The 2019 professional liability case law was dominated by four core themes, which arose repeatedly in numerous contexts in claims against lawyers and auditors in particular:
- Multiple interlocking attacks on different aspects of the “loss of a chance” doctrine, anchored in both “lost litigation” claims and defective business deals. As we explain, the case law has been marked by various parties trying to opt out of parts of the existing Allied Maples doctrine, or bend the requirements to their particular circumstances.
- The continued adoption of “assumption of responsibility” as the appropriate test for duty of care to non-clients, and the extent to which the principle is relevant to the scope of duty owed to a client.
- The debate over how the distinction between “information” and “advice” cases plays out in the context of the respective duties of auditors and directors for the running of companies (both in the context of scope of duty and contributory negligence).
- The way in which a claimant’s wrongdoing should “taint” a claim against a professional. This theme emerged in the loss of a chance context, in respect of “ex turpi causa”, and in relation to the ever-challenging issue of attribution.
Helen Evans, Pippa Manby, Anthony Jones and Seohyung Kim of 4 New Square explain what the 2019 cases tell us, how the various strands of development interact, and what trends are evident as we go into 2020.
Loss of a chance
The attack on the general principles
Two “loss of a chance” cases with their origins in the miners’ vibration white finger (“VWF”) compensation scheme reached the Supreme Court in 2019: and in both cases the defendant solicitors attacked aspects of the doctrine derived from Allied Maples v Simmons & Simmonds  1 WLR 1602.
The Allied Maples approach to a “lost litigation“ claim requires a claimant to show (1) that if he had been given different advice, he would have pursued his claim to some form of conclusion (whether at trial or by settlement) and (2) that he had a “real and substantial chance” of achieving a better outcome than he in fact achieved. These are referred to below as the stage (1) and stage (2) tests.
If the claimant passes the stage (1) test (which he is required to prove on the balance of probabilities), he only has to show that he had more than a 10% chance of securing a better outcome at stage (2). A discount is then applied to his damages at stage (2) in order to reflect the prospect of him in fact failing to achieve a better outcome – which is often referred to as the “counter-factual”. Stage (2) is less stringent than stage (1), because the court is asked to make a decision about what a third party opponent, or a court, would or would not have done on a different set of facts. Often the court has to analyse this issue on the basis of inadequate or incomplete evidence about what would have occurred; in other cases it is possible to reconstitute much of the material that would have been available but for the defendant’s negligence.
This is an area of law where context is particularly important. Many of the 1990s decisions establishing the “loss of a chance” approach had their origins in claims struck out for want of prosecution – where a judge had already decided that a fair trial was impossible and it was not surprising that a court trying the lost litigation claim had to take a rough and ready approach to what might have occurred if the matter had gone to trial. The miners’ VWF compensation scheme which gave rise to 2019’s two Supreme Court cases also had its own peculiarities: rather than requiring a miner to pursue his case to a court hearing, with the attendant need for disclosure and formal expert evidence, the scheme only required relatively informal evidence to support “service claims” (i.e. claims for damages for domestic needs, such as gardening, DIY or housework). Many miners had neither gathered nor kept documents about these matters, and therefore could not produce years later the material that might have proven such a claim (either when pursuing a VWF claim or when suing their solicitors for negligence).
This unusual backdrop was nonetheless the basis on which the Supreme Court re-examined some of the contentious parts of the Allied Maples test in 2019.
Stage (1) of the Allied Maples test — does the claimant have to prove that he would have pursued an honest claim?
The first issue that the Supreme Court was asked to tackle was honesty, and how a court should approach a lost litigation claim that a defendant argues could never properly have been pursued.
Perry v Raleys  2 WLR 636 concerned a miner who had suffered from VWF who had claimed, and recovered, general damages for personal injury. However he had not made a claim for a services award. Years later, he sued his solicitors, Raleys, for the lost opportunity of recovering such an award. 
Raleys argued that Mr Perry could not honestly have advanced a claim for a services award. A key debate was whether Mr Perry had to prove on the balance of probabilities that he would have brought an honest claim for a services award (as part of stage (1) in the Allied Maples test above) or whether his honesty was merely one of the factors to which the court would have regard in deciding whether he would have had real and substantial prospects of success of recovering a services award (as part of stage (2) in the Allied Maples test above).
The Supreme Court decided that Mr Perry had to prove on the balance of probabilities that he would have made an honest claim for a services award. In other words, the question of his honesty was a stage (1) issue. It was distinct from the issue of whether any services claim would have had real and substantial prospects of success (i.e. stage (2) of the Allied Maples test), because whether he had honestly suffered difficulties performing domestic tasks was a matter within Mr Perry’s own knowledge. It is only where an issue involves deciding what a third party (such as an opponent in litigation, or a court) would have done that the stage (2) approach is adopted.
Stage (2) of the Allied Maples test: no trial within a trial?
The Court of Appeal in Perry v Raleys had disapproved of the trial judge conducting what it depicted as a “mini trial” into Mr Perry’s honesty. Having decided that Mr Perry had to prove on the balance of probabilities that he would have pursued an honest services claim, the Supreme Court in Perry v Raleys was not required to tackle the nature of the different exercise conducted by the court at stage (2) of the Allied Maples test. However, Lord Briggs offered two insights into why stage (2) is less stringent than stage (1), as follows:
- Requiring a claimant to prove on the balance of probabilities that he would have succeeded at trial can lead to “all or nothing” results. A litigant who had 51% prospects of success would recover damages in full, but a litigant who had 49% prospects of success would recover nothing.
- There are cases where it is unrealistic to require a litigant that he would have won his case. It may now be impossible to obtain documents or witness evidence that would have been available earlier.
The miners’ VWF compensation scheme (with its attendant informality) may not be the most encouraging context to argue that stage (2) of the Allied Maples test is too blunt an implement. However, the broad brush approach taken at stage (2) has undoubtedly led to criticism. For instance, it can result in litigants recovering damages from their former lawyers when they only ever had 10% prospects of success in their lost claim. A claim that weak was clearly much more likely to fail than succeed, and defendants on the receiving end of negligence claims of this nature often feel that their clients have ended up better off suing them than they would have been if the underlying lost proceedings had been allowed to continue.
Moda v International Brands Ltd v Gateley LLP  EWHC 1325 (QB) was a different type of case to Perry v Raleys. The quality of the evidence about what a third party would have done if the defendant had not been negligent (in the context of a business deal rather than lost litigation) was wholly dissimilar. In particular, the court had to consider what happens at stage (2) of the Allied Maples test when the third party, whose hypothetical actions are in question, gives evidence at trial.
In Moda, the claimant company entered into a joint property venture with another company (Mortar) concerning the development of land. Moda and Mortar entered into an agreement under which Moda would receive 35% of the net profits. However, Moda’s solicitors did not inform it that the agreement had been amended during negotiations to exclude an area of land (the Angel Row unit) from the profit sharing.
Freedman J held that the solicitors had been negligent, and that if Moda had discovered the true terms of the agreement, it would not have proceeded without seeking the change them. But there remained a further issue of causation, namely whether Mortar would (or might) have granted Moda a share in the profits from the Angel Row unit (i.e. stage (2) of the Allied Maples test).
The solicitors summonsed Mortar’s director who gave evidence to the effect that Mortar would not have agreed to share the profits from Angel Row unit with Moda. The solicitors then invited the judge to determine the issue on the balance of probabilities, and to deny Moda’s claim entirely.
However, Freedman J held that the stage (2) loss of chance analysis – which only requires a claimant to show that it had a real and substantial chance of securing a different outcome rather than requiring proof on the balance of probabilities – applies even where the third party has given evidence. He held that:
- Firstly, the distinction in the case law was not based on the availability of evidence, but rather upon a difference between what the claimant has to prove about its own conduct as opposed to a third party’s hypothetical actions.
- Secondly, referring to Lord Briggs’ reasoning in Perry, when dealing with the “counter-factual”, the court does not always require the all-or-nothing approach of balance of probabilities.
- Thirdly, the court has to distinguish between the level of engagement of a third party and a party in litigation, as a third party may be reluctant or may not provide full disclosure, as was the case in Thus, “the notion that the Court has all the evidence that it could expect in the event that the third party had been a party to the action is usually not correct”.
- Fourthly, it would be difficult for the court to appraise what approach to make where the third party would be expected to have given evidence but did not do so.
Moda left open the possibility of applying the test of balance of probabilities where the third party’s participation was not significantly less than the participation of a party (e.g. involving full disclosure). Even so Freedman J described such a case to be “exceptional”.
In the section on auditors below we also consider another attempt by a claimant to “opt out” of the usual stage (2) analysis in Allied Maples. We note here that the trend of asking the courts to adapt parts of the loss of a chance doctrine was by no means confined to claims against lawyers in 2019, although that was the predominant context in which it manifested itself.
Is there a fraud exception to stage (2) of the Allied Maples test?
In Brearley & Ors v Higgs  3 WLUK 463, Jeremy Cousins QC (sitting as Deputy High Court Judge) considered whether a defendant is entitled to rely on a third party’s allegations of dishonesty against a claimant on a “loss of a chance” basis, or whether he is required to prove on the balance of probabilities that a claimant was dishonest. Again, this was a dispute over the application of the stage (2) test derived from Allied Maples.
Brearley v Higgs concerned a businessman (and his associates) who unsuccessfully tried to establish a car franchise in Wolverhampton. The businessman’s contract of employment with a nationwide car business contained restrictive covenants e.g. preventing him from competing for 12 months after his employment ended. He sued his solicitors for allegedly failing to give him adequate advice about these restrictive covenants and argued that but for their negligence he would have been able to pursue the new business.
The solicitors relied on allegations of wrongdoing made by the businessman’s former employer against him, including that he had dissuaded them from pursuing the new car franchise themselves. They argued that these allegations represented serious obstacles in the way of the professional negligence claim.
The businessman applied to have the defence relying on his former employers’ allegations struck out. He argued that the solicitors could not rely on third party allegations of dishonesty without pleading that they themselves believed that the allegations were true. The justification for this approach was said to the rules on pleading fraud – namely that fraud must usually be distinctly alleged and proved.
The strike out application was dismissed both at first instance and on appeal. The courts found that a defendant in professional negligence proceedings is not required to confirm whether it positively asserted the truth of information emanating from a third party. Such a defendant often did not in fact know whether the material was true – all he knew was that the third party had alleged it.
Another key aspect of dealing with lost litigation cases which was considered by the Supreme Court in 2019 is whether evidence that was not available at the time of the “lost litigation” should be admitted in the subsequent professional negligence claim. This has acquired the label “after available evidence”.
Edwards v Hugh James Ford Simey  UKSC 54 arose from another miner’s VWF claim. The miner had decided, on his solicitors’ advice, to abandon his services claim. By the time of trial in the professional negligence claim against the solicitors, medical evidence was available that would have been fatal to the services claim had it been known at the time of trial. But such evidence would never have been sought or adduced if the services claim had been pursued, and the question for the Supreme Court was whether the solicitors should be allowed to rely on it.
For those hoping for clear direction in an area of professional negligence law which has become somewhat tangled, the Supreme Court’s judgment is regrettably confined to its context. Indeed, the Supreme Court held that it was not necessary to express a concluded view on the issue of the admissibility of “after available” evidence in a professional negligence claim because the medical evidence contained in the expert’s report was not relevant to any of the issues before it. This was because of the unexacting demands placed on miners by the VWF compensation scheme, which did not require evidence approaching the formality of court proceedings. The last detailed explanation of when “after available” evidence can be adduced therefore remains the decision of the Court of Appeal in 2018, which discouraged the use of evidence that would not have been available at the notional trial date in a “lost litigation claim”. It did so by enjoining litigants not to lose sight of the nature of a claim for loss of a chance, as follows:
“what the claimant should recover in the professional negligence claim is not established by answering the question: how much of the original claim can he prove now? Rather it is established by answering the question: what was the value of what he lost then?”
Duty of care — renewed enthusiasm for “assumption of responsibility”
Moving on from loss of a chance, one of the notable features that emerged in 4 New Square’s round up of 2018 was the clear preference for “assumption of responsibility” over the other potentially available tests to discern when a professional person owes a duty to a non-client. This approach also pervaded 2019: and in particular Fraser Turner v PWC  EWCA Civ 1920, in which the Court of Appeal considered whether the administrators of a company owed a duty of care to an individual creditor of that company.
Fraser Turner had provided consultancy services to a mining company in relation to the lease of a mine and in return was entitled to royalties. After the mining company went into administration, the administrators sold the lease of the mine without the purchaser assuming any liability to pay the royalties. Fraser Turner alleged that the administrators had acted improperly in failing to ensure the royalty arrangements were honoured. The Court of Appeal had to consider whether the administrators owed a duty of care to Fraser Turner.
The Court of Appeal held that no special circumstances or no special relationship that amounted to an assumption of responsibility had arisen. The administrators were only under the usual duty to achieve the best realisation of the company’s assets for the benefit of all the creditors, and not to prefer the interests of one creditor over the others.
The case therefore confirms the orthodoxy that was strongly emerging by the end of 2018: namely that assumption of responsibility is often the test to reach for in a professional liability context involving non-clients. However, as we explore below (in the section on auditors’ claims), this approach is not appropriate in all cases, and when considering the scope of a professional’s duty to an actual client, it can prove an inapposite analytical tool.
What have the 2019 auditors’ claims got to tell us?
2019 saw two important decisions concerning auditors:
- The decision of the Court of Appeal in Manchester Building Society v Grant Thornton LLP  1 WLR 4610 (“MBS”) and
- The decision of Bryan J in Assetco Plc v Grant Thornton LLP  Bus LR 2291 (“Assetco”).
Three key issues arising from those cases – which tackled the notoriously complex issue of the respective scope of auditors’ and companies’ responsibilities – are considered below.
The distinction between “information” and “advice” cases
MBS concerned a claimant building society which issued “lifetime mortgages”. To protect itself against interest rate fluctuations the building society entered into long term interest rate swaps. The defendant (“GT”) advised that the claimant could use a method known as “hedge accounting” to reduce volatility in the claimant’s profits. It then audited the claimant’s accounts on the basis that this approach was permissible.
The approach was wrong. The claimant was forced to close out the swaps, stop lending and sell its book of UK lifetime mortgages. The claimant sued GT for sums including the cost of breaking the swaps. Teare J held at first instance that GT was not liable for the losses incurred when MBS was required to close out its swaps because it had not assumed responsibility for losses caused by a fall in interest rates.
MBS appealed, arguing that rather than focusing on assumption of responsibility, the task for the court was to discern whether this was an “information” or “advice” case (in reliance on Hughes-Holland v BPE Solicitors  AC 599, which had reaffirmed the “SAAMCO” approach). MBS contended that this was an “advice” case such that GT should be held liable for all the foreseeable consequences of MBS entering into the swaps.
The Court of Appeal agreed that the “SAAMCO” principle applied. The judge should have commenced by considering whether this was an “advice” or an “information” case rather than by focussing on the assumption of responsibility analysis. The case therefore proves that the renewed focus on assumption of responsibility in cases involving non-clients (discussed above) does not necessarily transfer to claims involving the scope of duty owed to clients.
The Court of Appeal also held that MBS was an “information” case as (a) GT had not been involved in the decision to enter into the swaps; (b) MBS had not left it to GT to “consider what matters should be taken into account when deciding whether to enter into the transaction” or “to consider all relevant matters and not only specific matters in the decision; and (c) GT had not been “responsible for guiding the decision-making process.” GT had provided accounting advice but this was not determinative: what was relevant was the purpose and effect of the advice.
Finally, the Court of Appeal also considered the burden of proof in “information” cases holding that in order to establish that it would not have suffered the swap closure losses if GT’s advice had been correct, MBS had to do more than establish the simple fact of those losses. MBS also had to prove that it would have avoided those losses if it had continued to hold the swaps. This is because, in any “information” case, the claimant has to prove the consequences of the information being wrong.
The decision is subject to an appeal to the Supreme Court.
Until recently there was little English authority regarding contributory negligence deductions for auditors’ negligence cases. In both MBS and Assetco the judge at first instance considered this issue and made a range of deductions. Both Teare and Bryan J focussed on the relative degrees of blameworthiness of the parties and the relative causal potency of their respective negligence for the damages awarded. They emphasised that in auditors’ negligence claims, the court should bear in mind the respective roles of the parties: i.e. the distinction between the role and responsibilities of the company’s directors (who run the company all year round) and the much narrower role and responsibilities of the auditor carrying out the annual audit of the accounts.
In Assetco Bryan J held that as GT’s breaches were flagrant and had gone to the “very thing” that they were responsible for as auditor, those breaches were of a very high relative causal potency in relation to the losses and that GT should generally bear the “lion’s share of relative blameworthiness”. He then apportioned individual losses as between the parties on a percentage basis. In respects of some type of loss, no or a limited deduction was made. In other instances a 100% deduction for contributory negligence was made – for instance, the issuing of inappropriate dividends was regarded as a matter for which the managers were wholly responsible. These decisions are a welcome contribution to the English case law demonstrating the correct approach to contributory negligence deductions.
Loss of a chance revisited in the audit context
As we have explained above, several cases in 2019 were marked by parties trying to bend aspects of either stages (1) or (2) of the Allied Maples test to their advantage. Assetco was no exception. However, Bryan J refused to allow the claimant to elect to prove the action of the third party on the balance of probabilities so as to escape a discount being made on quantification of loss to reflect the evaluation of the chance not eventuating (i.e. to adapt stage (2) of the Allied Maples test to its own advantage). He also made some observations that were also found in Moda, namely that there should be no difference in the assessment of chance where a third party is called as a witness to the action.
How to factor in a claimant’s wrongdoing
Some of the claims already discussed above – particularly Perry v Raleys and Brearley – grappled with the appropriate treatment of allegations of wrongdoing against parties involved in “loss of a chance” claims. However, allegations of misconduct appear in multiple contexts.
Ex turpi causa non oritur actio – when a claim is tainted by illegality or immorality
A longstanding strain of professional negligence case law involves situations where (a) a claimant (or an individual associated with a corporate entity) has been involved in an enterprise or transaction which is either fraudulent or on the margins of what is acceptable, (b) that transaction is handled by a professional in a manner which leads to loss or liability, and (c) the claimant seeks a remedy from the professional. These cases frequently place the courts in difficult situations where there is no party wholly deserving of sympathy, and two cases decided in 2019 demonstrated that, even after the Supreme Court’s decision on the defence of illegality in Patel v Mirza  AC 467, complexities remain.
First, in Stoffel & Co v Grondona  EWCA Civ 2031, the Court of Appeal was faced with a ruse whereby Mr Mitchell bought a flat for £30,000, then Ms Grondona (using her better credit rating, obtained a mortgage of £76,500 from Birmingham Midshires) and purchased the flat shortly afterwards from Mr Mitchell at the inflated price of £90,000. The scheme was in reality a way of fraudulently obtaining funds from Birmingham Midshires for Mr Mitchell – to whom the building society would not have lent. But the solicitors, Stoffel & Co, negligently failed to register the transfer in favour of Ms Grondona. Ms Grondona defaulted on the repayments to Birmingham Midshires and, without the property as security, became personally liable for repayment in full. At first instance, the judge applied the outdated approach in Tinsley v Milligan  1 AC 340, finding that Ms Grondona’s claim would only be barred by the defence of illegality if she was required to rely upon her unlawful behaviour to make out the elements of her claim against the solicitors.
On appeal, the Court of Appeal followed Patel v Mirza in confirming that the Tinsley v Milligan “rule-based” approach has been displaced by a policy-based approach which requires that the court consider (a) the underlying purpose of the prohibition which has been violated and whether that purpose would be enhanced by the denial of the claim (b) any other relevant public policy on which denial of the claim may have an impact and (c) whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal, rather than the civil, courts. Applying that approach, Gloster LJ concluded that, while mortgage fraud was clearly “a canker on society and it is extremely important that dishonest applicants for mortgages should not be empowered by the law to abuse the system”, the purpose of prohibiting mortgage fraud would not be enhanced by absolving negligent solicitors of responsibility for their failures. General public policy required professionals to be held to high standards, and denying Ms Grondona would be disproportionate particularly since Birmingham Midshires had not actually complained about her scheme with Mr Mitchell, and Ms Grondona would not have been the party profiting from the fraud.
The case demonstrates vividly that the approach following Patel v Mirza will often deny negligent professionals scope to rely on a claimant’s illegality – as even serious illegality such as mortgage fraud will not trump the strong public policy of protecting the public from negligent professionals.
The Scottish case of Khan v Hussain  PNLR 14 took a different approach. The case must, however, be treated with care: while Lord Ericht in the Outer House of the Court of Session expressed himself as proceeding “on the English authorities”, Patel v Mirza was not referred to in the decision. In Khan, the claimant, who worked as a financial adviser, instructed his accountant to concoct earnings records and to provide a financial reference to a mortgage lender. He was subsequently investigated by his regulator – the Financial Services Agency – for irregularities including the mortgage arrangement, and was fined on the basis that he had been knowingly involved in the submission of the false income figures. The claimant sued the accountant, arguing that he had negligently advised that the inflated earnings figures could be claimed, and claiming damages for the loss incurred as a result of the FSA disciplinary proceedings.
The court held that the typically dominant public policy consideration that defendant professional advisers should be accountable for their errors was displaced in the present case, since “[t]he [claimant] was not disciplined for acting in accordance with professional advice. He was disciplined for his own dishonest conduct” While that formulation is not very clear there is a theoretical distinction between monetary liabilities following negligent advice from a professional and the cost of a disciplinary sanction largely prompted by findings of dishonesty. An English court may well agree that such a case demonstrates some territory where the defence of illegality still protects a negligent professional.
Allied to the question of illegality is the specific difficulty where an individual within a corporate entity has acted unlawfully, and the corporate entity seeks a remedy from its professional advisers for failing to protect it from the wrongdoer. A defence of illegality in such a case requires the additional step of attribution of the individual’s unlawful conduct to the entity (because the entity, typically a company, has not itself acted unlawfully). This issue has been considered frequently in recent years and in 2019 the Supreme Court revisited the issue in Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd  3 WLR 997.
A person who was both sole shareholder and board chairman of Singularis had made fraudulent transfers with the company’s assets via the bank Daiwa. Singularis sued the bank, arguing that it had breached its Quincecare duty not to execute a customer’s order in circumstances of apparent dishonesty without making confirmatory inquiries.
Among other things, the bank argued that the individual’s fraudulent acts should be attributed to Singularis. Lady Hale started from the general principle that a company was separate entity from the individuals associated with it, and explained that the attribution of a director’s conduct to the company required a consideration of the context and purpose for which the attribution was relevant. The relevant context here was the bank’s breach of its duty of care to protect Singularis against fraudulent transfers from its accounts – something which by definition would involve a person closely associated with the company. To attribute the trusted individual’s conduct to the company in such a circumstance would render the bank’s duty of care illusory.
The approach of the Supreme Court in Singularis emphasises another theme evident from much of the professional liability case law in 2019: namely the need to take a step back from the facts of the case before the court and to ask, “who was supposed to be protecting whom, from what, and why?”