Hilary Term [2018] UKSC 13 On appeal from: [2016] CSIH 11

JUDGMENT
Steel and another (Appellants) v NRAM Limited
(formerly NRAM Plc) (Respondent) (Scotland)
before
Lady Hale, President
Lord Wilson
Lord Reed
Lord Hodge
Lady Black
JUDGMENT GIVEN ON
28 February 2018
Heard on 7 November 2017
Appellants Respondent
Alastair Duncan QC Ronald Clancy QC
Chris Paterson Graeme Hawkes
(Instructed by CMS
Cameron McKenna
Nabarro Olswang LLP
)
(Instructed by TLT LLP
)
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LORD WILSON: (with whom Lady Hale, Lord Reed, Lord Hodge and Lady
Black agree)
1. A makes a careless misrepresentation which causes economic loss to B.
There was no contract between them. But did A owe a duty of care to B? No, said
the trial judge. Yes, said the appellate court. So it is A who brings this further appeal.
2. Ms Steel, who was the first defender and is now the first appellant, is a
solicitor. At the material time she was a partner in Bell & Scott LLP, a firm of
solicitors in Glasgow, who were the second defenders and are now the second
appellants; I will refer to them as “the firm”. NRAM Ltd, until recently named
NRAM Plc and, prior to that, named Northern Rock (Asset Management) Plc, was
the pursuer and is now the respondent; I will refer to it as “Northern Rock”.
3. Ms Steel and the firm appeal against an interlocutor issued by an Extra
Division of the Inner House of the Court of Session (Lady Smith; Lord Brodie who
dissented; and Lady Clark of Calton who agreed with Lady Smith) on 19 February
2016. By its interlocutor, the Inner House allowed Northern Rock’s reclaiming
motion in respect of an interlocutor which had been issued in the Outer House by
the Lord Ordinary, Lord Doherty, on 5 December 2014. He had sustained the pleas
in law of Ms Steel and the firm and had assoilzied them from the first conclusion of
the summons. In other words he had dismissed Northern Rock’s claim. The Inner
House, however, sustained Northern Rock’s second plea in law and substituted an
award of damages in its favour against Ms Steel and the firm in the sum of almost
£370,000, being the sum which the Lord Ordinary had assessed as the amount of
damages payable by them to Northern Rock in the event that, contrary to his
conclusion, they were liable to it at all.
4. For many years prior to 2007 Ms Steel had acted for Mr Hamish Munro.
From 2005 onwards she also acted for a company in which he had an interest,
namely Headway Caledonian Ltd; I will refer to it as “Headway”.
5. In 1997 Headway had purchased Cadzow Business Park in Hamilton. The
property, which comprised Units 1, 2, 3 and 4, had been registered in the Land
Register under two separate titles. In order to make the purchase, Headway had
borrowed part of the price from Northern Rock; and in return it had granted Northern
Rock an “all sums” standard security over the property, which had been registered
against the titles in 1998. Indeed in 2002 Headway had granted Northern Rock a
floating charge over all its assets.
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6. In 2005 Headway proposed to sell Unit 3 of the business park. Ms Steel acted
for it in the sale. So she negotiated on Headway’s behalf with Northern Rock for the
release of the unit from its security. Northern Rock did not appoint solicitors to
represent it in that regard; it was not its practice to do so in relation to a negotiation
of that character. It agreed to release the unit from its security in return for a partial
redemption of its loan, namely a repayment of almost £470,000. The transaction
duly proceeded. Ms Steel forwarded for execution by Northern Rock deeds of
restriction, by which its security was restricted to Units 1, 2 and 4. It executed them
and returned them to her. The sale of Unit 3, unencumbered, then proceeded; and,
on behalf of Headway, Ms Steel remitted the sum of almost £470,000 to Northern
Rock.
7. Later in 2005 Headway proposed to sell a property in Lossiemouth over
which Northern Rock held a standard security for a separate loan. Again, Ms Steel
acted for Headway in the sale. Again, she dealt directly with Northern Rock in
respect of the repayment of its loan and the discharge of its security. The sale, the
repayment and the discharge all duly proceeded.
8. In 2006 Headway entered into heads of agreement for the sale of Unit 1 of
the business park in Hamilton for £560,000. Ms Steel was instructed to act on its
behalf in the proposed sale. Either she or Mr Munro himself asked Northern Rock
to release Unit 1 from its security. Northern Rock obtained a valuation of Units 2
and 4 in the sum of £1,425,000. It noted that its loan to Headway then secured on
the three units was about £1,222,000 and decided to require repayment of £495,000
in return for the release of its security upon Unit 1, which would leave the balance
of its loan apparently well secured upon Units 2 and 4. In September 2006, by email
to Mr Munro, Northern Rock therefore confirmed that it would release its security
upon Unit 1 in consideration of a repayment of £495,000 by way of reduction of the
loan. By its email Northern Rock made clear that it expected its security to remain
in place in relation to Units 2 and 4 unless and until they were also sold. Mr Munro
at once forwarded Northern Rock’s email to Ms Steel. Headway accepted its terms.
9. Ultimately it was agreed that the transaction of sale would settle on 23 March
2007. Several weeks beforehand Mr Munro had, by email, instructed Ms Steel that,
upon settlement, she should remit £470,000 (later corrected to £495,000) to
Northern Rock and should remit the balance of the proceeds to Headway.
10. At 5.00 pm on 22 March 2007, namely the eve of the proposed settlement,
Ms Steel sent to Northern Rock the email which is central to these proceedings. She
wrote:
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“Subject: headway caledonian limited sale of Pavilion 1
Cadzow Park Hamilton (title nos …)
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 … marked for my attention – I have had a few
letters on this one for previous 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
…”
11. On any view this was an extraordinary email. It was quite wrong for Ms Steel
to say that the whole loan was to be paid off. It had never been suggested to her, or
at all, that the whole loan was to be repaid. Her instructions from Headway had never
been to that effect. On the contrary, and as she had been told, Northern Rock’s loan
was to be reduced by repayment only of £495,000 and its security upon Units 2 and
4 was to remain. Equally, it was quite wrong for Ms Steel to say that she had a
settlement figure for repayment of the whole loan. She had no such thing. Northern
Rock had never supplied such a figure to her; it would have been irrelevant.
12. In evidence to the Lord Ordinary given seven years later, Ms Steel said that
she accepted that she must have sent the email but said that she had no recollection
of having done so and that she could not explain why she had so misrepresented the
nature of the proposed transaction between her client and Northern Rock. No doubt
Ms Steel is usually a solicitor of the utmost competence but on this occasion she
was guilty of gross carelessness.
13. Labouring, as she was at the time when she sent the email to Northern Rock,
under the misapprehension that Headway was undertaking to repay the whole loan
secured on the remaining three units, Ms Steel attached to it not the two draft deeds
of restriction of Northern Rock’s security to Units 2 and 4 which would have been
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appropriate to the agreement reached, but, instead, two draft deeds of discharge of
its security upon all three units, being one deed for each of the two registered titles.
14. Ms Steel’s email, addressed to Helen and Neil at Northern Rock, was read by
Mr (Neil) Atkin, a case manager, and, at 8.58 am on 23 March 2007, attached to an
email of his own, he forwarded it and its attachments to Mr Clarke, who, as the head
of the Loan Review Team, had authority within Northern Rock to authorise
discharges. One minute after receiving the two emails Mr Clarke, who had read them
albeit not Ms Steel’s attachments, forwarded them to Ms Harrison in Northern
Rock’s administration team. Mr Clarke had made no attempt to check the accuracy
of Ms Steel’s statements against the material on Northern Rock’s file. Ms Harrison
apparently understood, and correctly understood, that, by forwarding the emails to
her, Mr Clarke was authorising her to cause the deeds of discharge to be executed
as well as to draft, for his signature, the requested letter of non-crystallisation of the
floating charge over Unit 1.
15. On that morning of 23 March 2007, the two deeds of discharge were therefore
executed on behalf of Northern Rock; a letter of non-crystallisation was drafted and
signed by Mr Clarke; and copies of all of them were at once faxed to Ms Steel. Thus
it was that, on that same day, upon her undertaking to deliver the original deeds of
discharge to the solicitors for the purchasers within seven days, Ms Steel settled the
sale of Unit 1 on Headway’s behalf. She remitted £495,000 to Northern Rock, which
received it on 27 March and apparently raised no question about the amount of it.
On that day it posted the original deeds of discharge to her and two days later, in
compliance with her undertaking, she forwarded them to the purchaser’s solicitors,
who caused them to be registered in the Land Register. Thus was Northern Rock’s
security on Units 2 and 4 discharged.
16. Until 2010 Headway continued to make interest payments to Northern Rock
on the balance of the loan. Headway then went into liquidation; and it was at that
time, according to evidence given on behalf of Northern Rock, that it discovered
that its security for the loan had been discharged. Units 2 and 4 had, however, by
then been sold. As had been foreshadowed in 2006, Headway had sold them later in
2007; Ms Steel had again acted for it in the sales and she had extracted from
Northern Rock the necessary letters of non-crystallisation of the floating charge.
One might expect that, when alerted to the proposed sales and if continuing to
believe that its standard security upon the units remained in place, Northern Rock
would then have purported to enforce it. But there is no evidence to that effect. These
later events are shrouded in mystery.
17. The court will proceed, as invited, on the basis that, by the email dated 22
March 2007, Ms Steel and the firm caused both the discharge of Northern Rock’s
security over Units 2 and 4 and, resulting therefrom, an ultimate loss to it, net of
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recovery elsewhere, of almost £370,000. It notes, however, that the issue in the case
might well have been cast in terms of whether they were the cause of Northern
Rock’s loss rather than whether they owed a duty of care to it.
18. In Customs and Excise Comrs v Barclays Bank Plc [2006] UKHL 28, [2007]
1 AC 181, Lord Mance at para 85 described the case of Hedley Byrne & Co Ltd v
Heller & Partners Ltd [1964] AC 465 as “the fountain of most modern economic
claims”. In the Hedley Byrne case the appellant asked its bankers to inquire into the
stability of a company and, in response to the inquiry, the company’s bankers, acting
(so it was assumed) carelessly, gave false information about the company, which it
expressed as “without responsibility” but on which the appellant relied to its
detriment. Because of the disclaimer the appellant’s claim against the company’s
bankers failed. The House of Lords held, however, that in the absence of the
disclaimer the bankers would have owed a duty of care to the appellant. At p 529
Lord Devlin held that, in the absence of a contract between a representor and a
representee, a duty of care in making the representation arose only if the representor
had assumed responsibility for it towards the representee; and he proceeded to
interpret all five of the speeches delivered in that case as requiring that the
responsibility should have been voluntarily accepted or undertaken. The assumption
of responsibility could, he explained at pp 529 and 530, be express or implied from
all the circumstances. Lord Pearce added at p 539 that liability in such circumstances
could arise only from “a special relationship”.
19. What is noteworthy for present purposes is the emphasis given in the decision
in the Hedley Byrne case to the need for the representee reasonably to have relied
on the representation and for the representor reasonably to have foreseen that he
would do so. This is expressly stressed in the speech of Lord Hodson at p 514. In
fact it lies at the heart of the whole decision: in the light of the disclaimer, how could
it have been reasonable for the appellant to rely on the representation? If it is not
reasonable for a representee to have relied on a representation and for the representor
to have foreseen that he would do so, it is difficult to imagine that the latter will have
assumed responsibility for it. If it is not reasonable for a representee to have relied
on a representation, it may often follow that it is not reasonable for the representor
to have foreseen that he would do so. But the two inquiries remain distinct.
20. In the decades which followed the decision in the Hedley Byrne case, it
became clear that not all claims in tort for losses consequent upon representations
carelessly made could satisfactorily be despatched by reference to whether the
representor had assumed responsibility for it towards the representee. A case in point
is the situation in which the representor is bound by a contract with a third party to
make a representation upon which the claimant has relied: an analysis of whether,
in making the representation in those circumstances, he has voluntarily assumed
responsibility for it towards the claimant would be artificial. Thus in Smith v Eric S
Bush and Harris v Wyre Forest District Council [1990] 1 AC 831 the claimants, in
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purchasing their houses, had relied on information about their condition contained
in reports given by surveyors pursuant to contracts between them and prospective
mortgagees. The House of Lords held that the surveyors owed duties of care to the
claimants. Lord Griffiths at p 862 explained that the law did not – in the context
before the court – ask whether the surveyors had voluntarily assumed responsibility
towards the claimants in giving the information. But he did so in terms which were
arrestingly wide. He said that the test of an assumption of responsibility was neither
helpful nor realistic (or, he added at p 864, at any rate not so in most cases) and that
it had meaning only if it referred to the circumstances in which the law deemed
responsibility to have been assumed. In effect Lord Griffiths was suggesting that the
test identified only a conclusion rather than a criterion.
21. Lord Griffiths, with whom three other members of the committee agreed,
proceeded at p 865 to propound a threefold test by reference to which the surveyors
owed a duty of care to the claimants. The test required first that it was foreseeable
that, were the information given negligently, the claimants would be likely to suffer
damage; second that there was a sufficiently proximate relationship between the
parties; and third that it was just and reasonable to impose the liability.
22. Months later the threefold test propounded by Lord Griffiths was addressed
by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605. The
claimants had taken over a company in reliance on its accounts and alleged that the
defendants had negligently discharged their statutory functions in the course of their
audit of them. For years afterwards the speeches in the House were taken to have
indorsed the threefold test. In fact, however, Lord Bridge of Harwich, with whom
three other members of the committee agreed, observed at p 618 that the concepts
of proximity and fairness were so imprecise as to deprive them of utility as practical
tests; and Lord Oliver of Aylmerton suggested at p 633 that the three suggested
ingredients of the so-called test were usually facets of the same thing and that to
search for a single formula was to pursue a will-o’-the-wisp. That the House in the
Caparo Industries case did not indorse the threefold test was explained by Lord
Toulson in Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015]
AC 1732, at para 106; and it has recently been underlined by Lord Reed in Robinson
v Chief Constable of West Yorkshire Police [2018] UKSC 4, paras 21 to 29. In the
Caparo Industries case both Lord Bridge at p 618 and Lord Oliver at p 633 quoted
with approval the remarks of Brennan J in Sutherland Shire Council v Heyman
(1985) 60 ALR 1, 43-44 that it was preferable for the law to develop novel categories
of negligence incrementally and by analogy with established categories; and, as
Lord Reed has explained in the Robinson case, it was by declining to accept that the
law should develop incrementally to the point for which the claimants contended
that the House in the Caparo Industries case determined to allow the auditors’
appeal.
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23. More important for present purposes is the reassertion in the Caparo
Industries case of the need for a representee to establish that it was reasonable for
him to have relied on the representation and that the representor should reasonably
have foreseen that he would do so. Thus at pp 620-621 Lord Bridge observed that a
salient feature of liability was that the representor knew that it was very likely that
the representee would rely on the representation; and at p 638 Lord Oliver observed
that a usual condition of liability was that the representor knew that the representee
would act on it without independent inquiry. Some months later, in James
McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2 QB 113, the Court
of Appeal, confronted with a similar claim against company accountants, rejected it
by reference to the decision in the Caparo Industries case. But Neill LJ expanded
on the need for foreseeability of reliance. At pp 126-127 he said:
“One should therefore consider whether and to what extent the
advisee was entitled to rely on the statement to take the action
that he did take. It is also necessary to consider whether he did
in fact rely on the statement, whether he did use or should have
used his own judgment and whether he did seek or should have
sought independent advice. In business transactions conducted
at arms’ length it may sometimes be difficult for an advisee to
prove that he was entitled to act on a statement without taking
any independent advice or to prove that the adviser knew,
actually or inferentially, that he would act without taking such
advice.”
24. In July 1994, in Spring v Guardian Assurance Plc [1995] 2 AC 296, the
House held that, in writing a reference for the claimant who had worked for them
and who was now seeking work elsewhere, the defendants owed a duty of care to
him. Lord Goff of Chieveley explained at p 316 that the basis of his conclusion was
that the defendants had assumed responsibility to the claimant in respect of the
reference within the meaning of the Hedley Byrne case. Weeks later, in Henderson
v Merrett Syndicates Ltd [1995] 2 AC 145, the House held that underwriting agents
at Lloyd’s owed a duty of care to a member in their conduct of his underwriting
affairs even in the absence of any contract between them. In a speech with which
the other members of the House agreed, Lord Goff held at p 181 that the case should
be decided by reference to the concept of an assumption of responsibility. In
Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830. Lord Steyn remarked
at p 837 that there was no better rationalisation for liability in tort for negligent
misrepresentation than the concept of an assumption of responsibility. It has
therefore become clear that, although it may require cautious incremental
development in order to fit cases to which it does not readily apply, this concept
remains the foundation of the liability.
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25. The legal consequences of Ms Steel’s careless misrepresentation are clearly
governed by whether, in making it, she assumed responsibility for it towards
Northern Rock. The concept fits the present case perfectly and there is no need to
consider whether there should be any incremental development of it. Nevertheless
the case has an unusual dimension: for the claim is brought by one party to an arm’s
length transaction against the solicitor who was acting for the other party. A solicitor
owes a duty of care to the party for whom he is acting but generally owes no duty to
the opposite party: Ross v Caunters [1980] Ch 297, 322. The absence of that duty
runs parallel with the absence of any general duty of care on the part of one litigant
towards his opponent: Jain v Trent Strategic Health Authority [2009] UKHL 4,
[2009] AC 853. Six authorities, briefly noticed in chronological order in what
follows, may illumine inquiry into the existence of an assumption of responsibility
by a solicitor towards the opposite party.
26. First, the decision of the Court of Appeal of New Zealand in Allied Finance
and Investments Ltd v Haddow and Co [1983] NZLR 22. The claimant had agreed
to make a loan to X and to take security for it on a yacht. The defendants, who were
X’s solicitors, certified to the claimant that the instrument of security executed by X
in relation to the yacht was binding on him. In fact, as the defendants knew, it was
not binding on him because he was not, and was not intended to become, the owner
of the yacht. The court held that the defendants had owed, and breached, a duty of
care to the claimant. Richardson J said at p 30, in terms which the other members of
the court echoed:
“This is not the ordinary case of two solicitors simply acting
for different parties in a commercial transaction. The special
feature attracting the prima facie duty of care is the giving of a
certificate in circumstances where the [defendants] must have
known it was likely to be relied on by the [claimant].”
27. Second, the decision of the Lord Ordinary, Lord Jauncey, in the Outer House
in Midland Bank Plc v Cameron, Thom, Peterkin and Duncans 1988 SLT 611. The
pursuer had made a loan to X in assumed reliance on a statement by the defenders,
who were X’s solicitors, about the extent of his assets. The statement was materially
inaccurate. But the pursuer’s claim against the defenders failed. Having referred to
the Hedley Byrne case as the proper starting point and to the Allied Finance case,
the Lord Ordinary observed as follows at p 616:
“In my opinion four factors are relevant to a determination of
the question whether in a particular case a solicitor, while
acting for a client, also owes a duty of care to a third party: (1)
the solicitor must assume responsibility for the advice or
information furnished to the third party; (2) the solicitor must
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let it be known to the third party expressly or impliedly that he
claims, by reason of his calling, to have the requisite skill or
knowledge to give the advice or furnish the information; (3) the
third party must have relied upon that advice or information as
matter for which the solicitor has assumed personal
responsibility; and (4) the solicitor must have been aware that
the third party was likely so to rely.”
The Lord Ordinary concluded that the pursuer was able to establish none of the first
three of the four factors.
28. Third, the decision of the Court of Appeal in Al-Kandari v J R Brown and Co
[1988] QB 665. The claimant, a mother of two children, feared that the father would
abduct them to Kuwait. The court had made an order which, with their consent,
obliged the defendants, who were the father’s solicitors, to retain possession of his
passport on which the children were registered. With the mother’s consent, the
solicitors allowed their agents to take the passport to the Kuwaiti embassy for
alteration on condition that it would never be out of their sight. In fact the embassy
insisted on retaining it overnight. The solicitors did not inform the mother that the
embassy had retained the passport nor that (as they knew) the father was due to
attend there on the following day. The embassy released the passport to the father,
who abducted the children to Kuwait. The court held that, in failing so to inform the
mother, the solicitors had breached a duty of care to her. Both Lord Donaldson of
Lymington MR at p 672 and Bingham LJ at p 675 explained that, in agreeing to
become obliged to retain possession of the father’s passport, the solicitors had
stepped outside their role as his solicitors and assumed responsibility towards the
mother.
29. Fourth, the decision of Sir Donald Nicholls V-C in the High Court in Gran
Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560. The claimant wished to purchase
an underlease from the first defendant. The claimant’s solicitors inquired of the
second defendants, a firm of solicitors acting for the first defendant, whether any
provisions in the headlease might affect the length of the underlease. The negative
answer of the second defendants was a misrepresentation, which, following its
purchase of the underlease, caused loss to the claimant. The Vice-Chancellor held
that it had a valid claim against the first defendant but that the second defendants
had themselves owed no duty of care to it. He observed at pp 571-572 that only in
special cases, such as the Allied Finance case, would a solicitor owe a duty of care
to the opposite party and that there was nothing special about the case before him.
30. Fifth, the decision of the Court of Appeal of New Zealand in Connell v Odlum
[1993] 2 NZLR 257. Prior to his marriage to W, the claimant wished to enter with
her into an agreement of which the statutory effect would be to contract them out of
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the law’s general provisions for the making of financial adjustments between them
in the event of separation. Pursuant to one of the statutory requirements, the
defendant, who was W’s solicitor, certified that, prior to her signing the agreement,
he had explained its effect to her. Following separation a judge found that he had
not explained its effect to her and held that the agreement was void. The Court of
Appeal held that it was highly arguable that, in giving the certificate, the defendant
owed a duty of care to the claimant and that the claim should not be struck out.
Thomas J explained at p 269 that the claimant had relied, and had been expected by
the defendant to rely, on the certificate as a feature of the validity of the agreement
and that there had been the necessary assumption of responsibility towards him on
the part of the defendant.
31. And sixth, the decision of the Court of Appeal in Dean v Allin and Watts
[2001] EWCA Civ 758, [2001] 2 Lloyd’s Rep 249. The claimant proposed to lend
money to W and X on the security of property owned by Y and Z. W and X
instructed the defendants, their solicitors, to effect the security in favour of the
claimant, with which Y and Z were willing to co-operate. The loan was made on the
footing that the security was in place. But the defendants had carelessly
misunderstood what was legally required in order to effect the security. In due
course Y and Z established that the purported charge on their property was
ineffective. The court held that the defendants had owed, and breached, a duty of
care to the claimant. Robert Walker LJ explained in summary, at para 69, that the
provision of effective security was of fundamental importance to the claimant and
that, as the defendants knew or should have known, he was relying on them in that
regard.
32. Perhaps it helps only slightly for us to have been reminded in the authorities
cited above that Ms Steel and the firm are liable to Northern Rock only if it was a
special case. Probably of greater assistance is the analysis in the Al-Kandari case
that the solicitors owed a duty of care to the opposite party because they had stepped
outside their normal role. But the six authorities cited above demonstrate in
particular that the solicitor will not assume responsibility towards the opposite party
unless it was reasonable for the latter to have relied on what the solicitor said and
unless the solicitor should reasonably have foreseen that he would do so. These are,
as I have shown, two ingredients of the general liability in tort for negligent
misrepresentation; but they are particularly relevant to a claim against a solicitor by
the opposite party because the latter’s reliance in that situation is presumptively
inappropriate. Thus the reasonableness of the claimant’s reliance and of the
defendant’s foreseeability of it comprised the special feature which gave rise to the
liability in the Allied Finance case and in the Dean case and to the arguable liability
in the Connell case; and, although the claim in the Midland Bank case failed for
other reasons, the fourth of the requirements valuably identified in Lord Jauncey’s
judgment was that the solicitor should have been aware that the pursuer was likely
to rely on what he had said.
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33. In dismissing Northern Rock’s claim the Lord Ordinary held that the crucial
question arose from the fact that, prior to executing and returning the deeds of
discharge, it had failed to check the accuracy of the representations made by Ms
Steel in the email dated 22 March 2007 against the material on its file. Had it done
so, it would have seen immediately that it was entirely inappropriate for it to accede
to her invitation to execute the deeds of discharge. Having heard her evidence, the
Lord Ordinary found that, although she knew that Northern Rock was acting without
solicitors in relation to the sale of Unit 1 and to the two earlier sales, she had
generally expected it to check the propriety of her various requests before complying
with them. Notwithstanding her inability, when giving evidence, to recall her state
of mind when sending the email, the Lord Ordinary therefore found that Ms Steel
had not foreseen that Northern Rock would rely on her assertions in it without
checking their accuracy. He then proceeded to ask whether it was reasonable for her
not to have foreseen that it would do so. His answer was that any prudent bank taking
the most basic precautions would have checked the accuracy of her representations
by reference to its file or indeed by asking for further clarification of an email which
he had found in some respects to be vague and ambiguous; that it was therefore not
reasonable for Northern Rock to have relied on her representations without thus
checking their accuracy; and that it was reasonable for Ms Steel not to have foreseen
that it would do so. That the Lord Ordinary had been entitled to reach this crucial
conclusion formed the basis of Lord Brodie’s dissent upon the appeal to the Inner
House.
34. But the majority in the Inner House took a different view. Lady Smith held
that circumstances were present which led to the attribution to Ms Steel of an
assumption of responsibility for the representations in the email towards Northern
Rock without any need for the court to inquire whether it should have checked its
file. These circumstances were said to be that Ms Steel was a solicitor; that her
representations fell within her area of expertise; that, as she knew, Northern Rock
was not represented by solicitors; that Headway had not given her actual or even
ostensible authority to make the representations; that, by her email, she was
demanding an urgent response; and that the transaction between Headway and
Northern Rock was not at arm’s length.
35. With great respect, I would not accept that all the circumstances were as
described by Lady Smith. Whether Headway had conferred on Ms Steel ostensible
authority to make the representations had not been fully explored before the Lord
Ordinary – and rightly so because for obvious reasons no claim was brought against
Headway and because an agent may well owe a duty of care to a third party even if
he is acting within the scope of his authority. And, although Headway and Northern
Rock were not engaged in hostile litigation, I find it impossible to subscribe to the
suggestion that they were not at arm’s length in relation to the removal of security
over Unit 1. Overarchingly, however, neither the general jurisprudence relating to
liability in negligence for a misrepresentation leading to economic loss nor the
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focussed jurisprudence relating to a solicitor’s liability to the opposite party in that
regard supports a conclusion that it is not always necessary for the representee to
establish that it was reasonable for him to have relied on the representation. On the
contrary, the reasonableness of his reliance on it is, as I have explained, central to
the concept of an assumption of responsibility.
36. Lady Smith added however that in any event Ms Steel should have foreseen
that Northern Rock would rely on her representations without checking their
accuracy. There was, so she said, no expert or other evidence in relation to the basic
precautions taken by a lender to which the Lord Ordinary had referred and no scope
for judicial knowledge to be taken of them; and it was likely and therefore
foreseeable that Northern Rock would simply rely on Ms Steel’s representations.
37. Resolution of the further appeal to this court could no doubt be based on
inquiry into whether Lady Smith and Lady Clark were entitled to depart from the
Lord Ordinary’s conclusion that it was not reasonable for Northern Rock to have
relied on Ms Steel’s representation without inquiry. How does the law classify a trial
judge’s conclusion that it was not reasonable for a party to act as it did? It is not a
conclusion of fact. It is a judgement referable to an already established fact and,
albeit required by law, it is not a judgement about what the law is. So it is difficult
to pigeon-hole it as a conclusion either of fact or of law or even in my view as a
conclusion of mixed fact and law. It is, rather, an evaluation; and in In re B (A Child)
(Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911,
Lady Hale at para 203 recorded all members of the court as having agreed that an
appellate court needed to be satisfied that an evaluative conclusion of a trial judge
was wrong before it could be set aside.
38. But in my view this court does not need to explain why the Lord Ordinary
cannot be said to have been wrong in concluding that it was not reasonable for
Northern Rock to have relied on Ms Steel’s representation without inquiry. We
should bypass examination of whether he was wrong and should hold positively that
he was right. We should accept that a commercial lender about to implement an
agreement with its borrower referable to its security does not act reasonably if it
proceeds upon no more than a description of its terms put forward by or on behalf
of the borrower. The lender knows the terms of the agreement and indeed, as in this
case, is likely to have evolved and proposed them. Insofar as the particular officers
in Northern Rock who on 23 March 2007 saw and acted upon the email had never
been aware of the terms or had forgotten them, immediate access to the correct terms
lay – literally – at their finger-tips. No authority has been cited to the court, nor
discovered by me in preparing this judgment, in which it has been held that there
was an assumption of responsibility for a careless misrepresentation about a fact
wholly within the knowledge of the representee. The explanation is, no doubt, that
in such circumstances it is not reasonable for the representee to rely on the
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representation without checking its accuracy and that it is, by contrast, reasonable
for the representor not to foresee that he would do so.
39. This court should allow the appeal and restore the Lord Ordinary’s
interlocutor.