pnBlawg

the professional negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Mortgage valuations and reliance

More on Phimister v DM Hall LLP [2012] CSOH 169 (see earlier posting), which concerned a valuation of a residential property in Scotland. The Claimant’s criticism is that the Defendant ought to have checked the Property’s acreage and, had he done so, he would have realised that it was 0.46 acres smaller.

Lord Glennie dismissed the claim on the primary basis that the Defendant did not owe any duty to check as alleged (see earlier posting). However, he rejected the claim on a number of alternative bases including causation. Having found that the Defendant was unaware of the Claimant’s plans to develop the Property, he decided in terms that it was unreasonable for the Claimant to rely upon the report, which had valued the Property for residential purpose, when deciding whether to buy the Property’s purchase for development purposes. Thus, had the Claimant been able to establish any material loss, it would not have been caused by the Defendant’s tortious breach of duty. Further, since the Defendant was unaware of the Claimant’s development plans, any loss connected with the Claimant’s failure to redevelop the Property was too remote and thus irrecoverable in contract.

Finally Lord Glennie considered the issue of contributory negligence. He agreed that the Claimant’s conduct was “unwise” or “shoddy”. Had he needed to make an award of damages, the judge would have found the Claimant contributorily negligent to the extent of 75% for proceeding to purchase the Property, with a view to its development, without first measuring it or obtaining a development appraisal.

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