Swindle v Harrison

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date25 March 1997
Date25 March 1997

Court of Appeal

Before Lord Justice Evans, Lord Justice Hobhouse and Lord Justice Mummery

Swindle and Others
and
Harrison and Another

Negligence - solicitors - failure to disclose not fraudulent - causation

Negligence without fraud attracts no damages

A person who raised a mortgage on her home, obtained a bridging loan and purchased another property was not entitled to recover from the solicitors who had provided the loan but had failed to disclose material facts and so were in breach of fiduciary duty, damages or compensation for loss of the value of equity in her home except on proof either that they had acted fraudulently or in a manner equitably equivalent to fraud, or that she would not have completed the purchase if full disclosure had been made and the breach not occurred.

The Court of Appeal so stated in a reserved judgment when dismissing an appeal by the second defendant, Mary Harrison, against an order of Mr Recorder Sir Andrew Watson at Warwick County Court on November 6, 1995 that no damages flowed from breach of duty and negligence by the plaintiffs, Stephen Swindle, Timothy Fillmore, Tony Cox and Rosalind Rowett, of Alsters, Leamington Spa, a firm of solicitors, in respect of making Mrs Harrison a bridging loan to purchase a property.

The judge had found that the plaintiffs were negligent and in breach of fiduciary duty in failing to disclose two material facts that Mrs Harrison's son's bank was unwilling to provide a reference which could mean he was unable to secure a loan to assist with the purchase and that the plaintiffs would profit from the bridging loan transaction.

Mr Duncan Matheson, QC and Mr Stephen Neville for the plaintiffs; Mr Edward Bannister, QC and Miss Isabel Hitching for Mrs Harrison.

LORD JUSTICE EVANS said that Mr Bannister had submitted that because the plaintiffs were in breach of duty therefore, applying Brickenden v London Loan & Savings CoUNK ((1934) 3 DLR 465, 469), they were liable to restore Mrs Harrison financially to the position she was in when their breach of duty occurred. It was not relevant to inquire whether or not she would have completed the purchase in any event. It was enough that she did in fact do so, and as enabled to do so by the plaintiffs' loan.

His Lordship would reject that argument because the authorities also showed that the stringent rule of causation or measure of damages, identified inCIBC Mortgages plc v PittELR ([1994] 1 AC 200) and Brickenden did not apply on breaches...

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66 cases
7 books & journal articles
  • NAVIGATING THE MAZE
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2016, December 2016
    • 1 December 2016
    ...of the trust rules. See Peter Birks, “The Content of Fiduciary Obligations” (2000) 34 Israel Law Review 3 and Swindle v Harrison[1997] 4 All ER 705 at 734. Cf Joshua Getzler, “Rumford Market and the Genesis of Fiduciary Obligations” in Mapping the Law: Essays in Memory of Peter Birks (Andre......
  • AN ACCOUNT OF ACCOUNTS
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2016, December 2016
    • 1 December 2016
    ...Trust Co Ltd[1999] 1 NZLR 664; Amaltal Corp Ltd v Maruha Corp[2007] 3 NZLR 192; Premium Real Estate Ltd v Stevens[2009] NZSC 15. 142[1997] 4 All ER 705. at 328–331. 143Swindle v Harrison[1997] 4 All ER 705, applied in Nationwide Building Society v Balmer Radmore[1999] PNLR 606 at 671–672. S......
  • Case Note
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2014, December 2014
    • 1 December 2014
    ...Pty Ltd v Hepburn[2011] FCA 495 at [464]–[466]; and Hodgson v Amcor Ltd[2012] VSC 94 at [1653]–[1661]. 38 In Swindle v Harrison[1997] 4 All ER 705 at 717, Evans LJ had held that: … the stringent rule of causation or measure of damages [in Brickenden] does not apply as regards breaches of eq......
  • Remoteness Criteria in Equity
    • United Kingdom
    • The Modern Law Review Nbr. 65-4, July 2002
    • 1 July 2002
    ...USA.588* Barrister, London. I am grateful to Dr James Edelman for his comments on an earlier version of this note.1Swindle vHarrison [1997] 4 All ER 705 (CA) 733; Re Mulligan [1998] 1 NZLR 481, 509;O’Halloran vRT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 (CA) 273–278; Maguire vMakaronis (......
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