the professional negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Jackson: when is a deadline for a court order 'not written in stone'?

The case of Re Atrium Training Services Limited [2013] EWHC 1562 (Ch) is the latest judgment from the High Court which considers the new rules. The judge was faced with an application to extend time to comply with a court order for a massive disclosure exercise. This came against a background of a history of breaches of a timetable set by the court. The judge underlined the strictness of the new regime but tempered it with comments which are likely to be cited for a long time to come about the dates for compliance with some court orders not being ‘sensibly regarded as written in stone’. He granted the extension of time sought but made an Unless order for compliance. The judge was clear that the application was for an extension of time made before the deadline for compliance with the court order had passed. It was therefore to be decided under the overriding objective and not as an application for relief of sanctions. The Court of Appeal set out the guidelines for applications for extensions of time in Robert v Momentum Services Ltd [2003] EWCA Civ 299. Since then the overriding objective has been amended to include the enforcement of and compliance with orders. Henderson J said that a court would examine an application for an extension more rigorously than it might have done before 1st April and he discouraged the easy assumption that an extension would be granted just because there was no prejudice to the other side. However Henderson J went on to counterbalance this by saying that it was important not to go to the other extreme and to avoid encouraging unreasonable opposition to extensions which are applied for in time and which involve no significant prejudice to other parties. He said “in cases of that nature, considerations of cost and proportionality are highly relevant, and the wider interests of justice are likely to be better served by a sensible agreement, or a short unopposed hearing, than by the adoption of entrenched positions and the expenditure of much money and court time in preparing for and dealing with an application that could have been avoided.” In fact he went even further saying: “although all court orders mean what they say, and must be complied with even if made by consent, there are some orders relating to the completion of specified stages in preparation for trial (such as disclosure, the exchange of witness statements, or a timetable for expert evidence) where there may be so many imponderables when the order is made that the date for compliance cannot sensibly be regarded as written in stone. Everything will always depend on the circumstances of the particular case, and the stage in proceedings when the order is made, but in many such cases it should be understood that there may be a need for reasonable extensions of time or other adjustments as the matter develops. It would, I think, be unfortunate if the new and salutary emphasis on compliance with orders were to lead to a situation where, in cases of the general type I have described, a reasonable request for an extension of time were to be rejected in the hope that the court might be persuaded to refuse any extension at all.”   It is undoubtedly better to be applying for an extension of time before a deadline expires than for relief from sanctions afterwards. The pragmatic approach of Henderson J will be particularly useful if you find yourself in that situation.

Fraud, forgery and conspiracy: Inferring Dishonesty

“The Bank was just able to put salt upon his tail - and only just.” So says a prison warder in Dickens’ David Copperfield of how Uriah Heep came to be convicted and sentenced to transportation for life for “fraud, forgery and conspiracy” in a “deep plot for a large sum” against the Bank of England. The Uriah Heeps of our times have practised mortgage fraud and their epilogues are pronounced by the Court of Appeal Criminal Division. In R v Kimani [2012] EWCA Crim 2881 the prosecution’s case was that Mrs Kimani’s signature appeared on a mortgage application form for a purchase from a “Mr Kibiku”; that “Mr Kibiku” was in fact Mrs Kimani’s husband; and that the purchase was a sham to release equity from a property already owned by the family. Mrs Kimani appealed her conviction, claiming be a woman dragged down by a mountain of evidence against her co-accused (her husband and a dishonest mortgage broker). She acknowledged that the application form had contained falsehoods, including as to her nationality and employment, but argued that there was no evidence that she knew that the application contained false information. So what was the salt upon Mrs Kimani’s tail? As Davis L.J. said, “The evidence against the appellant was essentially circumstantial, but it was none the worse for that”. There were a number of strands to the evidence: ·         A sum corresponding to the balance due on completion had appeared in her joint account on the day of the purchase ·         She was named as the landlord in a Council document prior to the purchase ·         A Council document completed by a tenant described her as the wife of “Mr Kibiku” These factors were specific to Mr Kimani but the Crown Court judge had also considered that the “generalities of the situation, her own knowledge of her own means” and the fact “that ordinarily an applicant would know of the content of an application form they signed” were matters from which the jury could be invited to infer dishonesty. I leave you with words of the penitent Uriah Heep which you may think have some resonance to our own banking troubles: “Before I come here, I was given to follies; but now I am sensible of my follies.”

Surveyors surveyed

Judgments which contain a review of the authorities are always useful to the busy practitioner.  One such is that of Coulson J. in Webb Resolutions Ltd v. E. Surv Ltd [2012] EWHC 3653 (TCC), where he discusses the law relating to surveyors’ negligence in making mortgage valuations.    The judgment also contains one or two discrete titbits worth remembering and is entertaining when dealing with the quality of the expert evidence about lending and with the Claimant’s lending policy itself, about which the judge is characteristically forthright.  Alas, I am going to deal with the less jolly matter, the law. The judge first sets out the standard of care expected of the surveyor as found in Jackson and Powell, namely, that of the ordinary skilled man exercising the same skill as himself.   “He is variously described in the cases as the ‘reasonably skilled’, ‘competent’, ‘prudent’ or ‘average’ surveyor.”  He then points out that the basic common law duty can be extended, reduced or modified by the terms of the contract between lender and valuer and goes on to examine the terms of the particular retainer.  One of the terms related to the standard of care.  The surveyor was to “observe the standard of skill, care, competence and diligence in performing its obligations which a prudent manager and supplier of property valuations and appraisals would observe practicing a profession in which it or their being employed for the purposes of this Agreement.” Did the use of the word “prudent” impose on the surveyor a higher standard of care than that demanded by the common law?  The answer was No.  Prudence was one of the yardsticks used by the common law to measure the duty of care.  Moreover, as a matter of dictionary definition it did not necessarily mean “conservative” or “erring on the side of caution”. The terms of the agreement made clear that the valuations were required for a mortgage company providing loans on the security of residential property.  So, it was argued, the valuations ought to have been arrived at on the basis of the re-sale value of the property, on the assumption that the borrowers might default.   The judge rejected that argument as being contrary to the authorities of Singer and Friedlander Ltd v. John D Wood and Co. [1977] 2 EGLR 84 and Banque Bruxelles Lambert SA v. Eagle Star Insurance Co. Limited  [1995] QB 375.  In reaching his conclusion as to value, a valuer must ignore the purpose for which the valuation is required.  It must reflect the true market value of the land at the relevant time.  In the absence of special instructions it is no part of a valuer’s duty to advise on future movement of property prices.  Here there was nothing in the agreement that would have alerted the valuer to the risk that the valuations had to be carried out on a special or unusual basis. The Claimant required the valuer to complete its valuations on electronic valuation forms, a “tick-box” process, and issued guidance notes for the purpose.  Those required: (1)    only information requested on the form to be provided, not any additional information; (2)    since it was a “tick-box” format, no additional text to be added within the body of the report; (3)    since there was no general remarks section, no additional pages of text to be supplied. “All our information requirements are met by the tick boxes provided on the form.” In respect of one particular valuation the question arose as to what the valuer should do if his obligation to take reasonable care required him to say something which could not be accommodated by the tick-boxes.  The general answer was that in such a case the valuer was to ignore the guidance notes and add words to the form or produce a covering letter.  To do anything else would be a plain breach of duty. Having dealt with those issues, Coulson J. then examined the authorities relating to negligent valuations. Methodology or result? Was the court to focus on how the valuer went about his task (the methodology) or on the consequential valuation (the result)?  How relevant was it that the valuer made a number of errors in going about his valuation if in the final analysis his valuation was reasonable?  The judge decided that one should focus on the result, the valuation itself: see Lewisham v. Morgan [1997] 2 EGLR 150; Merrivale More PLC v. Strutton Parker (a firm) [2000] PNLR 498, Goldstein v. Levy G (a firm) [2003] PNLR 35.  If the valuation was outside the reasonable margin, while not automatically rendering the valuer negligent, that highlights his methodology and provides a case to answer. Questions as to how the valuations were carried out might become relevant if the valuer alleges contributory negligence on the part of the client and the court then has to apportion blameworthiness. Margin of error It was accepted that in any negligent valuation case there is a permissible margin of error.  In cases of complex calculations for investment purposes it is usual for the bracket to be assessed by reference to each of the variable figures used in set formulae: Goldstein v. Levy G and Derek Dennard and Others v Price Waterhouse Coopers LLP [2010] EWHC 812(Ch).  In the case of residential valuation, however, it was agreed there should be just one bracket, calculated by reference to the correct valuation figure.  Coulson J., however, thought it potentially unwise to fix the bracket solely by reference to earlier authorities but they might provide some rough parameters.  He rehearsed the cases: Singer and Friedlander; Corisand v. Druce and Co. [1978] 2 EGLR 86; Legal & General Mortgage Service Ltd v. HPC Professional Services Ltd [1997] PNLR 567; Mount Banking Corporation Ltd v. Cooper and Co. [1992] 2 EGLR 142 and Arab Bank PLC v. John D Wood Commercial Limited [1998] EGCS 34; Axa Equity and Law Home Loans Limited v. Goldsack & Freeman [1994] 1 EGLR 175 and BNP Mortgages v. Barton Cook and Sams [1996] 1 EGLR 239; Paratus AMC Limited v. Countrywide Surveyors Limited [2011] EWHC 3307 (Ch) and Platform Funding Limited v. Anderson and Associates Limited [2012] EWHC 1853 (QB).  In K/S Lincoln and Others v. CB Richard Ellis Hotels Limited [2010] EWHC 1156 (TCC) he himself had summarised some of them as follows: (a) For a standard residential property, the margin of error may be as low as + or – 5%; (b) For a valuation of a one-off property, the margin of error will usually be + or – 10%;        (c) If there are exceptional features of the property in question, the margin of error could be + or – 15%, or even higher in an appropriate case. He stood by that summary and dealt with each valuation before him accordingly. Contributory negligence Again, the judge set out the relevant law.  The burden was on the surveyor to show that the client had failed to look after its own interests and that the failure caused loss: Davis Swan Motor Co. Limited v. James [1949] 2 KB 291 and Banque Bruxelles v Eagle Star Insurance at first instance [1994] EGLR 68 at 99. In general terms, the applicable standard of care was that of the reasonably competent professional or practitioner.   In this case Coulson J. had to examine the Claimant’s lending policy.  Had it done what its competitors in the market were doing?  If so, negligence was unlikely, unless its conduct was irrational or illogical: see e.g. Banques Bruxelles.  He did note Sir John Vinelott’s warning in Birmingham Midshires Mortgage Services Limited v.  Parry [1996] PNLR 494, however, that the behaviour of the market is not necessarily a reliable guide;  there might be good commercial reasons which lead businessmen to take risks.  In Paratus Judge Keyser had noted that the courts were not well-suited to assess whether the business models of entire sectors of the financial services industry were reasonable in the interests of those who undertook them.  Coulson J. decided that the standard to apply was that of the reasonably competent centralized lender, acknowledging that in applying it he should be wary of concluding that practices common in the market were in fact irrational. Having thus warned himself, he went on to say that lending large sums on a self-certified basis, relying on intermediaries and placing complete faith in computerised tick-box forms "seems to me to be a potential recipe for disaster."  But, he acknowledged, such lending was common in the years 2004-2007.  So he could not say that, in respect of one of the loans he was dealing with, the decision to lend was irrational or illogical or negligent. So one might conclude that, if enough people take enough risks enough of the time, they might in hindsight be feckless but they are not negligent.  

Mortgage valuer's duty to report plot size

To what extent is a surveyor, who provides a mortgage valuation, obliged to check on the property’s precise acreage? This question was recently considered by Lord Glennie in Phimister v DM Hall LLP [2012] CSOH 169. The Claimant was a fisherman who, when not at sea, was a property developer. In 2007 he found a possible property (“Property”) comprising “traditional dwelling house and steading” plus diary, garages, outhouses and coal sheds, which according to the estate agents’ particulars as located on a “1.12acre plot with superb views”. After the Claimant’s offer of £240,000 was accepted by the vendors, he applied for a loan and the Defendant was instructed to provide a mortgage valuation. The report, which stated the Defendant’s understanding that the site was 1.12 acres, valued the Property at £230,000. This figure excluded any consideration of development value. Having purchased the Property the Claimant discovered that it was only 0.66 acre with the result that he could not develop it in the way he’d anticipated. The Claimant argued that the Defendant should have checked the size of the Property’s plot and that the smaller area severely restricted his opportunity to develop the site. This argument was never going to get anywhere given the judge’s findings that (1) the Defendant was instructed to carry out a mortgage valuation of residential property, (2) he was never told about the Claimant’s development plans, (3) the Property’s main value lay in the buildings and not in the amount of the land involved and (4) it would not have been obvious to a surveyor that the site was substantially smaller than 1.12 acres. Lord Glennie’s decision illustrates the sort of factors that determine the scope of the surveyor’s duty. It also emphasises the point that a surveyor is not automatically negligent because his valuation contains inaccurate details. A claimant must still establish breach of a material duty.

Tax and damages

More on Capita Alternative Fund Services v Drivers Jonas [2012] EWCA Civ 1417 (see earlier posting), which concerned the valuation of a factory outlet shopping centre (“FOC”) at Chatham Dockyard. The Claimants were a variety of investment vehicles and the FOC was in an Enterprise Zone. Hence the individual investors obtained substantial tax credits. In calculating £18.05m damages, the judge rejected the Defendant’s argument that the Claimants’ damages should be reduced by the amount of their tax credits. The Defendant appealed on this (and other points) arguing that the failure to take tax credits into account offended the compensatory principle. The Court of Appeal, which was unanimous on this point, took as its starting point the “general rule” (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39) that damages had to be compensatory. It accepted that it was necessary to look at the market value of the whole transaction to assess the loss suffered (Ford v White [1964] 1 WLR 885, 888). It was unreal to leave tax considerations out of account because tax considerations were part and parcel of the scheme. Hence the principle of BTC v Gourley [1956] AC 185 was applicable and damages had to be adjusted accordingly. The Court of Appeal’s solution was to deduct tax relief from both the Defendant’s valuation figure (£62.85m) and the correct market value (£44.8m). Once this was done, the Claimants were entitled to damages of £11.86m. As the Court of Appeal recognised, it is not appropriate to take tax into account in every claim for damages. The matter is, at it recognised, “one of fact and degree”. Nevertheless where the Gourley principle does apply, this may have a significant impact on damages.