The frequently subtle but important variations in the application of tortious principles in the UK and Ireland has been the touched upon in several learned papers delivered in the CBA (see Here ). A single challenge arising in the proceedings was regardless of whether Wellesley could claim for its inability to expand into the USA and win a lucrative contract as a result of a deterioration in its economic position said to have arisen due to the mis-drafted partnership agreement. The court stated that the guidelines for recoverability of damage in tortious claims, which in in some regards are broader than in contract, are to be restricted to the contractual position when concurrent liability is brought into pleadings.
The principles of concurrency, as expressed in BG Checo, assistance the entitlement of a plaintiff to select either, or each, contract and tort treatments. If the contract duty is lesser than the tort duty, then the plaintiff will similarly likely sue in contract simply because recovery in tort would be diminished by the extent to which the contract limits the tort duty. When the tort of negligence was developed in Donoghue v Stevenson and subsequent situations, it aim was to give a remedy for negligence causing physical harm. Such circumstances, the duty of care and the duties imposed by contract will be concurrent and not co-existent’.
Certainly in Clay v Clump (1964), the Court of Appeal had no difficulty in imposing liability on an architect in relation to negligent statement causing physical damage, since the class of claimant was restricted. The query of when a offered scenario will facilitate both tort and contract actions is important due to the fact there may be a number of important variations involving the actions that could influence the plaintiff’s option of action. In that case, the parties are hardly likely to sue in tort, because they could not recover in tort for the greater contractual duty.
If the contract duty is equal to the tort duty, then the plaintiff will have to examine the possible variations between the two claims (limitation periods, remoteness rules, extent of damages, and application of statutes) to determine how ideal to frame the action. If the contract duty is greater than the tort duty, then the plaintiff will probably sue in contract due to the unavailability of recovery, in tort, for the larger contractual duty.
The case must also in certain situations lessen the want, in conjunction with the other developments described above, for additional legal charges to be spent in formulating complicated claims in tort alongside a lot more straightforward contractual claims. Nonetheless, a contractual limitation may not apply exactly where the tort is independent of the contract in the sense of falling outside the scope of the contract (BG Checo, para 21).
