White v Jones [1995] 1 All ER 691

Key point

  • duty of care can be owed to a third-party who suffers a loss of expectation as a result of negligence by a professional in the course of a service meant to benefit the third party

Facts

  • D solicitor was tasked by a testator to draw up a new will that benefited the testator’s daughters (Cs)
  • D negligently failed to include them
  • Cs sued D for negligence

Held (House of Lords)

  • D was liable for negligence

Lord Goff

  • As a general rule, a solicitor acting on behalf of a client owes a duty of care only to his client
  • Furthermore, the daughters did not suffer any loss to existing property or rights, they only suffered a loss of expectation
  • The practical result was to increase the size of testator’s bounty at the cost of the solicitor
  • However, there is an “impulse to do practical justice” in cases where there could be otherwise be no claim against negligent solicitors of small law firms (the testator’s estate cannot sue since it has suffered no loss)
  • The people who hire a small firm of solicitors are most likely to experience such mistakes, hence those of modest means most likely to suffer
  • Under the Hedley Byrne principle there is no assumption of responsibility by the testator’s solicitor to an intended beneficiary
  • However, the assumption of responsibility by the solicitor to his client should be extended to the intended beneficiary by operation of law

Lord Browne-Wilkinson

  • There is no assumption of responsibility as the intended beneficiary will often be ignorant of the work of the solicitor and cannot be said to have relied upon it
  • However, in this case a new category is to be developed by analogy (citing Lord Bridge in Caparo v Dickman)
  • While there might not be actual reliance, the solicitor knows that C’s economic well-being is dependent on his work

Lord Mustill’s dissent

  • There must be mutuality for assumption of responsibility to arise, some reciprocal dealings between the claimant and defendant
  • In Hedley Byrne it arose from the request of credit reference by the claimant
  • To hold otherwise would generate a general duty to all third parties who seek to benefit from dealings

Commentary

  • There are two different strains of reasoning
  • Lord Goff thought that duty of care could only be imposed by operation of law due to the strength of the policy to ensure that clients of small solicitors have redress
  • Lord Browne-Wilkinson thought that the defendant’s knowledge that a third party’s well-being is dependent on his exercise of reasonable care is enough to impose a duty of care