The claimant company instructed the defendant provider of audit services to audit its 2009 and 2010 financial statements. The claimant’s management was at that time engaged in various dishonest and fraudulent activity, in the absence of which the business would not have been sustainable. The claimant nevertheless paid dividends in those two years. During the audits, the claimant’s management made dishonest statements to the defendant and provided it with fabricated evidence, dishonestly misstated reported profits, and flawed and dishonest forecasts and cash flow projections, despite providing a letter of representation to the defendant each year stating that it had provided all relevant audit information and disclosed all knowledge of fraud or suspected fraud. The claimant’s financial problems and mismanagement were ultimately discovered in 2011, new management was appointed, and the claimant entered into a scheme of arrangement with its creditors and refocused its activities on the profitable elements of its business. The claimant brought a claim against the defendant for breach of contract and/or tort arising out of the defendant’s negligent performance of the audits for loss and damage in the sum of £31,461,807 (excluding interest). The defendant admitted negligence in relation to the audits, but challenged the claimant’s contention that, had it acted competently, the claimant’s business would have been revealed as sustainable only on the basis of dishonest representations by management, new management would have been brought in earlier, a named third party would have agreed to invest to allow for a refinancing of the group alongside a scheme of arrangement agreed with creditors substantially similar to that in fact agreed in 2011, and the claimant would have refocused on the profitable elements of its business, rather than continued to operate the business in a dishonest and unsustainable way and to incur expenditure during 2009–2011 in the failing aspects of the claimant’s operations. It therefore argued that the claimant’s claim for damages, which were properly to be characterised as “loss of a chance” damages, should fail. The defendant also asserted, inter alia, that the claimant’s losses (including general trading losses and dividends paid out by decision of the claimant’s board) did not fall within the scope of its legally enforceable duty of care and that, in the event that damages were awarded, a substantial reduction should be made to reflect the claimant’s contributory fault. The defendant also asserted that it had a counterclaim in deceit based on the false representation contained in the letters of representation as to the under-reporting of tax liabilities, which the defendant was not negligent in failing to identify, and the claim should therefore fail in its entirety for circuitry of action.
On the claim and counterclaim—
Held, (1) claim allowed in part. Where a claimant claimed “loss of a chance” damages and the causation of the loss suffered by the claimant as a result of the defendant’s wrongful act was dependent upon the hypothetical action of a third party, the claimant was required to prove that there was a real or substantial chance, as opposed to a speculative one, of the third party acting in a particular way, and the evaluation of that chance was then part of the assessment of the quantum of damages whatever the probability at the causation stage. A claimant in such circumstances was not permitted to elect instead to seek to prove the action of third parties on a balance of probability and then to recover 100% of its damages, and whether the court heard from the third party appearing as a witness made no difference. On the facts, the claimant’s claim was dependent on the hypothetical acts of third parties, and the claimant had established on the balance of probabilities both that it itself would have taken the steps necessary to its counterfactual scenario and that there was a real and substantial probability that the claimant would have entered into the scheme of arrangement on the terms envisaged, with the necessary interaction of the third party investors and creditors. On the facts and evaluating the likelihood of that chance eventuating, no discount on the quantum recoverable stood to be made (paras 366, 406, 408, 411–412, 414–416, 459–460, 467–468, 470, 480, 488, 582, 608, 621, 639, 640–641, 647–648, 655, 658–664, 670, 671–673, 701, 702, 703–704, 721, 724, 728, 747, 793, 798, 800, 835–837, 872, 873, 875–876).
(2) It fell within the scope of an auditor’s legally enforceable duty of care to assume responsibility for general trading losses where they were sustained by its audit client being permitted to trade or continue to trade in a fundamentally dishonest manner in reliance on that auditor’s negligent audit and most if not all of the instances of dishonesty would have been uncovered by a competent audit. Although there was no discrete duty on auditors to obtain sufficient evidence to review any dividend proposed by management and ensure that it was properly authorised, approved and lawful, and to advise whether that was so or not, as part of the auditor’s general duty of skill and care it was the auditor’s function and duty to ensure, so far as possible, that the financial information as to the company’s affairs prepared by the directors accurately reflected the company’s position, which involved comparing the proposed dividend to the net assets/liabilities at the balance sheet date to assess whether there were sufficient distributive reserves to pay the dividend. Given that, had the defendant acted as a competent auditor, it would have uncovered most if not all of the dishonest acts being committed by the claimant’s management, the claimant’s trading losses fell within the scope of the defendant’s duty. Further, since the defendant had negligently not identified that there were no distributable reserves, and dividends were paid in reliance on those negligent audits, such losses were also prima facie recoverable. Given the conclusion, on the facts, that the claimant had established its case on that the counterfactual scenario would have eventuated, the trading losses were incurred in reliance on the audit opinion and the chain of legal causation was not broken by an intervening act. However, on the facts the directors’ decisions to declare dividends were highly unreasonable and unjustifiable, such that, even though the decision to declare dividends was made in reliance on the audit opinion, the sole effective cause of the losses (in the form of the declaration of the dividends) was in each case the novus actus interveniens of the directors in deciding to declare dividends rather than the prior wrongdoing of the defendant in its audit work. The defendant’s wrongdoing had therefore been eclipsed so that it was not an effective or contributory cause in law. Accordingly, the defendant could not be held liable for payment of the dividends. Since the defendant’s admitted failings were very serious, flagrant breaches of duty consisting of a catalogue of failures over two audit years and going to the “very thing” for which the defendant was responsible, despite dishonesty on the part of the claimant’s directors and lack of management control within the claimant, the defendant’s breaches were of very high relative causal potency in relation to the losses and the defendant’s blameworthiness was of the highest order and relatively higher than that of the claimant. It was therefore just and equitable to reduce the damages by relatively small amounts, such as by 25% for the wasted expenditure claim, with precise quantum figures to be agreed between the parties, except in the case of dividends, where they would be reduced by 100% (paras 57–60, 961–962, 968–969, 982, 996, 1004, 1013, 1014, 1034, 1035, 1185, 1187–1189, 1190, 1218–1219, 1274).
(3) Counterclaim dismissed. Where an auditor committed a breach of duty in failing to detect fraud (including fraud that underlay or extended to a letter of representation), it could not escape liability by pointing to one false representation in respect of which it was alleged that it was not negligent. Therefore, to the extent that the defendant was not negligent in failing to identify the under-reporting of tax liabilities in the letter of representation, it was not entitled for that reason to succeed on its counterclaim in deceit on the part of the claimant. In any event, the under-reporting of tax was a dishonest and unlawful aspect of the broader fraud that the defendant should have detected, and was negligent in not detecting, and on the facts was not causative of the defendant’s liability for negligence (paras 1204, 1206, 1208, 1210, 1211–1213, 1215–1217).
Mark Templeman QC, Richard Blakeley and Tom Pascoe (instructed by Mishcon de Reya llp) for the claimant.
David Wolfson QC, Simon Colton QC and Stephanie Wood (instructed by Clyde & Co llp) for the defendant.