Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 4

CA56/16

OPINION OF LORD TYRE

In the cause

(FIRST) JAMES CLARK and (SECOND) WILLIAM CLARK

Pursuers

against

SANDRA M L TURNBULL and MARK ROBERTSON the whole partners within the jurisdiction of the dissolved firm of MFPT, Chartered Accountants

Defenders

Pursuers:  Francis; DAC Beachcroft Scotland LLP

Defenders:  Paterson; BTO LLP

6 January 2017

Introduction

[1]        The first pursuer is a builder trading under the name James Clark Properties.  Until 29 February 2008, he was the proprietor of a block of 12 flats (“the flats”) in Buckhaven, Leven.  According to the pursuers’ pleadings, title to a one half share of the flats was held by the first pursuer in bare trust for his brother, the second pursuer.  At all material times the first pursuer received accountancy and personal tax advice from a Mr Douglas Parsons, a partner in the now dissolved firm of MFPT, chartered accountants, St Andrews.  It is averred that Mr Parsons is now resident abroad.  In this action the pursuers seek, or alternatively the first pursuer seeks, reparation from the defenders, as the whole partners within the jurisdiction of the dissolved firm, for various losses claimed to have been sustained as a consequence of professional negligence and breach of contract by Mr Parsons in the provision of tax advice and compliance services.  The defenders contend that any cause of action has been extinguished by operation of prescription or, alternatively, that in various respects the action is irrelevant.  The matter came before me for debate of the defenders’ preliminary pleas.

Factual Background

[2]        The pursuers’ averments, which for present purposes must be taken pro veritate, are as follows.  The site upon which the flats are built was acquired by the first pursuer in three tranches in 1990.  The flats were constructed by the first pursuer in about 1997-98, with the assistance of a grant from Scottish Homes.  The pursuers regarded themselves as each owning a 50% share of the flats, although title stood in name of the first pursuer.  A sum borrowed by the first pursuer from the Bank of Scotland and secured against the flats was similarly regarded by them as a joint liability.  Mr Parsons was aware of those understandings.

[3]        The pursuers were also, at the material time, directors of J & W Clark (Developments) Limited (“Developments”).  The share capital of Developments consisted of 101 shares, of which 50 were held by the first pursuer, 50 by the second pursuer, and one by the first pursuer’s wife.  Mr Parsons provided accountancy and tax advice to Developments and also to the pursuers in their capacity as directors of Developments.  The flats were leased by the first pursuer to Developments, which in turn let them to individual tenants.  Rents received by Developments were used, as Mr Parsons was aware, by the first pursuer to service his borrowing costs.

[4]        In about 2007 the second pursuer told the first pursuer and his wife that he wished to realise some capital from the sale of the flats.  The pursuers sought advice from Mr Parsons as to the potential tax consequences of such a sale.  They were minded to sell the flats if they would be left with a sufficient net return after tax.  Meetings with Mr Parsons were held on 6 February 2007 and on or about 20 April 2007.  Mr Parsons advised the pursuers that they would incur a liability to capital gains tax of between £40,000 and £50,000.  This advice, it is averred, was incorrect: it failed to take account of the grant received towards the cost of construction, and it wrongly assumed that business asset taper relief would be available to reduce the chargeable gain.  Acting on the advice received from Mr Parsons, the first pursuer, with the agreement of the second pursuer, sold the flats to an arm’s length purchaser.  The sale transaction was settled on 29 February 2008.  But for the incorrect tax advice, the pursuers would not have entered into the sale.

[5]        In about May 2009, the business of MFPT was acquired by Henderson & Black, chartered accountants (“HB”).  On about 20 May 2009, Mr Jonathan Adamson, a partner in HB, advised the first pursuer’s wife that there had been an error by Mr Parsons in the calculation of CGT payable.  At a meeting on 21 May 2009, Mr Adamson informed the first pursuer and his wife that there could be a liability to tax and penalties amounting to hundreds of thousands of pounds, and advised them to seek separate advice.  They did so, and the various claims now made are based upon advice subsequently received.  The present action was raised on 13 May 2014.

[7]        I note at this stage that the pursuers’ case is presented throughout on two alternative bases, namely (a) that losses have been sustained by both pursuers, with the various sums sued for being said to be due to them in equal shares; or (b) that those losses have been sustained by the pursuer alone.  This has resulted in complicated pleading as well as some inconsistencies between the conclusions of the summons and the supporting averments.

The Pursuers’ First Claim

[6]        The first of the pursuers’ claims has three elements to it.  The first and principal element consists of losses said to have been sustained as a consequence of their decision to proceed with the sale of the flats, in reliance upon Mr Parsons’ allegedly negligent advice regarding the amount of the CGT charge.  It is averred that “the pursuers et separatim the first pursuer have unnecessarily incurred CGT liability of £143,699 in the case of the pursuers and £161,415 in the case of the first pursuer”.  I understand the difference in figures (which is not reflected in the terms of the first conclusion) to arise from the fact that if the tax liability is properly to be regarded as shared by the pursuers, additional base costs are available to reduce its amount.  Importantly for present purposes, the pursuers further aver that they incurred transaction costs which, but for Mr Parsons’ negligence, they would not have incurred.  These comprised a marketing and disposal fee of £9,000 plus VAT and conveyancing fees of £5,070 plus VAT.  Invoices for these sums dated 6 August 2008 and 6 March 2008 respectively were produced.  The remainder of the first element of the first claim consists of the cost of corrective work subsequently carried out to the pursuers’ tax computations.

[7]        The second element of the first claim is for a late payment surcharge said to have been incurred because Mr Parsons failed to submit the first pursuer’s personal tax return for 2007-08 by 31 January 2009, at which date the CGT became due and payable.  It is averred that “a late payment surcharge of £14,369.90 in the case of the pursuers and £16,141.52 in the case of the first pursuer is payable for the tax year ending 5 April 2008”.   It is not averred that anything has been paid, but the loss and damage consisting of the surcharge is said to have occurred on 1 February 2009 when it became impossible to submit the return and pay the tax timeously.

[8]        The sum sued for in conclusion 1(a) of the summons is £193,532.  I have been unable to discern exactly how this figure is arrived at.

[9]        The third element of the first claim is for damages for distress suffered by each of the pursuers (and by the first pursuer’s wife) when they discovered that they faced a large unforeseen tax liability which caused them severe financial difficulties.  Each of the pursuers seeks an award of £20,000 in respect of this element.  These are the sums sued for in conclusion 1(b) of the summons.

The Pursuers’ Second Claim

[10]      The pursuers’ second claim relates to alleged negligence and breach of contract by Mr Parsons in connection with the submission of the first pursuer’s personal income tax returns.  I noted above that rent received by Developments was used to meet the cost of the first pursuer’s secured bank borrowing.  It is averred by the pursuers that Mr Parsons failed to declare this as a benefit in kind in the first pursuer’s tax returns for the years 1998-99 to 2007-08 inclusive.  The consequence is said to be that the first pursuer is liable to pay penalties of £5,569 plus a late payment surcharge of £1,590, amounting in total to £7,159.  This is not consistent with the sum second concluded for, which is £30,274.  It is not averred that anything has been paid, but the loss and damage is said to have occurred on 1 February 2000. 

The Pursuers’ Third Claim

[11]      The pursuers’ third claim also relates to alleged negligence and breach of contract by Mr Parsons in connection with the submission of the first pursuer’s personal income tax returns.  It is averred that Mr Parsons, despite being aware that the first pursuer let the flats to Developments for an annual rental of £6,000, took no steps to include in his tax returns in respect of each of the years of trading ending between 31 March 1999 and 31 March 2006 inclusive either (a) a declaration of the rent received, or (b) a claim for interest on the borrowing, which together would have entitled the first pursuer annually to receive Schedule A loss relief.  The total net losses for those years are calculated to have been £118,221, with a consequent loss of tax relief amounting to £47,289.  It is further averred that “the pursuers et separatim the first pursuer” are liable for an incorrect return penalty and a late return penalty totalling £1,080, and interest of £500.  The total of £48,869 is the sum third concluded for.

Issue 1: Prescription

Statutory Provisions

[12]      Section 6 of the Prescription and Limitation (Scotland) Act 1973, read with Schedule 1, provides that if an obligation to make reparation has subsisted for a continuous period of five years after the date when it became enforceable without any relevant claim or acknowledgment, then as from the expiration of that period the obligation is extinguished.  Section 11(1) states that an obligation to make reparation for loss, injury or damage caused by an act, neglect or default is to be regarded for the purposes of section 6 as having become enforceable on the date when the loss, injury or damage occurred.  Section 11(3) then provides as follows:

“In relation to a case where on the date referred to in subsection (1) above… the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred, the said subsection (1) shall have effect as if for the reference therein to that date there were substituted a reference to the date when the creditor first became, or could with reasonable diligence have become, so aware.”

Judicial Interpretation

[13]      In David T Morrison & Co Ltd t/a Gael Home Interiors v ICL Plastics Ltd 2014 SC (UKSC) 222, the majority of the Supreme Court rejected the previously-adopted interpretation of section 11(3), ie that prescription did not begin to run until the creditor first became aware not only that loss, injury and damage had occurred, but also that it had been caused by an actionable act, neglect or default.  The majority preferred the interpretation put thus by Lord Reed at paragraph 16:

“…to read the word ‘aware’ as referring to the loss, injury or damage, and to treat the phrase ‘caused as aforesaid’ as adjectival.  The subsection is then read as if it said: ‘the creditor was not aware… that loss, injury or damage, which had been caused as aforesaid, had occurred’…”  (Emphasis added by Lord Reed.)

As Lord Reed observed, on this interpretation the creditor has only to be aware of the occurrence of the loss, while the words “caused as aforesaid” connect the loss to the cause of action.  The prescriptive period begins to run regardless of whether the creditor is aware that the loss has been caused by an actionable wrong.

[14]      The decision of the Supreme Court in Morrison was applied by an Extra Division of the Inner House in Gordon v Campbell Riddell Breeze Paterson LLP 2016 SLT 580, the facts of which are important for present purposes.  Solicitors acting on behalf of landlords served three notices to quit on a tenant, to take effect on 10 November 2005.  The tenant failed to comply with the notices, and the landlords lodged an application with the Land Court seeking the tenant’s removal.  In July 2008, the Land Court refused to grant the application because of defects in the notices.  On 17 May 2012, the landlords raised an action for damages against the solicitors alleging breach of contract in drafting ineffective notices.  The solicitors contended that any obligation to make reparation had prescribed.  Particular reliance was placed by them on the fact that the heads of loss included legal fees paid to them and to other solicitors, long before May 2007, in relation to service of the invalid notices and the raising of proceedings founding upon them.  As the landlords had been aware of the incurring of the legal fees, the prescriptive period had commenced; on the authority of Morrison the fact that they had not been aware of any negligence on the solicitors’ part did not postpone commencement.  That argument was accepted by the Lord Ordinary (Jones) and by the Extra Division.

[15]      The principal opinion in the Extra Division was delivered by Lord Malcolm, with whom Lady Paton and Lord Bracadale agreed.  At paragraph 21, Lord Malcolm observed:

“The decision in Morrison teaches that section 11(3) addresses only latent damage.  Given the pursuers’ knowledge of the costs, it is not easy to categorise them as latent damage.  Not without hesitation, my opinion is that a careful review of Lord Reed’s judgment indicates that it is not possible to uphold this appeal and remain consistent with his Lordship’s reasoning.  It began with the classic exposition of Lord Keith of Kinkel in Dunlop v McGowans, that a single and indivisible right of action accrues when injuria concurs with damnum.  For present purposes the injuria is the service of the defective notices and the damnum includes the liability in legal fees, which it is agreed were paid more than five years before the action was commenced.  The pursuers knew about the payments at the time, and therefore were fully aware of the occurrence of the events which constitute damnum, but they contend that they did not know, and had no reason to suspect , that it had been caused by an act, neglect or default.  The bulk of Lord Reed’s judgment is taken up with a rejection of any need for such knowledge, whether actual or constructive, before the prescriptive period will begin to run.”

Lord Malcolm concluded (paragraph 24) that an application of the interpretation of section 11(3) adopted by the majority of the Supreme Court in Morrison required the landlords’ reclaiming motion to be refused. His Lordship observed, however, that “this action suggests that, pending the current review of the law by the Scottish Law Commission, the hard cases may be more common than anticipated”.  I understand that leave has been granted to the landlords to appeal to the Supreme Court.

[16]      Whilst agreeing with Lord Malcolm’s opinion, Lady Paton added certain observations of her own.  Her Ladyship placed emphasis upon a letter sent by the solicitors to the landlords on 10 November 2005 advising them not only that the tenant was refusing to quit, but also that they should obtain the services of other solicitors because of a potential conflict of interest.  This had been a clear indication that “something had gone wrong”, amounting to intimation that the landlords were suffering, and would continue to suffer, loss, injury or damage.  The prescriptive period began to run on 10 November 2005.  Lord Bracadale agreed with Lord Malcolm’s analysis of the case in the light of Morrison but, in addition, agreed with Lady Paton that the landlords had been put on notice as to loss, injury or damage on 10 November 2005.

Argument for the Defenders

[17]      On behalf of the defenders it was submitted that all of the pursuers’ claims had prescribed.  The critical date for prescription purposes was 13 May 2009, ie five years before the action was raised.  It was accepted by the pursuers that there had been concurrence of injuria and damnum before then with regard to all of the claims, and that they had to rely upon section 11(3).  The pursuers’ attempt to invoke section 11(3) was, however, irrelevant:

• In relation to the allegedly negligent CGT advice (the first claim), there had been concurrence of injuria and damnum when the marketing and legal fees were incurred.The pursuers were aware of the incurring of the fees.The case was on all fours with Gordon v Campbell Riddell.Actual or constructive knowledge of negligence was irrelevant.On the pursuer’s pleadings, the second element of the first claim (late payment surcharge) appeared to be conflated with the first element; if that was not correct then there was nothing pled regarding this element to invoke section 11(3).
• In relation to the allegedly negligent failure to declare the borrowing costs reimbursement as a benefit in kind (the second claim), the pursuers did not address the question of prescription beyond referring to their (irrelevant) averments in relation to the first claim.
• In relation the allegedly negligent failure to claim Schedule A loss relief (the third claim), the pursuers’ pleadings did not address the prescription issue at all.

Argument for the Pursuers

[18]      On behalf of the pursuers it was submitted that each act, neglect or default giving rise to loss and damage (including in the present case the first and second elements of the first claim) required to be considered separately.  As regards the first claim, the issue of what the pursuers could, with reasonable diligence, have been aware of was not irrelevant.  Awareness was “a matter of perception and of understanding, not of conclusion”: HMRC v Lansdowne Partners Limited Partnership [2011] EWCA Civ 1578, Moses LJ at para 70.  It was important to bear in mind that Morrison had concerned patent damage; the pursuer in that case had been immediately aware that it had sustained loss and damage in the sense that something had gone wrong.  A more nuanced approach was required with regard to latent damage.  Such an approach was not precluded by the decision of the court in Gordon v Campbell Riddell in which two of the three judges had considered awareness that something had gone wrong to be relevant to the operation of prescription.  It was consistent with the policy underlying the 1973 Act.  In the present case the pursuers offered to prove that they did not become aware of the occurrence of loss and damage until they received advice to that effect on 21 May 2009.  The second element of the first claim, ie the incurring of late payment surcharge, arose from a separate negligent omission and was unrelated to the incurring of professional fees in relation to the sale of the flats.  As regards the second and third claims, it was sufficient for the pursuers to offer to prove that they were not and could not with reasonable diligence have been aware of the incurring of loss until they received advice to that effect.

Decision

[19]      In relation to the first and third elements of the first claim, ie the allegedly negligent CGT advice, the question is whether the prescriptive period began when marketing and conveyancing costs were incurred, admittedly to the pursuers’ knowledge, at a time when they were not aware and could not with reasonable diligence have been aware that anything had “gone wrong”.  In my opinion, the decision of the majority in Morrison, as interpreted by the court in Gordon v Campbell Riddell, requires that question to be answered in the affirmative.  I am, of course, bound by both decisions.  I can detect nothing in the opinion of Lord Reed in Morrison to suggest that the ratio is restricted to cases where awareness that a loss has been sustained implies awareness that something has gone wrong.  On the contrary, actionability as a relevant element is expressly rejected. 

[20]      I also consider that it is not part of the ratio of Gordon v Campbell Riddell that the prescription period does not begin to run without awareness on the part of the creditor that “something has gone wrong”.  There is no suggestion of such a requirement in the opinion of Lord Malcolm, with which both Lady Paton and Lord Bracadale expressly agreed.  In so far as Lady Paton placed weight upon the landlords having been alerted to the fact that something had gone wrong by the solicitors’ letter dated 10 November 2005, and Lord Bracadale agreed that the landlords were put on notice as to loss, injury or damage on that date, those observations respectfully appear to me to be difficult to reconcile with the majority view in Morrison.  Despite the efforts of counsel for the pursuer to distinguish the present case from Gordon v Campbell Riddell, it seems to me to be directly in point.  As I have noted, the marketing and conveyancing costs were incurred at the time of the sale of the subjects in the first half of 2008.  There was then concurrence of injuria and damnum for the purpose of the operation of prescription.  As the present action was not raised until 13 May 2014, the claim had by then been extinguished.

[21]      The second element of the first claim, ie the late payment surcharge, is in a slightly different position in that it would not have arisen but for a second alleged breach of duty by Mr Parsons, namely the failure to submit the first pursuer’s 2007-08 tax return on or before the due date.  The problem for the pursuers is that this element is, at least as pled, a further loss arising because of the first alleged breach of duty.  The pursuers’ case is that if they had been correctly advised as to their potential CGT liability, they would not have proceeded with the sale; in that eventuality the tax liability would not have been incurred and neither would the late payment surcharge.  In the end, therefore, I conclude that this is properly to be analysed as a further head of loss arising from the same concurrence of injuria and damnum as the other two elements, and accordingly subject to the same prescriptive period.

[22]      For these reasons, in my opinion, any liability of the defenders in respect of the whole of the pursuers’ first claim has been extinguished by operation of prescription.

[23]      As regards the second claim, I agree with the defenders’ submission that the pursuers’ pleadings do not state in clear terms why a claim said to arise out of omissions in relation to submission of tax returns for years from 1997-98 until 2008-08 has not prescribed.  I have already noted, however, that there is nothing in the pursuers’ pleadings to suggest that any part of the penalty and surcharge now sued for has been paid.  It therefore appears, on the pursuers’ case as pled, that there was nothing by way of “loss” (in the sense derived from the Morrison and Gordon v Campbell Riddell analysis) of which they were actually or constructively aware prior to, at the very earliest, their meeting with Mr Adamson on 21 May 2009, being the date founded upon by the pursuers for the purposes of section 11(3).  Despite the deficiencies in the pursuers’ pleadings, I am not prepared to hold at this stage that this claim has obviously prescribed and I shall allow it to proceed to proof before answer, subject to the following observations: (i) the sum second concluded for requires to be amended to conform to the sums pled, which have the support of an expert report; (ii) the position with regard to actual payment (or otherwise) of the penalty and surcharge should be expressly averred; and (iii) the defenders’ prescription plea will be left standing in case further relevant information comes to light.

[24]      The third claim also relates to alleged omissions in connection with the submission of tax returns for a series of years.  However, in contrast to the second claim which concerns an alleged liability to make a payment of penalty and surcharge in respect of underpayment of tax, the third claim concerns an alleged overpayment of tax in each of the years in question.  It is not averred that the pursuers were unaware that they were paying tax in any or all of the years concerned.  Accordingly, in my opinion, this claim also falls squarely within the Morrison and Gordon v Campbell Riddell line of reasoning in respect that it is not relevant, with regard to the operation of prescription, that the pursuers did not and could not with reasonable diligence have known that the tax (which they knew they were paying) was excessive due to a failure to claim an available relief.  There was concurrence of injuria and damnum and section 11(3) has no relevant application.  For these reasons, I consider that any liability of the defenders in respect of the pursuers’ third claim, including any interest or penalty said to be payable, has been extinguished by operation of prescription.

Issue 2: Relevancy

Argument for the Defenders

[25]      The defenders presented three arguments challenging the relevancy of the pursuers’ case.  These fall to be addressed only to the extent that the pursuers’ claims have not been extinguished by prescription.

[26]      The first argument concerned the pursuers’ presentation of their claims as being by both of them or alternatively by the first pursuer alone.  The defenders were entitled, it was submitted, to a proper explanation of who was said to be liable for the various sums sued for.  It was unclear how the second pursuer had incurred any liability to CGT or to penalties or surcharges.  It could not be said on the pleadings where the loss was said to lie.  Without adequate explanation, the averments were irrelevant. 

[27]      The second argument arose out of the pursuers’ averment that they would have been content to sell the flats if the CGT liability had been £60,000 or less.  That being so, they could not properly categorise the whole costs attendant upon the sale as losses.  This was not a “no transaction” case, and the correct approach was to compare the loss suffered with what the pursuers would have incurred had Mr Parsons’ advice been correct.  Reference was made to various dicta of Lord Hoffmann in South Australia Asset Management Corporation v York Montague Ltd [1997] AC 191.  As the case was not pled on that basis, it was irrelevant.

[28]      The third argument was that the pursuers’ claims for distress were irrelevant.  Mere distress or emotional reaction did not sound in damages: Mack v Glasgow City Council 2006 SC 543 at paragraph 17.  A claim in respect of mental distress could not generally be claimed in a professional negligence action unless the contract was designed to provide peace of mind: Farley v Skinner [2002] 2 AC 732.  This was not such a case, despite a bare averment by the pursuers to that effect.

Argument for the Pursuers

[29]      On behalf of the pursuers it was submitted that the case as it stood was appropriate for proof before answer.  As regards the first argument, it was averred that Mr Parsons had been aware of the arrangement between the pursuers.  The court might take a view one way or the other as to whether, as a matter of law, the arrangement constituted a bare trust.  As regards the second argument, this was properly characterised as a “no transaction” case.  The case had been pled in conformity with Lord Hoffmann’s analysis in SAAMCO (above).  The averments regarding distress were also relevant for proof: a tax adviser should have in mind the potentially distressing impact upon his clients if his advice were to lead to a large unexpected tax liability.  This case fell within the exception to the general rule.

Decision

[30]      Of the three relevancy points argued, only the first is relevant to the pursuers’ second claim, being the only claim that I have held not to have been extinguished by prescription.  I consider that there is force in the defender’s argument that the basis upon which the second pursuer is said (on one alternative) to bear a share of the first pursuer’s liability for a tax penalty and surcharge is not clearly explained.  The time has come, in my view, for the pursuers to make up their mind as to whether this is a claim by both of them or by the first pursuer alone.  If that decision depends upon where the incidence of tax, penalties or surcharge falls, that is a matter which ought to have been determined long ago and must on any view be made clear now.  I shall allow the pursuers one final opportunity to amend their pleadings to make their selection one way or the other.

[31]      For the sake of completeness I shall express my opinion briefly on the other two arguments.  As regards the SAAMCO point, I would have regarded the pursuers’ averments as relevant for proof.  It seems to me on a fair reading of the pleadings that this is indeed a “no transaction” case, and that the reference to the pursuers not having been willing to proceed if the tax liability exceeded £60,000 is merely narrative.

[32]      I would not, however, have allowed the claim for distress to go to proof.  The general rule excluding claims for distress caused by breach of contract, and the exception to that rule, were stated by Bingham LJ in Watts v Morrow [1991] 1 WLR 1421 as follows:

“A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party…  But the rule is not absolute.  Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead.”

A contract to survey the condition of a house for a prospective purchaser was held not to fall within the exceptional category.  In Farley v Skinner (above), the House of Lords made clear that the exception ought not to be narrowly construed.  In that case a house purchaser successfully claimed damages from a negligent surveyor in respect of impairment to his enjoyment of the property purchased due to aircraft noise, where the surveyor had been expressly engaged to report on whether the property would be affected by noise.  Lord Clyde stated the law as follows (page 753):

“In the ordinary case accordingly damages may be awarded for inconvenience, but not for mere distress; but where the contract is aimed at procuring peace or pleasure, then, if as a result of the breach of contract that expected pleasure is not realised, the party suffering that loss may be entitled to an award of damages for the distress.”

In my opinion the present case does not fall within the exception.  It was not the purpose of the pursuers’ contract with Mr Parsons to procure them peace of mind or pleasure.  No doubt it may have been foreseeable by Mr Parsons that if his advice as to a potential CGT liability was negligent, the recipients of the advice might suffer distress when the true position emerged.  But the same may be said about receipt of professional advice generally, and it is not the policy of the law to allow recovery of damages in all such cases. 

Disposal

[33]      Before pronouncing an interlocutor I shall put the case out by order to discuss further procedure and any questions of expenses.