On 9 September 2016 the High Court (Kerr J) handed down a judgment in O’Hare v. Coutts & Co., dismissing in its entirety a £5 million claim of product mis-selling and negligent investment advice.
The claimants, Mr and Mrs O’Hare, were long-standing clients of Coutts. They alleged that two sets of products sold in 2007 and 2010 were too risky for their needs and inadequately explained. The High Court concluded that “the fullness of the information Mr O’Hare was given meant it was impossible to complain that the products were mis-sold to him”.
In a departure from the long-standing Bolam test, the court concluded that following the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] A.C. 1430, the common law duty of a financial adviser to explain risks is to make sure the client was aware of any material risks, whether or not a reasonable body of practitioners would consider the disclosure of the risk ought to be made. The court accepted, however, that that it is not inappropriate for a financial adviser to seek to persuade his client to invest in a product, and that “in an appropriate case, advice from a private banker may condition the client’s risk appetite, rather than the other way round”.
Tamara Oppenheimer and Giles Robertson acted for Coutts, instructed by Steven Mills at Dentons.
