Barclays v Grant Thornton – Bannerman disclaimer

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Barclays v Grant Thornton – Bannerman disclaimer

Published On: 29 June 2015

In Barclays Bank plc v Grant Thornton UK LLP [2015] a disclaimer, a clause by which auditors disclaim liability to third parties (commonly referred to as a “Bannerman” clause), was upheld as effective. Auditors will welcome this important Commercial Court decision, which is the first authority on the point.

Barclays suffered loss when its borrower entered administration, and argued Grant Thornton was liable alleging it had relied upon two non-statutory audit reports which did not uncover certain allegedly fraudulent manipulation of the borrower's accounts. The accountants, whilst expressly denying any negligence, sought summary judgment on the basis that Barclays had no reasonable cause of action and the claim had no real prospect of success due to the existence of the Bannerman clause. Grant Thornton sought to strike out the claim on the ground that its Bannerman clause excluded 'responsibility to anyone other than the company and the company's director'. Barclays argued that the clause had not been brought to its attention and was an unfair contract term.

The Commercial Court dismissed Barclays' claim: the Bannerman clause made it clear to the bank that it relied upon the reports at its own risk, which was reasonable as between two sophisticated commercial parties. Cooke J held that "sophisticated bankers can be expected to read documents put before them," and added that it was "hard to see what else Grant Thornton could be expected to do, save for capitalising, underlining or red handing [the disclaimer] which would be considered wholly unnecessary."

This decision confirms the importance of using Bannerman clauses to avoid a duty of care to third parties. The reasonableness of such clauses will be fact specific, but this case confirms they are likely to be effective against corporate, or financially sophisticated third party claimants.