In Wellesley Partners LLP v Withers LLP 2015 EWCA Civ 1146, a solicitors’ negligence case, the Court of Appeal considered, for the initially time, what rule of remoteness of damage applies in situations where there is concurrent liability in contract and in tort. Certainly, whilst the criteria of reasonable foreseeability and affordable reliance serve to distinguish cases exactly where a prima facie duty is owed from those where it is not, it is nevertheless true that in particular sorts of scenarios these criteria can, very quickly, be happy and absent some indicates by which to circumscribe the ambit of the duty, the prospect of limitless liability will loom.
Additional lately, the courts have in a quantity of cases restricted the ability of parties to rely on concurrent tortious duties in establishing a claim, especially in construction disputes. Remoteness in contract is governed by the decision in Hadley v Baxendale (1854) 9 Ex 341 which held that heads of loss would only be permitted if they had been in the contemplation of the parties” at the time the contract was created. The major case on concurrent liability for pre-contractual misrepresentation is BG Checo International Ltd. For example, where the contractual limitation on the tort duty is partial, a tort action founded on the modified duty may lie.
Importantly, a provided pre-contractual misrepresentation may well, but not must, give rise to liability in both tort and contract (Economic Negligence, 5th Edition, by Bruce Feldthusen, pg 87) (Feldthusen”). Contract: the plaintiff is to be place in the position it would have been in had the contract been performed as agreed. As we see it, the suitable to sue in tort is not taken away by the contract in such a case, although the contract, by limiting the scope of the tort duty or waiving the correct to sue in tort, may well limit or negate tort liability.
In conditions of concurrent liability in tort and contract, even so, it would look anomalous to award a unique level of damages for what is essentially the exact same incorrect on the sole basis of the type of action chosen, though, of course, unique circumstances or policy might dictate such a course. The significant overlap in between the causes of actopm seems to erode away the regular distinctions between tort and contract when reasonable care” duties are concerned. Whereas, in tort the date of accrual is the date of harm, or the date when the claimant suffered harm for relying on the data offered.
They can therefore make distinct provision for these losses in their contract or communicate these particular circumstances to the other party (which would bring them inside an extended definition to the contractual rule as to remoteness). Holistically, there is therefore a possibility that a court may well refuse a breach of contract claim for the other charge, but permit a claim in negligence. In 2011, the Court of Appeal held (in Robinson v PE Jones), contrary to what numerous had believed to be the position, that no concurrent duty in tort would arise in the case of an ordinary building contract.