Other defences and rights

A1.811 Mitigation

A defendant professional will not be ordered to pay loss which a claimant could reasonably have avoided. The claimant has a duty to take reasonable steps to mitigate his loss, but it is clear from the cases that the court will not impose a high burden on a claimant in this respect. In practical terms this issue arises for consideration when the defendant professional has already been found to be in breach of duty and so the sympathy of the court is likely to be with the claimant.

The steps taken by the innocent party by way of mitigation 'will not be weighed in nice scales at the instance of the party who has occasioned the loss'1.

The burden of proof is upon the defendant to demonstrate that the claimant has not acted reasonably.

In cases involving tax advisers, potential steps of mitigation are likely to involve payments of tax pending recovery from the

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