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As a result, the Claimants/Appellants are now entitled to recover damages for professional negligence against solicitors who acted for the First Appellant’s mother, now deceased, in the creation of an estate-planning scheme which the Defendants promoted as having Inheritance Tax advantages. The scheme included the creation of trusts, into one of which the mother’s home was to be transferred. This was to be achieved by creating an open contract for the sale of the house to the trustees, which should have been, but was not, protected by a restriction entered on the Land Register by the Defendants. Later the mother, acting through her then civil partner, sold the house in breach of trust and the proceeds were dissipated.
The Appellants alleged that the solicitors’ failure to register a restriction was negligent and had enabled a disposal of the property without the Appellants’ knowledge and consent.
At first instance the judge decided that, whilst the solicitors had been negligent, the Claimants had not established any loss. Applying loss of chance principles, the judge ruled that the Claimants would not have been able to prevent the sale of the house.
On appeal, it was successfully argued that the Appellants’ loss had been pleaded as the loss of their power to veto the sale of the house. The Court of Appeal agreed. It held that the first instance judge had been wrong to treat the claim as a loss of chance claim. The Court of Appeal also held that if a restriction had been registered, the Appellants would not have consented to a sale of the house when notified of the proposed transaction by HM Land Registry.
Teresa specialises in Commercial and Chancery litigation, Private International Law and International Arbitration. Gabor’s practice focuses on Private Clients, Commercial Disputes and Private International Law.
News 10 Feb, 2020