Proving that a conveyancer was negligent is half a claim. The other half is establishing what loss the law allows you to recover, and the rules are less intuitive than most people expect. This guide explains the principles; it does not say what any particular claim is worth, which depends on the evidence in each case. For the common failures themselves, see the overview of conveyancing negligence.
What you would have done with proper advice
Damages aim to put you in the position you would have been in had the conveyancer done the job properly. The first question is therefore what you would have done if properly advised.
In Hayes v James & Charles Dodd (1988), solicitors wrongly told buyers of business premises that there was a rear right of way. Staughton LJ in the Court of Appeal described two approaches:
- The no-transaction method, where proper advice would have stopped the purchase altogether. The comparison is with never having bought: broadly, the money spent, less anything later recovered, including from selling the property. The buyers in Hayes would not have proceeded, and that method was applied.
- The successful-transaction method, where you would still have bought, but on better terms — a lower price, or with the problem sorted out first. The comparison is with the transaction you were entitled to expect.
What you would have done must be proved on the balance of probabilities, and it is tested against the evidence from the time: how much you wanted the property, what you said to the conveyancer, and what else was available.
Diminution in value or cost of cure
Where the buyer would have bought anyway, the usual measure is the diminution in value: the difference between the price paid and what the property was actually worth with the problem, at the date of purchase. The rule was developed in surveyor cases such as Philips v Ward (1956) and Perry v Sidney Phillips & Son (1982), and has been applied to solicitors too. How diminution in value is worked out explains the role of the retrospective valuation.
It is not a fixed formula. In County Personnel (Employment Agency) Ltd v Alan R Pulver & Co (1987), Bingham LJ said that in claims against solicitors the diminution rule should not be applied mechanically where it is inappropriate. In some cases the measure may include the cost of making good the adviser's error — in a conveyancing case, perhaps the cost of obtaining a deed of grant for a missing right of access or drainage, a release from a covenant, or an insurance policy. He added that while damages are generally assessed at the date of breach, that rule too should not be applied mechanistically where another date better reflects the aim of compensating the claimant.
Consequential losses and wasted costs
On top of the main measure, a claimant may recover losses that flow from the negligence and were reasonably foreseeable: legal costs of dealing with a neighbour's claim, boundary surveyor's fees, the cost of an abortive sale, and wasted spending on plans for works that turned out not to be possible. In a no-transaction case, the outgoings on a property that would never have been bought can be part of the claim; in Hayes the buyers recovered rent, rates and interest, but not the profits they had hoped to make.
The scope-of-duty limit
Even a loss the negligence caused may fall outside what the conveyancer is answerable for. The principle comes from South Australia Asset Management Corp v York Montague Ltd [1996] UKHL 10 (often called SAAMCO), a valuer case in which the House of Lords held that a valuer who negligently overvalued a property was liable for the consequences of the valuation being wrong, not for every consequence of the lender's decision to lend, such as a later fall in the market.
In 2021 the Supreme Court restated it in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 and Khan v Meadows [2021] UKSC 21, decided the same day. In plain English: first identify the purpose of the professional's duty — what risk the advice was meant to guard against — then ask whether the loss claimed has a sufficient connection to that risk. The court moved away from treating the old labels of "information" and "advice" cases as the starting point.
Applied to a purchase: if a conveyancer failed to report a drainage easement running under the spot where you planned to extend, the loss caused by being unable to build there is within the risk the advice was meant to cover. A general fall in local house prices two years later is not, even if you would never have bought with proper advice.
Loss of a chance
Some outcomes depend on someone else. In Allied Maples Group Ltd v Simmons & Simmons (1995), the Court of Appeal held that a claimant must prove on the balance of probabilities what they themselves would have done, but where the benefit depended on how a third party would have responded, it is enough to show a real and substantial chance that the third party would have agreed. The court then values that chance. In conveyancing, the question might be whether a seller would have accepted a lower price, or a neighbour would have granted a right of way.
What reduces the figure
- Contributory negligence: under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, where damage results partly from the claimant's own fault, damages are reduced to the extent the court thinks just and equitable — for example, where a clear warning in the report on title was ignored, or a buyer saw a path across the garden and said nothing.
- Mitigation: once the problem is known, a claimant must act reasonably to limit the loss. The test is reasonableness, not hindsight; in Hayes the court did not criticise buyers for the time it took to sell in a difficult situation the solicitors had created.
- Credit for what you kept: in a no-transaction case, the value of the property, or what it sold for, is deducted.
Distress and inconvenience
Damages for distress are generally limited in contract claims. In Hayes the Court of Appeal disallowed an award for anguish and vexation because the object of the contract was commercial. Watts v Morrow (1991), a surveyor case, confined awards to modest sums for physical inconvenience and discomfort and the distress directly related to it. In Farley v Skinner [2001] UKHL 49 the House of Lords allowed non-pecuniary damages where a major or important object of the contract was to give pleasure, relaxation or peace of mind — there, a surveyor had been specifically asked to check aircraft noise. In conveyancing that exception is narrow, and most likely to matter where the buyer specifically asked about something going to the enjoyment of the home.
What a solicitor will want from you
- Purchase price, completion date, and how the purchase was funded.
- Evidence of what you would have done with proper advice, including other properties you were considering and anything you told the conveyancer.
- A retrospective valuation with and without the problem, or the willingness to obtain one.
- Quotes or costs for curing the problem, such as a deed of grant or insurance.
- Receipts for consequential losses and wasted costs.
- When you found out, and what you have done since to limit the loss.
This guide is general information about the law of England and Wales. It is not legal advice. How loss is measured in any case depends on its facts and on expert valuation evidence.
Frequently asked
Would I have bought anyway? Why does that matter?
Because it decides the method. If proper advice would have stopped you buying, the court compares your position with never having bought at all. If you would still have bought, perhaps at a lower price or with the problem resolved, the court usually looks at the difference in value at the date of purchase, or the cost of putting the problem right.
Do I recover everything I have lost since buying the property?
Not automatically. You recover loss the negligence caused and that falls within the scope of what the conveyancer was responsible for. A general fall in the property market, or a problem unrelated to the point the conveyancer missed, is usually outside it.
What if a better outcome depended on the seller or a neighbour agreeing?
What you would have done must be proved on the balance of probabilities. What someone else would have done is treated differently: if there was a real and substantial chance they would have agreed, the court puts a value on that chance.
Can I claim for the stress?
Only to a limited extent. The courts have refused distress damages where the purpose of the retainer was commercial, allowed modest sums for physical inconvenience and discomfort, and gone further only where peace of mind or enjoyment was a major or important object of what the professional was engaged to do.