Property

first_img JEB Fasteners Ltd v Marks, Bloom & Co (a firm) [1983] 1 All ER 583 applied; Cavendish Funding Ltd v Henry Spencer & Sons Ltd [1998] PNLR 122 considered. (4) The consequences of the incorrect valuation being provided by the defendant was that the claimants paid an excess of £18m. Accordingly, that figure represented the loss suffered (see [305], [309] and [313] of the judgment). Caparo Industries plc v Dickman [1990] 1 All ER 568 considered; South Australia Asset Management Corp v York Montague Ltd (sub nom Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd) [1996] 3 All ER 365 considered; Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1998] 1 All ER 305 considered; Aneco Reinsurance Underwriting Ltd (in liquidation) v Johnson & Higgins Ltd [2001] 2 All ER (Comm) 929 considered. In 2001, the claimant companies retained the defendant firm of chartered surveyors and property consultants to advise them in relation to the acquisition of a site for development. That site fell within an ‘enterprise zone’ which was eligible for enterprise zone tax allowances, which had an effect on the value of the property. The second claimant was created as an investment vehicle established to enable individual investors to invest in the site. It was appointed trustee after the start of the relationship between the first claimant and the defendant. Pursuant to that retainer, the defendant provided positive advice about the site’s commercial prospects, and valued it at £63m, with enterprise zone tax allowances, and £48m without. The claimants contended that the defendant’s advice substantially overstated the commercial prospects, and that the value of the site was fundamentally flawed. The claimants issued proceedings seeking damages for breach of contract and/or in negligence. The claimants sought damages from the defendant in respect of all the losses they suffered as a result of entering the transaction. The claimants calculated the damages on the basis of the difference between the price paid together with any profits earned, and its actual subsequent market value. Alternatively, they sought damages on the basis of the difference between the price paid and its true value at the time of acquisition. The defendants questioned whether the second claimant was a proper party to the litigation, denied liability and causation, and put quantum in issue. The claim would be allowed. (1) On the evidence, it was established that the defendant had been retained by the claimants and had agreed to prepare the valuation on the terms the claimants alleged. Additionally, the defendants owed the claimants a duty of care in tort (see [125]-[126] and [139] of the judgment). (2) It was established law, inter alia, that the process of valuing real property had strong subjective elements. It was an art not a science, and not every error of judgment amounted to negligence. There was a ‘bracket’; a ‘permissible margin of error’. It was a necessary pre-condition to liability that the final valuation figure was shown to be wrong, i.e. ‘outside the bracket’. Where the court was considering whether a valuation was in itself negligent, the claimant normally had to show not only that the valuer fell in some way below the standards to be expected of a reasonably competent professional, but also that the valuation fell outside the range within which a reasonably competent valuer could have valued the asset. Where the valuation was made up of a number of different aspects, a different methodology might have to be adopted in relation to different aspects because of the nature of the particular valuation process with which the court was dealing. In general, the bracket should only be assessed by arriving at a bracket for each of the variables rather than only for those variables that were alleged or found to have been negligently assessed. If the valuation was outside the range, the professional might escape liability if he could prove that he exercised reasonable skill and care. If the valuation was found to fall within the range, the claimant would still be entitled to succeed if it could demonstrate that it had suffered loss as a result of negligent advice given in the course of, or in addition to, the valuation process. Whatever the range might be, the court had to form a view as to what the correct valuation would have been. If that ‘correct valuation’ fell outside the appropriate range of the actual valuation, damages would be assessed by reference to that figure. It followed that damages should not be limited to the excess over the highest valuation which would not have been negligent (see [145]-[146] of the judgment). Applying that approach, the competent valuation of the site on an open market valuation without the benefit of the enterprise zone allowance should have produced a figure of £34m. The figure supplied by the defendant of £48m was well above that. It followed that the defendant’s valuation was in breach of duty and negligent. The figure including the enterprise zone allowance should have been £45m. The figure supplied by the defendant of £63m was in breach of duty and negligent (see [261] and [266] of the judgment). Information or advice – Reliance on skill and judgment – Valuer Capita Alternative Fund Services (Guernsey) Ltd and another v Drivers Jonas: Queen’s Bench Division, Commercial Court (Mr Justice Eder): 9 September 2011center_img Goldstein v Levy Gee (a firm) [2003] All ER (D) 12 (Jul) applied; Dennard v PricewaterhouseCoopers LLP [2010] All ER (D) 192 (Apr) applied; K/S Lincoln v CB Richard Ellis Hotels Ltd (No 2) [2010] All ER (D) 138 (Jun) applied; Singer and Friedlander Ltd v John D Wood & Co [1977] EGD 569 applied; Merivale Moore plc v Strutt & Parker [1999] All ER (D) 403 applied; South Australia Asset Management Corp v York Montague Ltd (sub nom Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd) [1996] 3 All ER 365 applied; Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 considered; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 considered. (3) The claimants were, in the circumstances, able to demonstrate that the advice played a real and substantial part in inducing them to invest in the site, which established the element of causation necessary (see [268] and [296] of the judgment). Sue Carr QC, Graham Chapman and Lucy Colter (instructed by Bond Pearce LLP) for the claimant. Roger Stewart QC, Sian Mirchandani (instructed by Berrymans Lace Mawer LLP) for the defendant.last_img

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