Professional Negligence – Maximising Damages
Often establishing a breach of duty is fairly straightforward in professional negligence cases. Recovering damages is harder. The recent Supreme Court decision in Tiuta International Ltd (in liquidation) v Villier Surveyors Ltd (2017), UKSC 77, illustrates the need before commencing an action, to consider exactly who caused what damage. Failure to do so can result in the recovery of only nominal damages and great legal expense.
It is interesting to note that the judges came to different decisions, but asserted a straightforward common-sense analysis that would lead to the right result. As a judge once told me – “I have found that common sense is not that common.“
The case involved a second loan agreement or what might be commonly known as re-mortgage. The final appeal held that the damages against the negligent valuer, would be limited to only the extra amount advanced between the first loan and the second loan. In this case, both the first and second loans were from the same lender. The first loan was repaid using part of the second loan, hence very little extra was advanced. Doubtless, after a considerable amount of expense, the disappointed lender will consider amending their claim to plead negligence in relation to the first valuation – they are not time barred in this case.
The Supreme Court’s decision flows from their analysis of the chain of transactions. However, it does not explain what would happen if there were two different loan companies.
In conclusion, this case illustrates the need to carefully analyse the history of any negligence. From that one can ensure that all proper defendants are included and every act of negligence that might be recoverable is pleaded. As such, it will inevitably lead to more complex pleadings requiring specialist legal analysis.