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Excessive Courtroom finds no obligation owed to buyers by barrister advising scheme promoter

Judgment was handed down by Zacaroli J right this moment in McClean & Others v Thornhill [2022] EWHC 457 (Ch).

The choice might be of curiosity to skilled legal responsibility insurers, authorized practitioners, and litigation funders, notably these concerned in tax-related skilled negligence claims.

The buyers in a sequence of movie finance tax schemes sued the tax QC who had ready Opinions for the promoter of the schemes, which had been then shared with all potential buyers. The Claimants asserted that the tax QC assumed a third-party obligation to them. The Courtroom disagreed, discovering the QC owed no such obligation, and that even when he had, the views he expressed within the Opinions weren’t unreasonable.

The Courtroom accepted that the Claimants had a reputable place to begin for an assumption of accountability, as a result of Mr Thornhill QC consented, unequivocally and in writing, to his opinions being shared with potential buyers. Nonetheless, on correct evaluation there was no assumption of accountability: the potential buyers had been really useful to take (and all warranted that they’d taken) their very own recommendation; and as well as, they may solely have gained entry to the schemes via an IFA, and it was affordable to count on that the IFAs would both have given or procured the mandatory recommendation.

The judgment is putting for the Choose’s tax evaluation undertaken for the needs of figuring out the breach points. In Zacaroli J, the events had been lucky to have a Choose who additionally sits within the Higher Tribunal (Tax and Chancery Chamber). He eschewed the Claimants’ invitation to deduce that Mr Thornhill QC’s recommendation should have been flawed from the truth that the Claimants felt obliged to settle with HMRC in 2017; and as an alternative, re-immersed himself within the contemporaneous 2002 – 2004 widespread legislation jurisprudence (and HMRC’s method to movie finance tax schemes); that being the context during which these schemes had been conceived by Scotts and Mr Thornhill QC suggested. It’s trite that that should be the Courtroom’s position in assessing the reasonableness of recommendation given practically 20 years earlier, however it’s reassuring for defendant professionals to see that job faithfully carried out in observe.

Herbert Smith Freehills Accomplice Will Glassey (while a accomplice at his earlier agency Mayer Brown) acted for the profitable Defendant Andrew Thornhill QC. His full case word will be accessed right here.

Counsel instructed on behalf of Mr Thornhill QC had been from Brick Courtroom Chambers, led by Tom Adam QC.  Mr Adam QC’s junior at trial was Max Schaefer.  The Brick Courtroom crew additionally included Daniel Piccinin and Chintan Chandrachud, and additional specialist tax enter was additionally supplied by Conrad McDonnell of Grey’s Inn Tax Chambers.

For any inquiries about points regarding legal professionals’ skilled negligence within the UK, please contact Will Glassey, Paul Lewis, David Reston or Antonia Pegden, or your ordinary Herbert Smith Freehills contact.


Will Glassey
Antonia Pegden
Paul Lewis
David Reston



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