Professional Negligence – Maximising Damages

Often establishing a breach of duty is fairly straightforward in professional negligence cases. Recovering damages is harder.  The recent Supreme Court decision in Tiuta International Ltd (in liquidation) v Villier Surveyors Ltd (2017), UKSC 77, illustrates the need before commencing an action, to consider exactly who caused what damage. Failure to do so can result in the recovery of only nominal damages and great legal expense.

It is interesting to note that the judges came to different decisions, but asserted a straightforward common-sense analysis that would lead to the right result. As a judge once told me – “I have found that common sense is not that common.“

The case involved a second loan agreement or what might be commonly known as re-mortgage. The final appeal held that the damages against the negligent valuer, would be limited to only the extra amount advanced between the first loan and the second loan.  In this case, both the first and second loans were from the same lender. The first loan was repaid using part of the second loan, hence very little extra was advanced. Doubtless, after a considerable amount of expense, the disappointed lender will consider amending their claim to plead negligence in relation to the first valuation – they are not time barred in this case.

The Supreme Court’s decision flows from their analysis of the chain of transactions. However, it does not explain what would happen if there were two different loan companies.

In conclusion, this case illustrates the need to carefully analyse the history of any negligence. From that one can ensure that all proper defendants are included and every act of negligence that might be recoverable is pleaded.  As such, it will inevitably lead to more complex pleadings requiring specialist legal analysis.

Beware of binary options trading schemes

We have seen an increase in the number of enquiries from clients relating to losses from binary option trading schemes.

A binary option, or fixed odds betting is a financial option where the payoff is either a fixed amount or nothing at all. An example would be to bet on whether a particular share price will be above or below a certain amount. Investors suggest they can gain high returns from small amounts but this often leaves clients losing large sums of money.

Figures from Action Fraud show the amount lost to binary options trading increased from £6,200 in 2012, to £27m in 2017. Binary options scamming has been described by the consumer group Which? as “Britain’s biggest investment con”. Evidence of bad practice across the board has been identified with high pressure sales tactics and unfair terms and conditions being used.

These schemes are increasingly being used by fraudsters using illegitimate companies to target vulnerable victims through cold-calling and pop up adverts. These companies are often registered in a foreign jurisdiction which makes them harder to trace and pursue. It is therefore very difficult to recover losses suffered unless there has been a UK based professional who facilitated the loss.

From January 2018, the Financial Conduct Authority will take over the regulation of binary options trading.  Hopefully, this will increase the regulation of binary options companies and reduce the amount that has been lost by clients.

If you require any further information or any assistance, please contact the commercial team at Anthony Gold.

Avoidance tactics: looking at loss

When a loss occurs through a professional’s negligence, it is natural and often essential, for the loss to be avoided as quickly as possible.  In commercial contexts, this might involve refinancing a loan or restructuring a transaction that went wrong.

But if this is done so that the loss is avoided, is the claimant prevented from recovering from the professional the loss that it caused in the first place?

In two cases that were before the Court in 2017 the Judges had to consider whether a benefit enjoyed by the claimant after suffering the loss should be taken in to account as collateral in assessing damages. That both cases, Swynson v Lowick Rose LLP [2017] 2 WLR 1161 and Tiuta International v De Villiers Surveyors [2017] 1 WLR 4627, were before the Supreme Court should tell us that it is not an easy question to resolve.

In Sywnson, the claimant company made three loans to a borrower. The claimant relied on professional advice from accountants in making the loans. The accountants’ advice turned out to be negligent; the borrower experienced cash-flow problems and defaulted on the loans.  The controlling shareholder of the claimant company stepped in to lend the borrower money which it could use to repay the claimant company the first two loans. The claimant company then issued a negligence action against the accountants in respect of all three loans.

The accountants conceded liability, but argued that because the claimant company had been repaid the first two loans, it was not entitled to damages arising from negligence relating to those loans because the loss had been avoided.

The claimant argued res inter alios acta (a thing done between others does not harm or benefit others) and that the refinancing did not affect the claimant’s recoverable loss.

Lord Sumption held that the general rule is that loss which has been avoided cannot be recoverable as damages, unless it was a collateral benefit which could not be treated as making good the claimant’s loss. The Court held that collateral payments can be characterised as those where the receipt of benefits for the claimant arises independently of the circumstances arising from the loss. Lord Sumption gave the examples of gifts, or insurance contributions, which he said are tantamount to the claimant making good the loss from his own resources because they are attributable to his own work or contributions.

The defendant in Swynson argued that because the loans had been redeemed by the loan from the shareholder of the claimant company the payment was not truly collateral and so should not be ignored in the assessment of damages. Lord Sumption decided that the association of the claimant shareholder was no more relevant than if the loans had been redeemed by money from a bank or an unconnected third party. The critical point was that the payment discharged the very liability at the heart of the transaction; the loans had been repaid by the borrower to the claimant company and thus the loss had been avoided. The transaction between the shareholder and the borrower was not true collateral and could not be ignored in assessing damages.

The Supreme Court overturned the Court of Appeal’s ruling on this point and reinforced the principled approach, which is not so much concerned about doing justice between the position of claimant, defendant and the unconnected party in making good the loss, but looking at the substance of the transaction.

In Tiuta, the question of collateral benefits arose in the context of a negligent valuation of property, which was the basis of a second loan. The second loan of £3.1m was used to refinance a first loan of around £2.8m. The borrower defaulted on the second loan and Tiuta faced the difficulty of having its damages cut down by virtue of the decision in Preferred Mortgages v Bradford & Bingley Estate which establishes that where a loan is paid off by further borrowing the first loan is treated as being redeemed.   To get around that problem, Tiuta argued that the redemption of the first loan should be treated as a collateral benefit and so should be ignored for the purpose of assessing damages, thus not confining Tiuta’s loss.

The Supreme Court did not accept the argument. Lord Sumption held that “the concept of collateral benefits is concerned with collateral matters. It cannot be deployed so as to deem the very transaction that gave rise to the loss to be other than it was”.

In summary, steps taken to avoid loss, if they go to the heart of the transaction, will only be recoverable if they are completely independent from the circumstances of the loss.

Carillion – what happens now?

Carillion is, or was, the second largest construction firm in the UK.  It’s collapse on Monday 15 January 2017 was confirmed when the High Court ordered the compulsory liquidation of the various companies in the group.  It employed 20,000 people and the projects of the business included the HS2 rail project, Battersea Power Station redevelopment, military contracts and the maintenance of schools, prisons and hospitals.  So, what happens now?

Carillion outsourced projects to a significant number of smaller businesses and spent £952million with local suppliers in 2016.  The construction giant stated that this demonstrated its commitment to generating economic growth and development. Many of these firms are now waiting in the wings to learn if they will be paid.  It has been suggested that the small suppliers are already out of pocket due to being made to wait 120 days for payment.  For small business owners, extending this sort of credit may put the entire business at risk.

The BBC reported on 16 January 2017 that Cabinet Office Minister David Lidington said there would be Government support for public sector contracts. This means that employees will be paid.  However, this will only extend to two days and does not extend to companies working on private projects.

It was well known that Carillion was experiencing financial difficulty.  Last year, the company issued three profit warnings, had debts of approximately £1billion and a £600million pension deficit.  Richard Howson was the company’s chief executive until he stepped down in July 2017, after the first profit warning was issued.  He will continue to be paid until October this year fuelling increasing criticism about executive pay.  It will be interesting to see whether this leads to greater shareholder engagement regarding director’s pay, particularly in companies which are not performing well.

The Government is also likely to come under scrutiny as it encouraged small businesses to get involved with Carillion and continued to award several billion-pound contracts to them, even after substantial financial issues were reported.

Accountancy firm PwC is overseeing the liquidation and made the following statement:

“Unless told otherwise, all employees, agents and sub-contractor are being asked to continue to work as normal and they will be paid for the work they do during liquidations.”

Contrary to this, there have been reports where workers attended projects and were told to go home.  Redundancies have also already begun, for example, Flora-tec is a landscaping services company which Carillion owes £800,000.  They were forced to make 10 people redundant when the collapse was announced.

It is PwC’s job to sell Carillion’s assets, and to try to satisfy the many creditors to which debts are owed.  It is not clear whether this will prevent suppliers becoming insolvent, which may depend on whether the debts are secured and if insurance for such an event was in place.  As with all liquidations, it is highly unlikely that there will be sufficient funds available to pay everyone what they are owed.

If you are an SME, or an employee of a business, that has been affected by Carillion’s demise, please contact Elaine O’Connor on 0207 940 4000 or at eoc@anthonygold.co.uk.

Beware of Pension Reviews

Your pension is probably one of your  largest assets and the result of a lifetime’s hard work and saving.  It is also the prefect target for fraudsters.

One way in which pensions can be targeted is through what is known as a “Pension Review Fraud” which is designed to persuade the victim to move money from a pension pot into an investment which the victim is told offers much higher rates of return

How does a Pension Review Fraud work?

Imagine the scenario, you are sitting at home and receive a cold call from somebody offering  you a free pension review. They either claim to be FCA authorised or they say that they do not need to be FCA authorised as they are not giving you any advice themselves. They produce impressive brochures and direct you to a professional looking website.

Having gained your confidence they tell you that they have reviewed your pension and that it could be doing much better. They claim to know of a new unusual investment that promises guaranteed returns and will allow you to take a cash sum from your pension now. They might warn you that your current pension provider will do whatever it can to hang on to your pension pot by claiming that “due-diligence is needed”.

It might be many years before you realise that in fact the “unusual investment” never existed and that you have been defrauded out of your life savings.

What can you do?

There are simple steps that you can take to reduce your risk of being a victim:

  1. Reject unsolicited calls or emails; legitimate companies should not contact you out of the blue.
  2. If you have been contacted, check the FCA register or FCA warning list here.
  3. If you are still thinking about investing, seek independent financial advice from an FCA regulated firm.

If you have been a victim of a fraud contact the Anthony Gold fraud team on 020 7940 4060.

What is dishonesty?

There has, for a long time, been a debate as to whether, in order to establish dishonesty, one has to show that the perpetrator knew he was being dishonest.

To illustrate; a tourist using public transport from a country in which public transport was free gets on a bus.  If that person got off the bus without paying, would he be dishonest?

The Supreme Court recently considered this issue in the case of Ivey v Genting Casinos [2017] UKSC67. That was a case which involved a professional gambler who was playing baccarat and on leaving the casino, was refused his £7.7 million winnings.  The gambler said that although he accepted he was edge sorting, a technique of identifying minute differences in the design on the back of cards, he did not think that was dishonest. The skill he applied led him to the conclusion that it was him being skilful, rather than cheating.  The Court considered that he genuinely believed this, hence him taking the claim.

The Supreme Court considered both civil and criminal cases on the matter. The Court confirmed that the same test applies to both Courts.  In a thoughtful and ground-breaking decision, the judges clarified the law and set out a two-stage test.

They found that when assessing an individual’s state of mind at the time, one must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. What his actual state of mind was is a matter of fact.  It does not have to be reasonable and in that sense, the test is subjective. The question is whether his belief was genuinely held.

Once there was a finding as to his actual state of mind as to the knowledge or belief as to the facts, the question of whether the person’s conduct was dishonest is to be determined by applying the (objective) standards of the ordinary decent person.

Although there can be exceptions, such as a mistake as to the law as in the earlier example, the previous test set out in the case of R v Ghosh [1982] EWCA Crim2 was over-ruled.  In that case, the person had to be proven to have known what he was doing was dishonest.  Hence a genuinely held belief can be dishonest – he was cheating.

Certified copy: Court pronounces for copy will and defies presumption of revocation

I recently acted for a successful Claimant in a probate claim to prove a copy will with an original codicil endorsed on the back. The original will could not be found. The question for the Court was whether the absence of the original will, which was last known to be in the testator’s possession, led to the presumption that the testator intended to revoke it.

The case is Whitton v Herman HC-2016-2058. It looks at the evidential questions around rebutting the presumption of revocation, and considers an alternative argument that any revocation would be conditional on the making of a new will. It is among a relatively small number of cases on this topic so is a useful illustration of these points in practice.

The testator, Stanley Herman, had made a will in 2003 leaving his residuary estate to a number of charities, the Wallace Collection, an NHS Trust, the State of Israel, and a couple of people including the Claimant. The will had been drafted by will writers. Two years later, Mr Herman made a codicil increasing the Claimant’s share of the residue. The codicil was written by hand on the back of a copy of the 2003 will. On the face of the copy will on the bottom page was written “PTO” in the same ink as the codicil was drafted.

Mr Herman had no living close family. His intestacy beneficiaries were numerous, around 35 distant cousins some of whom lived abroad. There was no evidence that Mr Herman had contact with them. Mr Herman had appointed his friend, Mr Williamson, as one of the executors. He had given custody of the original will to another friend, Mr Samuels, who lived in the same residential block. When Mr Williamson died in 2008, Mr Herman asked for the original will back and it was handed over to him by Mr Samuels. He told Mr Samuels that because Mr Williamson had died, he intended to make a new will.

On Mr Herman’s death, an original will could not be found. His flat was searched by Mr Samuels and Ms Wells, a nurse from the hospital. Mr Samuels died before the hearing, but Ms Wells gave evidence that the flat had been tidy and ordered. She found the copy will with the original codicil in Mr Herman’s bedside table with his bank statements. She described them as looking like his important papers.

The court noted that there was no evidence that Mr Herman had shown any interest in changing the provision in his will and codicil after the death of Mr Williamson.

The Court pronounced for the force and validity of the copy will. The Court found that there was insufficient evidence to upheld the prima facie presumption of revocation.

Important facts weighing against the presumption were Mr Herman’s deliberate storage of the copy will with his important papers. The Court found that he intended to give effect to the copy will by retaining the original codicil with it. The codicil was not capable of standing alone. Had Mr Herman wished to destroy the will, it would have been illogical for him to have retained the original codicil. In all likelihood he would have destroyed the codicil as well if he did not want the will to take effect. In fact, he must have wanted the provisions of the will to take effect to give effect to the codicil, a fact reinforced by his annotation “PTO” to draw attention to the codicil on the reverse of the copy will.

The Court distinguished the case from Re Jones (deceased) [1976] 1 Chancery 200 where the testator had mutilated the will to prevent it taking immediate effect and because he wanted to change the provision. In this case, the court found no evidence that Mr Herman would have wanted to benefit the intestacy beneficiaries. This was due to their lack of contact with him, and the fact that the main beneficiaries of the will included institutions and charities which it was unlikely Mr Herman ceased wishing to benefit in favour of relatives he did not know.

The Court held that if that finding was wrong, there was sufficient evidence to lead to a conclusion that any revocation was to be conditional on the making of a new will. Mr Herman told Mr Samuels that he wanted to make a new will because Mr Williamson had died. The court found that any changes to the will were likely only to have been to replace his executor. It was held that Mr Herman did not intend to revoke one will without having another in place. As no other could be found, that condition was not fulfilled.

Accordingly, the evidence was sufficient to rebut the prima facie presumption and the will was pronounced as valid.

How to remove a shareholder of a company

Most directors and shareholders are the same persons in SMEs, known as ‘quasi partnerships’.  So what happens to the shares if a director leaves or ceases to play their part in running the business?  Can you force a sale of the director’s shares?

The majority shareholders can remove a director by passing an ordinary resolution (51% majority) after giving special notice. That much is fairly straightforward.  But take care, since if the director is also an employee you will need to terminate their employment.  A director who has been dismissed may have a claim for unfair dismissal.  The director will continue to own the shares and will continue to be entitled to their share of dividends.

Can you force a sale of the shares?

There is no automatic right for the majority shareholders to force a sale by a minority shareholder.  Conversely, there is no automatic right for a minority shareholder to force the majority to buy their shareholding.

 

So what are the ways of removing a minority shareholder?

There are several possible ways of removing a shareholder, or forcing a sale of their shares, but care needs to be taken in each case, and a tactical approach is required.

  • Check the articles of association of the company to see if they contain drag along provisions which would enable the majority of the shareholders to force the minority to sell in the event of a buyout of the company.
  • Consider passing a special resolution (75% majority) to alter the articles to include provisions to force a sale of the shares, say for fair value. However, any alteration should not amount to an oppression of the minority and should not be unjust.
  • Check if there is a shareholders’ agreement which contains a ‘buy-back’ clause which can be invoked if a shareholder leaves the company.  This is sometimes known as a ‘bad leaver’ provision.
  • Consider increasing the remuneration of the remaining directors, and reducing sums paid by way of share dividends. This may not be tax efficient, but may be preferable to paying dividends to a shareholder who no longer participates in the running of the company. But take care, since you should be able to justify this course of action.
  • Once you have assessed your options, you should start negotiations with a view to reaching agreement for the purchase of the shares for fair value. You should first discuss with your accountant carrying out a valuation of the shares. A minority shareholding will often be valued at a figure below what the shares would be worth based on a percentage of the whole. Check to see if the Articles contain a formula for valuing a minority shareholding.
  • Care should be taken to avoid a dispute which could end in costly litigation. A minority shareholder has the right to apply to the court claiming ‘unfair prejudice’. The court will usually order a sale of the leaving shareholder’s shares at a determined value. Company litigation is expensive and the costs would usually be paid for by the individual shareholders. However, the threat of such proceedings can be used to put pressure on the minority shareholder to reach agreement for the sale of their shareholding.
  • The company could consider bringing a claim against the departing director if it can show it has suffered some loss as a result of a breach of his duties as a director. Care should be taken, however, to check that the other directors have not themselves been in breach of their duties.
  • If the majority hold 75% of the shares, then you could consider the nuclear option of winding up the company. If a solvent company is wound up through a members voluntary liquidation (MVL), the company’s assets can be transferred into the name of Newco, which would not issue shares to the minority shareholder in Oldco.

 

Conclusion

Each case needs to be carefully considered on its merits.  Most shareholders disputes are resolved by having the majority buy out the minority shares for fair value.  A well drafted solicitor’s letter making an offer to purchase the shares on terms which would most likely be awarded by a court (adopting the principles in the leading case of O’Neill v Phillips) will put pressure on the minority shareholder to negotiate sensibly, otherwise they risk incurring substantial legal costs if they fail to do so.

To avoid these situations arising in the first place, companies should put in place suitably drafted articles of association and a shareholders’ agreement.

If you would like to discuss any issues which affect your company, please contact Alan Zeffertt on 020 7940 4000 or aze@anthonygold.co.uk or any member of our Commercial Department.

 

How not to deal with a data protection breach – Uber in the news again

As the ongoing saga of the Uber drivers Employment Tribunal bubbles along, the company has been in the news again.  This time, in relation to its data protection policies.

Uber has been required to take urgent action following the revelation that, in 2016, hackers were able to download files from the company’s cloud-based storage accounts.

The files contained personal information about 57 million Uber uses around the world including names, email addresses and mobile phone numbers.  In addition, the names and driver’s license numbers of approximately 600,000 drivers in the US were obtained.

The chief executive of Uber, Dara Khosrowshahi, has assured customers that action is being taken and that he only recently was informed that the breach had taken place.  He indicated that trip location history, credit card numbers, bank account numbers, social security numbers and dates of birth were not in the information downloaded.

So, what steps were taken?  At the time of the incident in October 2016, the company secured the data, shut down unauthorised access, identified the hackers, demanded confirmation that the information obtained was destroyed and implemented new security measures.

The question obviously arose as to why this potentially catastrophic breach was not made public at the time of the hack.  Khosrowshahi merely stated that he ‘had the same question’ therefore the jury is out on that point.  The chief executive has taken the following actions in light of the recent discovery:

  • Engaging an expert to consult on security and procedures
  • Termination of two staff members’ employment
  • Notification to drivers individually whose license numbers were obtained and provision of free credit monitoring and protection against identify theft
  • Notification to regulator
  • Monitoring of affected accounts and provision of additional fraud protection

What does this mean for the UK?  The Information Commissioner’s Office (ICO) deputy commissioner, James Dipple-Johnstone, has advised that the data breach raises huge concerns about the ethics and data protection policies of Uber.  An investigation is to be launched where the ICO will work with the National Cyber Security Centre to ascertain the scale of the breach, how this affects individuals in the UK and what Uber needs to do to comply with its obligations in respect of data protection.  Uber must identify any UK citizens who have been subject to the data breach and take steps to reduce any harm caused.  The ICO has warned that deliberately concealing breaches from regulators and citizens could attract higher fines for companies.

Although the investigation is yet to commence, there is speculation that the timing of Uber’s disclosure in not unrelated to the fact that the new General Data Protection Regulation (GDPR) comes into force on 25 May 2018.  Breach of the GDPR may attract fines of 20 million Euros or 4% of annual worldwide turnover, whichever is the greater.  Currently, the ICO only has the power to issue fines of up to £500,000 and the highest fines to date include a £400,000 fine given to TalkTalk in October 2016 for a breach affecting 156,959 customers.  Uber may well want to get the investigation out of the way before the higher fines are implemented.

All businesses are obliged to have systems in place for the GDPR to ensure compliance with data protection principles.  The starting point is to assess current data security measures, ensure that there is an efficient reporting mechanism and train employees on what to do if there is a breach.  If you would like to discuss the changes that the GDPR shall bring and how this affects your business, please contact Elaine O’Connor on 0207 940 4000 or eoc@anthonygold.co.uk.

I was promised a share in a property but this was never written down. Is there anything I can do?

There are times when the ownership of property can be different from what it seems.  The legal owner of a property is the person whose name is registered at the Land Registry, but this may not tell the whole story of who owns a property. It is the beneficial ownership that sets out who actually owns the property and in what shares.

There may be formal paperwork setting out who the beneficial owners are (for example, where a property is purchased by one person who holds it on trust for another, under the terms of a clear trust document).  However, this is not always the case.

Co-habitants or family members who are helping each other out with a property purchase, often fail to put into writing the extent of their beneficial interest in a shared home or investment property. This can cause issues if the couple split, or when the property is sold or the legal owner of the property dies.  We are frequently approached by clients who want to realise their share in a property which is in the name of another person.

In such scenarios, there are a number of legal routes that can be taken to try and remedy the situation.

Constructive Trust (common intention between you)

If there is no written agreement then you may be able to argue that there was a “common intention” between you and the other party that you would be entitled to a share in the property. This is known as a constructive trust.

In order to prove this, you would have to prove;

a)That there was a common intention between you and the other party that you would have an interest in the property (this intention can be through something said or written, or inferred through actions);

b)That there has been a change of position on your part and that of the other party (for example contributing to the mortgage or paying for property renovations); and

c)That it would be unfair to prevent you having that share in the property.

 

If this intention is proven then the Court will decide your share based on any established agreement or by deciding what is fair based on all the circumstances of the case.

Proprietary Estoppel (a promise made to you)

If you were promised a share in a property and have relied on this promise then you may be able to make a claim to the Court that this promise should be upheld. This is known as proprietary estoppel.

In order to prove this, you would need to prove;

a)That a promise (or series of promises) was made to you, and the terms of that promise;

b)That it was reasonable for you to rely on the promise or promises that were made to you.

c)That you relied on the promise to your detriment (you normally have to show that you have suffered some kind of financial hardship (like contributing to the mortgage payments) as a result of the promise).

Where this is established the Court has a wide discretion and will usually award you what is considered to be fair to satisfy the promise or promises made.

Claim under the Inheritance (Provision for Family and Dependants) Act 1975

Cohabitants often face a problem when their partner, the legal owner of the property has died, and they do not stand to inherit the property.  If this has happened to you, it can mean that you are threatened with loss of your home at a time when you are already mourning the loss of someone close.  A cohabitant, or child in the same position, is entitled to bring a claim under the 1975 Inheritance Act for reasonable financial provision, which can include the provision of housing.

The Court decides such cases by looking at a variety of factors including your financial resources/needs of the Claimant, any other Claimants and the beneficiaries of the estate; any obligations/responsibilities of the deceased (including promises made to you about what might happen with the property, or what might happen on their death); the size of the estate;  any health needs you may have and any other relevant issues including conduct. The Court will balance these factors to reach a result, which can include the provision of property, or money to buy or rent somewhere else.

If you face any of the issues outlined in this blog and require assistance, Anthony Gold can help. Please contact any member of our Contentious Probate team.