Contents

Chapter 8
Liability of professional service providers and advisers

Introduction

8.1Professional service providers and advisers are often considered to be disproportionately affected by joint and several liability. This group includes accountants, financial advisers, investment advisers, lawyers, engineers, surveyors and potentially other professions that provide consulting, advisory or other services, usually to other businesses. The distinguishing characteristic of membership is that they provide professional advice in significant business projects or enterprises but are not normally the prime mover, business leader or head contractor.

8.2Professional service providers and advisers are likely to share some of the business risk associated with businesses or projects in which they are engaged. They will have contractual obligations to the principals who engage them, and may be found to owe obligations in tort (usually in negligence) to other parties contracting with or otherwise affected by a business venture. If they are held to be liable to the business’s customers or other third parties, then it is highly likely their liability will be joint and several along with a “principal” defendant, such as the business, project promoter or developer.

8.3Professional service providers and advisers may be vulnerable as defendants for two main reasons. Professionals, especially if well-established or operating on a significant scale, are likely to have public liability or professional indemnity insurance. In many cases this may make them a logical target for plaintiffs, as possibly the only potential defendant (or the most easily accessible) likely to be able to pay a large award. Secondly, this group is likely to regard reputation as an important contributor to their business success. They therefore tend to have strong incentives to settle a claim or threatened claim, even at the cost of paying over the odds, which in this context means paying more than their likely share of responsibility. This could lead to a preference to incur higher professional indemnity premiums in future rather than face a protracted legal battle that may damage their reputation, even if they might ultimately be held to be responsible for only a relatively small share of damage, or realistically may not be liable at all.

8.4There is therefore a question as to whether this group ought to be granted some relief from the risk or effects of being pursued as deep pocket defendants under joint and several liability. This chapter first looks at this question for the broad class of professional service providers and advisers, without expressly including or excluding particular professions. The chapter then examines whether there is a special case for auditors, especially auditors of “large” companies (which will be known as FMC reporting entities under new financial markets legislation).126
126Financial Markets Conduct Act 2013, s 451. The equivalent category under the existing Securities Act 1978 and Securities Markets Act 1988 is “issuer”, whether as an issuer of debt, equity, participatory or other securities, or as a public issuer, listed on an exchange.