S10 (10) of the Party Wall Act 1996 and the Exploitation of the Building Owner

Dispute 

No where in the Party Wall Act 1996 ( ‘Act’) is a ‘dispute’ defined.   

The Collins Dictionary defines a ‘dispute’ as ‘an argument or disagreement between people’.   

If on serving a party wall notice the adjoining owner assents to the proposed  notifiable works, there is not of course a dispute, whereas if there is no response within 14 days of  service a dispute is ‘deemed’ to exist.  A disagreement will also arise of course, if the adjoining owner expressly objects to the proposed works. 

The existence of a ‘dispute’ is important for two reasons.  Firstly, without one there is no jurisdiction for a surveyor to be appointed, and secondly a deemed or existing dispute is a prerequisite for the making of a party wall award.  

As for appointment, RICS issued Guidance Notes on the Party Wall Act states:

'The full extent of the dispute should be given upon which subsequently appointed or selected surveyors can determine’ 

Even where the adjoining owner has assented at the outset,  the Act can still be engaged if during or following the completion of works a ‘dispute’ arises.   The relevant provision is S10 (10) of the Act  and provides the surveyors' tribunal is competent to make awards on matters which are in dispute between the parties and which are also connected with work to which the Act relates. 

The surveyors also have the power to determine any other matter that may arise out of the dispute which has been referred to them or which is in some way incidental to it

Their appointment is fundamental to achieving the purposes of the legislation and is widely credited with avoiding disputes between neighbouring owners that might otherwise result in litigation. The surveyors’ authority and power to make awards is not derived from their contractual appointment, but from the the provisions of the Act.  Failure therefore to follow the requirements of the Act can render an award invalid. 

What happens when a dispute or deemed dispute arises following service of the Notice?

The usual course when a dispute arises, or is deemed to have arisen, following service of the Notice, is for surveyors to be appointed, and for there to be an award, or party wall agreement put in place to regulate the works before they commence.   Usually, this will also provide a mechanism for the resolution of further disputes should they arise.  

The s10 (10 ) appointment 

The position becomes a little less clear when the adjoining owner having assented at the outset   subsequently decides to look to challenge the continuation of the works. On the face of it this triggers a dispute and the opportunity to engage the s10 (10) dispute resolution process emerges. 

However, it does not necessarily follow that just because the adjoining owner has decided for whatever reason to raise a concern a party wall dispute arises. 

There may be a number of reasons for the development. For example, the adjoining owner may have suffered some damage to their property during the course of the notifiable works, and becomes nervous about the prospect of the building owner making the work good, or offering compensation.  The adjoining owner may, by way of a further example, have become fed up with the building owner’s builder taking advantage of previously agreed access rights.   

On the face of it these examples suggest a disagreement, and per se would justify the establishment of the s10(10) process.  However, in both cases the situations could have easily arisen through nothing other than a misunderstanding, and or, without the building owner’s prior knowledge, especially if a contractor is involved.   

Furthermore, for there to be a disagreement there needs to be a difference in views, and if on enquiry the building owner accepts the view of the adjoining owner can it really be said that a dispute exists.  Clearly if one party accepts the position of the other there is no need or justification for the party wall dispute resolution provisions to be invoked.  

It is the uncertainty surrounding the adjoining owners change of heart that often exposes a building owner to the risk of financial exploitation by the ‘cowboy’ party surveyor who often circles looking for opportunities of this type. 

More often or not a building owner is forced due to pure ignorance of the workings of the Act to accept the appointment of the adjoining owner’s  surveyor, even though there is no actual dispute present.  It is only once the surveyor has bedded him or herself in that a dispute is then created to justify the appointment, and the massive fee accumulation that will inevitably follow. Its not too long before the building owner finds him or herself caught up in a protracted, very  expensive and, more to the point, totally unnecessary process, and one from which there is no escape. 

So what can be done if this imprisonment occurs?  

For there to be an award there needs to be an existing dispute.  This is clear from the present tense of the language used in s10 (10). 

This was made clear by HH Judge Bailey in the judgment he delivered in Mohamed and Lahrie and Antino and Stevens (2017) when dismissing the notion that the making of an award is always a necessary feature of the s10(10) process:

‘The argument that the 1996 Act requires the surveyors to proceed to an award even where the parties have reached agreement would be wholly against the general principle that parties who are sui juris are free to make such agreements as they wish to make, provided that they are not illegal in nature. It is also against the clear policy of the CPR for the court either to restrain two parties from reaching an agreement on any subject matter which has been referred to party wall surveyors under the 1996 Act, or to hold unlawful and therefore unenforceable any agreement they do happen to make, simply on the basis that a reference has been made to the surveyors. Very clear statutory words would be required before the court would act in this way, and there are no such words in the 1996 Act’.

If therefore the building owner agrees with the views/demands of the adjoining owner no dispute can be said to exist, and the need for an award ceases.  

In so far as the fees of the adjoining owners surveyor is concerned, even though there would be a strong argument to justify refusal to accept liability ( on the basis there was no dispute available in the first place to justify the s10 (10) appointment), this could ironically be viewed as a dispute,  and result in the making of an award. The best advise would be to offer and pay a small, but reasonable fee, and to then leave the adjoining owner to decide whether or not to run the cost risk of a third surveyor referral. 

Practical Advice 

If notifiable works are to be undertaken always serve a valid party wall notice. 

If the neighbour objects, or does not respond, look to find out why, and wherever possible establish a party wall agreement to regulate the proposed work, and to provide a mechanism for resolution to cover the possibility of a dispute arising in the future.  This will due to the decision in Mohamed ( above)  reduce the risk of exposure to the cowboy surveyor, and also the probability of facing a huge fee liability. 

This advice should equally be followed even if your neighbour consents to the works.  It is not uncommon for long standing neighbours to fall out, often for reasons unconnected with the build,  such as pure jealously.  By having in place an agreement to provide for the resolution of any dispute that might arise later will make it very difficult for s10(10) to be invoked. 

If there is no agreement in place, and a prima facie dispute follows assent, then find out what has gone wrong, and fix it quickly.  Don’t let a dispute develop, and make sure that if the adjoining owner surveyor decides to unilaterally appoint him or herself, that you make it clear there is no disagreement.  Follow this up with a written agreement, and ensure this has provision built into it to resolve any future disagreement that may arise.  This may mean swallowing your pride, and making concessions beyond normal expectation, however do bear in mind that entering the party wall arena can often be  akin to handing the adjoining owner’s surveyor a winning lottery ticket. 

David Pett - Solicitor 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

Can a party wall surveyor be sued for negligence?

The vast majority of surveyors who work within the party wall arena discharge their duty in a competent and ethically driven manner. 

There are however, a small minority who continue to let the side down. They operate outside the ambit of their statutory appointment and with little attention or care for the interests of the home owners they touch along the way. 

This presents a problem for many, since once appointed it is very difficult to remove a party wall surveyor. The involvement of an unethical surveyor can often lead to a whole heap of misery and financial loss for the unwitting appointee and or adjoining owner. 

I am often asked whether faced with this situation is it possible to bring an action against the rogue surveyor to seek legal redress for loss stemming from the negligent delivery of the service provided. In other words, can a party wall surveyor be sued for negligence. 

For an action in negligence to succeed the claimant will need to show that a duty of care exists, that the surveyor involved has breached that duty, and that there is a causal link between the breach and the actual loss suffered by the claimant. All of these elements must exist. So for example, if there is no loss then there is no entitlement to damages even if a breach can be proved. 

Duty of Care 

There is a clear contractual and common law duty owed by a party wall surveyor to the appointing home owner. The duty is to undertake work with reasonable care and skill. 

Following a section 10 of the Party Wall Act 1996 appointment, there is also a statutory duty owed, not only to the appointing owner, but also to the adjoining owner.

It has been suggested that each surveyor owes a duty of impartiality to each of the appointing parties and that this must take priority to the interests of their own appointing client ( Anstey, J., Party walls and what to do with them, RICS Books 1996, p. 15. See also Anstey, J., Trouble with the Neighbours, College of Estate Management 1983, p. 21). 

This was recognised in Lahrie Mohamed and Shehara Lahrie V Philip Antino and Raymond Stevens ( 2017) where HHJ Bailey recored in his judgment the following:

'It is important to note that the provisions of section 10 arise when a “dispute arises or is deemed to have arisen”. Once there is such a dispute, whether actual or deemed, either a single agreed surveyor or three surveyors are appointed, or, strictly, in the case of the third surveyor, selected. Where there are three surveyors two of them will have been appointed by (or occasionally for) one of the owners, whether building owner or adjoining owner. These party-appointed owners do (or should) not however act in any sense as agent for the owner appointing them. As the Earl of Lytton said when introducing the Party Wall Bill in the House of Lords on 31 January 1996: 

“The duty of party wall surveyors is quasi-arbitral. Once appointed they have a duty of act properly in the interests of both parties as statutory surveyors, which is a most important safeguard.”

Breach of Duty 

So in what circumstances could a breach arise?

The most obvious breach is bias, where a surveyor clearly fails to take into account the interests of both parties. This is not to say one surveyor should not be able to adopt a position which is contrary to that of the other surveyor. Indeed, this is the reason a third surveyor is often appointed. There is nothing wrong with positioning, however the Act has more to do with serving the interests of the parties. 

As explained the surveyors are under a duty to act fairly and within the spirt of the Act, and to ensure they do not lose sight of the enabling purpose of the Act. The parties are not interested in the construction and interpretation of the Act, the building owner is looking to complete the works, and the neighbouring owner is keen to know what work is to be carried out and what measures will be in place to protect the neighbouring property. 

So those surveyors who look to create disputes which do not exist and or who use the statutory procedure to constantly argue for no purpose other than to cost build, could clearly be viewed as failing to discharge their statutory and common law duty of care.

Equally, a surveyor who fails to assist parties to reach a quick and inexpensive resolution of issues could also be exposed to a negligence clam. It is clear from the Court of Appeal decision in Gray v Elite Town Management (2016) that the “the statutory procedure is intended to be a simple, inexpensive dispute resolution mechanism”. 

It could also be argued that a breach could result from a surveyor failing to advise his appointing owner or indeed both owners of alternative dispute resolution options, such as mediation, when, as often occurs, there is a deadlock between the parties. 

Causation and Loss 

In the case of a surveyor acting outside of his or her statutory appointment, through, for example, raising countless argument on issues which are no longer in dispute, and or constantly moving the ‘goal posts’, and or unnecessary protraction of the process, and or obstructing/hindering the proceedings and or acting in a confrontational manner, and or using the Act for personal gain, there may exist sufficient evidence to prove a breach. 

If it can be shown that there is link between the breach(s) and actual financial loss, then the affected party or parties could very well be in a position to bring a negligence claim against the offending surveyor to claim damages. 

The general aim of an award of damages in tort is to restore the claimant to his pre-incident position. In contract, on the other hand, the aim of a damages award is to put the innocent party in the position he would have been in had the contract been performed.

A damage claim could therefore include :

Extra surveyor fees due to the unnecessary protraction of the process - that is for both building and neighbouring owners

Extra cost/penalties due to the delay in the commencement/continuation of works

Damage to incomplete building works due to prolonged exposure to the elements 

Legal costs incurred in addressing issues created by a rogue surveyor 

The cost for establishing and running an alternative dispute resolution option

Negligence actions are not for the faint-hearted, though do keep in mind that surveyors operate with professional indemnity insurance cover, and that once a claim is intimated you should find yourself dealing with the surveyor’s insurers rather than the surveyor direct. 

David Pett - Property Solicitor with MJP Conveyancing

Painless extraction from a Party Wall dispute - Lahrie Mohamed and Shehara Lahrie V Philip Antino and Raymond Stevens (2017)

There will be times when parties involved in a Party Wall process become disillusioned with the cost and inadequacies of the mechanism for resolving and determining issues between them. They are often left feeling trapped, facing every rising fees, and looking for a way out. The problem lies with s10(2) of the Party Wall Act 1996 (Act) which prevents a party from rescinding the appointment of a party wall surveyor.

This is the situation  faced by the parties in Lahrie Mohamed and Shehara Lahrie V Philip Antino and Raymond Stevens. ( 2017) HH Judge Edward Bailey. 

The facts were not unusual. 

The, Claimants, home owners ( Owners) wished to carry our development and refurbishment work to their property which included the construction of a basement.  Some of the works featured fell within the Act  as ‘notifiable’ work. 

The owners served a Party Wall Notice on the adjoining owners ( Neighbours).  The Neighbours appointed a party wall representative, the First Defendant,  Philip Antino ( Antino ),  and the Owners appointed Michael Osborne ( Osborne ) a party wall surveyor.  Antino and Osborne then in line with the usual process, agreed on the appointment of Raymond Stevens ( Stevens) , the Second Defendant,  as the third surveyor. 

The subterranean work was complex and required expert input before a re-design of the scheme was agreed and a substantive award was made in 2015.  Shortly afterwards Stevens was replaced by Mr Redler, as the Third Surveyor. 

There then followed a series of legal actions when the Owners and Neighbours fell out with each other during the course of the works.  There was also discord between the Owners and Antino and the surveyors themselves.  

In  May 2016 a mediation took place at which Antino was excluded.  

At the end of the process agreement was reached to compromise the issues between the Owner and the Neighbour. A consent order in the form of a Tomlin Order ( Order) was issued. Though the parties had agreed to end the dispute they had not resolved their differences. The Order provided a mechanism for resolving the differences then existing and any fresh issues which arose in the future. This provided for the issues to be resolved by an independent surveyor and an evaluator. 

One of those issues to be determined in this way was the reasonable fee to be paid by the Owner in respect of the services provided by Antino, Stevens and  Calder, an expert appointed by Antino to assist with the re-design of the scheme. 

Essentially,  the Order took the issues out of the jurisdiction of the Party Wall Act meaning the appointed Party Wall representatives were essentially left high and dry. 

Antino was not happy and claimed the Order  was ultra vires.  He pointed to s10(2) of the Act where it requires all appointments to be in writing and not to be capable of rescission by either party.  Antino and Stevens then wrote to the independent surveyor appointed under  the Order to express their views, and as a result the surveyor decided he could no longer accept the appointment. 

Antino then wrote to Redler and Stevens inviting them to make an award warning if they refused he would produce an ex parte award.  Stevens supported Antino. 

The Owners solicitor on learning of this wrote to Antino seeking an undertaking not to make or purport to make any award and threatening an injunction.   In addition to this Redler disagreed with Antino pointing out the Order did not rescind the appointments under the Act but rather resolved the issues which meant there was nothing further for the surveyors to resolve under the Act. As will be seen Redler was spot on with his assessment. 

Antino jumped on this communication and claimed that as there was a dispute between him and Redler this amounted to an issue under 10(12)( c) and 13 ( c) and was one which could be determined within the jurisdiction of the Act. 

Antino then wrote to Stevens inviting him to resolve 11 areas of dispute in his role as Third Surveyor.  In response the Owners solicitors applied for interim injunctive relief and pending the final hearing undertakings were supplied by Antino and Stevens. 

At the substantive hearing which came before HH Judge Edward Bailey the claimant sought a declaration that Antino and Stevens had no locus to make further awards and for an injunction to prevent them from making any awards. 

Essentially the issue to be determined was whether it was possible for parties by agreement or otherwise to contract out or avoid the operation of the Act. 

The Judge dismissed Antino’s argument that the consent order amounted to an attempted recision of his appointment, and that of Mr Stevens, and  was therefore contrary to s10 (2). The Consent Order did not, nor did it purport to rescind the appointments.  Instead the Judge found its wording made it clear that there was no longer any dispute for the purposes of s10 of the Act between the parties.  

The Parties had agreed a mechanism for considering and resolving any present and future differences so there was no longer any scope for a dispute between them.  S10 only became engaged in the event of a dispute. 

The Judge explained:

‘The 1996 Act provides a mechanism for resolving disputes; there must be a dispute for the resolution mechanism to be engaged. Once there is a dispute, whether actual or deemed, the resolution mechanism provided by the Act is mandatory. Section 10(1) is in mandatory terms, and engages “[w]here a dispute arises or is deemed to have arisen between a building owner and an adjoining owner” and providing that the owners, as ‘parties’ ‘shall concur in the appointment of one surveyor’ or ‘shall [each] appoint a surveyor’. But there must be a dispute before any appointments are made’. 

In terms of future issues it was clear there there existed a perfectly reasonable and workable  process for considering and determining these issues so there could never be any dispute for the purposes of s10.  

As for the issues which arose and existed at the time of the Order relying on the present tense used within s10(10) the Judge found that ‘…..that if a matter ceases to be in dispute there is no dispute remaining to be settled by the surveyors.’ Therefore no need for the surveyors to proceed to make an award. 

This the Judge went onto say was consistent with the Act and the policy of the Civil Procedure Rules:

‘The argument that the 1996 Act requires the surveyors to proceed to an award even where the parties have reached agreement would be wholly against the general principle that parties who are sui juris are free to make such agreements as they wish to make, provided that they are not illegal in nature. It is also against the clear policy of the CPR for the court either to restrain two parties from reaching an agreement on any subject matter which has been referred to party wall surveyors under the 1996 Act, or to hold unlawful and therefore unenforceable any agreement they do happen to make, simply on the basis that a reference has been made to the surveyors. Very clear statutory words would be required before the court would act in this way, and there are no such words in the 1996 Act. 

One might ask why were the surveyors were so keen to keep the Owner and the Neighbour engaged within the the 1996 Act.  In short, the concern was fees, and in Antino’s case the fear without an Award with his fees added he would not be able to avail himself of the summary process  within the magistrates court to seek recovery of the fee if it was not paid. 

There was no question that either party was looking to avoid payment of  the surveyor’s fees and the Judge found it perfectly reasonable for the parties to agree, as they did, that if there was any issue on this that it could not be determined outside the Act in accordance with the agreed process. The fact Antino was deprived of a particular avenue of enforcement was neither here nor there.  There was no need for an Award to be made to record the fees of the surveyors.  

The judge found :

‘In the ordinary course of events, however, it is to be anticipated that the adjoining owners will pay the fees of their appointed surveyor and any engineer engaged by them, and that the building owners will reimburse them for such payments. This provision of the Consent Order is consistent with the normal expectation on the question of fees. There is also the implication in the Consent Order that the adjoining owners will also meet the third surveyor’s fees, or part of them, and thus expect reimbursement of this expenditure by the building owners’. 

So Antino and Stevens were left fully adrift not only in the hands of other surveyors ( those appointed under the Consent Order ) in terms of the assessment of their fees, but also having to meet a substantial cost lability for losing this action. 

Practical Implications 

The practical implications here are worthy of note.  The decision has created a means for those who start off in dispute with a solution to extract themselves from the Act and/or those who operate within it, if  a stage is reached whereby a different  mechanism for resolution of the issues can be agreed.  It also helps those parties avoid the closed shop which exists between certain surveyors when it comes to determining between themselves how much they should pay each other. In this case the parties through the agreement established an independent and probably much cheaper mechanism for resolving any dispute over the amount of fee the owner had agreed to pay the surveyors and expert.  This should come as a relief to those owners and neighbours who often find themselves facing high and disproportionate fees. 

It would suggest that if parties become concerned at any time about the escalating fees of the surveyors within a party wall dispute, it is open to them to agree to end the dispute, and to refer their differences, both existing and present, to an outside mediator to consider and determine.  As the surveyors found here to their extreme cost, there is very little then can do about this apart from claiming  their reasonable fees. 

This authority also suggests that even where a dispute has arisen, there is nothing to require a party wall surveyor to proceed to make an award where, as is often the case, the parties reach an agreement, and there is no  longer a dispute between them.  There is nothing to prevent them from recording their agreement in a different form, and to implement the terms thereof, without the need for an award.  The award offers no more security than a written agreement, and is equally enforceable.

David Pett. Solicitor 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at davidp@mjpconveyancing.com

A Solicitor’s Dual Duty

When instructed in a purchase transaction in which a client is seeking to rely on the aid of a mortgage, it is important to note that a Solicitor owes a duty not only to their client, but also to the client’s lender. Does a Solicitor, however, owe a general duty to report any information which may materially affect the valuation of the proposed security for the Lender? 

The answer to this question is evident in the recent High Court judgement of E.Surv Ltd v Goldsmith Williams Solicitors, published on April 10^th 2014, which saw a conveyancing firm ordered to pay costs of £100,000.00 for failing to disclose information on the value of a property to their client’s lender. This article examines the decision of E. Surv Ltd v Goldsmith Williams Solicitors, which is likely to be of particular interest to lenders.

The case centres on Mr Gayler – the client – who bought a property in September 2005 at a cost of £390,000.00. The client sought to remortgage the property and consequently instructed E Surv Surveyors to value the property in November 2005, at which time he informed E Surv that he had bought the property six to twelve months earlier at a cost of £600,000.00. E Surv valued the property at £725,000.00. The client applied to a lender in December 2005 for a loan of £580,000.00 to be secured against the property, which was based on an approximate value of £725,000.00. E Surv’s valuation was not provided to the lender at the time of the application, yet the application erroneously stated that Mr Gayler had purchased the property in October 2005 for £450,000.00. During the course of their instructions, Goldsmith Williams Solicitors – who acted for client and lender alike – obtained the Land Registry’s Official Copies for the property, which disclosed that Mr Gayler had indeed purchased the property for £390,000.00 in September 2005; the Solicitors did not divulge this information to the Lender. The remortgage transaction completed on February 13^th 2006 on the basis outlined above. Mr Gayler defaulted on his mortgage payments and the lender took possession of the property, selling the same at a significant loss. Consequently, the lender pursued the Surveyors and Solicitors, but only followed through their action against the Surveyors for their supposed negligent valuation. The Surveyors agreed a settlement with the Lender for £200,000.00, only to later pursue contribution proceedings against Goldsmith Williams – it is this resultant case with which this article concentrates. This case centred around two principal issues: whether the solicitors were under a duty to advise the lender as to the recent disposition of the property and correct purchase price, as well as whether the surveyors could prove that, had the solicitors done so, they would have issued a revised valuation to the lender. Whilst the solicitors argued that there was no causative effect as between any breach on their part and the lender’s decision, the Court held that the solicitors breached their duty by failing to report the purchase price, with the surveyors evidencing that, on the balance of probabilities, the bank would not have proceeded had this information been communicated. The Court ordered the solicitors to pay 50% of the surveyors’ cost to the lender - £100,000.00. The solicitors have since stated that they will be seeking to appeal.

In anaylsing the impact of the judgement made, it is important to examine a solicitors’ duties to a lender during the course of a transaction. The Council of Mortgage Lender’s Handbook (CML), which was introduced in 1999, provides comprehensive instructions to solicitors when acting on behalf of lenders in residential conveyancing transactions; in addition to this, there is also the Building Societies Association Handbook (BSA Handbook), which was brought into force in 2010. Prior to the introduction of the CML handbook, a solicitor’s duty to report matters relevant to the lender’s valuation was derived from common law and had been held to be a part of his duty of care and skill. This ‘Bowerman Duty’ was outlined in Mortgage Express v Bowerman [1996] PNLR 62, which held that ‘if, in the course of investigating title, a solicitor discovers facts which a reasonably competent solicitor would realise might have a material bearing on the valuation of the lender's security or some other ingredient of the lending decision, then it is his duty to point this out”. Nevertheless, the case of E Surv v Goldsmith Williams focused on provisions 4.1.1.1 and 5.1.1 of the CML Handbook, which respectively note the following: 

4.1.1.1: You must take reasonable steps to verify that there are no discrepancies between the description of the property as valued and the title and other documents which a reasonably competent conveyancer should obtain, and, if there are, you must tell us immediately

5.1.1: Please report to us immediately if the owner or registered proprietor has been registered for less than six months.

It is important to note that selling or remortgaging a property so soon after a disposition of the same does not fit within the usual pattern of residential home ownership;  you would need to question why the proprietor is looking to dispose of the property so quickly after its purchase. There are, of course, certain situations which have been excluded from provisions 4.1.1.1 and 5.1.1, which include, but are not limited to, a sale of a property by way of a personal representative of the proprietor, or a receiver or trustee-in-bankruptcy. As aforementioned, one of the key issues in this case was whether the Solicitors were obliged to inform the lender of the fact that Mr Gayler had purchased the property within the last 6 months for £390,000.00. Clearly, under the CML, there is no obligation on the Solicitor within provisions 4.1.1.1 and 5.1.1 to report to the lender the purchase price of the property. Therefore, a crucial question of the case was whether the ‘Bowerman Duty’ survived despite the introduction of the CML, or whether the obligations listed therein are exhaustive, leaving no scope for any further duties. However, the Court held the following:

‘…in my judgment what the Lenders Handbook, read with the Practice Rules and certificate of title, is intended to do is to identify and delimit the precise scope of the specific activities which the solicitor is being retained to do, in circumstances where the solicitor is faced with the difficult position of acting for two parties with potentially conflicting interests. It is not intended to exclude the general obligation to exercise reasonable care and skill in the performance of such activities…’

What can we draw from the judgement of this case? It is clear that from this case that the CML handbook does not negate solicitors’ wider duties of reasonable care and still owed to the lender, or indeed the client; the ‘Bowerman Duty’ should thus be read in conjunction with the CML guidelines. E Surv Ltd v Goldsmith Williams serves to find a happy medium between meeting the client’s and lender’s expectations with the responsibility in acting as a solicitor, as the solicitor has not been placed under an extended burden to obtain further information. What the case does underscore to a Solicitor, however, is the importance of reading and reviewing the information obtained carefully, so that any potentially prejudicial matters affecting the valuation of a property are brought to the attention of the lender.   

A big thank you to Bethany Slaughter a Trainee Solicitor with MJP Conveyancing for this insightful contribution