Introduction

It is unarguable that the creation of tort liability for negligent misstatement by the 1963 House of Lords’ decision in Hedley Byrne and Co Ltd v Heller and Partners Ltd² has, I would say in a somewhat supererogatory fashion even at the time,³ and far more so when the position is assessed now, as in this volume, very sub­stantially added to the difficulties of the doctrinal formulation and the practical application of the law of negligence.

* I am grateful to Allan Beever, Paul Mitchell, Jonathan Morgan, John Murphy and the editors of this volume for their comments.

¹ Editorial, ‘Administration of Towns’ (13 May 1848) 246 The Economist 536.

² Hedley Byrne and Co Ltd v Heller and Partners Ltd (Hedley Byrne’). The Court of Appeal deci­sion is reported at [ 1962] 1 QB 396 (CA). The transcript of the unreported High Court judgment of McNair J, handed down on 20 December 1960, is held in the House of Lords’ Library. The reference code by which it most conveniently may be found by searching the Parliamentary Archives database (Portcullis) is HL/PO/JUU/4/3/1107. The transcript can be found in the Appendix to this volume. I am grateful to Paul Mitchell and Ms Jennie Lynch of the Parliamentary Archives for help in obtaining this transcript. Due to Ms Lynch’s efforts, the entire House of Lords Library file of Hedley Byrne case papers is now open.

³ The incident that led to Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL) occurred on the night of 21-22 September 1962 and the writ was issued on 6 February 1965.

⁴ This is not strictly correct. The Report that led to the Act was published in 1962: Law Reform Committee, Tenth Report: Innocent Misrepresentation (Cmnd 1782, 1962). contractual doctrine of misrepresentation, prior to the knockout blow landed by the Misrepresentation Act 1967 ss 1-2,5 but so far as possible I shall avoid the detail of contractual misrepresentation as I wish to focus specifically on tort liability out­side of contract.

In this chapter, I will argue that, putting fraud and ‘particular’ ‘special relation­ships’ to one side, contract is the only legitimate basis of liability for negligent misstatement, but I will do so in a way which, as our understandings of consid­eration and contract (and indeed Donoghue liability) are by no means congruent, and as I confine the meaning of ‘assumption of responsibility’ to the claimed jus­tification of tortious liability,^[547] significantly differs from Beever’s. Though I will say something about both the negligence and the assumption of responsibility models, and give, I trust, a novel statement of the reason why the latter signally fails to ground negligent misstatement, I will not enter into the detail of the case law or the academic literature after Hedley Byrne. I write this chapter to argue that, as nothing of value has been gained by the creation of the tort of negligent misstatement, the best way to avoid the difficulties it has generated is not to try to make it reasonably justiciable but to abolish it.

I am generally inclined to abolish the tort of negligence as it has been given shape by Donoghue, and in particular I am convinced that the personal injury system should be abolished.^[548] But the personal injury system at least addresses, however inadequately, the undoubted mischief of injury inflicted on a claimant who (let us allow for the purposes of argument) played no part other than that of passive victim.^[549] In contrast, the negligent misstatement claimant played an essential active part in causing the loss by voluntarily relying on the statement in order to gain an economic benefit, and as her reliance on the statement being non-negligent is completely unjustifiable by the standard which we normally use to decide whether an economic benefit has been legitimately obtained, which is that it has been paid for, there is normally no possibility of ‘reasonable reliance' on a negligent misstatement.

In Silver Blaze, one of the most successful of the Sherlock Holmes stories, that a dog did not bark at a man with criminal intent who by night entered premises the dog was guarding is recognised by Holmes as a ‘curious incident' which is the key to unravel­ling the crime.^[550] The dog should have barked but didn't. Hedley Byrne is an incident which gives rise to a curiosity of an opposite sort. There would not merely have been nothing wrong in leaving Hedley Byrne and Co to bear its loss, but it would have entirely been right to do so. To those, like myself, who believe that voluntary exchange should prima facie be the means of obtaining economic goods, there appears to be no good general reason not to use the law of contract to determine the extent of the legal protection of reliance on others' statements. Certainly the law after Hedley Byrne discloses no such reason. Hedley Byrne itself addressed no actual mischief, and that it was from the outset worse than pointless has rendered the law of negligent mis­statement particularly open to incoherent judicial legislation, whether that legislation is analysed using the negligence or the assumption of responsibility models. Hedley Byrne is a curious incident of a dog barking when there was nothing to bark about. And, as anyone who has a dog knows, there is very little that is more annoying.

I must confess that I cannot claim much originality for my criticism of Hedley Byrne itself. Leaving aside the contributions of numerous others, before Hedley Byrne had even appeared in The Law Reports, the essence of what I will say had been said by the late Mr Weir in the first of those casenotes which established his mastery of the form.^[551] But I do hope to explain why the House of Lords barked when it had no need to do so, and to sort out the misunderstandings about the nature of economic action that evidently still continue to confound our evaluation of Hedley Byrne.

II.