When is a duty of care owed to non-clients?

The case of David McClean & Others v Andrew Thornhill QC [2022] EWHC 457 (Ch) provided important clarification on whether non-client investors can rely on specialist professional advice. Investors pursued claims totalling approximately £40 million against a leading tax barrister regarding tax guidance connected to an investment scheme.

The judgment examined the circumstances in which third-party investors might establish liability against a specialist professional where disclaimers and warranties exist. The investors had engaged an Independent Financial Adviser to participate in the scheme and sought recourse against counsel who provided the tax guidance.

Although the barrister was ultimately found not liable, this outcome resulted from specific factual circumstances: the investors were obliged to obtain separate financial advice, and multiple disclaimers accompanied the guidance. The decision offers welcome direction for legal professionals, IFAs and their insurers on how appropriate safeguards and procedural steps can significantly limit potential liability to non-clients.