Remedies, Disputes and Professional Liability
Remedies in conveyancing disputes
Candidates must know the remedies available for breach of contract, misrepresentation and professional negligence: damages, specific performance, rescission, rectification and indemnity. Specific performance is discretionary and may be refused where damages are adequate. Rectification of the register is available to correct mistakes, but the court balances the registered proprietor's position and the interests of justice.
Professional liability
A solicitor's liability arises from breach of duty, breach of retainer or negligence. Contributory negligence may reduce damages. The standard is that of the reasonably competent practitioner in the relevant field. Candidates should understand the role of professional indemnity insurance, the limitation period (generally six years for contract and tort, subject to the Latent Damage Act), and the importance of file notes as evidence.
Traps
Questions test the difference between rescission and rectification, and between damages for misrepresentation and for breach of contract. Watch the effect of an exclusion clause and the rule that a solicitor cannot exclude liability for fraud. Also note the indemnity principle and the costs consequences of a failed claim.
Rule of thumb
Identify the cause of action, the loss, the limitation position and the available remedy before advising on a claim.
Worked example
A solicitor fails to register a charge, and the lender loses priority. The lender may sue in negligence for the loss of security, but the damages may be reduced if the lender contributed to the loss or if the loss would have occurred anyway.