On the eighth day of Christmas, the High Court gave to me…eight duties owing

With Advent upon us, and Christmas on the horizon, RPC takes a musical look back at the most important English judgments of 2018. Liability for all failures of numbering, rhythm and rhyme is hereby excluded.

To borrow from a distinctly non-Christmassy text: to owe or not to owe a duty?  That is often the difficult question.  (It could be worse: o-ho-ho-ho-we, yes, it could.)  By way of a round-robin letter on the topic, by and large, 2018 was a good year for:

• Companies with foreign subsidiaries: two attempts to make UK parents responsible to foreign claimants via the actions of their foreign subsidiaries failed.^[1]
• Those giving references: no duty was owed to an undisclosed principal when giving a reference to its agent.^[2] Further, employers were not obliged to revisit previous investigations on which a reference was based unless there were "red flags" indicating an earlier deficiency.^[3]
• Spread-betting firms: in the absence of very clear words, no duty was owed to prevent traders from deliberately inflicting economic harm on themselves,^[4] or to assess whether the trader client might be a competent or successful better.^[5]
• Employers: who could access a former employee's personal iCloud account to remove the employer's confidential information (provided they didn't change the password)^[6] and did not (at least in the public sector) need to take into account economic or reputational harm caused to an employee when conducting litigation based on vicarious liability for the employee's actions.^[7] 
• Lenders secured on Spanish property: who were held to have no duty to the borrowers, either directly or through financial advisers.^[8]

Now round-robin letters often give the impression that the writer and his or her family live on Cloud 9 and dine on ambrosia ("narrow in scope, yet big on smugness", according to the Daily Telegraph).   But we'll be honest.  It was a rather less good year for:

• Purchasers of interest rate hedging products: who generally failed in attempts to make the bank counterparties liable for mis-selling.^[9]  However, First Tower Trustees v CDS^[10] (see verse 6 of The Twelve Judgments of Christmas) may help mis-selling claims in the future. 
• Execution only pension providers: who could still be expected to assess investments chosen by their clients. ^[11]
• Conveyancing solicitors in England: solicitors for both buyer and seller were found liable for the fraud of the (purported) seller,^[12] and solicitors for the buyer were found liable for negligence in a property purchase even when the purchase had been part of the buyer's fraud on the bank.^[14]  (Conveyancing solicitors in Scotland fared better: the Supreme Court held they did not owe a duty to a lender in respect of incorrect information given to the lender.) 

For further detail on some of the cases referenced above, see here (on references), here (on interest rate hedging products) and here and here (on conveyancing solicitors).

The Twelve Judgments of Christmas (2018)

On the first day of Christmas, the High Court gave to me…a privilege in E-N-RC.  

On the second day of Christmas, the High Court gave to me…two LIBOR reps.  

On the third day of Christmas, the High Court gave to me…three corporate crimes. 

On the fourth day of Christmas, the High Court gave to me…four contracts. 

On the fifth day of Christmas, the High Court gave to me…five time bars!  

On the sixth day of Christmas, the High Court gave to me…six exclusion clauses.

On the seventh day of Christmas, the High Court gave to me…seven fraudsters fleeing. 

On the eighth day of Christmas, the High Court gave to me…eight duties owing.

On the ninth day of Christmas, the High Court gave to me…[to be continued]

^{[1] AAA v Unilever plc [2018] EWCA Civ 1532 and HRH Okpabi v Royal Dutch Shell plc [2018] EWCA Civ 191}

^{[2] Playboy Club London Ltd v Banca Nazionale del Lavoro SpA [2018] UKSC 43}

^{[3] Hincks v Sense Network Ltd [2018] EWHC 533 (QB)}

^{[4] Ehrentreu v IG Index Ltd [2018] EWCA Civ 79}

^{[5] Quinn v IG Index Ltd [2018] EWHC 2478 (Ch)}

^{[6] Richmond v Selecta Systems Ltd [2018] EWHC 1446 (Ch)}

^{[7] James-Bowen v Commissioner of Police for the Metropolis [2018] UKSC 40}

^{[8] Carney v NM Rothschild and Sons Ltd [2018] EWHC 958 (Comm) and Deane v Coutts and Co [2018] EWHC 1657 (Ch)}

^{[9] London Executive Aviation Ltd v Royal Bank of Scotland plc [2018] EWHC 74 (Ch), Property Alliance Group Ltd v Royal Bank of Scotland plc [2018] EWCA Civ 355, Parmar v Barclays Bank plc [2018] EWHC 1027 (Ch) and Elite Property Holdings Ltd v Barclays Bank plc [2018] EWCA Civ 1688 (following an award under the redress scheme).}

^{[10] First Tower Trustees Ltd v CDS (Superstores International) Ltd [2018] EWCA Civ 1396}

^{[11] Berkeley Burke Sipp Administration Ltd v Financial Ombudsman Service Ltd [2018] EWHC 2878 (Admin)}

^{[12] P&P Property Ltd v Owen White & Catlin LLP [2018] EWCA Civ 1082}

^{[13] Stoffel & Co v Grondona [2018] EWCA Civ 2031}

^{[14] Steel v NRAM Ltd [2018] UKSC 13}