Notes of Cases
| Published date | 01 May 1971 |
| Date | 01 May 1971 |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02331.x |
NOTES
OF
CASES
How
TO
GET
SUED
WITIIOUT
REALLY
TRYING
THE
decision of Fisher
J.
(as he still was) in Ministry
of
Ziousing
and Local Government
v.
Sharp and Another is said
to
have set
conveyancers all of a tremble.
If
so,
the judgments of the Court of
Appeal in reversing his decision should reduce
all
those concerned
with the development of the law of
torts
to quivering jellies. In
1960
the local planning authority refused permission to the owner
of
land
to
build
on
it.
This refusal entitled the owner
to
com-
pensation (duly paid) from the Ministry. However, by section
29
of the Town and Coun,try Planning Act
1954,3
if
permission
to
develop the land was later granted the compensation was
to
be
repaid by the developer. To secure repayment the Ministry was
given
a
charge
on
the
land: notice
of
compensation was
to
be reg-
istered in the register of local land charges. The Ministry duly
registered their charge. In
1962
the owner was granted permission
to dcvelop the land and prospective purchasers requisitioned for
an official search of the local land charges registry. By an error,
the local authority clerk making the search omitted the Ministry’s
charge from the certificate of charges. Then, after the purchase
had been completed, the Ministry claimed .the return of the com-
pensation from the purchasers, but
on
being shown
a
copy of the
certificate, took proceedings against the local registrar, who had
signed the certificate, and the local authority who employed the
clerk who made the mistake. Fisher
J.
decided that the registrar
was in breach of bis statutory duty and that the local authority
were liable for their clerk’s negligence, but that the Ministry were
not entitled to recover
as
they had suffered no damage. For he
held that the omission of the charge froni the certificate did not
protect the purchasers, from whom the Ministry could have
demanded repayment. This part of his decision was, to the relief
of the conveyancers, reversed by the Court of Appeal on the con-
struction of the various statutes giving the Lord Chancellor power
to make the rules concerned, holding that section
17
(3)
of lthe
Land Charges Act
1925
applied, making the certificate conclusive
in favour of a purchaser. The court also, by
a
majority, held that
the registrar was not liable, but
agreed
with Fisher
J.
that the local
authority were liable for the negligent misstatement.
It
is with this
decision that the remainder of (this note is c~ncerned.~
[19701
2
Q.B.
223; [l969]
3
All
E.R.
225.
[1970]
2
Q.B.
at
p.
259;
[1970]
1
All1
E.R.
1009.
Now
s.
113
of
the
Town and Country Planning Act 1962.
I
shall not deal with the conveyancing or statutory interpretation issues: the
case has been noted
on
these points in (1970)
34
Conv.(N.s.) 198.
Nor
shall
I
deal
with the issue
of
breach
of
statutory duty.
317
318
THE
MODERN
LAW
REVIEW
VOL.
34
Lord Denning
M.R.
said
5:
“
I
have no doubt that the clerk is liable.
He
was under a duty
at common law
to
use due care. That was a duty which
he owed to any person-incumbrancer
or
purchaser-whom
he knew, or ought to have known, might be injured
if
he
made
a
mistake. The case comes four square within the
principles which are
staked
in
Candler
v.
Crane, Christmas
Q
CO.,~
and which were approved by the House
of
Lords in
Iiedley Byrne
&
Co.
Ltd.
v.
Heller
&
Partners Ltd.”
I
Salmon
L.J.,
however,* relied on the factor that the constructive
knowledge
of
the clerk of the
loss
to
the incumbrancer resulting
from
a
careless search created
as
close a degree of proximity
“
as
existed between the appellant and .khe respondent in
Donoghue
v.
Stevenson.”
’
Cross
L.J.,
too, based himself on proximity under
“
the modern developments
of
the law of tort which were initiated
by
Donoghue
v.
Stevenson
and extended
to
negligent statements in
Hedley Byrne
Q
Co. Ltd.
V.
Heller
Q
Partners Ltd.”
lo
All three
rejected the argument that there could be no liability because there
was no voluntary assumption of responsibility, in that the local
authority were obliged
to
provide a certificate in reply
to
the
requisition. This was the issue on which counsel’s arguments on
the negligence question concentrated
:
there was
no
attempt
to
distinguish
Sharp
from
Hedley Byrne
on the ground that in
Sharp
the plaintiff had not relied on a misstatement
by
a defend-
ant in
a
special rela?>ionship with him, but had merely suffered
economic
loss
by reason of
a
misstatement made
to
.a
third party.
What is most disturbing is thak the Court of Appeal, with the sole
exception of Salmon
L.J.,
appear not
to
recognise that they are
making any extension
of
,the law, and even Salmon
L.J.
merely
says that he is not troubled by the uniqueness of the case. Theut
an extension
of
such fundamental importance should be made with
such inadequate consideration
of
the wider issues involved is
indefensible.
Previous authority
Winfield
l1
in
1967
argued that the situakion was similar
to
the
pre-Hedley Byrne
one-authority for
a
tort
of malice (slander
of
title
or
injurious falsehood) assuming though not explicitly deciding
that negligent misstatements made
,to
third papties were not action-
able as such.
If
similar authority was irrelevant in
Hedl3 Bymie,
then this authority is irrelevant in
Sharp.
Although
€ledley
Byrne
itself proceeds on the assumption that the duty is only
owed
5
[1970] 2
Q.B.
at
p.
268; [1970]
1
All
E.R.
at
p.
1018.
6
[1951]
2
K.B.
164, 179-185; [1951]
1
All
E.H.
426, 433-136.
7
[1964]
A.C.
465; [1963]
2
All
E.R.
575.
8
[~l1970] 2
Q.B.
et
p.
278; [1970] 1 All
E.R.
at
p.
1026.
9
[1932] A.C. 562.
10
rig701
2
Q.B. at
U.
290:
ri97oi
1
~ii
E.R.
at
D.
1037.
._
-
11
Gth
ed.,
pp.
248-349.
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