Nicole Michelle Green v Sheila Agnes Eadie and Others
| Jurisdiction | England & Wales |
| Judge | Mr Mark Cawson |
| Judgment Date | 18 November 2011 |
| Neutral Citation | [2011] EWHC B24 Ch |
| Docket Number | Case No: HC 09C03083 |
| Court | Chancery Division |
| Date | 18 November 2011 |
[2011] EWHC B24 (Ch)
Mr Mark Cawson QC,
sitting as a Judge of the High Court
Case No: HC 09C03083
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
William Moffett (instructed by Martin Tolhurst & Co, Gravesend) for the First and Second Defendants
Carl Troman (instructed by Bond Pearce, Southampton), for the Third Defendant
Hearing Date: 10 November 2011
HTML VERSION OF JUDGMENT
Introduction
In this action the Claimant, Nicole Michelle Green ("Mrs Green") claims against:
1.1. The First and Second Defendants, Sheila Agnes Eadie ("Mrs Eadie") in her own capacity, and Mrs Eadie as personal representative of her late husband, Robert William Eadie ("Mr Eadie"), damages for misrepresentation pursuant to Section 2(1) of the Misrepresentation Act 1967, further or in the alternative at common law for negligent misrepresentation; and
1.2. The Third Defendant, Khilkoff-Boulding & Co ("KBC"), a firm of solicitors, damages for professional negligence pleaded as breach of the implied terms of KBC's retainer, and as breach of a co-extensive common law duty of care.
The claim comes before me on the trial of a preliminary issue, ordered by Deputy Master Arkush on 11 April 2011, namely:
"Is the claim against the First and Second Defendants and/or the claim against the Third Defendant statute barred (i) in the event that there was a misrepresentation by the First Defendant and/or her husband in relation to the property as pleaded in paragraph 5(i) and/or 5(ii) and/or 5(iii) of the Particulars of Claim, and (ii) in the event that there was no such misrepresentation?"
Mr Nathan Wells, Counsel for Mrs Green, recognised in opening that Mrs Green's only case as against Mrs Eadie is in misrepresentation, either under Section 2(1) of the 1967 Act or at common law, and so the event of there being "no such misrepresentation" is, for the purposes of the present hearing, only relevant to the position of KBC.
Background
Mrs Green is the registered freehold owner of the property known as "Rainbows End", Sundridge Hill, Cuxton, Rochester, Kent, ME12 1LF, title number K438522, ("the Property"), having acquired the same from Mr and Mrs Eadie pursuant to a Transfer dated 29 August 2003 that completed a contract exchanged on 1 August 2003 ("the Contract").
Mr and Mrs Eadie had, themselves, purchased the Property from a Mr and Mrs MacDonald in December 1986. In early 2003 Mr and Mrs Eadie put the Property on the market for sale, and, thereafter, Mrs Green and her husband viewed the Property in the presence of Mrs Eadie.
At the time Mrs Green and her husband visited the Property there were some wooden fences to the north- east of the Property in the positions shown marked "A — B" and "B — C" on the plan attached to the Particulars of Claim. It is Mrs Green's case that, as alleged in paragraph 5(i) of the Particulars of Claim, Mr and Mrs Eadie represented to her and her husband that these fences marked the North Easterly boundary of the Property.
In fact, there is a strip of land ("the Strip") lying between the fences and the boundary of the Property as shown on the filed plan with the registered title. I note that in paragraph 8.2 of Mrs Eadie's Defence, she alleges that she informed Mrs Green prior to the purchase that the Property did not include the Strip, that the fences did not mark the boundary and had only been erected to keep horses out, and that the fences would have to be moved if the neighbour so required. There is therefore a fundamental dispute of evidence as to whether the representation referred to in paragraph 6 above was made as alleged, but for the purposes of the present trial, and subject to considering the alternative position against KBC in the event that there was no misrepresentation, I proceed on the basis that Mrs Green's version of events is correct, and that it was represented to her that the fences marked the boundary.
On 14 April 2003, Mrs Green first retained KBC to act for her on the purchase of the Property from Mr and Mrs Eadie.
On 21 April 2003, Mr and Mrs Eadie completed a "Sellers Property Information Form ". Two questions answered therein are relevant for present purposes because they provide the basis for the further misrepresentations alleged at paragraphs 5(ii) and 5 (iii) of the Particulars of Claim:
"1.3 Do you know of any boundary being moved in the last 20 years? No
2.1 Do you know of any disputes or anything which might lead to a dispute about this or any neighbouring property? No."
The Sellers Property Information Form was sent to KBC on 23 April 2003. KBC picked up on an issue relating to a strip of land between the front boundary of the Property and a roadway that was resolved post completion by the purchase of a strip of land from Medway Council. However, the fact that the title did not include the Strip was not picked up before exchange of Contracts or the later completion.
On 15 June 2003, Mrs Green paid to Mr and Mrs Eadie a non-binding deposit of £1,000 and, as referred to above, contracts were formally exchanged on 1 August 2003, and a further deposit of £31,500 was paid roughly contemporaneously therewith. As further referred to above, completion took place on 29 August 2003 when the balance of the purchase price of £325,000 was paid with the assistance of a mortgage advance from IGroup Mortgages Limited. Registration of Mrs Green as registered proprietor of the Property was completed on 5 March 2004.
On 9 September 2005 the registered title to the land lying to the North East of the Property (title number K524029), being land which included the Strip, was acquired by Mr Balvinder Singh Gill ("Mr Gill"). On 26 February 2006 Mr Gill issued proceedings (" Gill v. Green") against Mrs Green and her husband in the Medway County Court, seeking an injunction to "restore the true boundary" between the Property and the Strip, and an injunction restraining trespass on the Strip.
On 22 June 2006, Mrs Green served her Defence and Counterclaim in Gill v. Green, Mrs Green by her Counterclaim alleging that she had acquired a possessory title to the Strip by adverse possession. Gill v. Green came on for trial before Her Honour Judge Cameron at Canterbury County Court on 29–30 October 2007. On 29 January 2008, the Judge handed down Judgment dismissing Mrs Green's claim to a possessory title, awarding Mr Gill damages and costs, but declining to determine the precise position of the boundary on the basis that there was insufficient evidence before her to make the required determination.
Mrs Green then applied to the Court of Appeal for permission to appeal. On 22 July 2008, Lloyd LJ granted Mr Green permission to appeal on each of the grounds sought to be pursued. However, before the full appeal was heard by the Court of Appeal, the parties agreed to a consent order providing for Mr Gill to retain the damages and costs paid to him, an agreed line of the boundary, and for the parties to bear their own costs of the appeal.
The present claim was issued on 28 August 2009. The significance of this date is that it is more than 6 years after exchange of contracts (1 August 2003), but less (just) than 6 years from completion (29 August 2003).
The Claim
Mrs Green's case against Mrs Eadie is based upon the representations referred to in paragraphs 6 and 9 above, which are alleged to have been false, and which are alleged to have induced Mrs Green to enter into the Contract, and subsequently complete. As already referred to the case is pleaded under Section 2(1) of the 1967 Act, placing the burden on Mrs Eadie to show that she had reasonable grounds to believe in the truth of the representations, alleged, alternatively at common law for negligent misrepresentation, where the burden is on Mrs Green to prove negligence.
The claim against KBC is set out in paragraph 17 of the Particulars of Claim as follows:
"17. In breach of contract and/or negligently the Third Defendant failed to exercise all proper care, skill, diligence, and competence in and about the purchase and/or conveyancing of the Property.
PARTICULARS OF NEGLIGENCE/BREACH OF CONTRACT
(i) The Third Defendant failed to discover that all the boundaries of the Property were not clearly and properly defined;
(ii) The Third Defendant failed to advise the Claimant to compare the existing boundary features with the Land Registry Filed Plan and to report and discrepancies to it;
(iii) The Third Defendant failed to advise the Claimant to instruct a surveyor to compare the existing boundary features with the Land Registry Filed Plan and to report any discrepancies to the Third Defendant;
(iv) The Third Defendant failed itself to compare the existing boundary features with the Land Registry Filed Plan;
(v) The Third Defendant failed to make any or any adequate inquiries as to the position and ownership of the boundaries of the Property;
(vi) The Third Defendant failed to advise the Claimant that some of the boundaries of the Property were not properly and clearly defined and that the lack of clarity could subsequently cause problems, including costly boundary disputes with neighbouring landowners;
(vii) The Third Defendant permitted the Claimant to proceed with the purchase of the Property without giving any or any adequate advice as to the potential problems of the Property's boundaries;
(viii) In all the circumstances, the Third Defendant failed to advise the Claimant on all matters relevant to the purchase of the Property."
The essence of the case against KBC is that they should have checked the boundaries as shown on the filed plan of the Property, initially at least by...
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