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Cross-border Enforcement of Listed Companies' Duties to Inform (IVOR nr. 87) 2012/6.5.4
6.5.4 Tort of negligence.• duty of care owed by other professional experts
mr.drs. T.M.C. Arons, datum 07-05-2012
- Datum
07-05-2012
- Auteur
mr.drs. T.M.C. Arons
- JCDI
JCDI:ADS364793:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
It is noteworthy that as of 1 October 2010, s. 90A FSA 2000 and Schedule 10A to the FSMA 2000 apply to to securities that are, with the consent of the issuer, admitted to trading on a securities market market, where (a) the market is situated or operating in the UK, or (b) the UK is the issuer's home State (para. 1(1) Schedule 10A). As a result of this amendment, these issuers, or any other person, are not subject to any liability other than provided for by para. 3 Schedule 10A for losses suffered as a result of reliance by any person on (i) an untrue or misleading statement in published information or (ii) the omission from any such published information of any matter required to be included in it; or any to any liability other than that provided for by para. 5 of this Schedule in respect of loss suffered as a result of delay in the publication of information (para. 7(1) in conjunction with (3) Schedule 10A). One of the exceptions to this exclusive civil liability are claims 'arising from a person's having assumed responsibility, to a particular person for a particular purpose, for the accuracy or completeness of the information concemed' (para. 7(3)(a)(V) Schedule 10A). The wording of this exception 'assumption of responsibility' suggests a narrower test than under Caparo's proximity test. S. 90A FSMA 2000 and Schedule 10A may prevent any claim based on the tort of negligence against auditors for misstatements in the annual accounts incorporated in the prospectus. See: Alcock (2011), pp. 259-259.
The liability in tort for negligence of other professional experts like accountants or auditors, in regard to the prospectus is even more difficult to establish. On the basis of the Caparo decision, a special relationship between these experts and the investing public from which a duty of care arises has to be established. The accountant and auditor will only be liable in tort for negligence, if they knew that their statements on the soundness of the prospectus will be communicated to a clearly identifiable (group of) individual(s) in relation to a specific transaction and if they knew that the individual(s) are highly likely to rely on their statement in their transactional decision.1 The auditor and the accountant can be held liable in tort for negligence by the claimants acquiring shares in the primary market, because they were aware, or should have been aware, that their statements in the prospectus would be relied upon by the investors. However, it is difficult for investors to provide evidence that the accountant or auditor acted grossly negligent and thereby breached their duty to make a due and careful inquiry into the information provided in the prospectus.