Departing From The Default Date For Assessment Of Damages

When pursuing or defending a professional negligence claim, there may be instances where the default date on which damages are assessed, namely the date of the breach, can be departed from when taking into consideration all of the factual occurrences.

The recent case of Gosden and another v Halliwell Landau and another [2021] EWHC 159 (Comm) is an excellent example of how this may arise.

Gosden and another v Halliwell Landau and another

Case background

The Claimant’s mother, Ms Weddell, owned a London property and an Estate Protection Scheme (the Scheme) was to be entered into to reduce inheritance tax liability by way of trust.

Solicitors were instructed to carry out the necessary work and as such, under the Scheme, Ms Weddell was to only enjoy the property during her lifetime with the interest in the property to pass to Professor Gosden (the first Claimant).

However, the solicitors who created the Scheme had been negligent as they failed to restrict Ms Weddell’s ability to sell the property without the consent of the other trustees under the Scheme, which is precisely what happened in October 2010.

Deciding the date of loss

Negligence was proven on the part of the Defendants and it was accepted that the loss was the value of the property. The point of contention was the date on which the value of the property should be assessed and thereby the Claimant’s loss. It was also accepted that a Court could depart from the default date based upon the facts, in order to award the appropriate damages as a result of the Defendant’s actions.

The Defendant’s position was that the date should be the default date but failing such, in the alternative, the date of death of Ms Weddell, should be the date of loss, as this would have been the date at which point the Claimant would have been entitled to his interest in the property.

The Claimant’s position was that the damages should be considered at the date of the trial.

Outcome

The Court ruled that in the circumstances, the Claimant’s loss should be assessed at the date of Ms Weddell’s death and not the date on which she sold the property or otherwise. As such, judgment was awarded in the Claimant’s favour for a sum of £985,299.45, having regard to the rate and period of interest as claimed.