BL-2022-002117 - [2025] EWHC 2794 (Ch)

Mr Solomon relied heavily on White v Jones[1995] UKHL 5, [1995] 2 AC 207 and what he described as the “lacuna” in this case if there was no duty of care imposed on the SFA. The contract was between the Company and the SFA but it is the Claimants who have suffered loss.

In White v Jones a solicitor had negligently delayed in drawing up a testator’s will until after the testator had died. The House of Lords held that the solicitor owed a duty of care to the beneficiaries in respect of the loss they suffered by reason of not being able to benefit from the will. The duty of care was required by practical justice because of the lacuna that would otherwise arise given that the estate which had a cause of action had suffered no loss, whereas the intended beneficiaries who had suffered the loss had no cause of action. To fill this lacuna, the law should treat the assumption of responsibility owed by a solicitor to its client as extending to the intended beneficiary.

The principle has been applied in analogous situations. For example, in Gorham v British Telecommunications plc [2000] 1 WLR 2129, a person had received negligent financial advice which had had an adverse impact on the financial position of his wife and children after his death. The rationale was essentially the same as in White v Jones, except the defendant was a financial adviser rather than a solicitor. As Pill LJ held at p2141H, “It is fundamental to the giving and receiving of advice upon a scheme for pension provision and life insurance that the interests of the customer’s dependants will arise for consideration. […] Advice was expected and was directed not only to the interests of Mr. Gorham but to the interests of his dependants should he predecease them. The advice was given on the assumption that their interests were involved.”

What created the lacuna in these cases was that A had assumed a contractual responsibility to B but it was C who had suffered the loss. There is no lacuna here. The SFA (A) owed no contractual duties to the Company (B) in respect of the task. It is not in breach of any duties to the Company. If the Claimants (C) have suffered loss, it is not because of a breach of a duty owed to someone else (B) who has not. The mere fact that A has caused C loss does not mean that a remedy must be fashioned to find A liable. As Lord Wright explained Grant v Australian Knitting Mills [1936] AC 85 at 103:

“It is essential in English law that the duty [of care] should be established: the mere fact that a man is injured by another’s act gives in itself no cause of action: …if the act involves a lack of due care .. no case of actionable negligence will arise unless the duty to be careful exists.”

Further, it is a hallmark of the White v Jones line of cases that the services A undertook to provide B, was for the benefit of C. That is also not the case here; see paragraph 202- 203 above.