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A Court of Appeal ruling by Lords Justices Morritt, Thorpe and Potter on the final day of the last legal term is excellent news for surveyors, solicitors and their insurers.
Matthew Hirst a solicitor at Dibb Lupton Alsop's Birmingham office, says the ruling in Platform Home Loans v Oyston Shipways & ors means that future attempts by lenders to pass on greater percentages of their losses to professionals will be thwarted.
In the 1990s there had been a growing trend for higher percentages of contributory negligence to be recognised in lenders claims against professionals. The new ruling suggests there will be an increasing focus on the lenders' own actions if they choose to sue professionals.
The judges in Platform Home Loans held that the level of contributory negligence by lenders suing over property valuations need not be limited purely to their negligence in respect of their approach towards the disputed valuation. They considered that their overall negligence could be taken into account.
Hirst, who represented valuer Bernard Thorpe which had been sued in respect of over-valuation of property at Edgbaston, Birmingham says the ruling is 'tremendous news for surveyors and other professionals faced with this type of litigation'.
In the High Court, Platform claimed that the £1.5m valuation that two firms of surveyors (including Bernard Thorpe) had placed on the property was negligent.
The company lent £1.05m secured on the property based on the valuation. But when the borrower defaulted on the mortgage, the property was re-possessed and later sold for £435,000.
Mr Justice Jacob, in awarding Platform Home Loans £585,723, held that it had itself been negligent in its treatment of the mortgage applications and that, in those circumstances, 20 per cent should be deducted from the total damages he assessed.
On appeal the company argued that his approach to its contributory negligence had been too broad.
It claimed that because the surveyors would be responsible for only the difference between valuations (the negligent valuation and the true value) or the lender's loss, if less than that difference, the surveyors should not then be able to obtain a further deduction for contributory negligence.
Lords Justices Morritt, Thorpe and Potter backed the ruling of Judge Jacob who found that any negligence on the part of lenders in respect of the transaction in question could be taken into account.
This latest ruling means that even if valuers are found negligent they will be able to argue that those suing them must also bear their share of the responsibility for what has happened potentially for up to 100 per cent.
Hirst says: 'This decision means that the conduct of lenders will attract at least the same attention as that of the surveyors. If a lender sues there can be no protection for its negligent lending.
'[It] effectively means that courts will apportion responsibility between the two litigating parties by considering the application of contributory negligence and not by deciding what is the appropriate measure of loss against a particular profession.'