The recent High Court decision in Mortgage Express v Countrywide Surveyors Limited emphasises the importance of surveyors explicitly notifying the client of any inaccuracies in their valuations as soon as they come to light. The judgment considers the issue of reliance, specifically the extent to which subsequent email correspondence without full disclosure of the inaccuracies contained in original valuations withdrew the lenders’ ability to rely on those valuations.

Background

During the period December 2004 to June 2005 an employee of Countrywide Surveyors Limited (CWS), Mr Driver, provided valuation reports to Mortgage Express Limited (MEX) for 64 new-build flats in a new marina development at Sovereign Harbour, Eastbourne. In reliance on these valuations MEX lent monies to borrowers. On 19 July 2005 CWS notified MEX that it considered Mr Driver’s valuations to be overstated and asked for an opportunity to review its advice before any further lending was done by MEX. MEX then requested revaluations of 21 properties, which were provided by CWS on 25 August 2005. These turned out to be on average only 50% of the valuations provided by Mr Driver.

MEX claimed that as a result of relying on 41 of the 64 original valuations it lost more than £3.3 million. The court had two issues to decide on:

  1. Whether Mr Driver committed deceit; and 
  2. Whether CWS could still be held responsible for MEX’s reliance on its valuations after it was notified of possible overstatements on 19 July 2005.

Classification of loans

For the purposes of the trial, the loans made by MEX were divided into four categories based on when they were completed:

Category A: loans completed before CWS notified MEX of its concerns;

Category B: loans completed in the period between the notification and the revised valuations provided by CWS;

Category C: loans concerning properties for which revised valuations were provided and were completed after 25 August 2005; and

Category D: loans completed after August 2005, but for which revised valuations were not provided.

The claim was tried by way of sample with 10 properties and each of the categories having at least two properties.

Deceit

The Court held that Mr Driver had been deceitful in his valuations. It was no defence to deceit that MEX might have, with reasonable diligence, discovered that the valuations were untrue. Accordingly, the Court then considered the issue of reliance.

Reliance

The Court referred to the concept of continuing representation, where it was reinforced that if there is an appreciable interval between the making of the representation and the other party’s reliance on it, the representation is deemed to be repeated at every successive moment in the interval until it is withdrawn or modified.

The crucial question was therefore: whether the email correspondence in July and August 2005 was sufficiently clear so as to withdraw and/or modify the valuations of Mr Driver, so that they did not count as a representation as at the date of completion?

The burden of establishing a withdrawal or modification lies with the person making the correction. This is an objective test, but does take into account the factual matrix of the transaction. Applying the test to the facts the email from CWS dated 25 August 2005 was found not to expressly withdraw the valuations, not say they should not be relied on, and not specify the extent of the problem. Rather it merely requested an opportunity to review the advice. Though refusing to rule on the point as it was a matter of contract law, the Court indicated that by providing such limited information there was a likely breach of contractual duty to make full disclosure. The Court also commented on the time it took to provide revised valuations. In the Court’s opinion given the context of the matter 3 or 4 days (as opposed to the 17 days it took) would have been reasonable.  The absence of further communication within that time period meant it was unreasonable to expect MEX to put a complete halt to its lending.

The Court considered each of the categories in turn:

Category A claims: succeeded given that Mr Driver was found to have made deceitful representations;

Category B claims: also succeeded as the supposed correction email was only found to be sufficient to stop MEX relying on the valuations for a reasonable period of time, which CWS failed to act within;

Category C claims: did not succeed as these were completed after revised valuations were provided; and

Category D claims: succeeded; the Court considered whether the provision of revised valuations also meant that MEX could no longer rely on the original valuations. The Court was satisfied that it was known that most, if not all, valuations would be used in MEX’s lending decision process. Whilst it was acknowledged that an astute lender ought to have, upon receipt of the revised valuations, realised that all of the original valuations were suspect all that mattered was that, on the basis of the notice given, MEX were entitled to rely on the original valuations in making its decision.

Comment

This decision raises important learning points for surveyors in terms of reliance on their valuations by the client. If there is to be a correction of a previous valuation, whether by way of withdrawal or modification, this needs to be made expressly and in no uncertain terms. The correction should make full disclosure of the extent of inaccuracies. The valuations to which the correction applies should be specified clearly and individually, even if this is obvious. If modifications are being provided, this needs to be done within a reasonable period of time.

Further reading

Mortgage Express v Countrywide Surveyors Limited [2016] EWHC 224 (Ch)