By Helen Evans KC, Anthony Jones, Marie-Claire O’Kane, Jack Steer and William Birch of 4 New Square Chambers.
Overview
The topic that occupied the most court time in 2025 was the involvement of professionals with frauds or other economic wrongdoing. One striking case in the High Court – Vanquis v TMS Legal – identified the potential danger to professionals of claims founded on economic torts. So too did the Supreme Court’s judgment in Bilta v Tradition as regards the potential reach of the Insolvency Act. Furthermore, no less than four Supreme Court cases- Hopcroft, Rukhadze, Hotel Portfolio and Mitchell v Sheikh Mohamed Bin Issa Al Jaber considered the nature and consequence of fiduciary duties.
The courts also had cause to revisit s. 32 of the Limitation Act in numerous contexts, including whether defendants can be taken to have “deliberately concealed” information that claimants could have found from a public record, the position of dissolved corporate claimants and how the Limitation Act 1980 interacts with the Third Parties (Rights Against Insurers) Act 2010. Allied to limitation were the numerous attempts by claimants who had sued the wrong defendant to get round their error- whether under new interpretations of CPR 19.6 or on the basis of novel estoppel or novation arguments.
In the regulatory sphere, two areas came under particular scrutiny. The first was the impact of AI, where the High Court hammered home the need for both individual and firm-level caution in Ayinde v LB Haringey. The second was the sudden attack on the long-understood position that unauthorised fee earners could conduct litigation under the supervision of authorised lawyers in Mazur v Charles Russell Speechlys.
As for valuers, the main case of the year concerned whether it was enough for a claimant merely to prove that the valuation was outside the bracket (Bratt v Jones) whilst the case law on brokers focused on loss of a chance (Norman Hay v Marsh, Watford Community Centre v Gallagher). The one core case on auditors (Coulter v Anderson) reviewed assumption of duties to parties other than the audited entity. Meanwhile, construction professionals made it to the Supreme Court in 2025- with a significant judgment dealing with limitation and contribution claims in URS v BDW.
Last but not least- given its financial importance to claimants and professionals alike, there were two main cases considering coverage. Both dealt with topics overlapping with issues identified above, namely the impact of liabilities novating to an LLP (Leggett v AIG) and the unintended consequences of liquidation (Desai v Wood).
In this review of the year, Helen Evans KC, Anthony Jones, Marie-Claire O’Kane, Jack Steer and William Birch of 4 New Square Chambers explain in more detail what issues have emerged from the 2025 authorities, and what is likely to be in store in the next twelve months.
Solicitors and economic torts
Causing damage by unlawful means
In recent years there have been increased attempts to frame claims against solicitors in innovative ways stemming from economic torts, such as unlawful means conspiracies. 2025 saw one noteworthy such decision in Vanquis v TMS Legal Ltd [2025] EWHC 1599 (KB) demonstrating that these still comparatively unusual causes of action can be deployed on the right facts. [1]
Vanquis was a bank that specialised in “second chance” lending to individuals with low or adverse credit histories. TMS was a firm of solicitors that specialised in bringing financial mis-selling complaints on a no win no fee basis. It submitted around 33,000 complaints to Vanquis alleging that it had provided unaffordable credit and had breached its regulatory obligations. TMS’s complaints submission process was however cursory and once Vanquis replied, it quickly went off to the Financial Ombudsman Service (FOS) on the basis of thin information. Only a small percentage of the complaints raised were upheld either by Vanquis or FOS[2] and none on the basis of information provided by TMS at submission stage alone [para. 26].
Vanquis was forced to incur significant sums investigating and responding to the individual complaints and, after the referral of three complaints to FOS within the same financial year, was thereafter required to pay a referral fee of either £600 or £750 in respect of every subsequent complaint referred to the FOS, regardless of its outcome.
Faced with what it considered to be a large number of obviously unmeritorious complaints and a significant financial outlay in dealing with them, Vanquis brought a claim against TMS alleging that the manner in which TMS had submitted and pursued the complaints had caused it to suffer loss by unlawful means:
- Vanquis alleged that TMS had submitted the complaints recklessly and indiscriminately, in breach of their fiduciary duties to their own clients;
- Vanquis contended that the submission of the unmeritorious complaints interfered with its ability to deal with its customers because, in line with market practice and its regulatory obligations, it could not continue to extend credit to them;
- Vanquis argued that in circumstances where TMS was aware that causing it loss was a “virtually certain consequence” of submitting the complaints, it was to be inferred that its intention or purpose was, at least in part, to cause loss or damage to Vanquis.
Vanquis claimed for the costs of engaging additional staff members to deal with the unmeritorious claims, substantial wasted management time, the referral fees paid to FOS and lost profits [para. 35].
TMS applied to strike out the claim on the basis that, even if Vanquis’ pleaded case was taken at its highest, it could not succeed. This application was rejected by Jay J, who held that TMS had fallen “well short” of persuading him that the claim should be brought to a halt [para. 110]. [3]
Jay J took the view that although the circumstances of the case were novel, Vanquis’ claim did no more than seek to apply established principles to a new factual pattern. He had “no difficulty” in finding that TMS’ alleged breaches of duty to its clients could constitute unlawful means for the purposes of this tort [para. 66]. He also considered that it was “at least arguable that causing a client, present or past, of Vanquis to lodge a complaint of irresponsible lending, undoubtedly a serious allegation, amounts to TMS bringing about an interference with the key relationship”, particularly if the complaint turned out to be without foundation [para. 81].
As to the necessary intention, he considered that the threshold was a high one and nothing less than a specific intent would do. However, Vanquis did not have to prove causing it harm was either a predominant part of TMS’s intent or TMS’s desired end. It was sufficient for it to prove that Vanquis’ loss “was a virtually certain consequence of TMS’s actions and TMS knew this to be the case” [para. 98].
As this was an interlocutory application the judge was not expressing any view on whether Vanquis’ case was right. However, this decision is nonetheless important, as it suggests that this cause of action might well be a viable weapon in the arsenal of prospective defendants to high-volume/bulk claims by consumers or similar. In turn it should give firms of solicitors and claims management companies that run such claims significant pause for thought about their practices.
We note that the SRA has also become so concerned about the way in which such actions have been run by solicitors that they published further Guidance on 28 November 2025 in respect of high-volume consumer claims. It follows that there may well be significant scope for actions to be advanced on similar grounds to Vanquis’ claim in future.
What about fraudulent trading claims?
Another potentially fertile and evolving source of claims against professionals is insolvency legislation. In Bilta (UK) Ltd (in liquidation) v Tradition Financial Services Ltd [2025] UKSC 1, the Supreme Court considered the scope of fraudulent trading liability under s. 213 of the Insolvency Act 1986 (IA 1986).[4] The claim itself related to the conduct of a company that brokered trades. However it is of importance in the context of professional liability, as it addresses the extent to which third parties with no managerial role within a company may nonetheless be exposed where they have knowingly participated in fraudulent trading.
S. 213 of the IA 1986 provides that if in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors, or for any fraudulent purpose, the court may on the application of that company’s liquidator declare that “any persons who were knowingly parties to the carrying on of the business in the manner above-mentioned are to be liable to make such contributions (if any) to the Company’s assets as the Court thinks property.”
A core issue was whether an order could only be made under s. 213 in respect of persons who were “insiders” in the company in question (i.e. those involved in the management or control of the company), or whether that section also applied to entities such as the brokers, who were “outsiders” with no such involvement.
The Supreme Court held that there was nothing that limited s. 213’s application to those who exercised a controlling or managerial function within the companies. Rather, it was wide enough to capture anyone that knowingly[5] participated in a company’s fraudulent trading if their involvement was both active (rather than merely failing to advise the company) and sufficient in duration and substance to constitute participation in the company’s fraudulent business (rather than participation in a single fraudulent transaction, unless that transaction was itself indicative of the carrying on of a fraudulent business).
The significance of this aspect of the court’s decision in a professional liability context is that s. 213 of the IA 1986 may now be seen as potentially fruitful route for an insolvent company to make a recovery against professionals who have found themselves caught up in that company’s fraudulent activities. In practice, this may arise cases involving aggressive or unlawful tax planning structures, where professionals often play a central role in designing and/or implementing arrangements that later unravel into insolvency.
An important further practical point to note about s. 213 claims is that the limitation period is potentially generous, with s. 9 of the Limitation Act 1980 providing that time runs for six years from the date of the company’s winding up order or when the company goes into voluntary liquidation.
It is perhaps apposite that this potential extension of the IA 1986 to professionals has come at a similar time to the coming into force (on 1 September 2025) of s. 199 to 206 and Sched. 13 of the Economic Crime and Corporate Transparency Act 2023, which introduce the new corporate offence of failure to prevent fraud.
Claims against fiduciaries
2025 also saw a spate of cases involving claims against fiduciaries and third parties alleged to have dishonestly assisted those fiduciaries in breaching their fiduciary duties. These are likely to have a significant bearing on solicitors in particular. Four of these cases were determined by the Supreme Court within the space of just nine months and represent an attempt to bring order and consistency to what risked becoming an increasingly unprincipled area of law.
As will be seen below, the court sought to achieve this by endorsing and justifying the continued application of well-established equitable principles, which had emerged from decades of authorities. These decisions make clear that:
- A restrictive approach should be taken when considering whether fiduciary duties are owed outside of the well-established categories of fiduciary relationships, particularly in the context of commercial transactions: Hopcraft v Close Brothers Ltd [2025] UKSC 33. However, Mitchell v Sheikh Mohamed Bin Issa Al Jaber [2025] UKSC 43 then acted as a prompt reminder that fiduciary duties can arise ad hoc where someone has meddled with another’s assets;
- Once the existence of fiduciary duties has been established, the court’s assessment of the liability that will flow from a breach of those duties will be strict and unforgiving (See Ruhkadze v Recovery Partners GP Ltd [2025] UKSC 10 and Hotel Portfolio II UK Ltd v Stevens [2025] UKSC 28).
These cases are essential reading for any litigator seeking to understand the current boundaries of claims against professionals for breach of fiduciary duty or dishonest assistance and, in the paragraphs below, we consider the Supreme Court’s reasoning in detail. We also identify an important issue that frequently arises in breach of fiduciary duty claims that is likely to be the subject of further debate in 2026.
When will fiduciary duties arise?
Hopcraft involved three linked appeals brought by car purchasers who had engaged car dealers as their credit brokers to arrange hire-purchase agreements. The dealers did not fully disclose their commissions.
The central question in determining the dishonest assistance claim brought against the dealers was whether they were in a fiduciary relationship with the purchasers. The Supreme Court undertook a detailed analysis of previous authorities on when and why fiduciary duties arise and endorsed the following principles:
- The authorities had not developed an “all-embracing conceptual basis” for the recognition of fiduciary duties [para. 85]. Instead, judges often assessed the existence of fiduciary duties in the commercial sphere by drawing analogies with well-known types of relationships which were generally assumed to be fiduciary, such as solicitor/client or trustee/beneficiary under an express trust;
- In order to determine whether a fiduciary duty has arisen outside of these well-established relationships, the court must ask whether there has been an “assumption of responsibility by the fiduciary to act exclusively on behalf of the other in the conduct of the other’s affairs…expressly [or]…where the objectively assessed circumstances enable equity to identity such an undertaking” [para. 100];
- In a commercial context, neither the existence of trust and confidence between two parties or the vulnerability of one of those parties to the decision making of the other, are in of themselves matters that are sufficient to give rise to fiduciary duties [para. 108];
- As a general rule, outside of the well-established fiduciary relationships, it is “normally inappropriate to expect a commercial party to subordinate its own interests to those of another commercial party”. This is because in a commercial transaction a party will likely have a personal financial interest, known or apparent to the other party, in bringing that transaction to fruition. It follows that in such a transaction, it will be difficult to demonstrate the undertaking of undivided loyalty and altruism necessary to give rise to fiduciary duties [para. 110].
Applying these principles to the facts, the court unanimously held that the dealers did not owe the purchasers fiduciary duties. They were engaged by the purchasers at arm’s length and were acting in pursuit of their own, separate commercial aims.
Now the Supreme Court has endorsed a restrictive approach to the imposition of fiduciary duties, it is far less likely that relationships outside the well-established categories will be found to be fiduciary in nature. However, not long after Hopcraft, the Supreme Court issued its judgment in Mitchell v Sheikh Mohamed Bin Issa Al Jaber. This judgment shows that people intermeddling with assets they have no right to deal with can find themselves liable as a fiduciary.
The case involved a Sheikh who signed transfer forms for two shares in a company called JJW purportedly on behalf of a company that was in fact in liquidation (meaning that he had no power to do so). The liquidators sued the Sheikh, arguing among other things that he had acted in breach of fiduciary duty. The Supreme Court concluded that he had. Even though he did not in fact have power to execute the share transactions on the part of the company, fiduciary duties can arise ad hoc, including where:
- A person has taken upon himself the administration of property for another; but
- Has not considered the interests of a person to whom a duty is owed [paras. 38-46].
The assessment of liabilities arising from a breach of fiduciary duty
In Ruhkadze and Hotel Portfolio the Supreme Court considered the separate issue of how liability arising from an established breach of fiduciary duty should be assessed and, in particular, the role of causation in that assessment.
The dispute in Rukhadze arose in the context of a lucrative business opportunity to provide asset-recovery services for the family of a Georgian businessman.[6] The claimant company was initially engaged by the family to provide these services but, after a falling out, the defendants resigned from their roles with the claimant and persuaded the family to engage them to provide these services in the claimant’s place.
The issue on appeal to the Supreme Court was whether there should be a departure from the well-established principle that a fiduciary must account for all profits made without the consent of their principal[7]. This is often referred to as the “profit rule”.
The defendants submitted that the profit rule was outdated and unduly punitive [para. 45]. They argued that the court should instead apply a “but-for” causation test, with a fiduciary’s liability to account for a profit only arising to the extent that a profit would not have been made but for the fiduciary’s breach of duty. It would follow from the application of this test that if a fiduciary could show that their principal would have consented to them earning the profit if they had been asked there would be no liability to account for it.
The Supreme Court unanimously refused the appeal (albeit in four judgments, which each reached this conclusion for slightly differing reasons). Lord Briggs gave the leading judgment, in which he rejected the introduction of a “but for” test, holding that unlike a claim for damages, the duty to account was gain based rather than loss based, such that there was no room for the kind of counterfactual analysis contended for by the defendants. Lord Briggs also emphasised that the strictness of the profit rule was necessary to act as a deterrent to any fiduciary minded to give in to temptation and exploit their role for personal gain [para. 58].
In our view Lord Briggs’ emphasis on this deterrent effect is important as it supports the adoption of an unforgiving approach to a fiduciary’s liability once a breach has been established. In such circumstances, there would now appear to be limited prospects of defendant professionals found to have acted in breach of fiduciary duty finding much favour with “fallback arguments” that seek to minimise the consequences of that breach.
Hotel Portfolio then considered the extent of a dishonest assistant’s liability to compensate a principal where a fiduciary had made and then subsequently dissipated a secret profit, and the dishonest assistant both helped to generate that profit and helped to dissipate it.
The key issue for the Supreme Court was what was the appropriate counterfactual to apply when assessing causation in such a claim and, in particular, whether in that assessment the fiduciary’s breach of fiduciary duty in initially earning the secret profit should be separated from his subsequent breach of trust in dissipating that profit. This was significant because if causation was assessed by aggregating these breaches and considering the position that the claimant would have been in had the profit not been earned or later dissipated (i.e. its position “but for” both breaches), the claimant would have suffered no loss, as it would not have earned the profit at all but for the fiduciary’s initial breach. However, if causation was assessed by reference to the subsequent breach of trust alone, the claimant’s loss would be the entire value of the dissipated profit.
Lord Briggs, giving the leading judgment for the majority, held that:
- The institutional constructive trust that equity imposed over unauthorised profits was a “real free-standing trust in its own right”, which gave the beneficiary a proprietary interest in those profits from the moment of their receipt by the trustee [para. 28]. It would therefore be contrary to basic equitable principles if the dissipation of that trust did not give rise to equitable compensation against both the trustee that had dissipated the trust fund and anyone that dishonestly assisted the trustee in that dissipation.
- In assessing the loss caused by the breach of trust arising from that dissipation, it was necessary to consider what the claimant’s position would have been “but for” that breach of trust. The appropriate counterfactual was therefore the position that the claimant would have been in if, once the unauthorised profits had been made, the fiduciary had preserved the trust fund rather than dissipated it [para. 100(2)].
- The general rule was that where gains and losses were made and incurred through multiple breaches of trust, the beneficiary was entitled to the gains and the trustee had to bear the losses unless that would produce a clearly inequitable result. Not only would refusing set-off not be inequitable, allowing it would have the undesirable effect of undermining the integrity and effect of the constructive trust by enabling a dishonest assistant to escape “scot-free” from having to compensate the beneficiary for the loss caused by the dissipation of that trust [para. 100(7)].
Hotel Portfolio builds upon the court’s decision in Ruhkadze in two respects. Firstly, it emphasises the importance of the institutional constructive trust imposed by equity over unauthorised profits, with the court rejecting each of the arguments that would have risked undermining its integrity and effect. Secondly, it reinforces the unforgiving approach that will be taken by the court when assessing the extent of a fiduciary or dishonest assistant’s liability.
A similar approach was also taken in Mitchell v Sheikh Mohamed Bin Issa Al Jaber, where equitable compensation was assessed at the date of breach of fiduciary duty. The Supreme Court emphasised that if a defaulting fiduciary wishes to rely upon a later event as breaking the chain of causation, the burden lies on that fiduciary to prove that later event and to show that it should be treated as having that impact on the analysis of causation [para. 101].
When will disclosure be sufficient to avoid a breach of fiduciary duty?
Whilst each of Hopcraft, Hotel Portfolio and Rukhadze refer to the need for a fiduciary to obtain their principal’s fully informed consent to avoid breaching their fiduciary duties by acting in conflict and/or profiting from their fiduciary relationship, those cases do not address in detail what will amount to sufficient disclosure to obtain that consent.
For example, in Hopcraft, the Supreme Court was clear that in the context of secret commissions, it was not sufficient for a fiduciary to merely place their principal on inquiry by disclosing that a commission might be earned and that the burden was on the fiduciary to prove that full disclosure was made of “all material facts” [para. 211]. [8] However, the court did not engage in any detailed analysis of the kind of information that might ordinarily constitute a “material fact” that must be disclosed by a fiduciary, simply stating that this will depend on the circumstances of the case. Helpfully, we can expect further guidance on this issue in 2026, with the Court of Appeal’s consideration of the appeal in GI Globinvestment Ltd & Ors v XY ERS UK Ltd & Ors.[9]
Credit for benefits / application of loss of a chance deduction
Barrowfen Properties Ltd v Patel & Ors [2025] EWCA Civ 39 considered two issues that arise across the professions- namely the circumstances in which credit must be given for benefits received against any damages award, and how this interplays with loss of a chance deduction in circumstances involving cumulative counterfactuals.[10]
The issues arose in the context of an award of equitable compensation for breach of fiduciary duty against one defendant and damages for negligence against another. The defendants contended that credit should be given for the increased capital value of a revised development scheme. A further issue arose about the stage at which a loss of a chance discount should be applied.
The claimant contended that the Judge should have assessed the benefit on the basis that it intended to continue to own a property, in accordance with its evidence. As such, it asserted that the Judge should either not have taken into account the increased value of the future rentals which the Property could generate at all, or should have also taken into account the future finance costs which the claimant would incur over the lifetime of holding the property (which would eliminate the increased developer’s profit).
Snowden LJ considered that the Judge rightly recognised that by completing the revised scheme, the claimant’s property was capable of generating a greater level of rental income and capital sums from sale of the residential units than would otherwise have been the case. The Judge was right to consider that this was a benefit which was caused by the steps taken in mitigation and was required to be brought into account [paras. 90-93].
However it was not open to the claimant to try and negate this by bringing its financing costs into account. Its continued ownership of the property was not part of a continuous course of conduct caused by the defendant and it therefore could not visit the adverse consequences of its own commercial decisions on the defendant [para. 103].
The Court of Appeal’s decision is arguably somewhat out of step with the Supreme Court’s 2025 decisions on fiduciary duties described above. The claimant sought permission to appeal to the Supreme Court, which was refused in December 2025.
In addition to the above, one of the defendants appealed to the Court of Appeal on the ground that the Judge had incorrectly deducted the credit before applying the loss of a chance percentage. The claimant contested this, relying on Hartle v Laceys [1999] Lloyd’s Rep PN 315 (which it said had similar facts). The Court of Appeal rejected the defendant’s appeal. The two cumulative counterfactuals applied by the Judge amounted to a 92% chance that the claimant would have carried out the original development scheme. The court held that it was, therefore, only right to bring 92% of the £2.5m credit for adopting a different scheme into account [paras. 123-124]. Permission to appeal on this aspect of the case was also refused by the Supreme Court.
No loss
In a judgment handed down on 5 January 2026, the Court of Appeal rejected the appeal against the judgment of Sheldon J in Afan Valley v Lupton Fawcett LLP [2026] EWCA Civ 2. The case concerned the defendant’s alleged failure to identify and advise on a long-leasehold investment being a Collective Investment Scheme (“CIS”) under the Financial Services and Markets Act 2000. The claimants said that if the advice had been given, the schemes would not have been promoted and no losses would have been made. The defendant applied to strike the claim out on the basis that it was not the investments themselves that cause the loss: it was the fact that they were operated as a “Ponzi” Scheme. They ran what was called the “£ in £” argument: namely that by receiving (say) £100,000 and becoming liable to pay £100,000 back to investors, the SPVs were no worse off.
The Court of Appeal ultimately agreed. The losses actually suffered were not matters for which the defendant was responsible. The closest the claimant came to showing recoverable loss was by reference to an obligation to pay compensation under FSMA. However that had not been properly pleaded and in any event would not have led to an award of more than the investor had paid out [para. 92].
The case is yet another cautionary tale about “but for” causation being inadequate to found a claim. There has to be a sufficient link between the professional’s error and the loss.
Limitation
Escaping problems by relying on a solicitor’s duty to advise on its own negligence
In Evans v Hughes Fowler Carruthers Ltd [2025] EWHC 481 (Ch) the court considered another aspect of a solicitor’s duty: namely the obligation to identify and notify a client about the solicitor’s own negligence.[11] The case arose out of divorce proceedings before a judge who had made critical remarks about a firm of solicitors in the context of his own personal dispute. The solicitors did not tell their client about these remarks or the fact that there was a special procedure in place which allowed cases involving the solicitors to be heard by other judges. The result was that costs were wasted.
The client later sued the solicitors. In order to assist with her limitation problems, she alleged that the firm had been under had a duty to advise her on their own negligence. There was a dispute over what the solicitors had to realise in order to trigger such a duty. On appeal, Adam Johnson J held that it was enough if the solicitors appreciated that there was a “significant risk that their earlier advice was negligent” [paras. 43-44]. The reference to “significant risk” was important because it makes clear that a fanciful or spurious risk of earlier negligence is not enough to trigger the duty.[12]
S. 32 of the Limitation Act 1980
Not far from the Evans v Hughes Fowler Carruthers type of argument is the question of deliberate concealment- which was repeatedly before the Supreme Court in 2023 (in cases such Canada Square Operations Ltd v Potter [2023] UKSC 41).
DLA Piper UK LLP v Henshaws Farming LLP & Ors [2025] EWHC 542 (Ch) concerned a claim brought by a solicitor’s firm arising out of a transaction in which it had acted for trustees who were selling land. The defendants applied to strike out on the basis that the claim was time-barred and that the assignment of the causes of action to DLA was susceptible to attack.
On the limitation point, the claimant contended that the 2015 transfer had been deliberately concealed from the trustees. The defendants pointed to publicly available Land Registry documents which they said the trustees could have discovered. Master Clark considered that in determining whether the defendants concealed the 2015 transfer, the focus must be on what they did or omitted to do. Putting something on a public register does not, in the natural sense of the word, amount to informing, telling or disclosing it to a claimant. The fact that the 2015 transfer was discoverable by searching the register was not relevant to whether the defendants concealed it. They did not disclose it to the trustees and that was enough to provide the claimants with a s. 32 argument that time had stopped running.
S. 32 also arose in Bilta v Tradition– in respect of dishonest assistance claims run alongside the s. 213 IA claim. However the question that vexed the court was not about what the defendant had done or failed to do but about whether the claimants could with reasonable diligence have discovered the fraud. The claimant companies had been dissolved and subsequently restored to the register, with the effect that s. 1032 of the Companies Act 2006 deemed them to have continued in existence during the period of their dissolution. The companies argued that this deeming provision imported the conclusion that they had only had a bare existence during the period when they were dissolved such that time did not run against them as they did not have any directors or officers in place that could have reasonably discovered the fraud. The Supreme Court disagreed, holding that s. 1032 did not deem anything in particular about the company during the period it was dissolved [paras. 80-82].
It remained a question of fact whether the claimant could with reasonable diligence have discovered the fraud- and one which the claimant had to prove on the balance of probabilities [para. 83]. Since the companies had adduced no evidence on the point, they lost. As it is not uncommon for claims against professionals to be brought by restored companies and for those claims to give rise to limitation issues, this aspect of the court’s decision is a helpful guide to the burden on a claimant.
Limitation and insurers
The final relevant area where limitation arose for determination in 2025 was in respect of claims brought under the Third Parties (Rights Against Insurers) Act 2010 (The 2010 Act).
In October 2025, Leech J gave judgment in Transworld Payment Solutions v First Curacao International Bank NV [2025] EWHC 2480 (Ch), an involved case brought by the liquidators of Transworld alleging that a Mr John Deuss and the bank he owned had dishonestly sought to enmesh Transworld in a missing trader fraud on HMRC. Various points on limitation arose in the course of the 430 page judgment, including confirmation that the Rolling Stock principle that limitation is suspended upon the entry of a company into liquidation does not apply to foreign insolvency processes not analogous to the liquidation of an English company under the Insolvency Act 1986 ([paras. 95-96] and [511].
The decision in Transworld also touched on a current controversy which arises frequently in the professional liability context and has no satisfactory answer in the case law, namely whether or not the suspensory effect of an insolvency has an impact on claims brought in respect of that insolvent entity’s breach directly against insurers under the 2010 Act. The answer for claims brought under the prior Third Parties (Rights Against Insurers) Act 1930 had been settled by the Court of Appeal in Financial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd [2006] QB 808: time ceases to run for the purposes of a claim against insurers under that legislation.
But given the different approach of the 2010 Act – creating a new direct cause of action as between the wronged third party and the insurer, without the necessity of involving the insolvent wrongdoer as a party at all – there is room for argument over whether the insolvency of the non-party insured should have any procedural effect on limitation. There had been a view, strongly expressed by the authors of Colinvaux’s Law of Insurance, that the appropriate course is simply to translate the Larnell approach to the 2010 Act regime, meaning that the insolvency of the insured necessarily stops the running of time (and essentially removing most limitation defences from 2010 Act claims).[13] But a different approach – treating 2010 Act claims as outside the liquidation since, by definition, they arise only after and because of that insolvency rather than prior to it – found favour in the only claim which has actually considered the point – the decision of HHJ Gosnell in the County Court case of Rashid v Direct Savings (Scotland) Ltd and Aviva Insurance Ltd (Unreported, 16 August 2022) (CC Leeds) [2022] 8 WLUK 108.
In Transworld, Leech J referred obiter to 2010 Act claims as falling outside the liquidation, whereas 1930 Act claims (as in Larnell) fall within the liquidation. Had the point been before him it seems that Leech J would have affirmed the approach in Rashid. But against the weight of Colinvaux and twenty years of the Larnell approach, this point seems destined to be litigated further.
Wrong defendant?
We turn now to problem often entwined with limitation – namely how to escape from the consequences of suing the wrong defendant.
For many years the courts have proceeded on the sole basis that claimants need to sue a professional defendant entity – e.g. a partnership or LLP – in the form that that existed when their cause of action accrued.[14] However all too often, claimants sue the current entity in the mistaken belief that “successor practice” arrangements in professional liability cover provides them with a direct cause of action against the successor practice. Three such cases have been thrown up in the past couple of years. [15]
Where limitation has expired, naming the wrong defendant can cause serious difficulty. This is because CPR 19.6 and s. 35 of the Limitation Act 1980 only permit the substitution of a new defendant where it is “necessary”. Cases have tended to focus on CPR 19.6(3)(a), which permits substitution where there has been a “mistake”. However this term has in the past received a restrictive interpretation, in particular in Insight Investments v Kingston Smith [2012] EWHC 3644. This held that a claimant can substitute a new defendant under CPR 19.6(3)(a) where it sued the successor practice in the mistaken belief that it provided the services, but not where it knew that the original practice provided the services but mistakenly thought that the successor practice was liable for them.
Attempts to circumvent this problem have come from two core sources in 2025.
The first was by attacking the boundaries of the Insight decision and/or relying on different parts of CPR 19.6. In Office Properties Ltd v Adcamp LLP [2025] 1 WLR 2287 the court permitted substitution in circumstances where although the Particulars of Claim identified Adcamp LLP as the successor practice to Pitmans LLP it did not found its action on the contention that Adcamp was liable as a successor practice. The Deputy Judge (David Halpern KC) concluded that the claimant was not trying to change the nature of the case and held that the substitution was permissible under CPR 19.6(3)(b) (which permits substitution where a claim cannot be carried on against the original party unless the new party is added or substituted, but which is confined to the same claim)[paras. 42-44]. An appeal is due to be heard in Office Properties in mid-January 2026. [16]
The second is to rely on a broader attack as why the successor firm is said to be liable. In Lee v BDB Pitmans LLP [2025] EWHC 2881 (Ch), the claimants based their case on an implied novation of Pitmans’ liability (based on conduct), estoppel arguments and/or the doctrine of acknowledgment. The defendant applied for summary judgment and the claimant also made a fall back application to substitute Pitmans as a defendant pursuant to Office Properties.
The Deputy Judge (Caroline Shea KC) held that the novation, estoppel and acknowledgment points were adequate to defeat the defendant’s summary judgment application. However she also made an interim declaration that even if the claimant did not win on these points at trial, Pitmans would still be substituted as defendant (although that order could of course be affected by the outcome in the Office Properties appeal)[para. 109].
One of the most striking features of Lee v BDB Pitmans is the reliance on novation by conduct, based on a merger agreement and statements in accounts about the transfer of Pitmans’ liabilities [paras. 25-50]. This approach has not come about in isolation: earlier in 2025 the Scottish case of Andrew Marr International Ltd v Mackinnons [2025] SLT 295 had recognised a tripartite novation of a retainer from an old practice to the new defendant entity merely from the fact the claimant had chosen to sue the new entity. [17] However, whether these novation arguments actually work requires further scrutiny e.g. at a full trial. Furthermore they are not without their pitfalls: relying on novation arguments can cause coverage problems as explained further below[18]. We therefore consider that this area is likely to attract more debate in 2026 and beyond.
In the costs context, suing the wrong defendant was a problem that the claimant’s lawyers were not able to escape in Robinson v Air Compressors & Tool Limited & Ors [2025] EWHC 1469 (KB). There, Master Thornett did not hesitate to make a wasted costs order on the basis that the claimant’s solicitors’ decision to continue asbestos exposure at work claims against two defendant companies which had never employed the alleged victim of the exposure was without explanation or justification. Even the question of privilege- which is often an impediment to obtaining a wasted costs order- did not assist the claimant’s solicitors. Master Thornett considered that irrespective of what advice the claimant’s solicitors may have given or what instructions they had received, no reasonable practitioner would have done nothing for an extended period and then discontinued just before the hearing of the defendants’ strike out application [para. 59].
Hot topics in lawyers’ regulation
Two cases have dominated the headlines in lawyers’ regulation, namely AI and who is authorised to conduct litigation.
AI – a hazard or a help?
The issue of lawyers and AI came to prominence in the conjoined cases of Ayinde v LB Haringey and Al Haroun v Qatar National Bank [2025] EWHC 1383. The case focused on a particular potential pitfall of using AI for legal research, namely “hallucinations”. At [para. 6] the Divisional Court stated that searches on freely available AI tools can:
“produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may turn out to be entirely incorrect. The responses may make confident assertions that are simply untrue. They may cite sources that do not exist”.
Although the first cases to come before the courts happened to relate to non-existent authorities, the use of AI poses other potential dangers, including misusing client information, cutting corners and thwarting procedural rules. [19]
It is not easy for professionals or their regulators to keep up with the rapid pace of change in AI. However the court’s observations in Ayinde were not merely a warning to lawyers using AI for their own research. They were also aimed at those in charge of training and supervision, as follows [para. 9]:
“There are serious implications for the administration of justice and public confidence in the justice system if artificial intelligence is misused. In those circumstances, practical and effective measures must now be taken by those within the legal profession with individual leadership responsibilities (such as heads of chambers and managing partners) and by those with the responsibility for regulating the provision of legal services”.
The resources available to those charged with developing policies and procedures have recently been updated. New materials include the Judicial Guidance on AI published in October 2025 and the Bar Council’s refreshed Guidance dated November 2025. October 2025 also saw a further judgment against a lawyer, suggesting that even legal software is not infallible. In Ndariyumvire v Birmingham City University (County Court), an application cited two non-existent authorities. The solicitor who made the application contended that an administration team at his firm had accidentally filed a draft document [para. 15]. He said that the document itself had not come from a generic tool (such as Chat GPT) but been generated by “LEAP Software” which had an in-built function that enabled it to suggest case law. The court made a wasted costs order in relation to what had gone wrong.
Conducting litigation
In September 2025 Sheldon J handed down a judgment which had the effect of creating turmoil in numerous firms/practices. In Mazur v Charles Russell Speechlys [2025] EWHC 2341, Sheldon J held that the Legal Services Act 2007 (“LSA 2007”) prevents unauthorised people from performing work that would amount to the conduct of litigation even under the supervision of an authorised person. [20] By s. 14 of the LSA 2007, carrying on a reserved legal activity (such as conducting litigation) without authorisation is a criminal offence.
The case started with a costs dispute between a Ms Mazur and Mr Stuart on the one hand and CRS on the other. CRS instructed another firm to recover some unpaid fees. A Mr Middleton of that other firm signed the Particulars of Claim. Mr Middleton was not himself authorised, but was supervised by a solicitor.
Ms Mazur and Mr Stuart sought a direction that Mr Middleton should be replaced with a solicitor. The County Court Judge declined this, and the matter came before Sheldon J on appeal. He reviewed the provisions relating to reserved activities under the LSA 2007 and came to the conclusion that while an unauthorised person may assist an authorised person conducting litigation, they may not conduct litigation themselves under supervision. It is fair to say that this outcome caused considerable consternation, the Law Society Gazette describing it as “seismic”.
The matter is due to be heard by the Court of Appeal by way of second appeal initiated by CILEX in late February 2026. Given the elusive nature of what constitutes “conducting litigation” in the first place, combined with the difficulty in drawing a line between merely assisting and carrying out work under supervision, Sheldon J’s judgment has created significant uncertainty. It is also at odds with how the legal industry has operated in practice, both before and after the LSA 2007 came into force. The outcome will be closely watched.
Other professionals
2025’s cases concerning professionals other than lawyers have largely reaffirmed orthodox positions which had come under attack.
Valuers
We covered the first instance decision in Bratt v Jones [2024] PNLR 20 in last year’s update. It concerned a jointly instructed expert alleged to have undervalued some development land. The Judge held that for a valuer to be negligent it was necessary to establish both that (i) they had acted otherwise than in accordance with practices regarded as acceptable by a respectable body of opinion in the profession and (ii) the valuation reached was outside the acceptable bracket. In 2025 the case reached the Court of Appeal. The claimant argued that if the valuation was outside the bracket it was not necessary to prove that the valuer had fallen short; and instead it was for the valuer to prove the opposite.
In a judgment delivered by Sir Geoffrey Vos MR (Bratt v Jones [2025] 4 WLR 59) the Court of Appeal unanimously rejected that case. It stated at [para. 4] that “whilst a valuation outside the acceptable bracket is an indication that something may have gone wrong, a claim in negligence or breach of contract against a valuer cannot succeed unless the court is satisfied that the valuer has failed to exercise due and proper professional skill, care and diligence in undertaking the valuation”. The idea that a valuation outside of the reasonable bracket might shift some evidential (as opposed to legal) burden was described as unhelpful at [para 46].
Insurance brokers
2025 saw two contrasting decisions on the issue of proving causation- and in particular as to the role of “loss of a chance” reasoning.
Norman Hay Plc v Marsh Ltd reached the Court of Appeal in 2025 (see [2025] EWCA Civ 58). It concerned an appeal against a decision refusing to strike out a professional liability claim arising from insurance brokers’ alleged failure to obtain adequate car hire insurance for a company. An employee of the claimant group had hired a car and was involved in an accident. The other driver sued various entities including the claimant. The claimant settled that action then pursued its brokers for failing to arrange adequate cover. The core issue was whether the claimant had to prove on the balance of probabilities that it had been liable to the other party to the collision, and that the hypothetical cover that the brokers should have arranged would have covered that liability. Doubt had been introduced into brokers’ cases about the role of loss of a chance analysis by Dalamd Ltd v Butterworth Spengler Commercial Ltd [2019] PNLR 6.
At first instance in Norman Hay, Picken J had held that it was not necessary to prove these matters on a balance of probability basis and that “there is scope for a broader inquiry as to what, had the broker not been negligent, would have happened in the event that the claimant … had presented a claim to its putative insurer. That necessarily requires there to be an assessment of the chance that the claim under the putative policy would have been met.” The Court of Appeal agreed with Picken J. Males LJ observed at [para 28] that “a claim against a broker for negligently failing to arrange a policy at all” is different to a case pursued against insurers themselves.
An interesting point of contrast to Norman Hay was Watford Community Centre v Gallagher [2025] EWHC 743. There, an insured claimed damages from a broker for failing make or advise it to make a timely notification of a data breach to one of three available policies of insurance. Unlike Norman Hay, the claimant had cover but was unable to use it.
The broker admitted negligence but denied that its breach of duty caused any loss, because each of the three policies contained double insurance provisions. The broker maintained had these had the effect of limiting the total indemnity recoverable by the claimant to a sum less than that which the relevant insurers had in the event agreed to pay.
The court treated the issue as being whether, on a proper construction, the double insurance provisions had the effect that even properly notified insurers could have stood on their strict rights and not provided any greater indemnity than that already provided.
The Judge decided, in favour of the insured, that the double insurance provisions did not have that effect. He was guided by a principle of construction developed by Rowlatt J in Weddell v Road Transport & General Insurance Co. [1932] 2 KB 563 preventing insurance policies from effectively cancelling each other out.
Since the issue was one of policy construction in circumstances where the insured actually had cover and the terms were known, the matter was decided on a “win or lose” basis. At para. 67 the court observed as follows:
“…if the insurers would have been legally obliged to indemnify the insured that is… ‘the end of the matter’ and the insured is entitled to recover damages from the brokers in an amount equivalent to that which the insurers would have been legally liable to pay to the insured. The factual and counter-factual enquiries as to what would or might have happened only arise for consideration if the insurer’s legal obligations to the insured are in doubt. This is because, if it is clear that the insurer would have been legally liable to the insured but for the broker’s negligence, there is no need to apply any discount to reflect any uncertainty in recovery. There is no risk of insolvency or the like in this case and none has been suggested.”
These two cases therefore demonstrate that even though “loss of a chance” reasoning has been reintroduced to brokers’ claims, there are some matters where it will not in fact arise on the facts.
Accountants and auditors
Coulter v Anderson [2025] BCC 717 was a Scottish claim by a former director of a company challenging the basis on which his shares had been valued for the purposes of a compulsory purchase of them by remaining members of the company. In accordance with the articles of association, the share price was to be at a fair value determined by the company’s auditors.
The question of when auditors owe duties to parties other than the audited company itself is a controversial one which rears its head again and again. The most recent English case is Amathus Drinks in 2023 where the court refused to strike out a claim where incoming shareholders had plausible arguments that the auditors had assumed a duty to them.
A similar outcome prevailed in Coulter– which again reviewed the position at the strike out stage. In Coulter, the auditors sought to deny that they owed the claimant any duty, on the basis that the claimant had failed to plead reliance as a component part of a claim based on assumption of responsibility. Lord Bridge however explained at [para. 24] that “we are not, in the present case, concerned with a negligent misrepresentation, but with an allegedly negligently-prepared certificate of value which conclusively fixed the price at which the pursuer’s shares were to be sold, in circumstances where he had no choice other than to sell his shares at that price, all of which the defenders admittedly knew, and where they nonetheless agreed to value the shares”. So any requirement for reliance was satisfied. [21]
Also of note was the operation and relevance of a limitation of liability clause- a point often arises in cases where liabilities have been assumed rather than agreed by contract. The agreement between the auditors and the company contained a limitation of liability clause of £45,000. Whilst the claimant was not a party to that contract, its existence was said to be relevant to the duty of care owed by the accountants. As Lord Bridge stated at [para. 32] “where a duty of care has its genesis in a contract between the person by whom the duty is owed and a third party, the existence in that contract of a clause excluding or limiting liability is, at the very least, a relevant factor in determining the scope of the duty of care.” [22]
Construction professions and contribution claims
Finally we turn to construction professionals. In URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21 the Supreme Court considered various aspects of an appeal in relation to a construction dispute, including an issue relating to contribution claims, which is of broader application to professional liability claims generally beyond the construction context. [23]
The claimant developer (BDW) sought damages in respect of structural design services for two sets of building developments subsequently discovered to have defects during post-Grenfell Tower investigations. BDW carried out remedial work at various developments at its own expense. BDW sued the designer and was later granted permission to amend its claim under the new Building Safety Act 2022 (which had the effect of extending limitation retrospectively for certain claims) as well as to add a new cause of action for a contribution pursuant to the Civil Liability (Contribution) Act 1978 (“the Contribution Act”). The developer objected and the matter went all the way to the Supreme Court.
Any Contribution Claim requires the party seeking contribution to have been liable for the same damage as the party from whom such a contribution is sought. Here, the key issue was whether the developer was entitled to bring a claim against the designer notwithstanding that there had been no judgment or settlement between the claimant and any third party relating to the remedial work, and no such third party had ever even asserted any claim against the developer.
The developer contended that that the right to recover contribution arises as soon as damage is suffered by a third party for which both defendants are liable, even if the that third party has not claimed, let alone recovered, compensation in respect of the damage. The designer, in contrast, contended that the right to recover contribution did not arise unless and until the existence and amount of the first defendant’s liability to the third party had been ascertained by a judgment, an admission of liability or a settlement.
Lord Leggatt considered that both contentions were wrong and that the true legal position was somewhere in between. On the correct interpretation of the Contribution Act, the right of one defendant to recover contribution from another arises when damage has been suffered by a third party to which both are each liable and the first defendant has paid or been ordered or agreed to pay compensation to the claimant[24]. There is no further requirement that, before an action can be brought, there must have been a judgment, admission or settlement involving the first defendant.
This decision will be of interest to professional liability practitioners in that the judgment determines that the right to contribution arises in circumstances more expansive than simply a judgment or settlement agreement. It can be triggered by an agreement to pay or by making a payment in kind, such as undertaking remedial works. A careful eye must accordingly be kept on when the two year limitation period begins to run under the Contribution Act, particularly in relation to payments in kind, which are likely to be less clear-cut than straightforward monetary payments.
Coverage
No look at recent developments in professional liability is complete without considering concurrent developments in insurance coverage, since for many claimants and defendant professionals the availability of cover can be of greater import than arguments over liability 2025’s two main cases grappled with the interplay between insurance cover and the transfer of liabilities between professional entities and/or the impact of liquidation.
In February 2025, the High Court handed down judgment in the preliminary issue trial in Leggett and ors v AIG [2025] EWHC 278 (Comm). The issue was whether AIG, the insurer of the insolvent firm Giambrone Law LLP, was liable under the Third Parties (Rights Against Insurers 1930) to indemnify clients who had obtained judgment against the LLP, which was the successor practice to a previous unincorporated partnership (“the Firm”). A whole strand of the case dealt with how the transfer of the Firm’s business to the LLP gave rise, on the facts, to a novation also of the Firm’s liabilities. But, importantly, the judge (Recorder Janet Bignell KC) did not elide the question of novated liabilities with transferred insurance cover. Instead, the LLP’s insurance policy was to be read on its own terms: AIG’s cover was for the LLP’s performance of, or failure to perform, any legal services within the meaning of the policy, rather than being cover for all the LLP’s liabilities, however arising (by the LLP’s own breach, or by their novation of pre-existing liabilities) [paras. 137-139].
In July the Court of Appeal handed down judgment on the appeal in Desai v Wood [2025] EWCA Civ 906, where an insurer had elected, shortly before their insured entered into insolvency, to pay the (modest) limit of indemnity to the insured (an interior designer/project manager) and release themselves from any further obligation to indemnify or defend proceedings, handing the matter over to the insured. The insured promptly entered into liquidation but, by virtue of the previous payment, there were no extant rights under the policy to be transferred under the 2010 Act. The former clients argued that there must be some form of implied term, implied either into the retainer with the interior designer or into the insurance policy, to ring-fence or protect the indemnity sum in favour of client claims. Instead, the trial judge had held that the funds merely formed part of the assets of the company in liquidation, available to all creditors in the usual course. The Court of Appeal upheld that decision, dismissing the appeal on the basis that the exacting test for the implication of terms had not been met. The case might again be read as part of a trend of fidelity to contractual, and policy, terms, despite what might seem sympathetic arguments in favour of disappointed claimants.
Practitioners will also be keeping an eye out for the judgment expected in 2026 in the AmTrust v Endurance Worldwide case concerning the collapse of the litigation funding scheme to support cavity wall and mortgage claims run en masse by high street firms. In June 2025 the Court of Appeal granted Endurance’s appeal against the judge’s refusal to order disclosure of documents relating to the insured’s disclosure of the scheme to insurers (see [2025] EWCA Civ 755). A three-week preliminary issues trial concluded in December 2025, covering issues including the extent of the frequently-encountered “trading debts/liabilities” exclusion in professional indemnity cover. The point is that, where litigation funders are involved in providing the means for solicitors to pursue claims on a large scale, their involvement is “behind the scenes” but in effect it is they (not the titular client of the solicitors) who bears the costs brunt of solicitor mismanagement of claims.
Conclusions/looking forward
2025 turned out to be something of a bumper year for claims affecting professionals – particularly as regards economic torts and the role and liability of fiduciaries – with more expected in 2026. It also saw the first AI-related judgments. So far these have focused on AI from a professional conduct perspective but looking ahead, it is easy to anticipate both negligence claims arising from both the misuse and failure to use AI.
2026 will also see the Court of Appeal’s determination of CILEX’s appeal in Mazur, and in addition to Amtrust v Endurance, judgment is also expected in the auditors’ negligence case of NMC v EY, there having been a hiatus of a few years since the most recent spate of significant audit negligence claims.
Finally, the hearing of the appeal in Office Properties should take shortly– potentially clarifying the developing area of law relating to “suing the wrong defendant”.
Webinars
There will be two webinars on the topics explored in this article, presented by the authors, at 1pm on Tuesday 20 January 2026 and 4.30pm on Wednesday 21 January 2026. The same webinar will be presented on each occasion- there are two alternative dates.
For information about how to book a place to one of the webinars, email events@4newsquare.com or follow the link to 4 New Square Chambers- Professional Liability and Coverage Webinar 2026.
© Helen Evans KC, Anthony Jones, Marie-Claire O’Kane, Jack Steer and William Birch of 4 New Square Chambers
This article is not intended as a substitute for legal advice. Advice about a given set of facts should always be taken.
Information about the authors
Helen Evans KC is a silk specialising in professional liability, regulatory, contempt of court, fraud and insurance coverage work. Her highlights in 2025 included being nominated as Silk of the Year for both Professional Negligence and Professional Disciplinary work by Chambers & Partners and the Legal 500 respectively and representing the barrister defendant in the Ayinde case. Helen is also co-editor of the solicitors’ and barristers’ negligence chapters in Jackson & Powell on Professional Liability and Chair of the Appeal Committee of the Chartered Institute of Management Accountants. Email: hm.evans@4newsquare.com
Anthony Jones was called in 2011 and is ranked by Chambers & Partners and the Legal 500 as an outstanding junior in six practice areas: (a) commercial law; (b) insurance and reinsurance; (c) professional negligence; (d) international human rights law; (e) public international law; and (f) administrative law and human rights. Anthony is the author of the defences chapter in Jackson & Powell on Professional Liability. Email: a.jones@4newsquare.com
Marie-Claire O’Kane was called in 2013. She specialises in commercial litigation, including claims against financial and other professionals, insurance and civil fraud. She is an Editor of Jackson & Powell on Professional Liability and is ranked as a Leading Junior in Commercial Litigation by the Legal 500, 2025. Email: m.okane@4newsquare.com
Jack Steer is a leading junior with a broad practice, specialising in professional negligence, commercial litigation and insurance disputes. Recognised by both Chambers & Partners and Legal 500, he is frequently described as a “future star” of the Bar. Jack regularly appears unled in complex, document-heavy High Court proceedings, often involving allegations of fraud, and is also instructed on heavyweight litigation, including appeals to the Court of Appeal and Supreme Court. Email j.steer@4newsquare.com
William Birch was called in 2021. He specialises in commercial litigation, professional liability, regulatory, and insurance work. Email: w.birch@4newsquare.com
[1]See also Lakatamia Shipping Co Ltd v Su [2025] EWCA Civ 1389, which involved the Court of Appeal reviewing a claim for unlawful means conspiracy/inducing a breach of a judgment on esoteric facts. The Court of Appeal overturned the trial judge’s decision on the unlawful means conspiracy claim, deciding that he had inappositely allowed a defence to contempt liability to act as a defence to a conspiracy [para. 51]. It declined to determine the alternative claim based on inducing a breach of a judgment, noting that this was a novel and developing area of law, whose boundaries should be determined in a case in which those issues are critical.
[2] Of the 33,000 odd complaints, 12,250 were considered by FOS. Most of these were however rejected, withdrawn or closed. Only 6.3% were upheld by Vanquis and only 9.9% were upheld by FOS [para. 26].
[3] TMS applied for permission to appeal Jay J’s judgment, which was refused by the Court of Appeal on paper on 3rd December 2025.
[4] See the summary of this case by Jamie Smith KC and Charlotte Baker entitled “Bilta v Tradition- fraudulent trading claims against professionals: a new avenue of recovery?”
[5] For the avoidance of doubt, “knowing” participation means dishonest participation in the Ivey v Genting sense (see [para. 36] of Bilta).
[6] See the article by David Halpern KC on the Rukhadze case entitled “The No Profit Rule and But For Causation”.
[7] See Boardman v Phipps [1966] UKHL 2.
[8] In reaching this conclusion, the Supreme Court overturned the Court of Appeal’s decision in Hurstanger Ltd v Wilson [2007] EWCA Civ 299.
[9] The first instance judgment for which can be found at [2025] EWHC 740 (Comm).
[10] See the article about this case by Shail Patel KC and John Williams.
[11] See the review of this area of law by Hugh Evans entitled “The Solicitors’ Duty to advise on their own Negligence”.
[12] Adam Johnson J also emphasised that the duty is not confined to cases where the question is whether something which happens later is enough to prompt the original advice or conduct to be reconsidered [para. 51].
[13] Colinvaux’s Law of Insurance (14th ed, 2025), [para. 22-039].
[14] Brooks v AH Brooks [2011] 3 All ER.
[15] Two are described in detail in this article. In addition, in 2024 Bacon J decided The Tintometer v Pitmans and Adcamp LLP [2024] EWHC 370 (Ch). There, Pitmans had been added to the Claim Form after issue but before service but in circumstances where both parties had previously proceeded on the mistaken basis that Adcamp had been the party instructed by the claimant. Bacon J permitted the substitution.
[16] According to the Court of Appeal’s Case Tracker.
[17] This is not cited in the Lee v BDB Pitmans judgment however.
[18] See the discussion about Leggett v AIG.
[19] See the article “Are AI and Lawyers a Good Mix?” by Helen Evans KC, Ben Smiley and Melody Hadfield.
[20] See the article about this case by Matthew Waszak, Kelly Yu and Nicholas West entitled “Mazur: a brave new world for the solicitor business model?”
[21] The decision was consistent with the assumption of responsibility analysis in Killick and another v PriceWaterhouseCoopers [2001] PNLR 1 in which Neuberger J (as he then was) held that a duty of care was owed by an expert valuer of shares to a third party shareholder, notwithstanding that the valuer had been appointed by the company. In both cases, the submission that there was no reliance failed.
[22] Despite all of the debate explained above, the claim was ultimately dismissed as there was no adequate plea that the auditors in preparing the valuation had acted negligently.
[23] See the article by Sian Mirchandani and Douglas James entitled “URS v BDW: what does it mean for scope of duty and contribution in professional liability?”
[24] Including a payment in kind.
