Defences to Professional Negligence

Hello on. Welcome to this. Webinar on defenses to professional negligence. Claims to me, Helen Skolfield from Contract Lord Chambers in London. We'll be looking at a variety off topics, Andi. I've set them out there in the first slide which is set out in front of you. They're the things that were going to be covering in this hour long webinar together. I'm sure you have a look at what they are on, Duh, how we're going to do them. First of all, limitation, that's quite difficult. But it is the first point that you're going to hit. If you're a plain mint on your worried about is suing late on. Of course, it's the first point to take. If you're a defendant, the duty of care breach, that's the other issue. No duty proving the bridge. Cool ization. Lots of activity on loss of a chance. We've had Perry and rarely is going up to the Supreme Court. Never stops, does it on some co in BP on duh other cases since BP on loss. So the whole Sumco defense is doing very well at the moment, since it's a reinvigoration by Lord Sumption in bpd on. We will spend some time looking at exclusion clauses. So let's begin. Ah, webinar together by looking at the limitation defense, life just divided the slide into three. Firstly, in contract, you have entertainer so you can get out. Negligence is usually a mix. I mean, that's why I do it, because it's a mix of contract and taught, and often people forget one against the other on The differences between the two could be quite subtle in any particular case. So we're looking at the date off brooch on day. Six years will run from the date of bridge. So, um, if you've got a contract that will kick off your limitation period, of course, we don't get a secondary limitation. Period in contract can be pretty brutal. If, for example, you haven't found out about it. That is concealment, and you can have some latent damage under the Late Damage Act. But basically run simulation bridge where, as in negligence, it's the days of loss. That's the primary period six years cause of action, a cruise only when some damage occurs. On there, we'll see those difficult contract cases where people are in a bad deal. They're in a bad deal From day one. There's a secondary period, which is my third column in Taught, which is three years from the date off constructive knowledge. And I've put in the word constructive advisedly because I perfectly except that you may not have found out about it. But one might have found out about it is the test that we're dealing with and start with. Taught the first part of taught when is lost suffered now a contingent liability won't started running. You have tohave loss. I mean, really loss before this begins to run. But I put in Nykredit and Nykredit is a policy case. It's a financial cases because they could have taken out of much better policy, but they were convinced to take out this policy by a negligent adviser on the financial liabilities arise Onley Event of the contingency. But as soon as you're in that policy, you are doomed to suffer the event of the contingency so the payout might not have bean yet, but you're obliged to that pay out. You can't swap on, get someone other policy, you're stuck. So the date runs from the date of taking out the policy, and that's generally reflected in in most of US financial services litigation. The loss occurs upon execution upon agreement to take out the policy. And Sefton, which is quite an old case now about the law society having a intervention with contingent liabilities. It wasn't nobody's actually dead yet. You know, we haven't lost any souls yet. Nobody has actually suffered the loss, although it looks as though they very well mind. But that's different because there could be all sorts of reasons why you wouldn't suffer loss, which is truly contingent. But we're stuck in a policy you stuck in a policy. So it is distinguished from the events of contingency that were referred to in Sefton, where the court said, Well, it's all a bit very impossible, but you haven't actually suffered. The loss of the worst case scenario hasn't yet occurred. It's easy to distinguish that from setting out a contractual document on a contractual set of obligations that getting into the wrong mortgage. You know, Ryan minute now it's still a contingency. I'm in it. Sefton was was different to that. The possibility of harm was based on litigation or further events, and those were truly contingent outside the gift off the claimant, but they hadn't happened yet. Now, in property cases, it's rarely contingent. So where the air contingent liability has diminished the value of the property so coarse that came into receive less than they should have done in a particular transaction, the actual damages suffered at the time the contingent liability has incurred so laxer. We see that the Court of Appeal looked at this limitation, Period said. Well, it starts to flow from the negligent administration off certain after the event insurance policy. So 88. And although they split the court of appeal, interestingly, um, loss has been incurred and damages suffered for the purpose of a cruel in told as soon as the policies were issued, and it's really goes back to the same point that we've just made. So although it's a property case on, do you know we can see very well whether the worst has happened or not. You can't make a difference to the policy that you've got on the 80 in the Axa case. The after event meant that its insurance, but you're stuck in the insurance you've got. So although you haven't needed to use insurance the value of that insurance is less than it should be because it doesn't cover the risk in question. So the first point about taught one is that you don't need to know about it. It doesn't require awareness. This is a Nuri case where the argument was that they were ignorant off the fraud of the date of completion off the transaction on the course that we were wrong to seem that a potential push so would have been made aware because it's a forgery. And that's the point. You're not until you know much later on the correct analysis was to assume awareness of any breach at that date. So it was what established that the cause of action talk could accrue for the purposes of the act without the claimant being aware of. It doesn't remember if you suffered the loss. You're now in a situation where it's less valuable than you thought. It was less valuable than it. Then you thought it waas whether you know that yet or not doesn't matter. So awareness is a relevant for the purposes off the 1st 6 years. Okay, but no, of course, for the second talked limitation period which we're going to deal with in a moment. Then we get into diminished value off litigation on the diminished value of the litigation on cases when the loss happened. When the litigation goes off the rails, it's really interesting. We're looking at other people's file seizing New Zealand anything I would never done that. That's week, that correspondence you're already on the back foot come puts, Um, put some welly in it. And when you're sort of auditing on the people's files, it is difficult at that point to so say, Well, hindsight's a wonderful saying I would never have done it like that. You had really shocking all there. And then it sort of dribbled away. You know? Did you take your eye off the ball? It's a long enthusiasm and activity that's involved in litigation. Don't don't you think? And you have to put on a good show, even if underneath you thinking well, we're going down the pan anyway in Bern, in Seoul, identifying the date at which the value that education is diminished and the other side's feel the fear and the blood is a delicate moment, and it sort of starts to go off the rails on, then it never recovers, and it gets worse and worse. The value of the litigation becomes compromised, it becomes diminished. And it's not winning your struck out because by then it's too late. It's when you forget. It's when you don't set it up correctly. When you when you just don't pay attention into getting the right directions, it could be long before the actual death knell off striking. The same principle applies when the claim has been struck out for delay. It's not a striker. It's the point at which the delay occurs. So you have to keep an eye on that car and fall V, a claimant who doesn't suffer real damage in the form dimunition of value until there is a serious risk. So that what pushed it back again for a claimant all, uh, you know, So a defendant isn't catching it early enough to say ups off the rails. This is heading for the buffers. It's easy isn't commenting on other people's litigation, don't you think? Quite liking negligence because you get a good knows that everybody else's files until Julia, it's hopeless. Probably not. The best school of learning, though, is it. Learning from people's negligent files. They're section 40 named the Limitation Act. Six years from the date upon which the cause of action of crude Yes, got that three years from Subsection five nickels. Subsection five of the Limitation Act is one of the most litigated sections ever. For the purposes of this section, the starting date for reckoning of period of limitation is the earliest state which the claimant or any person who has the Coe's election had both knowledge. Onda. Right now, yeah, I was gonna write to bring an action. Why would you have a right to be in action? Are you a child? Yes, I am. And of course, we know that people who don't have capacity can't bring a claim of action. Good course of action. And so for minors, then calls action is suspended. But if they have the right, then they have to have the knowledge. And unfortunately, having the knowledge is unfortunately constructive. If you are a claimant, but this is marvelous. If you're a defendant, we are certainly in the ascendant here on constructive knowledge. If you are a defendant, the claimant only needs toe have sufficient information to make it reasonable to commence investigations. So as soon as you're on the trail on, sometimes I think that that is the day you ring the solicitor to put your name in there book and say, Can I come and see you, Muay, why are you coming to see May? Well, because I think I've got a cause of action in negligence. So already the top COGSA turning Jacobs is a sesame is the court of appeal case. Oh, it's a really hard case. Its product financial misselling product literature on it would have informed the claimant that there was no such guarantee about, you know, the value of your investment can go down. Form of that problem is that they provided valuation statements over time, I must be said, accompanied with words ringing in her head about well, you know, goes down but comes back up or she was really took this lady. She should have just taken a, you know, action before weren't but she didn't. So it's constructive knowledge. It's a reasonable person. Look, it's no, it's nose diving down. The value of this investment is disappearing away at a rate of knots. So that point she should have said something instead of which he just believed The hype about it goes down, it comes back up. So you do feel sorry for the claimant, but the naivety of the claimant is no defence. Under Section 14 A. There's capita 2016. It was reasonable to take a second opinion from a specialist. Why did you do nothing? If you have had a second opinion, then you would have seen. And it's no good saying line. I know nothing. You know, I don't know about this. I was I to know when he should have actually made a move at that point and found out they you would have obtained had he done so. Proceedings were displaced because they had waited. And it's the Nell Sony in blind. I would love that expression. Really? So has any got one eyes? I I'm turning my back on it because I think I can't face it where I don't want to look at it. I want to use that as a means of extending limitation. I'm afraid it won't work. Defendants Constructive knowledge under Section 14 A is a fabulous argument. Let's have a little look at that expert point because if you're an expert under section 14 there is a secondary limb there which says, Well, you can wait until expert evidence if it's a sort of thing that you need an expert advice for like that. The mis selling of the financial products Seton on Mercer For the purposes of B, the inquiry extends to whether, in the circumstances, it was reasonable to get an expert and if so, what knowledge would have been ascertainable, would they have been ableto throw light on it in capital Again moves. We've looked at the centric place on subsection 10. If experts advice is required, you must do something about it. Don't do nothing and postpone it on the basis of Section 10 fax, observable or ascertainable by the individual claimant. Or be with the help of an appropriate expert. If you need an expert, then time runs from the point at which a reasonable person would get an expert, not from the time at which you finally get around to it. K's and Claydon is great on constructive knowledge because it again these are all moving in a certain direction. Are you alerted to the factual rudiments off the claim Andi, I have to say I seem some super defendants who have made a very tight Skelly on this. You knew X. You knew why you knew you, Zed. That's it. It was in my submissions. In other words, the claimant was aware of this and this and this and knew you see their skeletons, which which mapped the knowledge against the the evidence. Andi, it's very difficult as a claimant then to move away from that because you didn't know that you've been complaining about this you being there's usually a bit of hype that's going on in front of that. The correspondence gives away the knowledge sufficient to mount proceedings on duh that Spence would humble. It's is it is a sort of less useful than caves. But kept cases is really good on that. I think for a defendant, knowledge for the purposes of Section 14 means knowing with sufficient confidence to justify embarking on the preliminaries a little bit more wiggle room there sufficient confidence opening the door to expert evidence where a claimant acted on professional advice, he must have some reason to question the advice on to think that something must have gone wrong with it. The determinative moment was when he had reason to begin to investigate. So you can see it is Look, I don't know what I'm doing here. Then find out. I just do nothing. Three Tombs cases The Court of Appeal case, which I picked up only because it said limitation is an issue which results in summary judgment, not striker Andre. This is the camera people normally plead both in the application, but act technically it. It's supposed to be summary judgment. Although it was traditional to combine summering with striker, a strikeout up cash was not apt since it was not the case that the claim did not disclose the value cause of action. The strike is it for people who want to sue the queen, you know that the proper nutters or abuse of process. So it's not that there's not a reasonable cause of action. There is a good course of action, is just it's impossible to go ahead with it because of the summary judgment off the limitation on that's a different point to the abuse of process because we have already done this before. We've settled this case, which again is a different point to no reasonable cause of action. Remember Section 342 off the CPR has three limbs to it. No reasonable cause of action, abuse of process, Onda and non compliance. So it's It's good the corner pill, Really, you know, saying that you've got the wrong point here, so apply for summary judgment. It doesn't matter, because under CPR 24 34 to be the court can always under both those rules across river on a can of their own volition, choose the other one. I put in section 21 just because of Dream Bal Dream Bar is the Court of Appeal case on this Gambone gamble? Erroneous? Well, these are the dodgy, convincing cases. I've done a couple of these where people have both things that don't exist because of various sophisticated frauds. Friday, Friday afternoon frauds with money going elsewhere. It's ever so difficult for sisters, I think, to cope with this to kind of attack. But if you are bringing in claim under section 21 then I'm afraid that if there is an extended period of time, if your defendant the Great if you're a claimant in respect of any fraud or fraudulent breach of trust to which the trustee was a party and no limitation prescribed shall apply. So if there is a breach of trust on the reason I've got it there on breach of trust is because where do you put your money to buy your flat? Do you put it on your solicitor's client? And as soon as you put it on your sister's plant account, what walks through the door is a resulting implied trust, and equally, they then send it to the Selous listers. We were the dodgy ones. It goes on their client account. There's actually a resulting for implied. If I dish duty with the Salus is, even though you're not my solicitor, I'm buying this thing. I've got a retaining with my lot, but I have a dotted line in equity to the seller's list purely by didn't of the services councils on this point. That's why Dream Bar has caused the law society to intervene and say, for heavens, say, what do you want for 800 quit? You know, we are effectively underwriting the purchase off a building, so it's quite tough. The it's had a huge impact on insurance premiums for committing sisters that dream bar his authority of the proposition. I don't have a retainer with service listers from sake about a retainer with my No, but I do have a kind of cause of action equity because off the financially nature off, holding money's on account. So you then have to look at Section 21 fraud and breach of trust. Fraudulent Misra taught to see fortune misstatement. So anything like that, of course, because it's a breach of trust. I know you're gonna say to me about the trustee act, but of course, that's the Section 61. That's the bit that's changed as a result of these cases where the course it will somebody's insurance policies going to ban the locks. You might as well be yours if you're standing still. Just a few tips here. Um, I love standstill contracts because they he will make so many mistakes with them. Theo Claimant, you want a nice, big, wide estoppel all fax and matters and causes of action relating to the dispute. No chronology. So, basically, anytime, anyplace, anywhere defendant wants a much more negligence breach of contract and this chronology to it on of course defendants. You really want to make sure that the long stop date counts from the effective date, not from the end of the run imitation period. I don't think anybody would make that mistake. The limitation period is in relevant. Once you sign a limitation of a standstill agreement. It's a relevant because you're not counting from the end of the limitation period, accounting from the effective date of the contract. You I don't like this for, but it does exist in French, your contractual izing the period. So if we agree so my limitations. I think my limitation period is up on next week on we today agree a standstill. We're not counting from the end of next week or whenever you think it is. We're counting from today because today is defined as the effective or commencement date in the contract. And so you've got to keep your eye on line because if you then say well, all right, Helen will stand still for six months. Okay, Thank you. That's helpful on then. Six months. So it gets towards the end of six months. You need to reboot it and extend it for another period of time. eso You gotta keep your eye on the dia rising of it. It's suspended, only it's not obliterated. You never obliterated. So, you know, if they didn't have time before the stunts an arrangement then emerging blinking into the sunshine after the standstill arrangement, the defendant still takes the point off course on waiting some time before you started. We've just frozen it in in the ice before. We've now sold you out on Bond. We pick it up as we left it. Barton Wright hassle Fantastic name for pharmacist is great firm in Saudi help. Yes, this is the one about service where it went wrong. And, of course, Mr Barton was a nuisance. And he served right hassle Elektronik Lee. They didn't accept electronic services held onto it on then said known and an earner on the Sprinkle was split because it was a litigant in person on because they'd have it all long but didn't tell him that they didn't accept service by email until the last in terms too late. Um, but it is a strict approach. You can drop the ball on service quite well. I actors an adapter. Is that a good reason? Has to be shown under CPR 7.62 if you want more time. I just think that once you get on the escalator, you gotta keep moving. So once you've issued, you can't go long without getting a stay on. Getting a stays quite difficult. If the other side don't agree to it. The buyout cases the same. The Court of Appeal highlighted the importance of serving and claim for within the validity period. Actually, that one was an international one. So you get six months. But of course, for those of us uh, doing this in this jurisdiction, it's only former. So you do have to keep your arm oclock there on did you don't get the extra two weeks if you serve the claim form and then what served the POC? It has to be served within the period. So it may be important to be able to prove that the claim form was dispatched, dispatched within the four month validity period and the reason of evidence and dispatches that, weirdly, the practice direction to seven says, understand Helen's case. I always remember that the Court of Appeal allowed the limitation period to start when the claim is broked. Bringing proceedings is putting it in the DX. It's a bit more than that. I mean, I wouldn't just use I put it in the D X. You know, I get it to court, however you do it and get something. That evidence is probably payment of the fee. Great example is to see filing. Now when you get you get it confirmed only by email, so they wouldn't necessarily see little. Do whatever they're gonna do with that for a while. It gets 10 working days, although I think it goes a bit quicker than in the high court than it does in the county court. But you've got something that says, I brought it at that time on Instant Helen's. Itwas just a chit. It was just evidence that they actually got it into the court well before the court actually processed it. So I think that that's a bit of kind of practical logic there. The problem these days is that nobody's going to stamp your receipt, you know, how do you serve in the county court and get somebody to say, you know, accepted on such and such a day, they'll take it from you, but I don't give you evidence on it, so it is quite difficult. So could you sign my piece of paper to, say, received on such and such a day on? Be very loath to do it, even if you get to a body. You though Thea Other point is that you can't bring proceedings until you issue the correct fee and Ward had away and never gonna recovered from this alibi because they didn't get the right fee on DSO. The problem is not one of being struck out for abusive process for hanky panky with fees but limitation. So you don't bring the claim until the claim has got the right faith. Andi, if you're up against a limitation period, that's bad news, Isn't it? Because you to file Earth, would you experiment with off off to TBC off file a schedule A lost? No. If you're up against limitation claimants, you gotta get it'll belt embraced. You've got a particular eyes, that loss nail your colors to the mast or the defendant can say sorry is to bury it struck out. You know you can't bring it after the event. Let's move through some of the other defenses on our webinar. I want about duty. This is the defense of it's not in the scope of duty. And what's really fabulous about tort is their nexus between duty and lots, which get breach of contract all s o if you know, if not pleaded the correct duty, not gonna get the right loss. So the retainer between the scope on the loss is what we're talking about on the right. The scope of the retainer in contract isn't necessarily the same as the scope of the duty of care in talk. That's because you and I have done it. Thank you for your instructions. This is our retainer to whatever it is. And then the scope drifts scope creep into something else. We don't go back and amend the retainer. So this was a financial case. An accountant who decided to get his head above the parapet on give his client advice a little bit of advice on non dom status and easily a general jobbing accountant said the client then sued him for the wrong advice on non dom tax staters on the Point waas that the accountant said, and the captain was ultimately successful this is outside the retainer. We were just gonna do a bog standard fixed price tax return for you. So the test is what the reasonably competent practitioner would do having regard to the standards normally adopted in the profession. Duty is directly related to the confines of the retainer. Brilliant. If you start to drift away from that, then you're in a problem with you. Look a little bit above that in the Dichter that it may be that Is it particularly meticulous on conscientious practitioner would, in his client's general interest, take it upon himself to pursue a line of inquiry beyond the street limit? That's your conscientiousness. It's not the test and not the scope. That's just you being thorough on the fact that you get your head above the parapet and you mentioned something that's outside your retainer doesn't necessarily extend the duty off care. The extent of the retainer, I think, is very complicated. It's an interplay between contract and talked, you know, you're you're comparing one against the other. Usually the talk is wider than the contract because things change. Does the contract inform the levels of service? What was the result that the professional was engaged to achieve whether by obtaining a benefit or avoiding or minimizing a lots. And now you can get implied duties under the Scribe Goods and Services Act, which, of course, and Section 13 refers back to Bhola. Reasonable scare and kill. It is It is a difference, isn't it? Are we sticking the duty to the retainer, or is it drifting wider than that? The Bulls eye principle if you want to drift there has to be a close and strong nexus between the retainer on the matter that they failed to advice all. He can't deceive, drift on the police commissioner for the metropolis or sounds very New York That doesn't. Although the police officers had given assurances the lawyers were acting in their interests on would protect them, this was not sufficient to establish a retained on implied retainer on. That's because they had individual interests, which were largely concomitant with those of the Met. But they were along for the ride. The advice was to the Met, not to the individual officers, and you can walk it so far. And then there comes a point when you say, actually, I don't have a contract with you guys, but you're listening to the advice and thinking about it individually. This often happens. Ever sheds got in trouble with us with directors and companies. So the directors air listening with the company director hat on, um, for the company, I say hands of the company, but they're not. They also have an individual role to play as well. So work ancillary to the retainer. This is Minkin. A Landsberg on the court of appeal is very useful. Although they came out for the defendant here because this is an intelligent woman who wants advice in relations, she doesn't want advice. Actually, that structure she wants somebody just to sort out on provide him a tom a consent order after a financial split with the X. She's naturally so, she said. Just just do that, please on. In fact, they should have offered advice to say, This is a really bad deal for you, lady on. They didn't push the No, no, just do that for me, please. So it's implicit to say that you have to carry out work that's reasonably incidental, but the courts and well, it's not incidental, because you, she said, I don't want advice. I know what I'm doing. I reached a settlement on inexperience. Client will expect to be warned off risks, which are or should be, um, apparent to the sister, but not to the client. So you know, you have to. You have to judge the level on the extent of the duty. Minkin. They said we should not experience. That's what she's doing. So it's changed. It's different. I would think that's so weird is that have you ever used a system? I think we make the worst possible clients because often in a situation where they're weak, we can no more than the solicitors of the city might say, Well, you remember nightmare client because you know as much so that duty is different. So Minqin, um, Landsberg Landsberg was successful and saying, No, we only asked us to do the strip to retain, and there's no duty to advise you beyond the strict retainer. The contract is a defense to the taught on its not hindsight, which is a wonderful thing. All perfection that's Dunhill and broken Crossley. It's a barrister who settles on the day alleged of under settled, but you know, council was reasonable acted on the the evidence could see it going down the path could see a problem so advised to settle on. The court said No, this there's no contributory negligence here. Well, there's nothing like that. You consider the option on Bond in view of the reason for the absence, Such an application was unlikely to succeed, nor was he in negligent in doing his best to assess the quantum. Incidentally, in Dunhill, they took an outdoor Clark and parent with, um, the training on the court said, if the barrister is in bridge, so it's assistant because the training was not equipped to bring a second pair of eyes to the situation. So you know hindsight on perfection on not the right thing. There we are with the knowing client Healy and shoes, mitts, lovely firm and shoes. Miss, we're doing a contract for Mr Healy. It's ah, a potshot buying contract with liquidated damages on do. They gave him information about the contract. He could read the contract. They negotiated the contract. They finalized the contract. It contained l deeds, which kick in if you're late. Ana, he said, Well, you didn't tell me about the old days we know about LDS. You've been doing these transactions for years. Why way would we say anything to you about them? Because you are aware of that. We knew you knew what they meant at anyway. Would make any difference the in early event causation defense. So the sophistication of the plant, Um, both in terms of the retainer on in terms of the measurement of the extent of to do to you care two ways, it can be used as a defence. Prove it on. In the Anderson case, this is a sister's negatives. You wouldn't use expert to prove any legal negligence. Not usually, although you might need it for something else. On the absence of documentary evidence to show instructions were given on a certain point. Well, you say that. But there are no contemporaneous documents to prove that the claim and gave those instructions with which the defendant failed to carry out the claimant did not establish it, would never been able to proceed. So that's the causation. In any event, the evidence showed the development would have caused the claim into some for a loss in any event. So hooking that lost to a defendant course, said no, but you can't prove it. There are no documents in your we get that in your mind. You see that? But it's not really a question off evidence. It's one thing toe. Have a case, folks. Another thing to be able to prim it. We're now at the point off turning to something that is doing the rounds as faras. The defendants are concerned and rightly so. It's the tricky area, I think, and I don't think Lord Sumption is helped. If I may respectfully suggest this is some co on Sankoh 1997 waas The relationship between the duty and the loss. Andi will move on from this line to see the new case on this because the loss is always limited by the extent off the duty. The contract is a defense to the halt on. We've already talked about the Harbin Barker case where the retainer retains the halt. So we're going to look at the the new case on on duty on bond. The new case that we're going to think about, which is the Sumco case. We'll find, um in relation to. I think it's it's really sensible that it's doing the rounds we'll find in relation to the some Coke caps. So let's have a look. First of all, at some co cap now, in some co Lord, Hoffman made the distinction between advice and information. So if I give you advice and I'm gonna put my hand in the fire is defendant. But all the loss that comes from that of, I suppose if I just give you information that's quite different. So the information is a much smaller amount of loss, but the picture says it all. Really. I mean that that's quite a smart tower, that that's the information and advice tower on BP Hughes in Holland. Be pieces. Isn't Hughes Holland is a misguided investment to make a residential development out of a disused. I have said it didn't look like that. It was in a terrible state. Um, aircraft out what? You're gonna need a good lift on you, really? Or a lot of steps. So not ideal for residential development purposes, I would have said, although they do come with a lot of land. So the idea off building or investing in this was attractive to Mr Gabriel, but it was a misjudgment on whale went pear shaped. He blamed this listers quite sensibly lost on board. How much of a contribution this listers make to the whole transaction is what we're talking about. Look at the italics where you provide only a limited part of the material, but the client decides the process of identifying the other. Relevant considerations in the overall assessment of the commercial merits are exclusively matters for the client, the professionals, legal responsibility, the scope of the duty does not extend toe underwriting the decision because you better decision. I think I've provided a piece in the jigsaw. You've done the rest so they're liable only for the financial consequences of the information, not the whole thing. The information advice point is quite important because if you get that wrong then and you give advice, then there is a duty to protect from risk. So if the advisor has a duty to protect the client toe, warn the client for the full risks, then that could bay a question off Sankoh. But Sam Cohen, the reverse where you say actually it is advice. It's not just information. This guy knows nothing. They're relying upon you as a defendant to explain everything to them. And the problem is, I think lawyers do badly out of some Coke. Us. Everything we do is complicated. It's better used with valuers. You just get evaluation and then you decide what you want to do with it. But where you're clinging to your lawyer because they're going to do some conveyancing or some other thing, which you really need help with, maybe a will or something, which is tax planning. It's complicated, and so it's much more difficult to say. Well, it's any information intends into the advice. I don't think it's easy to run some CO with legal transactions, but it's not impossible. Just depends on how it's been set up. As we can see, Sankoh has had quite the sort of big impact upon the landscape. Off loss on If we look It, um, hassle here. Andi champion consulting these and tax advisers. This is 2017. Cade's tax advisers were held to have been negligent with respect to their advice to the claimants to invest in to tax savings schemes. Defendants were providing into mines roles and just information with the corresponding obligation to consider a lot consequences, BP assumptions said the distinction was flat sensitive valuers One end, whereas an investment advisor at the opposite end rather like the lawyer is complicated. And how could I? How could I possibly know? I'm I'm clinging onto you The dear life. I have no knowledge at all. You are my Saviour through this difficult passage, this difficult transaction. So the fact sensitivity is a disparity and knowledge, a dependence of reliance, a lack of exercising your own judgment or the possibility of my exercising your own judgment. Okay, now, if there is a loss that derives from this Sumco point, then it's likely to be purely economic. And years ago we learned about pure economic loss. A unique I mean, that was many years go over, some of us on. I'm pleased to say that I don't think it's such an interesting descent ation topic anymore, because basically, theme, the cases of Kaparo have really finessed it on din negligence. You are in the Hedley Byrne. You are in a Henderson case. You're deep in it. It's not the ginger beer bottle in the snail. It's a special relationship. It's a special relationship. Then we don't need to worry too much about it, so there is still a policy point of three. It's gotta be reasonable to impose the liability, but usually it will be. It has been updated in the court of appeal in the job in case there is a duty of care caused by the several design projects. The problem is that the court had to look at the duty of the consultant not in relation to the one client, because they were deep in there was enough, you know, special relationship to say Yeah, pure economic loss. Fine. So they refer to Kaparo and Henderson. Um, but it's in relation to the associate ID members of the group. So other companies And that's where the case said, Court said, No, you know you can. You do what you do with one group with one company, but not everybody else. They're not your clients. Why would the special relationship spill out onto them? Let's go back to the point in our webinar now where we're just going to remind ourselves off something that is we want to touch on a little bit, which is the loss. Often chance And I did just want to remind ourselves, uh, off the Perry and Rae Lee's case. Now we've jumped out of order a bit because we did duty and then we did loss. But then that's okay, because Sumco pushes the duty onto the loss and vice versa. And pure economic loss now is is still there but not usually used. Unless you're not a party to the retainer loss of a chance, you can. You see the Russian dolls on my slide. The loss for Chance point has been really had an exhaustive treatment in Perrin. Really? So you can't really do lost a chance without looking at that new Supreme Court Cates? Andi, this is where the Supreme Court gave us. Um, really good advice on how to approach. And the reason I've got Russian dolls is because lost the chance disappears and get smaller and smaller and smaller, and it does involve an element of key Stage two Maths gang. You have to be able to multiply fractions, and if you multiply fractions, they will get smaller again. So if you're a defendant, pushing the causation into an arena off loss of John's is a fabulous idea and something to avoid, like the plague. If you're a claimant, So at first instance, he he fails because Mr Perry, Lex blacks credibility and he got sort of problems on social media. It's a typical P I litigation where they're dancing in a club on social media, who it up to be removed quickly. Before the case, the Supreme Court judgment in Karen Rabies said, This is a lost litigation opportunity. Onda lost transactional. Same thing. It's not when you start to measure the probability a balance of probabilities is where we start from. If they don't succeed on the balance of probabilities, the claim fails entirely. The loss of the chance stage. The evaluation is not applied to whether a claimant would have brought a plane, which is assessed on balance of probabilities, but only to the assessment of the lost chance. At this stage, a trial within a trial is inappropriate. So if you're using loss of a chance, then it's not whether or not its balance of probabilities. The point is that it's whether or not there is a real possibility. So the rial possibility part of Perry in Rae Lee's means that you're gonna have a real chance. So it's not just negligible, it has to be a really chance. So if we had eggs, there's a real chance we could have bacon if we had bacon. In other words, well, this is a few things that are possible that in a counterfactual situation, but some of them are so negligible we can't take them into consideration. So it's not just balance of probabilities will measure everything on a 51 person, but when it needs a bit of legs toe. So as a defendant, you're gonna say, First of all, I want lost the chance. And secondly, what you're running in the counterfactual situation is so out there that I can't really use it. It's just too low for the court to consider within the Perry and Rae Lee's framework. Okay, now we certainly need to finish off our time together, and we're going to finish off our time together by reminding. But this is the first thing I look at. The first thing I look at is the exclusion pools. I put the chance few Is there an exclusion clause? Are you a trader? All? Are you a consumer? How many terms and conditions I see that don't make a difference between the two If you'll be to be, you can exclude everything if you're be to see you certainly can't, because if you'll be to see you're gonna be gray listed under Consumer Rights. Actually, job to if you'll be to be. It's a question of reasonableness on the Unfair Contract Terms Act. There's three parts to that slide is from problem types of liabilities that you can't exclude death and PR. But normally the reasonableness will go to bargaining power on bargaining strength and certainly with businesses that's deemed almost B two. B is deemed to be equal bargaining strength. So as we finish, the Good Life Foods case is an exclusion clause, whole fire protection that excluded everything. Andi was upheld despite the deletion off damage to persons all the like whatever they are, because that's too far. And I would have said that would have ruined the clothes. You can't exclude P I death. But the Court seven that part marched on. So despite the fact that the fire protection system failed to squirt any water, the exclusion clause was upheld and it's a one off several court of appeal cases we've had in 2016 2017 where the court. Love these. You know, I'm struggling to find a good example of Dr So it really is about making sure that you have got fantastic exclusion architecture. I think you know, people miss a trick with it. Really, Andi, I've advised several people who were claiming to said, Oh, well beyond right now. And it won't be unreasonable. Your losses capped. That will hold. That's the current state of play on actor. So thanks. What a week. Come. Bring limitation. Fabulous place to start is their duty. The retainer couldn't be the defense to the taught. Tricky. I always find both fluid fax sensitive decision, causation, loss of a chance. And we didn't talk about the In any event that turned up in some of the cases that we looked at us well would make any difference in any event, the Sun Ko case, the B p E case. And it's its approach to information. Advice on the capping of loss to information only. We've talked about an updated our knowledge on exclusion clauses which are very powerful at the moment. Onda Tremendous shield for a defendant. I hope that's been some help. Thanks for being with me. Come on,