Court of Appeal overturns decision that negligent failure to register restriction caused no loss

In Christopher Hugh Gosden and others v Halliwell Landau and others [2020] EWCA Civ 42 the Court of Appeal has held that a judge's approach to a Claimant's causation case was wrong.

The facts

In 2003 the Claimant's mother established a trust in order to pass a property to him. The defendant firm of solicitors set up the trust but did not register it at HM Land Registry as required. Following the mother's death in 2013 the Claimant discovered that the property had been sold three years earlier. The Claimant alleged that the solicitors' failure to register a restriction was negligent and had enabled a disposal of the property without the Claimant's knowledge and consent.

The decision

At first instance the judge decided that, whilst the solicitors were negligent, the Claimant had not established any loss. The judge applied loss of chance principles, and held that if the Claimant had known about the sale he would not have been able to persuade his mother to cancel it.

The Claimant appealed on the basis that his claim was not formulated as a question of whether or not he had a real or substantial chance of persuading his mother not to proceed with the sale. His loss had been pleaded as the loss of power to veto the sale. The Court of Appeal agreed and held that the judge was wrong to treat this as a loss of chance claim and that the evidence at trial had been that the Claimant would not have consented to the sale when notified by HM Land Registry.

Its application

Establishing causation in professional negligence cases can be complicated by loss of chance principles and the reconstruction of hypothetical events. This case shows the importance of care in approaching causation cases and the potential dangers of deviating from a pleaded claim.