C&N Homes Ltd v Thorpe & Co Solicitors

In a professional-negligence claim, a pleaded case that solicitors failed to advise cannot ordinarily be converted at trial into a case that they gave negligent positive advice without an amendment. The absence of objections to cross-examination does not itself amount to a concession that the unpleaded case may be run; a clear concession is required. Advice must also be construed in context. A cautious suggestion that defective-title insurance might assist did not authorise a client to build over land known to belong to another party. Where those conclusions leave no real prospect of a successful appeal, permission should be refused.

C&N Homes Limited v Thorpe & Co Solicitors concerned a builder’s professional-negligence claim against its former solicitors. The claim arose from the proposed construction of an access road which approached land registered to another developer. The Leeds County Court dismissed the claim on 21 May 2012. On a renewed application, the Court of Appeal considered whether the claimant could rely on an unpleaded allegation of positive negligent advice based on a 2007 letter, and whether the letter was negligent on its merits.

1. Application refused. The renewed application for permission to appeal was dismissed because there was no real prospect of successfully challenging the County Court’s decision.
2. Pleading issue. The pleaded case alleged failures to advise. It did not allege that the solicitors had positively advised the claimant to proceed with construction over land owned by another party. A pleaded case identifies the alleged effect of the advice and the facts relevant to the claimant’s understanding and reliance. The judge was therefore clearly entitled to hold that the positive-advice case required an amendment. The fact that questions had been put about the letter in cross-examination did not amount to an express concession that the unamended case could be run. A clear concession would have been required.
3. Merits of the alternative case. Even assuming that amendment was unnecessary, the letter of 1 March 2007 did not contain negligent advice. Its meaning had to be assessed in context. The solicitor’s suggestion that insurance might assist was expressed cautiously. There was no evidence that the solicitor had been told that the claimant would build the access route regardless of the answer. It was not plausible to construe the letter as authorising construction over land which the claimant knew belonged to another developer. The claimant’s own knowledge that title or a right to build had to be acquired was also relevant.
4. The Court did not need to determine the further grounds concerning causation and loss. The formal order was that the application was refused.

• Court of Appeal (Civil Division). On a renewed application for permission to appeal, the court refused permission: [2011] EWCA Civ 1826.
• Leeds County Court. HHJ Cockcroft dismissed the professional-negligence claim on 21 May 2012.