Cases - Cottingham and Cottingham v Attey Bower & Jones

Record details

Cottingham and Cottingham v Attey Bower & Jones
Lloyds Rep PN 591. Times April 19, 2000. Chancery Division Rimer J.
Negligence, Building Regulations

Solicitors who negligently failed to pursue a request for sight of a copy of a building regulation approval were liable for the loss sustained by the claimants on their subsequent acquisition of a defective property.

In 1993 Peter and Julie Cottingham bought a house on which the vendor had undertaken extensive renovations and extensions in 1985. Structural problems, negligently overlooked by the surveyor and linked to the building works, were discovered shortly after purchase. Enquiries revealed that not only had the vendor failed to get the necessary building regulation approval, but also he lied about it in answer to pre-contract enquiries, claiming falsely that he had got consent but no longer had a copy. In fact, building regulation approval had been sought twice by the vendors and rejected. The claimants contended that they were entitled to damages measured by reference to the difference in value, which was the cost of rectification works in a sum exceeding £40,000. However, several of the defects for which they sought the cost of repair had been pointed out to them prior to purchase. Leaving these items aside the claimants were found to be entitled to damages of £8,203.26.

Rimer J held that:

(1) The solicitors ought to have discovered that the 1985 renovations did not have building regulation consent and

(2) Having so discovered should have warned the purchasers of the risk of the possibility of enforcement proceedings. The solicitors tried to argue that they had made the enquiries recommended by the Law Society's 1993 Conveyancing Handbook which, so far as material, advised pre-contract enquiries about additions, alterations or extensions made since the property was first built and recommended asking whether building regulation consent had been obtained and complied with, where such work had been undertaken 'within the past 12 months'.

Rimer J stated that:

Firstly, he could see no justification for limiting the latter enquiry to work done in the preceding 12 months. This recommendation, he thought, must have been based on the erroneous assumption that enforcement proceedings could only be brought by the relevant authority in respect of such recent works. Although correct that the planning authority could not bring criminal proceedings under the Building Act1984 in respect of works older than 12 months, there was no such bar on injunctive proceedings under s36(6) of the Act. There was therefore no justification for such a limited enquiry.

Secondly, the particular pre-contract enquiry actually raised by the solicitors asked for copies of the consents to be provided. When the vendor had been unable to provide a copy, the solicitors were wrong to have left matters there. If a document was sufficiently important to ask for a copy of it, said Rimer J., then the solicitors should ensure that they got hold of it by some other means: 'I do not understand why the importance should evaporate when the vendors say they do not have a copy.' The solicitors should have made enquiries of the relevant authority. They would then have ascertained the serious omission to obtain consent and they would at the same time have unearthed the vendor's misrepresentation.

Rimer J did agree that, 'in principle, unless put on inquiry as to its unsoundness, a purchaser's solicitor is not ordinarily under a duty to verify from other sources the correctness of a vendor's reply to a pre-contract enquiry.' So, if the vendor had been a bigger liar and claimed that he done no work on the property, or only minor works which required no building regulations consent, the solicitors may have had an easier run. (Even then, the latter response might encourage the perfectionist to criticise for failing to engage in extensive correspondence with a view to checking precisely what works were done, so that the solicitors could give their clients a better-informed view as to whether building regulations consent really was not required.)

This case is somewhat unusual in that as time had expired (12 months section 36(4)) for action to be taken by the local authority under section 36(1) and section 36(2) of the Building Act 1984, they took action under the little used section 36(6) injunction proceedings, which has no such time bar.