Practice and Procedure


PUBLISHED June 12, 2003

The purchaser of a farm did not suffer any loss as a result of a loss of opportunity to terminate the contract with the vendor on late completion. The loss suffered depended upon the quantification of the chance of completing in time to enable the purchaser of the farm to buy in suitable ewes for the lambing season.Appeal by the appellant ('DW') and three other members of his family from an order awarding DW damages against his former solicitor ('G') in the sum of ?591.75 plus interest for negligence in acting in the matter of DW's purchase of a farm. DW purchased the farm at an auction and G was instructed to act for him in the purchase. DW paid the deposit. The contract of sale between DW and the vendor provided that service of a completion notice by any party after the contractual completion date, would give rise to a situation that after fifteen working days the party who served the notice would be able to treat the contract as discharged. If this was the purchaser, he would be entitled to recover his deposit with the interest prescribed by the contract. Two days before the contractual completion date, 9 November, it became obvious that the vendor would not be able to give vacant possession. DW and G met to discuss what to do and G failed to advise DW of his option under condition 23. It was common ground that had a completion notice been served at the earliest available opportunity the prescribed period would have expired on 3 December 1993 and DW would have been in a position to discharge the contract. In the event the vendor was not in a position to give vacant possession until 21 January 1994. On 27 January the vendor served a completion notice on DW and on 21 February 1994 completion took place. DW commenced an action against G in negligence for: (i) failing to advise him to serve a completion notice; (ii) damages of £20,000 on the basis that he could have re-negotiated the price of the farm; and (iii) the consequential loss arising out of the failure to make a profit out of the lamb crop but for the delayed completion. The correct measure of damages was held to be the difference between what would have happened had a completion notice been served and what actually happened. The judge held that the only damage that DW could recover was a sum representing interest at the contractual rate on the deposit from the contractual completion date until actual completion. DW appealed from the amount of damages awarded submitting that as a result of G's failure to advise that a completion notice be served he was forced to pay over the odds for the farm, and he had done all he could to mitigate his loss..HELD: (1) The only claim D could maintain was a claim to damages for delayed completion. (2) The value of loss resulting from G's negligence was the value of the chance there would have been had D served a completion notice on 12 November 1993, and of his being thereby placed in a position to buy in breeding ewes before the end of November 1993. (3) On the available evidence but for G's negligence D would have had a 40 per cent chance of earning a profit from the 1994 lambing season. (4) The figure for profit available was £10,594 of which 40 per cent was £4,238. (5) D's duty to mitigate his loss did not require him to take proceedings for damages against the vendor and D had acted reasonably in the course which he eventually took in suing G. (6) D did not suffer any loss as a result of a loss of opportunity to terminate the contract. The loss depended upon the quantification of the chance of the vendor completing in time to enable him to buy in suitable ewes.Appeal allowed.

[2003] EWCA Civ 750