Damages


Claimant purchasing land subject to disputed title - action against conveyancing solicitors compromised - claimant unsuccessful in subsequent action concerning title to land - claim for damages against litigation solicitors unaffected by payment in compromise of first action



Maden v Clifford Coppock & Carter: CA (Lords Justice Sedley, Neuberger and Sir Martin Nourse): 30 July 2004



Solicitors (the conveyancing solicitors) acting for the claimant in the purchase of land for development failed to discover that part of the land (plot A) was occupied by a squatter who immediately started proceedings against the claimant seeking a declaration that he owned plot A, and damages.


Proceedings claiming damages for negligence brought by the claimant against his conveyancing solicitors were settled in April 1996 for £100,000 plus costs.



In September 1996, on the advice of solicitors acting for him in the action brought by the squatter (the litigation solicitors) that he would not be liable to pay further costs of the action if the damages awarded against him were to be less than £15,000, the claimant paid into court £15,000 and refused to settle the squatter's claim for £20,000 plus costs, which he would otherwise have accepted on about 30 September 1996. At the trial of that action, the judge held that the squatter was the owner of plot A and awarded damages of £2,914 against the claimant. In an action against his litigation solicitors for negligence, the judge awarded the claimant damages consisting of the difference between the value of plot A (£37,500) and the £20,000 for which the claimant would have settled the squatter's claim on 30 September 1996, the costs which he had to pay the other side in that action, and (subject to an inquiry) the costs and disbursements incurred by the litigation solicitors on his behalf in the action. The litigation solicitors appealed.



Andrew Nicol (instructed by James Chapman & Co, Manchester) for the solicitors; Robert Sterling (instructed by Mason & Co, Manchester) for the claimant.



Held, dismissing the appeal, that, as a matter of principle, the two sets of claims and heads of damage were, on analysis, unrelated and could not impinge on each other; that the claimant's right to receive the £100,000 occurred in April 1996, whereas the act of negligence and the damage suffered as a result which the claimant established against the litigation solicitors occurred in September 1996; that not only did the claimant suffer the loss he complained of after his cause of action against the conveyancing solicitors arose, was settled and paid out, but it was also caused by a fresh act of negligence by someone else, a novus actus interveniens; but that the judge ought to have made a discount of 20% in the damages awarded to allow for the fact that a settlement of the squatter's action might not have happened.



Practice



Privilege attaching to expert reports - disclosure of expert report relied on at trial - earlier reports by same expert privileged



Jackson v Marley Davenport Ltd: CA (Lords Justice Peter Gibson, Tuckey and Longmore): 9 September 2004



In a personal injuries action brought by a claimant injured at work, the defendant employer sought disclosure not only of the final report of the claimant's expert but of that expert's earlier reports or draft reports, relying on rules 35.10 and 35.13 of the Civil Procedure Rules 1998 (CPR).



Appeal court: no power to order disclosure of expert reports
His application succeeded before the district judge but the judge allowed the claimant's appeal on the ground that the court had no power to order disclosure of an expert's earlier report. The defendant appealed.



Richard Maxwell QC (instructed by DLA, Sheffield) for the defendant; Patrick Field QC (instructed by Irwin Mitchell, Sheffield) for the claimant.



Held, dismissing the appeal, that the common law rule that litigation privilege attached to expert reports obtained in order to give a party legal advice was unaffected by the limited exception in CPR rule 35.10 which required disclosure of the basis of the expert's instructions; that CPR rule 35.13 gave no power to order disclosure of earlier reports, but provided only that an expert report could not be relied on at trial unless it had been disclosed; and that since the court had no power to order disclosure of the expert's earlier reports under CPR part 35 or the court's general case management powers, they remained privileged.



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