Independents' Advantage Insurance Company Ltd. v Cook & Anor

This is an appeal from an order made on 11 November 2002 by Mr Justice Lloyd on an application to strike out and for summary judgment made by the appellants in proceedings brought against them by Independents’ Advantage Insurance Company Limited (“IAIC”). The question raised by the appeal is whether the judge was right to take the view that the proceedings should be allowed to go to trial.

The appellants accept that, for the purposes of the application before Mr Justice Lloyd and on this appeal, it must be assumed that, at a trial, the claimant would establish the facts alleged in the particulars of claim. On that basis, the underlying facts may be summarised as follows:

The claimant company’s case is that, by reason of the breach of duty of the firm, it has suffered loss. The duty upon which IAIC relies is a duty to exercise the care and skill of competent accountants and auditors. That duty is said to have arisen at common law in relation to the preparation of financial statements for Swift Travel in respect of each of the four years to 31 May 1998; in relation to the auditing of those financial statements; and in relation to “preparing and providing auditors’ reports” in respect of those statements – see paragraph 41 of the particulars of claim. The matters which are said to have given rise to that duty are (at least primarily) those set out under paragraphs 37 to 40 of the particulars of claim under the heading “The relationship between the Claimant and the Defendant”. Those matters include the following:

“37.

The Defendant knew or ought to have known

a.

Of Swift’s membership of ABTA and IATA, and

b.

That Swift’s audited financial statements and the auditors’ reports relating to those financial statements

i.

Would be provided to (and were provided to) ABTA and/or IATA for the purpose of enabling Swift to secure and renew its membership of those trade associations, and

ii.

Would be relied upon by ABTA and/or IATA for the purposes of determining whether or not to offer or continue to offer membership of the relevant association to Swift and if so, on what terms.

. . .

39

The Defendant also knew or ought to have known

a.

That Swift obtained bond facilities and finance from institutions such as the Claimant in order to satisfy the requirements of ABTA and/or IATA, and

b.

That Swift’s audited financial statements and the auditors’ reports relating to those financial statements

i.

Would be provided (and were provided) by Swift to institutions such as the Claimant to support applications for the provision of bond facilities and/or other financial support, and

ii.

Would be relied upon by institutions such as the Claimant for the purposes of determining whether to provide bond facilities and/or other financial support to Swift and if so, on what terms.”

There were set out at paragraph 38 of the particulars of claim the matters relied upon in support of the allegation of knowledge pleaded in paragraph 37. Paragraph 40 contained particulars of the matters relied upon in support of the allegation in paragraph 39:

“40

. . .

a.

The Defendant knew that Swift was a member of ABTA and/or IATA and so had to meet the funding requirements of those associations . . .

b.

Between 1995 and 1999 Paul Emery of Swift orally advised Joy Boswell of Michael Cook on numerous occasions that Swift:

i.

Intended to satisfy (and were satisfying) the funding and financial requirements imposed on it by ABTA and IATA by obtaining bond facilities and raising funds from institutions such as the Claimant;

ii Would be providing the audited financial statements and auditors’ reports prepared by the Defendant to institutions such as the Claimant for the purpose of persuading institutions such as the Claimant to provide bond facilities and/or finance to Swift so as to enable Swift to meet the funding and financial requirements imposed on it by ABTA and IATA;

c.

The Defendant included within the Schedule of Overheads in Swift’s financial statements for each of the years 31^st May 1995, 31 ^1st May 1996, 31^st May 1997 and 31^st May 1998 an expense labelled ‘Travel Bond’ representing the cost to Swift of obtaining a bond facility and/or finance from institutions such as the Claimant;

d.

It was common practice within the travel industry:

i.

For travel agents applying to institutions such as the Claimant for the bond facilities and/or funds necessary to satisfy the requirements of ABTA and/or IATA to submit audited accounts and auditors’ reports [ii.] to third parties such as the Claimant to support such applications, and

iii.

For institutions such as the Claimant to rely upon such audited accounts and auditors’ reports when determining whether to grant such bond facilities and/or other funding and if so, on what terms.

The Defendant was aware or ought to have been aware of such matters from its own experience of providing accountancy and audit services to travel agents.”

It was alleged – at paragraph 42 of the particulars of claim – that, in preparing and purporting to audit Swift Travel’s financial statements for the years to 31 May 1995, 1996, 1997 and 1998 and in providing auditors’ reports in respect of those financial statements, the firm acted in breach of the duty of care which it owed to the claimant, IAIC. Particulars of the breach of duty included (i) understatement of Swift Travel’s liability in respect of value added tax in the period May 1993 to February 1996 by at least £16,760, (ii) overstatement of trade debtors, office equipment and the value of leasehold shop premises, (iii) the inclusion in the financial statements of commissions not earned on travel bookings not fully paid, and (iv) the omission of related liabilities to airlines and tour operators in respect of travel bookings. More generally, it is said that the financial statements (both profit and loss account and balance sheet) for each of the four years failed to show a true and fair view of Swift Travel’s affairs; that, contrary to the position represented in the auditors’ reports, proper books of account were not kept and internal reporting systems and management controls were poor; and that the financial statements failed to comply with the requirements in article 14 of ABTA’s articles of association (of which particulars are set out at paragraph 3 of the particulars of claim). In fairness to the appellants and the late Mr Cook, I should make it clear that those allegations are not admitted; but, as I have said, it must be assumed for present purposes that they would be established at a trial.

Faced with that claim, the appellants applied by notice dated 26 July 2002 for an order that the claim be struck out pursuant to CPR 3.4(2)(a) on the ground that the particulars of claim disclosed no reasonable grounds for bringing the claim; or, in the alternative, be dismissed pursuant to CPR 24.2(a) on the ground that the claimant had no real prospect of succeeding on the claim against them.

It was not suggested that, in the present case, the application under CPR 24(2)(a) added anything to the application under CPR 3.4(2)(a). As it was put in paragraph 2 of the skeleton argument submitted in support of the application:

“CPR 3.4 is concerned with the statement of case, whereas CPR 24.2 is concerned with the evidence, see Swain v Hillman [2001] 1 All ER 91 at p.92h. Nevertheless in the present case the relevant facts are stated in the Particulars of Claim and, for the purposes of this application, must be accepted. It therefore follows that the Court’s approach under either rule will be the same.”

For my part, I have difficulty in understanding why – in a case in which (i) it is accepted (for the purposes of the application) that the claimant will be able to establish all the facts pleaded and (ii) there are no additional facts upon which the defendant/applicant seeks to rely in support of the application – it was thought necessary or appropriate to couple an application under CPR 24(2)(a) with an application under CPR 3.4(2)(a). If the particulars of claim disclose no reasonable grounds for bringing the claim, the court has ample power to strike out the pleading and to enter judgment for the defendant – see CPR 3.4(3) and paragraph 4(2) of the Practice Direction which supplements that rule (3PD.4). No recourse to CPR 24.2(a) is required. But if the pleading does disclose reasonable grounds for bringing the claim, then – on the hypothesis that the claimant will be able to establish the facts pleaded and in the absence of other facts to rebut the claim – it is impossible to hold that the claimant has no real prospect of succeeding. In those circumstances the existence of reasonable grounds for bringing the claim leads, necessarily, to the conclusion that there is a real prospect of success. There is no scope for recourse to CPR 24.2(a). In the present case the relevant test is that posed by CPR 3.4(2)(a): do the particulars of claim disclose reasonable grounds for bringing the claim.

The basis of the application to strike out was that the facts, as pleaded, did not support the allegation that the firm owed IAIC a duty of care at common law. It was said: (i) that the loss claimed did not fall within the scope of any duty owed by the firm as accountants and auditors of Swift Travel; (ii) that there was insufficient proximity between IAIC and the firm to found a duty of care; and (iii) that it would not be fair, just or reasonable to impose a duty of care on the firm in the present case. The judge described that as “the threefold test”; adopting, I think, an expression used in this Court by Sir Brian Neill in Bank of Credit and Commerce International (Overseas) Ltd and others v Price Waterhouse and others (No 2) [1998] PNLR 564, 583B. But it is important to keep in mind the observation of Lord Oliver of Aylmerton in Caparo Industries Plc v Dickman and others [1990] 2 AC 605, 633C – to which Sir Brian Neill drew attention (ibid 583F-G). Lord Oliver had said this:

“. . . it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible. “Proximity” is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists.”

It was submitted to the judge that the scope of the duties of the firm in the present case – in so far as those duties extended beyond contractual duties owed to Swift Travel itself, as client – was defined by the ABTA/IATA rules; and, in particular, by the requirements pleaded in paragraph 3 of the particulars of claim and set out in article 14 of the ABTA articles of association. It was accepted, I think, that it is (at the least) arguable that auditors of ABTA/IATA members owe duties of care to those associations when auditing and reporting upon financial statements which they know will be submitted to the associations by their clients in accordance with those rules; and that, if ABTA or IATA were to suffer loss by relying on financial statements in respect of which there had been a failure of the auditors to comply with those requirements, then a claim against the auditors in respect of that loss would not be struck out. In the light of the decision of this Court in Andrew and others v Kounnis Freeman (a firm) [2000] Lloyd’s Rep PN 263, it would be difficult to contend otherwise. Indeed, as it seems to me, the later decision of this Court in Law Society v KPMG Peat Marwick [2000] 1 WLR 1921 provides strong support for the view that the existence of duties of care in such a case is not merely arguable; it is not open to serious doubt. But, it was said, duties owed to ABTA/IATA are one thing; duties owed to a financial institution who provides a bond to secure the obligations of the member to ABTA/IATA are another. To recognise the existence of the latter would be a step too far. There is no sufficient proximity between the auditors and the provider of the bond; alternatively, it is not fair or reasonable that auditors should owe a duty of care to a provider whose identity is unknown to them at the time when they prepare, audit and report on the financial statements and of whose intention to rely on the financial statements and reports they have no means of knowledge. Further, auditors cannot be taken to have assumed responsibility in respect of financial statements and reports to persons who might (without their knowledge) choose to rely on those financial statements and reports in making decisions to provide bonds or other financial assistance for their clients.

The judge rejected those submissions. First, he pointed out that although there was no reference in the ABTA/IATA rules to anyone other than the member and the relevant association – or to any purpose other than regulation and licensing – “in fact an insurer or bond issuer such as the claimant is likely to suffer in exactly the circumstances about which IATA and ABTA wished to be warned, if by reason of the negligence of the defendant the accounts suggest that the business is sound when in fact it is not”. So, in so far as the ABTA/IATA rules define the scope of the duties owed by auditors in respect of loss to be suffered by ABTA or IATA in respect of financial default on the part of the travel agent, they necessarily define also the scope of the duties in respect of loss suffered by the provider of a bond given to secure the association against loss in respect of the same financial default. The scope of the duties is the same. The bond merely shifts the loss from the trade association to the provider.

Second, the judge rejected the contention based on lack of proximity. He said this, at paragraphs 19 and 20 in the transcript of his judgment:

“19.

. . . , while the defendant did not know in advance from whom Swift would obtain its bond it is treated as knowing [for the purposes of the application], or being in a position in which it ought to have known, that Swift would be required to obtain a bond or other security; that it would approach an institution such as the claimant for the purpose; and that the institution would require to see Swift’s accounts and audited reports and would rely on them in deciding whether or not to provide a bond or other support. (See paragraphs 39 and 40 of the Particulars of Claim.)

20.

That being so, it seems to me arguable that the claimant, as the one eventually used of the possible class of providers of bonds and other securities on behalf of Swift to ABTA and IATA, was within the range of proximity even though it was not identified in advance.”

The judge accepted that there might be some force in the submission that it was not fair to impose liability in circumstances where IAIC could have taken its own advice as to the financial health of Swift Travel; and where the level of risk was unforeseeable at the time that the financial statements were prepared and audited. But he refused to hold that those factors made the entire claim unarguable. At paragraph 23 in the transcript of his judgment, the judge said this:

“In my judgment the claimant has asserted a case which is capable of showing that the defendant was under a duty of care to the claimant. I agree that this case is at one remove from Andrew v Kounnis Freeman inasmuch as there the claimant was known to the defendant and the claimant’s requirements had been communicated specifically direct to the defendant. That looks like a much stronger case than this. But there may be force in [counsel for the claimant’s] point that a duty to IATA would be an empty duty, since that body may not suffer loss through claims on the compensation fund. Where, as alleged in the Particulars of Claim, the funding of the compensation fund through a bond, guarantee or other security is, or should be known to the defendants, specialists in the accountancy and audit of travel agents and it is said also to be known that the financial statements are produced to insurers and relied upon, I cannot see that this case can be held at this stage to be altogether outside the principles already established. . . . ”

Accordingly he dismissed the application made by the notice of 26 July 2002.

In granting permission to appeal Lord Justice Mance observed that there was some force in the view “that this is really a straight point of law on very fully pleaded facts, and ought to be capable of an answer at this stage, one way or another.” If I may say so, I, too, recognise the force of that view. The power of the court to strike out a statement of case under CPR 3.4(2)(a) – and the related power to give summary judgment under CPR 24.2 – has an important place in the disposal of claims in accordance with the Civil Procedural Rules. As Lord Woolf, Master of the Rolls, pointed out in Swain v Hillman and another [2001] 1 All ER 91, 94b-c, the exercise of those powers, in an appropriate case, gives effect to the overriding objective set out in CPR Part 1:

“ . . . It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no useful purpose; and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. . . .”

The difficulty for the courts, in a field where the law is in a state of transition, lies in identifying those cases in which the exercise of the powers of summary disposal is appropriate. In cases which – on the basis of the facts presented at the time for the exercise of those powers – are perceived to be at or near to the margin of existing decisions, the court is invited to take a view whether the law will be developed in one direction or the other. Will the law, as it develops incrementally from the base of existing decisions, recognise or reject the existence of a duty of care in the marginal case. And would it not be more satisfactory to allow the law to develop on the basis of a fuller appreciation of the facts than can be obtained from a bare consideration of the pleaded statement of case.

I sought to address this problem in my judgment in Coulthard and others v Neville Russell (a firm) [1998] PNLR 276. In a passage (ibid, 289E-G) with which the other members of the Court (Lord Justice Kennedy and Lord Justice Judge) expressed agreement, I said this:

“In my view the liability of professional advisers, including auditors, for failure to provide accurate information or correct advice can, truly, be said to be in a state of transition or development. As the House of Lords has pointed out, repeatedly, this is an area in which the law is developing pragmatically and incrementally. It is pre-eminently an area in which the legal result is sensitive to the facts. . . .”

In his judgment in Siddell and another v Smith Cooper & Partners (a firm) [1999] PNLR 511, 520E-522E, 524B, Lord Justice Clarke (with whom the other member of the Court, Lord Justice Mummery, agreed) considered that passage and adopted the same approach. In Andrew and others v Kounnis Freeman [2000] Lloyd’s Rep PN 263 Lord Justice Jonathan Parker referred to the observations in Coulthard v Neville Russell with apparent approval. He expressed the view (ibid 272) that it would only be in rare cases that a court will “be in a position to determine the question of the existence or otherwise of a duty of care owed by professional advisers on a strike out application”. It is clear that he had in mind that the cases which come before the courts – and, in particular, the cases which come before this Court -– are those which are perceived to be at or near to the margin of existing decisions; and in those cases the court is, properly, reluctant to develop the law on the basis of assumed facts. He recognised that, “once subjected to the scrutiny of a full trial”, the factual background may look rather more complex than that presented by the pleaded case.

In my view the law in this field has not yet reached a point where it can be said to be no longer in a state of development or transition. I am not persuaded that my observations in Coulthard v Neville Russell, the views of Lord Justice Clarke in Siddell v Smith Cooper or those of Lord Justice Jonathan Parker in Andrew v Kounnis Freeman have been overtaken by subsequent decisions – so that the courts can now feel confidence in drawing boundaries in marginal cases without an investigation of the full facts. The right course - unless (on its facts) the case is plainly and obviously within decided authority - is to let the matter go to trial so that the principles in this field of the law can be developed incrementally on the basis of a full appreciation of the actual facts.

Faced with the approach which this Court has adopted in the three cases to which I have referred, counsel for the appellants sought to persuade us that the pleaded case was plainly and obviously within decided authority. We were referred to the decision of Mr Justice Millett in Al Saudi Banque and others v Clark Pixley (a firm) [1990] Ch 313, which received the express approval of the House of Lords in Caparo v Dickman – see [1990] 2 AC 605, 623E, 641G. In the Al Saudi Banque case, Mr Justice Millett, referring to the decision of the Court of Appeal in Caparo, said this, (ibid, 331H-332D):

“In my judgment, Caparo’s case is binding authority for the following propositions. (i) In cases of negligent mis-statement, foreseeability that the plaintiff or someone in a similar position will rely up on the statement is a necessary but not sufficient condition for liability. (ii) In addition, it is necessary to establish a nexus or relationship between the parties sufficient to create a duty of care. That relationship can only be determined by close analysis in each case. The label applied to such a relationship is ‘proximity’, but there is no single definitive test. In some cases, it may be useful to consider whether there has been ‘a voluntary assumption of responsibility’, in others, whether the relationship is ‘equivalent to contract’. (iii) The necessary relationship exists between a company’s auditors and its members, because the auditors are under a statutory duty to report to the members and know that it is intended to send copies of their report to them. (iv) The relationship may also exist if the circumstances are such that the auditors can be taken impliedly to have represented the accuracy of the accounts to the plaintiff, and perhaps whenever they provide the accounts to the company with intention, or in the knowledge that it is the company’s intention, that they are to be supplied to the plaintiff or to persons in a class of which the plaintiff is one. (v) It is not necessary that the auditors should have any particular transaction in contemplation, or should intend the recipient of their report to act upon it in any such transaction. If the necessary relationship exists, it is enough if it is foreseeable that the recipient of the report may rely upon it in some future transaction, whether contemplated by the auditors or not, and whether with reference to his existing shareholding or not. (vi) The necessary relationship does not exist between a company’s auditors and potential investors who are not existing shareholders in the company. The fact that it is foreseeable that their report may come into their hands and be relied upon by them is not sufficient without more to create the relationship.”

The banks’ claims in the Al Saudi Banque case failed because they could not establish a sufficient relationship vis a vis the auditors to satisfy the test of proximity (ibid, 336G-337F). Mr Justice Millett described the factual position at page 336A-B:

“In the present case, the defendants did not make their reports to the plaintiff banks or to any other person with the intention or in the knowledge that they would be communicated to them. The most that can be said is that it was foreseeable that, if any of the plaintiff banks wished to consider the continuance or renewal of existing facilities or the grant of additional facilities, it might well call for copies of the company’s latest audited accounts and rely upon them and the accompanying auditors’ report.”

He went on to say this, at page 336G:

“The fact that the plaintiffs are a small and limited class and known to the defendants reduces the seriousness of the consequences of holding that a duty of care exists and may make it less unjust or less unreasonable to impose such a duty; but it cannot by itself create a relationship between the parties. What needs to be shown is not knowledge of their identity but, at the very least, knowledge of an intention that the information will be provided to them. . . . ”

That reflects the second (tentative) limb of proposition (iv), cited above:

“The relationship may also exist . . . whenever [the auditors] provide the accounts to the company . . . in the knowledge that it is the company’s intention that they are to be supplied . . . to persons in a class of which the plaintiff is one”. [emphasis added]

The particulars of claim in the present case contain the assertion, at paragraph 39, that the firm knew (i) that Swift Travel’s audited financial statements and the auditors’ reports would be (and were) provided by Swift to institutions such as IAIC to support applications for the provision of bond facilities and other financial support and (ii) that such institutions would rely on those financial statements and reports when deciding whether to provide such facilities and support. It is said that the firm knew of those matters both because it had been told by Swift Travel (Mr Emery) – paragraph 40(b) - and because (as the firm knew) it was common practice within the travel industry - paragraph 40(d). Those assertions, as it seems to me, take the present case outside the factual situation which Mr Justice Millett had to consider in the Al Saudi Banque case. At the least, it cannot be said that the facts of the present case – as they appear from the particulars of claim – are so plainly and obviously covered by the decision in that case that the claim is bound to fail.

To my mind the present case is at or near to the margin of existing decisions. I express no view as to which side of the line it will fall, when the facts have been examined in detail at a trial. I have no doubt that – as the judge held - the right course is to allow the claim to proceed to trial, so that that decision can be taken in the light of a full understanding of the facts.

I would dismiss this appeal.

I agree.

I also agree.