Common-sense approach over professional negligence

Mason v Richard Freeman & Co

(Court of Appeal — 25 March 2010)

This case involved an appeal by Mr Mason against the dismissal of his claim for professional negligence against his solicitors, Richard Freeman & Co. Mr Mason had instructed Richard Freeman to act on the purchase of a flat that he was buying in his name for his ex-partner — Sally Pitman — to occupy.

As Ms Pitman was an undischarged bankrupt, a friend — Mr Kjellin — had agreed to contribute £200 000 to the purchase price and Mr Mason had agreed to obtain a mortgage for the balance. This was recorded in an informal agreement between the parties.

After Ms Pitman had been discharged from her bankruptcy Mr Mason instructed Richard Freeman to act on the sale of the property to her. Mr Kjellin's interest was ignored, which resulted in his claim against Mr Mason for breach of trust and contract. The claim was settled for £200 000.

Mr Mason brought a claim against Richard Freeman for professional negligence, arguing that the firm of solicitors breached its duty of care to him by failing to register a charge to protect Mr Kjellin's interest in the property, which enabled him to sell the property without having to account to Mr Kjellin.

Mr Mason also claimed that Richard Freeman had breached his express instruction to ensure that he had no liability to anyone as a result of his involvement with the property.

The court held that it was improbable that any duty had been assumed by Mr Mazzier (of Richard Freeman) to either Mr Kjellin or Mr Mason, and no breach had been committed. There was no evidence that Mr Mazzier had any knowledge of the agreement between the parties. Accordingly, he concluded that, as Mr Kjellin was not a joint purchaser, he was not his client.

The court held that Mr Mason's interpretation of his instruction was incorrect; the sale proceeds would have been insufficient to discharge both the mortgage and Mr Kjellin, and Mr Mazzier knew that the property was subject to a mortgage in Mr Mason's name.

Comment

This case demonstrates the factors considered by the court when deciding whether a duty is owed to a particular client. This common-sense approach by the court is confirmation that all relevant considerations will be taken into account in cases of this type. Yuling Kao, BLM Birmingham

The following law report contributed by specialist insurance practice Berrymans Lace Mawer (www.blm-law.com) first appeared in Post Magazine on 27 May 2010.

Disclaimer: The law report contains information of general interest about current legal issues, it does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. Specialist legal advice should always be sought in any particular case.