Court of Appeal upholds decision that no duty owed to investors by barrister advising scheme promoter

The Court of Appeal handed down judgment on Friday 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.

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 does emphasise 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 see this post on our Insurance Notes blog.

Note: The Supreme Court has refused permission to appeal in this case.