Weston v John Gribben

The scope of a duty of care depends on the kind of loss against which the duty requires protection. The principle in South Australia Asset Management Corporation v York Montague [1997] AC 191 is not a general rule excluding losses merely because the claimant did not rely directly on the defendant’s act. Where an authority negligently authenticates documents for intended use in transactions, losses caused by that apparent authenticity may fall within the scope of its duty. Summary judgment is inappropriate where the pleaded causal connection is reasonably arguable and the claim has a real prospect of success.

The claimant alleged that forged documents, falsely notarised by the first defendant, were authenticated by apostilles issued by the Foreign and Commonwealth Office. The documents were then used to transfer valuable Spanish property. The claimant brought claims in negligence and misfeasance in public office against the FCO.

The FCO accepted, for the purposes of the application, several matters including the existence of a duty of care, breach of duty and the sustainability of the misfeasance claim. It applied for summary judgment under Part 24 of the Civil Procedure Rules 1998, alternatively under CPR 3.4(2)(a), arguing that the alleged breaches lacked a sufficient causal connection with the claimant’s losses and fell outside the scope of any duty. The central issue was whether the claim was fanciful or had a real prospect of succeeding.

1. The FCO’s application for summary judgment was dismissed. The claim was neither fanciful nor an abuse, and the pleadings disclosed a viable cause of action.

2. The court considered the reasoning in South Australia Asset Management Corporation v York Montague [1997] AC 191. That decision requires the court to identify the kind of loss in respect of which the duty is owed. It does not establish a generalised rule applicable without regard to the facts. The mountaineering example concerned foreseeable injury unrelated to the subject matter of the information supplied and could not be pressed beyond its facts.

3. The FCO’s function under the Hague Convention 1961 was to certify matters including the authenticity of the notary’s signature and the capacity in which the notary acted. Those certifications served the purpose of enabling documents to be relied upon as authentic. On the assumed facts, the FCO arguably issued an incorrect certificate because the first defendant was acting outside his notarial jurisdiction.

4. The claimant’s losses were arguably within the scope of the FCO’s duty. The alleged fraud was completed when the documents and apostilles were used to effect apparently genuine transactions. The claimant’s lack of direct reliance on the apostilles did not prevent reliance by those involved in the transactions from providing a relevant causal link.

5. The first defendant’s possible negligence, and the possibility that the documents could have been executed in Scotland, did not exonerate the FCO. The duties arising from the notary’s conduct and the FCO’s certification were separate and independent.

6. Applying the summary judgment principles discussed in Three Rivers v Bank of England [2003] 2 AC 1 and Equitable Life Assurance Society v Ernst and Young [2003] EWCA Civ 1114, the court could not conclude at this stage that the alleged negligence had not legally caused the losses. The significance of the Spanish court’s reasoning required determination at trial.