Law of tort dominates civil conduct in all aspects of life and numerous of violations of duties are all distinctly set. It provides remedies for certain civil wrongs that have not been arisen from the contractual duties. Under tort law, whether it is an intentional act or accident, the injured victim (plaintiff) may be capable to recover damages from the person that liable for the harmed caused (defendant). Negligence is the most significant and developed category of tort in terms of money and varied of cases involved.
It believes that the plaintiff should bear their own adversities unless there is a proof shows that the defendant owes of duty to comply with ordinary care and skill. There are few elements have to be shown if the claimant wish to succeed in compensation which is the existence and breach of a duty of care, losses or damages must be resulted from the reliance on that breach, and lastly is to determine whether the losses were an equitably foreseeable consequence of the defendant’s actions.
Negligent misstatement refers to a representation of fact that been carelessly made, which is relied on the plaintiff to their advantages (O’Riordan, 2007, p. 1). In 1964, the tort of negligent misstatement has been established and it has gained more recognition in this decades. It covers opinions and reality statements made by negligence. However, the tort had lead to certain level of floodgate concerns in the early century and today the courts are still less well embrace its liability.
In the present day setup, accountants have been regarded as prominence role. They inspect mistreats and irregularities of the company’s financial aspects and protect the benefits of the stakeholders and investors. When the accountants or auditors form a contractual relationship with their potential clients, there are many debatable legal area emerge in respect of the people who possible rely on the company reports made or advices provided in a non contractual capacity.
In fact, most of the plaintiffs are unfamiliar to the accountants in the situation. Even though the negligent law enables the parties with no contractual relation to accuse for damages constantly after the negligent behavior caused, the succeed of the accounting firm still need to depend on the objective of the reports made, accounts created, and the establishment of a duty of care between the accountant and the claimant who making compensation in negligence. The appropriate law may be obtained from numerous of significant cases.
During the early 1980s, there were trends of the judicial extension of the amount of third parties to whom an auditor or accountant may be held liable and this period was referred as the “dark ages” of accountant’s liability. There is a duty of care if it is to plaintiff. In JEB Fasteners v Marks Bloom & Co 1983, the plaintiff took over the private company after reading an unqualified report prepared by the accountants Mark Bloom. The accountants knew the plaintiff was facing financial crisis and searching for financial help on the preparation of statements.
Soon JEB discovered that the financial statements included some errors and the value of stock was overstated. Thus, he took an action in negligence against the accountants and Anns foreseeability test was applied in this case. The action failed on the grounds of causation and the accountants did not take the liability for their negligence and the statements were not of the main cause of making loss profit because it was revealed that acquisition of the company was to obtain the expertise of the directors without the concern of the current stock’s value.
However, Queen’s Bench Division held that the suitable test for developing a duty of care is whether the accountants aware or should have known rational that an individual probably made a keys decision depend on the audited financial reports and duty of care was owed. Under the Misrepresentation Act 1967 s. 2 (1), when a person entered a contract and suffered loss in business because of the misrepresentation that made by another party, he has the right to claim for damages and the claimant that create the misrepresentation fraudulently are liable.
There was no inducement between the parties because JEB entered the contract for independent reasons. The defendants were unaware of the misrepresentation and it was considered as a negligent act instead of fraudulence. Besides, the complainant judgement was not influenced by the negligent statement and he did not rely on the information to take over the company. Throughout the decades of the 1990s, there had been an international trend arose toward a more limited scope of negligence for accountants liability to clients.
This important reversal has been found by landmark suggestions from some landmark cases such as Caparo v Dickman 1990. This case concerns about the limits of the potential liabilities for the accountants through auditing the annual accounts. The respondents, Caparo Industries Plc had took over the Fidelity Plc by acquiring 29. 9% of the issued shares and making a successful bid for the remainder shares in the market on 1984.
The annual audit of Fidelity was regulated by statute and the Companies Act 1985 has constructed that what the statutory accounts should embrace minutely. Later, Caparo sued against the appellants, auditors of Fidelity Plc for few reasons. The respondent alleged that the company’s accounts were inexact and been audited negligently, as a result they had suffered a great loss of over ?400,000. Through the reliance on the accounts, the respondents urged to purchase and bid for further shares.
Caparo claimed that the appellants had owed them a duty of care as potential bidders for the company because they should have foreseen the 1984 outcomes that caused Fidelity vulnerable for an existing shareholder desired to acquire extra shares and establish a take-over bid. Based on the decisions of the Queen’s Bench, there was no necessary for the a ppellants to owe a duty of care to Caparo as an investor because of the absence of direct or close relationship between the parties.
Although the appellants might owe statutory duties to stockholders, but there was no common law duty to the individual among them. The case was brought to the Court of Appeal afterwards and it was held it was fair, just, and reasonable that the auditors owed a duty of care to the individual shareholders instead of the investors, so they would be able to recover in tort by relying on the negligent statements, whether by issuing or reserving the shares or by acquiring additional shares with the neighbourhood principle.
Nevertheless, when the House of Lord led the judgement after inspected some relevant cases, they ruled that there was no duty owed by auditors to the respondents or individual shareholders because the court would not infer a relationship of proximity between the parties when to act so would result in unlimited liability on the auditor’s part. A relationship of proximity will only exist when the auditor aware that the statement will have an interaction with people who rely on it for the purpose of business or transaction’s decision making.
Since the individual shareholders were in no better place compared to the majority of publicity and the accountant’s statutory duties to complete the annual account were wholly owed to the body of stockholders, an accountant was not liable to anyone who tended to acquire further market shares of Fidelity. Moreover, the main purpose for all accounts audited and prepared is to spur the company shareholders to create long term strategy or plans using the information rather than purchase shares to gain extra profits.
In my opinion, on the basis of the criteria for imposing liability, the complicated special relationship between the bidders that involved in the take-over, investors, and lenders cannot fully rely on the audited statements but other internal or external factors need to take into the consideration too. There was no statutory duty for an accountant to recommend that they planned to safeguard the interests of the potential investors. Caparo should not contemplate and estimated the amount of bid based on the single statement.
It was his duties to make the inquiries. The imposition of a duty of care on the appellants would not succeed when the investors rely on the statement for some unspecified usage. The indispensably proximity relationship ought to be emerge to restrict what would otherwise turn into an unconditional duty of care owed by accountants for the account’s precision to satisfy the people who might foreseaably depend on them, yet foreseeablility is incapable to be the fundamental element to impose the duty.
According to Companies Act 1985, the imposition of a duty was only referring to the stockholders as a class; these duties would not expand to an individual save as a part of the class in respect of some class activities as the act only develop relationship between accountants and the stockholders. Thus, the accountants are not liable for the damages to anyone who making a failure investment in reliance on the unqualified suggestions. The court has confined the imposition of duty care on accountants to the non clients constantly for the negligent misstatement after the Caparo case.
Morgan Crucible Co plc v Hill Samuel Bank Ltd 1991 is in one of the prominent case with the post-Caparo decisions applied in. With the intention that bidders should rely on the accounts, directors and the financial advisers of the public company had formed an express representation regarding the accuracy of forecasted profits and statements. Soon the bidder alleged that he made loss in reliance on those forecasts. The original statements were drafted on the in line with a duty of care according to the reasonable foreseeability. In the beginning, the leaves that the plaintiff applied to amend the statement were rejected and he appealed.
Following Caparo, the English Court of Appeal ruled that the auditors did not owe a duty of care to the claimer prior to the first bid and the duty of care raised for second bid was not decided by the court because if the forecasts were unprecise then the auditors could foreseen the loss, they realized the claimer’s identity and intended him to rely on the negligent misstatement, yet most of the data of the accounts was exclusive to the claimer. Under UCTA 1977 s2(2), exclusion of liabilities that caused by negligence other than death or injuries must satisfy the requirement of reasonableness of term and notice.
I deemed that the defendants were responsible for the consequential damages because the express representation was made with an intention before they proposed to the bidders. They noticed the bidder’s reliance on the reports so negligent mistakes on the statements were not allowed to be made. There was no reasonable term and notice could be provided in this case, therefore liability was not excluded. CONCLUSION In conclusion, although the growth of law regarding to negligent misstatement is not dramatic, yet the needs to confine the limit of imposition on duty of care has been responded.
Sometimes, a professional accountants or auditors may not notice the degree of their potential liability. It is important to let an accountants take their responsibility on those negligent caused in virtue of the number of people adversely influenced by them (Cooke, 2003, p. 70). Misrepresentation Act 1967 is formulated to against fraudulent or false statements prepared by the professionals and they can restrict the liability to certain financial amount due to the Companies Act 2006.
Basically, the imposition on duty of care should be determined based on the case’s circumstances, examine the purpose of proposals, the special skills owned by the professionals, aware that the proposals given might be relied upon, even the voluntariness on assuming the level of their duties. The knowledge of the accountants upon the identity of plaintiff is not necessary, but it needs to be verified through causation that as a result of the accountant’s negligent advices, the plaintiff suffered economic loss. However, there is a high reluctance to offer liabilities where the losses are purely economic or psychiatric injury.
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