- The defender to the claim owed a duty of care to the pursuer, and has failed in that duty of care.
- The pursuer has suffered a measureable loss.
- The breach of duty by the defender actually caused or materially contributed to the loss suffered.
Taking the above into account, it is a clear that a case will not be successful simply because there is a breach of professional duty. The recent English case of Taray Investments Ltd v Gateley Heritage LLP  EWHC 716 shows why proving a direct link between the negligence and any harm caused is a crucial task for any pursuer. Without evidencing that link, the case will not be successful, no matter how clear the breach of duty may have been.
In this particular case, the background is that Taray Investments Ltd and Bellview Homes Ltd entered into a joint agreement in 2012 to purchase a site in London, intended for housing. Gateley Heritage LLP were instructed by Taray Investments and Bellview Homes to act for them in relation to the acquisition of the site itself.
Gateley Heritage LLP prepared a Report on Title, in which they failed to identify that part of the site encroached upon a footway. As it happened, the issue with the site and the problems caused by the footway were only identified several months after the original report was prepared.
Gateley Heritage LLP, in their report, failed to advise that the other parties could have obtained a "Stopping-up Order" which would have extinguished the competing rights over the footway area on the land. The estimated timescale for applying for such an Order is around 12 months.
The position of the purchasers was that, had they been properly advised of the requirement to obtain a Stopping-up Order and the issue with the land itself in the report prepared by Gateley Heritage LLP, they would have had sufficient time and resource to obtain that Order and to deal with the issues on the site, to allow construction to proceed. In the view of the would-be purchasers, the transaction fell apart because there was no guarantee that the Order would be granted. Ultimately, the purchasers refused to provide the 10% deposit required to secure the site because, in their view, there was not sufficient time available to secure the relevant Order.
The High Court in England and Wales heard evidence from a number of individuals, including expert witnesses to speak to the matter of whether there was a breach of professional duty. It was determined that the purchasers would have found it difficult to acquire the site in any event due to funding constraints and other resource issues which were well highlighted and discussed as part of the case. The case was therefore unsuccessful on the bases that, while a breach of duty was identified in the failure of Gateley Heritage LLP to highlight the requirement to obtain a Stopping-up Order, the purchasers would not have proceeded with the purchase of the land and therefore there was no causative link between that breach of duty and the outcome or the loss.
The decision in this case demonstrates that even where a breach of duty is clear-cut or even accepted by the other party, proving causation remains a crucial aspect of any claim in order for it to be successful. That is not only true in cases involving property transactions, but for any claim for negligence against a professional, from architects to investment managers to nurses. All of these professionals have certain duties and responsibilities incumbent upon them, and if those duties are breached there may well be prospects of successful claim; but only where that breach has resulted in a measurable loss.
As an example of the importance of causation in the context of a medical negligence claim, it is never enough to prove that a GP failed to refer a patient timeously for cancer treatment. Even where a GP is established to have failed in their duty to make a referral to Oncology in accordance with the clinical guidelines, if it cannot be proven that early referral would have resulted in an improved prognosis or outcome, then the case itself will not be successful.
Even the most obvious incidents of negligence require a clear and demonstrable causal link with the losses suffered, otherwise the claim will not be successful. That is why in disputes of all types, it is especially important for a pursuer to be clear about the losses which have occurred as a result of any breach of duty, and to be able to evidence those with expert advice to the satisfaction of the Court, in order to achieve the outcome that they consider to be justified.