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Cite as: [1995] UKHL 5, [1995] 2 WLR 187, [1995] 1 All ER 691, [1995] 2 AC 207

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/255

    White and another (Respondents)

    v.
    Jones and others (Appellants)


    JUDGMENT

    Die Jovis 16° Februarii 1995

    Upon Report from the Appellate Committee to whom was
    referred the Cause White and another against Jones and others,
    That the Committee had heard Counsel as well on Monday the 7th
    as on Tuesday the 8th, Wednesday the 9th, Thursday the 10th and
    Monday the 14th days of March last upon the Petition and Appeal
    of John Brynmor Jones of 37 Manor Road, Button Coalfield, West
    Midlands, David John King of 606 Bromford Lane, Ward End,
    Birmingham B8 2DP and Giles Horton Peppercorn of The Citadel, 190
    Corporation Street, Birmingham B4 6TU, praying that the matter
    of the Order set forth in the Schedule thereto, namely an Order
    of Her Majesty's Court of Appeal of the 3rd day of March 1993,
    might be reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed, varied or
    altered or that the Petitioners might have such other relief in
    the premises as to Her Majesty the Queen in Her Court of
    Parliament might seen meet; as upon the case of Carol Brenda
    White and Pauline Elizabeth Heath lodged in answer to the said
    Appeal; and due consideration had this day of what was offered
    on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of Appeal
    of the 3rd day of March 1993 complained of in the said Appeal be,
    and the same is hereby, Affirmed and that the said Petition and
    Appeal be, and the same is hereby, dismissed this House: And it
    is further Ordered. That the Appellants do pay or cause to be
    paid to the said Respondents the Costs incurred by them in
    respect of the said Appeal, the amount thereof to be certified
    by the Clerk of the Parliaments if not agreed between the
    parties.

    Cler: Parliamentor:

    HOUSE OF LORDS

    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

    IN THE CAUSE


    WHITE AND ANOTHER
    (RESPONDENTS)

    v.

    JONES AND OTHERS
    (APPELLANTS)


    ON 16TH FEBRUARY 1995


    Lord Keith of Kinkel
    Lord Goff of Chieveley
    Lord Browne-Wilkinson
    Lord Mustill
    Lord Nolan


    LORD KEITH OF KINKEL


    My Lords,

    I have had the advantage of reading in draft the speech to be delivered
    by my noble and learned friend Lord Mustill, and I agree with it.

    I am unable to reconcile the allowance of the plaintiffs' claim with
    principle, or to accept that to do so would represent an appropriate advance
    on the incremental basis from decided cases. The position is that the
    defendant Mr. Jones contracted with the testator, Mr. Barratt, to perform a
    particular service for him, namely to take the appropriate steps to enable Mr.
    Barratt's revised testamentary intentions to receive effect. He negligently
    failed to take these steps with due expedition with the result that upon Mr.
    Barratt's death the plaintiffs did not become entitled to the testamentary
    provisions which but for that failure they would have been taken.

    The contractual duty which Mr. Jones owed to the testator was to
    secure that his testamentary intention was put into effective legal form
    promptly. The plaintiffs' case is that precisely the same duty was owed to
    them by Mr. Jones in tort. If the intended effect of the contract between Mr.
    Jones and the testator had been that an immediate benefit, provided by Mr.
    Jones, should be conferred on the plaintiffs, and by reason of Mr. Jones's
    deliberate act or his negligence the plaintiffs had failed to obtain the benefit,
    the plaintiffs would have had no cause of action against Mr. Jones for breach
    of contract, because English law does not admit of jus quaesitum tertio. Nor
    would they have had any cause of action against him in tort, for the law
    would not, I think, allow the rule against jus quaesitum tertio to be
    circumvented in that way. To admit the plaintiffs' claim in the present case
    would in substance, in my opinion, be to give them the benefit of a contract
    to which they were not parties.

    - 1 -

    Further there is, in my opinion, no decided case the grounds of
    decision in which are capable of being extended incrementally and by way of
    analogy so as to admit of a remedy in tort being made available to the
    plaintiffs. Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C.
    465 was a case where the defendants, in response to a request from the
    plaintiffs, had made a representation about the financial soundness of a certain
    concern, in reliance upon which the plaintiffs had acted and in doing so had
    suffered financial loss. This House held that but for a disclaimer of liability
    the defendants would have been liable in damages for negligence in the
    making of the representation. In that case there was a direct relationship
    between the parties creating such proximity as to give rise to a duty of care.
    Here there was no relationship between the plaintiffs and Mr. Jones, nor did
    Mr. Jones do or say anything upon which the plaintiffs acted to their
    prejudice. No damage was done by Mr. Jones to any existing financial or
    other interest of the plaintiffs. The intention to benefit the plaintiffs existed
    only in the mind of the testator, and if it had received legal effect would have
    given them only a spes successions of an ambulatory character

    In Henderson v. Merrett Syndicates Ltd. [1994] 3 W.L.R. 761 the
    managing agents were engaged in conducting the financial affairs of the
    Names belonging to the syndicates under their charge. It was alleged that
    they managed these affairs with a lack of due care which involved the Names
    in enormous losses. It was held by this House that the managing agents owed
    to the Names a duty of care in tort, it being irrelevant that no contractual
    relationship existed between them. Here Mr. Jones was not engaged in
    managing any aspect of the plaintiffs' affairs. He was employed only to deal
    with a particular aspect of the testator's affairs.

    Upon the whole matter I have found the conceptual difficulties involved
    in the plaintiffs' claim, which are fully recognised by all your Lordships, to
    be too formidable to be resolved by any process of reasoning compatible with
    existing principles of law.

    I would therefore allow the appeal

    LORD GOFF OF CHIEVELEY

    My Lords,

    In this appeal, your Lordships' House has to consider for the first time
    the much discussed question whether an intended beneficiary under a will is
    entitled to recover damages from the testator's solicitors by reason of whose
    negligence the testator's intention to benefit him under the will has failed to
    be carried into effect. In Ross v. Caunters [1980] Ch. 297, a case in which
    the will failed because, through the negligence of the testator's solicitors, the
    will was not duly attested, Sir Robert Megarry V.C. held that the disappointed

    - 2 -

    beneficiary under the ineffective will was entitled to recover damages from the
    solicitors in negligence. In the present case, the testator's solicitors
    negligently delayed the preparation of a fresh will in place of a previous will
    which the testator had decided to revoke, and the testator died before the new
    will was prepared. The plaintiffs were the two daughters of the testator who
    would have benefited under the fresh will but received nothing under the
    previous will which, by reason of the solicitors' delay, remained unrevoked.
    It was held by the Court of Appeal, reversing the decision of Turner J., that
    the plaintiffs were entitled to recover damages from the solicitors in
    negligence. The question which your Lordships have to decide is whether, in
    cases such as these, the solicitors are liable to the intended beneficiaries who,
    as a result of their negligence, have failed to receive the benefit which the
    testator intended they should receive.

    The facts

    I shall now set out the facts of the present case, and for this purpose
    I shall gratefully adopt the account of the Vice-Chancellor, Sir Donald
    Nicholls, set out in [1993] 3 W.L.R. 730, 733E-734H, which reads as
    follows:

    "The action arises out of an unfortunate family rift. Mr. Arthur
    Barratt and his wife lived at 84, Whitecroft Road, Sheldon,
    Birmingham. They had two children, Carol and Pauline. Carol
    married twice, first to Peter Gould, and later to David White. She
    lived next door at 82, Whitecroft Road. She moved there to be close
    to her parents after her father had a stroke in 1983. Carol had three
    girls: Mandy and Maxine by her first marriage, Karen by her second.
    Pauline, the other daughter, also lived nearby, three or four minutes'
    walk away. She was married to John Heath, and they had two boys,
    Stephen and Andrew.

    Mrs. Barratt died on 23 January 1986. There was then a family row
    between Mr. Barratt and Pauline (Mrs. Heath) about the removal of a
    money box belonging to Mrs. Barratt. Carol (Mrs. White) sided with
    her sister. Mr. Barratt felt so strongly that he made a will cutting both
    his daughters out of his estate. There was no evidence that he had
    previously made a will. The will, executed on 4 March 1986, was
    prepared by the defendant firm of solicitors, Philip Baker King & Co.
    The first defendant, Mr. John Jones, was a legal executive employed
    by the firm. He had known Mr. Barratt for some years. Mr.
    Barratt's estate consisted principally of a house worth £27,000, about
    £1,000 in a building society, and insurances totalling some £1,000.
    By his will Mr. Barratt appointed his former son-in-law Peter Gould,
    his granddaughter Mandy, and Mr. Jones to be his executors. He gave
    £100 each to two of his grandchildren, Karen and Andrew. Apart
    from these small legacies he left his estate equally between Peter
    Gould, Mandy and Maxine. He left nothing to either daughter.

    - 3 -

    Happily, the estrangement between Mr. Barratt and his daughters did
    not continue for long. By mid-June 1986 they were reconciled. Mr.
    Barratt became concerned at the terms of the will he had made. He
    told his daughters what he had done and what he wished to happen.
    He told Mr. Jones on the telephone that he wanted to change his will.
    Carol White also spoke to Mr. Jones on the telephone about her
    father's wishes. Mr. Jones suggested that Mr. Barratt should jot down
    what he wanted and he, Mr. Jones, would deal with it. Mr. Barratt
    destroyed his copy of the March 1986 will. Mr. Heath was in the
    habit of writing letters for Mr. Barratt. In the middle of July he wrote
    out a letter addressed to Mr. Jones setting forth instructions for the
    new will: Carol and Pauline were to have £9,000 each, the five
    grandchildren £1,600 each, Carol and Pauline were to be responsible
    for the legal costs, and they were to dispose of the contents of the
    house. The letter said: 'I have destroyed the original will ... I trust
    the above is as required.' The letter was signed by Mr. Barratt. It
    was posted to the solicitors and received by them on 17 July.

    Regrettably, nothing was done by Mr. Jones to give effect to these
    instructions for a month. Appointments were made for Mr. Jones to
    call round to see Mr. Barratt on three successive Thursdays but Mr.
    Jones did not keep them. Then on 16 August he dictated an internal
    memorandum to a member of the firm's probate department, which
    read:

    'Re: Arthur Thomas Barrett [sic] - New Will. Keith Amos
    drew up a will which is filed away under reference 30C.
    Please see Mr. Barrett's instructions in his letter received on 17
    July. I have considered the matter and feel possibly a new will
    should be drawn up if an addendum cannot be made. Would
    you be kind enough to do it as soon as possible and let me
    know the amount of your costs. Mr. Barrett is a friend of
    mine and I [will] pop along to his house to witness the will and
    obtain costs. I have an appointment to see Mr. Barrett on
    [blank] and if at all possible could you let me have the will by
    that date.'

    On the following day Mr. Jones went away on holiday. A week later,
    on 23 August, Mr. Barratt went off to Weston-super-Mare for a
    fortnight's holiday. Mr. Jones returned to the office on Monday, 1
    September, and Carol arranged an appointment for him to call and see
    Mr. Barratt on 17 September. That was the first available date after
    Mr. Barratt's return from holiday. Meanwhile nothing further had
    been done within the firm regarding Mr. Barratt's will. Indeed, the
    memo dictated by Mr. Jones on 16 August was not even transcribed
    until 5 September, four days after Mr. Jones came back from holiday.

    - 4 -

    While on holiday Mr. Barratt, who was aged 78, fell and hit his head.
    He returned home on 6 or 7 September. At the weekend he suffered
    a heart attack, and he died on 14 September.

    In due course the will executed in March 1986 was admitted to
    probate. So there were the two documents: the will and the letter of
    instructions for a new will. The letter was not witnessed as required
    by the Wills Act 1837 (7 Will. 4 & 1 Vict. c. 26), so it could not
    itself stand and take effect as a will. The family were unable to agree
    on how the estate should be divided. The daughters took the view that
    Mr. Jones's inexcusable delay was the cause of their not having
    received £18,000 from their father's estate. Had Mr. Jones done what
    he should have done, the March 1986 will would have been revoked
    and replaced with a new will benefiting them. So they brought an
    action for damages for negligence."

    The decisions of the courts below

    The action was heard by Turner. J. He dismissed the plaintiffs' claim.
    First, he decided not to apply Ross v. Caunters [1980] Ch. 297 in a case
    where there had been a failure to draw up the will for execution, as opposed
    to a case where (as in Ross v. Caunters) the will had been drawn up and
    executed, but had not been properly attested. Second, he held that on the
    facts of the present case the damage was too speculative and uncertain in
    extent to be recoverable. The Court of Appeal [1993] 3 W.L.R. 730,
    however, reversed Turner J.'s decision on both these issues and so allowed
    the appeal, holding that the solicitors owed a duty of care to the two plaintiffs,
    and were in breach of that duty. They assessed the damages recoverable by
    the two plaintiffs at £9,000 each, being the minimum sum which each would
    have received under the second will if it had been drawn up and duly
    executed. The decision of the Court of Appeal to reverse the decision of
    Turner J. on the first of these issues raises a point of principle to which I will
    return later.

    Experience in other countries

    I turn to the principal issue which arises on the appeal, which is
    whether in the circumstances of cases such as Ross v. Caunters
    [1980] Ch. 297 and the present case the testator's solicitors are liable to the
    disappointed beneficiary. As I have already stated, the question is one which
    has been much discussed, not only in this country and other common law
    countries, but also in some civil law countries, notably Germany. There can
    be no doubt that Ross v. Caunters has been generally welcomed by academic
    writers (see, e.g., Salmond and Heuston on the Law of Torts, 20th ed., (1992)
    pp. 215, 217; Winfield & Jolowicz on Tort, 13th ed., (1989) pp. 88-89, 96,
    106; Fleming on Torts, 8th ed., (1992) p. 184, and Markesinis and Deakin
    on Tort Law,
    3rd ed., (1994) pp. 95-98). Furthermore it does not appear to

    - 5 -

    have been the subject of adverse comment in the higher courts in this country,
    though it has not been approved except by the Court of Appeal in the present
    case. Indeed, as far as I am aware, Ross v. Caunters has created no serious
    problems in practice since it was decided nearly fifteen years ago. A similar
    conclusion has been reached in the courts of New Zealand (see Gartside v.
    Sheffield, Young & Ellis
    [1983] N.Z.L.R. 37), and the law appears to be
    developing in the same direction in Canada (see, in particular Peake v. Vernon
    & Thompson
    (1990) 49 B.C.L.R. (2d) 245, and Heath v. Ivens (1991) 57
    B.C.L.R. (2d) 39). The position in Australia (to which I will refer in a
    moment), is at present less clear. In the United States, following two earlier
    decisions in California (Biakanja v. Irving 320 P. 2d 16 (1958), in which
    liability was held to arise in tort, and Lucas v. Hamm 364 P. 2d. 685 1961,
    in which the disappointed beneficiary was treated as a third party beneficiary
    of the testator's right of action against the negligent attorney), the trend now
    appears to be moving strongly in favour of liability (see 61 A.L.R. (4th) 464
    (1988) at pp. 473-475 (Joan Teshima). For the American position generally,
    see the Restatement of the Law Governing Lawyers, Tentative Draft No. 7
    (April 7 1994), para. 73(3), and in particular Comment f., and Illustration 2.
    Other cases are cited in the Reporter's Note under para. 73.) In Germany, a
    disappointed beneficiary may be entitled to claim damages from the testator's
    negligent solicitor under the principle known as contract with protective effect
    for third parties (Vertrag mit Schutzwirkung fur Dritte). I shall discuss the
    relevant German law on the subject in greater detail at a later stage in this
    opinion. It also appears that a similar conclusion would be reached in France:
    see Jurisprudence (1979) 19243, Cass. civ. ler, 23 Nov. 1977; and
    Jurisprudence (1982) 19728, Cass. civ. ler, 14 Jan. 1981, which appears to
    be based on the broad principle that a notary is responsible, even as against
    third parties, for all fault causing damage committed by him in the exercise
    of his functions. On facts very similar to those of the present case, the Court
    of Appeal of Amsterdam has held a notary liable in negligence to the intended
    beneficiary: see NJ No. 740 31 Jan. 1985.

    The conceptual difficulties

    Even so, it has been recognised on all hands that Ross v. Caunters
    [1980] Ch. 297 raises difficulties of a conceptual nature, and that as a result
    it is not altogether easy to accommodate the decision within the ordinary
    principles of our law of obligations. Perhaps the most trenchant criticism of
    Ross v. Caunters is to be found in the judgments of Lush J. and (especially)
    Murphy J. in the decision of the Full Court of the Supreme Court of Victoria
    in Seale v. Perry [1982] V.R. 193, in which particular stress is laid upon the
    conceptual difficulties which it raises. It is however right to point out that,
    in that case, McGarvie J. took a rather different view; and further that the
    court, in declining to follow Ross v. Caunters, had also to decline to follow
    the decision of the Full Court of the Supreme Court of Western Australia in
    Watts v. Public Trustee of Western Australia [1980] W.A.R. 97, in which
    Ross v. Caunters was followed. Moreover in Finlay v. Rowlands, Anderson

    - 6 -

    & Hine [1987] Tas. R. 60, Seale v. Perry was not followed, the reasoning in
    Ross v. Caunters being preferred. The decision of the High Court of
    Australia in Hawkins v. Clayton (1988) 164 C.L.R. 539, in which it was held
    by a majority that a solicitor who had retained custody of a will was liable in
    tort to the executor for loss suffered by reason of the solicitor's failure to
    locate and notify him in due time of the testatrix's death, provides an
    indication that the High Court may be prepared to take a less strict approach
    to cases such as Ross v. Caunters than that adopted by the majority of the
    court in Seale v. Perry.

    It is right however that I should immediately summarise these
    conceptual difficulties. They are as follows:

    (1) First, the general rule is well established that a solicitor acting on
    behalf of a client owes a duty of care only to his client. The relationship
    between a solicitor and his client is nearly always contractual, and the scope
    of the solicitor's duties will be set by the terms of his retainer; but a duty of
    care owed by a solicitor to his client will arise concurrently in contract and
    in tort (see Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch.
    384, recently approved by your Lordships' House in Henderson v. Merrett
    Syndicates Ltd.
    [1994] 3 W.L.R. 761). But, when a solicitor is performing
    his duties to his client, he will generally owe no duty of care to third parties.
    Accordingly, as Sir Donald Nicholls V.-C. pointed out in the present case, a
    solicitor acting for a seller of land does not generally owe a duty of care to
    the buyer: see Gran Gelato Ltd. v. Richcliff (Group) Ltd. [1982] Ch. 560.
    Nor, as a general rule, does a solicitor acting for a party in adversarial
    litigation owe a duty of care to that party's opponent: see Al-Kandari v. J.R.
    Brown & Co.
    [1988] QB 665, 672, per Lord Donaldson of Lymington M.R.
    Further it has been held that a solicitor advising a client about a proposed
    dealing with his property in his lifetime owes no duty of care to a prospective
    beneficiary under the client's then will who may be prejudicially affected: see
    Clarke v. Bruce Lance & Co. [1988] 1 W.L.R. 881.

    As I have said, the scope of the solicitor's duties to his client are set
    by the terms of his retainer; and as a result it has been said that the content
    of his duties are entirely within the control of his client. The solicitor can,
    in theory at least, protect himself by the introduction of terms into his contract
    with his client; but, it is objected, he could not similarly protect himself
    against any third party to whom he might be held responsible, where there is
    no contract between him and the third party.

    In these circumstances, it is said, there can be no liability of the
    solicitor to a beneficiary under a will who has been disappointed by reason of
    negligent failure by the solicitor to give effect to the testator's intention.
    There can be no liability in contract, because there is no contract between the
    solicitor and the disappointed beneficiary; if any contractual claim was to be
    recognised, it could only be by way of a ius quaesitum tertio, and no such

    - 7 -

    claim is recognised in English law. Nor could there be liability in tort,
    because in the performance of his duties to his client a solicitor owes no duty
    of care in tort to a third party such as a disappointed beneficiary under his
    client's will.

    (2) A further reason is given which is said to reinforce the conclusion that
    no duty of care is owed by the solicitor to the beneficiary in tort. Here, it is
    suggested, is one of those situations in which a plaintiff is entitled to damages
    if, and only if, he can establish a breach of contract by the defendant. First,
    the plaintiffs claim is one for purely financial loss; and as a general rule,
    apart from cases of assumption of responsibility arising under the principle in
    Hedley Byrne & Co. Ltd v. Heller & Partners Ltd. [1964] AC 465, no
    action will lie in respect of such loss in the tort of negligence. Furthermore,
    in particular, no claim will lie in tort for damages in respect of a mere loss
    of an expectation, as opposed to damages in respect of damage to an existing
    right or interest of the plaintiff. Such a claim falls within the exclusive zone
    of contractual liability; and it is contrary to principle that the law of tort
    should be allowed to invade that zone. Of course, Parliament can create
    exceptions to that principle by extending contractual rights to persons who are
    not parties to a contract, as was done, for example, in the Bills of Lading Act
    1855 and the Carriage of Goods by Sea Act 1992. But as a matter of
    principle a step of this kind cannot be taken by the courts, though they can
    redefine the boundaries of the exclusive zone, as they did in Donoghue v.
    Stevenson
    [1932] AC 562.

    The present case, it is suggested, falls within that exclusive zone.
    Here, it is impossible to frame the suggested duty except by reference to the
    contract between the solicitor and the testator - a contract to which the
    disappointed beneficiary is not a party, and from which, therefore, he can
    derive no rights. Second, the loss suffered by the disappointed beneficiary is
    not in reality a loss at all; it is, more accurately, a failure to obtain a benefit.
    All that has happened is that what is sometimes called a spes succesionis has
    tailed to come to fruition. As a result, he has not become better off; but he
    is not made worse off. A claim in respect of such a loss of expectation falls,
    it is said, clearly within the exclusive zone of contractual liability.

    (3) A third, and distinct, objection is that, if liability in tort was
    recognised in cases such as Ross v. Caunters [1980] Ch. 297, it would be
    impossible to place any sensible bounds to cases in which such recovery was
    allowed. In particular, the same liability should logically be imposed in cases
    where an inter vivos transaction was ineffective, and the defect was not
    discovered until the donor was no longer able to repair it. Furthermore,
    liability could not logically be restricted to cases where a specific named
    beneficiary was disappointed, but would inevitably have to be extended to
    cases in which wide, even indeterminate, classes of persons could be said to
    have been adversely affected.

    -8-

    (4) Other miscellaneous objections were taken, though in my opinion they
    were without substance. In particular:

    1. Since the testator himself owes no duty to the beneficiary, it
      would be illogical to impose any such duty on his solicitor. I
      myself cannot however see any force in this objection.

    2. To enable the disappointed beneficiary to recover from the
      solicitor would have the undesirable, and indeed fortuitous,
      effect of substantially increasing the size of the testator's estate
      - even of doubling it in size; because it would not be possible
      to recover any part of the estate which had lawfully devolved
      upon others by an unrevoked will or on an intestacy, even
      though that was not in fact the testator's intention. I cannot
      however see what impact this has on the disappointed
      beneficiary's remedy. It simply reflects the fact that those who
      received the testator's estate, either under an unrevoked will or
      on an intestacy, were lucky enough to receive a windfall; and
      in consequence the estate is, so far as the testator and the
      disappointed beneficiary are concerned, irretrievably lost.

    (5) There is however another objection of a conceptual nature, which was
    not adumbrated in argument before the Appellate Committee. In the present
    case, unlike Ross v. Counters itself, there was no act of the defendant solicitor
    which could be characterised as negligent. All that happened was that the
    solicitor did nothing at all for a period of time, with the result that the testator
    died before his new testamentary intentions could be implemented in place of
    the old. As a general rule, however, there is no liability in tortious
    negligence for an omission, unless the defendant is under some pre-existing
    duty. Once again, therefore, the question arises how liability can arise in the
    present case in the absence of a contract.

    Point (5) apart, such were the principal arguments addressed to the
    Appellate Committee by Mr. Matheson Q.C. on behalf of the appellants in the
    present case. In addition Professor Jolowicz Q.C. developed, on behalf of the
    appellants, the argument based upon the principle of an exclusive zone of
    contractual liability. I myself was much assisted by these arguments, as I was
    by the admirable argument addressed to the Committee by Mr. Mitting Q.C.
    on behalf of the respondents.

    Robertson v. Fleming

    There is undoubted force in the principal contentions advanced on
    behalf of the appellants. Moreover the appellants were able to rely, in support
    of their argument, on a decision of your Lordships' House, Robertson v.
    Fleming
    1861 4 Macq. 167, which came before this House on appeal from the
    Court of Session. In that case, sureties were seeking to claim damages from
    a solicitor, instructed by the debtor "for behoof of" the sureties to prepare

    - 9 -

    documentation designed to enable the sureties to have the benefit of security
    in the form of leasehold property to which the debtor was entitled. The
    relevant document, which took the form of a bond of relief and assignation in
    favour of the sureties, failed to achieve the desired effect because, through the
    negligence of the solicitor, notice of the assignation was not given to the
    landlord. In the litigation, the principal issue related to the meaning of the
    expression "for behoof of", the question being whether it meant "by authority
    of", so that it was effective to create the necessary privity between the sureties
    and the solicitor; or whether it simply meant "for the benefit of", in which
    case it did not have that effect. In the course of their speeches in the House
    some of their Lordships, when stating that the mere fact that the work was
    done for the benefit of the sureties was not sufficient to give rise to liability
    on the part of the solicitor to the sureties, referred to the example of a claim
    against a solicitor by a disappointed legatee as being so contrary to principle
    as to illustrate clearly why the claim in the case before them was unfounded:
    see p. 177, per Lord Campbell L.C.; p. 185, per Lord Cranworth; and pp.
    200-201, per Lord Wensleydale. Lord Campbell spoke in particularly strong
    terms, when he said of the sureties' argument (at p. 177):

    "If this were law a disappointed legatee might sue the solicitor
    employed by a testator to make a will in favour of a stranger, whom
    the solicitor never saw or before heard of, if the will were void for not
    being properly signed and attested. I am clearly of opinion that this
    is not the law of Scotland, nor of England, and it can hardly be the
    law of any country where jurisprudence has been cultivated as a
    science."

    Statements such as these no doubt represented the law as understood
    in this country over a century ago. Moreover, as I have already observed, the
    general rule today is that, subject to his duties to the court and the
    professional duties imposed upon his profession, a solicitor when acting for
    his client owes no duty to third parties. But the problem which arises in the
    present case relates to the particular position of an intended beneficiary under
    a will or proposed will to which the solicitor has negligently failed to give
    effect in accordance with the instructions of his client, the testator; and the
    question is whether exceptionally a duty of care should be held to be owed by
    the solicitor to the disappointed beneficiary in those circumstances. I myself
    do not consider that the existence of such a duty of care can simply be
    dismissed by reference to the sweeping statements made in Robertson v.
    Fleming.
    For the law has moved on from those days. Nowadays questions
    such as that in the present case have to be considered anew, and statements
    of the law, such as that of Lord Campbell, cannot be allowed to foreclose the
    argument of the plaintiffs in the present case; indeed, although they
    demonstrate the importance attached to the doctrine of privity of contract in
    1861, nevertheless they did not form part of the ratio decidendi of the case,
    in which the question at issue in the present case did not fall to be decided.
    It follows that, although the views expressed on the point in Robertson v.
    Fleming
    are still entitled to great respect, your Lordships are in my opinion

    - 10 -

    free to depart from them without having recourse to the Practice Direction of
    1966 for that purpose. Even so, they add force to the conceptual argument
    advanced on behalf of the appellants in the present case.

    The impulse to do practical justice

    Before addressing the legal questions which lie at the heart of the
    present case, it is, I consider, desirable to identify the reasons of justice which
    prompt judges and academic writers to conclude, like Megarry V.-C. in Ross
    v. Caunters,
    that a duty should be owed by the testator's solicitor to a
    disappointed beneficiary. The principal reasons are, I believe, as follows.

    1. In the forefront stands the extraordinary fact that, if such a duty is not
      recognised, the only persons who might have a valid claim (i.e., the testator
      and his estate) have suffered no loss, and the only person who has suffered a
      loss (i.e., the disappointed beneficiary) has no claim: see Ross v. Caunters
      [1980] Ch. 297, 303A, per Sir Robert Megarry V.-C. It can therefore be said
      that, if the solicitor owes no duty to the intended beneficiaries, there is a
      lacuna in the law which needs to be filled. This I regard as being a point of
      cardinal importance in the present case.

    2. The injustice of denying such a remedy is reinforced if one considers
      the importance of legacies in a society which recognises (subject only to the
      incidence of inheritance tax, and statutory requirements for provision for near
      relatives) the right of citizens to leave their assets to whom they please, and
      in which, as a result, legacies can be of great importance to individual
      citizens, providing very often the only opportunity for a citizen to acquire a
      significant capital sum; or to inherit a house, so providing a secure roof over
      the heads of himself and his family; or to make special provision for his or
      her old age. In the course of the hearing before the Appellate Committee
      Mr. Matheson Q.C. (who was instructed by the Law Society to represent the
      appellant solicitors) placed before the Committee a schedule of claims of the
      character of that in the present case notified to the Solicitors' Indemnity Fund
      following the judgment of the Court of Appeal below. It is striking that,
      where the amount of the claim was known, it was, by today's standards, of
      a comparatively modest size. This perhaps indicates that it is where a testator
      instructs a small firm of solicitors that mistakes of this kind are most likely
      to occur, with the result that it tends to be people of modest means, who need
      the money so badly, who suffer.

    3. There is a sense in which the solicitors' profession cannot complain if
      such a liability may be imposed upon their members. If one of them has been
      negligent in such a way as to defeat his client's testamentary intentions, he
      must regard himself as very lucky indeed if the effect of the law is that he is
      not liable to pay damages in the ordinary way. It can involve no injustice to
      render him subject to such a liability, even if the damages are payable not to
      his client's estate for distribution to the disappointed beneficiary (which might
      have been the preferred solution) but direct to the disappointed beneficiary.

    - 11 -

    (4) That such a conclusion is required as a matter of justice is reinforced
    by consideration of the role played by solicitors in society. The point was
    well made by Cooke J. in Gartside v. Sheffield, Young & Ellis [1983]
    N.Z.L.R. 37, 43, when he observed that:

    "To deny an effective remedy in a plain case would seem to imply a
    refusal to acknowledge the solicitor's professional role in the
    community. In practice the public relies on solicitors (or statutory
    officers with similar functions) to prepare effective wills."

    The question therefore arises whether it is possible to give effect in law
    to the strong impulse for practical justice which is the fruit of the foregoing
    considerations. For this to be achieved, I respectfully agree with the
    Sir Donald Nicholls V.-C. when he said (see [1993] 3 W.L.R. 730, 739) that
    the court will have to fashion "an effective remedy for the solicitor's breach
    of his professional duty to his client" in such a way as to repair the injustice
    to the disappointed beneficiary.

    Ross v. Caunters and the conceptual problems

    In Ross v. Caunters [1980] 1 Ch. 297, Sir Robert Megarry V.-C.
    approached the problem as one arising under the ordinary principles of the tort
    of negligence. He found himself faced with two principal objections to the
    plaintiff's claim. The first, founded mainly upon the decision of the Court of
    Appeal in Groom v. Crocker [1939] 1 K.B. 194, was that a solicitor could not
    be liable in negligence in respect of his professional work to anyone except
    his client, his liability to his client arising only in contract and not in tort.
    This proposition Sir Robert rejected without difficulty, relying primarily upon
    the judgment of Oliver J. in Midland Bank Trust Co. Ltd. v. Hett, Stubbs &
    Kemp
    [1979] Ch. 384 (recently approved by this House in Henderson v.
    Merrett Syndicates Ltd.
    [1994] 3 W.L.R. 761). The second, and more
    fundamental, argument was that, apart from cases falling within the principle
    established in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C.
    465, no action lay in the tort of negligence for pure economic loss. This
    argument Sir Robert approached following the path traced by Lord
    Wilberforce in Anns v. Merton London Borough Council [1978] AC 728,
    751-752; and on that basis, relying in particular on Ministry of Housing and
    Local Government v. Sharp
    [1970] 2 Q.B. 223 (which he regarded as
    conclusive of the point before him), he held that here liability could properly
    be imposed in negligence for pure economic loss, his preferred basis being by
    direct application of Donoghue v. Stevenson [1932] AC 562 itself.

    It will at once be seen that some of the conceptual problems raised by
    the appellants in argument before the Appellate Committee were not raised in
    Ross v. Caunters [1980] Ch. 297. Others which were raised plainly did not
    loom so large in argument as they have done in the present case. Thus the
    point founded on the fact that in cases of this kind the plaintiff is claiming

    - 12 -

    damages for the loss of an expectation was briefly touched upon by Sir Robert
    (at p. 322) and as briefly dismissed by him, but (no doubt for good reason,
    having regard to the manner in which the case was presented) there is no
    further analysis of the point. It is however my opinion that, these conceptual
    arguments having been squarely raised in argument in the present case, they
    cannot lightly be dismissed. They have to be faced; and it is immediately
    apparent that they raise the question whether the claim properly falls within
    the law of contract or the law of tort. This is because, although the plaintiffs'
    claim has been advanced, and indeed held by the Court of Appeal to lie, in
    the tort of negligence, nevertheless the response of the appellants has been that
    the claim, if properly analysed, must necessarily have contractual features
    which cannot ordinarily exist in the case of a an ordinary tortious claim. Here
    I refer not only to the fact that the claim is one for damages foi pure
    economic loss, but also to the need for the defendant solicitor to be entitled
    to invoke as against the disappointed beneficiary any terms of the contract
    with his client which may limit or exclude his liability; to the fact that the
    damages claimed are for the loss of an expectation; and also to the fact (not
    adverted to below) that the claim in the present case can be said to arise from
    a pure omission, and as such will not (apart from special circumstances) give
    rise to a claim in tortious negligence. Faced with points such as these, the
    strict lawyer may well react by saying that the present claim can lie only in
    contract, and is not therefore open to a disappointed beneficiary as against the
    testator's solicitor. This was indeed the reaction of Lush and Murphy JJ. in
    Seale v. Perry [1982] V.R. 193, and is one which is entitled to great respect.

    It must not be forgotten however that a solicitor who undertakes to
    perform services for his client may be liable to his client for failure to
    exercise due care and skill in relation to the performance of those services not
    only in contract, but also in negligence under the principle in Hedley Byrne
    & Co. Ltd. v. Heller & Partners Ltd.
    [1964] AC 465: (see Midland Bank
    Trust Co. Ltd. v. Hett, Stubbs & Kemp
    [1977] Ch. 384,) on the basis of
    assumption of responsibility by the solicitor towards his client. Even so there
    is great difficulty in holding, on ordinary principles, that the solicitor has
    assumed any responsibility towards an intended beneficiary under a will which
    he has undertaken to prepare on behalf of his client but which, through his
    negligence, has failed to take effect in accordance with his client's
    instructions. The relevant work is plainly performed by the solicitor for his
    client; but, in the absence of special circumstances, it cannot be said to have
    been undertaken for the intended beneficiary. Certainly, again in the absence
    of special circumstances, there will have been no reliance by the intended
    beneficiary on the exercise by the solicitor of due care and skill; indeed, the
    intended beneficiary may not even have been aware that the solicitor was
    engaged on such a task, or that his position might be affected. Let me take
    the example of an inter vivos gift where, as a result of the solicitor's
    negligence, the instrument in question is for some reason not effective for its
    purpose. The mistake comes to light some time later during the lifetime of
    the donor, after the gift to the intended donee should have taken effect. The
    donor, having by then changed his mind, declines to perfect the imperfect gift

    - 13 -

    in favour of the intended donee. The latter may be unable to obtain
    rectification of the instrument, because equity will not perfect an imperfect
    gift (though there is some authority which suggests that exceptionally it may
    do so if the donor has died or become incapacitated: see Lister v. Hodgson
    (1867) L.R. 4 Eq. 30, 34-35 per Romilly M.R.). I for my part do not think
    that the intended donee could in these circumstances have any claim against
    the solicitor. It is enough, as I see it, that the donor is able to do what he
    wishes to put matters right. From this it would appear to follow that the real
    reason for concern in cases such as the present lies in the extraordinary fact
    that, if a duty owed by the testator's solicitor to the disappointed beneficiary
    is not recognised, the only person who may have a valid claim has suffered
    no loss, and the only person who has suffered a loss has no claim. This is a
    point to which I will return later in this opinion, when I shall give further
    consideration to the application of the Hedley Byrne principle in circumstances
    such as those in the present case.

    The German experience

    The fact that the problems which arise in cases such as the present
    have troubled the courts in many jurisdictions, both common law and civil
    law, and have prompted a variety of reactions, indicates that they are of their
    very nature difficult to accommodate within the ordinary principles of the law
    of obligations. It is true that our law of contract is widely seen as deficient
    in the sense that it is perceived to be hampered by the presence of an
    unnecessary doctrine of consideration and (through a strict doctrine of privity
    of contract) stunted through a failure to recognise a jus quaesitum tertio. But
    even if we lacked the former and possessed the latter, the ordinary law could
    not provide a simple answer to the problems which arise in the present case,
    which appear at first sight to require the imposition of something like a
    contractual liability which is beyond the scope of the ordinary jus quaesitum
    tertio. In these circumstances, the effect of the special characteristics of any
    particular system of law is likely to be, as indeed appears from the authorities
    I have cited, not so much that no remedy is recognised, but rather that the
    system in question will choose its own special means for granting a remedy
    notwithstanding the doctrinal difficulties involved.

    We can, I believe, see this most clearly if we compare the English and
    German reactions to problems of this kind. Strongly though I support the
    study of comparative law, I hesitate to embark in an opinion such as this upon
    a comparison, however brief, with a civil law system; because experience has
    taught me how very difficult, and indeed potentially misleading, such an
    exercise can be. Exceptionally however, in the present case, thanks to
    material published in our language by distinguished comparatists, German as
    well as English, we have direct access to publications which should
    sufficiently dispel our ignorance of German law and so by comparison
    illuminate our understanding of our own.

    - 14 -

    I have already referred to problems created in the English law of
    contract by the doctrines of consideration and of privity of contract. These,
    of course, encourage us to seek a solution to problems of this kind within our
    law of tortious negligence. In German law, on the other hand, in which the
    law of delict does not allow for the recovery of damages for pure economic
    loss in negligence, it is natural that the judges should extend the law of
    contract to meet the justice of the case. In a case such as the present, which
    is concerned with a breach of duty owed by a professional man (A) to his
    client (B), in circumstances in which practical justice requires that a third
    party (C) should have a remedy against the professional man (A) in respect
    of damage which he has suffered by reason of the breach, German law may
    have recourse to a doctrine called Vertrag mit Schutzwirkung fur Dritte
    (contract with protective effect for third parties), the scope of which extends
    beyond that of an ordinary contract for the benefit of a third party. (See
    Professor Werner Lorenz in The Gradual Convergence, ed. Markesinis (OUP
    1994), pp. 65, 68-72.) This doctrine was invoked by the German Supreme
    Court in the Testamentfall case (BGH 6 July 1965, NJW 1965, 1955) which
    is similar to the present case in that the plaintiff (C), through the dilatoriness
    of a lawyer (A) (instructed by her father (B)) in making the necessary
    arrangements for the father's will, was deprived of a testamentary benefit
    which she would have received under the will if it had been duly made. The
    plaintiff (C) was held to be entitled to recover damages from the lawyer (A).
    Professor Lorenz has expressed the opinion (p. 70) that the ratio of that case
    would apply to the situation in Ross v. Caunters itself. In these cases, it
    appears that the court will examine "whether the contracting parties intended
    to create a duty of care in favour of" the third person (BGH NJW 1984 355,
    356), or whether there is to be inferred "a protective obligation . . . based on
    good faith ..." (BGHZ 69, 82, 85 et seq.). (Quotations taken in each case
    from Professor Markesinis' article on "An Expanding Tort Law - the Price of
    a Rigid Contract Law" (1987) 103 L.Q.R. 354, 363, 366, 368.) But any such
    inference of intention would, in English law, be beyond the scope of our
    doctrine of implied terms; and it is legitimate to infer that the German
    judges, in creating this special doctrine, were extending the law of contract
    beyond orthodox contractual principles.

    I wish next to refer to another German doctrine known as
    Drittschadensliquidation, which is available in cases of transferred loss
    (Schadensverlagerung). In these cases, as a leading English comparatist has
    explained:

    " ... the person who has suffered the loss has no remedy while the
    person who has the remedy has suffered no loss. If such a situation
    is left unchallenged, the defaulting party may never face the
    consequences of his negligent conduct; his insurer may receive an
    unexpected (and undeserved) windfall; and the person on whom the
    loss has fallen may be left without any redress." See Markesinis, The
    German Law of Torts,
    3rd ed., (1994) p. 56.

    - 15 -

    Under this doctrine, to take one example, the defendant (A), typically a
    carrier, may be held liable to the seller of goods (B) for the loss suffered by
    the buyer (C) to whom the risk but not the property in the goods has passed.
    In such circumstances the seller is held to have a contractual claim against the
    carrier in respect of the damage suffered by the buyer. This claim can be
    pursued by the seller against the carrier; but it can also be assigned by him
    to the buyer. If, exceptionally, the seller refuses either to exercise his right
    for the benefit of the buyer or to assign his claim to him, the seller can be
    compelled to make the assignment. (See Professor Werner Lorenz in Essays
    in Memory of Professor F.H. Lawson
    (1986) 86, 89-90), and in The Gradual
    Convergence
    (OUP 1994) ed. Markesinis, 65, 88-89, 92-93; and Professor
    Hein Kotz in (1990) 10 Tel Aviv University Studies in Law 195, 209.)
    Professor Lorenz (Essays at p. 89) has stated that it is at least arguable that
    the idea of Drittschadensliquidation might be "extended so as to cover" such
    cases as the Testamentfall case, an observation which is consistent with the
    view expressed by the German Supreme Court that the two doctrines may
    overlap (BGH 19 January 1977, NJW 1977, 2073 = VersR 1977, 638:
    translated in Markesinis, German Law of Torts, 3rd ed., 293). At all events
    both doctrines have the effect of extending to the plaintiff the benefit of what
    is, in substance, a contractual cause of action; though, at least as seen
    through English eyes, this result is achieved not by orthodox contractual
    reasoning, but by the contractual remedy being made available by law in order
    to achieve practical justice.

    Transferred loss in English law

    I can deal with this topic briefly. The problem of transferred loss has
    arisen in particular in maritime law, when a buyer of goods seeks to enforce
    against a shipowner a remedy in tort in respect of loss of or damage to goods
    at his risk when neither the rights under the contract nor the property in the
    goods has passed to him (see Leigh & Sillivan Ltd. v. Aliakmon Shipping Co.
    Ltd.
    [1985] Q.B. 350, 399, per Robert Goff L.J. and [1986] AC 785, 820,
    per Lord Brandon of Oakbrook). In cases such as these (with all respect to
    the view expressed by Lord Brandon in [1986] AC 785, 819) there was a
    serious lacuna in the law, as was revealed when all relevant interests in the
    city of London called for reform to make a remedy available to the buyers
    who under the existing law were without a direct remedy against the
    shipowners. The problem was solved, as a matter of urgency, by the Carriage
    of Goods by Sea Act 1992, I myself having the honour of introducing the Bill
    into your Lordships' House (acting in its legislative capacity) on behalf of the
    Law Commission. The solution adopted by the Act was to extend the rights
    of suit available under section 1 of the Bills of Lading Act 1855 (there
    restricted to cases where the property in the goods had passed upon or by
    reason of the consignment or endorsement of the relevant bill of lading) to all
    holders of bills of lading (and indeed other documents): see section 2(1) of
    the Act of 1992. Here is a sweeping statutory reform, powered by the needs
    of commerce, which has the effect of enlarging the circumstances in which

    - 16 -

    contractual rights may be transferred by virtue of the transfer of certain
    documents. For present purposes, however, an important consequence is the
    solution in this context of a problem of transferred loss, the lacuna being filled
    by statute rather than by the common law. Moreover this result has been
    achieved, as in German law, by vesting in the plaintiff, who has suffered the
    relevant loss, the contractual rights of the person who has stipulated for the
    carrier's obligation but has suffered no loss.

    I turn next to English law in relation to cases such as the present.
    Here there is a lacuna in the law, in the sense that practical justice requires
    that the disappointed beneficiary should have a remedy against the testator's
    solicitor in circumstances in which neither the testator nor his estate has in law
    suffered a loss. Professor Lorenz (Essays in Memory of Professor F.H.
    Lawson,
    p.90) has said that "this is a situation which comes very close to the
    cases of 'transferred loss', the only difference being that the damage due to
    the solicitor's negligence could never have been caused to the testator or to his
    executor". In the case of the testator, he suffers no loss because (in contrast
    to a gift by an inter vivos settlor) a gift under a will cannot take effect until
    after the testator's death, and it follows that there can be no depletion of the
    testator's assets in his lifetime if the relevant asset is, through the solicitors'
    negligence, directed to a person other than the intended beneficiary. The
    situation is therefore not one in which events have subsequently occurred
    which have resulted in the loss falling on another. It is one in which the
    relevant loss could never fall on the testator to whom the solicitor owed a
    duty, but only on another; and the loss which is suffered by that other, i.e. an
    expectation loss, is of a character which in any event could never have been
    suffered by the testator. Strictly speaking, therefore, this is not a case of
    transferred loss.

    Even so, the analogy is very close. In practical terms, part or all of
    the testator's estate has been lost because it has been despatched to a
    destination unintended by the testator. Moreover, had a gift been similarly
    misdirected during the testator's lifetime, he would either have been able to
    recover it from the recipient or, if not, he could have recovered the full
    amount from the negligent solicitor as damages. In a case such as the present,
    no such remedies are available to the testator or his estate. The will cannot
    normally be rectified: the testator has of course no remedy: and his estate
    has suffered no loss, because it has been distributed under the terms of a valid
    will. In these circumstances, there can be no injustice if the intended
    beneficiary has a remedy against the solicitor for the full amount which he
    should have received under the will, this being no greater than the damage for
    which the solicitor could have been liable to the donor if the loss had occurred
    in his lifetime.

    A contractual approach

    It may be suggested that, in cases such as the present, the simplest
    course would be to solve the problem by making available to the disappointed

    - 17 -

    beneficiary, by some means or another, the benefit of the contractual rights
    (such as they are) of the testator or his estate against the negligent solicitor,
    as is for example done under the German principle of Vertrag mit
    Schutzwirkung fur Dritte. Indeed that course has been urged upon us by
    Professor Markesinis in (1987) 103 L.Q.R. 354, 396-397, echoing a view
    expressed by Professor Fleming in (1986) 4 O.J.L.S. 235, 241. Attractive
    though this solution is, there is unfortunately a serious difficulty in its way.
    The doctrine of consideration still forms part of our law of contract, as does
    the doctrine of privity of contract which is considered to exclude the
    recognition of a jus quaesitum tertio. To proceed as Professor Markesinis has
    suggested may be acceptable in German law, but in this country could be open
    to criticism as an illegitimate circumvention of these long established
    doctrines; and this criticism could be reinforced by reference to the fact that,
    in the case of carriage of goods by sea, a contractual solution to a particular
    problem of transferred loss, and to other cognate problems, was provided only
    by recourse to Parliament. Furthermore, I myself do not consider that the
    present case provides a suitable occasion for reconsideration of doctrines so
    fundamental as these.

    The Albazero principle

    Even so, I have considered whether the present problem might be
    solved by adding cases such as the present to the group of cases referred to
    by Lord Diplock in The Albazero [1977] A.C. 774, 846-847. In these cases,
    a person may exceptionally sue in his own name to recover a loss which he
    has not in fact suffered, being personally accountable for any damages so
    recovered to the person who has in fact suffered the loss. Lord Diplock was
    prepared to accommodate within this group the so-called rule in Dunlop v.
    Lambert
    (1839) 6 Cl. & F. 600, on the principle that:

    "... in a commercial contract concerning goods where it is in the
    contemplation of the parties that the proprietary interests in the goods
    may be transferred from one owner to another after the contract has
    been entered into and before the breach which causes loss or damage
    to the goods, an original party to the contract, if such be the intention
    of them both, is to be treated in law as having entered into the contract
    for the benefit of all persons who have or may acquire an interest in
    the goods before they are lost or damaged, and is entitled to recover
    by way of damages for breach of contract the actual loss sustained by
    those for whose benefit the contract is entered into." [Emphasis
    supplied].

    Furthermore, in Linden Gardens Trust Ltd. v. Lenesta Sludge
    Disposals Ltd.
    [1994] AC 85, your Lordships' House extended this group
    of cases to include a case in which work was done by the defendants under a
    contract with the first plaintiffs who, despite a contractual bar against
    assignment of their contractual rights without the consent of the defendants,
    had without consent assigned them to the second plaintiffs who suffered

    - 18 -

    damage by reason of defective work carried out by the defendants. It was
    held that, by analogy with the cases referred to in The Albazero, [1977] A.C.
    774 the first plaintiffs could recover the damages from the defendants for the
    benefit of the second plaintiffs. In so holding, your Lordships' House relied
    upon a passage in Lord Diplock's speech (at p. 847) that "there may still be
    occasional cases in which the rule [in Dunlop v. Lambert] would provide a
    remedy where no other would be available to a person sustaining loss which
    under a rational legal system ought to be compensated by the person who has
    caused it".

    The decision is noteworthy in a number of respects. First, this was a
    case of transferred loss; and Lord Diplock's dictum, as applied by your
    Lordships' House, reflects a clear need for the law to find a remedy in cases
    of this kind. Second, your Lordships' House felt able to do so in a case in
    which there was a contractual bar against assignment without consent; and as
    a result, unlike Lord Diplock, did not find it necessary to look for a common
    intention that the contract was entered into for the benefit of persons such as
    the second plaintiffs, which in this case, having regard to the prohibition
    against assignment, it plainly was not. Third, the consequence was that your
    Lordships' House simply made the remedy available as a matter of law in
    order to solve the problem of transferred loss in the case before them.

    Even so, the result was only to enable a person to recover damages in
    respect of loss which he himself had not suffered, for the benefit of a third
    party. In the present case, there is the difficulty that the third party (the
    intended beneficiary) is seeking to recover damages for a loss (expectation
    loss) which the contracting party (the testator) would not himself have
    suffered. In any event, under this principle, the third party who has suffered
    the loss is not able to compel the contracting party to sue for his benefit, or
    to transfer the right of action to him; still less is he entitled to sue in his own
    name. In the last analysis, this is because any such right would be contrary
    to the doctrine of privity of contract. In consequence a principle such as this,
    if it could be extended to cases such as the present, would be of limited value
    because, quite apart from any other difficulties, the family relationship may
    be such that the executors may be unwilling to assist the disappointed
    beneficiary by pursuing a claim of this kind for his benefit. Certainly, it
    could not assist the plaintiffs in the present case, who very understandably are
    proceeding against the solicitors by a direct action in their own name.

    The tortious solution

    I therefore return to the law of ton for a solution to the problem. For
    the reasons I have already given, an ordinary action in tortious negligence on
    the lines proposed by Sir Robert Megarry V.-C. in Ross v. Caunters [1980]
    Ch. 297 must, with the greatest respect, be regarded as inappropriate,
    because it does not meet any of the conceptual problems which have been
    raised. Furthermore, for the reasons I have previously given, the Hedley
    Byrne
    principle cannot, in the absence of special circumstances, give rise on

    - 19 -

    ordinary principles to an assumption of responsibility by the testator's solicitor
    towards an intended beneficiary. Even so it seems to me that it is open to
    your Lordships' House, as in the Lenesta Sludge case [1994] AC 85, to
    fashion a remedy to fill a lacuna in the law and so prevent the injustice which
    would otherwise occur on the facts of cases such as the present. In the
    Lenesta Sludge case [1994] AC 85, as I have said, the House made available
    a remedy as a matter of law to solve the problem of transferred loss in the
    case before them. The present case is, if anything, a fortiori, since the nature
    of the transaction was such that, if the solicitors were negligent and their
    negligence did not come to light until after the death of the testator, there
    would be no remedy for the ensuing loss unless the intended beneficiary could
    claim. In my opinion, therefore, your Lordships' House should in cases such
    as these extend to the intended beneficiary a remedy under the Hedley Byrne
    principle by holding that the assumption of responsibility by the solicitor
    towards his client should be held in law to extend to the intended beneficiary
    who (as the solicitor can reasonably foresee) may, as a result of the solicitor's
    negligence, be deprived of his intended legacy in circumstances in which
    neither the testator nor his estate will have a remedy against the solicitor.
    Such liability will not of course arise in cases in which the defect in the will
    comes to light before the death of the testator, and the testator either leaves
    the will as it is or otherwise continues to exclude the previously intended
    beneficiary from the relevant benefit. I only wish to add that, with the benefit
    of experience during the fifteen years in which Ross v. Caunters has been
    regularly applied, we can say with some confidence that a direct remedy by
    the intended beneficiary against the solicitor appears to create no problems in
    practice. That is therefore the solution which I would recommend to your
    Lordships.

    As I see it, not only does this conclusion produce practical justice as
    far as all parties are concerned, but it also has the following beneficial
    consequences:

    1. There is no unacceptable circumvention of established
      principles of the law of contract.

    2. No problem arises by reason of the loss being of a purely
      economic character.

    3. Such assumption of responsibility will of course be subject to
      any term of the contract between the solicitor and the testator
      which may exclude or restrict the solicitor's liability to the
      testator under the principle in Hedley Byrne. It is true that
      such a term would be most unlikely to exist in practice; but as
      a matter of principle it is right that this largely theoretical
      question should be addressed.

    4. Since the Hedley Byrne principle is founded upon an
      assumption of responsibility, the solicitor may be liable for

    - 20 -

    negligent omissions as well as negligent acts of commission:
    see the Midland Bank Trust Co. case [1979] Ch. 384, 416, per
    Oliver J., and Henderson v. Merrett Syndicates Ltd.
    [1994] 3 W.L.R. 761, 777, per Lord Goff of Chieveley. This
    conclusion provides justification for the decision of the Court
    of Appeal to reverse the decision of Turner J. in the present
    case, although this point was not in fact raised below or before
    your Lordships.

    (5) I do not consider that damages for loss of an expectation are
    excluded in cases of negligence arising under the principle in
    Hedley Byrne, simply because the cause of action is classified
    as tortious. Such damages may in principle be recoverable in
    cases of contractual negligence; and I cannot see that, for
    present purposes, any relevant distinction can be drawn
    between the two forms of action. In particular, an expectation
    loss may well occur in cases where a professional man, such as
    a solicitor, has assumed responsibility for the affairs of
    another; and I for my part can see no reason in principle why
    the professional man should not, in an appropriate case, be
    liable for such loss under the Hedley Byrne principle.

    In the result, all the conceptual problems, including those which so
    troubled Lush and Murphy JJ. in Seale v. Perry [1982] V.R. 193, can be seen
    to fade innocuously away. Let me emphasise that I can see no injustice in
    imposing liability upon a negligent solicitor in a case such as the present
    where, in the absence of a remedy in this form, neither the testator's estate
    nor the disappointed beneficiary will have a claim for the loss caused by his
    negligence. This is the injustice which, in my opinion, the judges of this
    country should address by recognising that cases such as these call for an
    appropriate remedy, and that the common law is not so sterile as to be
    incapable of supplying that remedy when it is required.

    Unlimited claims

    I come finally to the objection that, if liability is recognised in a case
    such as the present, it will be impossible to place any sensible limits to cases
    in which recovery is allowed. Before your Lordships, as before the Court of
    Appeal, Mr. Matheson conjured up the spectre of solicitors being liable to an
    indeterminate class, including persons unborn at the date of the testator's
    death. I must confess that my reaction to this kind of argument was very
    similar to that of Cooke J. in Gartside v. Sheffield, Young & Ellis [1983]
    N.Z.L.R. 37, 44, when he said that he was not "persuaded that we should
    decide a fairly straightforward case against the dictates of justice because of
    foreseeable troubles in more difficult cases". We are concerned here with a
    liability which is imposed by law to do practical justice in a particular type of
    case. There must be boundaries to the availability of a remedy in such cases;
    but these will have to be worked out in the future, as practical problems come

    - 21 -

    before the courts. In the present case Sir Donald Nicholls V.-C. observed
    that, in cases of this kind, liability is not to an indeterminate class, but to the
    particular beneficiary or beneficiaries whom the client intended to benefit
    through the particular will. I respectfully agree, and I also agree with him
    that the ordinary case is one in which the intended beneficiaries are a small
    number of identified people. If by any chance a more complicated case
    should arise to test the precise boundaries of the principle in cases of this
    kind, that problem can await solution when such a case comes forward for
    decision.

    Conclusion

    For these reasons I would dismiss the appeal with costs.

    LORD BROWNE-WILKINSON

    My Lords,

    I have read the speech of my noble and learned friend Lord Goff of
    Chieveley and agree with him that this appeal should be dismissed. In
    particular, I agree that your Lordships should hold that the defendant solicitors
    were under a duty of care to the plaintiffs arising from an extension of the
    principle of assumption of responsibility explored in Hedley Byrne and Co.
    Ltd. v. Heller and Partners Ltd.
    [1964] AC 465. In my view, although the
    present case is not directly covered by the decided cases, it is legitimate to
    extend the law to the limited extent proposed using the incremental approach
    by way of analogy advocated in Caparo Industries Plc. v. Dickman
    [1990] 2 AC 605. To explain my reasons requires me to attempt an analysis
    of what is meant by "assumption of responsibility" in the law of negligence.
    To avoid misunderstanding I must emphasise that I am considering only
    whether some duty of care exists, not with the extent of that duty which will
    vary according to the circumstances.

    Far from that concept having been invented by your Lordships House
    in Hedley Byrne, its genesis is to be found in Nocton v. Lord Ashburton
    [1914] A.C. 932. It is impossible to analyse what is meant by "assumption
    of responsibility" or "the Hedley Byrne principle" without first having regard
    to Nocton's case. In that case, the plaintiff, Lord Ashburton, had relied on
    advice by his solicitor, Nocton, in relation to certain lending transactions.
    The determination of the case was bedeviled by questions of pleading. The
    trial judge and the Court of Appeal took the view that on the pleadings the
    plaintiff could only succeed if he proved fraud. In their view Lord Ashburton
    could not succeed in negligence since it had not been pleaded. This House
    (whilst rejecting the finding of fraud against Nocton) held that the pleadings
    sufficiently alleged a fiduciary duty owed to Lord Ashburton by Nocton as his
    solicitor and held that Nocton had breached that fiduciary duty by giving

    - 22 -

    negligent advice. In rejecting the notion that Derry v. Peek (1889) 14 App.
    Cas. 337 precluded a finding of such liability, Viscount Haldane L.C. said,
    at p. 948:

    "Although liability for negligence in word has in material respects
    been developed in our law differently from liability for negligence in
    act, it is none the less true that a man may come under a special duty
    to exercise care in giving information or advice. I should accordingly
    be sorry to be thought to lend countenance to the idea that recent
    decisions have been intended to stereotype the cases in which people
    can be held to have assumed such a special duty. Whether such a duty
    has been assumed must depend on the relationship of the parties, and
    it is at least certain that there are a good many cases in which that
    relationship may be properly treated as giving rise to a special duty of
    care in statement."

    Lord Haldane reverted to the same point in Robinson v. National Bank of
    Scotland Ltd.
    1916 SC (HL) 154, 157:


    "I wish emphatically to repeat what I said in advising this House in the
    case of Nocton v. Lord Ashburton, that it is a great mistake to suppose
    that, because the principle in Derry v. Peek clearly covers all cases of
    the class to which I have referred, therefore the freedom of action of
    the courts in recognising special duties arising out of other kinds of
    relationship which they find established by the evidence is in any way
    affected. I think, as I said in Nocton's case, that an exaggerated view
    was taken by a good many people of the scope of the decision in Derry
    v. Peek.
    The whole of the doctrine as to fiduciary relationships, as to
    the duty of care arising from implied as well as expressed contracts,
    as to the duty of care arising from other special relationships which the
    courts may find to exist in particular cases, still remains, and I should
    be very sorry if any word fell from me which should suggest that the
    courts are in any way hampered in recognising that the duty of care
    may be established when such cases really occur."

    In my judgment, there are three points relevant to the present case
    which should be gathered from Nocton. First, there can be special
    relationships between the parties which give rise to the law treating the
    defendant as having assumed a duty to be careful in circumstances where,
    apart from such relationship, no duty of care would exist. Second, a fiduciary
    relationship is one of those special relationships. Third, a fiduciary
    relationship is not the only such special relationship: other relationships may
    be held to give rise to the same duty.

    The second of those propositions merits further consideration, since if
    we can understand the nature of one "special relationship" it may cast light on
    when, by analogy, it is appropriate for the law to treat other relationships as

    - 23 -

    being "special". The paradigm of the circumstances in which equity will find
    a fiduciary relationship is where one party, A, has assumed to act in relation
    to the property or affairs of another, B. A, having assumed responsibility,
    pro tanto, for B's affairs, is taken to have assumed certain duties in relation
    to the conduct of those affairs, including normally a duty of care. Thus, a
    trustee assumes responsibility for the management of the property of the
    beneficiary, a company director for the affairs of the company and an agent
    for those of his principal. By so assuming to act in B's affairs, A comes
    under fiduciary duties to B. Although the extent of those fiduciary duties
    (including duties of care) will vary from case to case some duties (including
    a duty of care) arise in each case. The importance of these considerations for
    present purposes is that the special relationship (i.e. a fiduciary relationship)
    giving rise to the assumption of responsibility held to exist in Nocton does not
    depend on any mutual dealing between A and B, let alone on any relationship
    akin to contract. Although such factors may be present, equity imposes the
    obligation because A has assumed to act in B's affairs. Thus, a trustee is
    under a duty of care to his beneficiary whether or not he has had any dealing
    with him: indeed he may be as yet unborn or unascertained and therefore any
    direct dealing would be impossible.

    Moreover, this lack of mutuality in the typical fiduciary relationship
    indicates that it is not a necessary feature of all such special relationships that
    B must in fact rely on A's actions. If B is unaware of the fact that A has
    assumed to act in B's affairs (e.g. in the case of B being an unascertained
    beneficiary) B cannot possibly have relied on A. What is important is not that
    A knows that B is consciously relying on A, but A knows that B's economic
    well being is dependent upon A's careful conduct of B's affairs. Thus, in my
    judgment Nocton demonstrates that there is at least one special relationship
    giving rise to the imposition of a duty of care that is dependent neither upon
    mutuality of dealing nor upon actual reliance by the plaintiff on the defendants
    actions.

    I turn then to consider Hedley Byrne [1964] AC 465. In that case
    this House had to consider the circumstances in which there could be liability
    for negligent misstatement in the absence of either a contract or a fiduciary
    relationship between the parties. The first, and for present purposes perhaps
    the most important, point is that there is nothing in Hedley Byrne to cast doubt
    on the decision in Nocton. On the contrary, each of their Lordships treated
    Nocton as their starting point and asked the question "in the absence of any
    contractual or fiduciary duty, what circumstances give rise to a special
    relationship between the plaintiff and the defendant sufficient to justify the
    imposition of the duty of care in the making of statements?" The House was
    seeking to define a further special relationship in addition to, not in
    substitution for, fiduciary relationships: see per Lord Reid, p. 486; Lord
    Morris of Borth-y-Gest, p. 502; Lord Hodson, p. 511; Lord Devlin, p. 523;
    Lord Pearce, p. 539.

    - 24 -

    Second, since this House was concerned with cases of negligent
    misstatement or advice, it was inevitable that any test laid down required both
    that the plaintiff should rely on the statement or advice and that the defendant
    could reasonably foresee that he would do so. In the case of claims based on
    negligent statements (as opposed to negligent actions) the plaintiff will have
    no cause of action at all unless he can show damage and he can only have
    suffered damage if he has relied on the negligent statement. Nor will a
    defendant be shown to have satisfied the requirement that he should foresee
    damage to the plaintiff unless he foresees such reliance by the plaintiff as to
    give rise to the damage. Therefore, although reliance by the plaintiff is an
    essential ingredient in a case based on negligent misstatement or advice, it
    does not follow that in all cases based on negligent action or inaction by the
    defendant it is necessary in order to demonstrate a special relationship that the
    plaintiff has in fact relied on the defendant or the defendant has foreseen such
    reliance. If in such a case careless conduct can be foreseen as likely to cause
    and does in fact cause damage to the plaintiff that should be sufficient to
    found liability.

    Third, it is clear that the basis on which (apart from the disclaimer) the
    majority would have held the bank liable for negligently giving the reference
    was that, were it not for the disclaimer, the bank would have assumed
    responsibility for such reference. Although there are passages in the speeches
    which may point the other way, the reasoning of the majority in my judgment
    points clearly to the fact that the crucial element was that, by choosing to
    answer the enquiry, the bank had assumed to act, and thereby created the
    special relationship on which the necessary duty of care was founded. Thus
    Lord Reid, at p. 486, pointed out that a reasonable man knowing that he was
    being trusted, had three possible course open to him: to refuse to answer, to
    answer but with a disclaimer of responsibility, or simply to answer without
    such disclaimer. Lord Reid then said:

    "If he chooses to adopt the last course he must. I think, be held to
    have accepted some responsibility for his answer being given carefully,
    or to have accepted a relationship with the inquirer which requires him
    to exercise such care as the circumstances require."

    Lord Morris of Borth-y-Gest said, at p. 503:

    "Furthermore, if in a sphere in which a person is so placed that others
    could reasonably rely upon his judgment or his skill or upon his ability
    to make careful inquiry, a person takes it upon himself to give
    information or advice to, or allows his information or advice to be
    passed on to, another person who, as he knows or should know, will
    place reliance upon it, then a duty of care will arise."

    Lord Hodson, at p. 514, in agreeing with the formulation of Lord Morris
    referred to the maker of the careless statement being a person who "takes it
    upon himself to give information or advice to ... another person." Although

    - 25 -

    Lord Devlin did not find it necessary for the decision of that case to go
    further than to hold that a special relationship giving rise to a duty of care
    would exist when the relationship was "equivalent to contract" he indicated (at
    p. 530) that he agreed with the formulation by the other members of the
    committee of the general rules giving rise to a "voluntary undertaking to
    assume responsibility". Moreover he had previously (at p. 526) referred to
    Coggs v. Bernard (1703) 2 Ld. Raym. 909 (where Gould J. held a gratuitous
    bailee liable because of "the particular trust reposed in the defendant, to which
    he has concurred by his assumption, and in the executing which he has
    miscarried by his neglect") and the statement of Lord Finlay L.C. in Banbury
    v. Bank of Montreal
    [1918] A.C. 626, 654 "He is under no obligation to
    advise, but if he takes it upon himself to do so, he will incur liability if he
    does so negligently". Lord Devlin, at p. 530, drew a distinction between the
    case where there is a general relationship (such as solicitor and client or
    banker and customer) where the pre existing relationship is enough to create
    the special relationship necessary and a case such as that before the House
    where what is relied upon is a particular relationship created ad hoc. He said
    that in such a case it would be necessary to examine the particular facts to see
    whether there is an express or implied undertaking of responsibility. This and
    the other passages that I have quoted indicates that even in the case of an ad
    hoc special relationship the requirement is to show that the defendant has
    assumed to act by giving an answer.

    Just as in the case of fiduciary duties, the assumption of responsibility
    referred to is the defendants, assumption of responsibility for the task not the
    assumption of legal liability. Even in cases of ad hoc relationships, it is the
    undertaking to answer the question posed which creates the relationship. If
    the responsibility for the task is assumed by the defendant he thereby creates
    a special relationship between himself and the plaintiff in relation to which the
    law (not the defendant) attaches a duty to carry out carefully the task so
    assumed. If this be the right view, it does much to allay the doubts about the
    utility of the concept of assumption of responsibility voiced by Lord Griffiths
    in Smith v. Eric S. Bush [1990] 1 AC 831, 862 and by Lord Roskill in
    Caparo Industries Plc v. Dickman [1992] A.C. 605, 628: see also Barker
    Unreliable Assumptions in the Modern Law of Negligence (1993) 109 L.Q.R.
    461. As I read those judicial criticisms they proceed on the footing that the
    phrase "assumption of responsibility" refers to the defendant having assumed
    legal responsibility. I doubt whether the same criticisms would have been
    directed at the phrase if the words had been understood, as I think they should
    be, as referring to a conscious assumption of responsibility for the task rather
    than a conscious assumption of legal liability by the plaintiff for its careful
    performance. Certainly, the decision in both cases is consistent with the view
    I take.

    In Henderson v. Merrett Syndicates Ltd. [1994] 3 W.L.R. 761 your
    Lordships recently applied the concept of assumption of liability to cases
    where the defendants (the managing agents) had pursuant to a contract with
    a third party (the members' agents) undertaken the management of the

    -26-

    underwriting affairs of the plaintiffs. For the present purposes the case is
    important for two reasons. First, it shows (if it was previously in doubt) that
    the principle of a special relationship arising from the assumption of
    responsibility is as applicable to a case of negligent acts giving rise to pure
    economic loss as it is to negligent statement. Second, it demonstrates that the
    fact that the defendant assumed to act in the plaintiffs' affairs pursuant to a
    contract with a third party is not necessarily incompatible with the finding
    that, by so acting, the defendant also entered into a special relationship with
    the plaintiff with whom he had no contract. (I should add that I agree with
    my noble and learned friend Lord Mustill that this factor should not lead to
    the conclusion that a duty of care will necessarily be found to exist even
    where there is a contractual chain of obligations designed by the parties to
    regulate their dealings).

    Let me now seek to bring together these various strands so far as is
    necessary for the purposes of this case: I am not purporting to give any
    comprehensive statement of this aspect of the law. The law of England does
    not impose any general duty of care to avoid negligent misstatements or to
    avoid causing pure economic loss even if economic damage to the plaintiff
    was foreseeable. However, such a duty of care will arise if there is a special
    relationship between the parties. Although the categories of cases in which
    such special relationship can be held to exist are not closed, as yet only two
    categories have been identified, viz. (1) where there is a fiduciary relationship
    and (2) where the defendant has voluntarily answered a question or tenders
    skilled advice or services in circumstances where he knows or ought to know
    that an identified plaintiff will rely on his answers or advice. In both these
    categories the special relationship is created by the defendant voluntarily
    assuming to act in the matter by involving himself in the plaintiff's affairs or
    by choosing to speak. If he does so assume to act or speak he is said to have
    assumed responsibility for carrying through the matter he has entered upon.
    In the words of Lord Reid in Hedley Byrne [1964] AC 465, 486 "he has
    accepted a relationship ... which requires him to exercise such care as the
    circumstances require", i.e. although the extent of the duty will vary from
    category to category, some duty of care arises from the special relationship.
    Such relationship can arise even though the defendant has acted in the
    plaintiffs affairs pursuant to a contract with a third party.

    I turn then to apply those considerations to the case of a solicitor
    retained by a testator to draw a will in favour of an intended beneficiary. As
    a matter of contract, a solicitor owes a duty to the testator to use proper skill
    in the preparation and execution of the will and to act with due speed. But as
    the speech of Lord Goff demonstrates that contractual obligation is of little
    utility. Breach by the solicitor of such contractual duty gives rise to no
    damage suffered by the testator or his estate; under our existing law of
    contract, the intended beneficiary, who has suffered the damage, has no cause
    of action on the contract.

    - 27 -

    Has the intended beneficiary a cause of action based on breach of a
    duty of care owed by the solicitor to the beneficiary? The answer to that
    question is dependent upon whether there is a special relationship between the
    solicitor and the intended beneficiary to which the law attaches a duty of care.
    In my judgment the case does not fall within either of the two categories of
    special relationships so far recognised. There is no fiduciary duty owed by
    the solicitor to the intended beneficiary. Although the solicitor has assumed
    to act in a matter closely touching the economic wellbeing of the intended
    beneficiary, the intended beneficiary will often be ignorant of that fact and
    cannot therefore have relied upon the solicitor.

    However, it is clear that the law in this area has not ossified. Both
    Viscount Haldane L.C. (in the passage I have quoted [1914] A.C. 932, 948)
    and Lord Devlin (in Hedley Byrne [1964] AC 465, 530-531) envisage that
    there might be other sets of circumstances in which it would be appropriate
    to find a special relationship giving rise to a duty of care. In Caparo Lord
    Bridge of Harwich [1990] 2 AC 605, 618, recognised that the law will
    develop novel categories of negligence "incrementally and by analogy with
    established categories". In my judgment, this is a case where such
    development should take place since there is a close analogy with existing
    categories of special relationship giving rise to a duty of care to prevent
    economic loss.

    The solicitor who accepts instructions to draw a will knows that the
    future economic welfare of the intended beneficiary is dependent upon his
    careful execution of the task. It is true that the intended beneficiary (being
    ignorant of the instructions) may not rely on the particular solicitor's actions.
    But, as I have sought to demonstrate, in the case of a duty of care flowing
    from a fiduciary relationship liability is not dependent upon actual reliance by
    the plaintiff on the defendant's actions but on the fact that, as the fiduciary is
    well aware, the plaintiffs economic wellbeing is dependent upon the proper
    discharge by the fiduciary of his duty. Second, the solicitor by accepting the
    instructions has entered upon, and therefore assumed responsibility for, the
    task of procuring the execution of a skilfully drawn will knowing that the
    beneficiary is wholly dependent upon his carefully carrying out his function.
    That assumption of responsibility for the task is a feature of both the two
    categories of special relationship so far identified in the authorities. It is not
    to the point that the solicitor only entered on the task pursuant to a contract
    with the third party (i.e. the testator). There are therefore present many of
    the features which in the other categories of special relationship have been
    treated as sufficient to create a special relationship to which the law attaches
    a duty of care. In my judgment the analogy is close.

    Moreover there are more general factors which indicate that it is fair
    just and reasonable to impose liability on the solicitor. Save in the case of
    those rash testators who make their own wills, the proper transmission of
    property from one generation to the next is dependent upon the due discharge
    by solicitors of their duties. Although in any particular case it may not be

    - 28 -

    possible to demonstrate that the intended beneficiary relied upon the solicitor,
    society as a whole does rely on solicitors to carry out their will making
    functions carefully. To my mind it would be unacceptable if. because of some
    technical rules of law, the wishes and expectations of testators and
    beneficiaries generally could be defeated by the negligent actions of solicitors
    without there being any redress. It is only just that the intended beneficiary
    should be able to recover the benefits which he would otherwise have
    received.

    Further, negligence in the preparation and execution of a will has
    certain unique features. First, there can be no conflict of interest between the
    solicitor and client (the testator) and the intended beneficiary. There is
    therefore no objection to imposing on a solicitor a duty towards a third party
    there being no possible conflict of interest. Second, in transactions inter vivos
    the transaction takes immediate effect and the consequences of solicitors'
    negligence are immediately apparent. When discovered, they can either be
    rectified (by the panics) or damages recovered by the client. But in the case
    of a negligently drawn will, the will has no effect at all until the death. It will
    have been put away in the deed box not to surface again until the testator
    either wishes to vary it or dies. In the majority of cases the negligence will
    lie hidden until it takes effect on the death of the testator, i.e. at the very point
    in time when normally the error will become incapable of remedy.

    In all these circumstances, I would hold that by accepting instructions
    to draw a will, a solicitor does come into a special relationship with those
    intended to benefit under it in consequence of which the law imposes a duty
    to the intended beneficiary to act with due expedition and care in relation to
    the task on which he has entered. For these and the other reasons given by
    my noble and learned friend Lord Goff of Chieveley, I would dismiss the
    appeal.

    LORD MUSTILL

    My Lords,

    The issues arising on this appeal have been fully developed in the
    judgments of the Court of Appeal by reference to the existing law of
    negligence, and in the speeches of my noble and learned friends Lords Goff
    of Chieveley and Browne-Wilkinson where new lines of departure are
    proposed. Taking advantage gratefully of the full exposure which the issues
    have already received I will proceed at once to explain why I have felt it
    difficult to join company with those who, judges and commentators alike, have
    almost unanimously found it too plain to need elaboration that the plaintiffs'
    claims ought to succeed, if only an intellectually sustainable means can be
    found; and also that the proper route to such a conclusion passes through the
    law of tort. The soundness of these assumptions must, I believe, be

    - 29 -

    confronted at the start, because they dominate the landscape within which the
    whole enquiry takes place.

    The first assumption, which comes to this, that there must be
    something wrong with the law if the plaintiffs do not succeed, itself embodies
    two distinct propositions - that the plaintiffs' disappointment should be
    relieved by an award of money and that the money should, if the law permits,
    come from the solicitor. I am sceptical on both counts. I do not of course
    ascribe to those who support the plaintiffs' claim the contemporary perception
    that all financial and other misfortunes suffered by one person should be put
    right at the expense of someone else. Nobody argues for this. Even under
    the most supportive of legal regimes there must be many situations in which
    the well-founded expectations of a potential beneficiary are defeated by an
    untoward turn of events and yet he or she is left without recourse. Nobody
    suggests otherwise. What is said to take the present case out of the ordinary
    is that the plaintiffs' disappointment resulted, and resulted foreseeably, from
    what is called "fault". I add the qualification "what is called", to underline
    what I believe to be the central feature of the case. An illustration may show
    why. Imagine that the solicitor prepared the will in good time, but that whilst
    the testator was on his way to execute it he was fatally injured by a careless
    motorist. Undoubtedly the motorist would be guilty of fault in the legal sense,
    but his carelessness would be characterised as such because he owed a duty
    towards the testator, as towards other members of the public, to drive with
    sufficient care to avoid causing him physical injury. To this duty the added
    feature that the victim was about to execute a will would be wholly irrelevant.
    It is conceivable, although no doubt rather improbable, that the driver also
    committed an actionable fault vis-a-vis those who would have benefitted under
    the will if the testator had lived long enough to execute it. If this were so, it
    would simply be that the law recognised the relationship between the driver
    and the beneficiaries as satisfying the requirements of a duty of care. The fact
    that the relationship between driver and testator also satisfied those
    requirements would add nothing, for each relationship has to be looked at on
    its own merits. If the driver incurred liability to both, the act which
    constituted the breach would in each case be the same, but the duties
    themselves, although existing at the same time would have different origins,
    and one would not depend on the existence of the other.

    So also here. I leave aside for the moment the question whether the
    intended beneficiaries might in theory have means to unite their undoubted
    loss with the testator's undoubted cause of action so as directly or indirectly
    to avail themselves of the testator's rights; for no such "parasitic" claim has
    been advanced. Throughout, the proposition has been that the solicitor owed
    to the intended beneficiaries a direct and free-standing duty to prepare a will
    and prepare it promptly, simply because he was doing a job which, if
    promptly done, and if the testator went through with his intentions, would
    produce a benefit to them from the estate after the testator's death. To test
    this proposition by introducing notions of fault is in my opinion liable to
    mislead, for legal fault cannot exist in a vacuum; the person who complains

    - 30 -

    of it must do so by virtue of a legal right. In the present instance it is
    tempting to say that the solicitor failed to do his job properly; that it was all
    his fault that the plaintiffs are less well off than they should have been; and
    that the law ought to do something about it. This temptation should in my
    opinion be resisted. The assertion of fault is either tautologous or inaccurate,
    and the analysis is safer without it.

    Nor am I able to accept that the special feature of the present situation,
    that the solicitor's delay was a breach of his professional duty, adds any
    colour to the claim. In some of the many judgments and commentaries in
    which this question has been considered one finds traces of the idea that it
    would be unacceptable if the erring solicitor were to escape from the disaster
    scot-free. Whether in a given case he will so escape must depend on the rules
    of his profession and the rigour with which they are enforced. To my mind
    this is irrelevant. The purpose of the courts when recognising tortious acts
    and their consequences is to compensate those plaintiffs who suffer actionable
    breaches of duty, not to act as second-line disciplinary tribunals imposing
    punishment in the shape of damages.

    My Lords, I suggest another reason for caution. The real root of the
    present problem is the rule of law which, save in exceptional circumstances,
    prescribes that a disposition of property designed to take effect after death is
    ineffectual unless embodied in a valid will. From time to time this rule
    operates to defeat the intentions of the deceased and the expectations of those
    whom he wished to benefit, and to create what to many would appear an
    injustice. This is what has happened here. The intentions of the testator, as
    proved at the trial, have been frustrated. The beneficiaries under the new will
    have failed to receive what the testator wanted them to receive, and those who
    took under the old will have received moneys from the testator's assets which
    at the time of his death he did not want them to have. In a real sense, the
    amounts of the legacies have gone to the wrong people; a situation which
    many would feel to be unfair. In the present case this has happened because
    the solicitor was slow and the testator died when he did. But the position
    would have been just the same if the solicitor had been prompt, but the death
    had taken place sooner. Unless those who took under the old will were
    prepared to be magnanimous, the intended beneficiaries would have nothing
    to do except complain that the technicalities of the law had done them a
    disservice. I do not of course suggest that those who have fallen foul of a
    rule of law through a failure by persons whom they employ in a professional
    capacity are called upon to suffer in silence. But in a situation like the present
    the intended beneficiaries did not engage the solicitor, undertake to pay his
    fees or tell him what to do. Having promised them nothing he has broken no
    promise. They nevertheless fasten upon the circumstance that the solicitor
    broke his promise to someone else (the testator) so as to make him the source
    of a second fund, enabling both sets of parties to benefit; so that those taking
    under the old will can receive and retain money from the testator's estate
    which the testator did not want them to have, and the successful plaintiffs can
    receive amounts equal to those which the testator did want them to have, but

    - 31 -

    from a quite different source. This is undoubtedly a possible result, but I
    would wish to guard against assuming too readily that it so reflects the moral
    imperatives of the situation that the law of delict should be strained to bring
    it about.

    This leads at once to the second of the two assumptions underlying the
    claim, namely that if a remedy is to be conferred and if the solicitor is the
    appropriate target, the source of the remedy must be found in the law of tort.
    I have from the outset felt much anxiety about this assumption, and will take
    a little time to explain why.

    If one asks how the solicitor came to be involved in the case the
    answer is that by accepting the retainer he promised to draw the will with care
    and diligence. It is therefore proper to enquire whether this source of
    involvement, and this alone, should create whatever remedies may be given
    to the plaintiffs for his failure to do what he said. I do not here refer to the
    argument, forcefully addressed by Professor Jolowicz Q.C., to the effect that
    so far from the existence of a contract between the testator and the solicitor
    supporting a tortious cause of action in the plaintiffs, it operates to exclude it.
    This posits that contractual and tortious responsibilities occupy exclusive
    domains, and that where the complaint is of a failure to do a promised job of
    work the law of delict must necessarily be the wrong domain. The argument
    was advanced before your Lordships gave judgment in Henderson v. Merrett
    Syndicates Ltd.
    [1994] 3 W.L.R. 761, and in the light of the conclusions there
    expressed cannot I think be any longer sustained. This is certainly not to deny
    that where the act or omission complained of occurs between persons who
    have deliberately involved themselves in a network of commercial or
    professional contractual relations, such for example as may exist between the
    numerous parties involved in contracts for large building or engineering
    works, the contractual framework may be so strong, so complex and so
    detailed as to exclude the recognition of delictual duties between parties who
    are not already connected by contractual links: see for example Pacific
    Associates Inc. v. Baxter
    [1990] 1 Q.B. 993, This aspect of the law is far
    from being fully developed and I need not explore it here. Whatever
    rationalisation is preferred as a means of justifying tortious liability for a
    failure to act causing pure financial loss - whether a voluntary assumption of
    an obligation, or the existence of a special situation, or the simple filling of
    an unacceptable gap -there may be situations where the parties have erected
    a structure which leaves no room for any obligations other than those which
    they have expressly chosen to create. On this view, the express and implied
    terms of the various contracts amount between them to an exhaustive
    codification of the parties' mutual duties. This particular problem does not
    arise here, for there is no consciously created framework of contractual
    relationships between the three parties principally concerned. There was only
    one contract.

    The existence of the contract is, however, material in a rather different
    way. The complaint made by the plaintiffs, and it is the only possible

    - 32 -

    complaint, is that they failed to receive a benefit from the testator (via his
    estate) which they would have received if the solicitor had done his job. If
    the solicitor had not promised to do the job he could not have been liable to
    the testator for failing to do it. And if he was not liable to the testator for
    failing to do it I am quite unable to see how he could be liable to the plaintiffs
    in respect of the same failure. Thus, the existence of the contract of retainer
    between the testator and the solicitor, and of the promise to draw the will with
    reasonable despatch which this entailed is not simply a piece of history which
    explains how the parties came into a position of conflict (as were the various
    contracts of sale in Donoghue v. Stevenson [1932] AC 562), but is the origin
    of the task whose non-performance founds the plaintiff's claim. This feature
    could not be expressed more clearly than in the written formulation of the
    proposed duty of care, which Mr. Mittings Q.C. tendered on behalf of the
    plaintiffs in the course of argument:

    "If a professional person undertakes (to another) to perform work in
    order to enable [permit] that other to confer a benefit on an identifiable
    third party, then he owes a duty to that third party to perform that
    work with the care, skill and despatch reasonably to be expected of a
    man of his calling."

    I believe that this formulation accurately reflects the facts of the
    present case. It has two features. First, that the undertaking is said to have
    been given to the testator, not to the plaintiff. (I pause to observe that the
    word "undertakes" has the sense here of "agrees to", not "sets about" or
    "tackles". I must return to this point later). Secondly, that the conferring of
    the benefit on the plaintiff was to be done by the testator, not by the solicitor
    himself. The undertaking to do the work and the intended conferring of the
    benefit were therefore directed along two sides of a triangle. Before
    considering whether it is necessary to make new law in order to sustain a
    direct tortious and free-standing claim by the plaintiff against the solicitor
    along the third side, should one not first scrutinise the legal effects of the
    relationship to which the solicitor undoubtedly was a party, to see whether
    whatever rights the plaintiff may possess can be derived in one way or another
    from that relationship; to make sure, in other words, that by concentrating on
    the direct claim in tort all concerned have not been looking in the wrong
    direction?

    I proceed therefore to a tentative examination of the way in which the
    claim for disappointed expectations might be referred to the contract whose
    non-performance caused the disappointment. Such an enquiry must
    necessarily be provisional. No claim in contract has been advanced, and no
    direct argument has been addressed upon it. Nevertheless, even a superficial
    survey may give an idea of how the land lies.

    For the purpose of testing the principles involved I will take the most
    generalised case. This posits that there was no personal contact between the
    solicitor and the intended beneficiary; and that the latter not only does not

    - 33 -

    know of the benefit which the testator intends to confer upon him, but has
    never heard of the testator. This will be so with many charitable bequests.
    At a later stage I will touch on the question whether there is anything special
    in the facts of the present case which might enable the plaintiff to succeed,
    where in the general the claim would fail, but on the example given the case
    in contract might be put in two quite different ways.

    In the first place, the intended beneficiary might sue in his or her own
    name, to enforce a direct contractual relationship with the solicitor. It is hard
    to see how any such relationship could emerge from conventional contract
    law. One approach would be to treat the testator as an agent for the intended
    beneficiary to make a contract between the solicitor and the beneficiary, with
    subsequent ratification supplying the want of actual authority inevitable where
    the beneficiary knew nothing of the testator, or of the solicitor, or of the
    contract being made by the testator on his behalf. This seems an impossible
    reading of the facts. If one new beneficiary was an undisclosed principal they
    must all have been. All would be liable under the retainer for the solicitor's
    fees, and the rights of each would be contingent on the testator's not changing
    his mind. There is no reason to suppose that either the solicitor or the testator
    intended any such result when the retainer was offered and accepted. Nor is
    the proposition improved by implying into the contract of retainer an auxiliary
    promise by the solicitor to give the beneficiaries the rights which the testator
    had by contract secured for himself. English law may be inching towards the
    direct enforcement of contracts, or benefits intended to be conferred under
    them, by persons standing outside the mutual obligations created by the
    bargain. How far the courts will be able to go remains to be seen. This is
    not the occasion to find out, for no claim in contract is before the court. But
    even under a much expanded law of contract it is hard to see an answer to the
    objection that what the testator intended to confer on the new beneficiaries
    was the benefit of his assets after his death; not the benefit of the solicitor's
    promise to draft the will.

    The alternative route would be for the estate to enforce the contractual
    cause of action undoubtedly possessed by the testator during his lifetime in
    respect of the solicitor s delay, and to hold the damages for the account of the
    beneficiaries. This claim has a distinctly odd look, since the executors
    appointed to carry out the wishes of the testator expressed in the old will
    would be enforcing a contract which, if the solicitor had performed it, would
    have led to those wishes being superseded by the provisions of the new will.
    The further curiosity, that in practice the testator's assets will, post mortem,
    be doubled at the expense of the solicitor is of course also a feature of the
    claim in tort, but it is the more curious if the doubling takes place through the
    medium of an action brought by the persons whose duties are to distribute
    them once only, in accordance with the old will.

    Let it be assumed however that the executor volunteered, or could by
    some form of legal process be compelled, to sue the solicitor on the testator's
    cause of action. The obvious problem is that if the testator himself had sued

    - 34 -

    before his death he would have recovered no more damages than would
    compensate him for the annoyance and expense resulting from the failure of
    the solicitor to produce the will when asked. How could such a cause of
    action yield enough to satisfy the claim of even one minor beneficiary, far less
    all of them? The answer must be that it could not, unless there could be
    tacked on to the testator' personal claim, surviving his death, the beneficiaries'
    quite distinct claim for the loss of their expectations. At first sight it might
    seem that an approach somewhat similar to the concept of "transferred loss",
    to which reference is made in some of the notable commentaries on foreign
    legal systems which have been placed before the House, might yield a solution
    on these lines. On reflection however I am satisfied that this is not so. As
    I understand it, the nature of a "transferred loss" is revealed by its name. In
    situations where party A has a cause of action for a breach of duty by the
    defendant, but the loss resulting from the breach is suffered not by A himself
    but by B, the loss is "transferred", or attributed, to A so as to enable him to
    recover damages for the breach. Essentially this is a fiction. There have
    been many such in English law over the centuries, in the main to its
    enrichment: always provided that they are recognised for what they are. It
    may be that some instances of an equivalent principle, albeit so far very
    isolated, are already to be found in English law: for example, the exceptional
    situations recorded by Lord Diplock in The Albazero [1977] A.C. 774, 846,
    and perhaps also Linden Gardens Trust Ltd. v. Lenesta Sludge Disposals Ltd.
    [1994] AC 85. These are however far distant from the present case, for
    they concerned situations where there was a single loss which might have been
    suffered indifferently by the obligee or by someone else, and which the courts
    were content to attribute to the obligee. Here, by contrast, to enable the
    estate, in title of the deceased testator, to recover a sum equivalent to the
    disappointed expectations of the beneficiaries would be to compensate it for
    a loss which it not only had not, but could not have, suffered. The plaintiffs'
    complaint and the consequent damage are quite different from the complaint
    and the damage to which the estate succeeded on the death of the testator. To
    allow them to be treated as if they were the same would extend the boundaries
    of a contractual obligation far further than has ever been previously
    contemplated; and, I suspect further than has been contemplated even in the
    majority of those jurisdictions where concepts of privity are less rigorous than
    in our own.

    Furthermore, even if the doctrine were to be fully received into
    English law I am unable to visualise how it could help the plaintiffs here. As
    its name denotes it is concerned with the transfer of loss to the claimant from
    someone else. In the present case the intended beneficiaries do not need such
    a transfer, for they already have a loss. Their problem is to find a cause of
    action, and to achieve this a quite different kind of transfer would be required.

    My Lords I have been careful to guard against expressing a final
    conclusion about a contractual claim which has not been advanced. The
    purpose has been simply to see whether such a claim would provide such an
    obvious way through the woods that the law of tort can safely be ignored as

    - 35 -

    a blind alley. Notwithstanding an instinctive preference for a contractual
    solution I am satisfied that it would not. The conclusion is not of course that
    because there may well be no contractual right, there must be a duty in tort:
    for there may be no duty at all. It is to this question that I now turn, clearing
    my mind of preconceptions about where the inquiry should lead.

    The obvious starting point is Ross v. Caunters [1982] Ch. 297, where
    the identical question was discussed with great learning by Sir Robert Megarry
    V.-C. It is without any disrespect whatever that I deal very briefly with this
    decision, for my noble and learned friend Lord Goff of Chieveley has
    explored it very thoroughly. The learned Vice-Chancellor naturally
    approached the problem by the method prescribed in Anns v. Merton London
    Borough Council
    [1978] AC 728, which had been decided only two years
    before. By this method, it was relatively easy at the first stage to establish a
    prima facie duty of care, the problem being to ascertain whether
    considerations of policy should operate to exclude it. This is, however, no
    longer the law. It may be that the Vice-Chancellor would have reached the
    same conclusion in the very different legal climate of 1994, but I think it
    unprofitable to speculate. It is better to start again.

    Accordingly I ask myself this question. If A promises B to perform
    a service for B which B intends, and A knows, will confer a benefit on C if
    it is performed, does A owe to C in tort a duty to perform that service? So
    expressed, this is a new question, and the right way to approach it is, as Lord
    Devlin explained in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.
    [1964] AC 465, 525, is to "see how far the authorities have gone, for new
    categories in the law do not spring into existence overnight".

    My Lords, when making this enquiry I do not think it profitable to take
    Donoghue v. Stevenson [1932] AC 562 as a point of departure. The decision
    itself is remote from the present, and although the liberating effect of Lord
    Atkin's celebrated pronouncement is beyond compare, as a practical guide to
    the consideration of duties in particular situations it does not lead very far -
    as Lord Devlin had cause to observe in Hedley Byrne, and as numerous
    judgments in your Lordships' House and elsewhere have more recently
    demonstrated.

    As I understand your Lordships' opinions only one feature of existing
    law is relied upon as the starting point for a new principle wide enough to
    yield an affirmative answer to the question just posed: namely Hedley Byrne
    itself. Once again, the facts are too distant for the decision to be applied
    directly. In Hedley Byrne the plaintiffs asked the defendants to do something;
    the defendants did it, and did so imperfectly. Here, leaving aside the special
    facts of this appeal, and concentrating on the general case of the disappointed
    beneficiary, the complaint is that the solicitor did not do something which the
    beneficiary never asked him to do. It is therefore necessary to determine the
    ratio which underlies the decision in Hedley Byrne. This ground has only

    - 36 -

    recently been covered by this House in Henderson v. Merrett Syndicates Ltd.
    [1994] 3 W.L.R 761, but the context there was so different from the present
    that it is prudent to start with Hedley Byrne itself. In my judgment it is
    possible to detect within the speeches four themes, which I will label
    "mutuality", "special relationship", "reliance" and "undertaking of
    responsibility". Extensive quotation from previous judgments is not usually
    productive, but I make no apology for it here. Before any move towards
    building new law on the basis of Hedley Byrne can safely be attempted the
    foundations must first be surveyed. However bold the development of new
    doctrine, it must have a solid intellectual base. For this purpose the safest
    course must be to see what the members of the House actually said in Hedley
    Byrne,
    before attempting to reduce what they said to working propositions
    I begin with mutuality. By this I mean that both plaintiff and the defendant
    played an active part in the transaction from which the liability arose. The
    relationship fell short of a contract because in the absence of consideration it
    involved no positive obligation of performance on the part of the defendant.
    If he chose, he could have declined to give a reference. But it nevertheless
    had two participants. In Hedley Byrne [1964] AC 465 the plaintiffs initiated
    the relationship by the request for a reference; the defendants acted on the
    request; and the plaintiffs relied on what they had done. The importance of
    these reciprocal dealings is in my judgment evident from a number of passages
    in the speeches. Thus, in the course of a discussion of equitable relief Lord
    Reid quoted, at p. 485, from the speech of Lord Shaw in Nocton v. Lord
    Ashburton
    [1914] A.C. 932, 971:

    "... in order that a person may avail himself of relief founded on it
    he must show that there was such a proximate relation between himself
    and the person making the representation as to bring them virtually
    into the position of parties contracting with each other."

    Lord Morris of Borth-y-Gest said this, at p. 495:

    "If someone who was not a customer of a bank made a formal
    approach to the bank with a definite request that the bank would give
    him deliberate advice as to certain financial matters of a nature with
    which the bank ordinarily dealt the bank would be under no obligation
    to accede to the request: if, however, they undertook, though
    gratuitously, to give deliberate advice . . . they would be under a duty
    to exercise reasonable care in giving it. They would be liable if they
    were negligent although, there being no consideration, no enforceable
    contractual relationship was created."

    After discussing decisions from the previous century Lord Pearce stated their
    effect at p. 538:

    - 37 -

    ". . .if persons holding themselves out in a calling or situation or
    profession take on a task within that calling or situation or profession,
    they have a duty of skill and care."

    Finally, Lord Devlin said, at pp. 526 and 528-529:


    " A promise given without consideration to perform a service cannot
    be enforced as a contract by the promisee; but if the service is in fact
    performed and done negligently, the promisee can recover in an action
    in tort."

    "... the categories of special relationships which may give rise to a
    duty to take care in word as well as in deed are not limited to
    contractual relationships or relationships of fiduciary duty, but include
    also relationships which, in the words of lord Shaw in Nocton v. Lord
    Ashburton
    [1914] A.C. 932, 972 are "equivalent to contract", that is
    where there is an assumption of responsibility in circumstances in
    which, but for the absence of consideration, there would be a contract
    . . . Where there is no consideration, it will be necessary to exercise
    greater care in distinguishing between social and professional
    relationships and between those which are of a contractual character
    and those which are not".

    Again, at p. 530, there is the following proposition:

    "... I have found in the speech of Lord Shaw in Nocton v. Lord
    Ashburton
    [1914] A.C. 932 and in the idea of a relationship that is
    equivalent to contract all that is necessary to cover the situation that
    arises in this case ... All that was lacking was formal consideration
    ... I shall therefore content myself with the proposition that wherever
    there is a relationship equivalent to contract, there is a duty of care."

    Next, I extract some passages directed to the concept of a special relationship.
    After quoting from Lord Haldane in Robinson v. National Bank of Scotland
    1916 SC (HL) 154, 157 - Lord Reid said, at p. 486:

    "This passage makes it clear that Lord Haldane did not think that a
    duty to take care must be limited to cases of fiduciary relationship in
    the narrow sense of relationships which had long been recognised by
    the Court of Chancery as being of a fiduciary character. He speaks of
    other special relationships, and I can see no logical stopping place
    short of all those relationships where it is plain that the party seeking
    information or advice was trusting the other to exercise such a degree
    of care as the circumstances required, where it was reasonable for him
    to do that, and where the other gave the information or advice when
    he knew or ought to have known that the inquirer was relying on
    him".

    - 38 -

    Again, Lord Morris of Borth-y-Gest said, at p. 502:

    "Independently of contract, there may be circumstances where
    information is given or where advice is given which establishes a
    relationship which creates a duty not only to be honest but also to be
    careful . . . The inquiry in the present case, and in similar cases,
    becomes, therefore, an inquiry as to whether there was a relationship
    between the parties which created a duty and, if so, whether such duty
    included a duty of care."

    Both Lords Hodson (at p. 511) and Pearce (at p. 539) spoke of "special
    relationships" which although not fiduciary gave rise to a duty of care. Lord
    Devlin dealt with the matter at rather greater length. In particular, after
    analysing Nocton v. Lord Ashburton he continued, at p. 523:

    "... [The House] considered that outside contract (for contract was
    not pleaded in the case), there could be a special relationship between
    parties which imposed a duty to give careful advice and accurate
    information. The majority of their Lordships did not extend the
    application of this principle beyond the breach of a fiduciary obligation
    but none of them said anything at all to show that it was limited to
    fiduciary obligation. Your Lordships can, therefore, proceed upon the
    footing that there is such a general principle and that it is for you to
    say to what cases, beyond those of fiduciary obligation, it can properly
    be extended.

    He said, at p. 525:

    "It is significant, whether it is a coincidence or not, that the term
    'special relationship' used by Lord Thankerton [in Donoghue v.
    Stevenson
    [1932] Ac 562, 603] is the one used by Lord Haldane in
    Nocton v. Lord Ashburton [1914] A.C. 932, 956. The field is very
    different but the object of the search is the same" ... Is the
    relationship between the parties in this case such that it can be brought
    within a category giving rise to a special duty?"

    The next element, namely the foreseeability of reliance by the plaintiff,
    is found in the following amongst several other passages by Lord Morris of
    Borth-y-Gest, at p. 503:

    "Furthermore, if in a sphere in which a person is so placed that others
    could reasonably rely upon his judgment or his skill or upon his ability
    to make careful inquiry, a person takes it upon himself to give
    information or advice to, or allows his information or advice to be
    passed on to, another person who, as he knows or should know, will
    place reliance upon it, then a duty of care will arise."

    Lord Hodson said, at p. 514:

    - 39 -

    "I agree . . . that if in a sphere where a person is so placed that others
    could reasonably rely upon his judgment or his skill or upon ability to
    make careful inquiry such person takes it upon himself to give
    information or advice to, or allows his information or advice to be
    passed on to, another person who, as he knows, or should know, will
    place reliance upon it, then a duty of care will arise."

    Turning last to the concept of an undertaking of responsibility, most
    of the relevant passages have already been cited. In addition I would draw
    attention to the following:

    "There must be something more than the mere misstatement. I
    therefore turn to the authorities to see what more is required. The
    most natural requirement would be that expressly or by implication
    from the circumstances the speaker or writer has undertaken some
    responsibility ..."

    "A reasonable man, knowing that he was being trusted or that his skill
    and judgment were being relied on, would, I think, have three courses
    open to him. He could keep silent or decline to give the information
    or advice sought: or he could give an answer with a clear qualification
    that he accepted no responsibility for it or that it was given without
    that reflection or inquiry which a careful answer would require: or he
    could simply answer without any such qualification. If he chooses to
    adopt the last course he must, I think, be held to have accepted some
    responsibility for his answer being given carefully, or to have accepted
    a relationship with the inquirer which requires him to exercise such
    care as the circumstances require."

    (per Lord Reid at pp. 483 and 486).

    ". . .it seems to me that if A assumes a responsibility to B to tender
    him deliberate advice, there could be a liability if the advice is
    negligently given."

    "... there may be many situations in which one person voluntarily or
    gratuitously undertakes to do something for another person and
    becomes under a duty to exercise reasonable care. . . . But apart from
    cases where there is some direct dealing there may be cases where one
    person issues a document which should be the result of an exercise of
    the skill and judgment required by him in his calling and where he
    knows and intends that its accuracy will be relied upon by another."

    (per Lord Morris of Borth-y-Gest, at pp. 494 and 497).

    Lord Devlin expressed with particular clarity the concept of a
    voluntary assumption of responsibility. In addition to the passages already
    cited he said this, at p. 529:

    - 40 -

    "I have had the advantage of reading all the opinions prepared by your
    Lordships and of studying the terms which your Lordships have
    framed by way of definition of the sort of relationship which gives rise
    to a responsibility towards those who act upon information or advice
    and so creates a duty of care towards them. I do not understand any
    of your Lordships to hold that it is a responsibility imposed by law
    upon certain types of persons or in certain sorts of situations. It is a
    responsibility that is voluntarily accepted or undertaken, either
    generally where a general relationship, such as that of solicitor and
    client or banker and customer, is created, or specifically in relation to
    a particular transaction."

    From this extensive quotation I collect the following picture of Hedley
    Byrne.
    First, that the case was not seen by the House as being in a direct line
    from Donoghue v. Stevenson. The situations were far removed, and the
    solutions adopted by the House in the two cases were not at all the same. In
    Donoghue v. Stevenson the liability was derived by the court from the position
    in which the parties found themselves. It was imposed externally. In Hedley
    Byrne
    all the members of the House envisaged, perhaps in slightly different
    ways, that the liability arose internally from the relationship in which the
    parties had together chosen to place themselves. The House nevertheless
    attached great importance to Donoghue v. Stevenson for a reason most
    forcefully expressed by Lord Devlin [1964] Ac 465, 524 where, after
    discussing the concept of proximity, he said-"What Lord Atkin did was to use
    his general conception to open up a category of cases giving rise to a special
    duty."

    Liberated therefore by Donoghue v. Stevenson from the need to force
    new situations into old categories the House was free to analyse the special
    relationship which the parties had created for themselves. I use this
    description, because I believe that the element of what I have called mutuality
    was central to the decision. I think it clear from the passage at p. 529 quoted
    above (a passage in which Lord Devlin summed up not only his own opinion
    but also his understanding of those expressed by the other members of the
    House) that the legal responsibility accepted or undertaken by the person in
    question was one where the acceptance or undertaking was a reflection of the
    relationship in question. On the facts of Hedley Byrne this relationship was
    bilateral, being created on the one hand by the acts of the plaintiffs in first
    asking for a reference in circumstances which showed that the bankers' skill
    and care would be relied upon and then subsequently relying on it; and on the
    other hand by the bankers' compliance with the request. What conclusion the
    House would have reached if the element of mutuality had been absent if, for
    example, the defendants had for some reason despatched the reference
    spontaneously, without prior request cannot be ascertained from the speeches,
    but even if a claim had been upheld the reasoning must, I believe, have been
    fundamentally different.

    - 41 -

    Two further aspects of the decision call for mention. First, the use of
    the word "undertaking". There is a degree of ambiguity about this. In
    context however I think it clear that the word was not used in the sense of
    taking on or tackling a job. The passages quoted show that the defendants
    were held liable because the relationship was such as to show that they took
    upon themselves a legal duty to give with reasonable care whatever reference
    they chose to furnish.

    Secondly, there was the element of reliance, to which great attention
    has been directed in the present case. This element was of course crucial to
    the success of the claim in Hedley Byrne; for without reliance there could be
    no damage, and without damage there could be no cause of action in
    negligence. But so far as the duty of care was concerned, the reliance merely
    consummated the relationship already initiated by the plaintiffs' request and
    the defendants' response. To my mind therefore Hedley Byrne says nothing,
    one way or the other, about reliance or the anticipation of reliance as either
    necessary or sufficient for the recognition of a duty of care differently
    conceived.

    I turn now to Henderson v. Merrett Syndicate Ltd. [1994] 3 W.L.R.
    761. Your Lordships will recall that as a matter of some urgency both the
    argument and the delivery of the speeches in that case took place after the
    close of the argument of the present appeal. Your Lordships therefore have
    not had the advantage of submissions on the impact of those speeches on the
    related issues now before the House. I believe however that five features
    material to the present case may be identified without controversy. First,
    there was the resolution of a long-standing controversy about the co-existence
    of liabilities in contract and in tort. Since the House recognised the possibility
    of concurrent liabilities even as between immediate parties, it would be as
    impossible now to contend that the mere presence of a contract or contracts
    linking participants in the transaction is an absolute bar to liability in
    negligence for pure financial loss. Secondly, at a time when the courts had
    for some years been wrestling with the problems of the general law of
    negligence exemplified by the line of cases, which extends from Anns v
    Merton London Borough Council [1978] Ac 728 to Caparo Industries Plc.
    v.
    Dickman, [1990] 2 AC 605 and beyond, the speeches in Henderson
    brought back to prominence Hedley Byrne and Nocton v. Ashburton [1914]
    A.C. 932, and gave them new life as a growing point for the law of
    negligence. Third, the House took the law one stage further by recognising
    a new type of situation in which there could be a duty of care to avoid pure
    financial loss. Fourth, the House acknowledged (perhaps for the first time)
    the possibility that liability might attach to careless or dilatory omissions as
    well as to careless acts. Finally, of course, there was the identification of the
    facts which led the House to conclude that the managing agents owed a duty
    of care to the indirect names. These were summarised by Lord Goff of
    Chieveley [1994] 3 W.L.R. 761, 777-778, as follows:

    - 42 -

    "The managing agents have accepted the Names as members of
    a syndicate under their management. They obviously hold
    themselves out as possessing a special expertise to advise the
    Names on the suitability of risks to be underwritten; and on the
    circumstances in which, and the extent to which, reinsurance
    should be taken out and claims should be settled. The Names,
    as the managing agents well knew, placed implicit reliance on
    that expertise, in that they gave authority to the managing
    agents to bind them to contracts of insurance and reinsurance
    and to the settlement of claims."

    On these facts, once the other theoretical difficulties had been
    overcome, the case fell squarely within the concept of the undertaking of legal
    responsibility for careful and diligent performance in the context of a mutual
    relationship which in my opinion was the essence of the decision in Hedley
    Byrne.

    Can the principles thus formulated and applied be sufficient in
    themselves to yield a duty of care owed to an intended beneficiary? The
    proposition may conveniently be tested by reference to a will intended to be
    executed in favour of a charity. It often happens that the charity will not only
    have no knowledge of the testator's intention, but will never even have heard
    of the testator and his solicitor. In such a situation I can find no trace of a
    special relationship such as was contemplated by Hedley Byrne, and which
    actually existed in the two leading cases. The charity does nothing. It neither
    invites the solicitor to prepare the will, nor determines its conduct on the
    assumption that it will be skilfully and diligently prepared. There is no
    mutual relationship. Indeed I find it hard to see that there is a relationship at
    all, in any ordinary sense, between parties who are linked only by the fact that
    if the solicitor does his job, and if the testator executes the will and does not
    revoke it, the charity will be better off. Nor in my opinion is the claim
    advanced by looking for an assumption or undertaking of liability. The
    solicitor does of course undertake the task of preparing the will, in the sense
    of agreeing to take it on. But this is between himself and his client. By
    virtue of his response to the testator's instructions the solicitor does assume
    or undertake a legal liability for doing it properly. But he undertakes nothing
    towards the charity in the sense of doing something on its behalf. So far as
    he is concerned the charity is no more than an item in the testator's
    instructions. My Lords, I am obliged to say that in my opinion the reasoning
    of Hedley Byrne and Henderson does not apply to such a case. If a cause of
    action exists at all it must fall into the first, not the second, of the two
    categories recognised by Lord Devlin. It is not a responsibility voluntarily
    accepted or undertaken, but is "imposed by law upon certain types of person
    in certain situations."

    For these reasons therefore I conclude that the judgment in favour of
    the plaintiffs cannot be sustained by the direct application of the existing
    authorities. There still remains however the question whether a new rule

    - 43 -

    should be devised to encompass the present situation. This could happen in
    either of two ways. First, the court might start with an established principle,
    and by the incremental process recognised and adopted in cases from Caparo
    Industries Plc. v. Dickman
    [1990] 2 AC 605 onwards extend the law to
    encompass the new situation. Secondly, the court might proceed directly to
    the recognition of a duty, without using any of the existing law as a starting-
    point.

    Taking these methods in turn, it is plain that Hedley Byrne and
    Henderson together represent the only solid basis for an accretive process
    which could yield a recovery to disappointed beneficiaries. Even though the
    elements of request and reliance conspicuous in those two cases are absent
    from the situation now under review it is no great step, so the argument would
    run, to build upon the crucial fact, common to all the cases, that the defendant
    undertook the task in question; and to treat Hedley Byrne, Henderson and the
    present as being fundamentally the same. Whilst acknowledging the
    attractions of this proposition I am unable to accept it, for it is not to my mind
    the application of Hedley Byrne by enlargement - in consimili casu, as it were
    - but the enunciation of something quite different. True it is that the solicitor
    undertook the task of drawing a will which would be for the advantage of the
    beneficiaries but he did not draw it for the beneficiaries, he drew it for the
    testator. Take the simple case where A, knowing that B would like to have
    a gift delivered to C, undertakes to convey it for him. Imagine that A
    receives the gift from B, but does absolutely nothing else. Would he be liable
    in damages to C? There are ways in which, given the right circumstances, the
    answer might be affirmative. For instance, if the carriage was for reward it
    might be possible to find that B contracted with A as agent for C. Again, if
    the delivery to A amounted to a completed gift by B to C, the latter might
    have a proprietary claim against A. But in the absence of such special
    considerations, is it possible for C to sue A in negligence for his failure to
    perform the undertaking which he gave to B? I know of nothing in the long
    history of the law governing the carriage of goods to suggest the existence of
    any such remedy, and I cannot see how such a novelty could be derived by
    extension from Hedley Byrne or any other established law. As I see it, the
    position is precisely the same in the present case. If I am wrong in the
    analysis of Hedley Byrne suggested above, the cardinal feature was
    undoubtedly that the defendants undertook the job for the plaintiffs. The
    absence of this feature from the instant appeal destroys, in my judgement, the
    possibility of using Hedley Byrne as a stepping stone towards the recognition
    of the cause of action sued upon.

    There remains, however, the very important consideration that
    although Donoghue v. Stevenson [1932] AC 562 does not lead directly to a
    duty in a case such as the present, any more than it did in Hedley Byrne, it
    opened up the possibility of inferring a quite new duty in new types of special
    relationships far distant from those which existed in Donoghue v. Stevenson
    itself: and this is just what happened in Hedley Byrne and, at one remove, in

    - 44 -

    Henderson. It must therefore be asked, starting the inquiry entirely afresh,
    whether there existed between the solicitor and the intended beneficiary a
    relationship of the kind which, in the general and distinct from any special
    facts, a duty of care should be inferred.

    My Lords, even though I have already acknowledged my inability to
    share with others the view that a negative answer will leave a wholly
    unacceptable gap in the law, I must recognise the attractions of a solution
    which could repair the consequences of the solicitor's fault, without in practice
    opening the way to liabilities so broad as to be socially harmful. I have
    therefore considered whether it would be possible simply to create a specialist
    pocket of tort law, with a special type of proximity, distinct from the main
    body of doctrine, sufficient to provide a remedy in the present case. Whether
    this would be consistent with a policy of enlarging the law of negligence by
    the process of accretion, now firmly established since the decision in Caparo
    Industries Plc. v. Dickman
    [1990] 2 AC 605, I venture to doubt. A broad
    new type of claim may properly be met by a broad new type of
    rationalisation, as happened in Hedley Byrne; but rationalisation there must
    be, and it does not conduce to the orderly development of the law, or to the
    certainty which practical convenience demands, if duties are simply conjured
    up as a matter of positive law, to answer the apparent justice of an individual
    case. Be that as it may, the present case does not as it seems to me concern
    a unique and limited situation, where a remedy might be granted on an ad hoc
    basis without causing serious harm to the general structure of the law; for I
    cannot see anything sufficiently special about the calling of a solicitor to
    distinguish him from others in a much broader category. If the claim in the
    present case is sound, for any reasons other than those given by my noble and
    learned friends, it must be sound in every instance of the general situation
    which I have already identified, namely: where A promises B for reward to
    perform a service for B, in circumstances where it is foreseeable that
    performance of the service with care will cause C to receive a benefit, and
    that failure to perform it may cause C not to receive that benefit. To hold that
    a duty exists, even prima facie, in such a situation would be to go far beyond
    anything so far contemplated by the law of negligence. I must emphasise that
    the purpose here is not to conjure up the spectre of "opening the floodgates".
    It is simply that I cannot discern a principled reasoning which could lead to
    the recognition of such an extensive new area of potential liability.

    In these circumstances I cannot see my way to join all those judges and
    commentators who have acknowledged a general right for disappointed
    beneficiaries to recover a solatium from an errant solicitor in tort. This is
    not, however, necessarily the end of this appeal, for it may be said to have
    special features. The solicitor, the testator and the intended beneficiaries were
    not strangers. When the division within the family had healed the testator
    convened a meeting at which he indicated his wish that the plaintiffs should
    benefit from his will, and asked the first plaintiff to telephone the solicitor and
    tell him that the will should be changed. This is what the first plaintiff in fact
    did. Some weeks later the first plaintiff made an appointment for the solicitor

    - 45 -

    to see the testator after his return from holiday. This appointment was
    frustrated by the testator's illness and death. My Lords, I was for a time
    attracted by the possibility that a judgment in favour of the plaintiffs could be
    upheld on these particular facts on the ground that there existed a special
    relationship not very far distant from Hedley Byrne, even if for the reasons
    given I am unable to recognise a general duty of care towards intended
    beneficiaries. On reflection however I am satisfied that this would be
    inappropriate. The case has been conducted throughout on the basis of a stark
    choice between a duty of general application or no duty at all, and it cannot
    I believe be right to admit of an intermediate solution which has never been
    investigated on either the facts or the law.

    My Lords, I have two final observations. The first concerns the
    marked contrast between the scores of authorities cited in argument, and the
    very few reported cases which I have called up. This may seem discouraging
    to those who with great skill and labour have gathered together and analysed
    all this diverse material. Such a feeling would be understandable but
    mistaken. The extensive citation has been indispensable as a means of placing
    before your Lordships the interplay of ideas so copiously developed by jurists
    here and abroad. The whole of the landscape has been exposed. Yet when
    it comes to reaching a decision and explaining the grounds for it there is a
    possibility of surfeit. The construction of an intelligible mosaic becomes
    impossible if there are too many pieces. Many of them will not fit. A full
    account of all the previous decisions would be endless and useless. Ultimately
    it is the broad shape of the principles which matters, and to obscure them in
    a fog of citation would not in my opinion advance the development of the law
    of negligence, so important to everyday life.

    Secondly, the judgment of Steyn L.J. remarked on the sparseness of
    reference to academic writings in the argument before the Court of Appeal.
    No such complaint could be made of the proceedings in this House. There
    can be few branches of contemporary law on which the commentators have
    had so much to say. Citation has been copious, and of great value. If I refer
    to none of the writings it is only because, as with the reported cases, the
    volume is too large to permit accurate and economical exposition; and the
    selection of some in preference to others would be invidious. It is the practice
    in official law reports to record not only the cases referred to in the
    judgments, but also those brought forward in argument. This is an invaluable
    feature for those who follow behind. A similar record of the doctrinal
    materials brought forth in argument would, I believe, greatly help to place in
    perspective the views which your Lordships have expressed.

    For the reasons stated, I would allow the appeal.

    - 46 -

    LORD NOLAN

    My Lords,

    I would dismiss these appeals. I would do so because, on the basis of
    the simple facts found by the Court of Appeal - namely that each of the
    respondents lost at least £9,000 in consequence of the appellants' inexcusable
    delay in drawing up a fresh Will for Mr. Barratt - the respondents' claim
    appears to me to satisfy the criteria laid down by the decisions of your
    Lordships' House in Caparo Industries Plc. v. Dickman [1990] 2 AC 605
    and Murphy v. Brentwood District Council [1991] 1 AC 398.

    The facts did not seem so simple to the judge. He felt that any damage
    suffered by the respondents was too speculative and uncertain to be
    recoverable. There must be many cases of the present kind which would
    justify such a conclusion, because of, for example, the possibility of a further
    change of mind by the testator or doubts about the sufficiency of funds to
    meet his wishes. The respondents are fortunate in having been able to
    establish that the final intentions of the testator in the present case were firm,
    clear and attainable.

    This is not the only respect in which fortune has played a part. If Mr.
    Barratt had suffered his fall and subsequent heart attack in late July rather than
    in September of 1986 - that is to say, before any undue delay on the part of
    the appellants had occurred - the loss to the respondents would have been the
    same, but they would have had no remedy. The residuary legatees under the
    unrevoked will have been even more fortunate. They have received much
    more than Mr. Barratt intended. The failure of these appeals will spare them
    from the need to consider whether, in conscience, they should observe Mr.
    Barratt's known wishes rather than the terms of the will. That is a reflection
    of the fact that the remedy provided by the law produces a curious
    asymmetry. If it gave effect to Mr. Barratt's wishes, it would result in a
    revised distribution of his estate. Instead, it effectively increases the size of
    his estate by the sum of £18,000, free, I understand, of inheritance tax. No
    one can tell precisely how Mr. Barratt would have wished to dispose of an
    estate thus augmented. What is plain is that the family as a whole are better
    off because of the appellants' negligence.

    These considerations led me to wonder initially whether a decision in
    favour of the respondents would represent a departure from accepted
    principles of compensation. I have, however, concluded that they should not
    stand in the way of the simple justice of the respondents' claim against the
    appellants. On the facts before your Lordships' House the respondents have
    suffered damage because of the appellants' breach of their professional duty,
    and they are therefore entitled to the remedy - the only remedy - which the
    law can offer, notwithstanding the fortuitous aspects of the case and its
    unusual consequences.

    - 47 -

    I reach this conclusion the more readily because the decision in Ross
    v. Caunters
    [1980] Ch. 297 has stood unchallenged for 15 years and has
    achieved a substantial measure of international and academic support. The
    moral that solicitors, when preparing a will, owe a duty to intended legatees
    as well as to the testator must by now have become familiar to them and to
    their insurers. To reverse the decision in Ross v. Caunters at this stage would
    be. in my judgment, a disservice to the law. I agree with the views
    expressed in the unanimous judgments of the Court of Appeal.

    There are, however certain aspects of the case upon which I would
    wish to add a word of my own. They stem from the appellants' argument that
    the decision under appeal extends tortious liability into what should be the
    exclusive domain of contract. The force of this argument has of course been
    substantially diminished by the intervening decision of your Lordships' House
    in Henderson v. Merrett Syndicates Ltd. [1994] 3 W.L.R. 761 which shows
    that a contractual duty of care owed by the defendant to A may perfectly well
    co-exist with an equivalent tortious duty of care to B. Both duties depend
    upon an assumption of responsibility by the defendant. In the former case the
    responsibility is assumed by the making of the contract and is defined by its
    terms. In the latter the responsibility is assumed by the defendant embarking
    upon a potentially harmful activity and is defined by the general law. If the
    defendant drives his car on the highway, he implicitly assumes a responsibility
    towards other road users, and they in turn implicitly rely on him to discharge
    that responsibility. By taking his car on to the road, he holds himself out as
    a reasonably careful driver.

    In the same way, as it seems to me, a professional man or an artisan
    who undertakes to exercise his skill in a manner which, to his knowledge,
    may cause loss to others if carelessly performed, may thereby implicitly
    assume a legal responsibility towards them. The fact that he is doing so in
    pursuance of a contractual duty or a statutory function cannot of itself exclude
    that responsibility. The most that can be said is that it may be one of the
    circumstances to be taken into account in determining the nature and extent
    of the responsibility. Thus in Voli v. Inglewood Shire Council (1963) 110
    C.L.R. 74, in which the architect of the Shire Hall was held to have owed a
    duty to visitors to the Hall to make the stage safe for the burden reasonably
    expected to be placed on it. Windeyer J. said, at p. 84:

    "Whatever might have been thought to be the position before the broad
    principles of the law of negligence were stated in modern form in
    Donoghue v. Stevenson, it is now beyond doubt that, for the
    reasonably foreseeable consequences of careless or unskilful conduct,
    an architect is liable to anyone whom he could reasonably have been
    expected might be injured as a result of his negligence. To such a
    person he owes a duty of care quite independently of his contract of
    employment."

    - 48 -

    He continued, at p. 85:

    "... neither the terms of the architect's engagement, nor the terms of
    the building contract, can operate to discharge the architect from a
    duty of care to persons who are strangers to those contracts. Nor can
    they directly determine what he must do to satisfy his duty to such
    persons. That duty is cast upon him by law, not because he made a
    contract, but because he entered upon the work. Nevertheless his
    contract with the building owner is not an irrelevant circumstance. It
    determines what was the task upon which he entered. If, for example,
    it was to design a stage to bear only some specified weight, he would
    not be liable for the consequences of someone thereafter negligently
    permitting a greater weight to be put upon it."

    Voli was, of course, a case of physical injury rather than economic
    loss. I would for my part leave open the question whether, in either type of
    case, the defendant who engages in the relevant activity pursuant to a contract
    can exclude or limit his liability to third parties by some provision in the
    contract. I would prefer to say that the existence and terms of the contract
    may be relevant in determining what the law of tort may reasonably require
    of the defendant in all the circumstances.

    No such difficulty arises in the present case. Here, as in Merrett, it
    would be highly artificial to treat the appellants' responsibility to Mr. Barratt
    in contract as excluding their responsibility to the respondents under the law
    of tort. The appellants were acting in the role of family solicitors. As is
    commonly the case the contract was with the head of the family, but it would
    be astonishing if, as a result, they owed a duty of care to him alone, to the
    exclusion of the other members of the family. In the particular circumstances
    of the case, the degree of proximity to the plaintiffs could hardly have been
    closer. Carol White, the first plaintiff, had spoken to Mr. Jones about the
    revised wishes of Mr. Barratt and the letter setting out those wishes was
    written for Mr. Barratt by Mr. Heath, the husband of the second plaintiff. It
    would be absurd to suggest that they placed no reliance upon the appellants
    to carry out the instructions given to them. I do not say that other potential
    legatees, less intimately concerned with the carrying out of the testator's
    wishes, would necessarily be deprived of a remedy: I simply point to the
    facts as being relevant to the pragmatic, case-by-case approach which the law
    now adopts towards negligence claims.

    It was argued that the failure by the appellants in the present case was
    a failure of omission, and that omission is not as a rule a ground upon which
    liability in negligence can be based. That argument cannot, to my mind, have
    any force where the omission occurs after the duty of care has been assumed
    by the defendant. Once the duty exists, it can make no difference whether its
    breach occurs by way of omission or of positive act.

    - 49 -

    It is for these reasons, as well as those given by my noble and learned
    friends Lord Goff of Chieveley and Lord Browne-Wilkinson, that I would
    dismiss the appeal.

    - 50 -


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