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Mortgages.

The editor of this section of the site is Nigel Clayton of Kings Chambers, Leeds and Manchester. Nigel also maintains the specialist website dealing with mortgages at www.legalmortgage.co.uk

There are three cases this month:
  • The quantum of damages in the lender’s claim would be determined at the date of trial.
  • The court granted specific performance to enforce an obligation in a legal charge requiring the landowner to enter into a s106 agreement.
  • A firm of solicitors which was holding two DS1s to order was not required to deliver them up.


Professional negligence

Quantum of damages

LSREF III Wight Ltd v Gateley LLP
[2016] EWCA Civ 359

Summary

The Court of Appeal held that the quantum of damages in the lender’s claim would be determined at the date of trial. The claim was for damages for professional negligence for the diminution in value of its leasehold security by reason of some undisclosed insolvency forfeiture provisions in the lease. By the date of trial the lender would have been in a position to mitigate its loss by negotiating a release of the relevant provisions.

Facts

G, a firm of solicitors, was retained by a bank to provide a report on title in respect of a proposed loan to its customer, M, on the security of leasehold property. G’s report was negligent in that it failed to warn that the lease contained a forfeiture clause in the event of specified insolvency events. Liability was admitted.

Issues

Whether the date of trial was the correct date of assessment of loss; and
Whether the bank had failed to mitigate its loss by negotiating a variation of the lease with the landlord.

First instance

At trial, the judge determined that the bank had suffered loss at the commencement of the transaction (2007) and, based on expert evidence, concluded that the diminution in value of the security by reason of the insolvency forfeiture provisions was £240,000, on which would be allowed interest at 2% per annum. The judge also indicated that if the diminution in value was determined at the date ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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