Professional Negligence – Getting Creative and Pushing the Boundaries from a Chancery Perspective
On 11th April 2017, the Supreme Court handed down its decision in Swynson v Lowick Rose  AC 313, a case that sought to push the boundaries of equitable subrogation beyond breaking point. The Claimants were very firmly knocked back and it was made entirely clear that equity cannot be used as a modern day palm tree. Equity is based on legal principle, not discretion, or an amorphous concept of fairness. However, that does not mean there is no scope to get creative – provided you work out what the rules are and stick to them.
We tend to think of professional negligence in terms of contract or tort, but the Chancery concepts of trust and proprietary claims can expand the boundaries – or get both claimants and defendants out of tricky corners. Equally, a Chancery perspective can lead to avenues of recovery that tort and contract will not touch – such as unjust enrichment.