“We firmly believe that the combination of the change of ownership of the Airport and the impending Consultation Draft of the Christchurch Borough Local Plan gives an ideal opportunity to maximise the potential development value of the land near Hurn Airport. Indeed, it is particularly fortunate that the Local Plan procedure is now underway but, in turn, this means that action needs to be taken immediately. …… The situation at the Airport is now so different that we believe that a fresh approach to the new owners could well be beneficial. The forthcoming Consultation Draft of the Local Plan gives the opportunity to work with National Express to mutual benefit. Such an approach needs to be well coordinated and attractive to National Express. We believe we are well suited to this task. We are well known in this field of development and we know the Senior Executive Directors of National Express. We have the necessary expertise to conduct and coordinate these negotiations and we can call upon assistance within the firm, as well as work with your existing advisors and any others that may be necessary. Until National Express’ intentions are known, it is not possible to advise the precise team of advisors needed.”
“The Estate is cooperating with [the Airport] to enable the new car park to be properly surfaced and this will involve the surrender of the current lease with a simultaneous renewal for a longer term to facilitate the funding of the re-surfacing work. The new lease will incorporate an additional area of approximately 3 acres with an obligation on [the Airport] to implement the outstanding element of the extant planning permission for car park development.”
‘If Ian Ashworth had insisted upon a turn-over rent during the pre-renewal lease negotiations, this could possibly have been accommodated although it would have been very much against our wishes and I may well have refused.’
‘Passenger growth was improving and discussions were being held with other airlines. It was obviously necessary to negotiate for an extension to the car park lease.’
“In my opinion, the importance of protecting the Estate’s longer term commercial position out-weighed the risk inherent in trying to achieve shorter term gains from the Airport. I believe the outcome achieved by the Defendants in securing the Estate’s longer term commercial position in relation to the land, whilst at the same time generating an income stream in excess of that which might have been achieved from its agricultural use, represents a successful outcome under difficult circumstances. In the circumstances I am drawn to the conclusion that on balance, the Defendants were not negligent in their negotiations carried out on behalf of the Claimants in respect of the various leases negotiated with BIA.”
“I believe Strutt & Parker had to balance achieving the best level of rent against the risk BIA might walk away from the negotiations. Under difficult circumstances I believe Strutt and Parker achieved a level of rent in excess of agricultural rental values whilst at the same time protecting the Estate’s longer term commercial position in relation to the Site. I believe Strutt & Parker were in a weak negotiating position and in the circumstances, I find it difficult to criticise the level of return that they achieved.”
“The standard of care to be applied in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constrained circumstances. It requires a plaintiff to show that the error was one which no reasonably competent member of the relevant profession would have made.”
“The plaintiffs claim as damages the three sums which I have already mentioned: the capital sum of£16,000 paid to the mesne lessor in consideration of his accepting a surrender of the underlease in June 1984;£2,761 arrears of rent paid to the mesne landlord as part of that settlement; and£17,000 lost on the prospective sale of the underlease and the goodwill of the company’s employment agency business. ………… The defendants attacked this method of calculating the claim as being bad in principle. It was said that the correct measure of damage (whether in contract or in tort) for negligent advice is the difference between (a) the open market value of the asset acquired as it actually was, and (b) whichever is lower of the price paid and the open market value on the asset in the state in which, as a result of the negligent advice, it was thought to be. I shall for convenience call this “the diminution of value rule.”
“In any case of doubt, it is desirable that the judge, having decided provisionally as to the amount of damages, should, before finally deciding, consider whether the amount conforms with the requirement of Lord Blackburn’s fundamental principle. If it appears not to conform, the judge should examine the question again to see whether the particular case falls within one of the exceptions of which Lord Blackburn gave examples, or whether he is obliged by some binding authority to arrive at a result which is inconsistent with the fundamental principle.” (2) On the authorities as they stand the diminution in value rule appears almost always, if not always, to be appropriate where property is acquired following negligent advice by surveyors. Such cases as Philips v. Ward [1956] 1 W.L.R. 885 and Perry v. Sidney Phillips & Son [1982] 1 W.L.R. 1297, lay down that rule and illustrate its application in cases involving both surveyors and solicitors. (3) That is not, however, an invariable approach, at least on claims against solicitors, and should not be mechanistically applied in circumstances where it may appear inappropriate. In Simple Simon Catering Ltd. V. Binstock Miller & Co. (1973) 228 E.G. 527 the Court of Appeal favoured a more general assessment, taking account of the “general expectation of loss.”
“As to measure of damages, in my judgement the diminution in value rule is wholly inappropriate to the quantification of damages in this case. The diminution in value rule is concerned with a case where the client has purchased for a capital sum a property having a capital value. Such client thinks that it has certain features which render it more valuable. Due to the shortcomings of his professional adviser he is not aware of the fact that it lacked these features. The measure of damage is the difference, put broadly, between its actual value and the value it would have had had it possessed the features which he thought it had. The essence of such a rule is to compare two actual values. In the present case the plaintiffs were buying an asset which, as they thought, could have no capital value; they were buying an underlease at a rack market rent which would have no capital value. As a result of the negligence by the solicitors the plaintiffs have exposed themselves to a long-standing liability requiring them to pay substantial sums out of pocket. To apply any test of capital diminution in such circumstances would be wholly artificial. The loss suffered is the liability to pay a sum over a period of time. The plaintiffs managed to extricate themselves from such liability by the down payment of a capital sum. In my judgment, the capital sum they had to pay is the true measure of damage under that head.”
“The task of the court is to award to a plaintiff that sum of money which will, so far as possible, put the plaintiff into as good a position as if the contract for the survey had been properly fulfilled: see per Denning L.J. in Philips v. Ward [1956] 1 W.L.R. 471, 473. It is important to note that the contract in the present case, as in Philips v. Ward, was the usual contract for the survey of a house for occupation with no special terms beyond the undertaking of the surveyor to use proper care and skill in reporting on the condition of the house. The decision in Philips v. Ward was based upon that principle: in particular, if the contract had been properly performed the plaintiff either would not have bought, in which case he would have avoided any loss, or, after negotiation, he would have paid the reduced price. In the absence of evidence to show that in any other or additional recoverable benefit would have been obtained as a result of proper performance, the price will be taken to have been reduced to the market price of the house in its true condition because it cannot be assumed that the vendor would have taken less.”
“In Philips v. Ward, as in the present case, the cost of repairs exceeded the diminution in value. The Court of Appeal there pointed out that if the plaintiff received the house, for which he had paid£25,000 , and£7,000 (the cost of repairs) he would in effect have obtained the house for£18,000 . But the value of the house in the defective state in which it had actually been was£21,000 , and had the defendant properly performed his contract the plaintiff could not have bought at any lower price. An award of£7,000 would not therefore have put him in the same position as if the defendant had properly performed his contract. It would have improved his position to the extent of£3,000 and thus put him in an advantageous position he could never have enjoyed had the defendant properly performed. The same simple approach applies here. Mr. and Mrs. Watts paid£177,500 , the value of the house as it was represented to be. The value of the house in its actual condition was£162,500 , a difference of£15,000 . The actual cost of repairs was (in rounded-up figures)£34,000 . If Mr. and Mrs. Watts were to end up with the house and an award of£34,000 damages they would have obtained the house for£143,500 . But even if the defendant had properly performed his contract that bargain was never on offer. The effect of the judge’s award is not to put Mr. and Mrs. Watts in the same position as if the defendant had properly performed but in a much better one.”
“The starting point is to try to ascertain what would have been the sale price of the properties if on December 11 1984 the rent reviews had properly taken place. That involves two stages. First, to find out at what the reviewed rents would properly have been agreed. Second, to find out, taking into account the higher rent payable as a result of such review, what increased price would have been obtainable for each of the properties.”
“Turning for a moment away from damages for deceit, the general rule in other areas of the law has been that damages are to be assessed as at the date the wrong was committed. But recent decisions have emphasised that this is only a general rule: where it is necessary in order adequately to compensate the plaintiff for the damage suffered by reason of the defendant’s wrong a different date of assessment can be selected. Thus in the law of contract, the date of breach rule “is not an absolute rule: if to follow it would give rise to injustice, the court has a power to fix such other date as may be appropriate in the circumstances:” per Lord Wilberforce in Johnson v. Agnew [1980] A.C. 367, 401A. Similar flexibility applies in assessing damages for conversion (IBL Ltd. V. Coussens [1991] 2 All E.R. 133) or for negligence (Dodd Properties (Kent) Ltd. V. Canterbury City Council [1980] 1 W.L.R. 433). As Bingham L.J. said in County Personnel (Employment Agency) Ltd. V. Alan R. Pulver & Co. [1987] 1 W.L.R. 916, 925-926: “While the general rule undoubtedly is that damages for tort or breach of contract are assessed as at the date of the breach …… this rule also should not be mechanistically applied in circumstances where assessment at another date may more accurately reflect the overriding compensatory rule.”
“That brings me to the perceived difficulty caused by the date of transaction rule. The Court of Appeal [1994] 1 W.L.R. 1271, 1283g, referred to the rigidity of “the rule in Waddell v. Blockey (1879) 4 Q.B.D. 678, which requires the damages to be calculated as at the date of sale.”
“There are not two alternative measures of damages, as opposite poles, but only one; namely, the loss truly suffered by the promisee.”
‘Two things are contemplated by the statute, the completely stopping up of a road, and the diversion of it. In the first instance, the question is, do the inhabitants in vestry assent, are the justices satisfied that it is unnecessary, and do the jury on appeal find it unnecessary? If all these agree, the road is at once stopped up.’
‘Although there are no cases precisely in point, there have been some which will to a certain extent assist us, where it has been argued that a road one end of which has been lawfully obstructed ceased to be a highway, as in Wood v Veal 5 B & Ald 454 and Rex v Downshire (Marquis) 4 Ad & E 698. The conclusion to which the Court came in those cases was that the stoppage of one end did not make a road cease to be a common highway; for, though it thereby became a cul de sac, the public still might have a right to go over it to the end and back. ……. To constitute a highway there must be some notion of a passage which begins somewhere and ends somewhere, and along which the public have a right to drive or walk from its beginning to its end. Here, that notion is entirely absent.’
‘A solicitor is not a general adviser on matters of business (unless he specifically agrees to act in that capacity). Thus he is not generally under a duty to advise whether, legal considerations apart, the transaction he is instructed to carry out is a prudent one, … .’
‘As Salmon LJ pointed out in Sykes v Midland Bank Executor and Trustee Co. Ltd[1971] 1 QB 113 at 125H: “…. It is quite impossible to lay down any code setting out the duties of a solicitor when advising about a lease. A great deal depends upon the facts of each particular case.” So it is with any other transaction. It will always be relevant to consider what the solicitor is asked to do, the nature of the transaction and the standing and experience of the client. Thus on the facts here Shepherd was not retained to advise on the wisdom of offering the price Mr Reeves had informally agreed to pay, on the development potential of The Close Hotel or on the chances of obtaining planning permission.’