Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MICHAEL BOWES QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between :
ABIMBOLA BALOGUN | Claimant |
- and - | |
BOYES SUTTON & PERRY (A FIRM) | Defendant |
Nigel Woodhouse (instructed by Simons Riodkin Litigation) for the Claimants
Oliver Radley-Gardner (instructed by Reynolds Porter Chamberlain) for the Defendant
Hearing dates: 20-22 October 2014
Judgment
Michael Bowes QC :
Introduction
In this case Mr Abimbola Balogun (“the Claimant”) claims against Boyes Sutton & Perry, a firm of solicitors (“the Defendant”) for damages for professional negligence and/ or breach of contract in respect of an implied term to exercise reasonable care and skill in connection with his acquisition of a 15 year commercial lease of a unit, Unit 1, on the lower and upper ground floors of the building at 214-218 Northwood Road, London SE27.
A trial of preliminary issues relating to breach of duty, primary causation and contributory negligence took place before me from 20th – 22nd October 2014. Mr Nigel Woodhouse appeared for the Claimant and Mr Oliver Radley-Gardner appeared for the Defendant. I am grateful to both counsel and their legal teams for their clear and helpful oral and written submissions.
I heard oral evidence from the Claimant and Mr Christopher Davies (“Mr Davies”), now a retired solicitor and formerly a partner of the Defendant firm who had the conduct of the Claimant’s instructions. In addition, there was evidence in the form of contemporaneous emails and other relevant documentation.
In reaching my decision, I have had regard to the totality of the evidence and the oral and written submissions of the parties. Where I have said I am satisfied on a particular issue, this means I am satisfied on the civil standard of proof, the balance of probabilities.
The issues
The Claimant’s primary claim is that the Defendant failed to provide him with any or any adequate advice as to the permission he needed from the superior landlord, London & Quadrant Housing Trust Limited (“L&Q”) in order to use the ventilation shaft which was essential to operate the restaurant.
The particulars of breach of contract and/ or negligence are set out in paragraph 19 of the Particulars of Claim. The particulars allege that the Defendant (through Mr Davies) failed to advise the Claimant in respect of his express instructions given at a meeting on 8 April 2011 (“the 8 April meeting”) that he would be installing duct work through the ventilation shaft.
The case was put on an alternative basis in paragraph 22 of the Claimant’s skeleton argument dated 13 October 2014, in which it was alleged that even if the Claimant did not expressly explain that ducting would need to be installed to Mr Davies at the 8 April meeting, then a firm of solicitors, knowing as they did that fumes were to be extracted through a ventilation shaft which ran through the demise of the freehold owner and the lessee’s superior landlord should have advised the Claimant to seek consent from the freeholder. It was argued by the Claimant that the drafting of the Underlease created a “risk” in relation to which advice and drafting were required. This alternative case was not pleaded in the Particulars of Claim and there was no application to amend the Particulars of Claim.
In the course of the cross-examination of Mr Davies, the Claimant advanced two further bases of claim. First, that the Defendant failed to advise him adequately in respect of Condition 4 of the local authority’s planning permission relating to the use of a flue to remove all fumes from cooking processes. Second, that the Defendant failed to advise him adequately that he was submitting inadequate plans to the under lessor Anacar Limited (“Anacar”) in support of the grant of a licence from Anacar. These bases of claim were repeated in the Claimant’s oral and written closing submissions but were not pleaded in the Particulars of Claim and there was no application to amend the Particulars of Claim.
The Particulars of Claim also allege that the Defendant failed to advise the Claimant that the plans registered at HM Land Registry in respect of Anacar’s title did not show that the outdoor seating area fell within its title and that Anacar might not be able to demise the same to the Claimant (“the Outdoor Seating Area” point). It was pleaded that the Claimant suffered loss and damage as a result of this failure on the part of the Claimant. However, in the Claimant’s written closing submissions (paragraphs 13 & 14), this is referred to as a “minor point” which may not have been as a result of negligence and did not result in any substantial loss although arose through a contractual failure to exercise due care and skill. It appears now only to be advanced as an example of shoddy work on the part of the Defendant.
The Defendant’s responses to the Claimant may be summarised as follows:
At the meeting on 8 April the Defendant correctly advised the Claimant that the Underlease carried with it the right to vent through the ventilation shaft.
The Claimant did not inform the Defendant about the need for ducting work in the ventilation shaft during the meeting on 8 April or otherwise and so no duty to advise on or secure relevant rights and consents in relation to ducting ever arose.
The Claimant informed the Defendant during the 8 April meeting that there was already a ventilation shaft in place which was “good to go” and the Defendant’s duty to the Claimant did not require him to enquire into the correctness of this factual instruction.
L&Q only took objection to external works in the form of a proposed chimney to be attached to the top of the ventilation shaft and the Claimant accepted in cross-examination that he had never told the Defendant of the need for a chimney of any kind.
The alternative basis advanced in the Claimant’s skeleton argument, namely that the form of the Underlease created an unusual risk for the Claimant over his right to vent, is flawed and is based on a mis-reading of the Headlease and the Underlease. The Claimant does have a right to vent (as the Defendant advised him) and no-one has argued to the contrary. L&Q’s objection has been to the attachment of a chimney and not to the right to connect into and use the ventilation shaft. Further, objection is taken to this being an unpleaded basis of claim in which the Claimant has never identified a clear “risk factor”.
In respect of the alleged failure to advise adequately on Condition 4 in the local authority’s planning consent, there was no duty to make any specific enquiries of the local authority as the Claimant had assured the Defendant that the ventilation shaft was “good to go”. Further, the Claimant said he had made further enquiries himself of the local authority which did not require any further consent. Objection is also taken to this being an unpleaded allegation raised for the first time in the cross-examination of Mr Davies. The Claimant has not advanced any case on what the Defendant should have done over and above the Local Land Charges search which he carried out or on what any such additional searches would have revealed to the Defendant.
In respect of the alleged inadequacy of the plans submitted to Anacar, they were only prepared for the purpose of obtaining a Licence from Anacar. In the event, Anacar did not press for more detailed plans and it was not within the scope of the Defendant’s duty to require the Claimant to provide more detail than was required by Anacar. Objection is also taken to this being an unpleaded allegation raised for the first time in the cross-examination of Mr Davies, with the consequence that Mr Davies was unprepared to deal with the point.
The Defendant’s case is that there was no duty to advise on any of the issues which form the Claimant’s case. In the alternative, the Defendant contends that there was no breach of a relevant duty and that causation cannot be established. The Defendant also contends that there was contributory negligence on the part of the Claimant.
In respect of the Outdoor Seating Area, it is denied that the Defendant was negligent or in breach of contract and in any event the Claimant was copied into correspondence relating to, and did not object to, the Outdoor Seating Area being dealt with as a matter of title guarantee. The parties are agreed that no loss was occasioned by any breach of duty.
Relevant principles of law
The relevant principles of law are not in dispute and may be stated shortly.
It is accepted by the Defendant that it was under a duty to the Claimant in tort and contract in relation to the Underlease transaction.
Mr Davies’ duty was to exercise the reasonable skill and care to be expected from a normally competent and careful practitioner in respect of the retainer between the Defendant and the Claimant (see Jackson & Powell on Professional Liability, 7th edition, paragraph 11-007).
The source and origin of a solicitor’s duties in any particular case is the retainer between himself and the client. In the ordinary way, a solicitor is not obliged to travel outside his instructions and make investigations which are not expressly or impliedly requested by the client (Pickersgill v Riley [2004] UKPC 14).
It is for the court to decide whether the Defendant’s conduct fell below the objective standard of reasonable skill and care. This principle was described clearly by Lord Reed in Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49, paragraph 3:
“The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any case, but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.”
The primary issue: did the Claimant give the Defendant express instructions to advise in relation to ducting work in the ventilation shaft?
The primary issue in this case is whether the Defendant had a duty to advise the Claimant or secure relevant rights and consents in relation to ducting work in the ventilation shaft, based on express instructions given to Mr Davies by the Claimant during the 8 April meeting. Whether such a duty arose depends on what was said during that meeting and this is the key area of dispute between the parties. The point is made succinctly in Mr Woodhouse’s skeleton argument (paragraph 21):
“The main factual issue for the Court is whether the Claimant explained to the Defendant at the meeting on 8 April 2011 that ducting would need to be installed in the ventilation shaft.”
Mr Radley-Gardener has stated correctly in his written closing submissions that the starting point is to establish what instructions were given by the Claimant to Mr Davies.
In order to determine the primary issue, it is necessary to set out some of the background to the transaction and then to examine each party’s evidence in the context of the emails and other relevant documentation, both before and after completion.
Background
The Claimant
In 2011 the Claimant owned two other restaurants in London, both specialising in African cuisine and the new restaurant was also intended to specialise in this type of cuisine. He had been operating one of the restaurants since 2006 and the other since 2009. He is a qualified chartered accountant and a Fellow of the Association of Chartered Certified Accountants
I am satisfied that the Claimant has substantial experience in operating a restaurant and is commercially aware generally.
Mr Davies
Mr Davies is now a retired solicitor and was formerly a partner of the Defendant firm. He qualified in about 1976 and practised for 40 years in commercial conveyancing and private client work. He was the senior partner in the Defendant firm in 2011 and 2012 and was responsible for the day to day conduct of the retainer with the Claimant.
I am satisfied that in 2011 Mr Davies was a highly experienced solicitor with substantial experience of commercial conveyancing work.
The Underlease transaction
The Underlease relates to premises at Unit 1, on the lower and upper ground floors of the Building at 214 – 218 Norwood Road, London SE27. The Building was redeveloped following the grant of a planning permission to the original freeholder, Mizen, on 28th October 2006. The roof above Unit 1 is above the Second Floor.
There is a duct constructed into the ceiling of Unit 1 and extending up to the roof, which is described in the proceedings as the ventilation shaft. There are photographs in the trial exhibits, the first of which (showing the view from inside Unit 1) (see bundle I/53). The top of the ventilation shaft on the second floor roof of the Building, and can be seen with its plastic cap (I/56). The ventilation shaft is therefore designed into the Building, the reason being that Unit 1 (and three other commercial units on the ground floors) had permission for restaurant use (A3 under the Use Classes Order 1987), and therefore ventilation from the cooking area was a requirement. There is no dispute between the parties that the ventilation shaft was designed for that purpose.
In late 2010, the Claimant became aware that Galloways Commercial (“Galloways”), letting agents, were offering Unit 1 as a commercial letting with permitted planning use as retail (A1), office (A2) or restaurant (A3). Unit 1 was being let as a “blank canvas”, that is, as a shell with capped services, ready for tenant fit out. The letting was to be effected by a company called Anacar Limited as immediate landlord, registered in the British Virgin Islands, but related to the then-freeholder and developer Mizen. The Claimant wanted to use Unit 1 as a restaurant on the upper ground floor but as a dance/nightclub on the lower ground floor. To this end, the Claimant would have required a further planning permission for change of use to A4 (which Unit 1 did not enjoy) and a relaxation of the opening hours restrictions (which he wished to extend to 05:00 Monday to Sunday, from 23:00).
On 29 December 2010, the Claimant contacted the Defendant through an internet enquiry. The point of this enquiry was to help with a bankruptcy, a will and a commercial property matter. The bankruptcy was passed along to another solicitor, but the Defendant’s Mr Davies dealt with the will. Mr Davies was not in fact finally instructed in relation to the commercial property matter until February 2011.
Events before the 8 April meeting
On 9 December 2010 the Claimant sent an email to Galloways referring to his recent visit to Unit 1 and stating “I also confirm that there already exist (sic) an extractor vent as you stated you had been informed by your engineers” (I/225). The Claimant relies on this email to show that he had visited the premises and had observed the ventilation shaft in situ. The Defendant says that the use of the word “vent” supports its case that the Claimant believed the ventilation shaft was “good to go” without any more work.
It is common ground that after the Defendant’s engagement, negotiations proceeded between the Defendant and Mirkwood Vincent, solicitors acting for the immediate landlord, Anacar. There are also a number of emails between the Claimant, Galloways and Anacar in which the Claimant referred to his wish to agree as much as possible with Anacar before their respective solicitors drafted the lease, in order to save on costs (see 1/226; I/233). The Defendant says that these emails demonstrates the Claimant took a “hands on” approach to the negotiation of the lease and was determined to keep his solicitors’ involvement to the absolute minimum, in order to save costs. The Claimant accepted that he was involved in the negotiation of the lease and said that he had limited financial resources.
On 14 March 2011 the Claimant sent an email to Mr Davies which referred to the terms he had agreed with Anacar. His instructions were as follows (I/274):
“Kindly liaise with their solicitors so that we can proceed to an early conclusion on the basis that the site is ready.”
The Defendant relies on this email as being indicative of the Claimant’s belief that the site was “good to go”. In evidence, the Defendant said that he was only referring to the fact that any rubbish had been removed from the site.
On 15 March 2011 Anacar’s solicitors, Mirkwood Vincent, sent an email to Mr Davies which included the following (I/281):
“Official entries for the Freehold Title – the freehold is in the process of being transferred to L&Q Housing Association, the residential leasehold owners, pursuant to a pre-existing agreement”.
Mr Davies’ reply to Anacar, which included Anacar’s email to him, was copied to the Claimant. The Defendant relied on this email (as well as others, I/319; II/338) as showing that the Claimant was made aware of the existence of a superior landlord and that it was L&Q.
On 24 March 2011 the Defendant carried out the Local Land Charges search (the London Borough of Lambeth) (I/310).
On 24 March 2011 the Claimant sent an email to Mr Davies, exhorting him to “move expeditiously on this matter, as the longer it is taking, the more expensive it is becoming for me” (I/316).
On 27 March 2011 Mr Davies sent an email to Mirkwood Vincent, attaching additional enquiries (I/322). This was copied to the Claimant. On 28 March 2011 at 07.01, the Claimant replied saying he had “reviewed and digested” the additional enquiries and raising a number of points, in particular to an extension of the permitted opening hours from 11pm to 4am. Mr Davies replied at 08.42 and attached a further copy of the local authority’s planning consent (see I/216). He particularly drew the Claimant’s attention to conditions numbered 3-9. In respect of condition 3, which related to the permitted opening hours, he asked whether this was a “deal breaker”.
Condition 4 of the planning consent stated (so far as is relevant):
“All fumes from cooking processes associated with the A3 uses shall be extracted via a flue. Details of ventilation and filtration equipment, including details of all external plant equipment and trunking, shall be submitted to and approved in writing by the Local Planning Authority prior to the commencement of each A3 use hereby permitted. All flues, ducting and other equipment shall be installed in accordance with the details subsequently approved prior to either of the A3 uses commencing and shall be retained for the duration of the use”.
The Claimant replied to the Defendant’s email at 10.21 on 28 March 2011. He stated that he did not see condition 3 as a “deal breaker” and did not want the necessary licensing application to delay the signing of the lease (I/323).
Mr Davies replied to the Claimant at 15.59, suggesting he spoke to the planning officer to obtain his views on whether the restrictions might be lifted. He went on to say “Even if he is optimistic you would be taking a considerable risk going ahead without formal permission in this regard” (I/326). On 29 March 2011 the Claimant replied, saying “ I have been in touch with planning and the feedback is positive” and he was prepared to move forward with the deal (I/327).
The Defendant relies on this exchange of emails for three reasons. First, to show that the Claimant apparently read and understood what he was sent by the Mr Davies. Second, to show that Mr Davies took a cautious and prudent approach to Condition 3 not being resolved before the lease was signed and third to show that Condition 4 of the planning consent was drawn specifically to the Claimant’s attention.
In cross-examination, the Claimant said he had contacted the local authority (Lambeth) himself in connection with Condition 4. He said he told them about the ventilation shaft and they say they did not need anything from him. They gave him a specific form to fill out. He had done so and submitted the form. He had told Mr Davies that he had spoken to a person at the local authority, but did not tell him he had specifically discussed Condition 4.
On 5 April 2011 Mr Davies sent an email to Mirkwood Vincent referring to the need for the landlord’s consent to fitting out the premises. He said “The superior landlord’s consent does not appear necessary for internal non-structural alterations”. This email was copied to the Claimant (II/349).
The Claimant forwarded this email to the agents for Anacar. As part of that email chain the Claimant said the plans for the draft lease were being finalised and “…given the fact that none of it would be structural in nature – merely cosmetic, I do not anticipate this as a major problem” (II/348).
On 6 April 2011 Mr Davies sent an email to Mirkwood Vincent saying he would “…ask his client to let him have details of the proposed works to fit out the premises since if these require your client’s consent then it seems to me he must obtain it before exchange and completion” (II/353).
On 6 April Mr Davies sent the Claimant an email asking him to call him tomorrow in order to fix a meeting. In that email he forwarded an email from the solicitors for Anacar which referred to L&Q being the beneficial owners of the freehold and that they were about to become the legal owners of it (II/354). During his evidence, the Claimant said in answer to a question from me that he was not sure he received this email and even if he had received it, he would not have read it.
On 7 April 2011 the Claimant sent an email to Mr Davies which said (II/357):
“Please find attached with this email as promised, the plans for the proposed restaurant. I am as yet undecided which one I would use but like I said earlier, it is merely cosmetic and involves no structural alterations. Either of these or both can be forwarded to the Landlord’s solicitors. PS: See you at 11.00 tomorrow, as discussed.”
The plans were prepared by a design agency called Space Design Studios (“the Space plans”) (II/358-8). Neither of these plans showed any works above the ceiling of Unit 1.
The 8 April meeting
The Claimant met with Mr Davies at the Defendant’s offices on 8 April. Their respective versions of what took place at the meeting are summarised below.
The Claimant’s version
A summary of the Claimant’s version of the 8 April meeting is as follows:
About a week before the meeting, the Claimant told Mr Davies in a telephone conversation that he had a purpose built ventilation shaft in which he could install his duct work for the extraction of fumes and that the duct work would run from the premises to the top of the building.
During the meeting the Claimant told Mr Davies that the ventilation shaft went from the premises to the roof and and this where he would install the duct work from his kitchen extractor. He said he had inspected each floor of the building through which the ventilation shaft passed and that he did not see any problems in installing the duct work. He drew a rough diagram of the ventilation shaft and duct work for Mr Davies on a piece of paper and Mr Davies told him that was fine. He showed Mr Davies where the ventilation shaft was on one of the Space Plans, where it had been marked with an “x” by the designer (II/358).
Mr Davies did not advise him that the ventilation shaft went through property belonging to a third party and that he would need the consent of that third party to run ducting up the ventilation shaft.
At no time prior to completion was the lease between L&Q and Anacar brought to his attention and Mr Davies did not make him aware that the upper parts of the building were owned by L&Q.
In cross-examination, the Claimant said he had been aware from the outset of the need for a chimney. He accepted there was no mention of the need for a chimney in his witness statement. He accepted there was no mention of a chimney or other protuberance in any of the documents and that he had not mentioned it orally to Mr Davies either at the 8 April meeting or at any other time. In relation to the plans (II/358-9) he accepted that there was nothing on them to indicate anything going above the ceiling.
The Defendant’s version
A summary of the Defendant’s version of the 8 April meeting is as follows:
Mr Davies did not make a formal attendance note of the meeting but jotted down outstanding points on a copy of an email from Mirkwood Vincent (II/360). The note included the words “ventilation shaft”. It was a long meeting (probably a couple of hours) during which Mr Davies went through the terms of the lease with the Claimant item by item.
The Claimant became a little impatient at this, because he felt he already had some experience in relation to commercial leases. Mr Davies told him that the consent of the superior landlord would be required for external alterations.
The Claimant told him that the premises were purpose built and had a pre-existing ventilation shaft in place for use in the kitchens. Mr Davies had considered the headlease and was aware that it granted Anacar the right to connect into the conduits for the supply of services to the premises (as set out in the First Schedule). “Conduit” was defined to include “duct” in the definitions section. He formed the view that this gave Anacar the right to use the ventilation shaft.
Nothing the Claimant said in relation to his intentions regarding the ventilation shaft gave him any indication that any additional work was required before the shaft could be used. He was satisfied on the Claimant’s assurance that there was no structural work requiring L&Q’s consent and that Anacar had sufficient rights under the headlease to demise the same to the Claimant.
Mr Davies told the Claimant that, in his view, the plans he had supplied were inadequate and it would be usual to supply a full schedule of works when obtaining a landlord’s licence for alterations. He explained this would normally be professionally prepared. The Claimant’s concern was to keep costs to a minimum and he was not inclined to incur the expense of having such a schedule prepared. He stressed the urgency to proceed without further delay and without a full schedule of works.
At no stage prior to completion did the Claimant instruct Mr Davies that he intended to do anything other than simply connect to the ventilation shaft. If that was his intention, in Mr Davies’ professional opinion there was no need for permission, as the property had the right to use “Conduits” exclusively servicing the property. The Claimant did say he intended to fit an extractor unit to the shaft within the property and Mr Davies did consider this would require approval from Anacar, but not from L&Q.
There was nothing on the plans or in any instructions from the Claimant to suggest there was anything to be fitted inside the ventilation shaft, any ducting required, or that a chimney was required on the roof. If such works were anticipated, Mr Davies would have expected the Claimant to explain the scope of the works in detail to him in response to his enquiries and to provide elevation plans of the building and a schedule of works. No such diagrams or instructions were ever provided to him prior to completion of the lease.
In cross examination Mr Davies said he had brought the headlease to the Claimant’s attention. He reiterated that the Claimant had never led him to believe there was any work needing to be done on the ventilation shaft. He was not told any work was needed in relation to ducting or a chimney. If he had been told that, he would have raised those points with Mirkwood Vincent as he was concerned to obtain consent for all work needing to be done.
Mr Davies said that generally the Claimant’s “policy was to get on and complete, and sort out any difficulties afterwards.” He told Mr Davies that he “hadn’t lost a court case yet.”
Events after the 8 April meeting
On 8 April 2011, following the meeting, Mr Davies sent an email to Mirkwood Vincent setting out points which had just been raised at the meeting. He said that “…the ventilation shaft provided” would be used. This email was copied to the Claimant (II/362).
On 9 April 2011, the Claimant replied to this email (II/394). He did not make any reference either to ducting or a chimney when referring to the Space Plans and work to be done.
On 13 April 2011 at 12.32 Mirkwood Vincent sent an email to the Mr Davies stating (II/399):
“Plans for the works will need to be annexed with more detail in relation to the air-conditioning/ compressor units/ extractor units and the exact position of the existing ducting/ shafts to be used”.
At 14.40 on 13 April 2011 Mr Davies forwarded this email to the Claimant, which said “Please see Corinne’s email below and the attachments” (II/403a). One of the attachments was a letter/ licence (unsigned) to carry out the proposed works (see I/142).
At 16.48 on 13 April 2011 Mr Davies sent an email to the Claimant which said (II/404):
“Is there anything else which is still of concern to you or can I ask Corinne to go ahead and prepare the engrossments for signature? Please confirm that the letter/licence for the works is OK. I think they are after more than just the plans. They require more detail in relation to the air-conditioning/ compressor units/ extractor units and the exact position of the existing ducting/ shafts to be used.”
At 17.30 on 13 April 2011 the Claimant replied to Mr Davies and said:
“Chris, nothing else is of concern to me. As discussed at our last meeting, there is already an existing extractor shaft within the premises and that is the one which will be used.”
In cross-examination, the Claimant said he had a “general browse” through the letter/ licence “but not in any great detail”.
The Claimant did not provide any more detail in relation to the plans and did not produce a schedule of works to be carried out.
On 14 April 2011, Mr Davies sent an email to Mirkwood Vincent asking them to go ahead and prepare the engrossments for signature (II/404).
Also on 14 April 2011, the Claimant sent an email to Mr Davies asking whether he had received any feedback from Anacar in relation to the service charge (II/408). Mr Davies replied that the information he had was “no insurance or service charge is payable since L&Q have never demanded any”. The Claimant then asked Mr Davies “By the way what does L&Q stand for?” Mr Davies replied “London and Quadrant Housing Trust who insure and presumably manage the estate”.
This email exchange is relied on by the Claimant as demonstrating he was unaware of the identity of L&Q as the new owner of the freehold. It is noteworthy that the Claimant’s question appears to have been in relation to the meaning of the abbreviation “L&Q” rather than L&Q’s identity. On behalf of the Defendant, it is contended that the Claimant already knew the identity of L&Q from earlier emails sent to him.
Completion took place on 26 April 2011.
On 4 May 2011, the Claimant sent an email to Anacar’s agents asking for access to the ventilation shafts on each floor (II/444). He asked about the fire rating in the ventilation shaft. In cross-examination, the Claimant accepted this request followed a preliminary visit by a contractor to scope out the necessary works and was not a visit to fit a sleeve.
By 26 May 2011, the Claimant had approached L&Q with his plans for the works (II/465). These were still the Space Plans, which did not show any external works. By now, there was a dispute growing between the Claimant and L&Q over the nature of the proposed works.
On 28 May 2011, the Claimant sent an email to L&Q which said (II/464): “I have spoken to my solicitors and am very much aware of my rights and obligations as a tenant, I have also read my lease agreement and was very much a party to finalising it”. In cross-examination, the Claimant said this assertion was not accurate and was “…only said to bluff her”.
On 1 June 2011, Anacar sent an email to the Claimant which stated its position that under the lease, he had the requisite rights to allow for the connection to and have services flow through conduits (which includes ducts); in other words, its view was that the lease gave the Claimant the right to vent (II/468b).
In July 2011 drawings in relation to a chimney were produced for the first time (II/480-481). These were produced by Wizarch Construction Limited (“Wizarch”). Although the drawings were produced by an architect, the point is made by the Defendant that Wizarch is not a mechanical and electrical services (“M&E”) expert. The Wizarch plans showed vertical ducting and then a chimney over two stories high on the roof of the building. It subsequently transpired that this chimney, which undoubtedly concerned L&Q, was both unnecessarily tall and technically inadequate.
On 4 July 2011, a company called Ventopure quoted for proposed works at Unit 1 (II/482). Such a quotation had not formed part of the Claimant’s proposed fit out costs and there is an absence of any contractor involvement before completion.
On 5 July 2011, Mirkwood Vincent sent an email to Mr Davies saying that it was apparent from a round table meeting held the previous week that the works in discussion differed from those for which consent had been given and that a further licence would be required from Anacar and from the superior landlord.
On 13 July 2011 Mr Davies sent an email to the Claimant which said (II/487a):
“Of course, the difficulty is whether the works now proposed are more extensive than those for which consent was given and I am certainly not qualified to advise in this respect”.
The email correspondence makes it plain that in August 2011, the Claimant was still proceeding on the incorrect basis that he required a two story chimney (II/497) and it is apparent that it was these proposed external works which were of most concern to L&Q (II/498).
On 27 September 2011 the solicitors acting for L&Q wrote to Mirkwood Vincent in connection with the dispute over the extent of the works. The letter included an acceptance of the Claimant’s right to vent (II/543):
“We do however accept that the tenant has a right to connect into the Conduits.”
By 28 September 2011, Anacar had given the Claimant information which suggested such a tall chimney was not necessary (II/54).
In June 2012, following a third round table meeting with L&Q, a firm of M&E experts called Wilkins McKenzie were instructed by the Claimant. The documents they produced set out what was necessary for the ventilation system to be put in place.
Discussion and decision on the primary issue
The Claimant’s submissions may be summarised as follows:
The Claimant was unaware of L&Q’s ownership of the upper floors.
The Claimant had visited the property on a number of occasions prior to the meeting on 8 April and had inspected the ventilation shaft on each floor. Consequently, he knew that ducting was required. In particular, he relies on the email dated 9 December 2010 which refers to confirming the existence of an extractor vent and an email dated 4 May 2011, in which he states that his “extractor guy needs access to the shafts on each floor”.
Mr Davies’ jottings about the 8 April meeting record that “ventilation shaft” and “extractor fan” were mentioned at the meeting. In connection with the plans, these must be references to the “T” shape shown on the plans. Mr Davies’ evidence that his impression was that the Claimant would only be installing an extractor fan does not accord with the T shape or common sense; even a domestic kitchen extractor fan requires ducting.
The absence of any request by Mr Davies for sight of local authority planning consents point towards him being under the impression that the Claimant would be installing ducting.
The absence of any reference to ducting in the email sent by Mr Davies to the Claimant on 8April very shortly after the meeting does not necessarily mean that ducting was not mentioned at the meeting.
It is improbable that Mr Davies would not have questioned the Claimant about the detail of the ventilation unit, if he did not understand what it comprised. Further, it is improbable that the Claimant would keep this detail from him.
The evidence establishes on the balance of probabilities that the Claimant did tell Mr Davies he would be installing ducting work and in those circumstances he should have been advised as to what rights he had to install ducting in the ventilation shaft. Mr Davies’ failure so to advise him was negligent.
The Defendant’s submissions may be summarised as follows:
The Claimant’s emails dated 5 April 2011 and 7 April 2011 refer specifically to the intended works being “merely cosmetic”. This is reflected in the Space Plans which do not show any works above the ceiling of Unit 1.
The Claimant never knew that a roof level chimney was required, which is why this never formed part of his instructions to Mr Davies.
The Claimant did not raise anything about the need for ducting in his instructions to Mr Davies, either at the 8 April meeting or at any other time prior to completion.
The Claimant did not know what other works might be required in relation to the ventilation shaft, because he had not sought the necessary professional assistance to find out what was necessary.
The Claimant knew he was obtaining an Underlease and knew that his landlords were L&Q.
Mr Davies’ instructions are reflected in his email dated 8 April 2011 seeking consent from Anacar and stating specifically that the “ventilation shaft provided” would be used.
The Claimaint’s response to a request from Anacar for further information in relation to the Space Plans and in respect of which Mr Davies sought specific instructions was “Chris, nothing else is of concern to me. As discussed with you at our last meeting, there is already and (sic) existing extractor shaft within the premises and that is the one that will be used” (14 April 2011).
The scheme of works in relation to the ventilation shaft only emerged very gradually after completion on 26 April 2011.
Overall the Claimant’s attitude was that that matters should be deal with quickly and at minimal cost and that any problems should be dealt with after completion.
Having considered all the evidence and the arguments put forward by the parties, I find that the Claimant did not explain to Mr Davies at the 8 April meeting that ducting would need to be installed in the ventilation shaft.
In my judgment, the Claimant did not know prior to completion what works might be required in relation to the ventilation shaft and so consequently did not give Mr Davies any instructions in relation to such work. The Claimant stated in evidence that he had known of the need for a chimney all along, but admitted he had never mentioned that need to Mr Davies. I do not accept the Claimant’s evidence on this point. If he had known of the need for a chimney, he would have raised it at some point prior to completion. Further, the Space Plans made no reference to the need for any works above ceiling level.
The emails relating to the period after completion make it clear that the Claimant only learned gradually about what work was needed in relation to the ventilation shaft. It is of particular note that no detailed schedule of works was produced by the Claimant prior to completion, despite Mr Davies’ encouragement to him to provide more detailed plans.
I find that Mr Davies correctly advised the Claimant that the Underlease carried with it the right to vent through the ventilation shaft. The email correspondence makes it clear that this position was accepted both by Anacar and L&Q.
I am satisfied that the Claimant did know he was obtaining an Underlease and that his landlords were L&Q. The identity of L&Q was set out specifically in email correspondence (see II/354) and I do not accept the Claimant’s explanation that either he did not receive the email or, if he received it he did not read it.
The evidence establishes that the Claimant wanted to obtain the lease at minimal cost and so cut corners by not obtaining the necessary professional advice in relation to the ventilation shaft prior to completion. It was for the Claimant to satisfy himself as to what his commercial and technical requirements were before giving his instructions to Mr Davies.
I have also formed the view that the Claimant tailored his evidence on occasions in order to avoid facts he felt were disadvantageous to his case. For example, in seeking to distance himself from involvement in the terms of the lease, he sought to explain away his email to L&Q in which he had said “…I have also read my lease agreement and was very much a party to finalising it” by saying he only intended the words as a bluff.
By contrast, I found Mr Davies to be an impressive witness who was self-exacting in relation to carrying out his instructions from a difficult client.
As discussed above, the scope of a solicitor’s duty is limited by the terms of his retainer. I find that Mr Davies was entitled to accept the Claimant’s instructions that nothing needed doing in relation to the ventilation shaft and it did not form part of his duty of care to go behind that factual instruction to investigate whether this was true or not.
The Outdoor Seating Area
In the light of the Claimant’s stated position that the issue of the inclusion of the Outdoor Seating Area in the plants registered at HM Land Registry is a minor point which did not result in any substantial loss, I do not propose to make any detailed findings in respect of it. Overall, I am not satisfied that any failure to advise the Claimant that the plans did not show that Outdoor Seating Area fell within Anacar’s demise was the result of any negligence or breach of duty on the part of the Defendant. I accept that the Claimant was copied into correspondence relating to the Outdoor Seating Area being dealt with as a matter of title guarantee and did not object to this course.
Decision
I find that the Claimant has failed to prove that he gave the Defendant express instructions to advise in relation to ducting work in the ventilation shaft and accordingly I find that no duty to give such advice ever arose.
The Claimant’s secondary case
The Claimant’s secondary case has three elements:
The drafting of the Underlease created a “risk” in relation to which advice and drafting were required (“the Underlease risk ground”);
Mr Davies failed to advise the Claimant adequately or at all in respect of Condition 4 of the local authority’s planning permission (“the Condition 4 ground”); and
Mr Davies failed to advise the Claimant adequately that he was submitting inadequate plans to Anacar in support of the grant of a licence from Anacar (“the inadequate plans ground”).
The Underlease risk ground
In paragraph 18(ii) of the Particulars of Claim, the case being advanced was that the Claimant had no “express right to use the Ventilation Shaft (whether with the ducting or without it)”. This point was not pursued in the skeleton arguments served by the Claimant or at trial.
As I stated above, this secondary basis was not pleaded in the Particulars of Claim.
The Claimant’s case on “risk” is said to arise out of a qualification in the Underlease. The Claimant’s arguments are as follows:
Clause 3.9 of the Underlease provides:
“Except as mentioned in this clause 3, neither the grant of this lease nor anything in it confers a right over the Common Parts or any neighbouring property nor is to be taken to show that the Tenant may have any right over the Common Parts or any neighbouring property and s.62 of the Law of Property does not apply to this lease.”
It is common ground that the ventilation shaft falls outside of the Claimant’s demise and falls within L & Q’s neighbouring property. The only rights that C has therefore over the shaft are the rights conferred by Clause 3.1(d) of the Underlease. This provides with added emphasis provides [p.153]
“3.1 The Landlord grants the Tenant the following rights (the Rights);
...
(d) the right to use and to connect into any Service Media at the Building that belong to the Landlord and serve [but do not form part of] the Property which are in existence at the date of this lease or are installed during the perpetuity period;
...”
The Headlease defines Anacar’s demise as including “conduits and plant to the extent that they are within and exclusively serve the commercial units (but no other Conduits or Plant) (see p.93 & )
It specifically excludes “all airspace above the Premises [varied by the Deed of Variation to “Commercial Premises”] and any part of the Building above the bottom of the floor slab separating the basement ground floor and upper ground floor from the upper parts of theBuilding [p.93 & p.124].
Even if the court accepts that the Defendant’s argument that the Underlease gave the Claimant a right to vent, L&Q does not share that view and the Defendant should have advised the Claimant as to the legal difficulties that might arise over the right to use the ventilation shaft.
Reliance is placed on the following cases: Herrmann v Withers LLP [2012] EWHC 1492 (Ch) [2012] P.N.L.R. 28 and Queen Elizabeth's Grammar School Blackburn Ltd v Banks Wilson [2001] EWCA Civ 1360; [2002] P.N.L.R. 14. The latter case is authority for the proposition that even if the court is satisfied that an interpretation is legally correct, if there is real scope for dispute it is negligent not to give advice to this effect.
In cross-examination Mr Davies said he did not consider the “belonging to the landlord” qualification in clause 3.1(d) at the time (see items 159,161 & 206 of cross examination note) and that when pressed he accepted that in light of that wording he should have considered whether it belonged to Anacar (see items 161-163) and that if he had done so he would have advised and sought an amendment to the Underlease to make sure that there was a specific right to use the ventilation shaft (see items 207-210 of cross examination note).
The Defendant’s arguments in respect of the Underlease risk are as follows:
Objection is taken to the Claimant advancing an unpleaded point which first emerged in the Claimant’s skeleton argument dated 13 October 2014 and developed further in a supplemental skeleton argument dated 15 October 2014.
The cases which the Claimant identified at the Supplemental Skeleton Argument stage are all cases in which the “risk” resulted from some peculiar and identified feature of the facts. It is clear that the cases which the Claimant adduced at a late stage are highly fact-sensitive, even on their own terms:
(a) In Queen Elizabeth’s Grammar School Blackburn Ltd v Banks Wilson (A Firm) [2001] EWCA Civ 1360 the Court of Appeal was faced with a restrictive covenant which was ambiguous. The covenant was drafted against the background knowledge that the vendor of the site was intending to object to works which were intended to be carried on under that covenant, which on one reading amounted to a breach. The solicitor was therefore negligent because, against the background of a threat of litigation, the advice should have been more cautious. It is clear that the fact that there was a current threat of litigation in the Queen Elizabeth Grammar School case was the deciding factor: see at [47]. That is not a feature present here. The dispute here only arose after completion, and (the Defendant says) due to the Claimant’s provocative conduct. The Claimant has neither pleaded, nor proved, in this case that he would have taken cautious advice, and he certainly did not take the Defendant’s advice in any other respect.
In Herrmann v Withers LLP [2012] EWHC 1492 does not contain any test, but an application of Queen Elizabeth to the facts. It concerned a very little read and particularly badly drafted Act of Parliament from 1851 without any guiding authority (see at [69]). Again, there is no pleaded case from the Claimant as to why a conventional Underlease with a standard easement within it is to be treated as the same as advice on an obscure Act of Parliament.
The Claimant has never identified a clear “risk” factor, and the unpleaded case was simply put to Mr Davies with no forewarning in cross-examination. The Defendant’s position is that nothing in the Underlease brings it within the “risk” principle, which requires some special factor. There is nothing pleaded that shows any feature demonstrating an enhanced risk existed similar to the risk that was present in both of the authorities which the Claimant seeks to rely on at this late stage in the proceedings.
This new argument “misses the target” in any event:
The Claimant accepted in correspondence that he had been fully involved in the drafting of the Underlease II/487E;
The argument based on risk aims at the wrong part of the Headlease and Underlease, and is irrelevant. The provision which the Claimant fastens on as being somehow “unusual” is the definition of the demise, and the use of the word “belong”. As to that:
The use of the word “belong” is in the Underlease. Anacar was the landlord under that. Anacar never gave the Claimant any trouble at all and in fact supported him. The risk argument on this basis does not get off the ground.
The attempt to make something out of the definition of the “demise” under the Headlease and the Underlease also misses the point:
In relation to the Underlease it is completely irrelevant as Anacar were no trouble.
In relation both the Headlease and Underlease, the question is not what the demise means, but what the rights conferred by Schedule 1 of the Headlease and Clause 3 of the Underlease mean. There has been no suggestion that there was anything unusual about those. As Mr Davies correctly stated in evidence, the definitions and the rights were sufficiently broad to allow the Claimant to do what he needed.
The “risk” argument does not therefore attach to any relevant provision in these proceedings.
Further, the line of questioning of Mr Davies in cross-examination did not take into account that the drafting of the Underlease is inevitably conditioned by the definitions in the Headlease. The draftsman of the Underlease is bound to follow the scheme in the Headlease, otherwise there will be a mis-match.
No-one seriously argued that there was no right to connect into and use the Ventilation Shaft at all. The debate was centred on (a) the Claimant’s proposed user of Unit 1, and (b) the external works which the Claimant wished to do, being (ultimately) the installation of the chimney in the main. There was never any serious doubt that the ventilation shaft was the conduit, or counted as media. As the problem was with the chimney, and as the Claimant accepts he never referred to the need for a chimney, the Claimant cannot succeed in any event.
The conferral of easements automatically includes the conferral of ancillary rights to put the easement into effect (see Gale on Easements, 1-90, first sentence, and the authorities of Platt v London Underground [2001] 2 E.G.L.R. 121 at 122 B - K; Carter v Cole [2009] E.G.L.R. 15, at paragraph [8]). It is so standard (and hence usual) in English real property law that it goes without saying-.
Further, matters are expressly catered for in the Headlease (which is the document which is most relevant for these purposes), and the qualification to the easement in Schedule 1 paragraph 3 which requires that the works of connection and use of the ventilation shaft should be “subject to the regulations of any appropriate authority”. Therefore, if the Council as planning authority, or as building regulations authority, required a sleeve or a chimney, the Claimant (through Anacar) was not merely empowered to comply, but positively obligated to do so.
Discussion and decision on the Underlease risk ground
It is clear from the decision of the Court of Appeal in the Queen Elizabeth’s School case that in order to prove this ground the Claimant would have to show that there was “real scope for dispute” over whether the Underlease gave the Claimant the right to connect into and use the ventilation shaft in order to vent Unit 1 (see judgment, paragraph 29).
In my judgment, Mr Radley-Gardener is correct in his submission that the Claimant has never identified a clear “risk” factor of the type envisaged in the Queen Elizabeth’s School case but instead relies on what he contends is “unusual” wording in the definition of the demise and the use of the word “belong”. It is unsatisfactory that this point was not pleaded in the Particulars of Claim, which would have ensured that Mr Davies was properly prepared to deal with it.
Further, in my judgment Mr Radley-Gardener is correct in his legal analysis of the relevant rights conferred by Schedule 1 of the Headlease and Clause 3 of the Underlease and those definitions and rights were sufficiently broad to allow the Claimant to connect into and use the ventilation shaft in order to vent Unit 1.
Mr Radley-Gardener is correct in his submission that in focusing on the definition of the demise and the use of the work “belong”, the Claimant is aiming at the wrong target.
The Claimant has sought to rely on the answers given by Mr Davies in cross-examination as supporting his case, but on analysis they do not do so for two reasons. First, perhaps as a consequence of this being an unpleaded point, Mr Davies was not given the opportunity to explain in detail the rights conferred by Schedule 1 of the Headlease and Clause 3 of the Underlease. He tried to do so in general terms at several stages during cross-examination. On two occasions he said that he understood the shaft fell within the definition of “media” (joint note of cross examination, lines 150-159). He said “I went through the Headlease and the Underlease and I thought the necessary rights were granted” (lines 172-173). Second, Mr Davies’ apparent concession that he did not consider whether the ventilation shaft belonged to Anacar or L&Q, but should have done so, does not in fact advance the Claimant’s case because it is clear from Schedule 1 of the Headlease and Clause 3 of the Underlease that he did have the right to connect into and use the ventilation shaft.
Even if the Claimant were correct in focusing on what are said to be the unusual words used in the definition of demise, his point would fail for two reasons. First because there is nothing in the words themselves which gives rise to “real scope for dispute” over their meaning and second, because the email correspondence makes it plain that both Anacar and L&Q accepted that the Claimant had the right to vent through the ventilation shaft. L&Q’s stated objection was to the chimney and the Claimant accepts that he never told Mr Davies of the need for a chimney at any stage prior to completion.
In my judgment the relevant rights conferred by Schedule 1 of the Headlease and Clause 3 of the Underlease were sufficiently broad to allow the Claimant to connect into and use the ventilation shaft in order to vent Unit 1. Mr Davies was correct in his advice to the Claimant and in his evidence at trial that the necessary rights were granted.
There was nothing in the wording of the lease or in the attitude of L&Q in relation to the right to connect into and use the ventilation shaft (as opposed to the installation of a chimney) to create “real scope for dispute” and thus require Mr Davies to warn the Claimant of such a risk.
Accordingly I find that the Claimant has failed to prove any failure of duty on the part of the Defendant in relation to the Underlease risk ground.
The Condition 4 ground
In the course of cross-examination on the last day of the trial, the Claimant advanced an entirely new case in respect of Condition 4 of local authority’s planning permission.
The Claimant’s arguments in respect of the Condition 4 ground are as follows:
Condition 4 of the planning permission [p216] provides that:
all fumes from cooking processes associated with A3 uses shall be extracted via a flue;
details of the ventilation and filtration equipment including details of all external plant equipment and trunking shall be submitted to and approved in writing by the Local Planning Authority pior to commencement of each A3 use; and
all flues, ducting and other equipment shall be installed in accordance with the details subsequently approved prior to either of the A3 uses commencing and shall be retained for the duration of the use.
If the Claimant was installing the “flues, ducting and other equipment” required by Condition 4 then it was obvious these would run through the parts of the building owned by L&Q. In those circumstances Mr Davies should have advised the Claimant as to what rights he had to install something in the ventilation shaft. Such advice would have revealed to the reasonably competent solicitor that it was, at the very least arguable that neither the Claimant nor Anacar had the right to install anything and would probably have lead to involvement of L&Q.
If there was already a flue installed in the shaft and all that was required was for the Claimant to connect into it, it could only be assumed that such flue was satisfactory if the Local Planning Authority had approved the flue in writing in accordance with condition 4.
Reliance is placed on answers given by Mr Davies in cross-examination that if he understood something had been installed in the flue, then it would have been prudent to ask for sight of the consent and that a reasonably competent solicitor should have asked for the consent (note of evidence, lines 11-115; 130-131).
If Mr Davies had requested the written approval, as it is submitted he should, this would have flushed out that there was no flue etc installed in the ventilation shaft and Mr Davies would have advised accordingly.
The Defendant’s arguments in respect of the Condition 4 ground are as follows:
The Claimant’s argument only arises if the court has already accepted Mr Davies’ factual account in relation to his instructions, namely that the ventilation shaft was “good to go”. Thereafter, the Claimant needs to establish that the Defendant had a duty to go behind that answer and undertake further searches.
The Claimant has not pleaded this ground and there has been no application to amend the Particulars of Claim. The Claimant ought not to be allowed to rely on it because he has not pleaded:
what the Defendant should have done over and above his Local Land Charges search (which he carried out, I/310);
what those additional searches he says would have revealed to the Defendant; and
whether what the Claimant says would have been revealed ought to have put the Defendant on notice that his instructions were factually incorrect, and that he should carry out further investigations.
In cross-examination, the Claimant said he had contacted the Council himself in connection with Condition 4. He said he told them about the ventilation shaft and they say they did not need anything from him. They gave him a specific form to fill out. He had done so and submitted the form. He had told Mr Davies that he had spoken to a person at the local authority, but did not tell him he had specifically discussed Condition 4.
This is consistent with what the Claimant said post-completion. He confirmed to Anacar that (G/476) “the Council have already informed me that there is no need for further planning permission for the extractor as one had already been granted to you earlier prior to the building being constructed”.
A further investigation following on from the standard searches (which were undertaken) would in fact not have yielded anything to put the Defendant on notice he might have been instructed on a false factual basis.
The Claimant has failed to distinguish between what was shown on the planning register and what was physically on site. All that a further query of the Council under Condition 4 could go to is the planning status of whatever was installed. It would not have revealed whether there was anything in the ventilation shaft.
In Haigh v Wright Hassall [1994] E.G. 54, Hoffmann LJ expressed the position as follows:
“The solicitor is not a business advisor; he is a lawyer. Although most good solicitors will offer business advice, and will, to some extent, try to protect clients from themselves, it would be wrong, in my judgment, to hold that there was invariably a legal duty to do so. It must of course depend upon the facts of the case. There will be situations in which it is clear to the solicitor that the client is commercially wholly inexperienced and is deluding himself. In those circumstances there way well be a duty on the part of the solicitor to probe further.”
The questions in relation to the ventilation shaft were factual questions within the Claimant’s knowledge and expertise. The Defendant was entitled to assume that the Claimant was giving a truthful account of what he had seen at Unit 1. There was no duty on the Defendant thereafter to undertake his own independent investigations to see whether that was true. In any event, he raised further enquiries with the Claimant at the time of the Licence (F/404)
There was nothing in the replies to the Local Land Charges search to raise the prospect that there might be something amiss with the Claimant’s instructions as to the physical state of the ventilation shaft. This is not a “noticing a problem case”. The way the Claimant’s case appears to be put is that the Defendant was under a duty to go and seek out a problem which he had been instructed did not exist.
The Claimant in his closing arguments relied heavily on Mr Davies’ statements in relation to what he regarded as his failings in this regard. Mr Davies is an honest witness. Mr Davies was facing questioning on an unpleaded allegation and was not told that he had made enquiries to the Local Council in the normal way. What is reasonable, and what a reasonably competent solicitor would have done, and whether a breach results in damage, is a matter for the Court, and not for any witness to give evidence on: Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49. As set out above, Mr Davies, while frank, was not negligent if the Claimant is allowed to rely on this new and unpleaded ground.
Investigations in relation to Condition 4 were either not required by the scope of the Defendant’s duty, or the failure to press them further to check whether the Claimant was correct was not a breach, or there was no loss caused as those further investigations would have revealed nothing salient.
Discussion and decision on the Condition 4 ground
Although the Condition 4 ground was not pleaded by the Claimant I have decided that the arguments on both sides can be dealt with fairly within the trial process. Accordingly, the Claimant is permitted to rely on this new ground, although he has suffered the evidential consequences of it not having been pleaded and presented as part of his case.
I am satisfied that the Claimant did tell Mr Davies that no further work was required in relation to the ventilation shaft and that he had discussed Condition 4 with the local authority, which had told him it needed nothing further from him. This position was confirmed in an email sent to Anacar following completion.
In my view it is likely that even if Mr Davies had made further enquiries of the local authority in relation to Condition 4, any answers would simply have revealed what was shown on the planning register and not what was physically on site. Consequently, even if Mr Davies did have a duty to make further enquiries, then the answers he would have received would not have put him on notice that he may have been instructed on a false factual basis.
Mr Davies’ apparent concessions in cross-examination do not in fact amount to an admission of liability on the part of the Defendant. There is force in Mr Radley-Gardener’s criticism that Mr Davies was facing cross-examination on an unpleaded allegation and was not reminded that he had in fact made enquiries of the local authority in the normal way.
As I stated earlier in my judgment, in my view Mr Davies was self-exacting in relation to his own performance and when faced with this unexpected line of cross-examination on a point which had never been raised before, he may have felt that perhaps he could have sought further information. If the case had been properly pleaded and developed, then Mr Davies would have been able to consider before he gave evidence whether a duty to make further enquiries really did arise and whether, if it did, any further enquiries would have revealed anything to make him doubt his instructions.
In any event, the principles set out in the Healthcare case make it clear that the behaviour of the reasonably competent solicitor is not established by the evidence of witnesses, but by the application of a legal standard by the court. Mr Davies’ answers are relevant to the issue but cannot decide it one way or the other.
A further consequence of this ground not being pleaded and supported by evidence is that the Claimant has not advanced a positive case on what any additional searches would actually have revealed to the Defendant and whether such searches would in fact have been sufficient to put the Defendant on notice that his instructions were factually incorrect. Each of these points would have been a necessary evidential building block in order to construct a case against the Defendant on this ground. These evidential gaps in the Claimant’s case are not filled by Mr Davies’ answers in cross-examination.
In my judgment the Claimant has failed to prove that the Defendant had any duty to make any further enquiries of the Claimant in respect of Condition 4, in the light of the information he was given by the Claimant. Further, even if such a duty did arise, the Claimant has failed to prove that any further information would have revealed anything to put the Defendant on notice that the Claimant’s instructions were factually incorrect.
On all the evidence relating to Condition 4, I find that the Claimant has failed to prove that Mr Davies’ actions fell below the standard of a reasonably competent solicitor.
Accordingly I find that the Claimant has failed to prove any failure of duty on the part of the Defendant in relation to the Condition 4 ground.
The inadequate plans ground
The inadequate plans ground is a further unpleaded allegation which was put to Mr Davies for the first time in cross-examination. It appears to arise out of the fact that Anacar, for a time, regarded the Space Plans as inadequate for the grant of a licence.
As set out above (but reproduced below for ease of reference), the relevant chain of emails is as follows:
On 13 April 2011 at 12.32 Mirkwood Vincent sent an email to the Mr Davies stating (II/399):
“Plans for the works will need to be annexed with more detail in relation to the air-conditioning/ compressor units/ extractor units and the exact position of the existing ducting/ shafts to be used.”
At 14.40 on 13 April 2011 Mr Davies forwarded this email to the Claimant, which said “Please see Corinne’s email below and the attachments” (II/403a). One of the attachments was a letter/ licence (unsigned) to carry out the proposed works (see I/142).
At 16.48 on 13 April 2011 Mr Davies sent an email to the Claimant which said (II/404):
“Is there anything else which is still of concern to you or can I ask Corinne to go ahead and prepare the engrossments for signature? Please confirm that the letter/licence for the works is OK. I think they are after more than just the plans. They require more detail in relation to the air-conditioning/compressor units/ extractor units and the exact position of the existing ducting/ shafts to be used”.
At 17.30 on 13 April 2011 the Claimant replied to Mr Davies and said:
“Chris, nothing else is of concern to me. As discussed at our last meeting, there is already an existing extractor shaft within the premises and that is the one which will be used.”
In the event, Anacar was prepared to grant the licence in the terms sought without the provision of more detailed plans.
The Claimant’s arguments in respect of the inadequate plans ground are as follows:
The Claimant did not have a schedule of works drawn up before completion, but should have been properly advised by Mr Davies that his plans were inadequate and a schedule of works was necessary and for his benefit. If this had been done, then the need to install ducting work in the ventilation shaft would have been revealed and Mr Davies would have (or ought to have) then advised accordingly.
Reliance is placed on Mr Davies’ witness statement in which he described the plans as “inadequate” and his answers in cross-examination in which he said that in his opinion the plans were not detailed enough for the purposes of a licence to carry out works (note of evidence line 52).
Mr Davies should have taken greater steps to ensure that the Claimant prepared more detailed plans based on a schedule of works, even if these were not required by Anacar for the grant of the licence.
The Defendant’s arguments in respect of the inadequate plans ground are as follows:
The email correspondence shows that the Claimant was pressed for more detail but declined to give it. As is clear also from the post-completion dealing with London & Quadrant, the Claimant was exceedingly reluctant to engage a proper professional to do a proper, thorough job on his specifications until forced to do so, because of his overall view of the transaction. Insofar as the obtaining of the Licence was within the scope of the Defendant’s duty, that duty was discharged. The Defendant denies that, on the basis of the correspondence at F/404 and the other pre-action assurances, the Defendant was under a duty not to take the Claimant’s “no” as an answer, and to keep probing further.
At the 8 April meeting Mr Davies told the Claimant that, in his view, the plans were inadequate and it would be usual to supply a full schedule of works when obtaining a landlord’s licence for alterations. The Claimant’s concern was to keep costs to a minimum and he was not prepared to incur the expense of having such a schedule prepared.
Ultimately, Anacar did not proceed with their complaint that the plans were inadequate and gave their consent.
The questions put to Mr Davies on “adequacy” failed to distinguish two different propositions:
a plan and licence may be inadequate if they show all of the works to be done in a general sense, but do not show the works in sufficient detail;
a plan and licence may be inadequate if they simply do not show all of the works to be done.
The Claimant’s cross examination elided these two very separate points. They must be kept separate. In light of the instructions given to Mr Davies, the plan and Licence were not inadequate in sense (b). The plans showed exactly what the Claimant had asked for. Insofar as they were “inadequate” in sense (a), it was Anacar’s concern and Anacar did not press that concern.
This new allegation is based on a false premise and comes to nothing.
Discussion and decision on the inadequate plans ground
The purpose of the Space Plans was to assist the Claimant in obtaining the licence he sought from Anacar. As a matter of fact, the Space Plans did show all that the Claimant was asking for in the licence. If Anacar required more detail, then it should have pressed the issue.
Mr Davies did point out to the Claimant that more detail was required by Anacar, but the Claimant declined to provide it. I accept Mr Davies’ evidence that this was discussed at the 8 April meeting but the Claimant said he was not prepared to incur the costs of a revised plan and a schedule of works.
The essential point is whether Mr Davies had a duty not to take the Claimant’s “no” for an answer but to press him further to provide a level of detail which Anacar no longer required for the grant of the licence.
In my judgment Mr Radley-Gardener is correct in his submission that no such duty arose and the Defendant had discharged its duty in relation to the obtaining of the licence.
Accordingly I find that the Claimant has failed to prove any failure of duty on the part of the Defendant in relation to the inadequate plans ground.
Overall conclusion
I find that the Claimant has failed to prove any breach of duty on the part of the Defendant in relation to any of the grounds alleged against it and so the claim fails in its entirety.
In view of my findings in relation to breach of duty, it is unnecessary for me to go on to consider any issues of causation or contributory negligence.
Costs
Submissions on costs should be cross-served and served on the court by 5pm on Wednesday 11 February 2015. The documents may be sent by email to me. The submissions should include a proposed timetable for any further submissions and should address whether there is a need for an oral hearing. If further time is needed to prepare submissions on costs then the parties have liberty to apply to the court by email.