Anna Christie v Mary Ward Legal Centre & Anor [2025] EWHC 330 (KB)
HHJ Tindal (sitting as a Judge of the High Court) dismissed a claim by a leaseholder based upon allegedly negligent advice given to her in connection with forfeiture proceedings in 2012–13. Her claim was advanced against the law clinic and barrister who represented her in those forfeiture proceedings.
The decision addresses a number of interesting points within the spheres of professional negligence and property, including a barrister's duty to plead weak arguments, reliance on counsel by solicitors, causation of damage, limitation, and the valuation of a lost asset.
Peter Petts led David Lipson and Mark Erridge, acting for the Mary Ward Legal Centre, instructed by Eversheds LLP, all acting pro bono.
Background
Ms Christie held the long lease of a flat in Southwark, having exercised her right to buy in 1999. Her lease required her to pay service charges and ground rent to her landlord, Southwark LBC. By 2009, she had failed to pay a substantial amount of service charges. In April 2011 the LVT ordered her to pay £7,815.09 in service charge arrears, and in August 2011 judgment was entered against her by the County Court.
Southwark elected to forfeit the lease, serving a section 146 notice in June 2012, and bringing forfeiture proceedings in October 2012. Ms Christie instructed the Mary Ward Legal Centre to represent her in these proceedings, who sought advice and representation from Mr Andrew Dymond, a specialist housing barrister in this field. He advised that Ms Christie should sell the flat, as there was not (on the documents he had seen) any prospect of defending the claim for forfeiture, and Ms Christie could not otherwise afford to pay the service charge arrears.
At this time, the possibility of a defence to the possession claim based upon waiver of forfeiture, on the basis that Southwark had accepted payments towards the service charge arrears, was rejected by Mr Dymond. He did however note in his Advice that an example of a successful waiver defence would be if Southwark had, inadvertently, continued to demand ground rent from Ms Christie.
Ms Christie ultimately sold her flat in order to avoid forfeiture of the lease, as advised, however not before opting to dis-instruct Mary Ward and Mr Dymond and representing herself at a final possession hearing in June 2013, at which a possession order was made. At that hearing she raised a number of defences which, subsequently, she would allege ought to have been advanced earlier by her erstwhile legal representatives.
Ms Christie issued the present claim in July 2019, within 6 years of the sale of the Flat, but more than 6 years after the possession order was made. Although she received the (agreed) full market value for her flat at the point of sale, she claimed to have lost out on the increase in the value of the flat as assessed at the date of trial.
Ms Christie alleged negligence on the part of Mr Dymond and the Mary Ward Law Clinic for failure to provide advice as to a number of possible defences and methods of leveraging relief from forfeiture. She claimed that if she had been properly advised, she could have avoided the need to sell her flat.
Decision
HHJ Tindal dismissed Ms Christie's claim, finding that there had been no negligence on the part of the Mary Ward Legal Centre or Mr Dymond. He went on to determine that, if wrong on liability, Ms Christie would (broadly) not have succeeded in establishing causation, that her claim was in any event time-barred, and that she had suffered no recoverable loss as she had received the market value of her flat at the point of sale.
A key factual question emerged on liability at trial, namely whether the defendants had overlooked a 'slam dunk' defence available to Ms Christie in the forfeiture proceedings. Southwark had (apparently inadvertently) continued to send demands for ground rent between 2011–13, which would have waived their right to forfeit the lease. Ms Christie alleged that the defendants failed to advise of this defence, or at least to carry out the appropriate investigations. HHJ Tindal found as a fact that the defendants were not provided with and did not know about the 2011–13 rent demands, and rejected the allegation that they negligently failed to investigate the point; a barrister cannot be expected to divine every claim a client might have, nor was it negligent for a solicitor to give advice that happens to turn out badly.
Ms Christie further argued that the defendants had negligently failed to pursue a number of other alleged defences to the forfeiture claim, some of which had no more than 'nuisance value', namely ways of 'leveraging' Southwark into a loan or charge, even if these were unlikely to succeed. HHJ Tindal determined that these alleged defences were in fact bound to fail. It could not therefore be said that no reasonably competent barrister practising in the field would have failed to plead or raise these points, and hence it was in no way negligent of Mr Dymond not to recommend them. Moreover, the Mary Ward Legal Centre was entitled to rely upon the (correct) advice given by Mr Dymond, and had fully discharged their duties of care to Ms Christie.
HHJ Tindal went on to determine that Ms Christie's case in any event failed on causation. The alleged defences she would have run were bound to fail (or had only a 'negligible prospect of success'), and so any negligence on the part of the defendants did not cause any 'damage,' and she lost nothing of value. In reaching this conclusion, HHJ Tindal considered that he was entitled to take into account the actual result of those arguments at trial, given that Ms Christie had (unsuccessfully) pursued them herself, after dis-instructing the defendants.
On limitation, HHJ Tindal was willing to accept that, on Ms Christie's case, relevant loss was suffered outside the six-year limitation period, and so her claim was in any event time-barred. He held that 'damage' which started the running of time in the tort of negligence could be suffered by the mere loss of a defence. Such damage occurred when her defence was rejected and a possession order made against her.
As to the losses claimed by Ms Christie, given that the flat had been sold for market value, she claimed for the rise in value of the flat since sale, up to a date close to trial. However, as held by HHJ Tindal, this was the wrong measure of loss. Any damages were to be assessed at the date of breach, namely the point of sale, and any later movements in the property's value in any event fell outside the scope of the defendants' duties.
Comment
HHJ Tindal's decision, while fact-specific, acts as a useful application of the legal principles relevant to waiver of forfeiture, the scopes of duties and standards of care applicable to legal professionals (including that such duties do not generally extend to running 'nuisance value' cases), causation in professional negligence cases, what counts as 'damage' for the purpose of limitation in tort actions, and the correct measure of loss where a property is lost due to alleged negligence.
The decision amounts to a total repudiation of Ms Christie's claim, which, as noted by HHJ Tindal, had been "dragging on" for over five years, with the Mary Ward Legal Centre and Mr Dymond being wholly exonerated from any wrongdoing.
HHJ Tindal further commented that the Mary Ward Legal Centre reflected the "finest of all legal traditions", as did the legal team representing them pro bono.
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