property of which the father was a secure tenant. W did not have a right to succeed to the tenancy. The father had died intestate. The housing association had issued a notice to quit and served them on W and on the Public Trustee. W had retained P to act for him in possession proceedings subsequently brought by the housing association in which W had counterclaimed seeking to exercise the right to buy. Thereafter the association had applied to amend by deleting the claim that the tenancy was subsisting and rely instead on the notice to quit as having terminated the tenancy. The amendment was permitted on the basis that the association had paid W’s costs down to that date. After the amendment W had been advised that he had no defence to the possession proceedings. W nevertheless appealed unsuccessfully against the order. The association obtained possession. W appealed but later withdrew the appeal. W changed his solicitors and P began proceedings for their unpaid fees. W counterclaimed for damages for negligence on the basis that P should have advised him that the effect of the notice to quit was to terminate the tenancy and that the failure to give proper advice caused W to take a course which was bound to fail. The judge gave judgment for P and dismissed the counterclaim. W argued that (1) the case was one of the incorrect advice on which he had relied and not failure to advise, that he had relied on the advice and suffered loss as a consequence; (2) that he should not have to pay for P’s work which turned out to be useless.
HELD: (1) Assuming that P had been negligent, in failing to investigate the facts fully and to advise on the effect of the notice to quit in particular, W failed to show any loss flowing from that negligence. If it was necessary to categorise the alleged breach in the instant case it was a case of failing to give proper advice rather than giving incorrect advice, Bristol & West Building Society v Mothew (1977) 2 WLR 436 considered. W could not show that he suffered loss by reason of P’s failure to advise on the effect of the notice to quit because, on the judge’s findings, he would not have acted differently if he had had that advice. He could not meet that point by showing that he relied on other advice which P gave. That advice was not the real cause of his loss. (2) The work performed by P had not been useless. There was no total failure of consideration. P had put in a defence and counterclaim which had kept W’s claim alive. That allowed him to remain in occupation and assert a right to buy. Some lack of skill along the way, which would not have affected how the case had been conducted, was not sufficient to deprive P of its fees.
Benedict White v (1) Paul Davidson & Taylor (A firm) (2004)