Don’t say we didn’t warn you! The importance of clear advice article banner image

The recent case of Brook Properties (Birmingham) Ltd v Alton & Co provides a useful reminder of the need for solicitors to provide clear advice to their clients. Luckily for the solicitors in this case, they had done just that.

The background

In 2007 a husband and wife acquired a company (Brook Properties) in order to advance a sizeable loan of £700,000 to the wife’s uncle. The purpose of the loan was to enable the uncle to redeem a mortgage against his property and prevent it from being re-possessed by the Bank of Scotland. Brook intended to register a charge against the uncle’s property as security for the loan.

Alton & Co were the solicitors instructed by Brook in relation to the loan.

To complicate matters, Alton discovered that the uncle was being investigated by the Serious Fraud Office (SFO). A restraint order had been made under the Proceeds of Crime Act 2002 and that had resulted in a restriction on the uncle’s property which prevented any charge from being registered without the consent of the director of the SFO.

Accordingly, Alton advised Brook in writing and by phone not to proceed with the loan because of the above and because the restraint order would take priority over their charge.

Brook ignored Alton’s advice and advanced the loan to the impecunious uncle. The charge was duly registered but then removed in 2013. The loan remained outstanding and Brook sued Alton in negligence for the balance of the loan.

The claim

Brook’s claim was essentially comprised of 2 alternative allegations:

  • Alton had failed to advise that the SFO restraint order would take priority over Brooks’ proposed charge. In fact, Brook alleged that Alton had instead advised that Brook would ‘step in to the Bank of Scotland’s shoes’ in terms of the priority of its charge. Brook also claimed that Alton’s written advice (sent by fax) had not been received and that Alton were aware that the husband and wife spoke poor English and that they may not have understood Alton’s advice;
  • Alton had failed to advise Brook that the uncle would not be able to resolve matters with the SFO.

The judgment

Brooks’ claim was dismissed.  The trial judge found that:

  • In all likelihood, the faxed advice had been received by Brook and that fax had specifically advised Brook not to proceed with the loan. Brook had also been advised of the same by telephone.
  • The relevant solicitor at Alton had met personally with the husband and wife and was reasonably entitled to believe that their English was sufficient to enable them to understand the advice they were being given.
  • Even if Alton had failed to advise Brook that the uncle could not resolve matters with the SFO, that advice would have been reasonable in circumstances were another firm was dealing with that matter.
  • Even if Brook could establish that the correct advice had not been given, it had failed to establish that it would have acted any differently as a result of that advice. In other words, causation was not made out because the judge found that Brook would have probably advanced the loan whatever happened. It was noted that Brook had proceeded without any proper due diligence regarding the uncle’s ability to repay the loan. Given the sum of money involved and the uncle’s circumstances that may have been somewhat rash.


It remains a mystery as to why Brook decided to proceed with the loan against their solicitors’ advice. Of course, it is ultimately the client’s decision as to how they proceed but if that turns out to be a bad decision the solicitor will be protected from a claim provided he/she provided proper advice.

If we at Stephens Scown ever suspect that a client is acting contrary to our advice and exposing themselves to risk, our approach is to go one step further and seek to ensure that they expressly understand all the associated risks and implications. In our experience you can never ‘over warn’ a client and it is always better to be safe than sorry.


Jeremy Crook is a solicitor in the dispute resolution team in St Austell. If you would like to contact Jeremy, then please call 01726 74433 or email