L lends £1m to B on the security of Whiteacre, which has been professionally valued by V (engaged by L) at £1.2m. B defaults, and L recovers a net £0.6m from the proceeds of sale of Whiteacre. There is a shortfall (including unpaid interest) of £0.5m, which L does not attempt to recover from B. V does not dispute that his valuation was badly over the top, and settles with L on paying £0.45m.
The thought occurs to V and his liability insurers that justice has hardly been done. V seeks to recover the £0.45m from B by way of contribution claim under the Civil Liability (Contribution) Act 1978. B disputes the claim on the ground that he was not, in the terms of section 1(1), a “person liable in respect of the same damage”.
On very similar facts, the borrower’s defence was upheld in Howkins & Harrison (a firm) v Tyler [2000] EGCS 91. What the lender had suffered at the hands of the borrower could not be described as the same damage as that for which the valuer was liable.
The decision would not stand in the way of a valuer who had taken an express assignment of the mortgage debt.
The difficulty of applying section 1(1) to a given set of facts is further demonstrated by the non-valuation case of Hurstwood Developments v Motor & General & Andersley & Co Insurance Services [2001] PLSCS 252, where it was held, distinguishing Howkins, that an insurance broker, who had negligently failed to provide cover against a particular mishap, had a good Part 20 claim against the party who had negligently failed to avert the mishap.
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L lends £1m to B on the security of Whiteacre, which has been professionally valued by V (engaged by L) at £1.2m. B defaults, and L recovers a net £0.6m from the proceeds of sale of Whiteacre. There is a shortfall (including unpaid interest) of £0.5m, which L does not attempt to recover from B. V does not dispute that his valuation was badly over the top, and settles with L on paying £0.45m.
The thought occurs to V and his liability insurers that justice has hardly been done. V seeks to recover the £0.45m from B by way of contribution claim under the Civil Liability (Contribution) Act 1978. B disputes the claim on the ground that he was not, in the terms of section 1(1), a “person liable in respect of the same damage”.
On very similar facts, the borrower’s defence was upheld in Howkins & Harrison (a firm) v Tyler [2000] EGCS 91. What the lender had suffered at the hands of the borrower could not be described as the same damage as that for which the valuer was liable.
The decision would not stand in the way of a valuer who had taken an express assignment of the mortgage debt.
The difficulty of applying section 1(1) to a given set of facts is further demonstrated by the non-valuation case of Hurstwood Developments v Motor & General & Andersley & Co Insurance Services [2001] PLSCS 252, where it was held, distinguishing Howkins, that an insurance broker, who had negligently failed to provide cover against a particular mishap, had a good Part 20 claim against the party who had negligently failed to avert the mishap.
