Legal Watch:
Professional Indemnity
In this issue:
•
Plexus succeed in re-visited
Berney v Thomas
Saul & Co
•
Interpretation of standard aggregation clause in
solicitors’ professional indemnity policies
•
Another Plexus success story
•
Negligent accountants liable for full loan despite
significant repayments
•
Solicitor duped by imposter is held accountable
Plexus succeed in re-visited Berney v Thomas
Saul & Co
We first covered this Plexus case two years ago in our September 2013 issue. The matter involves a professional negligence claim against solicitors. The defendant initially sought to strike out the claim on the basis that it was statute barred. More detail on the limitation decision can be found in our previous article here.
The case returned to the High Court earlier this year when her Honour Judge Walden-Smith had to determine causation and quantum on the principles of it being a loss of chance case.
Background
Ms Berney brought a personal injury claim against Ms Liddell as a result of a car accident on 20 April 1999. The claim form for the personal injury claim was issued on 12 April 2002, stating that Ms Berney was seeking damages of less than £50,000. The particulars of claim needed to be filed by 12 August 2002 but her solicitors failed to do so. Subsequently, Ms Berney terminated the retainer with Thomas Saul and instructed a new solicitor, Martin Ross.
In June 2004, Mr Ross advised Ms Berney that she was vulnerable to an application to strike out partly because the particulars of claim had not been filed in time. Ms Liddell’s solicitors indicated they would oppose any application to file the particulars of claim out of time but made a without prejudice settlement offer. Negotiations ensued and Ms Berney accepted an increased offer of £25,000 in November 2005.
Ms Berney contends that she felt obliged to accept the settlement because of the risk of her claim being struck out and potential adverse costs.
After the Court of Appeal limitation decision, Thomas Saul admitted liability and the only issues left to determine were causation and quantum. The case brought by Ms Berney was that, by reason of the admitted failings of her former solicitor, she could not recover the entirety of the damages to which she was entitled, as she had to protect her exposure to a costs liability by accepting Ms Liddell’s offer.
Ms Berney’s schedule of loss exceeded £800,000. A major component of her claim was the allegation that her injuries resulted in her failure to obtain a training contract to qualify as a solicitor, causing a substantial loss of earnings.
Judgment
Following the principles set out by Simon Brown LJ in
Mount v Barker Austin (1998), in order to succeed in her
action against the defendant, Ms Berney had to establish that she had lost something of value; namely that she had a real and substantial, rather than merely negligible, prospect of success. The legal burden rested on her to establish that, by settling for £25,000, she lost something of value – i.e. she had a real prospect of recovering more. To do so, Ms Berney needed to provide credible and convincing evidence that the injuries and loss sustained from the RTA in 1999 should have resulted in her recovering more than the £25,000 she settled for.
In assessing what her damages might have been, had she not settled when she did, the task of the court was to assess the damages that would have been recovered – either at the notional trial date or at a notional date for settlement. To assess the likely damages in the RTA claim, the court reviewed the lay witness evidence of both Ms Berney’s former solicitors and the evidence of a substantial number of medical experts. This included medical reports from consultant orthopaedic surgeons, rheumatologists, a neurologist, a consultant in anaesthetics and pain management and a psychiatrist.
In the court’s judgment, Ms Berney could not establish that the RTA was the cause of anything more than a minor whiplash injury which ought to have cleared within a matter
of months. Even on a generous assessment, the judge considered that Ms Berney would recover no more than £9,500 for general damages for the injuries caused by the RTA and potentially a further £3,000 for treatment for her psychiatric conditions.
In assessing Ms Berney’s claim that, but for the accident, she would have secured a training contract and then full-time work as a solicitor, the court considered the evidence of Mrs Groves, an employment expert. The claimant’s evidence did not establish that, but for the accident, she would have been able to obtain a training contract. Significantly, she had unsuccessfully applied for training contracts before the accident. The court therefore held that there was no causal connection between the RTA and Ms Berney’s failure to secure a training contract and employment as a solicitor. In all the circumstances, the court concluded that, even on a generous assessment of general and special damages, Ms Berney was unlikely to recover anything more than £10,000 from her RTA claim. Therefore, she did not have a real prospect of recovering more than £25,000 and her professional indemnity claim against her former solicitors failed.
Commentary
This case confirms the legal principles set out in Mount v
Barker Austin in loss of chance claims and also demonstrates
the importance of expert evidence in defeating such claims. Ms Berney’s claims were undermined by both the extensive medical and employment expert evidence. Despite her solicitor’s admitted negligence in handling her personal injury claim, Ms Berney failed to prove that she had a real and substantial prospect of recovering more than £25,000.
Susan Berney v Thomas Saul (t/a Thomas Saul & Co) [2015] (QBD)
Interpretation of standard aggregation clause in
solicitors’ professional indemnity policies
In the recent case of AIG Europe Limited v OC320301
LLP, the High Court was required to interpret the standard
aggregation clause which applies to all English and Welsh solicitors’ professional indemnity insurance policies. The court interpreted the clause narrowly, declining to treat a number of similar claims as one claim. The insurer was therefore unable to aggregate the claims to enforce a policy limit of £3m per claim. The result is that the losses which are estimated to exceed £10m can now be recovered under the policy.
The Law Society requires solicitors’ insurance policies to comply with the Minimum Terms and Conditions of Professional Indemnity Insurance for Solicitors and Registered European Lawyers in England and Wales (the MTC). The parties in this case agreed that the governing clause was the aggregation clause in the MTC. The MTC are, in effect, incorporated into the policies of insurance issued by qualifying insurers and therefore have wide application. This decision is of particular interest to professional indemnity insurers and their insured solicitors because until now, there has been no authority on construction of the MTC aggregation provision.
Aggregation
Aggregation is the term used to describe when several losses are added together for the purposes of making a single claim on an insurance or reinsurance policy. Professional indemnity insurance policies often contain an aggregation clause which can benefit either the insurer or policyholder. Insurers may seek to reduce their potential exposure by reducing the policy limit to claims arising from a similar or related cause. For example, a firm of solicitors may face five similar claims of £500,000 each totalling £2.5m. The insurance policy has an indemnity limit of £1m for each and every claim. If the claims can be aggregated, the insurer will
only be liable for £1m in total and the policyholder will need to meet the uninsured balance of £1.5m. However, if the claims cannot be aggregated the insurer will be liable for the full £2.5m.
Aggregation clauses can also benefit the policyholder. If each claim must be treated as a separate claim, then the deductible applicable under the relevant policy will apply to each claim. However, if the claims can be aggregated, only one deductible may be payable.
Background
The claims that AIG sought to aggregate in this matter were very similar in nature. The firm of solicitors in question (OC320301 LLP) faced numerous claims from claimants who invested in the same property development schemes. The trustees of the trusts that are the subject matter of the underlying proceedings, represent the claimants in the underlying proceedings.
The claims arose from the development of holiday homes in Turkey and Morocco. The vast majority of the 214 investors were private individuals. An elaborate scheme had been devised with a view to protecting the interests of the investors and thereby encouraging them to invest. The investors accused the solicitors of failing to put in place effective security arrangements and allege that as a result, the investors lost their investments.
Several causes of action were relied upon but they all identified similar acts and omissions. It was intended that the investment monies would be protected by only releasing sums from an escrow account once a cover test was met and by establishing adequate security, in one case over land and in another over shares.
AIG sought a declaration that certain underlying claims were to be aggregated and thus dealt with as a single claim under
the insurance policy. The cover was in respect of “all loss resulting from any claim for any civil liability of any insured which arises from the performance of or failure to perform legal services”.
The aggregation clause within the MTC was rewritten following the decision of the House of Lords in Lloyds
TSB General Insurance Holdings Ltd v Lloyds Bank Group Insurance Co Ltd (2003). The terms of clause 2.5 of the MTC
read as follows:
“The insurance may provide that, when considering what may be regarded as one claim for the purposes of the limits contemplated by clauses 2.1 and 2.3 :
(a) all claims against any one or more insured arising from: (i) one act or omission;
(ii) one series of related acts or omissions;
(iii) the same act or omission in a series of related matters or transactions;
(iv) similar acts or omissions in a series of related matters or transactions
and
(b) all claims against one or more insured arising from one matter or transaction will be regarded as one claim.”
Discussion
There is no authority on the true construction of clause 2.5 and therefore the court’s task in this case was to construe and apply clause 2.5.
Aggregation clauses permit two or more claims to be treated as a single claim where they are linked by a unifying factor of some kind. The choice of language used to express that unifying factor is of critical importance. The unifying factor may be express or it may be necessary to imply one. Mr Justice Teare noted that the principle underlying the MTC is to ensure that solicitors are financially able to compensate their clients where claims are made against them. However, it would be too simplistic to say when construing the MTC,
that the construction which should be adopted is that which gives the public the greatest level of protection. The court should construe the aggregation clause in a neutral manner, neither predisposed to assist the public nor predisposed to assist the insurer.
Judgment
Firstly, the court had to determine whether the claims arose from “similar acts or omissions”. The court held that this was a real and substantial degree of similarity, neither fanciful nor insubstantial. The aim of the aggregation clause was to permit claims to be aggregated for the purpose of applying the limit of the insurer’s liability per claim.
In all the claims, the local property developer could not pay the vendor. In those circumstances the solicitors failed to provide effective security so that the cover test was not properly applied. Thus, after the investors’ monies had been released, the investors were exposed to loss in the event that the developments failed.
It therefore followed, in the language of the clause, that all the claims arose out of similar acts or omissions. The court accepted that they were not identical but they did not have to be.
Secondly, the court had to interpret the meaning of the phrase “in a series of related matters or transactions”. This phrase serves to limit the scope of the aggregation clause which would otherwise be very wide. The phrase embodies the unifying factor (or an important part thereof) which makes it appropriate to aggregate claims.
Mr Justice Teare concluded that the most natural meaning of the phrase in the context of a solicitors’ insurance policy is a series of matters or transactions that are in some way dependent on each other rather than independent of each other.
The court decided that although the claims arose out of similar acts or omissions, they did not meet the requirement
of being in a series of related transactions because the terms of the transactions were not conditional or dependent on each other.
Therefore the court concluded that the claims were not to be aggregated as one claim.
Commentary
The decision is relevant to all professional indemnity policies where the MCT aggregation clause is incorporated. It will also be persuasive in respect of any other policies with aggregation clauses which require that the claims arise from “a series of related matters or transactions”. Following the facts of this case, this will be a tough threshold for insurers to overcome.
We understand that leave to appeal has been given by Mr Justice Teare.
AIG Europe Limited v OC320301 LLP (formerly The International Law Partnership LLP) and Others [2015] EWHC 2398 (Comm)
Another Plexus success story
Plexus recently had further success in defeating aprofessional negligence claim against a firm of solicitors in the case of Dzekova v Thomas Eggar LLP. The defendant successfully appealed against Master Eastman’s earlier refusal to set aside service of the claim form. On appeal, the court struck out the claim on the basis that the address for service was not compliant with rule 6.8 of the Civil
Procedure Rules. The case illustrates why solicitors should
clearly understand rule 6.8 of the CPR and always ensure that the service of any proceedings is compliant with this rule.
Background
The claim arose out of an alleged accident in October 2004. In October 2007, proceedings in a personal injury claim were issued against the alleged tortfeasors. Shortly before the personal injury proceedings were due to be served, the claimant submitted a web-based request to the defendant, Thomas Eggar LLP, asking for its assistance in pursuing her claim.
Ironically, the underlying professional negligence claim also related to the service of proceedings. The allegation against the defendant was that they wrongly advised the claimant to apply for an extension of time to serve the claim form, rather than serving the claim form and applying for an extension to serve the particulars of claim, schedule of loss and medical evidence. In fact, extensions of time were obtained, but the alleged tortfeasors had those extensions of time for service set aside and permission to appeal was refused. A professional negligence claim was then brought against Thomas Eggar LLP.
The claimant’s solicitors issued proceedings against Thomas Eggar a few days prior to the expiry of the six year limitation period. As the claim form expired imminently, her solicitors were keen to ensure that it arrived at the defendant’s offices in time. Therefore, Mr Cooney, a representative from the claimant’s solicitors began a series
of phone calls to the defendant’s insurers and the defendant firm to ascertain their address for service, as the firm had more than one office. Mr Cooney was unable to speak to the solicitor he had previously dealt with and spoke instead to Ms Hannah Foulger, the PA to the managing partner. Ms Foulger provided the address of the managing partner at the defendant’s Crawley office.
Appeal
The appeal before Mr Justice Stewart stood or fell on whether the defendant had given an address “for the purpose of being served with the proceedings”.
Rule 6.8 CPR provides as follows:
“Subject to rules 6.5(1) and 6.7 and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision –
(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK…and which the defendant has given for the purpose of being served with the proceedings…”
If the defendant has not given such an address, then CPR 6.9 requires the claim form to be served; the defendant being a company registered in England at the “principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim”. It was common ground that the Crawley office did not come within the provisions of CPR 6.9.
Judgment
On the evidence, Mr Justice Stewart did not accept that Ms Foulger had given an address “for the purpose of being served with the proceedings”.
Mr Cooney alleged that he had asked for an address to serve proceedings and confirmation of the principal place
of business. Ms Foulger’s evidence was that she did not know the difference between an address for service and an address to send general documents. Ms Foulger had said that she did not know what the principal place of business was, but that she asked if the documents were confidential, and when Mr Cooney confirmed they were, she gave the address for the managing partner.
Stewart J found that there was no compliance with rule 6.8
(a).
On the question of authority, no-one at the firm had represented to the claimant’s solicitor that Ms Foulger had authority to give an address for the purpose of being served with the proceedings, pursuant to rule 6.8 (a). The fact that she had tried to be helpful, could not impute to the firm any representation by words or conduct that she had authority. The appeal was allowed and service of the claim was set aside and the claim was dismissed.
Commentary
Ironically, the claimant will probably now bring another professional negligence claim against a second firm of solicitors.
The case is unfortunately an example of claimant solicitors leaving it right until the end of the limitation period, to issue and serve proceedings. It demonstrates the importance of a clear understanding of the Civil Procedure Rules on service of a claim form and why it is so important to resolve any potential service issues well within the limitation period.
Negligent accountants liable for full loan despite
significant repayments
In the recent Court of Appeal decision of Swynson v Lowick
Rose (2015), the court had to quantify the loss recoverable
by a lender from a negligent firm of accountants who failed to do proper due diligence on the borrower. In reliance upon the negligent due diligence report, Swynson loaned £15m and the court found that the accountants were still liable for the full amount of the loan despite significant repayments having been made as a result of a re-financing agreement. The majority of the loan was repaid by utilising money lent to the borrower by the owner of Swynson. However, the court held that the repayment was a collateral matter which did not go to reduce the damages recoverable from the negligent accountants.
The decision will be of interest to lenders, professional advisers and their insurers.
Background
The claimant company, Swynson, was owned indirectly by Mr Hunt. In October 2006 Swynson lent £15m to a company called Evo Medical Solutions Limited (EMSL) to enable it to facilitate a management buyout of Evo, an American company specialising in the distribution of medical devices in the USA. The 2006 loan was made by Swynson in reliance upon a due diligence report prepared by an accountancy firm, now known as Lowick Rose LLP.
By mid 2007 it was clear that Evo was experiencing cash flow problems and at risk of financial collapse without further investment. In late 2007 Mr Hunt caused Swynson to lend a further £1.75m to EMSL. In order to protect the initial investment, Mr Hunt felt obliged to support Evo until it could be floated on the stock exchange or financed by a private equity investor. Mr Hunt therefore decided to provide to Evo, through a loan to EMSL by Swynson, a further £3m in June 2008. Mr Hunt also gained a majority interest in EMSL.
At the end of 2008, there was a re-financing of the 2006 and 2007 loans. Part of the reason for the re-financing was to mitigate tax. Mr Hunt lent £18m to EMSL. EMSL then paid Swynson £17m, being the total amount due under the 2006 and 2007 loans including interest. This left only the 2008 loan outstanding.
In 2011 Evo’s business was wound down and the re-financing loan was never repaid. Swynson then brought proceedings against the accountants for professional negligence.
Lower court decision
During the course of the trial the defendant conceded negligence and that there was a causal link between the negligence and the decision of Swynson to make the 2006 loan. The accounting report was negligent in that it failed to report that there was a $3-$4m adverse difference between Evo’s actual and forecast working capital.
The defendant admitted negligence, but argued that it should only be liable for the outstanding 2008 loan because EMSL had repaid the 2006 and 2007 loans.
The lower court was aware that the corporate veil should not be pierced and held that the defendant owed no duty of care to Mr Hunt.
The trial judge found that the defendant’s letter of engagement had capped liability to £15m and this point was not appealed.
Rose J held that the repayment, effected as it was by the 2008 partial re-finance, was collateral to the loss caused by the defendant’s breach of duty (or in old legal terminology:
res inter alios acta), and did not extinguish Swynson’s loss
in respect of the 2006 and 2007 loans. The Latin term summarises a legal doctrine which holds that a contract cannot adversely affect the rights of one who is not a party
to the contract. She accordingly awarded damages against the defendant in the amount of those loans and the 2008 loan, subject to the cap. The defendant appealed.
Appeal Court decision
A majority of the Court of Appeal (Longmore and Sales LLJ, Davis LJ dissenting) held that the repayment of the loans pursuant to the 2008 partial re-finance, did not need to be taken into account when quantifying Swynson’s claim against the accountants. The appeal was therefore dismissed and the defendant was liable for the full amount of the loan, subject to the £15m cap, despite the fact that Swynson had been repaid.
The CA confirmed that it is established law that an innocent party, who claims for breach of contract, is under a duty to take reasonable steps to mitigate his loss. This may result in the loss being partly or wholly avoided. The question is then whether that avoided loss should be taken into account in assessing damages. It may also be the case that a claimant’s loss is partly or wholly avoided despite him taking no steps to mitigate his damages.
The test is that if the transaction giving rise to the avoided loss arises by virtue of circumstances which are collateral to the breach of contract, the avoided loss need not be brought into account. However, if the transaction giving rise to the avoided loss arises out the consequences of the breach and in the ordinary course of business, it is to be taken into account.
If a debt incurred pursuant to negligent advice given to a lender is repaid, the repayment must ordinarily be taken into account when assessing damages, but that is not an inflexible rule.
In this case, there was no prospect of Swynson selling the debt to a third party for anything like its value, if indeed a buyer could be found at all. The transaction was peculiar to Swynson in that Mr Hunt would not have funded the repayment of the loan on those terms for any other company. It may be that the 2008 partial re-finance arose because of the defendant’s breach. but in no way did it arise in the ordinary course of business. Therefore the repayment
Commentary
The majority decision appears to have been strongly influenced by public policy considerations.
LJ Sales relying on Parry v Cleaver (1970) considered that it would be contrary to the “ordinary man’s sense of justice, and therefore contrary to public policy” that the funding Mr Hunt was driven to provide to help Swynson in the difficult position in which it found itself, as a result of the defendant’s negligence, should be treated as benefiting the defendant rather than Swynson alone.
However, Lord Justice Davis provided a well reasoned dissenting judgment holding that the defendant should only be liable for the 2008 loan. He reasoned that one could not simply disregard the actual form which the transactions took and ignore the corporate structures involved in order to achieve what may appear (to some) as a “just” result. LJ Davis disagreed with the majority view that the contrary approach was “merely to disregard technicalities”. As he saw it, the form here was the substance and it was evident that in the circumstances of the case, Swynson suffered no loss.
Although fact specific, the majority decision is a worrying one for professional advisers and their insurers and we shall keep you posted on any further appeal.
Swynson Limited v Lowick Rose LLP (in liquidation – formerly known as Hurst Morrison Thomson LLP) [2015] EWCA Civ 629
Solicitor duped by imposter is held accountable
The recent matter of LSC Finance Ltd v Abensons Law Ltd(t/a Abensons solicitors) involves a mortgage fraud and is
another unfortunate example of a solicitor being duped by a borrower client.
The claimant lender sought damages for alleged breaches of undertakings (and thus breach of contract), negligence, breach of trust and breach of warranty of authority against the defendant solicitors’ firm. The solicitors, Abensons, had undertaken that certain representations made fraudulently had been true.
Background
The claimant company, LSC, was a commercial lender which provided secured short-term bridging loans to borrowers for commercial purposes.
It was common ground that LSC had been the victim of a mortgage fraud, after lending Eur169,000 to a purported client of Abensons, known as Mrs Gail Boddice. It was intended that the loan would be secured by (i) a legal mortgage over a residential buy-to-let property in Chester, which was to be executed by the sole proprietor, Mrs Boddice, and (ii) a personal guarantee from Mrs Boddice’s husband.
Although the loan was released by LSC to Abensons (A), and transferred by A into a joint account at Barclays in the names of Mr and Mrs Boddice, the envisaged security was never effected. It was apparent that LSC had been the victim of a mortgage fraud most probably perpetrated by Mr Boddice. It appeared that Mrs Boddice had been impersonated and had not approved the transfer.
The defendant firm, who acted on behalf of the purported Mrs Boddice, agreed either to hold the original, validly executed security prior to completion or to provide an undertaking of the same. The defendant provided an undertaking confirming execution of a legal charge by Mrs Boddice in respect of the property.
In making the loan, LSC and its solicitors, Woodcocks, had relied on the defendant solicitors’ undertakings and other confirmations provided, before the loan monies were advanced. LSC alleged that such matters gave rise to binding obligations on A which were breached and, as a result, LSC suffered loss and damage for which they were said to be liable. There was no suggestion that the defendant solicitors’ firm was knowingly involved in any way in setting up the mortgage fraud.
Judgment
The Chancery Division held that the claims for breach of undertaking and breach of warranty of authority were made out against the defendant who had failed to verify the property owner’s identity and signature when executing a charge over the property. It also held that there had been a breach of a duty of care owed in tort by the defendant to LSC and breach of a Quistclose resulting trust claim. The judge found that the defendant solicitor purported to certify Mr and Mrs Boddice’s identities by checking their passports. However, he did not do enough to check the genuineness of the signatures on the sole legal charge and the joint transfer documents. The duty of care was “clearly breached” in relation to A’s failure to properly verify execution of the sole legal charge from “the imposter” Mrs Boddice. Mrs Boddice did not sign these documents in the presence of the defendant and the signature bore no resemblance to her signature in previous documents. The defendant should have made further enquiries as to the authenticity of the signature and insisted upon seeing the woman who had previously represented herself to him as Mrs Boddice.
The judge was satisfied that the defendant was negligent in relation to accepting both the sole legal charge and the joint transfer as “genuinely executed documents”. Woodcocks were clearly relying upon A, as solicitors for the proposed borrowers, in relation to the execution of the mortgage documentation to be provided by A’s client or clients. The
The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading
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risk of imposture was one which the defendant assumed, rather than it falling upon LSC as the lender.
The judge however went on to state that the difficulty with the claim in tort, however, was in establishing causation. Unlike the strict obligation assumed by the defendant in its undertaking to hold a validly executed legal charge from Mrs Boddice, a duty of care required them only to take reasonable care in that regard. Hodge J was not satisfied that there was enough to establish causation. It may well be that, if the defendant had insisted upon seeing, or speaking to, the person who had masqueraded as Mrs Boddice, Mr Boddice would not have been able to produce her; but he may have been able to do so. The court made no decision on the applicable test for causation.
It was sufficient that the claimant’s claim succeeded on breach of the undertaking, on breach of warranty of authority and the additional breach of resulting trust claim. Accordingly, judgment was given for the claimant.
Commentary
The court appears to have adopted a strict approach in this matter. However, the decision should be considered in the context of the specific facts of this case and the judge’s scathing comments regarding Mr Abenson’s witness evidence at trial. Hodge J remarked that Mr Abenson was “a wholly unsatisfactory and unreliable witness. At times I had to pinch myself to remember that he was a qualified solicitor of longstanding and experience. He is by far the worst solicitor witness I have ever seen giving evidence in the witness box”.
We understand that permission to appeal to the Court of Appeal has been sought.
LSC Finance Ltd v Abensons Law Ltd (t/a Abensons solicitors) [2015] EWHC 1163 (Ch)
