Court of Appeal confirms no duty owed by professional to non-client recipient of advice

The Court of Appeal has handed down judgment in David McClean & Ors v Andrew Thornhill KC [2023] EWCA Civ 466, unanimously dismissing the appeal. Herbert Smith Freehills Partner Will Glassey and Associate Henry Saunders acted for the successful Defendant Andrew Thornhill KC.

While not set in a financial services context, the decision will be of interest to in-house lawyers at banks for its analysis of when a professional will owe an advisory duty of care, a common issue which arises in the sector, particularly in mis-selling cases. 

The case does not make new law but applies conventional principles, namely that in order for a professional to assume a duty to a non-client recipient of advice, it must have been: (a) reasonable for the recipient to rely on the advice; and (b) reasonably foreseeable to the professional that the recipient would do so.

The decision emphasises the fact-sensitive nature of that analysis, which necessarily requires a consideration of the relationship between the parties, the circumstances in which the recipient obtained the advice, the communications which surrounded the sharing of the advice, and whether it was reasonable for the third party to rely on the advice without independent enquiry.

For more information on the decision, please see our Insurance Notes blog.

Note: In September 2023, the Supreme Court refused the claimant's application for permission to appeal.