In this article, William Sturge looks in detail at when damages are recoverable from a negligent professional adviser.

In order to recover damages for negligent advice, a claimant has to satisfy two separate requirements:

1. Prove that they have suffered loss; and

2. Establish that the loss falls within the scope of the duty they were owed.

The first of these steps requires the claimant to establish what the courts call a “basic loss”, by comparing their actual position (financial or otherwise) against the position she would have been in if the adviser had performed its duty.

The second step then involves determining what part of this basic loss falls within the adviser’s duty.  Here the court focuses on establishing the scope of the professional’s duty in such situations.  Various recently reported cases reflect the courts’ approach, as follows.

Negligent valuations

In SAAMCO v York Montague (1997, House of Lords (“HL”)) a negligent valuer was held liable only for the shortfall between the actual value of various properties and the higher value that it had wrongly attributed to the properties.  The valuer was not held liable for the entirety of the client’s losses when the client sold the properties for much less, after a subsequent fall in property prices. 

To reach this conclusion, the HL distinguished between cases where the professional advised the client on whether or not to enter into the transaction in its entirety, and cases where the professional merely provided information on one aspect of the decision whether to proceed.  In the latter type of case, the scope of the duty and the damages for which the professional was liable in the event of negligence was limited.  The court also adopted the use of “counter-factuals”, to hypothesise as to whether the claimant would still have suffered the loss even if the professional had given correct advice.

In later cases, the question arose as to the legal basis on which the professional’s liability had been held to be limited in SAAMCO. One answer was that the scope of a professional’s duty should be limited to the specific consequences of the information it provides being wrong pursuant to the policy of achieving a fair and reasonable allocation of risk between the parties.  It would not be fair and reasonable to protect the claimant against loss that would have been incurred even if the professional had given correct advice.  The risk of that loss should be borne by the claimant.

Negligent legal advice

In Hughes Holland v BPE (2017, Supreme Court (“SC”)) a solicitor negligently informed his client that a loan the client proposed to make to a third party would be used to develop a property, whereas he knew that the third party was going to use the advance to pay off another debt.  The client would not have advanced the loan if he had known the true position. When the loan was not repaid, the client sued the solicitor.  The court held that the solicitor was not liable to pay any damages because there was no causal link between the fact which made the professional’s advice incorrect and the loss, which loss would have occurred anyway because the transaction was always doomed to fail for reasons unrelated to the use that the builder was going to make of the loan. 

Thus, even though the client would not have proceeded if the solicitor had provided the correct information, the solicitor was only liable to the extent of the responsibility undertaken by him.  To put it another way, it is not sufficient to establish that, but for the negligence, the losses would not have occurred. It was necessary to go further and find that the losses arose from the matter which made the professional’s advice incorrect.

Accountants’ negligence

In the landmark case of Manchester Building Society v Grant Thornton (2021, heard by seven judges of the SC), a firm of accountants (“GT”) advised a building society (“MBS”) that it could within the regulatory framework prepare its accounts on the basis that there was an effective hedging relationship between, on the one hand, losses it could suffer in funding its portfolio of fixed rate mortgages from variable rate borrowings and, on the other hand, the potential protection from such exposure provided by certain swap transactions.  After MBS had proceeded on this basis for some seven years, GT concluded that their original advice had been wrong, there was no effective hedging relationship and MBS’ accounts could not be prepared on a hedging account basis.  Therefore, MBS re-stated its accounts and terminated its swap transactions, which it was only able to do at a cost of many millions as the market had at that point moved against its swap positions.

Contrary to what might have been expected from the decision in SAAMCO, the SC concluded that MBS was entitled to recover from GT the full cost of unwinding the swaps (less 50% for contributory negligence).  It was not to the point that this award of damages in effect compensated MBS for trading losses on the swap transactions.

The crucial fact for the SC was that GT had negligently failed to advise of the ineffectiveness of the hedging arrangements. The scope of GT’s duty, determinable from the purpose for which GT undertook the duty, included advising as to the risks of such harm to MBS.  There was a sufficient nexus between the responsibility assumed in the subject matter of the duty and the claimant’s loss.  Another approach was to say simply that the loss flowed from the matter that made GT’s advice wrong, being the negligent failure to advise as to the ineffectiveness of the hedging arrangements, which led to the emergence of a value gap.  It was reasonably foreseeable that MBS would have to incur loss unwinding the transactions.  Therefore, GT could recover the whole of the loss arising.

In passing, the court held that counter-factuals were merely a tool that might or might not be useful as a cross-check and that, rather than categorising professionals as providing either advice or information, the focus should be on the purpose of the duties and responsibility taken on by the professional.

Impact

The scope of the duty owed by a negligent professional may be found to be narrower in future, in that it is determined by the purpose for which the advice is given. Moreover, damages are recoverable only to the extent that they flow specifically from the professional’s negligent act or omission.  That said, where damages are recoverable, these may be higher than was previously envisaged as they encompass all loss reasonably foreseeable from the breach of duty.

About the Author

The author of this article is William Sturge a Consultant Solicitor at Lovetts Solicitors. William is a leading lawyer in the insurance industry. He has advised on insurance and reinsurance claims on behalf of reinsurers, reinsureds and their insureds, both in the UK and worldwide. He has conducted insurance and reinsurance litigation and arbitration, acted in professional indemnity and financial lines business and in shipping and international trade disputes. William has also provided non-contentious insurance and reinsurance advice, usually with an international context.

For further information or advice please feel free to contact William by emailing [email protected] or calling 01483 457500.

UK & International debt recovery specialists, Lovetts Solicitors, have been appointed to Crown Commercial Service’s Debt Resolution Services framework.

Crown Commercial Service (CCS) supports the public sector to achieve maximum commercial value when procuring common goods and services. In 2020/21 CCS helped the public sector to achieve commercial benefits equal to £2.04bn – supporting world-class public services that offer best value for taxpayers.

The appointment will see Lovetts join a panel with 4 other law firms who can offer litigation services (lot 6) to UK central government departments and other public sector bodies.

As part of the contract, Lovetts will assist with effective collection of debt by applying litigation activities ranging from pre-litigation correspondence through to enforcement including insolvency action such as winding up proceedings.

Managing Director, Michael Higgins says:

“To be appointed on to CCS’s Debt Resolution Services framework is a fantastic achievement for the business. Only businesses with the highest level of accreditation were able to qualify for the framework. Protection of data and cyber security were rightly prioritised and we were able to meet those requirements through our Cyber Essentials Plus and ISO27001 certifications.

Lovetts has specialised in debt recovery for over 25 years and we have taken great pride in providing a high level of service for our clients. We look forward to assisting CCS, UK central government departments and other public sector bodies in respect of recovering their debt.”

If you require assistance in recovering your debt, sign up here or alternatively email us at [email protected].

Notes to Editors

Crown Commercial Service (CCS) is an Executive Agency of the Cabinet Office, supporting the public sector to achieve maximum commercial value when procuring common goods and services.

To find out more about CCS, visit: www.crowncommercial.gov.uk Follow them on Twitter: @gov_procurement or LinkedIn: www.linkedin.com/company/2827044

William Sturge, a leading insurance industry lawyer, has joined Lovetts Solicitors as a Consultant Solicitor from Carter Perry Bailey LLP.

Since qualifying as a Solicitor in 1984, William has become one of the leading solicitors in the insurance industry. He has advised on insurance and reinsurance claims on behalf of reinsurers, reinsureds and their insureds, both in the UK and worldwide. He has conducted insurance and reinsurance litigation and arbitration, acted in professional indemnity and financial lines business and in shipping and international trade disputes. William has also provided non-contentious insurance and reinsurance advice, usually with an international context.

Michael Higgins, Managing Director of Lovetts Solicitors says:

“There is a growing appreciation that it is possible to find City-quality work outside the City, at a competitive price.  William is a fantastic addition to the Lovetts team. He has a wealth of experience and allows Lovetts to cement its reputation as a firm that can cater to our client’s needs no matter what industry they operate in.”

William has regularly advised on insurance law issues arising out of insolvency situations. William has also acted as an expert witness in overseas proceedings involving issues of English insurance law.

William Sturge explains why he joined Lovetts Solicitors:

“Lovetts excels in dynamic, tough, no-nonsense efficient and cost-effective legal work, carried on by a top-quality and very experienced team.  I am looking forward to integrating my practice into this superb operation and building on the firm’s dispute resolution credentials.”

William has been recommended in the field of insurance, reinsurance and professional negligence by Legal 500 and ranked as a Leading Lawyer in the field of reinsurance by Chambers Guide to the UK Legal Profession. William is also a member of the Chartered Insurance Institute and is qualified in Australia (NSW).

If you have any issues relating to any of the areas of law detailed above, feel free to contact William by email at [email protected] or call 01483 457500.

We’re proud to announce that we’ve achieved the Planet Mark 2021 Business Certification. This is an incredible achievement involving the entire business.

The Planet Mark Business Certification is an internationally recognised sustainability certification for business acknowledging continuous progress, encouraging action and building an empowered community of like-minded individuals.

In this crucial Decade of Action, measuring our own carbon footprint has been a critical step in reducing our impact on the planet and society.

Through Planet Mark we have protected an area of endangered rainforest thanks to Cool Earth; a charity working alongside rainforest communities to halt deforestation. Our pledge through Cool Earth goes directly towards supporting the Asháninka community in Central Peru.

Through our commitment to Planet Mark we are also helping the Eden Project – an educational charity building connections with each other and the living world, exploring how we can work together towards a better future.

We want to continue to have a positive impact through our business and hope that we can empower our community to take climate action. We hope that you will join us in this movement for change.

Each and every one of you has contributed to our achievement in becoming Planet Mark certified, and will continue to play an important role in our sustainability commitment.

We encourage you to get in touch if you have any questions or suggestions you’d like to share with us, or to join us on this exciting journey of sustainability. Together, we are a collective force for good.

Lexcel is a Law Society legal practice quality mark for client care with only 15% of law firms achieving this accreditation. Lexcel accreditation ensures that law firms act to the highest standards and it endorses excellence in legal practice management.

Every three years Lovetts receive a full audit to obtain Lexcel re-accreditation. Lovetts successfully obtained re-accreditation in September 2021 with the report finding zero non-compliances.

Roger Newman, our Lexcel assessor said:

“For the second year in succession the Lexcel Review of Lovetts Ltd has identified zero non-compliances. The Lexcel Review found a very high standard of file management, and no non-compliances. This is testament to the high quality technology that is employed by the firm, and high standards that are routinely deployed by people in all areas covered by the Lexcel Standard.  Staff are highly competent and the systems well designed and implemented.”

Part of the Lexcel assessment requires Lovetts to send out a Client Satisfaction Survey to our clients in order to obtain their feedback and determine what we are doing well along with identifying if there are any areas for improvement. Within our Client Satisfaction Survey, we asked our clients:

1. How helpful have you found Lovetts staff? In response we found that 53% of clients said they found our staff to be extremely helpful, closely followed by 33% of clients who answered very helpful. We had zero responses to being not helpful at all.

2. How quickly do Lovetts staff follow up on your requests? Here we found 86% of clients said that we were either very quick or extremely quick. Again, with no clients saying that we were not quick at all.

3. How user friendly do you find Lovetts online portal; CaseManager? CaseManager is an online portal that allows our clients to have 24/7 access to their cases. Clients can instruct us on new and existing cases as well as being able to view historic cases for the past two years. This enables us to put the control of the legal process into our client’s hands.

We found that 51% of staff found CaseManager very user-friendly and only 3% said that it was slightly user-friendly.

4. How easy is it to understand the information on CaseManager? 35% of Lovetts clients told us that it was extremely easy to understand. 21% said it was somewhat easy, 3% said not so easy and 0% said not easy at all. The majority of clients said that it was very easy to understand the information provided on CaseManager. Clients have a dedicated account executive whom they can contact for further support with their cases. Lovetts staff are always a phone call or an email away for staff to get in contact should they have any queries with regards to their cases or information on CaseManager.

5. How visually appealing is Lovetts client website; CaseManager? We learnt that 5% of clients that took part in our survey said that CaseManager was either slightly or not appealing at all. A majority, 84% voted that it was either somewhat, very or extremely appealing.

6. How much do you trust the information provided on CaseManager? We saw 60% of clients selected that the information on CaseManager is extremely trustworthy and 0% voted that it was either slightly or not trustworthy. It is imperative for us to be transparent with our clients and provide them with valid information.

7. How can we improve CaseManager? For this question we gave clients the opportunity to fill the space with their thoughts. Some feedback we obtained included:

‘We are extremely happy will all the services we have used via LOVETTS case manager portal online. Even with a visual disability, I can clearly navigate my way around their website.’

‘We are totally satisfied with the services we have received.’

‘Only thing I can think of is standard descriptions in the document history to give a better idea of what the document might be.’

At Lovetts we are committed to continuous improvement to ensure our clients are able to receive the best quality and services possible. We are delighted to read that our online portal is able to be used by everyone including those that are visually impaired. Our clients’ needs always come first so we will always welcome suggestions for improvement.

8. How satisfied are you with Lovetts Service? We are delighted to say that 89% of clients that took part in our satisfaction survey said that they were either very or extremely satisfied with our service. We take great pride, at Lovetts, in making sure that our clients come first and that they receive the best service possible. Hence why we dedicate each client their own executive who they can contact should they need any help and ensure they have complete control over their cases via CaseManager.

9. Would you recommend Lovetts to others? 94% said that they would recommend Lovetts which is very rewarding.

10. Do you have any comments, questions or concerns? Responses we received here were as outlined:

‘In particular X is extremely helpful and efficient. She answers all my queries promptly and professionally and is always very knowledgeable and puts it across in a way that I can understand, knowing I don’t come from a Legal background.’

‘In the 11 years + I have dealt with Lovetts I have always been extremely satisfied with the work they have done on my behalf’.

‘Keep up the great work’

The client satisfaction survey allows us to gage an understanding of if/where we need to make improvements in order to meet our client’s needs and make the debt recovery process as painless and stress free as possible.

Lovetts Managing Director, Michael Higgins explains why Lexcel is so important to Lovetts

“Lexcel is important to our business because it gives reassurance to our clients and prospects that we work to the highest standards. To receive zero non-compliances is an incredible achievement and credit goes to the Lovetts staff. It was particularly pleasing to receive praise for our IT systems which allows us to deal with a high volume of cases whilst maintaining a fast and efficient service to our clients.”

For every survey that we completed, Lovetts donated £2 to Oakleaf; a mental health charity that we support. Oakleaf do amazing work to support people with their mental health and provide a safe and comfortable environment for their clients to come and seek support.

Lovetts Solicitors has received positive results from its Client Satisfaction Survey. Lovetts clients range from FTSE 100 companies through to SMEs. The feedback confirmed that 94% of companies would recommend Lovetts Solicitors for debt recovery.

Lovetts is committed to providing its customers with the best service and quality. In line with its commitment to continuous improvement, Lovetts looked to examine its current performance across some issues that are critical to our success.

The best way to do this was by asking its clients to participate in a Client Satisfaction Survey. The survey was completed online. As you can see below, there was a high level of satisfaction.

89% of clients were either extremely satisfied or very satisfied with Lovetts service.

Every client receives a dedicated Account Executive that is responsible for their cases. Our clients can contact this account executive to discuss their cases whenever they wish. 86% of clients found staff either extremely helpful or very helpful.

In our experience, speed is the key to debt recovery. If clients instruct us to send a letter before action (LBA) or issue a claim before 2pm we guarantee it will be sent the same day. 86% of our clients found that Lovetts follow up on requests was either extremely quick or very quick.

As mentioned above, 94% of clients would recommend Lovetts Solicitors to others in respect of recovering business debts.

Lovetts CaseManager is a unique online case management portal providing debt recovery software that puts control of the legal process back into our clients hands. CaseManager is so comprehensive that our clients can manage an entire case using only this system. It was pleasing to find that 82% of clients found CaseManager to be extremely or very user friendly.

Lovetts Managing Director, Michael Higgins, said

“These are really positive results. For over 25 years we have been determined to provide an excellent service for our client. Speed is key and we seek to be as transparent as possible through the use of our client portal CaseManager. Credit goes to all the Lovetts staff who work extremely hard and pride themselves on building great relationships with the clients.”

For every survey completed, Lovetts donated £2 to Oakleaf, which is a mental health charity Lovetts supports. They carry out fantastic work and Lovetts would like to thank all the clients that participated in the survey.

From 1st October 2021, there will be significant changes to Winding Up petitions. This article will explore the changes in further detail but in summary, Creditors will only be able to issue Winding Up petitions for debts over £10,000 and they will need to give a 21 day notice to debtors before issuing a petition. Further, Creditors chasing commercial rent arrears will be prevented from issuing a Winding Up petition.  

Creditors face 4 conditions that they must satisfy before issuing a Winding Up petition. These are:

Condition 1: the debt owed; (a) is for a liquidated amount; (b) has fallen due for payment; and (c) is not rent or any other payments i.e. service charges that are due under a business tenancy agreement;

Condition 2: the creditor has delivered a written notice which states (a) that the creditor is seeking the company’s proposal for the payment of the debt; and (b) that if no satisfactory proposal is made within 21 days of the date of delivery of the notice then the creditor intends to petition for the company’s winding-up;

Condition 3: 21 days have passed since Condition 2 Notice was delivered and the company has not made a satisfactory proposal for the payment of the debt; and

Condition 4: the debt owed to the petitioning creditor (provided they have all met Conditions 1 to 3) is at least £10,000.

Since June 2020, the Corporate Insolvency and Governance Act 2020 meant creditors were essentially prevented from issuing Winding Up petitions against debtors unless that Covid-19 did not have a financial effect on the company; or that the company would have been unable to pay its debts even if Covid-19 had had a financial effect on the company.

The changes from 1st October are seen as an ease on restrictions but the debt threshold for issuing a petition now increases from £750 to £10,000 and there is now arbitrary requirement to issue a 21 day notice, despite there being no obligation for a creditor to accept a payment proposal. These arbitrary barriers to recovering payment from customers failing pay their debts may have a significant impact on the cash flow of a creditor. In particular, it is a devastating blow to creditors pursing commercial rent arrears who are prevented from issuing a winding up petition completely.

These Winding Up petition changes are due to run from 1st October 2021 and end on 31st March 2022 as it currently stands.

Lovetts Solicitors will be providing a service where they enclose a Draft Winding Up petition with the 21 day notice sent to a debtor. In our experience, 81% of cases will result in payment where a draft winding up petition has been sent.

For further information, email [email protected] or call us on 01483 457500.

Despite Court fees having recently increased in May 2021, a further increase in Court fees have been proposed in a blow to Civil Court users.  

Creditors seeking to recover debts will see an increase in application fees, hearing fees, enforcement fees and fees relating to insolvency proceedings. A full list of Civil Court fee increases are set out in the Government response from page 43.

Rob Thompson, the Chair of the Civil Court Users Association, stated:

“Unsurprisingly, the CCUA’s calls for a full review of the fee charging structure have again been refused and the latest increase will now be going ahead.

They (the Government) continue to essentially rely on their mantra that the service costs more than the fees which are generated. This is despite the fact that we have continually pointed out that based on their own figures, the civil courts actually generate a considerable profit at the court user’s expense.”

The Court Fee increase is blow to Creditors already facing cash flow issues due to non-payment of debts. In response to the Court fee increase, Michael Higgins, Managing Director of Lovetts Solicitors and Guildways, says:

“Creditors have been facing a raw deal for a long time. The Government have seen fit to increase Court fees twice in the matter of months but fixed recoverable costs for issuing Court proceedings have not seen an increase for over 20 years.

In addition, Civil Court users are funding the Court service but are faced with a poor service and long delays. This needs to change.”

The Statutory Instrument in relation to the increase of Court fees was laid before Parliament on Monday 6 September 2021. Subject to Parliamentary procedure, the Statutory Instrument will come into force at 00:01 on Thursday 30th September 2021. It will result in an immediate increase in 128 fees, covering civil, family, magistrates’ courts, and the Court of Protection.

Lovetts Solicitors is furthering its sustainability commitment by becoming Planet Mark certified through measuring and reducing its carbon footprint.

Planet Mark is an internationally recognised sustainability certification for every type of organisation, for real estate and for products. A Planet Mark certification recognises continuous improvement, encourages action and builds an empowered community of like-minded individuals who make a world of difference.

In this crucial Decade of Action, Lovetts want to ensure that it is a force for good: positively transforming society and the planet by measuring its own impact on the environment.  

Over the next year Lovetts will be working towards reducing our carbon emissions, and we want to share this journey with our community to encourage others to join us.

Through Planet Mark we are protecting an area of endangered rainforest thanks to Cool Earth; a charity working alongside rainforest communities to halt deforestation. Our pledge through Cool Earth goes directly towards supporting the Asháninka community in Central Peru.  

Through our commitment to Planet Mark we are also helping the Eden Project – an educational charity building connections with each other and the living world, exploring how we can work together towards a better future.  

Each and every one of you plays an important role in our sustainability commitments, and Planet Mark will help to embed sustainability in our business culture so that we can make continual progress.  

We look forward to sharing our sustainability achievements with the wider community as we progress with our plan.

Boris Johnson isn’t alone in having a County Court Judgment (known as a CCJ) against his name – according to figures from Registry Trust, the agency that records information about County Court Judgments, over 250,000 CCJs were recorded against UK individuals in the first quarter of 2021.

But what is a County Court Judgment and what does it mean? Almost all CCJs are money judgments, which means that one party (the debtor) owes money to another (the creditor), either as a result of a loan or other credit agreement which was not paid back on time, or because money was paid for goods or services which were not delivered or carried out. In these circumstances the creditor can go to court to issue a Claim against the debtor, requiring the money to be repaid.

If the Claim is ignored, or is unsuccessfully defended, then a County Court Judgment will be entered against the debtor. All Judgments are entered onto a central register which is managed by Registry Trust on behalf of the Government, and will stay on the register for six years. All the main credit reference agencies have access to the register and will use the presence of a CCJ as one of the factors when calculating credit scores. This is why people are warned that a Judgment may affect their credit rating, which in turn could make it harder to borrow money in the future, take out a mortgage, open a bank account or carry out a number of other services. The register is open, meaning that any other individual or business can also look up details of a CCJ for a small fee.

So what does this mean for Boris? Well, assuming that the Judgment has not been entered in error then the main thing is that more than 30 days have passed since the Judgment was registered. This is significant because if a Judgment is paid off in full within 30 days the debtor can apply to have the CCJ completely removed from the register as if it had never been entered. However after 30 days, even if the Judgment is subsequently paid in full, the details will remain on the register for six years and will continue to affect credit ratings for that time.

Michael Higgins, Managing Director of Lovetts Solicitors, who specialise in issuing claims and entering Judgments on behalf of their clients who are owed monies, commented “It is unusual for a high profile individual to allow a matter such as this to progress for so long. Even if he was personally unaware of court proceedings, once the Judgment was registered he should have taken prompt action to settle the matter and either have the Judgment settled or, if it was registered in error, applied to the Court to have the Judgment set aside whilst the matter was investigated.”

Notes to Editors

Lovetts Solicitors are the leading specialists in commercial debt recovery. Founded in 1994 exclusively to carry out debt recovery and contract litigation services their clients range from sole traders to FTSE 100 corporations. They are a member of the County Court Users Association and one of the largest issuers of County Court Claims for business debts in the UK. If further comment is required, contact 01483 457500 or email [email protected]