Claimants must act if they have an opportunity to mitigate their losses, ruled Mr Justice Newey in a dispute over access to a communal garden.
Retired New York trial lawyer, Jeffrey Herrmann and his wife bought a £6.8 million house in London’s prestigious Ovington Square in 2008, believing the property included right of entry to a garden square nearby. They were subsequently refused a key to the garden and sued their lawyers Withers LLP for negligently advising they had a statutory right of access.
The couple had initially issued proceedings against the committee responsible for granting access to the garden square and the Royal Borough of Kensington and Chelsea. In the course of that earlier action they were offered an alternative means of access to the gardens through a licence which they declined. On losing the case, they went on to claim against Withers for diminution in value of the property and the costs of the failed claim.
The judge, Mr Justice Newey, found in favour of Mr and Mrs Herrmann, but greatly reduced their claim of £700,000 plus costs to £65,000 plus the costs of obtaining a licence and other costs, on the grounds that they had failed to mitigate their losses by accepting the opportunity to secure a licence to access the garden.
“This is a reassuring case for insurers as it reinforces the responsibility of claimants to mitigate their loss in professional negligence cases,” said James Burgoyne, Director, Brunel Professional Risks.