The Courtroom of Attraction handed down judgment at present in David McClean & Ors v Andrew Thornhill KC [2023] EWCA Civ 466, unanimously dismissing the enchantment.  Herbert Smith Freehills Companion Will Glassey and Affiliate Henry Saunders acted for the profitable Defendant Andrew Thornhill KC.

BACKGROUND

The Claimants have been traders in three movie finance schemes which have been promoted by Scotts Atlantic Administration Restricted (“Scotts“) in 2002 – 2004.  The schemes have been supposed to draw sideways loss reduction, entitling traders to offset the schemes’ losses in opposition to their private revenue.

Every potential investor was required to warrant that they’d taken applicable skilled recommendation and “solely relied on the recommendation of, or has solely consulted with, [their] personal skilled advisers with regard to the tax, authorized … and different financial concerns” associated to the funding.

The schemes may solely be promoted to traders by IFAs, by means of the schemes’ data memoranda (the “IMs“).  The IMs mentioned that Scotts’ “understanding” was that the schemes would appeal to reduction however that potential traders ought to “seek the advice of their tax advisers.”

Earlier than issuing the IMs, Scotts obtained recommendation from Mr Thornhill KC on the tax penalties of the schemes.  He suggested that the schemes met the necessities for sideways loss reduction; i.e. that the proposed exercise would quantity to buying and selling commercially with a view to revenue.  A few years later (2016), in a really completely different tax atmosphere, HMRC issued a closure discover in respect of the primary scheme, which concluded that the necessities weren’t met.  Because of this, the Claimants settled their tax liabilities in respect of the three schemes with HMRC.

The Claimants alleged that Mr Thornhill KC, while being Scotts’ adviser, assumed an obligation of care to them: he endorsed the IMs; he consented to himself being recognized as tax adviser to Scotts; and he consented to his opinions being supplied to potential traders (through their IFAs) upon request.  They alleged that Mr Thornhill KC negligently suggested that reduction would materialise and didn’t establish a major danger of the schemes being efficiently challenged.  They mentioned that had Mr Thornhill suggested in a different way, they’d not have invested.

On 8 March 2022 Zacaroli J handed down judgment dismissing the declare, discovering that Mr Thornhill KC didn’t owe an obligation to the traders (versus his shopper, Scotts) and that his recommendation was not negligent in any occasion.  Our abstract of that call might be discovered right here.

The Claimants who invested within the second and third schemes appealed to the Courtroom of Attraction.

DECISION

In judgment handed down on 28 April 2023, the Courtroom of Attraction dismissed the enchantment. Simler LJ wrote the substantive judgment, with which the Chancellor and Carr LJ agreed.

Obligation of Care
The Claimants argued that this was a prospectus-type dispute and that – in circumstances the place Mr Thornhill KC successfully shaped a part of the gross sales workforce with Scotts – the scenario was analogous to the statutory regime making use of to an issuer of prospectuses in shares and debentures; which, in broad phrases, requires the issuer to have affordable grounds for believing the content material of the prospectus to be true. The courtroom described this argument as “untenable“, in circumstances the place the schemes have been unregulated, and Parliament had expressly restricted the scope of the statutory prospectus regime. The IMs didn’t make factual representations as to the tax penalties, as an alternative containing what have been intentionally and thoroughly described solely as Scotts’ understanding and expectation as to the tax end result.

Opposite to the Appellants’ submission that Mr Thornhill KC had been appearing as a part of a gross sales workforce moderately than as a barrister, the Courtroom of Attraction agreed with Zacaroli J that Mr Thornhill KC’s conduct “was clearly throughout the typical function of a barrister” and mentioned that:

“In these circumstances, absent good purpose on the contrary, the default expectation was that traders wouldn’t merely depend on what they have been advised about Mr Thornhill’s recommendation, however would, with the assistance of their IFAs (and different tax advisers the place related), make their very own evaluation of the dangers of the transaction and an impartial determination as as to whether to enter into it.”

The Courtroom thought of whether or not Mr Thornhill KC assumed an obligation of care to the claimant traders, making use of the belief of duty check set out in NRAM v Metal [2018] UKSC 13. The Courtroom concluded that it was “objectively unreasonable for traders to depend on Mr Thornhill’s recommendation with out making impartial inquiry in relation to the probability of the [schemes] attaining the tax advantages; and Mr Thornhill couldn’t moderately have foreseen that they’d achieve this.”

The Courtroom was influenced in reaching that conclusion by the truth that:

1. The schemes have been unregulated and will solely be promoted through IFAs “who owed skilled obligations of their very own to every investor.” That was the context wherein the Claimants would see the related IM.
2. The IM “was the one means by means of which Mr Thornhill’s recommendation to Scotts might be obtained by third events” and it “expressly required these traders to take and depend on their very own tax recommendation referring to the Scheme.” While IFAs would possibly use Mr Thornhill KC’s recommendation as a place to begin, they have been required to analyse danger for his or her shopper and “not merely duplicate the recommendation given by Mr Thornhill.“
3. While Scotts and the Claimants had a typical curiosity in tax reduction materialising, they have been counterparties in a business transaction entered into at arm’s size. The precept of caveat emptor utilized and “it was presumptively inappropriate for traders to depend on something mentioned by Scotts’ adviser.” That they had not paid him, met with him or communicated with him.

The Courtroom rejected the appellants’ submission that it was crucial for Mr Thornhill KC to know that the traders have been taking recommendation from an “equal” adviser – i.e. a tax Silk; the Courtroom accepting, as had Zacaroli J, that the traders warranted that they’d taken their very own tax recommendation, and that it was completely acceptable for Mr Thornhill to know that that will be supplied both by knowledgeable IFAs or different specialists to be recognized by the IFAs ought to they not have that experience themselves.

Breach
The method which Mr Thornhill KC had adopted in his recommendation – which adopted the method taken by the Home of Lords in Ensign Tankers [1992] 1 AC 655 – was described by the Courtroom as “affordable and never negligent”. The Courtroom held that Zacaroli J was entitled to conclude as he did {that a} moderately competent tax silk may have suggested that reduction could be allowed.

The Claimants argued that Mr Thornhill KC’s unequivocal recommendation (i.e. that there was “little question“) that the schemes could be buying and selling was negligent. Simler LJ was not satisfied that Zacaroli J had squarely addressed this challenge and concluded that “no moderately competent tax silk may have expressed such an unequivocal view”. This was of no sensible consequence, given the Courtroom’s conclusions on responsibility and causation.

Causation
The Claimants’ case on causation additionally failed. They argued that Mr Thornhill ought to have ensured that they got a warning that there was a “vital danger” of a profitable problem to the Schemes by HMRC; and that had he achieved so, they’d not have invested.

The Courtroom held that the prevailing tax regulation on the time required a far much less extreme warning, which, the Courtroom held (once more upholding Zacaroli J), the claimants would have ignored even when given: the Claimants didn’t come shut to creating out their case on causation, mentioned the Courtroom.

COMMENT

The case doesn’t make new regulation. Each Zacaroli J and the Courtroom of Attraction rejected novel arguments as to how an obligation might need arisen. However what we’re left with is a standard utility of the rules set out in NRAM v Steel: to ensure that an expert to imagine an obligation to a non-client recipient of recommendation, it should have been: (a) affordable for the recipient to depend upon it; and (b) moderately foreseeable to the skilled that the recipient would achieve this.

The choice does emphasise the fact-sensitive nature of that evaluation, which essentially requires a consideration of the connection between the events, the circumstances wherein the recipient obtained the recommendation, the communications which surrounded the sharing of the recommendation, and whether or not it was affordable for the third celebration to depend on the recommendation with out impartial enquiry.

Herbert Smith Freehills (Will Glassey and Henry Saunders) efficiently defended Mr Thornhill KC within the enchantment, instructing Tom Adam KC and Max Schaefer of Brick Courtroom Chambers.

KEY CONTACTS