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Y1: Existence of duty of care

General approach to negligence cases

 

"[6] When a claimant seeks damages from a defendant in the tort of negligence, a series of questions arise:

(1)              Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question)

(2)              What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)

(3)              Did the defendant breach his or her duty by his or her act or omission? (the breach question)

(4)              Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question)

(5)              Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question)

(6)              Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question)

Application of this analysis gives the value of the claimant’s claim for damages in accordance with the principle that the law in awarding damages seeks, so far as money can, to place the claimant in the position he or she would have been in absent the defendant’s negligence." (Manchester Building Society v. Grant Thornton UK LLP [2021] UKSC 20)

General approach to negligence cases

Lawyer owes a duty to the party for whom he/she is acting but not, generally, the other party

 

"[86] So far as the applicable legal principles are concerned, there was little controversy. As a general rule, a lawyer owes a duty of care to the party for whom he or she is acting but generally owes no duty to the opposite party: Ross v Caunters [1980] Ch 297 at 322 per Megarry VC. However, there are exceptions. Most relevantly for present purposes, the existence of a duty of care might exceptionally arise where the legal adviser for one party makes representations to the other party on which that other party relies. However, even so the general principle that no duty of care is owed usually applies, and it is common ground that whether or not there is such a duty depends on the assumption of responsibility as explained in NRAM." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

Lawyer owes a duty to the party for whom he/she is acting but not, generally, the other party

Entitled to rely on advice given prior to retainer, but no duty to give complete or comprehensive legal advice

"[120] I do not accept this. The true nature of the relationship until was that Mrs Miller was only a potential client of the defendant until 25 January 2016 and no duty of care equivalent to that under a retainer was owed to her until then.

[121] The facts upon which the claimant particularly relies do not actually support her case. I do not accept that the defendant held itself out (via its TV advertisement) as ready, willing and able to assist persons in the position of the claimant: ready and able in principle, yes; but its willingness depended on a sifting process and the creation of a retainer, and its advertisement did not say otherwise. The limited basis on which the helpline worked was explained to Mrs Miller, as I find. During her conversation with the claimant on 19 May 2014, Ms Halliwell gave Mrs Miller some limited high-level and generic legal advice about personal injury claims, but it did not purport and cannot have been understood to be complete or comprehensive legal advice about her claim, and it was a preliminary to further consideration. The question of obtaining separate legal advice did not arise for the reasons I have already given. The fact that during her conversation with Ms Halliwell, Mrs Miller was told that her case was being referred to the defendant's ITLG counts against there being a general duty in tort equivalent to the solicitor's duty of care to his client, rather in favour of it. The defendant's having a file and matter number for Mrs Miller's potential claim, recording time charges, and referring to her internally as its client is immaterial for the reasons I have already given. The fact that the defendant did not want or advise Mrs Miller to seek advice is also immaterial. The relationship between them was not akin to a contractual relationship. Mrs Miller was certainly entitled to rely on such advice as she was given, but she was not advised to ensure the insurers were informed, and the facts to which I have referred did not give rise to a duty on the defendant to provide such advice. Her undoubted lack of experience in legal matters does not change that.
[122] Crossan v Ward Bracewell & Co (1989) 4 P.N. 103 is to be distinguished. It is a case in which positive advice was given before a retainer was entered into or the relationship of solicitor and client was formed, and the solicitor was under a duty to take reasonable care in respect of that advice. It went no further than that." (Miller v. Irwin Mitchell LLP [2022] EWHC 2252 (Ch), HHJ Cadwallader)

Entitled to rely on advice given prior to retainer, but no duty to give complete or comprehensive legal advice

Assumption of responsibility to non-client

Assumption of responsibility to non-client

- Representee reasonably relied on representation that representor reasonably foresaw that he would

 

"[87] In NRAM the solicitor for a borrower who was selling part of a charged property and intending to use the proceeds to redeem part of the loan secured on it, sent an e-mail to the lender, who was unrepresented, saying inaccurately, that the whole loan was being discharged. The Supreme Court held that no duty was owed by the solicitor to the party on the opposite side of the transaction, the lender...

...

[89] The NRAM approach thus requires consideration of two distinct questions: first, whether it was reasonable for the representee to have relied on the representation; and secondly, whether the representor should reasonably have foreseen that it was likely he or she would do so. These twin inquiries are the two ingredients of the general liability in tort for negligent misrepresentation, but they are particularly relevant to a claim against a professional by the opposite party because the latter's reliance in that situation is, as Lord Wilson described it, "presumptively inappropriate"..." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Representee reasonably relied on representation that representor reasonably foresaw that he would

- Reliance reasonable unlikely if it was reasonable to act without independent check

 

"[89]...While paragraph 19 of NRAM sets out the test, paragraph 23 in particular, makes clear that when it comes to assessing the reasonableness of the reliance (looked at objectively), the question whether it was reasonable for the representee to act without making any independent check or inquiry is highly relevant, and in many cases, likely to be determinative. There may be a parallel to be drawn with product liability cases where the likelihood that there will be an intermediate inspection or check negatives the existence of a duty of care.
[90] Indeed, the fundamental importance of independent inquiry in this context can be traced back to Hedley Byrne itself, as Lord Oliver of Aylmerton explained in Caparo. At p.638D in Caparo he deduced from Hedley Byrne that a duty of care might typically be held to exist where:
"(1) the advice is required for a purpose, whether particularly specified or generally described, which is made known, either actually or inferentially, to the adviser at the time when the advice is given; (2) the adviser knows, either actually or inferentially, that his advice will be communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be used by the advisee for that purpose; (3) it is known either actually or inferentially, that the advice so communicated is likely to be acted upon by the advisee for that purpose without independent inquiry, and (4) it is so acted upon by the advisee to his detriment."
(See too Bank of Credit and Commerce International (Overseas) Ltd (In Liquidation) v Price Waterhouse (No.2) [1998] Lloyd's Rep. Bank 85, [1998] BCC 617 Sir Brian Neill at paragraphs 7.20(d) and 8.3).
For these reasons I reject [the Claimant's] contention that independent inquiry plays no part in the NRAM test." 
(McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Reliance reasonable if it was reasonable to act without independent check

- Reasonable reliance likely displaced even if independent check would not be with equivalent expert/in equivalent detail

 

"[91] Alternatively, Mr Stewart submitted that if independent inquiry is relevant at all in this context, it begs the question what type of independent advice is sufficient: what must it be directed at and from whom must it be taken. He submitted that it must mean an inquiry of at least the same nature and type, and on the same point on which reliance would otherwise be placed as the seller's adviser has conducted. In other words, if the seller's adviser is a tax silk, nothing but advice on the same point from an equivalent tax silk will amount to the sort of independent inquiry that could displace the reasonableness of the reliance, and the fact that the advisee has sought advice from an experienced IFA or solicitor will not meet the necessarily high threshold for these purposes. I do not accept that submission. There is nothing in the authorities to support it. Independent advice means just that: advice that is independent of the seller from whomever is available to give it. Whether or not the independent adviser traverses the same ground as the seller's adviser, or advises on the risks to the buyer in entering the transaction, both situations will be relevant to the reasonableness of the reliance because they reflect independent inquiry by the buyer." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Reasonable reliance displaced even if independent check would not be with equivalent expert/in equivalent detail

- Reasonable reliance on the lawyer and independent check possible but unlikely 

 

"[92] Independent inquiry as a central aspect of the reasonableness of reliance also answers the question whether there can be reasonable partial or dual reliance by the representee as [the Claimant] contended. The question in such a case would be whether it is objectively reasonable for a representee to rely both on the seller's adviser and on their own advice, having made independent inquiry. The answer will of course depend on the facts. In many cases, the fact that a party could and should have made their own independent enquiry will lead to the conclusion that reasonable partial reliance is not enough to create a duty of care." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Reasonable reliance on the lawyer and independent check possible but unlikely 

- Part of the representation's known purpose must have been that it should be communicated and relied on by C

 

"[93] ...The representor must not only know that the statement is likely to be communicated to and relied upon by B. It must also be part of the statement's known purpose that it should be communicated and relied upon by B, if the representor is to be taken to assume responsibility to B: see Playboy Club London Ltd v Banca Nazionalse del Lavoro SpA [2018] UKSC 43, [2018] 1 WLR 4041 at paragraph 11 per Lord Sumption JSC." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Part of the representation's known purpose must have been that it should be communicated and relied on by C

- Presumptively inappropriate to rely on something said by counterparty's lawyer

 

"[93] ...Relevant to this question will be whether the transaction is an arm's length transaction where it is presumptively inappropriate for anyone on the opposite side to rely on something said by the counterparty's lawyer. Also relevant is whether the statement relied upon is qualified or explained, for example as a statement of belief rather than fact, or as not having been verified for accuracy or completeness. Such statements amount in effect to warnings to the buyer of caveat emptor, and flowing from this, to make their own independent inquiry as to whether to enter into the transaction.

...

[99] The broader commercial context is that Scotts and the investors were on the opposite sides of an arm's length sale transaction. They were commercial counterparties, and Scotts as sellers were seeking to attract investment in the Scheme for their own profit. On the face of it, the principle of caveat emptor applied and meant that investors should make their own assessment of the risks of going into the transaction and an independent decision as to whether to invest in the Scheme. The starting point accordingly was that it was presumptively inappropriate for investors to rely on anything said by Scotts' adviser, and not the reverse." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Presumptively inappropriate to rely on something said by counterparty's lawyer

- Not reasonable for investors in unregulated scheme who came through authorised professional acting on their behalf to rely on tax advice given to vendor

 

"[98] The fact that the Scheme was unregulated meant that applications by investors to subscribe to SAD2 and SAD3 were required to come through authorised professionals. That meant, as the judge found, that none of the appellants was entitled to rely directly on the IM, but could only do so through and with the benefit of their own IFA, who owed professional obligations of their own to each investor in relation to investing in the Scheme. Thus as Mr Thornhill knew, the only way investors could obtain access to Mr Thornhill's advice was through the IM which referred to him as adviser and said his advice had been obtained, and that copies could be requested. The consent given by Mr Thornhill to his tax advice to Scotts being provided to prospective investors (if asked for) was only in the context of documents directly requiring those investors to take and rely on their own professional/tax advice. What is more, no investor could subscribe to the LLP without warranting that he or she had only relied on the advice of or had only consulted with his or her own professional adviser with regard to the tax and other considerations related to subscription to the LLP. I shall return to a more detailed consideration of the detailed terms of the IM and warranties below." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Not reasonable for investors in unregulated scheme who came through authorised professional acting on their behalf to rely on tax advice given to vendor

- Not reasonable for investors to rely on tax advice given to vendor when they had warranted that they had relied on their own professional advisers

 

"[98] ... The consent given by Mr Thornhill to his tax advice to Scotts being provided to prospective investors (if asked for) was only in the context of documents directly requiring those investors to take and rely on their own professional/tax advice. What is more, no investor could subscribe to the LLP without warranting that he or she had only relied on the advice of or had only consulted with his or her own professional adviser with regard to the tax and other considerations related to subscription to the LLP. I shall return to a more detailed consideration of the detailed terms of the IM and warranties below.

...

[112]...The appellants could not reasonably have understood from the warranties they signed that they were entitled to rely on Scotts (and Scotts' adviser) as assuming responsibility to them for general tax advice. This construction does not negative the express acceptance of responsibility which Scotts accepted towards the investors in relation to the preparation of the IM, as Mr Stewart contended. Rather, it makes sense of the IM and what Scotts accepted responsibility for, read fairly and together with the warranties and the checklist. It is not in doubt that Scotts owed a duty to investors in relation to the accuracy of the information in the IM and would have been liable to investors for negligently misrepresenting the nature of Mr Thornhill's advice if that had been done. But Scotts did not misrepresent the nature of Mr Thornhill's advice, and this was never alleged. Rather, consistently with the statements made in the IM, Scotts said that they understood the Scheme to work and that this understanding was supported by the legal advice Scotts had received, but investors were required to promise that they had taken and relied on their own tax advice on this centrally important question.(McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Not reasonable for investors to rely on tax advice given to vendor when they had warranted that they had relied on their own professional advisers

- Reasonable to expect sophisticated investors to take their own advice

 

"[104] So far as the investors themselves were concerned, the Scheme was not directed at vulnerable people of modest means, but at high net worth individuals who either had, or had access to, their own professional advisers and who were required to, and did, deal through IFAs who would be expected to advise them on the risks inherent in the Scheme. The appellants were (as the judge found) largely sophisticated investors and would reasonably have been expected to understand the risk warnings in the IM. It was reasonably to be expected that any person with sufficient wealth and potential tax liabilities to be a potential investor in a tax avoidance scheme of this kind, would seek and obtain specialist accountancy and/or taxation advice on a regular basis, and would thereby have easy and convenient access to independent advice in relation to the contents of the IM.
[105] In these circumstances, absent good reason to the contrary, the default expectation was that investors would not simply rely on what they were told about Mr Thornhill's advice, but would, with the help of their IFAs (and other tax advisers where relevant), make their own assessment of the risks of the transaction and an independent decision as to whether to enter into it.
(McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Reasonable to expect sophisticated investors to take their own advice

- Absence of a disclaimer of responsibility in advice relevant but not necessarily determinative

 

"[116] [The Claimant] emphasised the absence of any disclaimer despite Mr Thornhill being given the opportunity to make one, and the significance of this as a factor in favour of the existence of a duty of care. He relied on the emphasis placed by Lord Wilson on the presence of a disclaimer in NRAM at paragraph 19; and on dicta in McCullagh v Lane Fox & Partners Ltd [1996] 1 EGLR 35 at 45 to the effect that, "The existence of a disclaimer is relevant to answering the relevant questions and thus to the question whether there was a duty of care", and in BCCI Ltd v Price Waterhouse at 635 that a material consideration is "the opportunity, if any, given to the adviser to issue a disclaimer". It is a fair point to make that Mr Thornhill could have included a disclaimer, but this was a multifactorial analysis and the absence of an express disclaimer was but one factor in the mix. It was neither a trump factor nor fatal especially given that the advice and opinions were only given to investors through the gateway of the IM with all its caveats." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Absence of a disclaimer of responsibility in advice relevant but not necessarily determinative

- Duty may exist if unequivocal advice given knowing third party likely to take comfort from it, in absence of express qualification that independent advice should be taken

 

"[174] I agree that this appeal should be dismissed. However, since I had initial reservations about such an outcome on the question of whether or not a duty of care was owed, I add a few words of my own on that topic.
[175] A specialist professional who voluntarily provides unequivocally positive advice to their client in the knowledge:
i) that the advice would be made available to a third party without any express disclaimer of responsibility; and
ii) that the third party would be likely to "take comfort" from that advice and (with their advisers) be assisted by it in deciding whether to enter into a financial transaction,
exposes themselves to the risk of a claim that they owed the third party a duty of care based on an assumption of responsibility.

[176] As the Judge pointed out (at [88] to [90]), there were in this case multiple factors pointing in favour of the existence of a duty of care on the part of Mr Thornhill towards investors. These factors included the absence of any disclaimer of responsibility; the fact that he gave his (positive and unequivocal) advice in the knowledge that it was to be made available to potential investors who asked for it; that potential investors were likely to "take comfort" from the fact that he, as a leading expert in the field, was named as tax adviser to Scotts and had given positive advice on the prospects of the tax benefits being achieved; his advice assisted potential investors and their IFAs – it was on the very point of "critical importance", namely the prospects of achieving the relevant tax benefits, an issue on which there was no conflict of interest between Scotts and potential investors.
[177] However, for the reasons identified by Simler LJ, these factors are not enough to get the appellants home. The only gateway to Mr Thornhill's opinion was through the IM. As the Judge said, the terms of the IM are "critical": on a fair reading, potential investors were advised to consult their own tax advisers on the tax aspects of the Scheme. Further, to Mr Thornhill's knowledge, no investor could subscribe to the LLP without warranting that they had relied only on the advice of or had only consulted with their own professional advisers. The requirement for such a warranty was entirely unsurprising, not least given the mandatory involvement of an IFA on behalf of each and every potential investor.(McClean v. Thornhill [2023] EWCA Civ 466, Carr, Flaux, LJJ)

- Duty may exist if unequivocal advice given knowing third party likely to take comfort from it, in absence of express qualification that independent advice should be taken

Lawyer stepping outside their normal role

Lawyer stepping outside their normal role

- Agreeing that advice can be shown to others does not make lawyer part of sales team

 

"[93] The principle that solicitors can owe a duty of care to the opposite party because they stepped outside their normal role (as happened in Al-Kandari v JR Brown & Co [1988] QB 665) was another of the exceptions to the general rule discussed by Lord Wilson in NRAM at paragraph 32. There is a question in the present case whether this exception applies. Mr Stewart submitted that it does. First, he contended that this is a prospectus-type case in which investors were being induced by the IM to invest. Secondly, Mr Stewart contended that Mr Thornhill was not acting as an advising barrister in any ordinary sense but was instead both advising his own client, Scotts, and assisting the sale process by allowing his advice which he knew would form the basis of the IM (the terms of which he approved and on which he knew reliance was very likely to be placed) to be given to prospective investors. I will return to this point below. For present purposes, I am not persuaded that the Al-Kandari exception has any application to the present case. Mr Thornhill remained the adviser to Scotts (and the LLPs which the investors were being invited to join) throughout. It is true that the IM was prepared to attract and encourage investment, in other words to sell the Scheme. But even if it is fair to regard him in this sense as having become part of the sales team, he did nothing that could be regarded as stepping outside his role as a barrister advising on the scheme and the terms of the IM. He did not abandon his role as Scotts' named tax adviser but remained in that role throughout. He did not at any stage become a neutral or independent expert. Nor is there anything to suggest that he took on a role as acting for all parties or as acting also for the investors.

...

[101] The fact that Mr Thornhill agreed that Scotts could (on certain terms) show his advice to others made him no more part of the sales team than was the accountant in Peach Publishing. In that case, Morritt LJ observed that merely because the defendant accountant was known to have been advising the seller, he did not become "some valuer or expert, independent of any of the parties and exercising some independent judgment on whom those on both sides of the transaction might be expected to rely" (see p.386E). Contrary to Mr Stewart's submissions and despite the fact that Mr Thornhill's advice was part of the marketing of the Scheme, there is nothing to suggest that Mr Thornhill stepped outside his role as adviser to Scotts and took on some independent expert role advising both sides. Notwithstanding his consent for his opinions to be shown to potential investors on request, and his endorsement of the IM, he remained at all times on the sales side of the transaction.(McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

Important that consent to tax advice being shared conditional on the investors taking their own advice

"[102] Significantly, Mr Thornhill's consent to potential investors receiving copies of his opinions was given in the knowledge that the commercial and regulatory context was as I have summarised. These were unregulated schemes outside the protection of FSMA and investors were therefore required by law to have independent advisers. Further, and of central importance, the IM was the only means through which Mr Thornhill's advice to Scotts could be obtained by third parties, and Mr Thornhill only gave his consent to his tax advice being provided to prospective investors (if asked for) on the terms of the IM and other documents that expressly required those investors to take and rely on their own tax advice relating to the Scheme." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Agreeing that advice can be shown to others does not make lawyer part of sales team

Representation of belief different to representation of fact/correctness

Representation of belief different to representation of fact/correctness

- Representation of understanding​

"[107] First, while the Notice in the IM said that Scotts were "responsible for the information contained in this document" and had taken care to ensure the information was in accordance with the facts and omitted nothing material, the IM stated that the tax analysis (which must encompass the critical questions whether the Scheme would work and the tax benefits would be available) in the IM was based on Scotts' "understanding of current UK tax legislation and published practice …". This statement of understanding qualified the representation being made and made clear that this was a representation of belief. It was not telling investors that the statement was right, or that Mr Thornhill was saying that it was right. It simply told the investors what Scotts believed the position to be. On a fair and objective reading of these statements, there was a representation that Scotts understood (or believed) the Scheme would work (to put it another way – the LLPs would be regarded as a matter of law to be trading) and the tax benefits would be available. However, Scotts did not say they were right to have that understanding (or belief) and there is nothing that can fairly be construed as any sort of guarantee that the tax benefits would materialise. Further, as Mr Adam emphasised, the appellants have never suggested that Scotts did not hold the understanding represented by them in the IM." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Representation of understanding​

- Representation that all reasonable care taken is a representation of due diligence not necessarily correctness

 

"Secondly, Scotts stated that they had taken "all reasonable care" in forming this understanding, and by implication that included a representation that Scotts had taken reasonable steps to check their understanding of the tax analysis, including taking advice from Mr Thornhill. Again however, on a fair reading this is not a representation that the understanding or the advice was right. Rather these were representations that due diligence had been performed, together with a factual representation that advice had been taken. It is true, as Mr Stewart contended, that this implied that Scotts' advice from Mr Thornhill supported Scotts' understanding, and did not say anything to contradict it that had been omitted in the IM. But no more than that can be implied. Mr Thornhill's advice was not appended to the IM or quoted in it. The only representations made in the IM as to the advice from Mr Thornhill were that the tax analysis contained in the IM was based on Scotts' understanding of current law and practice, that they had obtained advice from Mr Thornhill, and that the tax analysis contained in the IM was, by implication, consistent with his advice. That involves no representation as to the accuracy of the contents of Mr Thornhill's advice or opinions, still less that his advice was unequivocal. Nor did Mr Thornhill's endorsement of the IM give rise to any unequivocal representation that the Scheme would achieve the tax benefits. His unequivocal statements of legal opinion about the legal effects of the Scheme were not statements of fact that there was no doubt that the Scheme would work to obtain the tax benefits." (McClean v. Thornhill [2023] EWCA Civ 466, Simler, Flaux, Carr LJJJ)

- Representation that all reasonable care taken is a representation of due diligence not necessarily correctness
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