This recent High Court decision considers the extent of the duties of care placed on financial advisers, which will apply to other professionals.

Background

Mr & Mrs Worthing (“the Claimants”) sued Lloyds Bank Plc (“Lloyds”) in connection with their GBP 700,000 investment.

The Claimants met with Lloyds on several occasions in 2006 and early January 2007. Based on Lloyds’ assessment of their attitude to risk, various “balanced/medium risk” investments were recommended.

After the advice was provided the Claimants signed Lloyds’ standard Terms and Conditions. These provided that Lloyds would periodically check whether there had been any changes in the Claimants’ circumstances which could affect their investment objectives.

In March 2008, Lloyds conducted a review meeting. Whilst the value of the initial investment had dropped due to the financial crisis, Lloyds advised the Claimants to retain their investment. Nevertheless, by July 2008, the Claimants were experiencing financial pressures and instructed Lloyds to liquidate their portfolio. They sustained investment losses of GBP 43,000.

The claim

In March 2013, the Claimants issued proceedings against Lloyds. They claimed that Lloyds acted negligently, in breach of contract, and its statutory duties regarding the initial investment advice. They argued that the investment was not suited to their appetite for risk - which they submitted was “cautious/low”.

While the Claimants conceded that their causes of action concerning the alleged negligent advice given in January 2007 had expired, they argued that Lloyds were under a continuing duty of care to re-consider the advice (and correct it) at the subsequent review meeting. The Claimants argued that a new breach of duty arose at each moment when Lloyds failed to rectify its earlier breach.

The decision

Here the Court held that the initial advice was not negligent, meaning that Lloyds could not be deemed negligent for subsequently failing to correct it.

Nevertheless, the judge made a number of findings in relation to the alleged continuing duty of care, including that:

  • The relevant duty (to provide advice in accordance with contractual, statutory or common law duties) arose at the point of the original advice
  • Once that advice was given, negligently or otherwise, that duty of care was discharged
  • The duty would only be continuing if the Claimants were able to identify a contractual obligation that remained unperformed. The judge distinguished the case of Midland Bank Trust Co. Ltd v Hett, Stubbs & Kemp [1979] where a firm of solicitors was found to owe a continuing duty to register an option because that case concerned the failure to perform a contractual obligation at all, rather than performing it negligently
  • Lloyds was not under a contractual duty with regard to the original advice. However, even if the advice was given under a contract, this would not have created continuing obligations in absence of an express contractual provision

Comments

This case will be welcome news for the finance industry and their insurers. It also provides useful guidance to other professionals who may face arguments from claimants that continuing duties of care exist in an attempt to side step limitation issues.

Whilst this case turned on its individual facts, it demonstrates that the Courts may be slow to impose continuing obligations on professionals in absence of an express contractual term providing for such, and where the obligations under a contract have been fulfilled, albeit negligently.