Barker Kit, Grantham Ross. The Law of Misstatements: 50 Years on from Hedley Byrne v Heller. Hart Publishing,2015. — 410 p.. 2015

2013 was the 50th anniversary of the House of Lords’ landmark decision in Hedley Byrne v Heller. This international collection of essays brings together leading experts from five of the most important jurisdictions in which the case has been received (the United Kingdom, the United States, New Zealand, Canada and Australia) to reappraise its implications from a number of complementary perspectives – historical, theoretical, conceptual, doctrinal and comparative. It explores modern developments in the law of misstatement in each of the jurisdictions; examines the case’s profound effects on the conceptual apparatus of the law of negligence more generally; explores the intersections between misstatement liabilities in contract, tort, equity and under statutory consumer protection provisions and critically assesses the ways in which advisor liabilities have come to be limited and distributed under systems of ‘joint and several’ and ‘proportionate’ liability respectively. Inspired by Hedley Byrne, the purpose of the collection is to reflect on the case’s echoes, effects and analogues throughout the private law and to provide a platform for thinking about the ways in which liabilities for misstatement and pure economic loss should be modelled in the modern day.

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PREFACE

Part 1 Issues

Hedley Byrne v Heller: Issues at the Beginning of the Twenty-First Century

KIT BARKER

Introduction

Aims and Overview

History, Concepts and Theory

Intersections and Distributions of Liability

Conclusion

Part 2 History, Concepts and Theory

Hedley Byrne v Heller in Australia: ‘Never has there been such a Judicial Jamboree'

Writing in the Australian Law Journal in 1964,7 DM Gordon,8 began by observing that the decision ‘presents more than one drastic break with tradition' and concluded that it reflected the growing ‘Americanisation of English law'.9

The Law Prior to Hedley Byrne

Hedley Byrne v Heller: The Immediate Aftermath of the Decision in Australia

Caltex: Working Out the Principles Behind Pure Economic Loss

Pure Economic Loss, Hedley Byrne and the Rise of Proximity

A Multifactoral Approach and Hedley Byrne

The Assumption of Responsibility

ANDREW ROBERTSON AND JULIA WANG[253]

In addition to being a watershed case with respect to liability for negligent misstatement and the negligent infliction of pure economic loss, Hedley Byrne & Co Ltd v Heller & Partners Ltd1 is significant for its revival of the idea of the assumption of responsibility as the foundation for a duty of care in the law of negligence.2

The Assumption of Responsibility in Hedley Byrne

Is the Obligation Voluntarily Assumed?

The Voluntary Entry into a Relationship

The Assumption of Responsibility as Proximity

Conclusion

The Basis of the Hedley Byrne Action

ALLAN BEEVER

Introduction

Identifying the Hedley Byrne Action

The Negligence Plus Model

Negligent Misrepresentation and the Neighbour Principle

Imposed and Assumed Obligations

The Doctrine of Consideration and Hedley Byrne

Assumption of Responsibility and the Law of Negligence

Conclusion

The Curious Incident of the Dog that did Bark in the Night-Time: What Mischief does Hedley Byrne v Heller Correct?

DAVID CAMPBELL*

[S]uffering and evil are nature's admonitions; they cannot be got rid of; and the impatient attempts of benevolence to banish them from the world by legislation, before benevolence has learned their object and their end, have always been productive of more evil than good.1

Introduction

The Mischief in Hedley Byrne

Why was Contract Thought not to be Good Enough?

What Did Derry v Peek Decide?

Conclusion

Part 3 Intersections and Distributions of Liability Equity as Tort?

PAUL FINN

[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)

Introduction

The Rise and Destruction of the Jurisdiction to Make Good Representations[665]

The Destruction of an Equitable Jurisdiction

The Unconscionable Insistence on Strict Legal Rights to Property