Summary

A judge had erred in finding, contrary to both parties' submissions, that a surveyor had not been retained at the date an application should have been made by his client to the Leasehold Valuation Tribunal in accordance with the Leasehold Reform, Housing and Urban Development Act 1993.

Facts

The appellant (L) appealed against a decision that the respondent surveyor (R) was not liable for professional negligence. L retained R to act for her in connection with acquiring an extended lease under the Leasehold Reform, Housing and Urban Development Act 1993. R served a notice under s.42 of the Act on behalf of L and on May 8, 2000, the landlord served a counter-notice. All terms except the amount of the premium were agreed within two months. Under the Act, an application therefore had to be made to the Leasehold Valuation Tribunal by November 8 for it to determine the premium, or the s.42 notice would be deemed to be withdrawn. On June 5, R informed the landlord that the terms, other than as to the premium, were agreed and stated that the valuation date was therefore June 5. On August 1, R wrote to L informing her that unless she paid his invoice, he would be unable to continue to act on her behalf. By November 8, no application had been made to the tribunal and L's notice was deemed withdrawn. L claimed that R had failed to apply or advise her to apply by the deadline. She alleged that the retainer had continued past the deadline whilst R alleged that he had terminated it in August, following the non-compliance with his fee letter. The judge found that it had been intended that R would be instructed stage-by-stage. He found that the retainer had terminated on June 5 and that during its currency R had advised L of the importance of making the application by the deadline. L submitted that (1) both she and R had acted on the basis that the retainer had continued beyond June 5; (2) R had been under a duty, as the deadline approached, to remind L of that deadline and point out the need to apply by then if she wished to keep alive the benefit of the notice.

Held

(1) The judge had erred in finding that the retainer had terminated on June 5. It was a surprising conclusion for the judge to have reached as not even R had been arguing that it had terminated the retainer that early. If the evidence pointed solidly to a termination date differing from the dates L and R were advancing, it would be properly open to the judge to find that that was the true termination date, although ordinarily he would ensure that the parties were aware of his thoughts and give them a proper opportunity to address him on them. However, the evidence pointed against any conclusion that the retainer had terminated on that date. The judge was probably over-influenced by his findings that the services that R was offering could be characterised as falling into several distinct stages and that L had intended to instruct him on a stage-by-stage basis. The letter of August 1 had positively recognised that R regarded himself as still acting for L: it warned that he would be unable to continue to act unless his fees were paid. The judge had made an unchallenged finding that, if the retainer was still continuing by that date, it did not thereafter terminate as a result of the non-compliance with the terms of that letter. Therefore, as he was wrong to find that the retainer had terminated on June 5, it must still have been in place on November 8. (2) If a professional person gave clear advice on a particular point to his client as to the need to take a particular step by a particular time, there could not be any general principle that he was under a duty to keep repeating that advice. However, L was a client inexperienced in the relevant field and she was just the sort of client who could be expected to rely on a professional adviser such as R to remind her, when the time arose, of the need to take appropriate procedural steps to protect her position. R's continuing retainer required him, as the deadline loomed, to repeat to L the need for her, if she wished to keep her claim alive, to apply to the tribunal by the deadline, Howard & Witchell v Woodman Matthews & Co (1983) BCLC 117 QBD applied.

Appeal allowed