Platform Funding Ltd v Bank of Scotland plc [2008] EWCA Civ 930

Breach of contract and the contractual obligations of professional persons.

Facts

A surveyor was instructed by a mortgage lender to inspect and value property on 1 Bakers Yard offered by a borrower as the security for a loan. The surveyor, accordingly, provided a signed certificate that 1 Bakers Yard was inspected and valuated. In fact, the surveyor had instead inspected 5 Bakers Yard, of different value. When the borrower was in default, the lender sold the property and discovered the mistake. The lender sued the surveyor for breach of his obligations under the retainer agreement.

Issues

The question arose as to (1) the professional obligations of the surveyor under the retainer agreement; and/or (2) the construction of the signed certificate.

Decision/Outcome

(1) The Court held that, as a general rule, the basic obligations of a professional person under a retainer is obligation to exercise reasonable care and skill. However, the language of a contract clearly may express further unqualified obligations in relation to a particular matter, such as a warranty of responsibility or guarantee of a result. Thus, the Court is not limited to the prima facie obligation of ‘reasonable care and skill’ and must give effect to the obligations adopted by a professional person under the language of a contract. On the facts, the Court held that the retainer prescribed specific instructions that the surveyor was obligated to follow. Even though the surveyor exercised reasonable care and skill in inspecting and valuating the property, the Court held that the surveyor is subject to a further obligation to inspect and value the correct property under the terms of the retainer; (2) The Court held that the certificate is construed as a contractual warranty as it is an unqualified guarantee that the property had been inspected and valuated on the market, using the reasonable skill and care of the surveyor. On both grounds, the surveyor is held to be in breach.

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