You are here

Withers pays price for wrong advice on Knightsbridge garden

Right to use garden did not come with 6.8m house

1 June 2012

Add comment

A High Court judge has ordered Withers to pay £104,600 in damages for giving “erroneous” advice on whether the purchasers of a £6.8m house in Knightsbridge were entitled to use communal gardens in a square nearby.

Jeffrey Herrmann, a retired US trial lawyer, and his wife Mina, an investment banker at Paulson & Co, bought a house in what Mr Justice Newey referred to as the “neck” of Ovington Square.

“It lies on a short stretch of road (containing no more than five houses on each side) which connects a rectangular area containing a fenced garden to the north-west with Walton Street to the south-east,” Newey J said.

“While it is possible to see the fenced garden from a bay window at 37 Ovington Square, the property does not front onto the garden. Nor does it have a private garden of its own.

“It does, however, have the benefit of a small outside terrace at ground floor level. Its virtues also include, I gather, an excellent entertaining space, enhanced in particular by a room known as the ‘grand salon’.”

The court heard that sales particulars prepared by Knight Frank for 37 Ovington Square included reference to ‘communal gardens’.

Emma Copestake, the associate at Withers acting for the Herrmanns, took the view that the information on the gardens provided by the sellers’ solicitors, Turner Debenhams, was unsatisfactory.

Newey J said Copestake decided to research for herself what the position was. She decided that, under the Kensington Improvement Act 1851, 37 Ovington Square was part of the square, despite being on the “neck”, giving the Herrmanns the right to use the gardens.

Copestake sought a second opinion from her supervising partner, Henry Stuart, head of the real estate team at Withers, who agreed with her. She wrote to Herrmanns, shortly before exchange of contracts, and told them they had the right to “enter into and use” the garden.

Newey J said that, before completion, Mrs Herrmann found out from the seller that the seller had lost her key to the garden. Copestake was now told by the seller’s solicitor that use of the gardens was not an “absolute entitlement”.

Mrs Herrmann suggested that £100,000 should be retained if the key was withheld, but Copestake advised the Herrmanns they had no legal right to make a retention. Copestake agreed to write to the head of the garden committee following the sale. Following completion, she did this, but with no success.

The Herrmanns instructed fresh solicitors, Thring Townsend Lee & Pembertons.

They brought a case against the garden committee and the London borough of Kensington and Chelsea, demanding a licence giving access to the gardens, in the High Court.

Giving judgment in June 2010, Sir William Blackburne, sitting as a judge of the High Court, concluded that the 1851 Act did not apply to 37 Ovington Square and the Herrmanns were not entitled to access the gardens.

The Herrmanns responded by suing Withers for negligence and instructed Jones Day to act for them.

“In the present case, I do not think Miss Copestake is open to criticism for taking the view that 37 Ovington Square was within the scope of the 1851 Act,” Newey J said.

“Sir William Blackburne ultimately arrived at a different conclusion, but that does not mean that Miss Copestake’s opinion was not a possible one.”

However, Newey J said this did not entitle Withers to view the position as “clear-cut”.

He went on: “Recognising that Turner Debenhams had not been able to answer her questions satisfactorily, Miss Copestake researched the position for herself. The fact remains that Withers could take no comfort from their exchanges with Turner Debenhams.

“In all the circumstances, it seems to me that Withers ought reasonably to have concluded that there was at least serious doubt as to whether 37 Ovington Square fell within the 1851 Act.”

Newey J said: “All in all, I have concluded that it was negligent of Withers to advise in unequivocal terms that the Herrmanns would have ‘the right to enter into and use the garden at Ovington Square’.

“I am sure that Miss Copestake will not make any comparable error in the future; few people are now likely to be better placed to advise on the impact of the 1851 Act.

“I consider, however, that Withers ought reasonably to have warned the Herrmanns at least that, as matters stood, there was scope for argument as to whether they would be entitled to use the garden.”

Categorised in:

Risk & Compliance