Corbett v Bond Pearce (a firm)

Damages for negligent preparation or execution of a will must reflect loss falling within the scope of the solicitor’s duty. The estate cannot recover losses that in substance belong to disappointed beneficiaries, or recover twice for the same testamentary loss. Estate liabilities are recoverable only where they were caused by the negligence, were reasonably foreseeable, and were of a kind against which the solicitor had a duty to save the estate harmless. Costs incurred in pursuing the negligence claim generally fall to be dealt with through costs orders, not as damages. Where the applicable order requires a notional administration under a failed will, the court must identify the relevant assets, causally connected liabilities and legacies, and award only the shortfall.

The claimant, as administrator of Miss Tresawna’s estate, sued the defendant solicitors for damages arising from negligent advice concerning the execution of a later will. Liability had been admitted. The later will was declared invalid in Corbett v Newey and Others [1998] Ch 57, and the disappointed residuary beneficiaries recovered £275,000 from the solicitors.

Eady J held that the estate could recover losses including the costs of the probate proceedings: Corbett v Bond Pearce (a firm) [2000] Lloyd’s Rep PN 805. The Court of Appeal allowed the solicitors’ appeal and ordered that recovery depended on the estate’s ability to pay creditors and satisfy legacies under the relevant order. The present hearing determined the proper application of that order and the amount recoverable.

1. The court was bound by the Court of Appeal’s amended order of 13 July 2004, despite considering its reasoning and drafting internally inconsistent. The common ground was that the condition in paragraph 2(a) did not apply and that the estate was solvent.

2. The estate’s available assets had to be calculated after taking into account the costs of the probate proceedings, other losses or liabilities caused by those proceedings or the costs order, and losses caused by the delay in administration attributable to the solicitors’ negligence. The inquiry was continuing and had to be conducted as at the date of judgment.

3. Losses and liabilities had to satisfy ordinary principles of causation, remoteness and foreseeability. In contract, the loss had to be reasonably foreseeable as likely to result from the breach. In tort, it had to be of a reasonably foreseeable type. The liability also had to be of a kind against which the solicitors’ duty required the estate to be kept harmless.

4. Costs of the claimant’s negligence proceedings, his own solicitors’ fees, and costs of an unreasonable application to set aside the probate costs order were not relevant liabilities. They could be recoverable, if at all, under an order for costs. The same loss could not be recovered as both costs and damages.

5. Liabilities arising from reasonable steps taken to protect estate property during the delayed administration were relevant. Thus, the costs of the boundary dispute concerning Tippett’s Cottage were included. Certain accountancy, tax, property and administration expenses were also included where causation and foreseeability were established.

6. Mr Bennett’s professional charges under the failed will were treated as a pecuniary legacy to be provided for under the amended order, not as a conventional estate liability. The failed will could not otherwise be administered, and its legacies could not actually be paid under it.

7. The court calculated available assets at £213,616 and relevant losses, liabilities and legacies at at least £226,782. The minimum damages were therefore £13,166, subject to updating interest and agreement or further determination of the final figure.

• Court of Appeal: Eady J’s decision was reversed and the preliminary questions were answered in the negative: Corbett v Bond Pearce (a firm) [2001] 3 All ER 769.
• Court of Appeal: the order was amended under CPR 40.12(1) on 13 July 2004.
• High Court (Chancery Division): the present judgment applied the amended order and assessed the recoverable damages.