UK: BLG Construction And Property Professionals´ Briefing - When Things Are Not As They Seem...

Last Updated: 12 November 2008
Article by Clive Brett

Surveyors and other property professionals will already be very wary of the dangers which unscrupulous or dishonest property owners can pose. Astute surveyors will often be suspicious of recent decoration to a property if it looks as though the reason is to hide defects which they might otherwise spot.

In Platform Funding Limited v Bank of Scotland plc (2008), an innocent valuer was deceived into valuing a wrong property on behalf of his mortgagee client. Despite not having acted negligently, the valuer was held liable. Many are concerned that, in the context of increasing mortgage fraud, this case may mark an unwelcome departure from the approach which the courts have taken in previous years.

Surveyors are usually alert to spot camouflaged defects. When they miss them and are later sued, the issue which the court has to address is whether there were other signs of the defect to put them on notice or sufficient evidence of the deception such that they should have looked further. When there are neither, the surveyor should escape liability.

A good illustration of the approach which the courts take can be found in the well-established decision of Whalley v Roberts and Roberts (1990). In that case, a surveyor failed to spot that a bungalow had been built four inches out of level in circumstances where the builder had taken active steps to hide the truth. There had been no cracking to the walls and no other apparent anomalies in appearance to put the surveyor on notice. The case against the surveyor was dismissed. Surveyors have not always been so lucky though. In Morgan v Perry (1973), the vendor's attempts to conceal the defects were identified by the judge as a "cover up job" which the surveyor should have seen.

So far so good. It would seem to most people that it is only fair that when a surveyor or, indeed, any other professional is himself the victim of a deception he should only be held liable if there were steps which he could and should have taken to prevent the fraud. The principles at large here were set out most clearly in the 1999 decision Midland Bank v Cox McQueen (1999) (a solicitor's decision) but the principles are of general application. In Cox McQueen, the solicitor gave an undertaking to explain a mortgage to the borrower's wife. Through no fault of his own, he was deceived by the borrower into giving an explanation to an impostor and was later sued when it turned out that the wife had no knowledge of the mortgage advance. Lord Woolf, the Master of the Rolls, said in Cox McQueen that it was not part of the solicitor's role to answer for the fraud of the husband, found that he should be judged against the standard of reasonable skill and care, and was not at fault.

The question which many property professionals are now asking, though, is whether the recent decision in Platform Funding does now change the landscape. In Platform Funding, the Court of Appeal gave detailed consideration to the principles set out in Cox McQueen but reached very different conclusions on the valuer's liability.

In Platform Funding, a valuer employed by the Bank of Scotland valued a property which he was fraudulently led to believe by the borrower was the intended security for a mortgage advance. He was induced to value one plot with an almost completed property on it, whereas the real subject property was still in the course of construction. Neither site was labelled and it was common ground that there was nothing which the surveyor could have done to detect the fraud.

A majority of the Court of Appeal found for Platform Funding. As we have seen, the professional will not normally undertake to do more than act with reasonable skill, but the Court of Appeal agreed in this case that there was still a minimum threshold which a professional must pass in order to perform his retainer at all. Here, just like the photographer who takes a picture of the wrong wedding, by valuing the wrong property the valuer had simply not performed the retainer at all. The breach was so fundamental that liability would still attach even though the valuer could have prevented the fraud.

The Court of Appeal was not unanimous. The Master of the Rolls did say that to hold the valuer liable did mark a departure from the principles which the Court had laid down in Cox McQueen. It is not clear as yet whether Platform Funding will mark the start of any new trend, but it is likely to give encouragement to claimants to test the boundaries if there is any chance of establishing liability without showing fault.

How then does a surveyor acting with all reasonable skill and care protect himself against a finding along the lines of Platform Funding? In Platform Funding, the valuer had 'certified' that he had inspected the property when he had in fact failed to do so. By employing such language, the valuer increased his exposure to a finding that he was liable to his lender client, irrespective of the fact that the valuer was deceived by the borrower. In this way, it is apparent from Platform Funding that identifying the relevant threshold will turn on the language of the contractual documentation and that where words such as 'certified' are used this will increase the burden. As is so often the case, careful attention to detail before the retainer is performed may well reap dividends in bringing any claim which is subsequently made on the right side of the line.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.