Mr Hewes wanted a mortgage on 1 Bakers Yard. He approached a mortgage broker and filled out a loan application. He stated that he had lived at 1 Bakers Yard for one year and two months when, in fact, the property was little more than a shell with no roof or windows. In the box for details of the arrangements for a valuer to gain access to the property, he stated ’Via Mr Hewes’ and gave a mobile phone number. His application was directed to Victory Home Loans and Colleys were instructed to inspect and value the property. An employee of Colleys telephoned Mr Hewes to make arrangements for access. Mr Hewes told the valuer that 1 Bakers Yard could be identified by a feature post box on the front wall which other properties in the road did not have. On entering Bakers Yard the valuer disregarded plot number 1, which did not correspond with the description given by Mr Hewes, and drove to the far end of the road, where he saw the house with a feature post box. Mr Hewes showed the valuer around this house and led him to understand that he was valuing the right property. The property was valued at £230,000. Victory decided not to make the loan and the valuation was ‘re-typed’ by Colleys and sent to Platform Funding, who did.
he court noted that, although there is a ‘presumption that those who provide professional services normally do no more than undertake to exercise the degree of care and skill to be expected of a competent professional in the relevant field’, there is nothing to prevent them from assuming an unqualified obligation in relation to particular aspects of their work. Whether such an unqualified obligation has been accepted will depend on the terms of the contract. The very nature of the obligation on which the client relies may itself make it more or less likely that it was intended to be qualified or unqualified. Although the court should be cautious about holding that a professional person has undertaken an unqualified obligation in the absence of clear words to that effect, there is no reason not to give effect to the language of the contract where it is clear:
‘…it is not at all clear why the surveyor’s obligation to inspect the property to which his instructions relate should be qualified in the same way. In many cases the actual performance of the inspection in terms of identifying boundaries, features etc. may call for the exercise of professional skill and judgment, but in nearly all cases, particularly those in which residential property is involved, the identification of the property to be inspected does not give rise to any significant difficulty. The surveyor is likely to be in a far better position than the lender to identify the property and if the position on the ground is uncertain there are a number of steps open to him to clarify it, the most obvious of which is to ask his client for more detailed instructions…
…A certificate that the property has been inspected need not, and on the face of it does not, involve a qualification of any kind, whereas a certificate that the valuation given is a fair indication of the current open market valuation clearly does, if only because of the use of the expression “fair indication”'
Rix LJ agreed. He went on to point out that ‘This litigation has shown, on an issue which has not previously been determined in our jurisprudence, that the underlying retainer is something that can be argued about, and has led to a difference of opinion in this court. In such circumstances, it is a matter on which the parties may well be thought of, at any rate conceptually so, as wanting express definition. I do not think that there can be much plainer expression than the words “the property…has been inspected by me”. Even against a background where otherwise the obligation to inspect would only have been one of the taking of reasonable care to inspect, I do not accept that those words can properly be interpreted as meaning: “I have taken reasonable care to inspect the property”.'
Sir Anthony Clarke, dissenting, noted that ‘it might not be at all easy to decide which was the right house or, for example, if he had been asked to value a flat, which was the right flat in a particular house. He would be expected to take reasonable care to identify the house. Thus he would be expected to make reasonable enquiries, as for example here by asking Mr Hewes, whom he might well reasonably expect to be honest. However, absent an express term of the contract that he was undertaking an absolute obligation in respect of the whole or part of his instructions, or an implied term to that effect, I would hold that there was no breach of contract unless he failed to exercise reasonable skill and care.’