[T]his is in truth a suit in a Court of Equity for Damages. ( Evans v Bicknell (1801) 6 Ves 174, 183, 31 ER 998, 1002 per Lord Eldon LC)
[A]lthough, strictly speaking, [equitable wrongs] cannot be regarded as torts, this edition includes sections on breach of fiduciary duty and breach of confidence.
(AM Dugdale (ed), Clerk and Lindsell on Torts, 20th edn (London, Sweet & Maxwell, 2010) para 1-06)
Some centuries ago, it was accepted that, in a range of circumstances, the Chancery Court—hence equity—could provide a surrogate tort remedy to compensate for economic loss occasioned by reliance upon another's misrepresentation or nonÂdisclosure.
That role was greatly limited in the nineteenth century. For tort law, it seemingly was all but spent in any event once Nocton v Ashburton[634] had fulfilled its purpose as providing a stepping stone to the decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd.[635] Some may not have been wholly convinced that Hedley Byrne ought to belong in negligence at all.[636] But there it now was, and it was for the law of tort to make of it what it would.Move forward to the 1980s and a totally different story requires telling. Again it involved equity jurisprudence. Again it concerned compensation for economic loss. In Canada, Australia and New Zealand, but to a significantly lesser extent in England, what is variously described as ‘ compensation' or ‘ equitable damages' was being made available as a discretionary remedy[637] for a wide range of equitable wrongs that could occasion economic loss. Nocton v Ashburton was integral to this as well. What is notable is that these wrongs fall within the penumbrae of the law of tort and, I would emphasise, of contract law. This revolution and its provenance are the stories of this chapter.
The one preliminary comment that needs to be made is that there were clear implications in this emerging order for how we should today conceptualise not only tort and contract, but also equity's place in them. Explicit recognition of this was not slow in coming.
From the 1990s the editors of major English practitioner texts began to accept that tort law, as conventionally conceived, did not adequately or appropriately encompass the whole subject matter that their works reasonably ought to be seen to embrace. So beginning with its 16th edition (1989), and with little by way of fanfare, Clerk and Lindsell on Torts included a chapter on ‘Breach of Confidence'.[638] In its 18th edition (2001) Clerk and Lindsell included as well a chapter on ‘ Breach of Fiduciary Duty', though this time an explanation invoking Professor Birks' view of ‘ civil wrongs' implausibly provided the editors' reasons.[639] By the 19th edition (2006), this chapter was collapsed—more fittingly—into that on ‘Professional Liability', on the ground that, while ‘previously peripheral', fiduciÂary law was ‘now central' to any treatment of professional liability.Clerk and Lindsell had obviously learned from Jackson and Powell on ProfesÂsional Liability (as it is now entitled).[640] Given the latter text's subject matter, its authors, in their 5th edition (2002), rightly acknowledged that ‘the law relating to fiduciary duties [and] confidence... arises for increasing, frequent consideration in relation to professionals.'[641] By their 6th edition, the authors accepted as well that apart from their intrinsic significance to their text, ‘ fiduciary duties. provide important context for claims based on contract, tort and statute'. [642] The long road leading to the integration of equity into a coherent law of obligations was presaged here. That possibility, though, is not presently of immediate concern.
I.