Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 11

CA7/13

Lady Smith

Lord Brodie

Lady Clark of Calton

 

OPINION OF LADY SMITH

in the cause

NRAM PLC

Pursuers and Reclaimers;

against

JANE STEEL

First Defender and Respondent;

and

BELL & SCOTT LLP

Second Defenders and Respondents:

Act:  Clancy QC, Hawkes;  TLT LLP

Alt:  Duncan QC, Paterson;  CMS Cameron McKenna LLP

19 February 2016

Introduction

[1]        NRAM Plc, the pursuers and reclaimers, are commercial lenders.  Jane Steel, the first respondent, is a solicitor and, until 1 September 2006, was a partner in Clairmonts, solicitors.  Clairmonts was, on that date, taken over by Bell and Scott, the second respondents, and Ms Steel then became a partner in that firm. 

[2]        NRAM granted loan facilities to Headway Caledonian Limited (“HCL”), a client of Ms Steel’s, in relation to its purchase of four commercial units at Cadzow Business Park in Hamilton, in return for which HCL granted security over the whole property.  NRAM were misled into discharging the entire security at a stage when it ought to have been left in place in relation to two of the units.  NRAM say that that was due to negligent misstatements for which Ms Steel should be held responsible.  HCL has since gone into liquidation and NRAM says that there is little or no prospect of their recovering the outstanding loan.  NRAM looks to the respondents to make good their losses which, they aver, amount to £458,723.99 plus relevant interest.

 

The issue

[3]        There are two issues in the reclaiming motion:

1. Did the Lord Ordinary err in law in holding that Ms Steel owed no duty of care to NRAM when she made the erroneous statements that led to the discharge of their entire security?
2. Did the Lord Ordinary err in law in assessing damages on the basis of assuming that NRAM would recover £ 70,351.50 from the liquidator of HCL?

It was not disputed that Ms Steel’s conduct fell below the requisite professional standard.  What, according to the Lord Ordinary, prevented NRAM from recovering their losses from the respondents was that she did not, in the circumstances, owe them a duty of care. 

 

Background

[4]        The facts agreed and as found by the Lord Ordinary – who heard evidence – can be summarised as follows. 

 

Ms Steel, HCL and Cadzow Business Park

[5]        By 2006, Ms Steel had acted for Hamish Munro for many years.  Mr Munro had interests in various companies including HCL.  In 1997 HCL bought Cadzow Business Park; there were four units – Units 1,2,3 and 4 - and the property was held on two separate titles both registered in the Land Register.  HCL borrowed money from NRAM and granted an “all sums due and to become due” standard security over all four units when it was acquired. 

[6]        It also, on 27 June 2002, granted a floating charge over all its assets in favour of NRAM. 

 

Sale of Unit 3, Cadzow Business Park

[7]        In May 2005, HCL sold Unit 3.  Ms Steel acted for HCL in the transaction in the course of which she sent NRAM two Deeds of Restriction – to release Unit 3 from NRAM’s security - for execution by them.  NRAM executed those documents, returned them to Ms Steel and following settlement of the sale of Unit 3, received a capital repayment reducing HCL’s overall indebtedness but leaving it secured over Units 1, 2 and 4.

 

Lossiemouth Sale

[8]        In November 2005, HCL sold a property that it owned in Macdonald Drive, Lossiemouth.  Once more, Ms Steel acted for HCL.  NRAM held a standard security over the subjects of the Lossiemouth sale.  Ms Steel sent NRAM a draft discharge for signature, which they signed.  They received funds in repayment of the whole of that loan.

 

Sale of Unit 1, Cadzow Business Park

[9]        In May 2006, HCL entered into heads of terms for the sale of Unit 1 at Cadzow Business Park.  Ms Steel was instructed by HCL to act for it in that sale.  The price was to be £560,000.  Ms Steel was instructed to obtain the release of Unit 1 from the standard security.  By September 2006, Mr Munro had agreed a partial redemption figure with NRAM.  On 17 September 2006, he forwarded to her an email he had received from Mr John Lindsay of NRAM:

“Subject: Headway Caledonian Limited

Hamish,

Further to last week’s discussions, I confirm we shall be satisfied to receive £495,000 coming in permanent Loan reduction from the sale of Unit 1 Cadzow Business Park, Hamilton.  When Clairmonts require a formal figure, can you please ask them to write to Edinburgh office at the same timing advising the likely completion date.  I am away over the next fortnight but either Julie or Patricia will address any queries.

 

Units 2 & 4: what sum comes in reduction will basically depend on which unit goes first.  We now have up to date valuation figures from D M Hall and, subject to there being no major market movements over the next 3 – 6 months, will use these as the basis for our calculation.

 

John

Commercial Finance Manager

Northern Rock Commercial Finance…”

 

The repayment figure of £495,000 was stated in a “Partial Redemption Pro Forma” which had an expiry date of 9 October 2006.  No further pro forma was prepared or issued in relation to the sale of Unit 1 or any other unit. 

[10]      The sale was delayed pending preparation and execution of a Deed of Conditions and the consequent revisals of various leases.  By February 2007, that work appears to have been completed and on 10 February 2007, Mr Munro emailed Ms Steel in the following terms:

“Subject: Unit 1 Hamilton

 

Jane

In case this settles whilst I am away – please pay free proceeds after Northern Rock – they taking £470k to

Headway Caledonian Limited

………

..  ..  00

……..Bank ……..

Thanks

Hamish M Munro

Briar Hall Estates Ltd

………

Glasgow…..”

 

Ms Steel’s email of 22 March 2007 and subsequent events

[11]      The transaction for the sale of Unit 1 was due to settle on 23 March 2007.  At 5pm, on 22 March 2007, Ms Steel emailed NRAM’s case management team in the following terms:

“Subject:  headway caledonian limited sale of Pavillion 1 Cadzow Park Hamilton (title nos LAN 6421 and LAN 124573)

 

Helen/Neil

I need your usual letter of non crystallisation for the sale of the above subjects to be faxed through here first thing tomorrow am if possible to 0141 … …. marked for my attention – I have had a few letters on this one previously for various other units that have been sold.  I also attach discharges for signing and return as well as the whole loan is being paid off for the estate and I have a settlement figure for that.  Can you please arrange to get these signed and returned again asap.

 

Many thanks

 

Jane A Steel

Partner

For Bell & Scott LLP”.

 

Neil Atkin, one of the addressees in that email, forwarded it to Martin Clarke, the head of NRAM’s Loan Review Team; he read it and it caused him to authorise both a letter of non-crystallisation and the execution and release of the discharges.

[12]      On 27 March 2007, NRAM posted the executed discharges to Ms Steel and, on that day, they received from her firm the sum of £495,000.  A substantial part of HCL’s loan remained outstanding; despite that, on 29 March 2007, Ms Steel forwarded the discharges of the entire security to the purchaser’s solicitor and they were duly registered.

 

The misstatements

[13]      NRAM did not have solicitors acting for them in any of these three transactions.  The persons to whom the email of 22 March was addressed were not solicitors.  Ms Steel knew that the persons she dealt with at NRAM in relation to the sale of Unit 3 and in relation to the Lossiemouth transaction were not solicitors.  The Lord Ordinary (para 56)  was satisfied that she either knew or ought to have known that NRAM would not instruct solicitors to act for them in relation to the sale of Unit 1. 

[14]      Mr Munro had not instructed Ms Steel that he was intending to repay the whole of the outstanding loan.  He did not provide her with a settlement figure for repayment of the whole of the outstanding loan.  He had not instructed her to seek or obtain discharges of the entire security.  HCL were not entitled to seek discharges of the entire security.  Nor had Mr Munro instructed Ms Steel that any unit other than Unit 3 had previously been sold.  Accordingly, the email of 22 March 2007 contained a series of very significant misstatements and called on NRAM to execute discharges of the entire security but Ms Steel had no actual or ostensible authority from her client to make the statements or require wholesale discharge of the security; none of it emanated from HCL.  The only source was Ms Steel (Lord Ordinary at paras 66 and 68).  The Lord Ordinary inferred (para 67) that the purpose of the misstatements was to explain to NRAM “why it was that discharges were appropriate”. 

 

NRAM’s reliance on the misstatements

[15]      The Lord Ordinary (at para 73) found that the email of 22 March 2007:

“(i) contained no disclaimer; (ii) had a degree of urgency in its tone; (iii) was communicated directly to the pursuers, rather than to professional advisers; and (iv)..came from a solicitor – a trustworthy source.”

 

He accepted that those were factors which favoured the view that there was “the requisite foreseeability and reasonable reliance.”

 

HCL after the sale of Unit 1, its liquidation and the outstanding debt due to NRAM

[16]      HCL continued to make interest payments to NRAM until 14 April 2010.  It was put into liquidation in July 2010.  Meanwhile, HCL had sold Unit 4 in September 2007 and Unit 2 in December 2007, for £750,000 and £325,000 respectively.  Ms Steel acted for HCL in relation to each sale and her contact with NRAM was limited to seeking and obtaining letters of non- crystallisation.  When HCL went into liquidation, the outstanding balance of its loan from NRAM was over £1/2m.  The liquidator made one payment to them, of £50,000, in July 2014 but no further payments had been made by the date of proof; we were advised that, as at 20 October 2015, the final distribution to NRAM was not likely to be more than £2,500 – 3,000. 

[17]      In evidence which the Lord Ordinary appears to have accepted, Mr Clarke stated, in chief (per his witness statement and supplementary witness statement):

“12.1 To my knowledge, we have never had any other issues with discharges being registered when full redemption funds have not been provided.  I do not think that NRAM were at fault here.  NRAM acted on Jane Steel’s instructions and I think it was reasonable to expect full proceeds to be remitted following her email of 22 March 2007.

12.2 …the request which came from Jane Steel on 22 March 2007 for letters of non- crystallisation and discharges to be signed and sealed was clear in that she stated that she had a full redemption figure.  There was nothing in this email to raise concern or cause us to question this.  As a solicitor, we would be content to rely on her word.

…

1.7 I have no reason to suppose that any reasonable policy would require a solicitor’s assertion of fact to be double- checked as a matter of course.” 

 

[18]      In cross examination, he agreed that if, on receipt of the email of 22 March he had looked at the customer file, he would have seen that what had previously been requested was a figure for partial redemption but, as the Lord Ordinary records (para 27), his evidence continued “given the clear terms of the email there had been no need to check the file.  If there had been any ambiguity in the email he would have checked the file, but there had been no such ambiguity.”

[19]      Whilst, on further questioning, Mr Clarke conceded that there was a discrepancy between the subject heading of the email and the body of the text when read together, he said he did not have clear recollection of what he thought at the time.  He did, however, believe that his understanding would have been in accordance with the evidence he gave which was that there was no ambiguity; the discharges were executed on the basis that the whole loan was being repaid.

 

Banking practice

[20]      There was no expert or other evidence about banking practices in general or about what a prudent bank would have done in the circumstances in which NRAM received Ms Steel’s email of 22 March 2007.

Briar Hall

[21]      Briar Hall was another company owned by Mr Munro.  It owed money to HCL.  The liquidator of HCL provided two witness statements; the first was pessimistic about recovery of the Briar Hall debt.  The second, dated 14 September 2014, indicated that he had had further discussions with Mr Munro , that the company expected its financial position to be clarified in around September 2014, and that he anticipated the Briar Hall loan being repaid in full but that that was dependent on that company’s ongoing trading position . 

 

The Lord Ordinary’s Opinion

[22]      The Lord Ordinary held that Ms Steel did not owe NRAM a duty of care because:

“[78] In the whole circumstances I have no real difficulty in concluding that it was not reasonable for a bank in the position of the pursuers to rely on the misstatement information without checking its accuracy; and that a solicitor in the position of the first defender would not foresee that such a bank would reasonably rely on that information without carrying out such a check.  Any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file.  It follows that whether the test applied is the threefold one in Caparo, or the assumption of responsibility test, the pursuers’ primary case fails.  It also follows, given that the pursuers’ reliance was unreasonable and that that reliance and the resulting loss were unforeseeable, that the claim fails to satisfy the criteria discussed in Midland Bank plc v Cameron, Thom, Peterkin & Duncans  and Frank Houlgate Investment Co Ltd plc v Biggart Baillie LLP…”.

 

Before reaching that conclusion, the Lord Ordinary had addressed two questions which he regarded as being of central importance (see para 72) – namely (i) whether it was reasonable in the circumstances for NRAM to rely upon the misstatements without checking them by seeking clarification from Ms Steel and/or looking at its file, and (ii) whether it ought to have been foreseeable by Ms Steel that NRAM might reasonably rely on the misstatements without checking them and thereby suffer loss.  The questions were asked and answered by him in that order (see para 78, above); it was not, he said,  reasonable for NRAM to rely on the email without checking its file and, therefore, a solicitor in Ms Steel’s position would not foresee them doing so. 

[23]      Before that, at paras 63, 65, and 66, the Lord Ordinary had recognised that it was relevant to consider whether or not Ms Steel was, on an objective assessment, to be regarded as having assumed responsibility.  However, other than observing – in NRAM’s favour - that it was not open to Ms Steel to say that she was only transmitting information that came from her principal on that principal’s behalf (para 66) and rejecting a submission for NRAM that the circumstances of the present case were comparable to those in Dean v Allin & Watts [2001] 2 Lloyd’s Rep 249, he did not, at that point, determine whether or not she was, in all the circumstances, to be regarded as having assumed responsibility.  That may, it seems, be because of the distraction of an issue not raised by parties at any stage but raised by him in the course of submissions, namely whether or not Ms Steel was in breach of an implied warranty of authority (see paras 68 and 69).  Having observed that if it had been open to him to determine that issue he would have concluded that she was in breach of that warranty, he moved on to the questions in para 72 referred to above and did  not return to assumption of responsibility other than in passing, at para 78 where he dismissed it because he considered it not reasonable for NRAM to have relied on Ms Steel’s statements without checking them and that a solicitor in her position would not have foreseen that they would do so. 

[24]      Regarding damages, the Lord Ordinary took £440,162.80 as his starting point and then, “wielding a broad axe”, deducted £70,351.50 to allow for, as he put it, NRAM’s prospect of further recovery from the liquidation.  £70,351.50 amounted to one-half of the outstanding sum due to HCL from Briar Hall.

Parties’ submissions

Reclaimer

[25]      The case for the reclaimer can be summarised as follows.  The relevant authorities demonstrated the importance of considering the precise circumstances of the individual case when determining whether or not a duty of care arose.  A key feature of this case was that Ms Steel was acting wholly without instructions, on her own and outwith her mandate.  That feature set this case apart.  Further, she did so in circumstances where her client and NRAM were not at arms length; they had a common interest in achieving the sale of Unit 1.  There had plainly been an assumption of responsibility by Ms Steel but the Lord Ordinary had failed to apply the test of assumption of responsibility properly in the circumstances of this case and bearing in mind the guidance in Customs and Excise Commissioners v Barclays Bank plc [2007] 1AC 181.  The Lord Ordinary relied on authorities relating to circumstances where the solicitor had been acting with the client’s authority. 

[26]      Even if it was necessary or appropriate to go on and consider the “threefold” test discussed in the Customs and Excise case, the Lord Ordinary had erred in placing so much emphasis on NRAM’s failure to check their file before relying on Ms Steel’s email.  Senior counsel accepted that that failure was a relevant consideration but it was wrong to place it head and shoulders above all other considerations.  For the reasons explained in, for instance, Dean v Allin & Watts by Lightman J, at paragraph 28, the lack of authority was a relevant, important and weighty factor; the Lord Ordinary had failed, when reaching his decision, to give it weight at all, however, as was demonstrated by its absence from his list of the four relevant factors that favoured NRAM’s case (para 73).  There were in fact seven such factors and, taken together, they showed that a duty of care arose.  They were (i) the community of interest between the parties, (ii) the trust engendered from previous dealings, (iii) the unequivocal terms of the body of the email, (iv) that Ms Steel could have but did not qualify her assertions as being based on information provided by her client, (v) the fact that the information in the email was conveyed in an unequivocal and unqualified manner, (vi) the urgency and clear impression that Ms Steel expected a prompt response, and (vii) that Ms Steel had no instructions that the loan was being wholly repaid, or that she had a redemption figure for that or that discharges were required.  In any event, on the evidence and in all the circumstances, the Lord Ordinary had no basis for his conclusion that any prudent bank would have checked its file first and no basis on which he could properly conclude that a reasonable solicitor in Ms Steel’s position would have foreseen that NRAM would do so.  Mr Clancy, for NRAM,  relied on passages in BCCI (Overseas) v Price Waterhouse (NO. 2) [1998] PNLR 564, in the opinion of Sir Brian Neill, at 582 – 8 and Smith v Eric S.  Bush [1990] 1 AC 831, and the references there to the need to consider the degree of reliance which the adviser should, in the particular circumstances, reasonably have anticipated would be placed on its accuracy by the recipient of the information.  He submitted that it was clear that the reasonable reliance/requisite foresight criterion was satisfied.  Even if , despite the lack of evidence, the Lord Ordinary was entitled to conclude that a prudent bank would have checked its file, that was not decisive of the issue.  It placed far too much weight on the failings of the bank and little or no weight on the clear culpability of the defender. 

[27]      Mr Clancy also submitted that, in applying the “threefold test”, the Lord Ordinary had failed to address its third limb namely whether it was fair, just and reasonable to impose the duty, in any meaningful way, that being a “filter by which otherwise tenable cases of liability in negligence may be excluded” (Dean v Allin & Watts per Sedley LJ at para 48).  Here, the fact that Ms Steel was acting without authority pointed strongly to it being fair, just and reasonable to impose liability.  As for the first and second limbs of the threefold test, it was clear from the facts that Ms Steel ought to have foreseen that NRAM would rely on her email, reposing a default level of trust and confidence in her and there was no doubt that there was sufficient proximity between them.  The imposition of a duty of care would be a sensible and just outcome

[28]      In a brief reply to Mr Duncan’s submissions (for the respondents), Mr Clancy said that, in his reliance on a series of authorities beginning with Piglowska v Piglowski ([1999] 1 WLR 1360, Mr Duncan had gone far beyond his note of argument.  Further, Mr Clancy stressed that he was not seeking to challenge any of the Lord Ordinary’s findings in fact; rather, his case was rooted firmly in a submission that the Lord Ordinary had failed to apply the law correctly to the facts of the case.  He was not challenging the facts found by the Lord Ordinary; whilst he raised some points which might be described as ‘mixed fact and law’, his challenges were legitimate ones. His central argument was that when it came to the legal part of his analysis, the Lord Ordinary had fallen into error. This was not Thomas v Thomas (1947 SC(HL) 45) territory nor were the observations about interfering with an exercise of judicial discretion in Piglowska  relevant.  Insofar as his challenges concerned weight they did not depend on factors available only to the judge of first instance; it was, accordingly, a case where an appellate court could consider matters of weight for itself.

[29]      Mr Clancy presented a separate submission in relation to the Lord Ordinary’s indication that if he had held that Ms Steel owed a duty of care, he would not have sustained the respondents’ plea of contributory negligence; the argument was, essentially, that that disclosed that his entire approach was illogical. The submission was not, however, pressed and Mr Clancy was, I consider, wise to refrain from doing so; the issue was a separate one demanding of a different analysis and I do not see that the Lord Ordinary’s conclusion on that issue is necessarily at odds with his conclusion on the main duty of care point.

[30]      Turning to damages, Mr Clancy submitted that the evidence did not support the Lord Ordinary’s finding.  The liquidator of HCL had provided two contradictory witness statements; in one he was pessimistic about the prospects of recovery of a debt owed to HCL by Briar Hall.  In the second, he gave a more optimistic view, but that was only based on having had further contact with Mr Munro.  The information was too scant and did not provide any proper basis for the Lord Ordinary’s arbitrary assumption. 

 

Respondent

[31]      The response to the reclaimer’s case can be summarised as follows.  Insofar as the reclaimer’s attack was on the Lord Ordinary’s evaluation of the facts, this court required to exercise caution.  Whilst the decision in this case was not a discretionary one, the observations in Piglowska at p.1372D were relevant.  Insofar as the attack was on his reasons, this court should not be quick to find them inadequate.   To succeed, NRAM required to show that the Lord Ordinary had gone plainly wrong or that he reached findings and/or conclusions that no reasonable judge could have made or that his findings cannot reasonably be explained. 

[32]      Although not foreshadowed in his note of argument or by means of their inclusion in the list of authorities, senior counsel for the respondents made passing reference to McGraddie v McGraddie 2014 SC (UKSC) 12, Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203 , and Hamilton v Allied Domecq Plc [2007] UKHL 33 to, it seemed, reinforce his submission that it was not for this court to interfere with the Lord Ordinary’s evaluation of the facts or the inferences drawn by him and that the rule in Thomas applied as much to secondary conclusions of fact as it did to primary findings.

[33]      Regarding assumption of responsibility, it was a high level test but the conclusion depended on low level issues.  They were those of whether it was reasonable for NRAM to rely on Ms Steel’s email without checking their file and whether it was reasonably foreseeable that they would do so.  The Lord Ordinary’s conclusion that it was not reasonable to do so was one which was open to him and based on him having found the email to be vague and ambiguous and that it cried out for clarification.  Further, Ms Steel did not cause NRAM to enter into an agreement with HCL; rather she got the terms of their contract wrong.  The Lord Ordinary had not concluded that there was any particular potency in the fact that the email came from a solicitor and it was a solicitor who was sending the discharges to be signed.  Were it to decide now that there was such potency, this court would be entering into forbidden territory.  He referred to the guidance in the Customs and Excise case but cautioned the court against applying it of new.  Whilst it would be open to the court to determine that on the facts, the only answer open to the Lord Ordinary was that a duty of care existed, it could only do that if it based its decision on the Lord Ordinary’s assessment of primary facts and the inferences drawn from them. 

[34]      Mr Duncan said that the respondents relied on the assumption of responsibility test; on that test, duty of care was not established.  Ms Steel did not assume responsibility for advising NRAM about the terms of the loan agreed between them and the borrower.  That was a matter for the individuals who had actually discussed and agreed it namely Mr Munro and NRAM.  Thus put, the argument seemed to be that she had not acted alone.   If he was wrong about that and Ms Steel was not, in truth, acting for her client, that did not get NRAM “home and dry” because questions of reasonable foresight then came into play.  The test was an objective one.  The court could not go behind the finding that it was not reasonable to rely on the email.

[35]      As for the threefold test, its constituent parts were blunt tools, the focus had to be on the facts of the individual case, the four questions discussed by Lord Jauncey in Midland Bank plc v Cameron, Thom , Peterkin & Duncans 1988 SLT 611 were relevant, as was the fact that Ms Steel was not passing information that lay within her area of skill. 

[36]      Dean v Allin & Watts could be distinguished since it involved joint enterprise and was of no assistance, the reclaimer’s criticisms were essentially ones of weight, the Lord Ordinary had taken account of Ms Steel being taken to be trustworthy, and there was a primary finding that the email was not unequivocal.  On the matter of lack of authority, Mr Duncan added a new submission – not foreshadowed in his note of argument or averments and not explored at proof - that Ms Steel had ostensible authority because she was not inducing a fresh loan agreement. 

[37]      Regarding damages, it was a matter for the Lord Ordinary.  There was evidence about future uncertainty and he had to swing a broad axe.  His decision was not open to challenge. 

 

Discussion

Duty of care to NRAM

[38]      It is not disputed that NRAM relied on the email and that it caused not only the issue of a letter of non-crystallisation but, critically, the execution and return of  two discharges the effect of which was to leave a substantial debt that was owed to it by HCL, unsecured.  As a generality, the law imposes a duty not to cause unintentional but foreseeable harm.  Where, however, that harm is economic loss,  the court has, since Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465 been faced with the need to decide whether, as a matter of  policy, a duty of care should be held to have existed and in a case such as the present one, the question becomes whether or not the law recognises or imposes, in the particular circumstances of the case, a legal duty not to cause economic loss by means of a  careless or negligent  communication. 

[39]      Normally, a solicitor acting for one party in a property transaction does not owe a duty of care to another party (Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560; [1992] 2 WLR 867; [1992] 1 ALL ER 865, per Sir Donald Nicholls V- C at p.570D; White v Jones [1995] 2 AC 207 at p. 223A- B and 256D ; McCullagh v Lane Fox & Partners Ltd [1996] P.N.L.R  205 at p. 233F – 234B; Frank Houlgate Investment Co Ltd plc v Biggart Baillie LLP 2010 SLT 527 at para 13; 2012 SLT at para 23).  However, Mr Duncan accepted, it was not, in the circumstances of this case, open to them to rely on that general rule.  That concession was, we consider, well made.  Ms Steel had no actual or ostensible authority for making the series of critical statements in the email of 22 March or, importantly, to call for discharges to be executed by NRAM.  The Gran Gelato shield was not, accordingly, available to her. 

[40]      Insofar as Mr Duncan may also, at one point, have sought to advance a case of ostensible authority, I would reject it.  No such case was averred, no such case was explored at proof, and there was no cross appeal against the Lord Ordinary’s conclusion that Ms Steel did not have actual or ostensible authority (para 68). 

[41]      Returning to the normal situation where a solicitor communicates with the party on the other side of a transaction, it is also evident from the discussions in the authorities that even where a solicitor is acting as agent for a principal, that mere fact may not be sufficient to prevent a duty of care being owed to another party in the transaction.  In McCullagh v Lane Fox & Partners Ltd, at p.229, Hobhouse LJ, when referring to the reasoning of the Vice Chancellor in Gran Gelato said:

“With respect to the Vice Chancellor, when he says that ‘where the principal himself owed a duty of care to the third party, the existence of a further duty of care, owed by the agent to the third party is not necessary’, he appears to overlook that, in the relevant context, the duty in tort arises from the act of the solicitor in choosing to answer the inquiry.  There is only one duty; it is the duty of the solicitor to take reasonable care in answering.  The duty in tort is both created and broken by the solicitor.”

 

Accordingly, as was noted by Lord Drummond Young, at para 15 of his opinion in the Frank Houlgate case, (i) the mere existence of agency is not of itself a reason for excluding liability and (ii) liability may arise where the agent chooses to provide information and does so in such a way that it can reasonably be inferred that he undertook a duty of care in respect of it.  Thus, the solicitor who has authority but volunteers to do that which he does not need to do – who chooses to convey information – may find himself being held to have owed a duty of care to a person other than his client.  I draw attention to this because it seems to me that  that it points to there being an even greater likelihood of it being concluded that a solicitor who makes representations to another party to a transaction – and/or calls on them to execute important documents - without having any authority to do so owes such a duty.  To put it another way, if the solicitor ‘goes it alone’ or - as it was described by the Master of the Rolls, Lord Donaldson of Lymington, in Al- Kandari v J.R.  Brown & Co.  [1988] QB 665 at 672 – he “steps outside his role as solicitor for his client” - he runs a significant risk of the recipient of his communications being entitled to look to him alone to make good any loss that results if those are erroneous communications which mislead.  Observations made by the Vice – Chancellor at p. 571-2 of Gran Gelato, indicate that he considered the Al – Kandari approach to be suitable for adoption in a property transaction context.  He said:

“… there will be special cases where the general rule does not apply and a duty of care will be owed by solicitors to a buyer.  A good illustration is the New Zealand decision of Allied Finance and Investments Ltd. v Haddow & Co, [1983] N.Z.L.R. 22.  There solicitors acting for a borrower certified to an intending mortgagee that specified documents had been duly executed and were fully binding on their client and that there were no other charges on the boat which was the intended security.  The solicitors were held to owe a duty of care to the lender in connection with the giving of that certificate.  On any reasonable appraisal of that arrangement, the solicitors must be taken to have assumed personal responsibility to the mortgage for the accuracy of their certificate.  That is a case in which, to adapt the language used by Lord Donaldson M.R. in Al- Kandari v J.R. Brown & Co.  [1998] Q.B. 665, 672, in the context of a solicitor acting in adversarial litigation, the solicitors had stepped outside their role as solicitors for their client and had accepted a direct responsibility to the lender…”.

 

[42]      A review of the relevant authorities demonstrates that assessing whether or not, as a matter of law, a person owes a duty of care not to cause economic loss is difficult and that, in this area suffused with policy considerations, there are no hard and fast rules.  It is understandable why Lord Rodger of Earlsferry, at para 51 of the Customs and Excise, suggested that appellate judges should follow the philosopher’s advice to “Seek simplicity and distrust it” (at 751 -2) and why many have observed that this is an area where the law recognises that pragmatism may play a part (see, for example, Lord Bridge of Harwich in Caparo Industries plc v Dickman [1990] 2 AC 605 at 618).

[43]      Equally, however, as the speeches in the Customs and Excise case make clear, it is of critical importance, in what is essentially a search for a just result, to have regard to the precise circumstances in which the communication came to be made; a review of the authorities reveals factors which have been identified as – in most cases - likely to determine whether a duty of care arises.  When that is done, it is apparent that the question of whether or not a solicitor in the position of Ms Steel could be said, on an objective assessment, to have assumed responsibility was of central importance.  Lord Bingham observed that assumption of responsibility was a “sufficient but not necessary condition of liability” and “if answered positively, may obviate the need for further inquiry” ( para 4).  Lord Hoffman considered it was “critical to decide whether the defendant rather than someone else assumed responsibility for the accuracy of the information”, that if, objectively, the defendant did assume responsibility and there was sufficient proximity there was no need to ask whether it was fair, just and reasonable to impose liability (para 35), and that assumption of responsibility was a useful notion because it drew attention to the fact that “a duty of care is ordinarily generated by something the defendant has decided to do” (para 38).  Lord Rodger said that there was no doubt that passages in the earlier authorities provided support for the view that assumption of responsibility was “the touchstone of liability for pure economic loss” (para 49), that it had “very real value” as a “criterion of liability” in many cases and that it “may be decisive in many situations” (para 52).  Lord Mance said that assumption of responsibility was “...on any view a core area of liability for economic loss” (para 83). 

[44]      Whilst their Lordships also observed that there may not, in practice, be much difference between the assumption of responsibility test and the threefold test (see: Caparo Industries plc v Dickman) of whether loss to the claimant was a reasonably foreseeable consequence, whether there was sufficient proximity between the parties and whether it is fair, just and reasonable to impose liability,  that does not, I consider, detract from, as Lord Rodger put it, the very real value of the question of whether or not the defender assumed responsibility as a criterion of liability.

[45]      In these circumstances, the Lord Ordinary required, when applying the law to the facts, to give careful consideration to, and answer, the question of whether or not Ms Steel fell to be treated by the law as having assumed responsibility for the misstatements and their consequences. I readily accept that the particular circumstances weighed heavily in favour of NRAM’s contention that, on the question of assumption of responsibility alone, they were, when the email was written and sent, owed a duty of care by Ms Steel.  The representations made in an email which she ‘signed’ in her capacity as a solicitor,  particularly those to the effect that the circumstances were such as to require the attached discharges to be signed, were within her area of professional skill. The information was supplied – looking at matters objectively – for the purpose of being relied on by NRAM.   Ms Steel had demonstrated in two previous transactions where NRAM did not have their own solicitor acting for them that she could be trusted.  She knew that “Helen/Neil” were not solicitors and that NRAM did not have a solicitor acting for them in relation to the Unit 1 transaction; indeed, there was, on the Lord Ordinary’s findings nothing to afford NRAM justification for thinking she could not be trusted on this occasion.  NRAM did infact rely on her word “as a solicitor” (see Lord Ordinary’s opinion at para 25).  The representations made were, on the terms of the email, Ms Steel’s representations; they were not, for instance, qualified under reference to what her client had told her.  Further, she had no authority for the representations of fact in the email or for the representation that NRAM required to sign and return discharge documents.  The email was sent at close of business on 23 March and related to a transaction that was to settle the following day; there was a palpable sense of urgency in its terms. 

[46]      Further, I consider that there is merit in Mr Clancy’s submission that, properly understood, this was not an arms’ length transaction.  It was in the interests of both NRAM and HCL to ensure that the sale of the unit was completed.  Both would benefit financially from the proceeds of sale.  In these circumstances, the Lord Ordinary ought not, I agree, to have regarded the case of Dean v Allin & Watts as being of no assistance.  It involved circumstances which , whilst not identical, were comparable and, furthermore, relevant observations about assumption of responsibility, in para 28, where Lightman J, having said that great caution was required in treating statements made by a solicitor on the instructions of his client in the course of a transaction as his own representations, went on to consider the position where the solicitor cannot be regarded as acting for his client and added:

“The solicitor’s position in such a situation is to be contrasted with his position in a situation where the solicitor makes an express unequivocal statement to a third party which is not attributable simply to performing his role as the client’s adviser: for in the latter case the adviser may readily be held to have assumed responsibility to the third party since the explanation of his acting merely as a messenger would be inapplicable.”

 

Those observations, relied on by Mr Clancy, were, in my view, very much in point.  I cannot accept that the email can be regarded as equivocal in its terms.  Insofar as the heading might, in hindsight, be regarded as conflicting with the body of the email (see: Lord Ordinary at para 77), there was no evidence that it was regarded as such at the time.  In any event, it must, I consider, be accepted that the key aspects of the email were unequivocal:  NRAM needed to provide Ms Steel with a letter of non crystallisation and signed discharges in the form attached, as a matter of some urgency, and they needed to do so in circumstances where the whole loan due (for which she had a settlement figure) was being paid off.  That was the purpose of the email; its message was clear and unequivocal.  It was also, of course, wrong but there was nothing in the body of the email to cause doubt as to the veracity of that message.  For reasons which I explain below, resultant harm to NRAM in the form of economic loss was reasonably foreseeable.

[47]      In these circumstances, the Lord Ordinary required to ask whether this was one of those cases where the law attributes assumption of responsibility to the solicitor and, in doing so, provides a complete answer to the duty of care question, obviating the need for further inquiry including inquiry as to whether or not NRAM could or should have checked their file.  I cannot read his opinion as indicating that he did so.  Had that question been asked, I consider it to be inevitable that the conclusion would have been that this was one of those cases.  The factors I have referred to – which are all drawn from the Lord Ordinary’s findings in fact and are more extensive than those listed by him in para 73 – weigh heavily in favour of the law attributing assumption of responsibility to Ms Steel and thus, without further inquiry, imposing on her a duty of care.  It being conceded that if she did owe the duty then it was breached, that would be an end of matters.   

[48]      If, however, the threefold test was a relevant consideration, I note that it was not disputed that the requisite proximity existed.  Accordingly, following the guidance in the Customs and Excise case, the questions were (i) whether a reasonable solicitor would, in all the circumstances, have foreseen that if she sent the email of 22 March with its attachments there was an appreciable risk that NRAM would suffer loss? and (ii) whether, in all the circumstances it would be fair , just and reasonable to impose the duty of care ? 

[49]      The Lord Ordinary determined that a solicitor in Ms Steel’s position would not have foreseen NRAM relying on her misstatements without checking their file.  That was because it was not reasonable for NRAM to have failed to check.  There is, I accept, no doubt that NRAM could have checked and that if they had done so, the errors in the email would have been apparent but Mr Clarke did not accept that he ought to have done so, there was no expert or other evidence about the “basic precautions” (Lord Ordinary para 78) that would have been taken by a prudent bank in the particular circumstances of this case and they are not, in my view, such as would fall within judicial knowledge.  More importantly, the issue of reasonable foresight, which required to be assessed objectively, depended on a consideration of what ought to have been foreseen by Ms Steel when, as a solicitor but without her client’s authority, she urged NRAM to act in the manner and for the reasons set out in her email.   There was nothing in the evidence or in the Lord Ordinary’s findings to indicate to her at that time that she need not foresee that there was an appreciable risk of her email being relied on and acted upon; that, after all, was precisely its purpose.  Since she knew or ought to have known that she was not in fact entitled to call for discharges to be signed, the risk of loss to NRAM was an obvious one.  Nothing in the fact that NRAM could or might check its file before acting in response altered that.  Yet, as I read the Lord Ordinary’s opinion, his decision that loss to NRAM was not a reasonably foreseeable consequence rested ultimately, on that alone and he does not explain how or why that was destructive of all those factors which were indicative of there being, objectively, a likelihood that NRAM would simply rely on Ms Steel’s representations and call for action particularly her status as a solicitor, the commonality of interest between them and HCL, the prior trust engendered, the clear indication in the email of what NRAM needed to do and the sense of urgency. 

[50]      The duty to be considered was the duty to guard against reasonable probabilities (Fardon v Harcourt- Rivington (1932) 146 LT 391, Lord Dunedin); a multiplicity of outcomes may be reasonably foreseeable.  So it is that reasonable foreseeability may be regarded as a mechanism which excludes claims on the basis that no reasonable person in the shoes of the defender would have foreseen the loss in question (see e.g. North Shore City Council v Attorney- General [2012] 3 N.Z.L.R. 341 at para 157 per Elias CJ).  It follows that it is sufficient if  a  reasonable person in those shoes would have foreseen such an outcome.  That which can be identified as reasonably foreseeable is not rendered not reasonably foreseeable in law on account of the possibility of an alternative scenario.  As I read the Lord Ordinary that, however, was his approach and, in my view, it was, in the circumstances, an erroneous one.  I accept Mr Clancy’s submission that, in the circumstances of this case, it was plainly within the reasonable contemplation of a solicitor in the position of Ms Steel that her email would be relied on as being accurate and, importantly, that it would cause the execution and return of the discharges attached to it.  As I see matters, the facts simply cannot support the proposition that no reasonable solicitor would have foreseen reliance by NRAM on the misstatements and that, accordingly, an outcome whereby the discharges were signed and returned was also reasonably foreseeable.  That being so, I can only conclude that the question of whether, in law, Ms Steel is to be taken as having assumed responsibility for her misstatements had to be answered in the affirmative.

[51]      We turn then to the Lord Ordinary’s rejection of NRAM’s claim as failing  to satisfy the criteria discussed in Midland Bank v Cameron, Thom, Peterkin & Duncans, and Frank Houlgate Investment Co Ltd plc.  These cases were, presumably, referred to because they both concerned claims by third parties against solicitors.  The former is a first instance decision and is, I consider, of limited, if any, assistance given that it predated important authorities in this area such as Caparo Industries and that the discussion relates only to circumstances where a solicitor is acting within his authority.  In any event, the present case does not, in my view, fall to be regarded as failing to satisfy the four factors discussed: for the reasons I have explained, I consider that it ought to have been concluded that there was an assumption of responsibility, Ms Steel’s email clearly indicated that, as HCL’s solicitor she was in a position to communicate as she did, NRAM relied on the information and, as I have also explained, such reliance was clearly within the ambit of reasonable foresight.  The latter case involved, again, solicitors who were, for the critical period, acting on the authority of their client.  The reference to these cases does not add to the Lord Ordinary’s reason for rejecting NRAM’s claim; ultimately it rested on the fact that they could have but did not check their file before signing and returning the discharges. 

[52]      As a consequence of the Lord Ordinary’s approach, he did not go on to consider whether the imposition of a duty of care would be fair, just and reasonable.  The context was, for the reasons I have explained, a background of assumption of responsibility and reasonable foresight of significant economic loss suffered by a bank in a sufficiently proximate relationship with a solicitor who had previously shown herself to be a trustworthy source.  The context was also, importantly, that that solicitor whilst acting outwith her mandate and instructions made a serious error and put in train a series of events which caused the bank to suffer significant loss.  What then of the fact that the loss could have been avoided if, having received the email which ought never to have been written and the attachments which ought never to have been sent, the bank had checked its file?  Does that mean that it would not be fair, just and reasonable to hold the solicitor liable?  I cannot identify any policy reason for doing so.  Nor can I conclude that that fact demonstrates that the solicitor should be relieved of liability.  Indeed, it might be thought invidious to suggest that a solicitor can abrogate responsibility for a serious error because the recipients of her communication might have checked rather than relying on what she, as a hitherto trustworthy professional, communicating with them as a solicitor, told them, particularly when she herself took no action to correct the error when, on receipt of the signed discharges, it was within her power to do so.

 

Damages

[53]      I turn then to the question of damages.  The Lord Ordinary required to determine what was a reasonable estimate of the loss and damage suffered by NRAM.  I accept that, in the circumstances, he required to make some allowance for further recovery of the Briar Hall debt.  They were the holder of a floating charge and would be entitled to be afforded priority if any such sums materialised.  To put it another way, on the evidence, I can understand why he did not feel that he could be satisfied, on a balance of probabilities, that NRAM would not receive any further sums from the liquidator and that he therefore had to make some allowance for that against the principal sum.  I note that the deduction made by him allowed, in effect, for recovery of half of the outstanding sums due by Briar Hall.  Another Lord Ordinary might have deducted a smaller sum.  I cannot, however, conclude that this Lord Ordinary erred in his approach to what he correctly, in my view, saw as being  a matter of wielding a broad axe. 

 

Decision

[54]      I have approached my considerations on the basis that the fundamental question is whether or not the Lord Ordinary erred in his application of the relevant law to the facts of this case.  I fully appreciate that this is an area of law characterised by flexibility and fluidity but do not see that as preventing an appellate court from interfering where its clear features have not been applied or have not been properly applied; to proceed otherwise may be productive of injustice of the very sort that the common law seeks to avoid.  It is, moreover, clear from the authorities, as helpfully distilled in the Customs and Excise case, that there are elements that require to be viewed as clear signposts including  whether there has, as a matter of law, been an assumption of responsibility, and whether loss was reasonably foreseeable and whether the imposition of a duty of care would be fair , just and reasonable.  For the reasons I have sought to explain, I consider that the Lord Ordinary’s decision making failed to follow these signposts and if it had done, the result would inevitably have been a finding that Ms Steel owed NRAM a duty of care.  Insofar as my approach involves  accepting that greater weight ought to have been attached to certain factors, I should confirm that I agree with Mr Clancy that this is not a case where weight depended on factors only available to the Lord Ordinary.  Indeed, where considerations of weight have arisen, they are in relation to matters of fact which were largely not in dispute. 

[55]      I would, accordingly, allow the reclaiming motion to the extent of sustaining the second plea in law for the pursuers, finding them entitled to damages of £369,811.18 and reserving, meantime, all questions of interest and expenses.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 11

CA7/13

 

Lady Smith

Lord Brodie

Lady Clark of Calton

OPINION OF LORD BRODIE

in the cause

by

NRAM PLC

Pursuer and reclaimer;

against

JANE STEEL

First defender and respondent:

and

BELL & SCOTT LLP

Second defenders and respondent:

 

Act:  Clancy QC, Hawkes;  TLP LLP

Alt:  Duncan QC, Paterson;  CMS Cameron McKenna LLP

19 February 2016

[56]      I have had the considerable advantage of seeing, in draft, the opinion of your Ladyship in the chair.  Your Ladyship there sets out the circumstances in which the pursuers (referred to in the pleadings as “NR”) seek damages for what is alleged was a negligent misrepresentation contained in the email sent by the first defender (referred to in the pleadings as “Ms Steel”) on 22 March 2007. 

[57]      The email is quoted and then summarised in article VI of condescendence.  The summary characterises the email as containing: 

“the explicit representation by the borrower’s solicitor, upon which NR were entitled to place reliance, that the whole loan was to be redeemed as part of the sale transaction and that, accordingly, NR were required to execute and return full discharges of the securities held by them.” 

 

[58]      It is averred in article XIII of condescendence that at least two of the statements in the email were false, as the first defender ought to have known.  These were:  “the whole loan is being paid off for the estate” and “I have a settlement figure for [the whole loan being paid off]”. 

[59]      Based on the terms of the email and the draft discharges attached to it, the pursuers aver at article VIII of condescendence that the responsible members of NR’s staff were misled into believing that the first defender would repay or arrange the repayment of the whole borrowings on receipt by her of the executed discharges and would not deliver the discharges to the purchasers of unit 1 or permit the discharges to be registered without effecting or arranging payment of the whole borrowings.  If they had not been misled in this way the responsible members of staff would not have executed or returned the discharges. 

[60]      The pursuers’ averments in support of the proposition that the misrepresentation contained in the email was negligent are found in article XIV of condescendence.  They are as follows: 

“The misrepresentations were made negligently.  The information contained in the email was given to NR with the intention that it be acted upon by them.  They relied upon it in executing and delivering to Bell & Scott the discharges provided to them.  But for the misrepresentation, NR would have granted no more than a partial discharge for Unit 1.  In those circumstances, NR would have retained their security over Units 2 and 4 and would have been able, if necessary through enforcement of those securities, to recover the outstanding loan.  Separatim in requesting the execution and delivery of the discharges in the circumstances in which she did, Ms Steel specifically undertook a responsibility to NR, independent of her status as solicitor for the borrower, not to release the discharges except in exchange for a sum sufficient to redeem these securities in full.  Ms Steel was exercising professional skill as a solicitor when she sent the email and the draft discharges.  NR relied on the information contained therein as a matter for which Ms Steel had assumed personal responsibility.  Ms Steel was aware, or at least ought to have been aware, that such reliance by NR was likely.  Said assumption of responsibility gave rise to a duty of care on her part, owed to NR, which she thereafter breached by releasing the discharges without receiving in exchange a sum sufficient to redeem the outstanding loan.”

 

What appears in the sentence beginning “Separatim” is what the Lord Ordinary referred to as the pursuers’ secondary case.  The Lord Ordinary’s rejection of the secondary case has not been reclaimed against.  The other averments were available to instruct what the Lord Ordinary referred to as the pursuers’ primary case.  It was with the primary case that the reclaiming motion was principally concerned.  In addition the pursuers take issue with the Lord Ordinary’s assessment of damages 

[61]      After proof, the Lord Ordinary found that the statement that “the whole loan is being paid off for the estate and I have a settlement figure for that” was indeed false and that the first defender had no basis for making it. In particular the first defender had not been instructed by her client, HCL, that the whole loan was being paid off.  Thus, the misrepresentation was not of the nature of a transmission of information coming from the client.  Rather, its source was the first defender;  it was her misstatement.  The Lord Ordinary accepted that the first defender expected the pursuers to check matters before they complied with any request which she made, but he equally accepted that she knew that she was writing to NR’s Case Management Team and not to solicitors.  He found that the pursuers had executed the discharges as a result of the head of the pursuers’ Loan Review Team reading and acting on the email.  Accordingly, reliance on the first defender’s misrepresentation with resulting loss was established. 

[62]      What the Lord Ordinary did not find established was that it was reasonable for a bank in the position of the pursuers to rely on the misrepresentation and that a solicitor in the position of the first defender would reasonably foresee that such a bank would rely on the information contained in the email without carrying out such a check.  He expresses the view that any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file.  It followed, given the pursuers’ reliance was unreasonable and the resulting loss was unforeseeable, that in the opinion of the Lord Ordinary the first defender had not owed a duty of care to the pursuers and that, inaccurate and inexplicable as the terms of the email had been, they did not amount to a negligent misrepresentation. 

[63]      The pursuers, and now reclaimers, say that in concluding that it was not reasonable for the pursuers to rely on the misrepresentation and not reasonably foreseeable that they would do so, the Lord Ordinary erred. 

[64]      I would see it as useful to identify why the pursuers say that is so, in other words what precisely were the errors of which the pursuers maintain the Lord Ordinary was guilty.  The pursuers invite this court to conclude that the Lord Ordinary was wrong in his evaluation of the facts.  Senior counsel for the defenders reminded us, under reference to what Lord Hoffmann had said in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372 and Biogen Inc v Medeva plc [1997] RPC 1 at 45, and what Lord Hamilton had said in Hamilton v Allied Domecq plc 2006 SC 221 at 242, about the need for appellate courts to be cautious in reversing evaluations of primary fact by judges at first instance who have heard the relevant evidence.  In responding, senior counsel for the pursuers submitted that whether something was reasonably foreseeable was a question of mixed fact and law:  United Central Bakeries Ltd v Spooner Industries Ltd and Anor [2012] COSH 111 at paragraph 38.  Senior counsel explained that there was no challenge to the Lord Ordinary’s findings in fact.  It was “the legal parts” that he had got wrong.  I would like to tease that out. I shall have to return to this point but it appears to me that unless the Lord Ordinary can be said in some way to have been wrong in deciding as he did, it is not open to the Inner House to reverse his decision. 

[65]      For present purposes the only operative ground of appeal is the pursuers’ ground of appeal 1, as developed in their note of arguments.  It is the pursuers’ contention, as set out there, that the Lord Ordinary erred in failing to accede to their submission that the first defender owed the pursuers a duty to take reasonable care that the statements made in the critical email were accurate.  That general proposition is then particularised in a number of respects in the following sub-paragraphs of the ground of appeal.  In so far as the sub‑paragraphs specify errors on the part of the Lord Ordinary they are:  the Lord Ordinary failed to take into account relevant factors in the pursuers’ favour et separatim to give sufficient weight to factors which were material to any consideration of whether a duty of care arose (sub-paragraph 1.4);  the conclusions reached by the Lord Ordinary at paragraph [78] of his opinion that it was not reasonable for a bank in the position of the pursuers to rely on the misrepresentations without checking its accuracy and that a solicitor in the position of the first defender would not foresee that such a bank would reasonably rely on that information without a check was not supported by a comprehensive analysis of the surrounding circumstances and, moreover, was inconsistent with his finding at paragraph [81] that the pursuers’ conduct was not blameworthy (sub-paragraph 1.5);  the Lord Ordinary’s statement at paragraph [78] that “Any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file” was unsupported by any evidence whatsoever about what such a bank would have done in the circumstances (sub-paragraph 1.6);  and in assessing whether a duty of care existed the Lord Ordinary has primarily focused on the assumption of responsibility test rather than the threefold test and in particular the third limb of that test (sub-paragraph 1.7).  In the pursuers’ written note of arguments there are set out what are there described as the pursuers’ “principal criticisms” of the Lord Ordinary’s approach.  These are: (1) a failure to notice and give effect to the extraordinary circumstance that in making what was a misrepresentation the first defender was acting contrary to her instructions;  (2) an over-reliance on the assumption of responsibility test to the near exclusion of the threefold test;  and (3) a failure to apply the assumption of responsibility test properly in the exceptional circumstances of this case. 

[66]      I do not see in these various references to error on the part of the Lord Ordinary a suggestion that he got the applicable law wrong.  If that were to be suggested, I would be unable to agree.  In the course of his submissions senior counsel for the pursuers took us through what I took him to consider to be the salient points.  I did not understand them to be controversial.  The authorities disclose three tests which have been used in deciding whether in a particular case a duty of care to avoid economic loss was owed by one party to another.  The tests are as follows:  (1) voluntary (in the sense of conscious, considered or deliberate) assumption or deemed voluntary assumption of legal responsibility for what was said or done;  (2) the threefold test;  and (3) incremental development from an established category or fact situation: Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181 Lord Bingham at 189G, Lord Walker at 210C.  The Lord Ordinary understood that, as can be seen from paragraph [62] of his opinion.  The assumption of responsibility test is to be applied objectively;  it is not dependent on the intentions of the person who may, by reason of the whole circumstances, be deemed as a matter of reasonable inference to have assumed responsibility for what was said or done:  Customs and Excise Lord Bingham at 190H, Lord Hoffmann at 199C.  Again, the Lord Ordinary understood that (paragraph [63]).  Senior counsel for the pursuers criticised the Lord Ordinary for the formulation “the first defender’s view as to whether or not she was assuming responsibility is not determinative.”  According to senior counsel the first defender’s view was simply irrelevant.  With respect to senior counsel I prefer the Lord Ordinary’s formulation.  It accords with the way the matter was put by Lord Bingham in Customs and Excise at 190H (“is not answered by consideration of what the defendant thought or intended”) and had the evidence disclosed that the first defender thought that she was assuming responsibility I certainly would not have dismissed that as irrelevant. 

[67]      A particular class of case is where it is claimed that a solicitor owed a duty of care to a party on the other side of a transaction.  The general rule is that there can be no such duty:  Gran Gelato Ltd v Richcliff Ltd [1992] Ch 560 at 570D;  Frank Houlgate Investment Co Ltd v Biggart Baillie LLP 2010 SLT 527 at 533L, 2012 SLT 256 at 261H.  However, while the court should be slow to find that the solicitor had assumed a duty of care to the other party to the transaction, the general rule is subject to exceptions:  Midland Bank v Cameron, Thom, Peterkin & Duncans 1988 SLT 611 at 614E and 616D.  The three tests identified by Lord Bingham may provide a tool in identifying whether a case is exceptional:  Dean v Allin & Watts [2001] 2 Lloyd’s Rep 249 at 259.  It may be that the circumstances are such that, properly speaking, the rule does not apply.  One such circumstance is where the solicitor, in doing or saying what she does or says, is not acting for her client and, in a case where what is in issue is a representation, the representation is therefore to be regarded as her representation and not that of the client.  Again, all that is acknowledged by the Lord Ordinary at paragraphs [64] and [66].

[68]      While it may not be that the pursuers argue that the Lord Ordinary got the applicable law wrong, I do take them to argue that he went wrong in how he applied the law.  I would like to look at the ways in which that argument was developed.  At sub‑paragraph 1.7 of the grounds of appeal and number (2) of the principal criticisms in the note of arguments the pursuers complain that the Lord Ordinary primarily focused on the assumption of responsibility test rather than the threefold test, and that he was guilty of an over-reliance on the assumption of responsibility test to the near exclusion of the threefold test.  I would accept that the Lord Ordinary did indeed focus on the assumption of responsibility test.  In my opinion, he was entitled if not obliged to do so.  Senior counsel for the pursuers drew a number of propositions from his consideration of Customs and Excise:  the assumption of responsibility test should be applied flexibly whether on its own or as a means of crosschecking in order to determine whether a particular outcome is sensible and just;  it is not a matter of selecting one of the three tests and applying it to the letter, they are all available; and in deciding whether there is a duty of care it is a matter of looking at the detailed circumstances of the case, the relationship between the parties and the underlying legal and factual situation. I have no difficulty with any of these propositions.  The “tests” are high-level, abstract and overlapping ways of thinking about the question of whether, in a particular factual situation, the law should impose a duty of care on a particular person in respect of a particular action or statement to avoid another person suffering purely economic loss.  That said, one test may appear to be more apposite in certain circumstances than another.  As Lord Hoffmann put it in Customs and Excise at 198H, “discrimination is needed to identify the factual situations in which they provide useful guidance.”  Where what is in issue is making a statement or giving advice it might be thought that concentration on whether there had been an assumption of responsibility for the accuracy of what was said was very much to the point.  Speaking generally, in Customs and Excise at 213C Lord Mance describes assumption of responsibility as being “on any view a core area of liability for economic loss”.  Lord Glennie found assumption of responsibility a useful means of analysis in Frank Houlgate Investments Co Ltd v Biggart Baillie LLP 2012 SLT 256 at paragraphs 23 to 25.  In the present case there is a particular reason why the Lord Ordinary should have concentrated on assumption of responsibility and that is, as appears from article XIV of condescendence, the fact that it is the only basis upon which negligence is specifically pled.  That being so, I would find it difficult to criticise the Lord Ordinary for asking, as he did at paragraph [66] of his opinion, whether the first defender assumed responsibility for the information she transmitted by email.  That is what the pursuers’ pleadings quite specifically required him to do.  While the Lord Ordinary felt able to resolve the duty of care question by reference to the assumption of responsibility test, he also gave consideration to the other two tests, as senior counsel for the pursuers had invited him to do.  He rejected Dean v Allin & Watts as providing the necessary platform for incremental development (Lord Bingham’s third test).  It may have been implicit in the submissions of senior counsel for the pursuers that the Lord Ordinary had been wrong to do so but if that is so I would disagree.  While analogies can no doubt be drawn between the facts in Dean v Allin & Watts and the facts in the present case, (inevitably) the facts are not the same.  The Lord Ordinary viewed Dean v Allin & Watts as involving a very different scenario from that presented by the case before him.  He was entitled to do so.  The Lord Ordinary appreciated that senior counsel for the pursuers was also relying on the threefold test.  He had regard to it, as he had been invited to do.  The first limb of the test is whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do.  As the Lord Ordinary did not find that a solicitor in the position of the first defender would foresee that a bank in the position of the pursuers would reasonably rely on the information in the email without checking it, the requirement of the first limb of the threefold test was not met and therefore, as the Lord Ordinary puts it at paragraph [78] of his opinion “It follows that whether the test applied is the threefold one in Caparo, or the assumption of responsibility test, the pursuers primary case fails.” 

[69]      I pause to observe that it was not argued that if the Lord Ordinary had been entitled to conclude that the pursuers’ reliance on the first defender’s misrepresentation was not reasonable and that the first defender could not reasonably foresee that the pursuers would rely on her misrepresentation, it was nevertheless wrong of him to find that there had been no assumption of responsibility and therefore no duty of care.  In this context, “assumption of responsibility” is a concept or conclusion arrived at by consideration of a variety of factors rather than a description of anyone’s state of mind.  Speaking of it in Customs and Excise at 191C Lord Bingham quoted Lord Slynn in Phelps v Hillingdon London Borough Council [2001] 2 AC 619 at 654:  “The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by law.”  However, within the concept, as with other formulations of the duty of care, there is the necessary component of reasonable foreseeability of consequent harm to the other party and, accordingly, where what is in issue is a statement, reasonable reliance by the other party as to its accuracy:  Customs and Excise Lord Hoffmann at 199D, Charlesworth & Percy On Negligence (13^th Edition) paragraph 2-194.  That the misstatements were attributable to the first defender and not to her client takes the pursuers’ case forward but they must further establish that she should be held to have accepted legal responsibility for the accuracy of what appeared in the email and that involves consideration of reasonable foreseeability of harm and reasonable reliance. 

[70]      At sub-paragraph 1.4 of the grounds of appeal the pursuers list seven factors which they contend the Lord Ordinary failed to take into account or at least give sufficient weight to.  They were seven in number:  (1) The community of interest between the parties in facilitating the sale of the security subjects in exchange for the appropriate redemption figure, this not being an adversarial process and not far removed from the circumstances of Dean v Allin & Watts;  (2) The degree of trust engendered from past transactions;  (3) The unequivocal nature of the operative statement within the body of the email which was of far greater significance than any inconsistency in the subject heading;  (4) The fact that the first defender could have qualified the information she tendered with the use of introductory words such as  “Based on the information provided to me by HCL my understanding is...” or the like but did not do so;  (5) The fact that the information was conveyed in an unequivocal and unqualified manner;  (6) The unavoidably brief period within which to undertake checks if the request was to be complied with in a manner consistent with the clear expectation that executed discharges would be made available prior to settlement of the transaction, it being clear from the terms of the email that, for this sale transaction, the first defender expected signature and return of the discharges “asap”;  and (7) Crucially, the accepted fact that the first defender had no instructions to seek a full discharge and did not possess the full redemption figure.  The pursuers attach particular importance to factor 7.  Sub‑paragraph 1.4 goes on to aver that the first defender had no reason to think that the loan was being discharged or that she had a full redemption figure.  She could offer no explanation when giving evidence for either of those misrepresentations.  These, the pursuers aver, are factors which are highly relevant to the existence of the duty of care even if they were not known or appreciated by parties at the time whereas the Lord Ordinary, having recognised this feature of the case at paragraph [66] of his opinion, gives little or no effect to it in his reasoning.  Factor 7 is further emphasised by principal criticism (1) in the note of arguments:  failure on the part of the Lord Ordinary to notice and give effect to the extraordinary circumstance that in making what was a misrepresentation the first defender was acting contrary to her instructions. 

[71]      With the possible exception of factor 6, the factual basis and materiality of which seem to me to be doubtful, I do not accept that the Lord Ordinary failed to take into account the seven factors listed in the pursuers’ grounds of appeal and note of arguments.  As for factor 1, I am not persuaded that there was a “community of interest” between the parties which was any different from the usual respective interests of parties to a commercial agreement that it be executed according to its terms, but for present purposes what is important is that at paragraph [65] the Lord Ordinary considered the proposition that the making of the representation in question involved the advancement of the common interest of HCL and the pursuers at HCL’s behest.  True, he did not see the facts of the present case as being equivalent to the arrangements in Dean v Allin & Watts (a conclusion I would see him as being entitled to come to) but it cannot be said that he ignored this supposed consideration.  Factor 2 is the degree of trust engendered from past transactions.  At paragraph [44] the Lord Ordinary records the pursuers’ reliance in argument on the circumstance that the first defender was a solicitor whom the pursuers had dealt with before.  At paragraph [73] the fact that the email came from “a solicitor - a trustworthy source” is specifically referred to by the Lord Ordinary as something which favours the pursuers’ contention that there was the requisite foreseeability and reasonable reliance.  It cannot therefore be said that he failed to take this factor into account.  Factors 3, 4 and 5 all point in one way or another at the clear and unqualified nature of the text of the email, while acknowledging its inconsistency with the subject heading.  I accept that the text was clear and unqualified, as did the Lord Ordinary.  It also being inaccurate is what made it a misrepresentation.  Once the Lord Ordinary had accepted that, as he does at paragraphs [52] and [54], I see no need or purpose for him to labour the matter.  Had the email been less unequivocal or in some way qualified, a question would have arisen as to whether it was indeed a misrepresentation, but once that question is decided there is little need to look further at the precise terms of the text.  As for factor 6, while I accept that it can be said that there was an unavoidably brief period within which to undertake any checks on the accuracy of what appeared in the email and that the Lord Ordinary does not make specific reference to that fact, I do not understand that the shortness of the period impacted either on the possibility or the practicality of carrying out a check.  There is the unchallenged finding of fact at paragraph [74] of the Lord Ordinary’s opinion that the critical information was factual and concerned matters that the pursuers could have checked very easily and very quickly.  Another way of expressing the idea that if the first defender’s request was to be complied with that left a brief period for checking, is to say that there was a degree of urgency inherent in the first defender’s request.  That is precisely how the submission of senior counsel for the pursuers is recorded at paragraph [44] of the Lord Ordinary’s opinion and at paragraph [73] the Lord Ordinary expressly takes the degree of urgency in the tone of the email into account as a factor in the pursuers’ favour.  In this context the only relevance of an urgent tone is that it called for action at short notice with all the consequences of that.  I would accordingly see this matter as having been taken into account by the Lord Ordinary.  As far as factor 7 (absence of authority) is concerned, the Lord Ordinary notes at paragraph [54] that not only were the critical misstatements false but that the first defender had no basis for making them and had certainly not been instructed to do so.  At paragraph [66] he notes that as the statements did not emanate from HCL, their only identified source was the first defender.  That the first defender did not have the information she claimed to have is underlined by the Lord Ordinary at paragraph [67].  Having elaborated on the first defender’s absence of authority at paragraphs [64], [68] and [69], at paragraph [70] the Lord Ordinary explains that he is approaching the issue he has to decide assuming that because of the first defender’s lack of authority the pursuers would have no remedy against HCL (while at the same time assuming in their favour that the pursuers have no alternative remedy against the first defender based on her absence of authority should they have no remedy based on negligence).  Accordingly, I do not see there to be any question of the Lord Ordinary failing to notice that the first defender was acting contrary to her instructions.  Nor do I see any failure on his part to have regard to the fact.  There was no question of the first defender benefiting from the general rule stated in Gran Gelato and referred to by the Lord Ordinary at paragraph [64] that a solicitor acting on one side of a conveyancing or security transaction does not usually owe a duty to the party on the other side, and at paragraph at paragraph [66] the Lord Ordinary explains that as this is not a case where the first defender was transmitting information from her client, she cannot escape imposition of a duty of care on the basis that she was no more than an agent. 

[72]      I would simply reject the pursuers’ contention, put forward at sub-paragraph 1.5 of the grounds of appeal, that the Lord Ordinary’s finding at paragraph [81] of his opinion that had he found the pursuers’ reliance on the misstatements to have been reasonable he would not have held the pursuers blameworthy for the purposes of determining the defenders’ pleas of sole fault and contributory negligence, was inconsistent with his conclusion that it was not reasonable for the pursuers to rely on the information provided in the email from the first defender.  What the Lord Ordinary decided, on the basis of his evaluation of the primary facts, was that a notional reasonable bank in the position of the pursuers would have checked on the accuracy of the relevant information before acting upon it.  On that assessment, in acting as they did the pursuers acted unreasonably.  At paragraph [81] the Lord Ordinary is addressing a hypothetical state of affairs which is contrary to his evaluation of the facts.  On this contrary evaluation it would be reasonable for the notional bank not to check and therefore in not checking the pursuers would have to be regarded as having acted reasonably.  I see nothing inconsistent in the Lord Ordinary’s analysis. 

[73]      At sub-paragraph 1.6 of the grounds of appeal the pursuers complain that the Lord Ordinary’s statement at paragraph [78] of his opinion that “Any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file” was unsupported by any evidence whatsoever about what such a bank would have done in the circumstances.  In submissions senior counsel for the pursuers maintained that the Lord Ordinary’s statement was unwarranted.  Because he was sitting as a commercial judge did not put the Lord Ordinary in a privileged position when it came to matters of banking practice.  In my opinion the worst the Lord Ordinary is guilty of in what he says at paragraph [78] is a slight degree of rhetorical excess.  There had indeed been no evidence of banking practice.  There was no need for such evidence.  As far as reasonable foreseeability and reasonable reliance are concerned, which, as the Lord Ordinary observes at paragraph [72], are to some extent two sides of the same coin and certainly interconnected, I would have thought that any such evidence would have been irrelevant unless it was being maintained that the first defender had special knowledge about what bankers do or do not do, and which therefore would have informed what she would have reasonably anticipated as being the response to her email.  By “special knowledge” I mean something that would not be apparent to the reasonable man on the bench without the leading of evidence.  I accept, as I understood senior counsel for the pursuers to submit, that a judge, even a commercial judge, is not an expert on banking practice who can draw on such expertise without hearing evidence, but that is not what the Lord Ordinary did in the present case.  At paragraph [78] of his opinion the Lord Ordinary sets out his conclusions based on his evaluation of the evidence from the perspective that he was required to adopt, that is his experience as a reasonably well‑informed man of the world.  What he says in the first two sentences of the paragraph is this: 

“In the whole circumstances I have no real difficulty in concluding that it was not reasonable for a bank in the position of the pursuers to rely on the misstatement information without checking its accuracy;  and that a solicitor in the position of the first defender would not foresee that such a bank would reasonably rely on that information without carrying out such a check.  Any prudent bank taking the most basic precautions would have checked the information provided by seeking clarification from the first defender and/or looking at their file.” 

 

As I read the second sentence the Lord Ordinary is doing no more than restating, in slightly stronger terms, what he has concluded in the previous sentence which was that it was not reasonable for a bank in the position of the pursuers to rely on the misstatement information without checking its accuracy.  That was a matter that he had to make a decision about and one that as the reasonable man on the bench that he was equipped to make. 

[74]      That leaves what I would see as one contention, albeit it is expressed by the pursuers in a variety of ways in the grounds of appeal and note of arguments:  that the conclusion stated by the Lord Ordinary in the first sentence of paragraph [78] of his opinion was wrong because it was reached without giving sufficient weight to the seven factors listed at sub‑paragraph 1.4 of the grounds of appeal or because it was not supported by a comprehensive analysis of the surrounding circumstances or because it resulted from a failure to apply the assumption of responsibility test properly in the exceptional circumstances of this case.  That brings one, as it appears to me, to what is the nub of this reclaiming motion and that is whether this court, sitting in its appellate capacity, should entertain and, if so, sustain, an argument to the effect that what the judge at first instance who heard the evidence found not to have been reasonable was, on a proper evaluation of the primary facts, reasonable, with the result that the first defender should be held to have assumed legal responsibility for the accuracy of the relevant statement of fact, that being that her client proposed to pay off the whole of the outstanding loan. 

[75]      As senior counsel for the defenders pointed out, the United Kingdom Supreme Court has recently provided serial reminders to this court of the limited power of an appellate court to reverse the judge who has heard the evidence:  McGraddie v McGraddie 2014 SC (UKSC) 12 at paragraphs 1 to 4, Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 203 at paragraphs 61 to 68, and Royal Bank of Scotland plc v Carlyle 2015 SC (UKSC) 93 at paragraphs 20 to 22.  As Lord Hodge put it in Royal Bank of Scotland, “deciding the case as if at first instance is not the task assigned to… the Inner House.”  However, this trilogy of cases, and the leading case of Thomas v Thomas 1947 SC (HL) 45 on which they draw, are not in point in that they relate to review of primary fact.  Neither, strictly speaking, is Piglowska, to which senior counsel for the defenders also referred.  That case related to review of the exercise of a discretion.  However, in Piglowska at 1372D Lord Hoffmann referred to what he had said in Biogen Inc v Medeva plc, which, although Biogen concerned the validity of a patent, I would see as clearly apposite to the present case: 

“The question of whether an invention was obvious had been called ‘a kind of jury question’ … and should be treated with appropriate respect by an appellate court. It is true that in Benmax v Austin Motor Co Ltd [1955] AC 370, this House decided that, while the judge's findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, were virtually unassailable, an appellate court would be more ready to differ from the judge's evaluation of those facts by reference to some legal standard such as negligence or obviousness. In drawing this distinction, however, Viscount Simonds went on to observe, at page 374, that it was ‘subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge’. The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation.”

 

Hoffmann LJ, as he then was, was to similar effect in Re Grayan Building Services Ltd [1995] Ch 241 (a director disqualification case) at 254:

“The judge is deciding a question of mixed fact and law in that he is applying the standard laid down by the courts (conduct appropriate to a person fit to be a director) to the facts of the case. It is in principle no different from the decision as to whether someone has been negligent or whether a patented invention was obvious: see Benmax v Austin Motor Co Ltd [1955] AC 370.  On the other hand, the standards applied by the law in different contexts vary a great deal in precision and generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision.  So in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803 Lord Bridge of Harwich was considering the application of the test of ‘fair and reasonable’ in the Unfair Contract Terms Act 1977.  He said, at pp. 815-816:

 

‘It would not be accurate to describe such a decision as an exercise of discretion. But [such] a decision under any of the provisions referred to will have this in common with the exercise of a discretion, that, in having regard to the various matters to which . . . section 11 of the Act of 1977 direct[s] attention, the court must entertain a whole range of considerations, put them in the scales on one side or the other, and decide at the end of the day on which side the balance comes down. There will sometimes be room for a legitimate difference of judicial opinion as to what the answer should be, where it will be impossible to say that one view is demonstrably wrong and the other demonstrably right. It must follow, in my view, that, when asked to review such a decision on appeal, the appellate court should treat the original decision with the utmost respect and refrain from interference with it unless satisfied that it proceeded upon some erroneous principle or was plainly and obviously wrong.’”

 

[76]      I return then to the interlinked should-this-court-entertain and should-this-court-sustain questions which I posed earlier.  I do not demur from the observation of your Ladyship in the chair that factors to which she refers weigh in favour of attributing an assumption of responsibility to Ms Steel.  In paragraph 17 of their note of arguments the pursuers cite two judicial dicta which I would see as having particular rhetorical force.  They are taken from a passage in the judgment of Sir David Nicholls VC in Gran Gelato which is referred to by the Lord Ordinary at paragraph [81] of his opinion.  The first is:

“No man can complain that another has too implicitly relied on the truth of what he himself has stated” – Reynell v Sprye [1852] 1 De GM & G 660 Lord Cranworth at 710. 

 

The second is:

“No one is entitled to make a statement which on the face of it conveys a false impression and then excuse himself on the ground that the person to whom he made it had available the means of correction” – Nocton v Lord Ashburton [1914] AC 932 Lord Dunedin at 962. 

 

Had I been sitting at first instance in this case these and other considerations might have persuaded me that the first defender should be regarded as having assumed legal responsibility for the factual accuracy of her statements and therefore to have owed a duty of care towards the pursuers.  However, I am not sitting at first instance.  I have not been persuaded that the Lord Ordinary, who was sitting at first instance, has made any error in his approach to the evaluation of what are unchallenged findings of primary fact.  In such a situation I do not go the distance of saying that this court could not reverse a first instance judge on the result of such an evaluation but, agreeing with what was said by Lord Hoffmann in Piglowska, Biogen and Grayan, I consider that it should be hesitant about doing so.  Much depends on the precise nature of the evaluation that the judge at first instance has been required to carry out and the material he has had available to him for that purpose.  However, in the present case I am not prepared to substitute my judgement for that of the Lord Ordinary on the critical issues.  My (overlapping) reasons are as follows.  First, the Lord Ordinary was the primary decision-maker; it was his decision to make.  The function of the Inner House when hearing a reclaiming motion after proof is to review the Lord Ordinary’s decision and to reverse it and substitute their own decision if, but only if, they find the Lord Ordinary’s decision to have been in some sense of the word, wrong.  In this case I am not satisfied that the Lord Ordinary was wrong.  Second, what the Lord Ordinary had to decide, whether the first defender owed a duty of care, falls to be determined by reference to one or more rather vague standards through a process of weighing up a variety of competing considerations.  Where, as I consider is so in this case, the Lord Ordinary’s approach to his decision-making cannot properly be criticised, I have no basis for supposing that my judgment and therefore my decision on the matter would be in any way better than that of the Lord Ordinary.  Third, as compared with the Lord Ordinary I am at a disadvantage.  I did not hear the evidence.  He did.  As Lord Hoffmann explains, evidence is never adequately reflected on the written page and loses much of its associated subtleties once reduced to findings in fact.  A judge who has heard evidence is likely to have gained an impression of or feel for the case which is difficult to articulate but which nevertheless can legitimately inform his decision-making.  That is not available to an appellate court.  Finally, at risk of repetition, while I see that he might have taken a different view, I do not find the Lord Ordinary’s decisions on the key issues of reasonable foresight and reasonable reliance to be, in the words of Lord Bridge in George Mitchell (Chesterhall) Ltd, “plainly and obviously wrong”. 

[77]      On the question of damages I respectfully agree with your Ladyship in the chair.

[78]      I would accordingly refuse the reclaiming motion.

 

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 11

CA7/13

Lady Smith

Lord Brodie

Lady Clark of Calton

 

OPINION OF LADY CLARK OF CALTON

in the cause

by

NRAM PLC

Pursuers and Reclaimers;

against

JANE STEEL

First Defender and Respondent

 

BELL & SCOTT LLP:

Second Defenders and Respondents

Act:  Clancy QC, Hawkes; TLT LLP

Alt:  Duncan QC, Paterson;  CMS Cameron McKenna LLP

19 February 2016

[79]      In this case I am grateful to your Ladyship in the chair and Lord Brodie for giving me the opportunity to consider their opinions in draft.  I am content to agree with the disposal proposed by your Ladyship in the chair and adopt the reasoning.  In that reasoning, particularly in paragraphs 46 – 51, the errors in the approach of the Lord Ordinary are clearly identified.