Withers to pay £100k plus costs over negligent Chelsea garden advice
Withers has been ordered to pay £100,000 to a former client after the High Court found it had been negligent in advice over a Chelsea property purchase.
Jonathan Seitler
RPC senior associate Caroline Shiffner instructed Hailsham Chambers’ Michael Pooles QC to defend the long-running claim in which judgment was handed down yesterday.
Mr Justice Newey accepted submissions by Wilberforce Chambers’ Jonathan Seitler QC that claimants Jeffrey and Mina Herrmann were wrongly advised that they would gain access to private gardens once they had splashed out £6.8m on a Chelsea Home. Seitler was instructed by Jones Day partner Barnaby Stueck for the claimants.
The husband and wife claimants completed the purchase of the property in Ovington Square in June 2008, instructing Withers to advise on the deal.
Yet when they realised they had no right to hold keys to the gardens outside the property - a point that had been raised with Withers during the purchase process - the pair launched their claim.
Newey J said that, while it was “not obvious” that the Kensington Improvement Act 1851 prohibited the claimant’s use of the garden, the firm had failed to consider the “substantial risk” it could pose.
The judge added: “All in all, I’ve concluded that it was negligent of Withers to advise in unequivocal terms that the Herrmanns would have “the right to enter into and use the garden at Ovington Square”.
The judge added that had the claimants negotiated with the Garden Committee “they would probably have been granted a 50-year licence for £25,000”.
Withers was ordered to pay £104,600 to the claimants plus costs, which are thought to be in excess of £200,000.
The legal line up:
For the claimants Jeffrey Herrmann and Mina Herrmann: Wilberforce Chambers’ Jonathan Seitler QC led Benjamin Faulkner also of Wilberforce Chambers, instructed by Jones Day partner Barnaby Stueck.
For the defendants Withers: Hailsham Chambers’ Michael Pooles QC led Paul Mitchell also of Hailsham Chambers, instructed by RPC senior associate Caroline Shiffner.
Readers' comments (2)
stephen | 6-Jun-2012 11:11 am
The judgment reduced the Herrmanns' damages because they did not mitigate their loss by purchasing a licence to use the garden for 50 or 80 years.
The Herrmanns appear to have lost that part of the the costs of their failed action (against the garden committee and the London Borough of Kensington and Chelsea) to determine whether they did have a statutory right of access. The costs were those incurred after May 2009 when the Herrmanns could have negotiated a licence.
So far as one can deduce from the judgment, both the Hermanns and Withers appeared in May 2009 to be the view that there was a statutory right of access.
By paying for a licence, the Herrmanns would have been out of pocket both for the cost of the licence and the reduction in the value of their house compared with a house with a perpetual right of access.
How would the Herrmanns have recovered this loss as both they and Withers appears to believe there was a statutory right. If Herrmanns sued Withers, the defence would surely have been that there was no loss as there was a statutory right of access and the Herrmanns should have pursued it.
By suing the garden committee and and the London borough of Kensington and Chelsea, the Herrmanns established the legal position over statutory access simplifying the litigation against Withers. For doing so, they appear to have been penalised in damages.
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Anonymous | 2-Feb-2013 12:22 pm
This case demonstrates the lack of consumer protection for the clients of lawyers. Only those of equal power - i.e. other lawyers or equivalent have the means to challenge lawyers in cases of alleged negligence.
I also instructed senior partners in Withers LLP to oversee a property transaction. I also believe that negligence took place. However unlike Jerrey Herrmann I did not have the means to take the case to trial and therefore I am unable to prove or claim that Withers should have accepted responsibility for the alleged negligence. As a non-legally trained individual with no previous experience of litigation matters I had no knowledge of other means to fund a case such as CFAs.
The Legal Ombudsman only deals with cases such as poor service and not alleged negligence. This lack of consumer protection is unacceptable in a supposedly democratic society. I am therefore campaigning for reforms in consumer protection for clients of lawyers – any client of a lawyer who believes that a firm they have instructed in a property or business transaction has been negligent should be entitled to a free, independent hearing. This would help to alleviate much of the distress suffered by individuals such as I and other ordinary professionals who find themselves in this position. It would also promote public confidence in the legal profession. This would also be beneficial to any law firm who believes that such a claim for alleged negligence is spurious – it would provide a forum in which the issue could be resolved in the most economical manner.
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