• In the case of BPE Solicitors v Hughes Holland [2017] UKSC 21, it was that, although a solicitors firm was negligent in drawing up a misinformed loan facility agreement, they were not legally responsible for their client’s decision to make the loan. They were liable only for any losses flowing from their negligence drawing up the agreement as instructed. Losses resulting from the client’s commercial misjudgement in making the loan were not within the solicitor’s duty to them.

Facts of the Case

  • C (represented by a trustee in bankruptcy) was a semi-retired businessman.
  • C agreed to lend L £200,000 over plans to develop an airfield heating tower into offices.
  • C assumed that the £200,000 would finance the development. However, L intended to use it to, in effect, pay off his company’s debt, leaving no money for development unless it could be raised elsewhere.
  • C instructed D, an assistant solicitor, to draw up a facility letter. These instructions came from L in a voicemail, telling D about his actual intentions. D never confirmed these instructions with C.
  • D drew up the facility letter and the charge. He used the document drafted for the transaction intended by C (the development) as a template.
  • This mistakenly inserted statements that confirmed C’s mistaken assumption.
  •  On 7th December 2007 there was a completion meeting at D’s offices. C read and noted the statements. C signed it and advanced the money on that basis.
  • The transaction failed and C lost all his money. The repayment date came and went without any significant construction work being done.
  • In July 2010, the property was auctioned off, the proceeds entirely consumed by the sale expenses. C recovered nothing except money paid personally by L.

Issues

  • Was the development project viable if it had gone as C intended?
  • Was D negligent in providing misinformation that led C down a course of action he would not take knowingly?
  • Was D responsible for all the losses suffered by C due to providing misinformation?

Held by the Supreme Court

  • The development project, on the facts, would be unprofitable.
  • D was negligent by failing their duty to provide information allowing C to decide on a course of action, but they were under no duty to advise C on a course of action. This is the SAAMCO principle.
  • As such, D was only liable for the losses resulting from the erroneous statements, not losses occurred through C’s decision to make the loan.

Lord Sumption

  • The SAAMCO principle has often been misunderstood. The misunderstanding arises from a tendency to overlook two fundamental features of the reasoning.
  • The first is that where the contribution of D is to supply information which C will take into account in making his own decision on the basis of a broader assessment of the risks, D has no legal responsibility for C’s decision.
  • The second is that the principle has nothing to do with the causation of loss as that expression is usually used.
  • “On the footing that D was not legally responsible for C’s decision to lend the money, but only for confirming his assumption about one of a number of factors in his assessment of the project, the next question is what if any loss was attributable to that assumption being wrong. The answer is that if it had been right, C would still have lost money because the expenditure of £200,000 would not have enhanced the property value. The development would have been left incomplete, the loan unpaid and the property substantially worthless when it came to be sold into a depressed market under the chargee’s power of sale. None of the loss C suffered was within the scope of D’s duty. None of it was loss against which D was duty bound to take reasonable care to protect him. It arose from commercial misjudgements which were no concern of theirs” [55].