In this article we look at the decision in Lloyds Bank Plc v McBains Cooper Consulting Ltd [2018] EWCA Civ 452, in which the Court of Appeal considered the scope of a project monitor’s duty, causation and contributory negligence.

Summary

The recent Court of Appeal case of Lloyds Bank Plc v McBains Cooper Consulting Ltd [2018] EWCA Civ 452 raised interesting questions about the scope of a professional’s duty of care and assessment of damages in the context of a professional negligence claim against a project monitor. In particular, the Court of Appeal found that distinguishing between advice and information (as set out in the well-established SAAMCo decision) did not assist in this case.

Whilst McBains, the project monitor, was found to have been negligent for failing to draw the bank’s attention to the fact that it was being asked to pay for certain work (the addition of a third floor) which fell outside the facility, the real cause of the bank's losses was its funding of a project which it knew, from the outset, would have a shortfall.

Background

A lender who is advancing funds for a property development may appoint a project monitor. A project monitor’s role is, broadly, to protect the lender’s interests by identifying and advising on the risks associated with acquiring an interest in a development which is not directly under the lender’s direct control. The scope of a project monitor’s duty, as with all professional negligence claims, will largely depend on the scope and terms of any retainer.

In this case, McBains, as project monitor, was required to inspect the site at least monthly, and then submit regular progress reports to Lloyds (including a valuation of the works and confirmation that sufficient funds remained in the facility to cover completion of the redevelopment). During the course of the redevelopment, McBains identified additional costs to be funded by the borrower outside of the facility, in particular the addition of a third floor. McBains recommended payment, and Lloyds paid those additional costs without investigating them.

Lloyds later discovered that the redevelopment was “out of control”, and terminated the facility. Proceedings were subsequently issued against McBains on the basis that McBains was negligent in confirming that the borrower had sufficient funds to complete the redevelopment and in recommending payment in respect of the third floor works.

Court decisions

Agreeing with the first instance decision of the TCC, the Court of Appeal agreed that McBains had been negligent in failing to bring to Lloyds’ attention the fact that they were advancing monies for the third floor works; these were beyond: (a) the remit of the original building contract; and (b) the terms of the facility.

Considering recent case law and departing from the well-established position in SAAMCo1 (addressed in more detail below), the Court of Appeal held that when determining scope of duty, distinguishing between advice and information did not assist in this case. This is at odds with the first instance decision’s analysis which commented that in each monthly progress report, McBains was effectively advising Lloyds to pay the sum set out in each report, and was therefore liable for the consequences of that advice. In any event, notwithstanding the difference in reasoning, the Court of Appeal reached the same conclusion as the TCC, which was that McBains was liable for costs incurred by Lloyds in respect of the third floor works.

Interestingly, the Court of Appeal reversed the apportionment of damages in respect of Lloyds’ contributory negligence - primarily because Lloyds was funding a project “which was never financially viable”. Accordingly, it was held that Lloyds was two thirds responsible for its own loss, and damages were therefore reduced to £86,597.00.

Scope of duty and causation

Following the well-established SAAMCo principle, a professional is not liable for every foreseeable loss that his client may suffer.

In circumstances where a duty to advise has been breached, the negligent party is responsible for all foreseeable loss resulting from such negligence. In circumstances when only a duty to provide information is breached, the negligent party is responsible only for the consequences of such information being wrong. McBains argued that their progress reports provided Lloyds with information only, and not advice. Therefore, McBains argued that it should only be liable for the consequences of such information in their progress reports being incorrect.

In BPE Solicitors2, the Court held that when a professional provides a client with material which the client takes into account when making its decision, on the basis of a broader assessment of risks, the professional has no legal responsibility for the client’s decision. However, when a professional guides its client’s decision making process and provides material upon which the client relies when making a decision, the professional is liable for all foreseeable consequences of the client’s decision. Our blog post considering the application of SAAMCo principles in BPE Solicitors can be found here.

In McBains, the Court of Appeal held that the guiding principle in SAAMCo was all that was necessary and that the labels of information and advice are “neither distinct nor mutually exclusive categories”.

Conclusion

This decision provides useful further commentary as to the role and scope of a project monitor’s duty, and follows BPE Solicitors in its departure from the strict distinction between information and advice when interpreting SAAMCo principles.

The Court of Appeal’s decision to interfere with the TCC’s findings on contributory negligence is also significant, and demonstrates the importance of clear communication between lenders and project monitors throughout the life of the development.