Disputes Quick Read – 46 / 57 观点
In a recent professional negligence case concerning tax schemes, the High Court has provided further guidance on the application of the assumption of responsibility test in holding that a leading tax QC did not owe a duty of care to prospective investors.
Mr Thornhill QC advised Scotts Private Client Services Limited (Scotts) who were the promoters of a tax scheme involving a film distribution business (the Scheme). He also advised two out of the three LLPs which were formed for the purposes of the Scheme. Participation in the LLPs was marketed to potential investors on the basis that they would be entitled to tax relief against their income or capital gains for trading losses that the LLPs were anticipated to make. HMRC subsequently refused the tax reliefs claimed by the investors in the Schemes. On or around 22 September 2017 HMRC wrote to the individual investors in each of the three LLPs making a settlement offer.
The Claimants were over 100 individuals, each of whom were members of one of the three LLPs. Mr Thornhill QC was not engaged to advise any of the Claimants, although he did consent to: (i) being named as tax adviser to Scotts as well as to two of the LLPs in the Information Memorandums (the IMs) and; (ii) the tax opinions he had provided being made available to potential investors, if they requested them.
The Claimants claimed that Mr Thornhill owed them a duty of care concerning advice he gave to the promoters and the LLPs and consented to being made available to potential investors, and that they relied on his advice in entering into the Schemes. The Court disagreed:
On that basis, no duty of care was owed to the Claimants.
The Court also considered a number of other issues:
Issues of assumption of responsibility commonly arise in professional engagements. Care should of course be taken properly to limit the parties to whom an adviser owes a duty of care. While the factual circumstances of the relationship will need to be considered, this decision reflects a continued willingness of the English Courts to place appropriate weight on limitations set out in writing documents; the language of the IM was critical here.
It of course follows a further example a few months ago in Knights v Townsend Harrison Limited EWHC 2563 QB, in which the Court upheld the terms of an engagement letter in respect to the scope of advice to be given. The case provides useful commentary on the extent of a professional adviser's duty of care and will be welcome news for professional advisers.
作者 Nick Storrs
作者 James Bryden
作者 Stuart Broom
作者 Emma Allen
Welcome news for those pursuing fraud claims in the English Courts