It is the goal of this report to critique some arguments as to how apportionment of liability may possibly nevertheless be practically accomplished in instances exactly where there is alleged concurrent liability in contract and tort on the element of the defendant and some fault on the part of the plaintiff. On the basis of that evidence, and in light of the absence in the trial judge’s reasons of a clear conclusion as to what Checo would have carried out had the misrepresentation not been made, the Court of Appeal was in our view justified in generating its personal finding that Checo would have entered the contract in any occasion, albeit at a higher bid.
Suppose a claimant pursues a claim against a solicitor, in the contract the parties specify that the solicitor need to check if any pre-existing leaseholders have existing interest in the land. Lord Justice Jackson also examines Lord Goff’s speech in Henderson and points out that not each contract is held to lead to an assumption of responsibility. It is only to the extent that this private ordering contradicts the tort duty that the tort duty is diminished.
This is due to the fact of the Residence of Lords reluctance to impose liability in tort in relation to negligence causing pure financial loss (it considers this to be the function of contract) and mainly because of policy considerations. Tortious liability arises independently of any contract but may possibly also apply alongside contractual duties (a situation known … Read the rest >>>