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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Joshua if i do sue my former solicitors

Customer Question

hi joshua
if i do sue my former solicitors for negligence and succeed, what then happens to the overage clause, if for example it follows its course and say the plot is developed for example in 8 years time? will the solicitors insurers continue to monitor the situation? cheers
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Thanks for your understanding. I would imagine the court would order that the benefit of the covenant would be assigned to the solicitors insurer to the amount of the claim value ordered so that in the event the covenant did "pay out" in the future the insurers would get up to the judgement debt back with any balance to you. THis prevents a situation arising where you benefit potentially twice.
Customer: replied 2 years ago.

hi joshua

no problem.

if that is the case i assume from an early stage the buyer would be alert to the situation?

Expert:  Joshua replied 2 years ago.
I think there would be no way of failing to involve the buyer at least by notice at a relative early stage in proceedings
Customer: replied 2 years ago.

in that case in your opinion what would the owner do, or be advised to do?

Expert:  Joshua replied 2 years ago.
If I were the owner I would be tempted to engineer a situation where he was no longer liable for the overage. Depending on his circumstnaces he may decide to sell with an overage in his favour, or transfer to a spouse or child so they can develop the land or just wait out the overage though it has some way to run. If there is an opportunity for him to avoid paying out hundres of thousands, human nature suggests he will attempt to explot it if he can. Of course if planning is not attainable then he may not plan to do anything.
Customer: replied 2 years ago.

that's what i was thinking, i suppose that falls in my favour when i bring my claim against the solicitors for not protecting it in the 1st place. now looking at the whole picture it would seem wise to start the protocol against my former solicitors asap. with regards ***** ***** planning situation the whole site has been allocated for housing and is just waiting to be rubber stamped as it forms part of the local councils housing supply. that is one of the reasons why i sold it with the overage and my solicitors new it was the next big site to be granted pp.

Expert:  Joshua replied 2 years ago.
Delighted to continue with some further follow ups. I should be very grateful if you would kindly click a rating for service to date.
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Law Specialists are ready to help you
Expert:  Joshua replied 2 years ago.
Many thanks. It is an interesting situation (from a practioners point of view). I would imagine you would choose a different word but in any event if planning is on the verge of being granted, providing you do not run too close to limitation periods previously discussed you may decide to hold fire for a short while just to see what the owner does because it is just possible he might proceed in such a way that the overage bites whilst he remains owner or ther he acts in such a way as to avoid liability as discussed above which would crystallise your losses and so remove the difficult process of quantifying your loss we have previously discussed. However you would wish to keep a careful eye on limitation periods and also may decide to proceed as you suggest anyway. You could always get the process rolling with a complaint and if you decide to use it a referal to the Legal Ombudsman (as you are not bound by their decision) though I suspect this might be a situation where the Ombudsmand is not suitable for the Ombudsman as they can only award up to £50K in compensation and from memory your loss is potentially much higher than that.
Customer: replied 2 years ago.

hi joshua

thanks for that.

i will now digest all of your advice, but i do think i will start the ball rolling with the solicitors.

couple of last questions - i promise!!!

1. you have stated that the negligence side of things is straightforward, are there any possible defences that could be raised?

2. in such a claim would this go all the way to court or would it, in your experience settle? the way i would look at it is if liability is admitted or it is obvious, then why would the insurers want huge additional legal costs on top?

Expert:  Joshua replied 2 years ago.
1. The solicitor has is put to a high standard of duty in this respect. It would need to show it did all it REASONABLY could in order to secure the overage. In order to show it did this generally it has been held that it must have given you appropriate advice as to what should be done to secure the overage and done what it reasonably could to achieve that advice and if it is unable to do so - e.g. becuase the buyer simply will not agree) ensure it explains the position fully to its client and ensure the client fully understand the risks and is willing to proceed on that basis. The solicitor has the burden of proof to show the above.2. It would likely go to court if any past cases are anything to go by because of the amount involved and the difficulty in negotiating the loss due but insurers of course will look to settle if they think it will result in a lower payout. It may depend what you were willing to accept acting on your counsels advice.
Customer: replied 2 years ago.

hi at the time it was even agreed between the solicitors that a restriction would be used to protect the overage i.e. questions and answers on the preliminary enquiries.

i will now look at putting the papers together for counsels advice.

you mentioned above maybe the buyer could hold on for 10 years before he applies for pp, would that be a defence for the solicitors?

Expert:  Joshua replied 2 years ago.
Very happy to continue but I regret we may need to start another new thread. You particular questions at the lower end of the scale value wise and only allow me to provide limited responses. I spent an abnormal amount of time on your first question beause it was of genuine interest to me but it was not economic for me to do so and unfortunately I have to justify my time normally economically. Would you kindly consider raising a fresh question or increasing the calue of your questions which will allows me more time.

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