Legal Watch: Professional Indemnity April 2014 – Issue: 001
Honesty of solicitors not enough to invoke court’s mercy The Court of Appeal (CA) has overturned a ruling which excused from liability an innocent law firm swindled into releasing £150,000 of mortgage funds. In Santander UK Plc v RA Legal Solicitors, the court ruled that the failings of RA Legal in departing from conveyancing best practice were unreasonable and not deserving of the court’s mercy. The case concerns section 61 of the Trustee Act 1925, which gives the court power to absolve a trustee from personal liability for breach of trust if he has acted “honestly and reasonably” and “ought fairly to be excused” for the breach of trust. Section 61 has become the principal mechanism by
In This Issue: • Honesty of solicitors not enough to invoke court’s mercy • A bird in the hand is probably worth two in the bush for FOS complainants • Calderbank offer trumps part 36 in a construction dispute • Surveyors escape liability for injured pedestrians
which the law tempers a trustee’s otherwise strict liability in these circumstances.
Background In May 2009 Santander UK Plc (formerly Abbey National) agreed to lend £150,000 to Mr Vadika for the purchase of a residential property in London. The now defunct RA Legal was instructed to act for them both. RA Legal (R) understood that Sovereign Chambers LLP acted for the vendor. Although a firm of solicitors in good standing with the Law Society, the person purporting to be the conveyancer at Sovereign, was in fact a fraudster. The vendor had never retained Sovereign to act on her behalf, nor agreed to sell the property to Mr Vadika. The transaction did not technically complete because purchase monies were paid to the fraudster without receiving genuine documents in return (as per the decision in Lloyds TSB Plc. v Markandan & Uddin (2012)). The result was that Santander (S) received no security for its advance of £150,000.
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S therefore sued R for breach of trust, since it was a
of section 61 rests upon the trustee, who must show that
requirement of the CML Handbook that it hold the loan on
he acted honestly and reasonably throughout, and ought
trust ‘until completion’.
reasonably to be excused from liability. In the context
The High Court decision
of mortgage fraud, the Appeal Court has interpreted section 61 as requiring the trustee to prove that he acted
The lower court followed the earlier decisions in Davisons
reasonably in relation to those aspects of his conduct which
(Solicitors) v Nationwide (2012) and Markandan. Smith J
are connected with the beneficiary lender’s loss. The CA
held that in releasing the purchase monies to Sovereign,
was therefore required to consider precisely what type of
R acted in breach of trust, albeit in the genuine belief that
‘connection’ section 61 required. The standard to be applied
completion was taking place on that day. R did not dispute
to conduct connected with loss is that of reasonableness,
that it had acted in breach of trust, but applied for, and at
not perfection (Davisons).
first instance obtained, relief under section 61. The court held that they ought fairly to be excused from liability
Connection between conduct and loss
because S’s loss was in substance caused by the fraud of
Briggs LJ said that a strict causation test between an action
Sovereign. Although R had a number of failings, there was
and the loss “casts the net too narrowly for the purpose of
not a sufficient connection to the loss suffered.
identifying relevant conduct. In most mortgage fraud cases, the effective, primary or predominant cause of the loss is
Legal principles Court of Appeal decision The CA reversed the decision to grant section 61 relief.
the third party’s fraud rather than the conduct of the solicitor trustee.” It was “also too restrictive to apply a ‘but for’ test which disregards conduct, however unreasonable, on the basis
Reasonable conduct required
that even if the solicitor had acted reasonably, the fraud,
The CA concluded that, although it had acted ‘honestly’,
and therefore the loss, would still have occurred.” Briggs
R had not acted ‘reasonably’ in order to obtain relief under s.61. Its failings had represented departures from a sophisticated conveyancing regime intended to minimise the risks of loss to lenders and lay clients. The trial judge was too lenient on the requirement to show reasonable conduct. He had incorrectly attempted to construe s.61 by reference to the similar, but by no means identical, relieving provisions in the Companies Act. Smith J’s exercise of discretion could not stand.
LJ said that “it would not be appropriate to exclude as irrelevant conduct which consisted of a departure from best or reasonable practice which increased the risk of loss caused by fraud, even if the court concludes that the fraudster would nonetheless have achieved his goal if the solicitor had acted reasonably.” On the other hand, it would “extend the net too wide if it accommodated every aspect and detail of the solicitor trustee’s conduct which occurred, or played any part in, the process which began with the transfer of the loan money by
Since R had not shown that it acted reasonably in all
the lender to the solicitor trustee and ended with its theft by
respects connected with S’s loss, the discretion did not,
the fraudster”
strictly, arise at all.
Between those extremes, “some element of causative
Lord Justice Briggs gave the lead judgment in the CA. He
connection will usually have to be shown, and that conduct
considered the strict liability imposed by breach of trust,
(even if unreasonable) which is completely irrelevant or
tempered by the ability to claim relief under section 61.
immaterial to the loss will usually fall outside the court’s
He reiterated that the burden of proof for the purposes
purview under section 61.”
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R’s numerous departures from best practice included
connection between the conduct complained of and the
inadequate making of requisitions on title, transferring the
lender’s loss. “There may be highly unreasonable conduct
completion money without adoption of the Completion
which lies at the fringe of materiality in terms of causation,
Code by Sovereign, and then failing to deal with the absence
and only slightly unreasonable conduct which goes to the
of a prior mortgage discharge on the purported completion.
heart of a causation analysis.” It would be wrong to exclude
R’s failings formed part of a larger picture of the “shoddy
the former from any consideration under section 61.
performance of a conveyancing transaction from start to finish”, which left the court in no doubt that it would not be fair to excuse the firm from liability, in whole or in part. Effect on the beneficiary The second main stage of the section 61 analysis, usually described as discretionary, consists of deciding whether the trustee ought fairly to be excused for the breach of
It is therefore vital that conveyancing solicitors have systems in place to ensure compliance with established conveyancing best practice procedures and lender requirements. To prove that he acted reasonably under section 61, the solicitor will need to be able to provide a paper trail demonstrating that the whole of his or his firm’s conduct sufficiently connected with the loss satisfied the reasonableness test.
trust. This requires the court to consider the effect of the
Santander UK plc. v RA Legal Solicitors [2014] EWCA
grant of relief not only upon the trustee, but also upon the
Civ 183
beneficiary. LJ Briggs commented “in this context mercy lies not in the free gift of the court. It comes at a price.” Although lenders may have insurance arrangements in place, an innocent purchaser may lose his life savings in a mortgage fraud. The effect on the beneficiary is therefore an important consideration.
Commentary The Court of Appeal’s decision bucks a recent trend where the courts have granted relief under section 61 to innocent conveyancing solicitors (Davisons, Ikbal v Sterling Law (2013)). The CA did however note that the departures from best practice in Davisons were far less serious. Lenders will welcome this decision, but professional indemnity insurers will be disappointed by it. The decision highlights the onerous responsibilities residential conveyancing solicitors have to their clients in respect of the possibility of fraud by third parties. Any shortcomings of the conveyancing solicitors will be relevant in deciding if the firm has acted reasonably for section 61. It appears that the threshold for obtaining such relief is high. The CA however cautioned against an over-mechanistic application of the requirement to show the necessary 03
A bird in the hand is probably worth two in the bush for FOS complainants The financial services industry breathed a collective sigh
A claimant cannot bring a second set of proceedings for
of relief following the recent Court of Appeal decision in
losses incurred under the same cause of action even if the
Clark v In Focus Asset Management. The financial advisers,
first tribunal awarded him less than he was entitled to.
In Focus, successfully appealed against the High Court’s decision, which allowed a complainant to seek further redress through the courts, despite acceptance of a final award by the financial ombudsman. The financial ombudsman dispute resolution scheme was set up in order to deal with consumer complaints against financial advisers and financial service providers, such as banks, insurers or investment services. The Financial Ombudsman Service (FOS) determines disputes and may award compensation. The scheme is very important to consumers, not least because it is free to them.
Background The Clarks (C) complained to the FOS about advice
On appeal to the High Court, Mr Justice Cranston disagreed with the decision in Andrews. Cranston J reinstated the proceedings allowing the complainants to pursue the same claim for additional compensation in the courts, effectively allowing them a second bite at the cherry. The High Court did not follow the decision in Andrews. It held that a complainant should not be precluded from pursuing the matter further in the courts on the basis that the FOS only dealt with complaints and was not a judicial tribunal. It did not deal with causes of action as such and did not need to apply the strict law when reaching a decision. An additional factor was that the complainant could ultimately choose whether to be bound by the decision which was not indicative of a formal tribunal process
received from In Focus (F) on an endowment plan. They considered their losses to be in excess of £300,000 as a result of negligent investment advice. The ombudsman decided that they were entitled to compensation, but could only award £100,000 which was the financial limit of the FOS at the time. The ombudsman also made a non-binding recommendation that F should pay C the full compensation. C accepted the £100,000 but reserved their right to claim more in court proceedings. F paid the £100,000 but not the full recommended amount. In June 2010, approximately eight weeks later, C issued county court proceedings for the balance. F applied to strike out the claim. Lower court decisions The Clarks’ claim was originally dismissed by HHJ Barratt QC who followed the decision in Andrews v SBJ Benefit Consultants (2011) and held that the doctrine of merger applied. This doctrine provides that if a court or tribunal gives judgment on a cause of action, it is extinguished. 04
Legal principles Common law doctrines preclude a person who has obtained a decision from one court or tribunal from bringing a claim before another court or tribunal for the same complaint. These rules are referred to as res judicata or merger. Res judicata means that a judicial body has already adjudicated on the matter and it cannot be decided again. There is a public interest in the finality of litigation and a private interest that it is unjust for a defendant to be vexed twice with litigation on the same subject matter. Court of Appeal decision The Court of Appeal (CA) had to determine whether because of the doctrine of res judicata, acceptance of an ombudsman’s award precluded a complainant from seeking further redress through legal proceedings. The burden of showing that the facts constituting a cause of action formed the basis of an award, and that the same cause of action
is relied on in court proceedings, will lie on the financial
A complainant can therefore seek, but not accept, a FOS
adviser. If the court is not satisfied, there would be no res
determination to assess its chances of success at court. A
judicata. In short, the complainant has the benefit of any
favourable FOS decision could also be used to persuade
doubt.
the defendant to settle the claim.
The CA applied the doctrine of res judicata to rule that
On the other hand, complainants may decide that a bird in
acceptance of a FOS award, for whatever amount, precludes
hand is indeed worth two in the bush. A secure award from
a complainant from then bringing legal proceedings to
the FOS may be worth more than risking a higher award
pursue a claim based on the same cause of action.
through the courts particularly taking into account legal
The CA held that the FOS was a judicial tribunal for the purposes of the doctrine of res judicata. In reaching that conclusion, the court noted, among other things, that the
costs. Complainants seeking damages awards far in excess of the current £150,000 limit would be best advised to seek legal advice prior to accepting any FOS award.
ombudsman does not reach his decisions by reference
Clark & Anr v In Focus Asset Management & Tax
to strict legal principles but on the basis of what in his
Solutions Ltd & Financial Ombudsman Service [2014]
opinion is fair and reasonable. The CA’s reasoning was that
EWCA Civ 118
the principles of res judicata apply as much to decisions by the FOS as to decisions by the courts because the Financial Services and Markets Act 2000 (FSMA), which set up the FOS, does not exclude the common law doctrine of res judicata. The FOS need not decide matters strictly according to the law, but that does not, according to the CA, prevent a res judicata arising with regard to causes of action covered by the facts considered by FOS. The complainant cannot use the FOS award as a fighting fund for legal proceedings. Res judicata does not cease to apply because the complainant could obtain a higher level of compensation in court proceedings. C should have rejected the FOS’s award, and used it as a bargaining tool to try to negotiate more from F in court proceedings.
Commentary The Court of Appeal’s decision leaves open the possibility that, where a complainant has two distinct causes of action, he may be able to submit one to the FOS, while bringing court proceedings in relation to the other. Defendant financial advisers and their insurers therefore ought to seek sufficient particularity on any complaints made to the FOS, so that a clear cause of action can be established for purposes of any res judicata arguments. It must be noted that the doctrine of res judicata only applies to FOS decisions accepted by the complainant. 05
Calderbank offer trumps part 36 in a construction dispute In Walker Construction (UK) Ltd v Quayside Homes Ltd &
Despite numerous further attempts by the parties to settle,
another, the Court of Appeal overturned an order which
the court proceedings continued to trial in September
awarded a successful party its costs on an indemnity basis
2012. At trial Q was awarded a net sum of £10,885 on
after it had beaten its own, very low, part 36 offer.
its counterclaim. W was awarded its costs up until the
It held that a costs order requiring a claimant to pay the defendant’s costs of over £345,000, where the defendant had only recovered a very small percentage of its counterclaim, was disproportionate. There were strong grounds for disallowing abandoned and unsuccessful elements of the counterclaim and the judge had failed to give appropriate weight to a Calderbank offer made by the claimant.
Background The claimant, Walker (W) is a civil engineering contractor. The defendant, Quayside (Q) is a developer of residential homes. In December 2004 W entered into a contract to carry out drainage and highway works at Q’s building site. In February 2008 W brought proceedings to recover outstanding payments which had been retained by Q at the conclusion of the project. W’s claim had originally started out as a claim for approximately £25,000. Proceedings were stayed pending adjudication and the adjudicator awarded W approximately £23,400. Q paid the award but maintained that W’s works were defective. W’s claim then proceeded as a claim for the modest sum of £1,773.65. In December 2010 Q served its amended defence and counterclaim, which replaced its original defence of March 2008 in its entirety. Q’s counterclaim was substantial amounting to over £169,000.
adjudication. The judge found that Q had beaten its part 36 offer. W was to pay Q’s costs on the standard basis from after the adjudication to the expiry of Q’s part 36 offer and on the indemnity basis for the period from 25 May 2011 to trial. It should be noted that the court treated the defendant’s offer on its counterclaim in the same way as a claimant’s part 36 offer, for the purposes of part 36 sanctions. The defendant’s costs claim was over £345,000. W argued that the judge’s approach to costs had produced a result that was completely disproportionate to Q’s actual recovery on its counterclaim.
Legal principles Lady Justice Gloster handed down the majority judgment of the Court of Appeal (CA). She accepted that an appellate court should not lightly interfere with a trial judge’s exercise of discretion as to costs. However, the judge was plainly wrong in this case and his costs order was unsustainable for the following reasons: 1. When considering the history of the matter and assessing the various offers, he had failed adequately to take into account the commercial reality of the litigation, how it was conducted on each side, its ultimate outcome and who, on an objective basis, was the more successful party. These were factors he was obliged to consider under the relevant parts
On 5 January 2011 W made a Calderbank offer to pay Q
of Part 44(3) of the Civil Procedure Rules. Q delayed
£30,000 including costs. On 3 May 2011 Q made a part 36
for two years in putting forward its amended defence
offer to settle its counterclaim for £100 plus costs. By that
and counterclaim for over £169,000, before reducing it
date its costs were already in excess of £30,000. Shortly
shortly before trial to approximately £84,000. Q made
before trial Q halved its counterclaim to £84,000.
a net recovery at trial of only 5.93% of its original claim, and 11.92% of its amended claim. Against that
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background it was impossible that a proportionate result
disproportionate sum of costs”, he did not act on that
could be that W should pay Q’s costs of over £345,000,
conclusion in making his award. There were strong
in circumstances where Q had failed to establish all but
grounds for disallowing a substantial proportion of
a very small part of its counterclaim.
Q’s costs relating to the abandoned or unsuccessful
2. He had failed adequately to consider the respective
elements of its counterclaim.
conduct of the parties of the litigation and adjudication
In circumstances where the judge has exercised his
processes. The judge paid no regard to Q’s conduct in
discretion in a manner that is wrong in principle, it is for the
pursuing an inflated claim or its delay in formulating its
CA to exercise its discretion afresh. The judge should have
claim.
considered whether it was just to apply the sanctions set
3. Consideration should have been given to whether an
out in part 36.
issue-based or partial costs order was appropriate in
The CA therefore ordered W to pay 50% of Q’s costs on the
the circumstances.
standard basis from December 2008 (after the adjudication),
4. The judge, when considering the claimant’s Calderbank offer dated 5 January 2011 did not appear to give appropriate weight to the fact that W was left in a position where it could not realistically have made a part 36 offer. A part 36 offer would have had the automatic
to 19 January 2011 which was the date by which Q should have responded to W’s Calderbank offer. The costs were limited to January 2011 on the basis that this was when the claimant had made a reasonable and proportionate Calderbank offer.
consequence that, if the offer were accepted, Q would
Q was ordered to pay W’s costs from 20 January 2011 to
have been entitled to all its costs of the proceedings to
judgment on the standard basis.
date. The counterclaim had been exaggerated and the judge should have appreciated the commercial reality
Commentary
of the situation. It would have been disproportionate
This case is a classic example of the costs of litigation
and unfair had W been liable under CPR 36.10 for all
spiralling out of all proportion to the value of the claims
costs of the proceedings if the offer was accepted. In
in dispute. In the end, both parties were stung with
those circumstances a part 36 offer can have unjust and
substantial costs for very little gain. It is not apparent why W
disproportionate cost consequences. The court referred
continued with court proceedings for only £1,773.65 when
to the decisions in Medway Primary Care Trust v Marcus
it had succeeded on the vast majority of its claims at the
(2011) and Fairclough v Summers (2012) in this regard.
adjudication. It clearly cost significantly more to fight the
5. The judge failed adequately to consider whether W’s
case than the claimant would ever recover.
Calderbank offer of £30,000 inclusive of costs had
The CA’s costs order against the successful defendant is
represented a reasonable offer to settle. Given the
also a stark warning to parties to always bear in mind the
ultimate outcome, an offer to pay costs in a net sum of
overriding objective of proportionality.
£19,000 as at 5 January 2011 was in fact generous.
The CA referred to the judgment of Summers v Fairclough
6. The judge’s conclusion that W should have accepted
in recognising the practical limitations of part 36 where a
Q’s part 36 offer and therefore pay the entirety of Q’s
party is faced with an exaggerated or potentially fraudulent
costs from December 2008, on a standard and then
claim. The Civil Procedure Rules do not allow for a costs-
indemnity basis, was flawed. Although the judge
inclusive part 36 offer. The judgment is therefore a helpful
recognised that for W to have accepted the part
endorsement of the use of Calderbank offers in those limited
36 offer would have rendered W liable for a “wholly
circumstances where the use of part 36 is inappropriate. 07
The CA was not impressed by Q’s submissions that a Calderbank offer could not be all-inclusive, that it could not provide costs protection or that, for the judge to have paid more regard to W’s Calderbank offer, would have wrongly elevated Calderbank offers to the same status as part 36 offers. The court found that “in the particular circumstances of the present case” a part 36 offer would have been disproportionate and unjust. It therefore saw no reason why requirements of certainty or the desirability of the clarity which a part 36 offer provides, should prevent a judge from properly analysing the effect of a party’s Calderbank offer. This decision is therefore helpful to defendants faced with an exaggerated claim. A part 36 offer is certain to give costs protection unless the court considers such an award unjust. Therefore, settlement offers under the part 36 regime are still the preferred option but not the only option. A Calderbank offer made outside the part 36 regime is less certain, being reliant on the court’s discretion but it can still be an effective tool as this decision amply demonstrates. Walker Construction (UK) Ltd v Quayside Homes Ltd (1) & Peter Brett Associates LLP [2014] EWCA Civ 93
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Surveyors escape liability for injured pedestrians The history of any relationship is important, particularly one
Appeal Court decision
in a professional negligence context. Whether a professional
The Court of Appeal (CA) disagreed with the trial judge,
owes a duty of care cannot be answered, without first taking into account the particular circumstances in which that professional came to be involved. This helps to determine the proximity of the relationship.
finding that Cluttons did not owe a duty of care to the public or to M. It found that the relationship between Cluttons and M was insufficient to sustain a finding that the surveyors owed a duty of care to the owners or passers-by. The court
The legal concepts of proximity and foreseeability were
emphasised that proximity is an essential component of a
examined in the recent Court of Appeal decision of
duty of care and that foreseeability of harm is not sufficient.
Harrison v Technical Sign Co Ltd. The case considered when a professional surveyor might owe a duty of care to
Legal principles
potential injured parties to take reasonable steps to prevent
The question of whether the surveyors owed a duty of care
foreseeable harm to them.
to the public could not be answered without taking into
Background In June 2007 the fascia on Maison Blanc patisserie’s (M) shopfront in Putney became detached from the building and fell to the pavement, causing serious injuries to two members of the Harrison family who were passing by. The Harrisons brought proceedings against the shop owner M and three other defendants for breach of duty of care. The defendants included Technical Sign Company Limited, which had supplied and fitted the shop sign and Active Commercial Interiors Ltd who had carried out a remodelling of the shopfront, including the fascia, in 2005. The last defendant was the surveyor firm, Cluttons.
account the circumstances in which Cluttons had become involved. Duty of care to the claimants Cluttons had inspected the awning over the shop window for damage in March 2007. They had done so as agents of the landlord of the property, at M’s request. Cluttons’ surveyor had visited the shop for the limited purpose of investigating a complaint that the awning had been damaged by the landlord’s workmen. This is the context in which the relationship between Cluttons and members of the public was to be determined. The surveyor’s role was simply to see whether the shop-front had sustained damage for which their client (the landlord) might be liable, and there
Lower court decision
was not a sufficient degree of proximity between them and
The lower court held that a reasonably competent surveyor
the claimants to give rise to a duty of care.
would have foreseen that a failure on his part to inspect
The trial judge erred in placing too much emphasis on
a shopfront with reasonable skill and care, might cause physical injury to passers-by. The surveyors knew the premises and its close proximity to the road. They would have appreciated that a failure to inspect and advise on a defect in the frontage of the premises could result in potential injury to pedestrians. The judge apportioned 11% of the total liability to the surveyors.
foreseeability of harm. He did so almost to the point of treating it as sufficient to create a relationship of proximity between Cluttons and passers-by. However, foreseeability on its own is not enough. Following the principles set out in Caparo v Dickman (1990), even where physical injury is concerned, the existence of a duty of care requires a relationship of proximity or ‘neighbourhood’.
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Duty of care to Maison Blanc The trial judge’s finding that Cluttons had undertaken a
Harrison & Ors v Technical Sign Co Ltd & Ors [2013]
responsibility to M to inspect the shopfront and report its
EWCA Civ 1569
findings, and in so doing to act with reasonable care and skill, lay at the heart of his analysis. On that basis, M would in effect become a client of Cluttons, at least for that limited purpose. However, the CA noted that the relationship between them was essentially adversarial in nature, not one of a professional adviser and client. Cluttons was approached as agents of the landlord rather than as surveyors, for M to make a claim in respect of damage that it thought had been caused by the landlord’s workmen. M had complained that the awning was not opening properly and had been damaged. Cluttons’ concern was therefore with the awning. There was no evidence to suggest that they had been asked to advise M in relation to the condition of the shopfront in general, or that a relationship of professional adviser and client had come into existence. The nature of the relationship was inconsistent with an assumption of responsibility by Cluttons.
Commentary The decision provides helpful guidance on when a surveyor will owe a duty of care to third parties. It is also a reminder that there are limited circumstances in which the courts will impose on a party a duty of care to someone who is not their client. It is necessary to look closely at the relationship between the professional and those to whom he is alleged to owe a duty of care, to see whether the requirements of foreseeability and proximity exist. The particular circumstances in which Cluttons became involved in this case were not sufficient to satisfy the requirement of proximity. However, the Court of Appeal commented that had Cluttons been asked by M to inspect the awning on its behalf to ensure there was no risk to pedestrians, a sufficient degree of proximity would probably have arisen. The very purpose of the inspection would have been to ensure the safety of the public and an assumption of responsibility may well have arisen.
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