Gooden v Northamptonshire County Council

Authorities answering standard conveyancing enquiries about highway maintenance may owe a duty of care to a searcher who relies on the reply when deciding whether to acquire an interest in land. The duty is not confined to possible frontager liability. It extends to the foreseeable consequences of the highway’s represented status, including the absence of statutory highway powers. The claimant must still establish that the relevant purpose and transaction were known, actually or inferentially, to the authority. Liability for development losses requires proof that the authority knew, or should have known, that the information would be used for that development purpose. Any damages remain subject to remoteness and mitigation.

Mr Gooden bought property after Northamptonshire County Council replied to a standard conveyancing enquiry that “The Banks” was maintainable at public expense. The reply was later corrected, and a dispute arose about whether a sloping footway formed part of the maintained highway. Mr Gooden alleged that the inaccurate reply caused loss in purchasing and developing the property.

The Chancery Division dismissed the negligence claim. It held that the reply concerned only frontager liability, that the Council was not negligent, and that reliance after the corrective letter was unavailable. The Court of Appeal considered the meaning and accuracy of the reply, the scope of the duty of care, negligence, and the effect of the correction.

1. Appeal and cross-appeal dismissed. The Vice-Chancellor dissented and would have allowed the appeal, but Arden LJ and Buxton LJ dismissed it.
2. The reply was objectively to be read with the attached plan. “The Banks” therefore included the slope, and the reply represented that the slope was maintainable at public expense.
3. On the evidence and the way the case had been pleaded and argued, the slope was treated as not maintainable at public expense. Arden LJ held that adoption of the slope by the highway authority would have needed to be shown. Buxton LJ considered that the claimant had not discharged the burden of proving falsity, but accepted the assumed position for the appeal because the point had been raised too late and without the necessary evidence.
4. The governing principles for negligent misstatement were those in Caparo Industries Ltd v Dickman [1990] AC 605, including that the purpose for which the information was required must be known actually or inferentially. The Council’s standard conveyancing reply was purpose-specific and transaction-specific to the acquisition of an interest in land. Its duty was therefore wider than frontager liability and included loss foreseeably resulting from the absence of the statutory powers associated with public maintenance.
5. The duty did not extend, on the evidence, to development losses. The Council was not shown to have known that the enquiry was made for the special purpose of ensuring that it could facilitate access for the proposed development. In any event, the majority held that the Council was not negligent in answering by reference to the statutory list and available information. Questions about the effect of the corrective letter were therefore academic, although any recoverable loss would be limited by remoteness and mitigation.
6. The Vice-Chancellor would have held that the Council’s knowledge of the proposed development extended the duty to development losses and that the unexplained failure to consult a relevant map established a prima facie case of negligence. That reasoning did not command the majority.
7. The order was: appeal dismissed; cross-appeal dismissed; the claimant to pay 75 per cent of the aggregate costs of the appeal and cross-appeal; permission to appeal to the House of Lords refused.

• Court of Appeal (Civil Division): [2001] EWCA Civ 1744. Appeal from the Chancery Division dismissed, and the Council’s cross-appeal dismissed.
• Chancery Division: judgment of Mr John Martin QC, sitting as deputy judge. The negligence claim was dismissed.