Amir Khan Against Muhammad Zubair Hussain
| Jurisdiction | Scotland |
| Court | Court of Session |
| Judge | Lord Ericht |
| Neutral Citation | [2019] CSOH 11 |
| Published date | 08 February 2019 |
| Docket Number | CA90/18 |
| Date | 08 February 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 11
CA90/18
OPINION OF LORD ERICHT
In the cause
AMIR KHAN
Pursuer
against
MUHAMMAD ZUBAIR HUSSAIN
Defender
Pursuer: E W Robertson; Drummond Miller LLP
Defender: Dunlop QC; MBS Solicitors
8 February 2019
Introduction
[1] The pursuer’s regulatory authority, the Financial Services Agency, brought
disciplinary proceedings against him. He was found to be in breach and as a sanction his
authority to perform certain functions was withdrawn. The pursuer raised an action against
the defender for breach of contract and professional negligence, and sought to recover from
the defender his loss of earnings resulting from that sanction.
[2] The defender pled:
“2. Any obligation incumbent upon the defender to make payment having
prescribed in terms of Section 6 of the Prescription and Limitation (Scotland) Act 1973,
the defender should be assoilzied from the Conclusions of the Summons.
2
3. The pursuer being precluded from recovering damages from the defender by
reason of public policy – ex turpi causa non oritur actio – the defender should be
assoilzied.
4. The pursuer having suffered no loss as a result of any breach of duty on the
part of the defender, the defender should be assoilzied.”
[3] The pursuer’s pleas in law sought the repelling of these pleas.
[4] The action called before me for debate on these pleas in law.
Factual background
[5] The pursuer was the sole director and shareholder of Sovereign Worldwide Ltd
(“Sovereign”).
[6] The pursuer averred:
“In around March 2007 Sovereign was granted permission by the Financial Services
Agency (“FSA”) to carry on regulated mortgage and general insurance activities. The
defender thereafter also contracted with the pursuer on a personal basis to provide
advice about the pursuer’s tax affairs as an individual and the submission of the
pursuer’s personal tax return.” (Article 2 of condescendence)
[7] The pursuer further averred:
“In or around late 2009 the defender contracted with the pursuer that he would
provide a financial reference for the pursuer to a lender, Intelligent Finance. The
defender knew that the pursuer required to provide accurate financial information for
the lender. The defender was also informed by the pursuer that the pursuer required
to provide information in relation to the pursuer’s earnings to another lender, Abbey
National plc (“Abbey”) for a loan to fund the purchase of a residential property at 1
Leven Terrace, Edinburgh. Under and in terms of the contract between the parties,
the defender provided the pursuer with advice about his earnings and the way in
which this should be evidenced to Abbey. In particular, the defender generated three
payslips from Sovereign in favour of the pursuer for the months of July, August and
September 2009. Under and in terms of the contract between the parties, the defender
prepared a financial reference for the pursuer and sent this to Intelligent Finance.
This financial reference was not shown to the pursuer before the defender sent it to
Intelligent Finance. The reference was faxed direct by the defender to Intelligent
Finance. The financial reference letter incorrectly stated that the pursuer had an
earned income of £60,000 per annum. In fact, that figure was based upon a projection
made by the defender and not historic figures. That figure was also consistent with
the figures which the defender provided to Abbey in the form of payslips.”
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