AW Group Ltd v Taylor Walton (a firm)

In a professional negligence claim, causation must be established by evidence of the relevant counterfactual, not speculation. A claimant who says proper advice would have caused a bank or other third party to act differently must prove both that the information would have reached that party and the response that would probably have followed. An appellate court may uphold a trial judge’s conclusion where several reasons cumulatively provide a compelling basis for it. Fresh evidence will ordinarily be refused where it was available before trial, could reasonably have been deployed then, and admission would give an unsuccessful party a second opportunity to present its case.

AW Group Limited sued Taylor Walton (a firm) for negligent planning advice concerning its acquisition of Packhorse Place. His Honour Judge Hodge QC found negligence but dismissed the claim because causation and loss were not proved. On appeal, AW Group challenged the treatment of NatWest’s likely response to accurate planning information and the financial condition of associated companies. It also challenged the admission of published accounts and sought to adduce fresh evidence. A cross-appeal concerning damages arose only if AW Group succeeded. The central issue was whether the alleged negligence probably caused the claimant to withdraw, renegotiate, or suffer loss.

1. Fresh evidence. Lord Justice Briggs, with Lord Justice Jackson and Sir Stanley Burnton agreeing, refused the application to adduce further evidence. The court’s power under Part 52.11(2) is exercised in accordance with the overriding objective. The pre-CPR authorities, including Ladd v Marshall [1954] 1 WLR 1489, remain relevant and persuasive, while procedural compliance is also important. The proposed evidence was available to the claimant and its accountant before trial, related to matters already pleaded or known, and could reasonably have been deployed at trial. Its admission would have provided a second opportunity to present the case.
2. Bundle R. The published accounts of the associated companies were relevant to the counterfactual question of what the claimant would have done if properly advised. Their admission was not unfair. The claimant had an opportunity to address their apparent financial position through its own evidence, and the defendants were not required to put the material again to the accountant.
3. NatWest and causation. The claimant had to establish that the relevant planning information would have reached NatWest and what the bank would probably have done. The information concerning the parking area would probably have reached the bank and might have reduced the valuation, but there was no evidence from NatWest, no lending guidelines, and no reliable evidence of the bank’s likely response. The claimant’s assertion that the bank would have withdrawn lending was speculation. The claimant also failed to establish that the deposit would have been recovered.
4. Overall causation and disposition. The trial judge identified five cumulative reasons why the claimant was already too committed to the purchase to withdraw when competent advice should have been given. Those reasons provided a compelling basis for dismissing the claim on causation grounds. The appeal was dismissed. The cross-appeal did not arise.

• Court of Appeal (Civil Division): Appeal dismissed. The cross-appeal was not considered because the appeal failed.
• Chancery Division: His Honour Judge Hodge QC, sitting as a deputy judge, dismissed the professional negligence claim on 29 July 2013. He found negligence but concluded that causative loss had not been proved.