White and another v Jones and others

This appeal concerned whether a solicitor retained by a testator to prepare a will owes a duty of care in tort to an intended beneficiary when the solicitor's negligent delay or omission causes the testator's testamentary intention to fail. The majority held that such a duty can arise by an extension of the principle of assumption of responsibility under Hedley Byrne & Co Ltd v Heller & Partners Ltd and related authorities: where the solicitor voluntarily undertakes the task of putting the testator's testamentary intention into effect and it is reasonably foreseeable that an identified beneficiary will be deprived if the task is negligently performed or omitted, the solicitor owes a duty to that beneficiary. The duty can cover negligent omissions and pure economic/expectation loss; it is subject to any contractual terms between solicitor and client that exclude or limit liability. The House rejected arguments based on strict privity, on the exclusion of expectation loss from tort, and on the infeasibility of sensible limits, while recognising that boundaries must be worked out by future cases.

Background and facts.

Mr Arthur Barratt executed a will in March 1986 excluding his daughters after a family rift. He later reconciled with them and instructed solicitors Philip Baker King & Co, through the first defendant Mr John Jones, to prepare a fresh will providing legacies to his daughters. The firm received a written instruction on 17 July 1986 but delayed taking steps; Mr Barratt died on 14 September 1986 before a new witnessed will was prepared. The earlier will remained in force and the daughters received nothing. The daughters sued the solicitors in negligence for loss of the testamentary benefit.

Procedural posture.

• Trial: Turner J. dismissed the claim, holding Ross v Caunters inapplicable and loss too speculative.
• Court of Appeal: reversed (reported at [1993] 3 W.L.R. 730), holding solicitors owed a duty and awarding damages to the daughters.
• House of Lords: appeal dismissed (majority), affirming the Court of Appeal.

Nature of the relief sought. The claim sought damages in negligence from the testator's solicitors for the loss of testamentary benefits which would have been received under a will that the solicitors negligently failed to prepare and procure for execution.

Issues framed by the court.

• Whether a solicitor owes a duty of care in tort to an intended beneficiary under a will where the solicitor negligently fails to give effect to the testator's instructions.
• Whether the Hedley Byrne principle of assumption of responsibility can support such a duty, including liability for negligent omissions and for pure economic/expectation loss.
• Whether established doctrines (privity, jus quaesitum tertio and the distinction between contract and tort) preclude such a remedy.
• How any duty should be limited to avoid unbounded liability.

Court's reasoning (concise).

• The majority (Lords Goff, Browne-Wilkinson, Mustill and Nolan) concluded that where a solicitor undertakes to prepare a will and it is reasonably foreseeable that identified beneficiaries will be deprived by negligent delay or omission, the solicitor has assumed responsibility extending to those beneficiaries. The Hedley Byrne principle supports this extension and permits recovery for pure economic or expectation loss in appropriate cases. The duty can include liability for omissions once the duty is assumed. Contractual terms between solicitor and testator that limit or exclude liability remain relevant.
• The House examined comparative and doctrinal arguments (including Ross v Caunters, German doctrines such as Vertrag mit Schutzwirkung fur Dritte and Drittschadensliquidation, the Albazero line and statute law dealing with transferred loss) and concluded that a tortious solution by way of assumption of responsibility is the appropriate and workable remedy in the class of cases identified.
• Dissent (Lord Keith): he would have allowed the appeal, emphasising privity, conceptual difficulties with creating a jus quaesitum tertio by tort, and the inappropriateness of extending existing authorities.

Wider context. The majority acknowledged conceptual difficulties and the need for sensible boundaries, reviewed comparative law and prior authorities, and indicated that practical limits (e.g. identifiable beneficiaries, foreseeability and any contractual terms) constrain the principle.

Appeal dismissed. By a majority the House affirmed the Court of Appeal and held that a solicitor retained to prepare a will may owe a duty of care in tort to an intended beneficiary by way of an extension of the assumption of responsibility principle (Hedley Byrne). That duty can include negligent omissions and permit recovery for pure economic/expectation loss where (among other things) the beneficiary is identifiable and it is reasonably foreseeable that negligence by the solicitor will deprive the beneficiary. The duty is subject to any contractual terms between solicitor and client. Lord Keith dissented, preferring to uphold traditional limits based on privity and conceptual objections.

Trial: Turner J (claim dismissed). Court of Appeal (3 March 1993) [1993] 3 W.L.R. 730 (appeal allowed). Appeal to the House of Lords: [1995] UKHL 5 (appeal dismissed; Court of Appeal decision affirmed).