The need to caveat advice
16 July, 2012
The professional negligence case of Herrmann v Withers LLP  EWHC 1492 (Ch) was an interesting example of the importance of caveating advice to clients when a particular point is not absolutely clear.
Mr and Mrs Herrmann retained Withers in the purchase of a £6.8m property in Knightsbridge. The property was marketed as having “access to a garden”. The seller indicated that access to the garden was a courtesy given by the garden’s committee and that a fee was paid to access the garden. Further clarification was sought, and Withers advised Mr and Mrs Hermann that they would have a right to use the garden under the rather obscure Kensington Improvement Act 1851.
They purchased the property but were barred from using the garden by the garden committee and later brought a claim in negligence against Withers for the advice given during the conveyancing.
The court found that the Defendant was not negligent for advising that the property was within the scope of the 1851 Act per se, but it was negligent in not warning the claimants that, because of the way the 1851 Act was drafted (it was by no means clear-cut), there was scope for argument about whether they would be entitled to use the garden.
In other words, Withers were at fault for the failure to caveat the advice or couch it in terms that there was a risk that the 1851 Act may be interpreted differently.
Solicitors and other professionals are used to caveating advice (a cursory glance at a typical house survey is a good illustration of this), but clients often seek a clear-cut “yes” or “no”. Sometimes however, as this case illustrates, a partficular issue is not straight forward and professionals will need to indicate this in their advice, or risk a potential claim if they get it wrong.