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Identity fraud: can a solicitor owe a duty of care to a non-client?

Jeremy Cousins KC and Peter Dodge (instructed by Mills & Reeve) appeared in the Court of Appeal for the Seventh Defendant, Rees Page, in Ashraf v Lester Dominic Solicitors [2023] EWCA Civ 4, CA (having previously appeared for Mishcon de Reya in Dreamvar)

UH exchanged contracts for the sale of his house to A. Unusually, the same firm of solicitors, FLP, acted for both vendor and purchaser. It appeared that the bulk of the purchase money was stolen by FLP’s office manager. Neither the transfer (on which UH’s signature had not been witnessed) nor a charge in favour of A’s bank lender, B, could be registered.

B later instructed its own firm of solicitors, RP. A told RP that UH was willing to execute a fresh transfer. RP subsequently received a TR1 which appeared to have been signed by UH, the signature being witnessed by K, a partner in a third firm of solicitors, LDS. RP applied for registration of both the transfer and a charge in favour of B. The application form (AP1) required RP, in relation to each party, to confirm that the party was represented by a conveyancer, to confirm that sufficient steps had been taken to verify the party’s identity or to provide evidence of their identity. The transfer and charge were duly registered.

UH’s estate sued various defendants, alleging that UH’s signature on the second transfer was a forgery (in other words, that UH had been defrauded twice in relation to the same property). The estate pleaded that RP had owed UH a duty of care, despite UH never having been RP’s client. Relying on the decision of the Court of Appeal in Dreamvar (UK) Ltd v Mishcon de Reya [2019] Ch 273, RP applied for summary judgment on the basis that a solicitor does not normally owe a duty of care to a non-client. RP was successful at first instance and an appeal by the estate was dismissed by Edwin Johnson J. The estate brought a second appeal on the grounds that (i) the lower courts were wrong to hold that there was no arguable duty of care owed by RP to UH and (ii) various disputes of fact made it inappropriate to grant summary judgment. On both grounds, the Court of Appeal upheld the decisions below. Nevertheless, the Court allowed the claim against RP to proceed on the limited basis that it was arguable that, in giving the confirmations in an AP1, a conveyancing solicitor such as RP was acting for all parties and thus owed all parties a duty of care (although, in delivering the leading judgment, Nugee LJ expressed the view that this was a legal analysis which had been neither pleaded in terms by the estate nor clearly advanced below).


You can read the full judgement, here.