Conveyancer Negligence: Failure to advise on chances of getting planning permission

A claim has been issued by Zipporah Lisle-Mainwaring for £4.6 million against her former conveyancing solicitors Charles Russell Speechlys and argues that she should have been warned that she stood no chance of getting planning permission at the time she bought the property due to Kensington and Chelsea council’s policy of protecting office space.

If you have purchased a property, you will either seek the advice and representation of a solicitor specialising in conveyancing or a licenced conveyancer. If you have relied on a conveyancer’s services and the advice and work done has (for example) resulted in a purchase or sale falling through or the price of the property to decrease, then you may be able to claim compensation for conveyancing negligence for your financial loss.

We are specialist professional negligence lawyers with expertise in claims against specialist property solicitors and licenced conveyancers. If you have a claim, contact our expert team as soon as possible as all litigation has strict time limits which you must adhere to.

The Facts

 The claimant argues that had she been properly advised by the conveyancing solicitors, she would either have not purchased the property straight away or she would have obtained specialist planning advice and then not purchased the property.

On the other hand, the defendant claims that she knew she was taking a big gamble in purchasing a property without residential use permission (and eventually got that permission albeit in a more limited form than what she originally anticipated).

Who regulates property solicitors?

Licenced conveyancers are specialist legal professionals that have been specifically trained to practice property law. Solicitors can also deal with property transactions.

Legal professionals such as solicitors and barristers are highly trained and rigorously regulated by the Solicitors Regulation Authority (SRA). A high level of trust is placed upon such lawyers by their clients. If a lawyer fails to deliver the service to the standard expected of a reasonable professional in the speciality field of conveyancing, then a client has every right to bring a complaint (and court proceedings) if financial or personal loss is suffered as a result.

Who regulates licenced conveyancers?

Licenced conveyancers are regulated by the Council for Licenced Conveyancers (CLC), which is the specialist property law regulator. The CLC provides regulation for those conveyancers who do not practice as solicitors, but instead are specialists, who have been trained only in conveyancing. The CLC investigates misconduct, takes disciplinary action and sets training standards for licensed conveyancers.

What is the time limit for commencing a claim against a conveyancer?

Time limits and limitation periods are essential to adhere to in litigation. Missing a limitation period is fatal to the chances of success of any claim and will leave a claim statute barred.

When it comes to ascertaining the limitation date for a particular claim, there are a number of factors to consider. In simple terms, the limitation period is six years from the accrual of the cause of action (section 2, Limitation Act 1980). However, if the six year time limit has passed but you have only just discovered the effect of any latent damage (for example you later realised that a restrictive covenant had not been discovered upon inspection by the conveyancer and this has only come to light), then the limitation period may be extended to three years from the date of knowledge (section 14A, Limitation Act 1980).

Do I have a claim in contract or tort?

Usually both. Another complicating factor is that in almost all circumstances, a legal professional will owe a client concurrent duties i.e. a duty in both contract and tort. This means it is up to the claimant to choose whether to bring an action in contract, tort or both. The relevance is that although both contract and tort have a limitation period of six years after the relevant cause of action accrues, in contract the cause of action accrues once the relevant contractual term is breached and in tort it accrues once damage has occurred. Therefore, limitation periods for both causes of action vary.

If you have a complaint against a property solicitor or conveyancer, then our advice is that you take independent legal advice as soon as possible.

How much is my claim worth?

A general rule of thumb is that the starting point will be the reduction in the value of the property as a result of the negligence from the conveyance. Quantification of losses is a significant part of any negligence claim. It is likely that expert evidence will be required to ascertain losses (usually from a surveyor, valuer or forensic accountant).

How do I prove that my conveyancer has been negligent?

Significant judgments in cases against property solicitors and licenced conveyancers all highlight that three essential elements are required to prove a successful allegation against a conveyancer.

The following three elements need to be proved to the civil standard of proof on a balance of probabilities i.e. it must be proven that the lawyer’s breach in the duty owed to its’ client, more likely than not caused the client to suffer loss.

How do I prove my conveyancer owed a duty of care?

The boundary lines between when a tortious duty of care is owed or not owed is subject to tests that are being continuously adapted by the courts. It is safe to say that a duty of care exists where the conveyancer can be shown to have objectively assumed responsibility (and the courts have demonstrated increasing willingness to find that a conveyancer is liable to whomever reasonably relies on their advice). Once a conveyancer accepts instructions and you have signed the client care letter, a contractual duty of care will likely be found within that document.

How do I prove that my conveyancer has breached the duty of care?

Proving breach will obviously vary depending on the individual circumstances of the case. A claimant needs to demonstrate that the breach shows that the conveyancer fell below the standards of a reasonably competent property conveyancer. The particular level of experience of the coveyancer or property specialist solicitor (from newly qualified trainee solicitor to highly experienced partner) is not relevant- inexperience is no good argument to persuade the court to lower the standard of care. However, if a lawyer or firm hold themselves out as specialists in an area (for example solicitors specialising in conveyancing), then the court will hold them to standard of reasonably competent specialists of conveyancing law.

How do I prove that my conveyancer’s breach has caused loss?

The test for factual causation is that “but for” the breach you would not have suffered loss, for example if a limitation date and as a result your claim becomes statute barred and you lose the chance to substantial damages in the substantive claim, factual causation is demonstrable because “but for” the solicitor’s negligence you would still have a claim that was not time-barred and still have a chance to achieving damages. Legal causation must also be proved i.e. the loss must be reasonably foreseeable at the time when the relevant duty was breached.

How can a conveyancer be negligent?

  • Coveyancer fails to properly check title deeds, official copies of title;
  • failure to recognise the existence of a restrictive covenant;
  • negligent negotiation of restrictive covenant insurance; for example on discovery of the restrictive covenant, the conveyancer alerts the person with the benefit before seeking restrictive covenant insurance;
  • failure to spot any physical or latent defects;
  • failure to do the proper checks e.g. failing to notice that the seller of the property had failed to get planning permission, building regulations, listed building or conservation area consent;
  • problems with rights of way e.g. the right of way is not appropriate for the buyer’s needs;
  • failure to make further enquiries following seller’s replies or property search results;
  • drafting incorrect provisions in the sale deed or contract;
  • acting without authority or not properly adhering to instructions from the buyer or seller client;
  • failing to give proper advice on a surveyor’s report.

Meet our Professional Negligence Lawyers

Do you have a claim against a professional? If you want expert legal advice, do not delay in instructing us so we can assess the legal merit of your case.

We can often take on such claims on a no win no fee basis (such as a Conditional Fee Arrangement) once we have discussed the claim with you and then assessed and advised you on the merits of the proposed professional negligence action.

Our expert legal team of leading Professional Negligence Solicitors & Barristers can provide urgent help, advice or representation to you. Just call our Professional Negligence Lawyers on 02071830529 or email us now.

Instruct Specialist Professional Negligence Solicitors

We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss. We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, surveyors, valuers, architects, tax advisers and IFAs.

Want legal advice on the merits of your case?

Our simple enquiry form goes immediately to our litigation team in Middle Temple, London. Call us on +442071830529 from 9am-6pm.

LIMITATION ACT 1980 – WARNING

The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.

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