Y3: Breach of duty
Overlap with scope of duty
There is an obvious overlap between the question of the scope of a duty and whether the duty has been breached.
Reasonably competent professional standard
- Acted in a way that no reasonably well-informed and competent member of the profession
" The defendants contend that the applicable test is whether no reasonably competent tax planner/adviser could have acted as the defendants did: Saif Ali v Sydney Mitchell & Co  AC 198, 220.
No matter what profession it may be, the common law does not impose on those who practice it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made.
...In this case the defendants provided tax advice on the charity shell schemes and would be liable if they have acted in a way which no reasonably well-informed and competent tax adviser would have done." (Halsall v. Champion Consulting Limited  EWHC 1079 (QB), HHJ Moulder)
" It is common ground that, in performing their retainers by the claimant, the defendants were under a duty to exercise reasonable skill and care, both by reason of section 13 of the Supply of Goods and Services Act 1982 and at common law. Subject to one matter that I shall mention presently, it is also common ground that, in order to establish a breach of duty on the part of the defendants, the claimant must prove that no reasonably competent tax adviser would have performed its retainer as the defendants did." (Altus Group (UK) Ltd v Baker Tilly Tax and Advisory Services LLP  EWHC 12 (Ch), HHJ Keyser QC)
- No breach if consistent with significant body of reasonable practitioners, even if others might have acted differently
" As discussed above, the proper approach to the standard of care is the "Bolam" test and whether a significant body of reasonable practitioners would have acted as the defendants did. In Bolam the reference is to "a standard of practice recognised as proper by a competent reasonable body of opinion". However it appeared to be common ground that the court should not accept the evidence of an expert unless it withstood logical scrutiny and counsel for the defendants relied on the case of Altus for the proposition that there is a range of responses which would fall to be upheld as reasonable and the court has to be satisfied on all the evidence that it falls within the range." (Halsall v. Champion Consulting Limited  EWHC 1079 (QB), HHJ Moulder)
But see below on risk warnings, where this does not apply.
- Reasonable to advise based on current state of authorities and not anticipate subsequent developments
" This was the leading authority on tax avoidance film schemes at the time Mr Thornhill advised on the Scheme. It remained the leading authority until the more modern approach, encapsulated in Samarkand, emerged. Even in Samarkand in 2017, the taxpayer sought to argue that the purchase and leaseback (or onward lease) of a film are inherently trading activities. This submission was firmly rejected in Samarkand by Henderson LJ (with whom the other members of the Court of Appeal agreed). He accepted that there was no dispute that such activities are capable as a matter of law of forming part of a trade, and in many contexts the only reasonable conclusion would be that they did form part of a trade. However, whether or not they do so in a particular case depends upon a multifactorial evaluation of all the facts against the background of the applicable legal principles.
 However, in 2002-2004, by parity of reasoning with what happened in Ensign Tankers, and on the approach adopted by the House of Lords in that case, Mr Thornhill reasoned that the LLPs were being established to acquire and exploit the distribution rights in a portfolio of films, and would be spending money to acquire licences and then exploit the distribution rights in the films. In doing so they would be taking over part of the activities carried on by Warner Bros (or its associated companies), who were making and exploiting films by distributing them. These were inherently commercial trading activities done by Warner Bros with a view to profit. The LLPs' activities would be conducted in the same way as similar activities in the film world and as Mr Thornhill was instructed, there were entities in the film world carrying on part of the activities like those the LLPs would be carrying on. All this led to the conclusion, as it had done in Ensign Tankers, that the LLPs would be trading commercially. Mr Thornhill also reasoned in those circumstances, for the same reasons as were given in Ensign Tankers, that the question of "denaturing" did not apply, and the presence of a tax avoidance motive did not undermine the conclusion that the commercial activities amounted to trading. Based on the state of the authorities in 2002-2004, I consider that the nine propositions identified by Millett J and his approach to the transactions undertaken by Victory Partnership, together with the speech of Lord Templeman in Ensign Tankers (stating that the production and exploitation of a film is a trading activity) supported Mr Thornhill's reasoning in these respects. His approach overall was one which, at that time and on this basis, a reasonably competent tax silk could have taken. In my judgment the judge made no error in reaching this conclusion." (McClean v. Thornhill  EWCA Civ 466, Simler, Flaux, Carr LJJJ)
- Evidence that advice consistent with HMRC's practice at the time is relevant
" ...Nevertheless, the material substance of the point made by the judge applies. Although these were different schemes, the fact that even in 2006 HMRC were describing sale and leaseback partnerships as "carrying on a trade of exploitation of master versions of films" is indicative of their earlier approach. The final criticism of the judge's conclusion that a competent tax silk could have advised there was trading relates to the presence of a tax avoidance motive and has been addressed above." (McClean v. Thornhill  EWCA Civ 466, Simler, Flaux, Carr LJJJ)
Different standard based on quality of service D holds out as providing
" In reaching this conclusion, it is not, I think, necessary to rely on the distinction between what may be termed an ordinary accountant and a large firm of tax and accountancy specialists such as the defendants. However, in agreement with Mr Yates and disagreement with Mr Turner, I consider that there is a distinction and that the case is a fortiori for firms that put themselves forward as providing a top-level specialist service. Jackson & Powell on Professional Liability (7th edition) states at paragraph 2-130 (footnotes omitted):
"It is suggested that the correct approach (and that which is in practice adopted) is to judge the defendant by reference to the standard of skill and care appropriate to members of his profession, who have the same status or formal position as the defendant. Where the defendant holds himself out as a specialist in a particular field, he should be judged by the standards appropriate to a specialist in that field, even if there is no formal recognition of his specialisation."
In Herrmann v Withers LLP  EWHC 1492 (Ch),  PNLR 28, Newey J said at :
"It is common ground that, in considering whether Withers were negligent, I should have regard to the fact that they are a City of London firm and pride themselves on offering an excellent service to their clients. In Hicks v Russell Jones & Walker  EWHC 940 (Ch), Henderson J said (at paragraph 138(3)) that it would be 'absurd' to judge the firm with which he was concerned, which had 'experience in the fields of commercial litigation and insolvency, including the conduct of complex appeals', by the same standard as a small country firm. Withers accepted that it would be similarly inappropriate to judge them by the same standard as a small country firm."
Although it is true that the point was not argued in Herrmann v Withers LLP, the approach taken in that case and in Hicks v Russell Jones & Walker seems to me to be eminently sensible. The defendants are and hold themselves out as being a top-end and very large firm of specialist advisers. It is that standing that brings clients to them and those with whom they are in competition. They are reasonably to be judged by the standards appropriate to that standing. The defendants are reasonably to be expected to have much greater technical resources than an "ordinary" firm of accountants and as a result to be aware of relevant impending changes to tax legislation." (Altus Group (UK) Ltd v Baker Tilly Tax and Advisory Services LLP  EWHC 12 (Ch), HHJ Keyser QC)
Entitled to rely on instructions/others in relation to matters outside competence
" ...Whether the films could in practice produce income to ensure that enough flowed through the waterfalls to enable that theoretical profit to be realised was not a matter on which a reasonably competent tax silk would be expected to opine. He or she could rely on their instructions and the work of a suitable expert in the field." (McClean v. Thornhill  EWCA Civ 466, Simler, Flaux, Carr LJJJ)
- High end accountants expected to be aware of impending changes to tax legislation
"...Although it is true that the point was not argued in Herrmann v Withers LLP, the approach taken in that case and in Hicks v Russell Jones & Walker seems to me to be eminently sensible. The defendants are and hold themselves out as being a top-end and very large firm of specialist advisers. It is that standing that brings clients to them and those with whom they are in competition. They are reasonably to be judged by the standards appropriate to that standing. The defendants are reasonably to be expected to have much greater technical resources than an "ordinary" firm of accountants and as a result to be aware of relevant impending changes to tax legislation." (Altus Group (UK) Ltd v Baker Tilly Tax and Advisory Services LLP  EWHC 12 (Ch), HHJ Keyser QC)
- Duty to include risk warning not dependent on the views of other advisers
" In this case, legal advice was the very service which was being provided and which was being relied upon. There can be no separation between the advice and any appropriate caveats as to risk. They are one and the same. The lawyer as part of the legal advice he is providing, must evaluate the legal position and determine whether in all of the circumstances, he should advise his client that there is a significant risk that the view he has taken about the substantive matter in question may be wrong: see the Queen Elizabeth case per Arden LJ at  and the Balogun case at  and . As I have already mentioned, it seems to me that that is a question of law and legal expertise and not a policy question. It is not necessary for me to decide whether the Bolam test is applicable in the case of financial advisers in circumstances such as those considered by Kerr J in the O'Hare decision.
 As will already be apparent, I also consider that the position taken by other advisers at the time is irrelevant. The individuals, Mr Thornhill, Dr Ashton, Mr Bourge, Mr Brown and Mr Hogg who considered the EBT for different purposes and at different times were at best, an unrepresentative group. Even if it had been relevant to consider the standards applied by a body of expert professional opinion, they were not such a body. It is common ground that there was no expert evidence before the court..." (Barker v. Baxendale-Walker  EWCA Civ 2056, Asplin, Patten, Henderson LJJJ)
- Non-negligent advice will generally acknowledge risk of being wrong
" In the circumstances of this case and in light of his findings, it seems to me that had the judge addressed the gravamen of the appellants' case on breach, he could not but have concluded that no reasonably competent tax silk could have expressed such an unequivocal view in relation to the three statutory tests, even on the strength of Ensign Tankers. This unequivocal view did undermine the accompanying warnings in the IM. Non-negligent advice would, at least, have acknowledged that no two cases are factually the same, and accordingly no existing authority could be said to cover the circumstances of the LLPs' case exactly; and that the three statutory tests each engaged a risk of challenge by HMRC. Accordingly, notwithstanding the presence of IFAs and the requirement for investors to take their own tax advice on the tax consequences of the Scheme, I consider that reasonably competent tax advice should have identified the risks. To this extent only, in my judgment the judge was wrong to conclude that had a duty of care been owed by Mr Thornhill to the appellants, it would not have been breached." (McClean v. Thornhill  EWCA Civ 466, Simler, Flaux, Carr LJJJ)
" Each counsel criticised the findings of the expert instructed by the other party. However both Mr Brookes and Mr Avient accepted that if a professional adviser gave a guarantee he would not regard it as reasonable...
 Accordingly it seems to me that it is clear that no reasonably competent tax adviser could have acted as Mr Dallimore did in giving such an unconditional assurance and in so doing, the tax advice that Mr Dallimore gave to Messrs Halsall, Stanton and Higgins was negligent. The fact that some of the companies succeeded and that some of the schemes went unchallenged by the Revenue is in my view irrelevant to the question of whether the reasonably competent tax adviser would have given an unconditional assurance that the charity shell scheme would work effectively." (Halsall v. Champion Consulting Limited  EWHC 1079 (QB), HHJ Moulder)
- But whether it will warn of a significant risk depends on the circumstances
" Even if Mr Thornhill negligently overstated his advice, I am not persuaded that non-negligent advice would have warned that there was a significant risk of a successful challenge to this Scheme. This was the appellants' own self-imposed threshold for success on causation on the above basis. The appellants came nowhere close to establishing this or that the IM would have had to be differently worded, for the reasons given by the judge. As the judge held, Mr Thornhill could at one and the same time hold and express a very firm view as to the answer to the trading question, while acknowledging that an alternative view might be taken by others. On this basis I cannot see that the IM would have required any different wording. In my view the judge's conclusion on this aspect of the case on causation cannot be impugned." (McClean v. Thornhill  EWCA Civ 466, Simler, Flaux, Carr LJJJ)
" It seems to me that the following principles are likely to apply:
(i) The question of whether a solicitor is in breach of a duty to explain the risk that a court may come to a different interpretation from that which he advises is correct is highly fact sensitive: (Queen Elizabeth, Hermann, Balogun and Levicom cases);
(ii) If the construction of the provision is clear, it is very likely that whatever the circumstances, the threshold of "significant risk" will not be met and it will not be necessary to caveat the advice given and explain the risks involved;
(iii) However, depending on the circumstances, it is perfectly possible to be correct about the construction of a provision or, at least, not negligent in that regard, but nevertheless to be under a duty to point out the risks involved and to have been negligent in not having done so (Levicom and Balogun cases);
(iv) It is more likely that there will be a duty to point out the risks, or to put the matter another way, that a reasonably competent solicitor would not fail to point them out when advising, if litigation is already on foot or the point has already been taken, although this need not necessarily be the case (the Queen Elizabeth case to be compared with Balogun); and
(v) The issue is not one of percentages or whether opposing possible constructions are "finely balanced" but is more nuanced." (Barker v. Baxendale-Walker  EWCA Civ 2056, Asplin, Patten, Henderson LJJJ)
- Duty to warn of significant risk legal point central to planning would be challenged
"In my judgment, there was a significant risk that the EBT arrangement would not work as a result of the post-death exclusion construction which was centrally important to its structure and the likelihood that the promised tax advantages would be delivered. In all those circumstances, despite the fact that it is not alleged that the Respondents' view of the construction of section 28 was itself negligent, they should have given the specific warning. There was a significant risk that their advice was wrong and in all the circumstances, a reasonably competent solicitor would have gone beyond his own view and set out the risks." (Barker v. Baxendale-Walker  EWCA Civ 2056, Asplin, Patten, Henderson LJJJ)
- Not saved if trust drafted so that tax risk will not materialise at the expense of the trust achieving its purpose
"...If, however, that is the correct construction of Schedule 3, a question which fortunately we do not have to decide, and if section 28(4) has the meaning which I would attribute to it, it would then seem to follow that Mr Barker would indeed have been entitled to exemption from IHT on his transfer of shares, but the settlement would never have been capable of operating in the way which he hoped, and on the strength of which he had paid an enormous fee for the tax avoidance advice given to him by Mr Baxendale-Walker. Indeed, it would seem to follow that the sub-trust established soon after, on 23 March 1999, was itself invalid because it was made for the benefit of Excluded Beneficiaries.
" In those circumstances, Mr Baxendale-Walker and his firm would be impaled on the horns of an uncomfortable dilemma. Assuming HMRC's construction of section 28(4) to be correct, he should have given Mr Barker a clear specific warning to that effect; and he could not save the day by arguing that the trusts of the EBT were in fact drawn in a manner which would secure exemption, because the settlement would then fail to achieve the very objective which had induced Mr Barker to make the transfer, and on the strength of which the scheme had been sold to him. Either way, Mr Baxendale-Walker and his firm were clearly negligent." (Barker v. Baxendale-Walker  EWCA Civ 2056, Henderson LJ)
Relevant factors re duty to warn of risk
- Aggressive tax avoidance scheme/too good to be true
" When determining whether a reasonably competent adviser would have advised that there was a significant risk that a contrary view would be taken in relation to section 28(4) and that the post-death exclusion construction might well be correct, the relevant facts included the fact that this was a very aggressive tax avoidance scheme which was marketed to Mr Barker on the very basis that his family would be able to benefit from the property within the EBT at the date of his death free of Capital Gains Tax and Inheritance Tax, an outcome which might appear on the face of it to be too good to be true. It was for that reason that the sub-trust was established at the outset and section 28(4) and paragraph (d) in particular, were the focus of the drafting and ought to have been at the centre of the advice." (Barker v. Baxendale-Walker  EWCA Civ 2056, Asplin, Patten, Henderson LJJJ)
- Quantum involved
"...It is also relevant that the potential charge to tax was very large and the Respondents' fee was in the region of £2.4m.
 I also consider that given the amounts at stake and the very nature of the aggressive tax avoidance scheme there was always a likelihood of a dispute which should have been taken into consideration. Although just as in the Balogan case, the point had not been taken already (as it had been in the Queen Elizabeth case) it would have been obvious to any reasonably competent solicitor practising in this area that there was a real risk that HMRC would take the post-death exclusion construction point at some stage and if necessary, would pursue it through the tribunal and court system, especially as the EBT arrangement was founded on the ability of Mr Barker's family to benefit after his death which was its purpose and there was a considerable amount of tax at stake. To put the matter in the words of Sedley LJ in the Queen Elizabeth case, the post-death exclusion construction, which was at the very heart of the EBT arrangement, was likely to cause "a lot of trouble."" (Barker v. Baxendale-Walker  EWCA Civ 2056, Asplin, Patten, Henderson LJJJ)
- Unusually large fee paid for advice
"It is also relevant that the potential charge to tax was very large and the Respondents' fee was in the region of £2.4m." (Barker v. Baxendale-Walker  EWCA Civ 2056, Asplin, Patten, Henderson LJJJ)
Duty to explain likelihood of HMRC challenge and judicial scrutiny
" The degree of risk (looked at through the eyes of the reasonably competent solicitor) will dictate the nature of the warning that the client should be given, although other relevant factors for the solicitor to consider and bring to the client's attention in relation to a tax avoidance scheme of this kind will be the likelihood of a challenge to the scheme by the Revenue and the degree of judicial and other scrutiny which the scheme will receive." (Barker v. Baxendale-Walker  EWCA Civ 2056, Patten LJ)