Bacciottini & Anor v Goldsmith [2014] EWHC 3527 – claimant purchased property for development purposes – claimant’s solicitor failed to report planning restriction – property worth £100,000 less with planning restriction – after purchase claimant successfully applied to remove planning condition – whether claimant entitled to difference in value
In May 2007, Mr Bacciottini purchased three barns and five acres of land on Snape Hall estate in Suffolk for £575,000. One barn had been converted into a cottage some time before 2007, planning permission having been granted for this purpose in 1974. Mr Bacciottini hoped to develop the other two barns.
Solicitor failed to report important matter
Before contracts were exchanged, Mr Bacciottini’s solicitor failed to inform him that a Local Authority search revealed that the 1974 planning permission for the cottage was subject to a condition that it “be used only as ancillary accommodation solely in conjunction with the occupation of Snape Hall as a single private dwelling”. The solicitor wrongly advised that the 1974 planning consent was ‘fine’ and that there were no adverse conditions.
Planning condition removed after purchase
Mr Bacciottini did not find out about the restriction until over a year after purchase, when he was told about it by the local council after his architect had submitted proposed development plans. In 2009 Mr Bacciottini successfully applied for the restriction to be lifted, and in 2010 and 2011 he obtained planning permission to develop the barns and extend the cottage.
The claim
In a negligence claim against the conveyancing solicitors, both sides’ valuation experts agreed that, at the time of purchase, the property was worth at least £100,000 less than he had paid for it because it was subject to an encumbrance (the planning restriction).
Mr Bacciottini claimed that he had paid too much for the property and argued that he was entitled to recover the difference between what he had paid and what it was actually worth i.e. at least £100,000.
The issue
A claimant must take reasonable steps to minimise any loss suffered. The key issue the court had to determine was whether or not Mr Bacciottini’s successful application to lift the planning restriction, which was described as ‘quick’ and ‘cheap’, and which resulted in him obtaining an unencumbered property, should be characterised as mitigation of loss or, as he submitted, be regarded not as mitigation but as an independent action.
The decision
The view of the judge who heard the case, His Honour Judge Simon Barker QC, was of the view that the application was not independent of the solicitors’ negligence and did not arise independently as part and parcel of Mr Bacciottini planning applications. As a result, Mr Bacciottini was awarded nominal damages only of £250.
Comment
Whilst Mr Bacciottini did acquire a property that was less valuable initially (because of the planning restriction), he was able to remedy the position easily and cheaply. In that context, an award of £100,000 could be regarded as a windfall for him and the court’s decision can be seen as being a sensible one.
I’m often told by potential claimants that their claim is straightforward, and I have no doubt that most genuinely believe that to be the case. Mr Bacciottini’s claim, in which the solicitors admitted negligence and the experts agreed the property he bought was worth less than he paid, had some of the hallmarks of a good claim. However, it failed on what many would call a ‘technical’ point.
The reality is that professional negligence claims are often not as straightforward as clients assume, as Mr Bacciottini’s claim illustrates.
An unsuccessful claimant like Mr Bacciottini normally has to pay two sets of legal costs – his own and his opponent’s – which can be a substantial amount. Claimants can end up paying a hefty price for not choosing their professional negligence solicitor carefully. The value of expert legal advice and representation cannot be emphasised enough.
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