Bacciottini v Gotelee & Goldsmith [2016] EWCA Civ 170 is a reminder of two of the core principles of the law of delict. First, a claimant has a duty to mitigate their losses. Secondly, they should be put back in the position they would have been in, but for the negligence. No more, no less.
This appeal raised the issue of the level of damages arising out of admitted negligence on the part of the respondent solicitors, Gotelee & Goldsmith. In May 2007 Bacciottini acquired a residential property. Their solicitors negligently failed to advise them that there was a planning restriction attached to the property restricting its residential use.
Following the successful purchase Bacciottini secured the removal of the planning restriction. This application to the local authority cost them £250. They had sued for £100,000, being the difference between the price they paid and the value of the property with the planning restriction.
At first instance, HH Judge Simon Barker QC awarded £250 – the cost of their application. He stated that to do otherwise would be to overcompensate. This was especially so given their duty to mitigate their losses. An application to have the restriction lifted was their only realistic option. This decision was not independent of Gotelee & Goldsmith's negligence. Any overpayment for the property on the date of purchase was eradicated by mitigation.
On appeal Bacciottini submitted that damages should be assessed as at the date of purchase in May 2007. Gotelee & Goldsmith maintained that to award more than £250 would be to overcompensate their client. They submitted that despite the negligence, this was ultimately a case of "all's well that ends well".
The Court of Appeal held that the decision of the trial judge was correct. Applying the principle found in Livingstone v Rawyards Coal Co. (1880) 5 App. Cas. 25, the measure of damages is ordinarily:
"...that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation."
In this case, this figure was the £250 cost of applying to the local authority for the removal of the planning restriction. The judgment also comments wryly that this case was probably more about the costs awarded than the level of damages. At first instance Bacciottini were ordered to pay the majority of the costs.
There is clear applicability here to negligence cases against surveyors. Not only is it a welcome reminder that a party can only be compensated for the loss suffered due to the negligence, but also that they must seek to mitigate their loss. Where, as here, the mitigation substantially decreases the loss, a claimant should not recover anything extra by means of litigation.
All's Well That Ends Well...For £250
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