“Roger Tice [of RNP] responded [to an enquiry by Dunne] by email of2 December 2015 at 10.53 enclosing a fee proposal. The “Quotation for Design services” was addressed to “Dunne Group” and was for a sum of£3,978 . The quotation was accepted and formed the basis for the contract between Dunne and RNP for the provision of these services.”
“It [ie the quotation] was stated to be based on the “RNP Terms” terms of business (and further stated: “This quotation is subject to RNP’s Standard Terms of Business unless otherwise agreed and noted within”) The RNP Terms (issue 02 Issue Date 08/2015) provided inter alia: “13.3 Nothing in this Agreement confers, or purports to confer on any third party any benefit or any right to enforce any term of this Agreement. In particular any advice provided by the Consultant is for the sole benefit of the Client and may not be used or relied upon by third parties’ ”
“The quotation was accepted by Dunne, in that it was content for RNP to carry out the Category 3 design check on the basis set out therein and it therefore formed the basis for the contract between Dunne and RNP for the provision of these services. RNP’s Standard terms of Business, including clause 13.3, where thereby incorporated by notice into the contract between Dunne and RNP.”
“if one or other party starts filing evidence at this stage where the expert is opining one way or the other as to whether there is a breach, for example, then the other side should not be responding to that, but should simply regard that as something that the judge at the preliminary issue trial will put a line through.”
“we certify that reasonable skill and care has been used in the preparation of this design/check to ensure that the calculations accord with the design brief, current industry practice and design codes”
“26(d) Further and in any event, it is denied that Multiplex can have placed any reliance upon the revised Design Check Certificate dated4 February 2016 in planning, preparing or programming the temporary works, whether as alleged or at all. It did not receive this certificate from Dunne until at least22 June 2016 , by which point ten permits to load had already been issued and the slipform had been in operation for nearly five months.”
“(1) Discovered, following a survey by a company called SES, that the original slipform design had been modified on site by Dunne, including the introduction of 49 additional jacks”
“temporary works can represent huge risks to the safety of people working on site if not designed, constructed and managed correctly”
“While clearly avoiding this safety risk is the primary consideration, if temporary works go wrong, they can cause major material damage and can result [in] major set-backs”
“44. Further or alternatively, the statements contained in the said certificates were: …..(2) made negligently in that RNP knew, or ought to have known, that the said statements were false.”
“40. Thus, Dunne (1) Failed to carry out and complete the Sub-Contract Works in a proper and workmanlike manner (breach of Clause 2.1.1); (2) Failed to exercise all the reasonable skill, care and diligence to be expected of a properly qualified and competent designer experienced in designing works of a similar size, scope, nature and complexity (breach of Clause 2.13.1); (3) Were, in the premises, in breach of the warranties and undertakings which they gave at Clauses 2.1.6.1 and 2.13.1 of the Sub-Contract; (4) Were in breach of Clause 2.13.2, and paragraph 21.16.8, Part 1 of the Contractor’s Requirements, in that the Category 3 check failed to comply with the Statutory Requirements, in the respects set out at paragraph 43(2) below. Particulars of sub-paragraphs (1) to (3) The design, whether as originally conceived, or as modified, was defective and fell below the standards to be expected of a properly qualified and competent designer experienced in designing work of a similar size, scope, nature and complexity to the Sub-Contract Works, in the respects set out at paragraphs 33 to 35 above. (5) Were in breach of Clause 2.13.2 and paragraph 21.16.8, Part 1 of the Contractor’s Requirements in that the Category 3 check failed to comply with the Statutory Requirements, in the respects set out at paragraph 44(2) below.”
“1. Scope. This British Standard gives recommendations and guidance on the procedural controls to be applied to all aspects of temporary works in the construction industry. It also includes guidance on design, specification, construction, use and dismantling of falsework. This standard gives guidance on permissible stress design of falsework.”
“design check evaluation of the design to determine whether it conforms with the design brief and can be expected to provide a safe engineered solution.”
“9.2.1 Prior to the commencement of the construction work, the proposed temporary works design should be checked for concept, adequacy, correctness and compliance with the requirements of the design brief. This check should be carried out by a competent person or persons independent from those responsible for the design. The ability of the checker and his remoteness or independence from the temporary works designer should be greater where new ideas are incorporated or the temporary works are complex. 9.2.2 Design checks should be undertaken in accordance with one of the categories given in Table 1. 9.2.3 For categories 2 and 3, the checker should carry out the check without reference to the designer’s calculations using only the design brief, design statement, drawings and specification and associated information not produced by the designer.”
“9.2.5 On completion of the design and design check, a certificate should be issued for all categories, confirming that the design complies with the requirements of the design brief, the standards/technical literature used and the constraints or loading conditions imposed. The certificate should identify the drawings/sketches, specification and any methodology that are part of the design and it should be signed by the designer and design checker. The package of information issued to the TWC should include this certificate.”
“….the claims made by Multiplex in this case are: (1) That RNP owed a duty of care to Multiplex not to negligently misstate the truth of what it certified in the Design Check Certificates. The statements were that reasonable skill and care had been used in the preparation of the design check to ensure the calculations accorded with the design brief; current industry practice and design codes. The duty of care not to misstate the position arises out of its assumption of responsibility to Multiplex to take reasonable care in the making of its statements within the Certificates.”
“Structural and dimensional check of slipform rig: • Top, working and hanging decks • Formwork shutters • Steel support frames • Jacks • Edge protection • Steel frame to support concrete boom on top of rig”
“Jack loads under the placing boom grillages could be greater than 60kN. This can be managed with the current yoke/jack configuration by avoiding the combination of maximum live load, load from placing boom and adhesion all acting simultaneously.”
“• TWC is responsible if the particular temporary works falls under them • TWS is responsible for their subcontractor’s temporary works • A TWS can prepare a design brief for review by the TWC.”
"It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless."
“… I can see no logical stopping place short of all those relationships where it is plainthat 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. I say "ought to have known'' because in questions of negligence we now apply the objective standard of what the reasonable man would have done. 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.”
“I think, therefore, that there is ample authority to justify your Lordships in saying now that 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 to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Nocton v. Lord Ashburton[1914] AC 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 an express undertaking, an express warranty as distinct from mere representation, there can be little difficulty. The difficulty arises in discerning those cases in which the undertaking is to be implied. In this respect the absence of consideration is not irrelevant. Payment for information or advice is very good evidence that it is being relied upon and that the informer or adviser knows that it is. 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. It may often be material to consider whether the adviser is acting purely out of good nature or whether he is getting his reward in some indirect form. The service that a bank performs in giving a reference is not done simply out of a desire to assist commerce. It would discourage the customers of the bank if their deals fell through because the bank had refused to testify to their credit when it was good.”
“I wish however to add that I strongly suspect that the situation whicharises in the present case is most unusual; and that in many cases in whicha contractual chain comparable to that in the present case is constructed it maywell prove to be inconsistent with an assumption of responsibility which hasthe effect of, so to speak, short circuiting the contractual structure so put inplace by the parties. It cannot therefore be inferred from the present case thatother sub-agents will be held directly liable to the agent's principal in tort.Let me take the analogy of the common case of an ordinary building contract,under which main contractors contract with the building owner for theconstruction of the relevant building, and the main contractor sub-contractswith sub-contractors or suppliers (often nominated by the building owner) for the performance of work or the supply of materials in accordance withstandards and subject to terms established in the sub-contract. I put on oneside cases in which the sub-contractor causes physical damage to property ofthe building owner, where the claim does not depend on an assumption ofresponsibility by the sub-contractor to the building owner; though the sub-contractor may be protected from liability by a contractual exemption clauseauthorised by the building owner. But if the sub-contracted work or materialsdo not in the result conform to the required standard, it will not ordinarily beopen to the building owner to sue the sub-contractor or supplier direct underthe Hedley Byrne principle, claiming damages from him on the basis that hehas been negligent in relation to the performance of his functions. For thereis generally no assumption of responsibility by the sub-contractor or supplierdirect to the building owner, the parties having so structured their relationshipthat it is inconsistent with any such assumption of responsibility. This was theconclusion of the Court of Appeal in Simaan General Contracting Co. v Pilkington Glass Ltd. (No. 2)[1988] QB 758 . As Bingham L.J. put it, atp. 781: "I do not, however, see any basis on which the defendants [thenominated suppliers] could be said to have assumed a directresponsibility for the quality of the goods to the plaintiffs [the buildingowners); such a responsibility is, I think, inconsistent with thestructure of the contract the parties have chosen to make."”
“no inconsistency between the assumption of responsibility by the managing agents to the indirect Names, and that which arises under the sub-agency agreement between the managing agents and the members’ agents, whether viewed in isolation or as part of the contractual chain stretching back to and so including the indirect Names.”
“If one asks how the solicitor came to be involved in the case theanswer is that by accepting the retainer he promised to draw the will with careand diligence. It is therefore proper to enquire whether this source ofinvolvement, and this alone, should create whatever remedies may be givento the plaintiffs for his failure to do what he said. I do not here refer to theargument, forcefully addressed by Professor Jolowicz Q.C., to the effect thatso far from the existence of a contract between the testator and the solicitorsupporting a tortious cause of action in the plaintiffs, it operates to exclude it.This posits that contractual and tortious responsibilities occupy exclusivedomains, and that where the complaint is of a failure to do a promised job ofwork the law of delict must necessarily be the wrong domain. The argumentwas advanced before your Lordships gave judgment in Henderson v MerrettSyndicates Ltd. [1994] 3 W.L.R. 761, and in the light of the conclusions thereexpressed cannot I think be any longer sustained. This is certainly not to denythat where the act or omission complained of occurs between persons whohave deliberately involved themselves in a network of commercial orprofessional contractual relations, such for example as may exist between thenumerous parties involved in contracts for large building or engineeringworks, the contractual framework may be so strong, so complex and sodetailed as to exclude the recognition of delictual duties between parties whoare not already connected by contractual links: see for example PacificAssociates Inc. v Baxter [1990] 1 Q.B. 993, This aspect of the law is farfrom being fully developed and I need not explore it here. Whateverrationalisation is preferred as a means of justifying tortious liability for afailure to act causing pure financial loss - whether a voluntary assumption ofan obligation, or the existence of a special situation, or the simple filling ofan unacceptable gap - there may be situations where the parties have erecteda structure which leaves no room for any obligations other than those whichthey have expressly chosen to create. On this view the express and impliedterms of the various contracts amount between them to an exhaustivecodification of the parties' mutual duties. This particular problem does notarise here, for there is no consciously created framework of contractualrelationships between the three parties principally concerned. There was onlyone contract.”
“The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said or done by the defendant or on his behalf in dealings with the plaintiff. Obviously, the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff. Sometimes such an issue arises in a simple bilateral relationship. In the present case a triangular position is under consideration: the prospective franchisees, the franchisor company, and the director. In such a case where the personal liability of the director is in question the internal arrangements between a director and his company cannot be the foundation of a director's personal liability in tort. The enquiry must be whether the director, or anybody on his behalf, conveyed directly or indirectly to the prospective franchisees that the director assumed personal responsibility towards the prospective franchisees. An example of such a case being established is Fairline Shipping Corp. v. Adamson [1975] Q.B. 180. The plaintiffs sued the defendant, a director of a warehousing company, for the negligent storage of perishable goods. The contract was between the plaintiff and the company. But Kerr J. (later Kerr L.J.) held that the director was personally liable. That conclusion was possible because the director wrote to the customer, and rendered an invoice, creating the clear impression that he was personally answerable for the services. If he had chosen to write on company notepaper, and rendered an invoice on behalf of the company, the necessary factual foundation for finding an assumption of risk would have been absent. A case on the other side of the line is Trevor Ivory Ltd. v. Anderson. This case concerned negligent advice given by a one-man company to a commercial fruit grower. Despite proper application of the spray it killed the grower's fruit crop. The company was found liable in contract and tort. The question was whether the beneficial owner and director of the company was personally liable. The plaintiff had undoubtedly relied on the expertise of the director in contracting with the company. The New Zealand Court of Appeal unanimously concluded that the defendant was not personally liable. McGechan J., who analysed the evidence in detail, said, at p. 532, that there was merely "routine involvement" by a director for and through his company. He said that there "was no singular feature which would justify belief that Mr. Ivory was accepting a personal commitment, as opposed to the known company obligation." That was the basis of the decision of the Court of Appeal. In his 1997 Hamlyn Lecture Lord Cooke of Thorndon commented that if the plaintiff in Trevor Ivory Ltd. v. Anderson "had reasonably thought that it was dealing with an individual, the result might have been different:" see Taking Salomon Further, Turning Points of the Common Law, p. 18, note 50. Such a finding would have required evidence of statements or conduct crossing the line which conveyed to the plaintiff that the defendant was assuming personal liability.”
“At present the system of settling cargo claims against shipowners is arelatively simple one. The claims are settled between the two sets of insurers.If the claims are not settled, they are resolved in arbitration or courtproceedings. If a duty is held to exist in this case as between theclassification society and cargo owners, classification societies would becomepotential defendants in many cases. An extra layer of insurance wouldbecome involved. The settlement process would inevitably become morecomplicated and expensive. Arbitration proceedings and court proceedingswould often involve an additional party. And often similar issues would haveto be canvassed in separate proceedings since the classification societies wouldnot be bound by arbitration clauses in the contracts of carriage. If such a dutyis recognised, there is a risk that classification societies might be unwillingfrom time to time to survey the very vessels which most urgently requireindependent examination. It will also divert men and resources from theprime function of classification societies, namely to save life and ships at sea.These factors are, by themselves, far from decisive. But in an overallassessment of the case they merit consideration.”
“[4] …..I content myself at this stage with five general observations. First, there are cases in which one party can accurately be said to have assumed responsibility for what is said or done to another, the paradigm situation being a relationship having all the indicia of contract save consideration. Hedley Byrne would, but for the express disclaimer, have been such a case. White v Jones and Henderson v Merrett, although the relationship was more remote, can be seen as analogous. Thus, like Colman J (whose methodology was commended by Paul Mitchell and Charles Mitchell, "Negligence Liability for Pure Economic Loss (2005) 121 LQR 194, 199), I think it is correct to regard an assumption of responsibility as a sufficient but not a necessary condition of liability, a first test which, if answered positively, may obviate the need for further enquiry. If answered negatively, further consideration is called for. [5] Secondly, however, it is clear that the assumption of responsibility test is to be applied objectively (Henderson v Merrett, p 181) and is not answered by consideration of what the defendant thought or intended. Thus Lord Griffiths said in Smith v Bush, p 862, that "The phrase 'assumption of responsibility' can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice." Lord Oliver of Aylmerton, in Caparo v Dickman, p 637, thought "voluntary assumption of responsibility": "a convenient phrase but it is clear that it was not intended to be a test for the existence of the duty for, on analysis, it means no more than that the act of the defendant in making the statement or tendering the advice was voluntary and that the law attributes to it an assumption of responsibility if the statement or advice is inaccurate and is acted upon. It tells us nothing about the circumstances from which such attribution arises." In similar vein, Lord Slynn of Hadley in Phelps v Hillingdon, p 654, observed: "It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. It is, however, clear that the test is an objective one: Henderson v Merrett Syndicates Ltd[1995] 2 AC 145 , 181. The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by law." The problem here is, as I see it, that the further this test is removed from the actions and intentions of the actual defendant, and the more notional the assumption of responsibility becomes, the less difference there is between this test and the threefold test. [6] Thirdly, the threefold test itself provides no straightforward answer to the vexed question whether or not, in a novel situation, a party owes a duty of care. In Caparo v Dickman, p 618, Lord Bridge, having set out the ingredients of the three-fold test, acknowledged as much: "But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes." Lord Roskill made the same point in the same case at p 628: "I agree with your Lordships that it has now to be accepted that there is no simple formula or touchstone to which recourse can be had in order to provide in every case a ready answer to the questions whether, given certain facts, the law will or will not impose liability for negligence or in cases where such liability can be shown to exist, determine the extent of that liability. Phrases such as 'foreseeability', 'proximity', 'neighbourhood', 'just and reasonable', 'fairness', 'voluntary acceptance of risk', or 'voluntary assumption of responsibility' will be found used from time to time in the different cases. But, as your Lordships have said, such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual situations which can exist in particular cases and which must be carefully examined in each case before it can be pragmatically determined whether a duty of care exists and, if so, what is the scope and extent of that duty. If this conclusion involves a return to the traditional categorisation of cases as pointing to the existence and scope of any duty of care, as my noble and learned friend Lord Bridge of Harwich suggests, I think this is infinitely preferable to recourse to somewhat wide generalisations which leave their practical application matters of difficulty and uncertainty." [7] Fourthly, I incline to agree with the view expressed by the Messrs Mitchell in their article cited above, p 199, that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. The closer the facts of the case in issue to those of a case in which a duty of care has been held to exist, the readier a court will be, on the approach of Brennan J adopted in Caparo v Dickman, to find that there has been an assumption of responsibility or that the proximity and policy conditions of the threefold test are satisfied. The converse is also true. [8] Fifthly, it seems to me that the outcomes (or majority outcomes) of the leading cases cited above are in every or almost every instance sensible and just, irrespective of the test applied to achieve that outcome. This is not to disparage the value of and need for a test of liability in tortious negligence, which any law of tort must propound if it is not to become a morass of single instances. But it does in my opinion concentrate attention on the detailed circumstances of the particular case and the particular relationship between the parties in the context of their legal and factual situation as a whole.”
“[32] Mr Howard [for the appellant] then relied on building cases such as Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988 QB 758 and Pacific Associate Inc v Baxter[1990] 1 QB 993 for the proposition that where there is a contractual chain, that chain should not be by-passed by a claim in tort. As Lord Goff said in Henderson v Merrett that is, indeed, the usual position. But neither of those authorities considered a case where discussions and representations were made directly to the party who, in the event, suffered loss. There cannot be a general proposition that, just because a chain exists, no responsibility for advice is ever assumed to a non-contractual party. It all depends on the facts. As the judge said in paragraph 67 of his judgment:- ". . . the manner in which much of that advice was expected to be and was given, namely by the attendance of Mr Weist at meetings of the Fund's board, reinforces the conclusion that it did, in fact, assume such a responsibility." [33] I entirely agree and would hold that UBK did indeed owe a duty of care to the Fund in relation to the valuation of the leases it offered to RBE for the Fund to buy.”
“[36]…..That argument was that it is inappropriate to permit the Fund to invoke the law of tort in order to sue UBK direct for negligent valuation advice, when the parties (i.e. the Fund, RBE and UBK) had structured their contractual relationship so that UBK's duty in respect of that advice was not owed to the Fund, but to RBE, who in turn owed a similar duty to the Fund. [37] There is, at any rate at first sight, attraction in the notion that, where, in a purely commercial context, parties have voluntarily and consciously arranged their affairs so that there is a contractual obligation on A to give advice to B, and on B to consider and pass on that advice, to the extent that it sees fit, to C, there should normally be no part for the law of tort to play. In other words, that i) There should be no tortious duty in relation to the advice, either as between A and B or as between B and C, because those parties have identified the extent and ambit of the respective rights and duties between them in their respective contracts; and ii) There should be no tortious duty in relation to the advice given by A, as between A and C, because the three parties have intentionally structured their relationships so that there is no direct duty between A and C, but separate duties between A and B, and between B and C. [38] The justifications for each of these two points might appear to be the converse of each other. Point (i) is based on the contention that the raising of a tortious duty is inappropriate because the parties have agreed a contractual duty. Point (ii) is based on the contention that the raising of a tortious duty is inappropriate because the parties have decided that there should be no contractual duty. However, as I see it, despite this apparent paradox, both points essentially rest on the same proposition, namely that a tortious duty should not be invoked between parties to commercial contracts at least where there is no "liability gap". [39] In relation to point (i), it would be surprising (save perhaps in unusual circumstances) if the law of tort imposed greater liability on A or B than they had agreed to accept, either expressly or impliedly, in their respective contracts, and it might appear pointless and confusing if there was a tortious liability which was simply co-extensive with the contractual liability. Of course, tortious liability is generally subject to less strict statutory limitation bars than contractual liability (as is demonstrated in the Henderson case at 174F to G), but that may seem a questionable reason, in terms of principle, for justifying a co-extensive tortious duty where there is a contractual duty. [40] So far as point (ii) is concerned, it may be thought to be questionable whether the law of tort should normally be capable of being invoked in order to found a duty of care in circumstances where the parties have intentionally set up a contractual structure which avoids such a contractual duty. Especially so when there is no "gap" which requires "filling"; in this case C, the Fund, could have sued B, RBE, who could in turn have sued A, UBK. The only reason that that course cannot now be taken is that, for commercial reasons, Riyad Bank was not prepared to sue (or let the Fund sue) RBE, and it is now too late for it to do so, because of a limitation bar. [41] Some apparent support for the view that a tortious duty of care normally has no part to play in the context of a commercial contractual relationship may be found in observations of the Privy Council in a judgment given by Lord Scarman in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd[1986] AC 80 at 107, quoted by Lord Goff of Chieveley in the Henderson case at 186C to F. Further, in the Williams case at 837F, Lord Steyn said that, at least in the current state of English contract law, "the law of tort, as the general law, has to fill an essential gap-filling role". [42] On the other hand, there are strong countervailing arguments the other way, which appear to me, again, to apply equally to points (i) and (ii). If a duty of care would otherwise exist in tort, as part of the general law, it is not immediately easy to see why the mere fact that the adviser and the claimant have entered into a contract, or a series of contracts, should of itself be enough to dispense with that duty. If a claimant is better off relying on a tortious duty, it is not readily apparent why a claimant who receives gratuitous advice should be better off than a claimant who pays for the advice (and therefore would normally have the benefit of a contractual duty), unless, of course, the contract so provides. One might expect the question to be determined by reference to the contractual relationship on the normal basis, namely whether the nature terms and circumstances of the contract(s) expressly or impliedly lead to the conclusion that the parties have agreed that there will be no tortious duty. [43] These arguments have to be assessed in the light of the decision of the House of Lords and, in particular the analysis of Lord Goff, in the Henderson case. It seems clear from the closely reasoned passage in his speech at 184B to 194E that the issue has been resolved, at least in principle, in favour of the latter of the two views that I have summarised. In other words, "the common law is not antipathetic to concurrent liability". At 186C to F, Lord Goff considered and explained Lord Scarman's observation in the Tai Hing case. He went on to say that a claimant who is owed a contractual duty of care may also (or alternatively) be entitled to invoke a tortious duty of care, unless it would be "so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded" – see at 193H and 194A to B. [44] Those observations are clearly appropriate to what I have called point (i), but, while it is not immediately clear that they apply to point (ii), in my view they do. As mentioned above, the principle upon which both points (i) and (ii) rest is essentially this, that the law of tort should not be invoked in a commercial context, at least where there are no gaps, where the parties have contractually provided for a duty, or a chain of duties. More importantly, Lord Goff's reasoning in relation to point (ii) appears to embody the same approach as that he applied to point (i). [45] At 193B to C, Lord Goff said "the law of tort is the general law out of which the parties can, if they wish, contract", and that the correct approach is to determine whether there would otherwise be a tortious liability arising out of an assumption of responsibility and concomitant reliance, and "then to inquire whether or not that liability is excluded by the contract because the latter is inconsistent with it". That is essentially the approach he adopted when he turned to consider the contention that "the indirect Names and the managing agents, as parties to the chain of contracts…must be taken to have thereby structured their relationship so as to exclude any duty of care owed directly by the managing agents to the indirect Names in tort" – 195A to B. He then said that he saw "no reason in principle" why an adviser could not owe, at the same time, a contractual duty of care to the next person in the chain and a tortious duty of care to another person further along the chain. He went on, in a passage more fully quoted by Longmore LJ, to observe at 195G that "in many cases in which a contractual chain comparable to that in the present case is constructed it may well prove to be inconsistent with an assumption of responsibility which has the effect of…short-circuiting the contractual structure put in place by the parties". [46] So far as "gap-filling" is concerned, Lord Steyn's observation in the Williams case cannot mean that a tortious duty can only arise where there is a "liability gap": that would be inconsistent with the whole basis of the reasoning and decision in the Henderson case. Lord Steyn's point in this connection was, I think, that there are cases involving contractual duties, where, if the law of tort cannot be invoked, as a matter of policy, there would be a "liability gap" which would be unacceptable (as in Smith v Eric S Bush[1990] 1 AC 831 and White v Jones[1995] 2 AC 207 ). That aspect of the law of tort has no bearing on the present case: the fact that the law of tort can be invoked where there is a "liability gap" in certain exceptional cases does not mean that it can never be invoked in a case where there is no "liability gap". [47] Thus, the question in a point (ii) case, as in a point (i) case, is whether, in relation to the advice he gave, the adviser assumed responsibility to the claimant, in the light of the contractual context, as well as all the other circumstances, in which the advice was given. The way in which Lord Goff expressed himself in more than one place in his speech in the Henderson case, including some of the brief passages I have quoted, suggests that it is for the adviser to establish that the contractual context negatives an assumption of responsibility, not for the claimant to show that the assumption survives notwithstanding that context. [48] Like Longmore LJ, I do not think that the answer can depend on whether one asks first whether, absent the contractual context, there would be an assumption of responsibility, and secondly whether the positive answer to that question is vitiated by the contractual context; or whether one asks the single question whether, in all the circumstances, including the contractual context, there was an assumption of responsibility. Whether or not one adopts the two-stage approach may depend on the facts of the particular case, or even on the way the case has been argued. [49] In the present case, there were a number of factors which together satisfy me that Moore-Bick J was quite right to conclude that UBK assumed responsibility to the Fund in relation to the advice and other assessments it agreed to provide under the TSA, notwithstanding the contractual structure the parties adopted.”
“[190] I draw all these eminent authorities together in the following summary in the context of this case: (a) There are in effect two types or manifestations of duties of care which may arise in relation to economic loss, firstly, out of a negligent misstatement or misrepresentation and, secondly, where there is a relationship akin to contract or the non-contractual provision of services. There is no simple formula or common denominator to determine whether a duty of care, in relation at least to economic loss cases, arises or not. (b) The Courts have traditionally observed some caution and conservatism in economic loss cases. Attempts to open the floodgates, such as in Anns v London Borough of Merton, have ultimately been rejected. An incremental approach is favoured. (c) It is always necessary to consider the circumstances and context, commercial, contractual and factual, including the contractual structure, in which the inter-relationship between the parties to and by whom tortious duties are said to be owed arises. Thus, it is not every careless misstatement which is actionable or gives rise to a duty of care. Foreseeability of loss is not enough. (d) It is necessary for the party seeking to establish a duty of care to establish that the duty relates to the kind of loss which it has suffered. One must determine the scope of any duty of care. (e) In considering the first type of duty of care, it is relevant to determine if the statement giver is being asked to give and is giving advice to the recipient. It is then necessary to establish that the statement giver is fully aware of the nature of the particular transaction which the recipient has in contemplation and that its statement would be relied upon by the recipient and, finally, that the recipient has to rely upon the statement in entering into the transaction in question. (f) In considering the second type of duty of care, it is material to consider whether the relationship between the parties is akin to contract or whether the party alleged to owe the duty was asked by the person to whom the duty is said to be owed to provide services to or for the benefit of that person. Reliance is important also in this type of negligence to link the damage suffered to the breach of duty. (g) Although the voluntary assumption of responsibility test is not mandatory, it is a useful guide in determining if a duty of care of either sort arises. It is an objective test. The threefold test (of reasonable foreseeability of the economic loss, proximity and fairness, justice and reasonableness) provides no simple answer where, in a new situation, a duty of care is said to arise. These tests are all helpful but are not always determinative. (h) So far as disclaimers are concerned, they are simply one factor, albeit possibly an important one, in determining whether a duty of care arises. One cannot, usually, voluntarily undertake a responsibility when one tells all concerned that one is not accepting such responsibility. (i) The context of and the circumstances in which statements are made by one party to another need to be considered to determine not only if there is a duty but also the scope of any duty. The facts that a statement is made by A to B, that A knows that B will rely upon it and that B does rely upon it are not or at least not always enough to found a duty of care. [919] One needs to determine what responsibility, if any, judged objectively was assumed by MM towards MCL in this case. One can have regard, amongst other matters, to: (a) The contractual nexus or lack of contractual nexus between the party said to owe the duty of care and the party said to have been owed it; (b) What was said in writing and orally by [the engineers] to [the main contractor] and in what context it was said; (c) Any disclaimers issued by [the engineers] to [the main contractor] in relation to what was said; (d) What was said to [the engineers] or mutually understood by [the main contractor] and [the engineers] as to why information was sought; put another way, what was the express or necessarily implied purpose for the information being sought and supplied.”
“[50] In such circumstances it is inconceivable, in my judgment, that any reasonable businessman would have considered that KPMG was voluntarily assuming an unlimited responsibility towards potential investors in Dragon. This would apply to direct investors, but applies with even greater force to an investor such as Arrowhead which was investing at several removes. If the question had been raised in some notional conversation between Arrowhead and KPMG, it is obvious that KPMG would not have been prepared to accept such an unlimited responsibility. This is underlined by Mr. Simmonite's reference in his e-mail dated9 December 2003 (see [14] above) to the "high risk nature of the business", as a result of which it would be unusual for a bank to be willing to treat VAT repayments as an asset for the purpose of lending. While this was not a communication to Arrowhead, the information which it contains must have been obvious to Arrowhead whose role was to provide finance which was not obtainable from more readily available sources, and is therefore part of the relevant background against which the parties' conduct is to be assessed. Similarly, while Arrowhead probably did not know of the particular express exclusion in KPMG's general terms of business of any third party rights, this was not an unusual term and was the sort of term which a reasonable businessman would expect to find there. [51] Although KPMG knew that its involvement was being described to potential investors by Dragon, there is objectively no reason to suppose that it was prepared to accept any responsibility other than its responsibility to Dragon in accordance with the terms of its engagement letter, let alone responsibility to a whole chain of investors such as was put in place in this case. KPMG in my judgment did not assume responsibility to Arrowhead, but (in Lord Hoffmann's terms) was only discharging its duty to Dragon. Far from the relationship between Arrowhead and KPMG having all the indicia of contract save for consideration, there was no direct contact between them until a relatively late stage and one of the obvious and important indicia of a contractual relationship in such a context, namely an engagement letter defining KPMG's services and the extent of its liability, was missing. [52] Accordingly, to hold that there was a voluntary assumption of responsibility by KPMG towards Arrowhead would fly in the face of the reasonable expectations of businessmen. The only reasonable inference from the parties' conduct against the background of all the circumstances of the case is that no such responsibility was assumed.”
“[59] I would accept that in some contexts the defendant's knowledge of and consent to the fact that his advice is being passed on by his client to a third party, who will rely on it for the purpose of making an investment (using that word in a broad sense), may be sufficient to enable the third party to demonstrate sufficient foreseeability and proximity, and that the context may also show that it is fair, just and reasonable in such circumstances to impose a duty of care owed by the defendant to the third party. That is generally more likely to be the case when the third party claimant is a consumer and the context is an ordinary transaction such as the purchase of a house (as in Smith v. Bush) than in a carefully structured business context such as the present case, where the claimant was a sophisticated investor dealing with the known risk of not recovering VAT repayments as a result of the "HMCE threat". As the cases make clear, in determining what is fair, just and reasonable, context is all important. [59] I would be prepared to assume for present purposes that Arrowhead is able to satisfy the requirements of foreseeability and (though with some hesitation) proximity. Even so, however, in my judgment it would not be fair, just and reasonable to impose a duty of care on KPMG. This is for essentially the same reason that I have concluded that the case based on assumption of responsibility must fail. That is to say, it would not be fair, just and reasonable to impose a duty of care on KPMG which could result in unlimited liability (or at any rate, liability up to the full amount of the loans to be advanced by Arrowhead, together with a high rate of interest on such loans) when it would have been obvious to all concerned, first that KPMG's relationship with its client, Dragon, was governed by an engagement letter which was likely to contain limitations on the extent of KPMG's liability and very possibly an exclusion of liability to third parties, second that the business in which Dragon proposed to engage was a high risk business, and third that KPMG would not have been prepared to accept such a responsibility to Arrowhead if it had been asked to do so.”
“the fact that the judge found that there was no contract does not mean that the parties' relationship could not be akin to a contractual one. The judge found at [182] that it was so akin, observing that the services "were all provided in a professional context and on a professional footing" and that the services were "freely accepted by the Burgesses. The Burgesses were her clients (albeit not in a contractual sense) and they owned the land in respect of which the services were performed.”
“[54] In order to recover in the tort of negligent misstatement the claimant must show that he relied on the statement in question: James McNaughton Paper Group Ld v Hicks Anderson & Co[1991] 2 QB 113 ,126. It must operate upon his mind in such a way that he suffers loss on account of his reliance e.g. by buying at too high, or selling at too low, a price, or making an agreement or doing something which he would not otherwise have made or done: Chitty 31st Ed 6-035; Smith v Chadwick[1884] 9 App Cas 187 ,195/6. [55] In the present case the negligent statements relied on were the statements contained in the signed Certificate eventually provided to the relevant claimant. But the claimants cannot have relied on such statements in committing themselves to the agreements to purchase because those statements were not then in existence.”