Professional liability update: 2020 year in review
The core issues considered in the most important professional negligence cases of 2020 cover five main themes, as follows:
- The practical consequences of the broad policy-based test laid down in recent years to determine when a claimant’s claim is “tainted” by his wrongdoing;
- When it is an abuse of process to attack the outcome of previous proceedings in a subsequent claim;
- Challenges posed by the separate legal personalities of a company and its shareholders, creditors or other associates;
- The need for more certainty in the area of vicarious liability; and
- The extent to which the filtering mechanism based on scope of duty can cut down damages in a claim framed in breach of fiduciary duty rather than negligence.
In this review of the year, Helen Evans, Ben Smiley, Pippa Manby, and Ian McDonald of 4 New Square explain what the 2020 cases tell us, how the various strands of development interact, and what to watch out for as we go into 2021.
From time to time cases come along where a professional defendant feels that its former clients should be prevented from suing right from the very outset, because they were engaged in dishonesty or other illegal activity. Examples of this type of case include mortgage frauds, breaches of fiduciary or fidelity duty by senior employees departing to set up a new competitor or transactions where one party is swindling another. Professional people can find themselves as participants- unwitting or otherwise- in wrongdoing, and that their work has facilitated the wrongdoing of their clients.
One of the defences that professional firms often reach for in these cases is a plea of illegality. However this defence can place a judge in an awkward position because there may be no party that appears particularly deserving of the court’s assistance. On the one hand, a claimant may be seeking an unappealing windfall. On the other, a professional may be seeking to sidestep his own role in the matter by blaming his client. The tension between these positions can be seen in uneasy decisions in the authorities.
Since 2016, the authoritative test for the illegality defence has been that propounded by Lord Toulson in Patel v Mirza  AC 467 at :
“The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system …. In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts….”
This replaced the much-criticised “reliance principle” that had been stated in Tinsley v Milligan  1 AC 340 (i.e. that the defence applied where the claim involved reliance on the claimant’s own illegality). In Patel, Lord Toulson justified the new test on the basis that a formal approach was “capable of producing results which may appear arbitrary, unjust or disproportionate”. While the new approach, being soft-textured and flexible, avoided the pitfalls of the past, it also had the potential for difficulties, since it could be perceived as somewhat woolly and uncertain.
Last year saw the appellate courts grappling with this relatively new test in the professional negligence sphere. First, in March 2020, the Court of Appeal considered an illegality defence in Day v Womble Bond Dickinson  PNLR 19. The claimant, Mr Day, had been prosecuted for an environmental crime. The defendant firm of solicitors had acted for him in the criminal proceedings. He had been convicted and ordered to pay a fine of £450,000 plus costs. After his conviction, Mr Day brought a claim against the solicitors arguing that, as a result of their negligence, he had lost the chance to be acquitted. The claim was struck out at first instance on grounds including that the claim was an abuse of process as a collateral attack on the criminal conviction, and the defence of illegality. The decision was upheld on appeal.
Both at first instance and in the Court of Appeal, the judges placed great weight on the principle that it is incoherent for the civil law to reach a result that was inconsistent with that reached by the criminal court (see Gray v Thames Trains Ltd  1 AC 1339). The rule in Gray was held not to have been undermined – and indeed to have been approved – by Lord Toulson’s judgment in Patel. It would have been wrong for the claimant to recover monies in compensation when he had been the subject of criminal sanctions imposed due to a finding of his culpable conduct. It was not disproportionate for the claim to be barred by illegality in those circumstances.
The second case was again brought by a client against her solicitors: Stoffel & Co v Grondona  3 WLR 1156. The claimant, Ms Grondona, had engaged the defendant firm to assist her in respect of the purchase of a property with the benefit of a mortgage. The firm negligently failed to register both the transfer of the property to Ms Grondona and her lender’s mortgage charge. She defaulted on the mortgage and, without the property as security, became liable for repayment in full. The firm raised the illegality defence, since the purchase of the property had been part of a fraudulent scheme to obtain mortgage funds. Ms Grondona’s associate, Mr Mitchell, had originally bought the property for £30,000. He was unable to obtain mortgage funds. Ms Grondona, using her better credit rating, had then obtained a mortgage offer of £76,500. She purchased the property from Mr Mitchell at the inflated price of £90,000, but (unbeknownst to the lender) he was to retain an interest in it.
At each stage of proceedings, the illegality defence failed. At first instance, applying the Tinsley test, it was held that Ms Grondona did not have to rely on her unlawful behaviour to make out the elements of her claim. Both the Court of Appeal and the Supreme Court applied the Patel test, with the same result: the illegality defence did not assist the defendant firm. The Supreme Court handed down judgment in October 2020, Lord Lloyd-Jones held that: (a) while the law should condemn mortgage frauds, it was unlikely that the risk of a claim against negligent solicitors being barred by the illegality defence would feature in the thinking of a potential mortgage fraudsters; and (b) there were important public policies in favour of conveyancing solicitors performing their duties diligently and without negligence, and clients being entitled to a remedy where they suffer loss due to breach of duty. In those circumstances, the proportionality stage did not strictly arise but was addressed for completeness. It was held that the fraud was not “central” to the claim (a concept not dissimilar to the Tinsley reliance approach), and the denial of the claim as a result of that fraud would be disproportionate.
These two cases provide some indication as to the way in which the Courts will seek to deal with illegality in the context of professional negligence claims. If the claim arises from a criminal conviction (which has not been successfully appealed) then the illegality defence should succeed (but adds little to the abuse of process/collateral attack doctrines discussed further below). Where the application of the defence would not have a material impact on the mindset of potential criminals, and the illegality is not central to the claim, then the defence should fail. However, there remains a wealth of novel scenarios in respect of which the answer will be less clear, and all will depend on the specific facts and factors in play in any particular case.
Abuse of process
A claim may be struck out on the basis that the pleading “is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings”. Abuse of process can come in many forms. As noted above, the decision in Day v Womble Bond Dickinson in March 2020 was based on both the illegality defence and the doctrine of collateral attack – i.e. the claim constituted an abuse of process in that it was premised on the criminal court having reached the wrong conclusion.
In addition to Day, in 2020 the courts have been considering the application of the collateral attack doctrine outside the context of seeking to challenge the decision of a criminal court.
One such case, heard in October 2020, is BTI 2014 LLC v PricewaterhouseCoopers LLP. This is an appeal against a decision of Fancourt J ( PNLR 7). The defendant, PwC, was auditor of the accounts of a company, AWA. AWA has assigned the claim to the claimant, BTI. The claimant alleges that, but for PwC’s negligent auditing of AWA’s accounts, AWA would not have paid two large dividends to its parent company (Sequana). PwC sought to have the claim struck out and/or summarily determined on the basis that it was abusive and/or hopeless, since BTI had already brought a claim against AWA’s directors and Sequana in respect of the dividends. That first claim was tried by Rose J and was dismissed, with findings that the accounts gave a true and fair view of AWA’s finances (i.e. based on the directors’ understanding at the time) and the dividends were appropriately paid out. BTI conceded that there was a substantial overlap between the two claims, but submitted that there were further issues which arose in the claim against PwC which had not been determined by Rose J in the first claim.
At first instance, Fancourt J held that since the parties to the first and second claims were not the same, and the issues in the two claims would not be identical, there was no collateral attack and no abuse of process. The Court of Appeal’s judgment is yet to be delivered, but it is hoped that it will provide interesting guidance as to what constitutes an abusive collateral attack outside the criminal law context.
Split personalities: companies and their shareholders/creditors
It is far from uncommon in professional negligence claims- particularly involving solicitors and accountants- for there to be confusion about who has retained a professional. Often a firm starts off acting for people considering setting up a company and ends up working for the company itself, without formal retainer in place and without anyone having applied their mind to whether the identity of the client has evolved over time. Alternatively, sometimes the party who ends up suffering a loss from a corporate failure can be somebody other than the company itself. These issues can cause difficulty when deciding who has a claim, and what that claim can comprise.
In July 2020, the Supreme Court handed down its long-awaited judgment in Sevilleja v Marex  UKSC 31, in which it significantly curtailed – but ultimately spared – the rule against so-called “reflective loss”. This principle has its origins in the rule in Foss v Harbottle (1843) 2 Hare 461, which provides that, where loss is caused to a company, and the company has a cause of action, only that company itself may sue.
In Prudential Assurance v Newman Industries (No 2)  Ch 204, the Court of Appeal extended the reflective loss doctrine, holding that a shareholder may not bring a claim for the diminution of its shareholding resulting from a loss sustained by the company, as that loss is “reflective” of the company’s (actionable) loss. Prudential was followed by the House of Lords in Johnson v Gore Wood  2 AC 1. Whilst Lord Bingham adopted the orthodox interpretation of the rule explained above, Lord Millett reasoned that its rationale was the bar against double recovery.
This brings us to the 2020 case of Marex. In that case, Mr Sevilleja owned two BVI companies, against which Marex obtained judgments. He allegedly stripped them of their assets, leaving them insolvent. However, the Court of Appeal held that the majority of Marex’s claim against Mr Sevilleja was barred by the reflective loss principle, because – as a non-shareholder creditor of the BVI companies– its loss was merely “reflective” of that suffered by the BVI companies (in respect of which they had their own cause of action). In so doing, the Court of Appeal expanded Lord Millett’s analysis in Johnson, applying the reflective loss doctrine to a loss sustained by a creditor which was not also a shareholder.
The Supreme Court unanimously allowed Marex’s appeal. The majority held that the rule against reflective loss, as laid down in Prudential and Johnson (by Lord Bingham), remains good law. There is a “bright line rule” preventing a shareholder, in that capacity, from pursuing an action for loss to its shareholding resulting from a wrong done to the company where the company has its own cause of action against the wrongdoer.
But the Supreme Court was unanimous also that the bar against double recovery was not a sufficient basis for the reflective loss principle. It explained that the principle holds that a shareholder’s loss is not regarded by the law as separate and distinct from the company’s. Accordingly, the reflective loss doctrine does not apply to a shareholder with a separate and distinct claim in another capacity (i.e. as a creditor) or to actions by non-shareholders. So the extension of the reflective loss principle seen in the past few decades is over, and clarity has been introduced into an area that had become increasingly complex.
However, Lord Sales, giving the minority judgment in Marex made clear that he would have gone further, and abolished the “flimsy” doctrine of reflective loss altogether. As David Halpern QC of 4 New Square has written, this has some attraction, as rules of law which rely on legal fictions are generally undesirable. For now, though, the reflective loss principle survives, albeit in slimmed down form.
In October 2020, the High Court was called upon to apply this new-look reflective loss doctrine in Naibu Global v Daniel Stewart  EWHC 2719 (Ch). In Naibu, assets of a Chinese sportswear firm were dissipated, leaving the shares held in the firm by its parent company and (in turn) the parent company’s holding company valueless. The two companies brought proceedings against their nominated adviser and lawyers, alleging negligence in the preparation of the holding company for its flotation on the AIM in London.
The lawyers applied to strike out the holding company’s claim, on the basis that (inter alia) its loss turned almost entirely upon the parent company’s loss – since it consisted of a diminution (to nil) in the value of its investment in the parent company – and was therefore irrecoverable pursuant to the rule against reflective loss. Mrs Justice Bacon agreed, striking out the holding company’s action and describing it as a “paradigm” example of a claim barred by the reflective loss principle as confirmed in Marex.
She rejected as “wholly artificial” the holding company’s argument that it was necessary to look at the companies’ losses as they evolved over time, holding that the decisive question is the nature of the shareholder’s loss; and that there is no further requirement that the amount of that loss be identical to that of the company.
Thus, whilst Marex has undoubtedly narrowed the scope of the rule against reflective loss, Naibu is a timely reminder that the principle lives on – and suggests that the Courts will be prepared to take a robust approach where it is properly engaged.
Vicarious liability: more clarity required
The importance of keeping a clear focus on what part a professional person has played in a gone wrong deal, mishandled litigation, or other disaster, keeps reappearing in professional liability case law. This is particularly true in the context of vicarious liability, where the court is considering the question of when a company, organisation or firm can properly be held liable for the acts or omissions of a rogue director, partner, or employee.
The law of vicarious liability has been “on the move”– not least because it has had to adapt to new working practices including (in the professional liability sphere) the loosening of traditional firm structures, the use of agency networks, and delegation of work.
By way of brief recap, the orthodox approach was that that before a person or organisation could be made vicariously liable for the actions of another the following two limbs had to be satisfied:
- There had to be a relationship between the two persons that is akin to employment which made it fair, just and reasonable for the law to make one pay for the wrongs committed by another; and
- There had to be a “close connection” between that relationship and the tortfeasor’s wrongdoing.
On 1 April 2020, the Supreme Court handed down two judgments in WM Morrison Supermarkets PLC v Various Claimants  UKSC 12 and Barclays Bank v Various Claimants  UKSC 13. These cases considered and, where necessary, clarified the two limbs. This clarification is welcome in the professional negligence context.
Limb 1: a relationship of employment or something akin to employment
At one extreme, this limb is clearly satisfied where there is an employer/employee relationship. At the other, it is not satisfied where the alleged tortfeasor is an “independent contractor”. The challenge in professional negligence cases can be dealing with the impact of innovative working structures, where the relationship falls somewhere between the two.
Deciding whether such a relationship met the limb 1 test had become increasingly difficult in recent years due to a debate over what role public policy played in deciding whether a defendant is vicariously liable for another person. In a case known as “Christian Brothers” (Various Claimants v Catholic Child Welfare Society  AC 1), Lord Phillips set out five policy reasons to explain why it was fair just and reasonable to impose vicarious liability on the diocese for acts and omissions of priests.
This caused confusion in subsequent cases. Was this intended to replace the traditional distinction between employees and independent contractors with a policy-led approach to limb 1? If so, where would that leave professional firms said to be liable for other people in novel or unusual working relationships?
In Barclays, the Supreme Court resolved the confusion stemming from Christian Brothers. Barclays concerned health tests conducted by a doctor on applicants for jobs at the bank. The doctor was not employed by the bank but the bank arranged and paid for appointments with him, and he used a standardised form specifically for the bank. He abused a number of the patients and the court had to decide whether the bank was vicariously liable for him. At first instance, the court applied the five-stage test sets out by Lord Phillips and the court decided that the bank was liable. The Court of Appeal agreed.
Before the Supreme Court, the bank argued that the doctor was an independent contractor and that nothing in the recent law was intended to impose liability on defendants for independent third parties.
The Supreme Court allowed the appeal. Having considered the previous case law in some detail, Lady Hale gave the judgment of the Court. She made it clear that the courts are not supposed to apply Lord Phillips’ five-stage test instead of judging whether the specific relationship in question is “akin to employment”. She stated that the law still drew a distinction between employment relationships (or analogous relationships) and independent contractors. She explained that:
“27. The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five ‘incidents’ identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer’s business. But the key…… will usually lie in understanding the details of the relationship”.
This clarifies the law on Limb 1. It is only in cases where the outcome based on the “relationship akin to employment” test is unclear that the courts should reach for Lord Phillips’ policy considerations.
Limb 2: the close connection test
Once limb 1 is satisfied, because the tests are cumulative limb 2 (the “close connection test”) then requires consideration.
Before 2020’s Supreme Court case, limb 2 had been recently considered by the Supreme Court in the case of Mohamud v WM Morrison Supermarket PLC  UKSC 11. In that case an employee of a petrol station had attacked a customer on the station forecourt. The Supreme Court determined that the supermarket should be vicariously liable for the assault. Lord Toulson held that, in its simplest form, the Court had to consider (1) adopting a broad approach, what was the function, ‘field of activities’ or nature of the employee’s job; and (2) the closeness of the connection between the employee’s position and their wrongful conduct. The case created uncertainty as to whether the court had intended to replace or amplify the “close connection” test with a test as to whether there was an “unbroken sequence of events” between the employee’s performance of the functions as an employee and the actions underlying the claim against them. The outcome was also regarded by some as controversial- why should an employer be liable for an employer attacking someone, when that formed no part of his duties? Although the case arose outside the professional negligence sphere, one can see how claimants could use it to try and broaden the range of fraudulent or illegal activities carried out by employees for which firms should be liable.
In 2020, the Supreme Court returned to limb 2 in another case involving Morrisons (WM Morrison Supermarkets PLC v Various Claimants). In this case, a disgruntled employee, Mr Skelton, had been given the task of submitting payroll data to Morrisons’ auditors. He carried out that task but also saved the data and then submitted it to a website and various newspapers. The claimants sued Morrisons for breach of their confidentiality. At first instance and in the Court of Appeal it was determined that Morrisons was vicariously liable for Mr Skelton.
However, Lord Reed (giving the judgment of the Supreme Court) allowed the appeal and held that limb 2 was not satisfied. He clarified that Lord Toulson’s judgment in Mohamud had not been intended to effect a change in the law. The focus was on whether the disclosure of the data formed part of Mr Skelton’s functions or field of activities. It did not- it was not something that Mr Skelton was authorised to do. The fact that there was a sequence of events starting with the provision of data by Morrisons to Mr Skelton and culminating in Mr Skelton’s breach was not enough to impose vicarious liability.
In his judgment, Lord Reed clarified the correct approach to the issue of motive. He stated that that the reason why Mr Skelton acted was he did was relevant; the issue of whether he was acting on his employer’s business or for purely personal reasons was highly material to determination of limb 2. Lord Reed also clarified that the mere fact that Mr Skelton’s employment gave him the opportunity to commit the wrongful act would not be sufficient to warrant the imposition of vicarious liability. This approach is likely to be of comfort to defendant firms and their insurers because it increases the prospects of successfully arguing that a wrongdoer was “frolic of his own” and that there is no vicarious liability for him.
The filter mechanism in fiduciary claims?
One of the themes that has dominated the case law since BPE v Hughes Holland  2 WLR 1029 has been the need to focus on whether a loss falls within the scope of a defendant professional’s duty (and in particular the important filtering mechanism of considering (a) whether a defendant is guiding a decision making process or (b) merely providing information that a claimant factors into his own decision making process). However, surprisingly few cases have grappled with how the principles apply where the defendant has not merely breached a duty in tort but a fiduciary duty.
Claims are often framed in this latter way because breach of fiduciary duty is thought to unlock more generous remedies. However, this is not necessarily the case. In Various Claimants v Giambrone  PNLR 2, the Court of Appeal’s decision made clear that even when awarding equitable compensation, the court still had to address the scope of the defendant’s duty and ask whether the defendant’s role was to guide the decision-making process or merely to provide part of the material on which the claimant was to rely. On the facts of that case, the Court of Appeal made clear that equitable compensation and damages for breach of contract “ran in tandem”.
The court returned to this issue again in 2020 in LIV Bridging Finance Ltd v EAD Solicitors  PNLR 24. The claim arose out of short term loans on properties in Merseyside, allegedly arranged at the instigation of a Mr Ware, a former solicitor and acquaintance of Mr Gorman, the relevant fee earner at EAD Solicitors. In all of the loans, Mr Gorman had acted for both LIV and Mr Gorman. LIV later alleged that the loans were bogus, e.g. because they had been made to a fictitious borrower invented by Mr Ware, or to an entity controlled by Mr Ware that did not own the relevant property.
LIV alleged that, in paying away the loan monies, without obtaining the registration of first legal charges, EAD had committed a breach of its fiduciary duty. LIV argued that EAD was therefore liable to reconstitute its loan monies in full. However, following Giambrone, the judge decided that he had to consider whether EAD’s role was to guide the decision-making process or merely to provide part of the material on which LIV was to rely. This was because if the duty was confined to the latter, equitable compensation would be limited to losses falling within the ambit of the specific duty.
The judge found that EAD’s role had been to implement the claimant’s specific instructions and in particular to take steps to acquire a first charge over the relevant properties. EAD was not expected to guide the whole decision-making process. The recoverable equitable compensation was therefore limited to the losses falling with the scope of that narrower duty to obtain a first charge and confirm that it had been obtained. It did not entitle the claimant to recover for losses caused by extraneous matters (such as falls in the property market) or for benefits that it never would have obtained (such as recovery of contractual interest from a borrower who would always have defaulted). The case is therefore an important illustration that adding an allegation of breach of fiduciary duty will not necessarily unlock much more generous damages to a claimant.
There has been much welcome clarity in the case law in 2020. In particular, problems apparent from the authorities on reflective loss and vicarious liability have been resolved, and the law made much more straightforward in these areas. The open texted test for illegality and striking out for abuse of process remain a source of unpredictability, and the measure of damages for breach of fiduciary duty and breach of trust remains complex.
Helen Evans, Ben Smiley, Pippa Manby and Ian McDonald, 4 New Square
5 January 2021
© Helen Evans, Ben Smiley, Pippa Manby and Ian McDonald, January 2021. Disclaimer: this article is not to be relied on as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
 Or to use its Latin tag, “ex turpi causa non oritur actio”.
 Save in a respect which was irrelevant to the claim against PwC.
 Further, the Supreme Court found that there is no longer any exception to the rule; Giles v Rhind  Ch 618, which previously recognised an exception where the wrongdoer’s conduct prevents the company from pursuing its own claim (e.g. by leaving it impecunious), was wrongly decided.
 See the judgment of Lord Phillips in the Christian Brothers case.
 Para 35 of Lord Phillips’ judgment: “There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
- the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
- the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
- the employee’s activity is likely to be part of the business activity of the employer;
- the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
- the employee will, to a greater or lesser degree, have been under the control of the employer.”
 including the cases of E v English Province of Our Lady of Charity  EWCA Civ 938; Woodland v Swimming Teachers Association  UKSC 66; Christian Brothers; Cox v Ministry of Justice  AC 660; and Armes v Nottinghamshire County Council  UKSC 60.
 Some had considered Lord Toulson to be dismissing this as irrelevant in Mohamud.
 Citing Lord Nicholls in Dubai Aluminium v Salaam  UKHL 48.
 In the two years before BPE, the Supreme Court decided the case of AIB v Redler  AC 1503. There, the Supreme Court considered the similarity between damages for breach of contract and equitable compensation in terms that emphasised the need for the losses to be connected with the scope of duty. For example, Lord Reid pointed out that “equitable compensation must be limited to loss flowing from the trustee’s acts in relation to the interest he undertook to protect”.