High Court provides marginal gains for valuers

The High Court’s decision in Rowland Philip Bratt v Nigel Lawson Jones [2024] EWHC 631 (Ch), the second welcome decision for property valuers in recent months (following the case of Hope Capital v Alexander Reece Thomson [2023] EWHC 2389 (KB)), clarifies the function of the reasonable ‘bracket’ or ‘margin of error’ in determining liability in valuation claims.

Background

Somewhat unusually for valuation claims, the complaint in this instance was that the defendant had in fact undervalued the asset, on this occasion by almost some £4 million. The case involved the valuation of development land with residential planning consent in Banbury, Oxfordshire. The claimant landowner granted an option to a prospective purchaser to acquire the land at 90% of its market value, such value to be determined in due course by the defendant valuer, Mr Jones. The defendant in due course valued the land at £4.075 million and the buyer exercised their option, purchasing it for just over £3.5 million. However, the claimant then pursued the defendant for damages, contending that the land’s true value had been £7.8 million, and that as a result of the negligent undervaluation the buyer had been able to pick up the site at a steal.

The Issues  

It is frequently remarked that the valuation process is an art and not a science. With market value being no more than an estimated amount at which a property should sell, it is to be expected that a number of valuers given the same task will produce a range of reasonable estimates. There is no single, correct answer and the more unusual the property is and the more components there are in the valuation exercise, the greater the range of reasonably determined estimates is likely to be. The position is no different where valuers are instructed as expert witnesses to produce retrospective valuations in valuer claims. In recognition of this, the concept of the ‘bracket’ or permissible ‘margin of error’ has developed in valuation claims. It is a necessary pre-condition of establishing valuer liability that their valuation figure must first fall outside of the court’s assessment of the reasonable margin: if it happens to fall within it, irrespective of a questionable methodology, there can be no liability because it was still within the range of valuations which could nevertheless have been legitimately arrived at by reasonably competent valuers. To this extent the court’s approach focuses on the valuer’s final figure – which is what the client generally relies upon – rather than the minutiae of how they got there.

But what further enquiry, if any, must there be where the valuation lands outside the permissible margin? The most significant issue with which the court had to grapple was this: where it is shown that the defendant’s valuation falls outside of what the court has determined to be the appropriate ‘margin’ or ‘bracket’ around its own assessment of the property’s true market value at the relevant date, must it follow without more that the valuer has been negligent, or does the court nevertheless then have to go on to examine whether specific allegations of negligence regarding the valuer’s methodology have been proven?

The claimant argued for the former position, that once a valuation is shown to be outside the bracket, there is no further requirement to “dissect and examine the valuer’s reasoning and consider whether the methodology employed by the defendant valuer contains negligent errors” – a valuation ought only to fall outside the bracket where it falls outside what is to be regarded as acceptable by a respectable body of opinion within the profession.  Against that position the defendant argued that this gave rise to a “logical fallacy” in that various authorities relied upon by the claimant were to the effect that a valuer could yet escape liability, even though their valuation was outside the permissible margin, if it could be shown that they nevertheless exercised reasonable skill and care. What room was there to show this if, on the claimant’s case, a valuer was automatically liable once it was shown that their valuation was in fact outside the bracket?

Decision  

The court determined, having reviewed seemingly conflicting authorities on the issue, that liability for negligence on the part of a valuer cannot be determined – save in limited circumstances – simply by reference to the court’s assessment of the property’s true value and the application of what the court referred to as a ‘vanilla’ margin (referencing the application of broad percentage brackets of 5%, 10% and 15% referred to by the court in L/S Lincoln v CB Richard Ellis Hotels Ltd [2010] PNLR 31, by reference to the category of property being valued).

Whilst application of such a bracket to the court’s assessment of a property’s true value will exclude the possibility of negligence where the impugned valuation falls within it – because it falls within the realm of potential non-negligent valuations so that negligence will not have been established – a finding of negligence does not follow merely where the valuation falls outside. Whilst that is a necessary condition of liability it is not of itself sufficient. Only if that pre-condition is satisfied must the court then go on to address considerations of the Bolam type, namely whether in reaching their valuation falling outside of the bracket it could be shown that the defendant valuer nevertheless acted in accordance with practices regarded as acceptable by a respectable body of opinion in their profession.

The court noted that a finding of negligence might follow merely from the valuation falling outside the bracket where the court’s assessment of the applicable margin did itself involve a determination of the “bounds of reasonable professional competence as applied to the steps taken by the relevant valuer in the course of the particular valuation process”. A court might properly take this approach by applying a bracket which it has identified by adopting a more analytical approach, i.e. by not applying a ‘vanilla’ bracket but by identifying a bracket specific to the valuation in question by assessing, with the benefit of expert evidence, how a reasonably competent valuer might have approached each step or element of the valuation process. By taking Bolam considerations into account in determining the bracket, there would then be no reason for a further stage of enquiry if the impugned valuation fell outside it. However, the court considered that this more analytical approach to determining the bracket was likely to be appropriate only in less complex valuations with only a limited number of variables. In most instances, the application by the court of a ‘vanilla’ margin was a useful means of sifting out unmeritorious claims.

The Result

Applying the above principles to the facts of the case, the court assessed the property’s true value at £4,746, 860. To that figure it applied a ‘vanilla’ bracket of 15%, having had particular regard to the wide range of valuation opinions expressed at the material time, the divergence of views as to the correct approach to valuation and that the fact that the authorities supported a wider margin when valuing development sites with certain unique characteristics as opposed to standard residential property. From those conclusions it followed that the defendant’s valuation of £4,075,000 fell just within the bracket, being 14.15% below the court’s assessment of the property’s true value at the relevant time. That was sufficient to dismiss the claim without the need for the court to enquire further into the valuer’s methodology (and to render the debate on the primary point of law academic in this instance).

Comment

In addition to providing useful guidance as to the appropriate approach to valuing development plots, the decision provides important clarification in valuation cases by confirming that the court’s application of a bracket serves as an initial filter on claims. Only if a claimant can demonstrate that the valuation falls outside the court’s assessment of the appropriate margin will the court then go on to consider whether a case of negligence has been made out. Whilst a finding of negligence is more likely the further the valuation strays outside the bracket, in undertaking that further, obligatory enquiry the court will still be bound to limit the exercise to specifically pleaded allegations of negligence.