One of the questions we are most frequently asked is, ‘Can I sue my surveyor for negligence?’

“I bought my house, moved in, put up the curtains – then I noticed a huge crack in the wall. A friendly builder came round and told me it was subsidence. But nothing was mentioned in the report the surveyor gave me, so can I sue my surveyor for negligence?”

Our specialist professional negligence solicitors, independently ranked among the very best in the UK, are often asked about suing a surveyor. In fact, it is one of the issues that most frequently pops up on our helpline. Here is a short overview of the issues that need to be considered when contemplating a surveyor’s negligence claim.

When a professional negligence lawyer looks at a potential negligence claim against a surveyor the first thing that needs to be established is the type of survey that was carried out. There are three types:

• Valuation;
• Homebuyers report; and
• Structural survey.

A valuation is usually required if you are buying a property with the aid of a mortgage. It is really for the mortgage company’s benefit – to make sure there is sufficient security in your property in case you default and they need to sell the house. It is purely an exercise to assess whether the property is worth the money you are paying, but will not necessarily highlight any structural problems with the property itself.

A Homebuyers Report is the next option and is suitable for properties that are in good condition. The Surveyor will assess the property, identifying any major faults in accessible parts of the building (they won’t pull back the carpets or lift the furniture). They will check for damp, identify any urgent and obvious problems that need attention and usually give you a valuation of the property for mortgage and insurance purposes.

A Full Structural Survey is more expensive than the Homebuyers Report, but goes into much greater detail, reviewing all major and minor structural issues with the property. They still won’t pull back the carpets or lift the furniture unless it is obvious that there is a problem in which case, the report will detail the extent of the problem and give recommendations for future work.

So back to the original question: ‘Can I sue my surveyor? Or more precisely, if I sue my surveyor, am I likely to win?

Negligence claims involving valuation reports are the most difficult professional negligence cases to prove. As long as the valuation is within the correct ‘ballpark’ then the surveyor is probably safe, though we have known of instances where incorrect information has been given that would give rise to legal liability.

In a case of suspected subsidence it is very unlikely that liability would arise on a mortgage valuation alone. There are of course exceptions. The situation might be different for instance if the property you have bought is in a known area of subsidence.

If you had a Full Structural Survey you will be on much firmer ground, even if your property isn’t! In all likelihood, the answer will be “yes”- unless the subsidence occurred after the survey was carried out or was beyond detection. As for the Homebuyers Report, it depends. Was the subsidence obvious and would a reasonably competent surveyor have noticed it?

Whatever type of survey you had, surveyors negligence cases are rarely straightforward. It’s therefore important that you choose a solicitor who is a specialist in the field and experienced in dealing with surveyors professional negligence claims.

If you have been let down by a surveyor and want to know, ‘Can I sue my surveyor for negligence?’ then contact us for a free initial assessment of your case at [email protected]

 

This article was reviewed and updated in March 2025.

Professional negligence solicitor, Lee Dawkins, looks at professional negligence limitation, highlighting the perils of the Limitation Act.

Limitation in professional negligence claims (especially a complaint against  a solicitor) can often seem like a moveable feast.

The primary limitation period is six years from the date on which the cause of action accrued. The cause of action in a professional negligence claim is said to accrue when the claimant suffers actual damage, regardless of whether that is also the date of the negligent act or omission. This seems straightforward enough, so long as you can identify the date of accrual of the cause of action – which is not always as easy as it sounds.

Claimants also have a fallback limitation date where the facts relevant to the cause of action are not known. In these cases an extension of three years is permitted running from the earliest date on which the claimant had the knowledge required to bring an action for damages for professional negligence. Again, this date is not always obvious and can be difficult to pin down.

The importance of identifying the correct limitation date was highlighted in a recent Court of Appeal judgment when a professional negligence claim brought by the administrator of an estate against a firm of solicitors was dismissed on the basis that too much time had elapsed since the loss arose.

John Lane brought the professional negligence action as personal representative of his late sister’s estate. Several years after her death in 1997 Mr Lane distributed part of the estate to a beneficiary. However, a niece of the deceased was pursuing a proprietary estoppel claim against the estate. When she won her proprietary estoppel claim and found she could not recover the monies from the beneficiary, she brought an action against Mr Lane himself.

Mr Lane in turn sued his solicitors for professional negligence. He said that his solicitors should have advised him not to distribute the estate until the niece’s proprietary estoppel claim had been resolved.

The Court of Appeal had every sympathy for Mr Lane, indicating that he had been let down by his solicitors. However, the solicitors defended the professional negligence claim on the basis that it had been brought out of time and was therefore statute barred under the Limitation Act 1980.

The court had to consider the date that Mr Lane’s loss had accrued. The solicitors said that it was the date upon which the distribution had been made which was more than six years before Mr Lane had brought his claim. Mr Lane disagreed, arguing that the limitation period should not run until the date upon which the niece had established her right to the estate.

There were arguments of a technical nature concerning the date upon which the cause of action had accrued and the distinction between a proprietary estoppel claim which the niece had brought and a constructive trust claim which the niece had been entitled to bring. In the end, the court concluded that the niece could have brought a claim for a constructive trust which would have been vested and not contingent and as such the cause of action would have accrued at the earlier date as alleged by the solicitors. As a result, Mr Lane’s appeal was dismissed.

This case illustrates how important limitation issues can be in professional negligence claims. Negligence claims against solicitors relating to estates are frequently defeated by limitation arguments. The case also demonstrates how difficult it can sometimes be to identify the correct limitation date. The lesson to be learned from this case seems to be that delay should always be avoided particularly if there is any doubt as to the date upon which the cause of action for a professional negligence claim accrued.

If you have been let down by a professional and are considering suing a solicitor, contact us now for a free case assessment.

Professional negligence damages: Expert negligence lawyer, Emma Slade takes a look at causation, remoteness and the measure of loss in professional negligence claims.

In order to bring a claim for any sort of negligence (whether it be professional negligence or otherwise) you need to establish four things: that the Defendant owed you a duty of care, he breached it, you suffered a loss and the loss was caused by the breach of duty (‘causation’). The first two items – especially in professional negligence claims – are usually easily proved; it is the last two elements that are so often hotly contested.

Usually, a professional negligence claimant will have a pretty good idea of what losses he has suffered as a result of a negligent act, but sometimes the consequences of a wrongdoer’s act goes far beyond what he could have reasonably anticipated or foreseen. Take a situation where the owner of a ship negligently pours oil into a harbour. The oil slick flows across the harbour to a pier where sparks from welding machinery light the oil which sets fire to the pier. Should the pier owner be able to claim damages from the ship owner? The Court said that he couldn’t. Although it was reasonably foreseeable that the wharf would be damaged by the oil fouling it, damage by fire was not foreseeable – it was just too remote .

The Courts have clearly established since then that there needs to be a real and substantial risk of damage: “one which would occur to the mind of a reasonable man… and which he would not brush aside as far-fetched” . The Court will, in effect, create a hypothetical man who would look at the situation at the time of the negligence to see whether they could reasonably foresee the consequences.

The remoteness test does overlap quite considerably with the issue of causation. There must be real and substantial evidence that the act actually caused the damage. So, where a body is found on a railway crossing having been run over by a train, it does not necessarily mean that the railway company have been negligent. The Court would need details as to how the man got onto the line. The mere fact of his death does not mean that the railway company was responsible . Similarly, where there was no explanation as to how a ladder broke causing a claimant to fall and injure himself, the Court was not bound to infer that there was a defect in the ladder to make the claimant’s employers liable

It is not always easy to establish causation. So much so, the Courts have devised a number of tests to assist them in determining whether a breach of duty has caused damage. The most popular test is called the “but for test”: all the Claimant needs to prove is that “but for” the Defendant’s act of negligence, the injury or damage that the Claimant complains of would not have arisen.

——————————————————–

1. Overseas Tankship (UK) Ltd –v- Morts Dock & Engineering Co Ltd (The Wagon Mound (No.1)) 1961

2. The Wagon Mound (No. 2) 1967

3. Wakelin –v- London & South Western Railway 1886

4. Alderson –v- Piggott & Whitfield Ltd 1996

Another argument that a Defendant will use to try and defeat or reduce a claim for damages is that the Claimant has failed to mitigate his loss. There is a general duty on a Claimant to try and reduce, minimise or avoid loss. If damages could have been easily avoided but the Claimant fails to take that action, he will be considered to have failed to have acted reasonably and will not be able to claim the damages which could have been avoided. So if, for example, a Claimant fails to repair a defective chimney which his surveyor failed to notice and the chimney subsequently collapses, crashing through the roof and causing severe damage to other parts of the property, the Claimant will not be entitled to claim for the repairs to the roof and the house – only the chimney.

There is a slightly different approach though to calculating damages in surveyors professional negligence claims. Taking the above example of the defective chimney, the Courts are prepared to consider two alternative measures of damages: the Claimant can claim either the cost of repairing the chimney or, what is known as ‘diminution in value’. Diminution in value is essentially the reduction in the value of the house as a result of the defect. Invariably, diminution is roughly equal to the cost of repairs but sometimes, it is not. In those circumstances, the Court will only allow the lower of the two figures.

For further guidance on professional negligence damages contact us today. We specialise in professional negligence and offer free initial advice on any prospective claim. Telephone or email us for a free cases assessment.

Introducing negligentwillclaims.co.uk – a specialist website for professional negligence claims relating to the drafting and preparation of Wills.

The people behind Pro Neg, Slee Blackwell Solicitors LLP, are delighted to announce the launch of a sister site dealing exclusively with negligent Wills and probate claims.

The new site deals exclusively with professional negligence claims involving Wills including:-

• Negligent delay in drafting a Will
• Negligent Will drafting
• Negligent Will execution

Most negligent Will claims involve professional negligence claims against solicitors. However, it is not just solicitors who prepare Wills these days so professional negligence claims against banks, financial advisers, accountants and other will writers are becoming increasingly common.

Slee Blackwell Solicitors offer a range of funding options for negligent Will claims including Legal Aid (public funding) as well as their ever popular no win – no fee scheme.

If anyone believes they may have suffered loss as a result of negligence on the part of a solicitor or other will writer then you can take advantage of Slee Blackwell Solicitors’ professional negligence case assessment service. Simply call  0800 155 6389 or alternatively email details of your claim to [email protected].

The Legal Ombudsman: Professional negligence lawyer, Lee Dawkins, explains how the system works.

The new Legal Ombudsman (LeO) has opened its doors for business and first reports are that trade is brisk.

The early signs suggest that referrals to the Legal Ombudsman are running at around 120,000 a year, though the system is capable of handling closer to 165,000 a year.

The new structure replaces both the old Legal Services Ombudsman and the Legal Complaints Service (LCS). For the first time one body will be responsible for handling service complaints across the entire legal profession. The LeO deals not just with complaints about solicitors but also complaints about barristers, licensed conveyancers, legal executives and others.

Consumers should however be aware that not all legal services are provided by professionally qualified lawyers. The Legal Ombudsman has no regulatory role to play in the activities carried out by certain will writers, unlicensed conveyancers or unqualified divorce practitioners, for instance. These are all services that can be provided by people who have no legal qualifications whatsoever and who are not therefore regulated by anyone. So, as with so many other aspects of consumer law, the principle ‘caveat emptor’ (or buyer beware) is still applicable when it comes to legal services.

Where the complaint does involve a properly qualified lawyer the complainant must give that lawyer an opportunity to sort things out before the Legal Ombudsman will intervene. The LeO should be regarded as an appeal mechanism, only coming into play once attempts to resolve the complaint direct with the lawyer have failed.

The new body aims to deal with legal complaints in a speedy and informal way. Its philosophy is based on attempting to resolve disputes between lawyer and client by agreement, rather than by means of a quasi-judicial process. If agreement cannot be reached however one of the ombudsmen will make a formal decision, which if accepted by the complainant will be binding on all parties. Decisions, we are told, will be based on principles of fairness and the adequacy of the legal services provided.

There is no doubt that the LeO has muscle. Not only does it have power to compel co-operation but it can order compensation to be paid by the lawyer to the complainant of up to £30,000.

The service is funded by the legal profession itself. In addition to receiving a percentage of the fee for the lawyer’s annual practising certificate the Legal Ombudsman will also charge a case fee of £400 for each complaint that is accepted for investigation, but only where a firm has already had two complaints in the previous 12 months.

It is still early days and it will be interesting to see how the LeO evolves. We will be carefully monitoring the situation as there is a close interplay between legal complaints (especially complaints against solicitors and complaints against barristers) and professional negligence claims against lawyers. We will therefore be interested to receive feedback from people using the LeO service.

If you have dealt with the LeO, but now wish to make a professioinal negligence claim against a solicitor or a barrister then contact us for a free case review.

We take a look at solicitors negligence and Will writing.

The Deceased’s instructions to his solicitor were clear: he wanted the house to go to his daughter and the balance of his Estate to be divided amongst the rest of the children. Save that for some reason, the clause about the house didn’t make it into the Will. Does this mean the daughter loses out on the house? Not necessarily.

One option available to her is rectification of the Will. Traditionally, a Will was always treated as inviolable, whether or not it was correct. However, s20 Administration of Justice Act 1982 now allows the courts to intervene if it is clear there is a “clerical error” in the drafting of the Will, or the person who drafted it didn’t properly understand the Testator’s instructions. Obviously the Court will not simply step in on the basis of a disappointed beneficiary’s say-so: there must be clear evidence of the error. The Court will consider either oral or written evidence but either way, it must be convincing. A letter from the solicitor to his client (which the Deceased approved) setting out the correct terms of the Will is ideal. In those circumstances, the solicitor will be invited to own up to his error and to pay the costs of the application to the Court.

But what if the solicitor doesn’t admit the error or there isn’t such a letter on the file? In that case, the disappointed beneficiary may have to bring a claim against the solicitor for professional negligence. This will be more difficult as again it will come down to the strength of the evidence available. Nevertheless, the law has been clear since the 1995 case of White –v- Jones that even though there is no contractual relationship between a solicitor and a beneficiary, the solicitor should be able to foresee that if he doesn’t get the Will right, it could harm the intended beneficiaries and therefore a duty of care is owed.

Interestingly, the duty extends not just to ensuring the Will is drafted properly but also to making reasonable efforts to ensure the Will is executed in accordance with the law. In the White –v- Jones case, Mr White gave instructions to his solicitor, Mr Jones, to change his Will. Unfortunately, Mr Jones dilly-dallied, during which time Mr White had a fatal accident. His daughters, who would have benefitted from the updated Will, successfully sued Mr Jones.

Since White –v- Jones the courts have been increasingly willing to impose a duty on solicitors to get the Will prepared and signed within a reasonable time, especially if there is a likelihood of imminent death.

We specialise in sealing with solicitors negligence and Will writing claims. So, if you think that you may have a claim, then please do not hesitate to contact us for a free case review and details of No Win, No Fee funding.

The growth in surveyor’s negligence claims.

The UK has been in the grip of a recession for the past few years and with it, claims for professional negligence have proliferated. This has been particularly bad for surveyors, as more and more houses that they valued are repossessed and sold at a loss. Mortgage companies are dusting down the valuations to see if they can recover their losses and claim for surveyor negligence.

Liability to a third party

To bring a claim for surveyor’s negligence, a claimant needs to prove three things:
1. that the surveyor owed a duty of care to the Claimant;
2. that the surveyor breached that duty of care; and
3. the Claimant suffered a loss.

It is often the loss that everyone focuses on but in fact the first thing that needs to be determined in a surveyor’s negligence case is whether a duty of care is owed. In short, some form of relationship or “nexus” needs to be established between the surveyor and the mortgagee before we can start thinking about whether damages can be claimed.

Mortgagees usually insist that the purchaser has a valuation and/or survey for mortgage purposes and in many instances it will be left to the purchaser to organise and pay for a survey/valuation. As such, the Purchaser and Surveyor will have a contractual relationship. However, there is often no such relationship with the mortgage company. In these situations, is a duty of care still owed to the mortgage company by the surveyor?

The short answer is, yes. It has long been established that a third party can bring a claim if they relied on the advice of an expert. The 1964 case of Hedley Byrne & Co Ltd –v- Heller & Partners Ltd established this legal premise. Here, the bank gave a glowing statement about its client’s creditworthiness which a third party (Hedley Byrne) relied upon in deciding to invest in the client’s company. Unfortunately, the company failed, leaving Hedley Byrne with a significant financial loss. Despite no contractual relationship with the Defendants, the Court decided that the bank did owe a duty of care to Hedley Byrne. The Court identified a variety of factors that needed to be present: the relationship between the parties had to be particularly close, that damage could be reasonably foreseeable if the third party relied on the statement and, importantly, it needs to be fair, just and reasonable in all the circumstances to impose a liability.

This relationship was examined further in the 1997 case of Reeman –v- Department of Transport. In this case, Lord Bingham identified three prerequisites before a claim for negligence could be considered: the statement must be ‘plaintiff-specific’, it must be ‘purpose-specific’ and it must be ‘transaction-specific’.

Plaintiff-Specific

Lord Bingham stated that, when the statement – or valuation – is given, the surveyor must be able to identify who the claimant is or, importantly, which “group” the claimant belongs to. It is probably better to look at an example to illustrate this.

In the defining case of Smith –v- Eric S Bush 1990 UKHL 1, the mortgagee instructed the surveyor to carry out a valuation of the premises. Mr Bush, the surveyor, knew that the purchaser, Mrs Smith, was paying for the valuation and wrote to her, disclaiming any potential liability that he may have with regards to her. He carried out the valuation and said that no essential repairs were required. This was wrong. Mrs Smith relied on the report and bought the house. Not long later, bricks from the chimney collapsed through the roof, smashing into the loft. Mrs Smith sued the surveyor. The surveyor relied on the disclaimers and the fact that his instructions came from the mortgagee.

I will deal with disclaimers later, but the important point of this case, is that it is a good example of the ‘Plaintiff-Specific’: the Court held that the surveyor knew that Mrs Smith was paying for the report and that the report would be relied upon. As such, the surveyor voluntarily assumed a responsibility towards her.

There is a limit on this “voluntary assumption of responsibility”. In this instance, the transaction was relatively low in value and so the Court held it would be unreasonable for the surveyor not to accept responsibility. A different decision was made in the 1997 case of Omega Trust Co. Ltd –v- Wright Son & Pepper. In that instance, the surveyor was valuing three large commercial properties in London. The Court decided that as this was a commercial transaction and one of value, the (commercial) parties were quite capable of looking after themselves and should have obtained their own valuations rather than relying on the valuation of the other party.

Further, the surveyor’s report was handed onto, in effect, a fourth party of whom he was unaware. Again, the Court concluded that the surveyor was entitled to know to whom his valuation was to be shown and so it would be unreasonable to impose liability where the nexus was so remote. In short, it was not ‘plaintiff-specific’.

‘Purpose-specific’

Exactly what it says on the tin. “The statement must be made for the very purpose for which the actual plaintiff has used it” (per Bingham LJ). Another law report helps illustrate this; the 1990 case of Mariola Marine Corp –v- Lloyds Register of Shipping. Mariola Marine Corp were purchasing a boat from its vendor and in doing so, relied on a safety certificate provided by the vendor and prepared by Lloyds Register of Shipping. Later, the boat was found to be defective.

There were two distinguishing features of this case. Firstly, Lloyds Register of Shipping only carry out safety checks. It is not for their marine surveyors to determine whether the purchase is a good buy or whether the boat is defective or not. Secondly, although Lloyds Register of Shipping knew that the vendor was selling the boat, they did not know who the purchaser was and the Court decided that as a result, there was no nexus between the parties.

‘Transaction-specific’

Lord Bingham describes this category as being where “the statement must be made with reference to the very transaction into which the plaintiff has entered in reliance on it”.

The 1998 case of Barex Brokers Ltd –v- Morris Dean & Co is a classic example. Here, the surveyor was instructed by the purchaser in the full knowledge that the valuation was for mortgage purposes and the mortgagee would rely upon it. The surveyor was happy with this. The mortgage company accepted the valuation, entered into a mortgage with the purchaser and paid over the funds. They then assigned the benefit of the charge to Barex Brokers Ltd.

Subsequently, Barex Brokers Ltd tried to bring a claim for what they considered was a negligent valuation of the premises. However, the Court was not prepared to accede to their request. The Court very much took the view that the surveyor did not know that the charge was likely to be assigned so could not anticipate that Barex Brokers would try to rely on it (‘plaintiff-specific’). Importantly though, the Court concluded that the report had been prepared for the very specific transaction between the original mortgagee and the purchaser. Once the legal charge had been entered into, liability was crystalised at that stage; the duty of care could not be extended.

Disclaimers and surveyor’s negligence

So, is there any way a surveyor can limit its liability? I have already touched on the issue of disclaimers. These can be easily overridden if the Court decides that there is sufficient proximity between the surveyor and the Claimant. However, this is not the only test.

The Unfair Contract Terms Act 1977 (UCTA) does allow disclaimers but only if they are reasonable and pass the tests set out in s2 and s11 of the Act. Some of the questions the Court might ask itself when determining whether the disclaimer is reasonable or not were suggested by Lord Griffiths in Smith –v- Eric S Bush:

• Are the parties of equal bargaining power?
• Would it be reasonably practicable for the person who relied on the report to have obtained their own? Was there sufficient time? What was the cost?
• How difficult is the task being undertaken by the surveyor?
• Who instructed the surveyor? Who paid his fees?

In the Smith case, Mrs Smith was an individual, it was a low value transaction and the task was relatively easy; In the Omega Trust case, the parties were commercial entities, it was dealing with three commercial properties and the parties could easily have obtained their own reports.

Before preparing a report, surveyors are best advised to try and identify who is going to be relying on the report so they can gear their statement to all the parties. It would probably be a good idea for them to identify these parties in the report itself, as well as specifying the exact purpose the report is being prepared for.

Despite UCTA, a disclaimer may be of some benefit to the surveyor in a surveyor’s negligence claim, especially in commercial transactions.

If you would like to discuss surveyor’s negligence, please contact us by phone or email.

Bogus solicitors scam: Fraudsters target firms of solicitors.

We all know that fraud and identity theft are on the increase. Fraudsters are employing ever more sophisticated methods to exploit the unwitting public and are now seeking to dupe people by impersonating solicitors firms.

The problem is so bad that the Law Society has recently issued a practice direction warning lawyers to take particular care when dealing with legal practices who are unknown to them.

One of the latest cases to hit the headlines concerns a practice known as “Orient Solicitors” of Leicester. We are currently dealing with clients who have lost significant sums through bogus conveyancing transactions in which “Orient Solicitors” have been involved.

The Solicitors Regulation Authority (“SRA”) has investigated “Orient Solicitors” and concluded that the firm “appears not to be a legitimate solicitors’ practice”. The SRA believe that the identity of a genuine solicitor may have been used without his knowledge and warns that money should not be sent to the firm.

In the meantime, a Google search shows that the “Orient Solicitors” website is still live. The site is attractive, professional designed and very convincing. Most non-lawyers who look at the site will be entirely taken in by it as it gives every impression of representing a genuine firm of solicitors offering its prospective clients a:-

“… doorway to high quality but cost effective legal services for private individuals and the business community”.

The “Orient Solicitors” website also states that the practice is “regulated by the Solicitors Regulation Authority”.

Solicitors are clearly going to have to be on their guard against the rise of bogus firms and further guidance from the Law Society and the SRA will be welcomed by the profession. In the meantime, the best advice we can give clients is to do their homework and check out a solicitor’s credentials before instructing them. Clients should not be fooled by the veneer of a glossy website. Look behind the marketing jargon and the offer of high quality services to examine whether the firm has any substance outside the virtual world. There are quite often clues to be found such as contact addresses in residential areas or main telephone contact numbers that are merely mobile numbers. If you look carefully, the warning signs should be there and if anyone is in any doubt then they should contact the SRA for verification.

If you have been the victim of a bogus solicitors scam and wish to seek compensation then contact us by phone or email.