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Jonathan specialises in professional negligence, commercial litigation and fraud. He has particular expertise in claimant negligence claims against solicitors, surveyors and tax professionals.
He has also conducted litigation in various jurisdictions around the world including the USA, Eastern Europe, Middle East and Hong Kong.
“This judgment will provide greater protection to buyers, but will shake up the conveyancing industry with much greater risk of liability. Properties at risk of fraud can be worth millions of pounds. Professional negligence insurance premiums will likely rise in response.
“The Court has thusly chosen to allocate the costly risk of identity fraud on the professional advisers in a property transaction. Whilst it is true in the cases above that the advisors are in a better position to afford that loss, that is not necessarily always the case in conveyancing deals. We will need to see how this judgment will be followed in subsequent litigation where the legal advisers might be placed in significant financial hardship if found liable for the losses in property fraud.
“For now, property buyers can rejoice, and professional advisers should start penning new policies and put in place rigorous systems to prevent fraud in property transactions.”
“The obvious benefit of this product to a claimant is that they will have absolute certainty as to what it will cost to bring legal proceedings, and seek recovery of losses suffered. No extra costs above and beyond that which has been proposed will be charged.
Corporate financial officers will be able to budget for the litigation appropriately - there will be no unwelcome surprises which would require an explanation to the board of directors, and no unexpected costs to report to shareholders. Claimant clients will be given a huge degree of certainty, in an often uncertain environment.”
“ The obvious benefit of this product to a claimant is that he/she will have absolute certainty as to what it will cost to bring legal proceedings, and seek recovery of losses suffered. No extra costs above and beyond that which has been proposed will be charged.”
With recent figures demonstrating that the number of negligence claims against professional legal advisers appears to have trebled in the past year, the notion that the tide of professional negligence claims resulting from the height of the property market bubble in 2006/2007 may be coming to an end may be misplaced.
"There is of course a limited period of time in which claims can be made for breach of contract or breach of duty, and the question of limitation is an interesting one for the lender market to consider.
"Whilst many of the delinquent loans may be over 6 years old, there will be no doubt be some loans which are performing and in which the charge has not been registered properly or at all.
"The point being, that the negligence will not be known at the point when limitation, in the primary sense of the law, expires; such negligence not becoming apparent until such point as attempts are made to sell or re-mortgage the property.
"No doubt, insurers are going to argue that it is potentially too late for lenders to recover damages for the failure to register title.
"There will be other cases in which the value of the property is substantially less than the outstanding loan. This will be due on some occasions to a negligent valuation or a negligent solicitor failing to advise on a title issue or a sub sale. Again Defendant insurers are likely going to argue that any claim is time barred.
"If the Lender relies on the Latent Damages Act with its long stop provision of 15 years from the date of the advance, insurers are going to argue that the 3 year period for date of knowledge of a claim starts from when a loan first has a potential problem and not from the date of repossession.
"With the FCA and the FSA having had a policy of asking Lenders not to enforce a loan in default this policy in itself may have created a time bar for may claims of negligence.
"These claims are going to come out of the “woodwork” once interest rates increase, although this may seem an unlikely prospect in the current market, and in particular in those loans prior to 2009 which may have had a high loan to value ratio.
"The key for lenders is to firstly carry out some random checks on certain patterns of registration and in particular some known problem law firms to check that their mortgages are in fact registered appropriately before it is too late for a claim to be made.
"In addition the moment a loan goes into default a basic valuation check should be made either through an automated value model or alternatively even in main web products to ascertain if there is sufficient security and, if not, consideration must be given at that stage, and not at the date of repossession, to a standstill agreement on limitation against the Defendant professional or even the issuing of a protective Claim Form.
"In respect of a solicitor a request for a full copy of his file, including the client ledger, should be made as soon as there are any suspicions that call into question whether the services provided were accurate, appropriate and properly carried out.
"If these directions are not followed at an early stage of knowledge then it may very well be that any claim a Lender has for Damages against professionals on old loans will be lost as a result of being time barred."
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