Negligent Misstatement, Threats andd the Scope of the Hedley Byrne Principle

Date01 May 1999
Published date01 May 1999
Negligent Misstatement, Threats and the Scope of the
Hedley Byrne Principle
Richard Mullender*
In recent years, senior members of the judiciary have emphasised the breadth of the
principle in Hedley Byrne & Co Ltd vHeller & Partners Ltd which, of course,
makes negligent misstatements actionable.1Hedley Byrne’s breadth was, for
example, a prominent theme in Lord Goff’s speech in Henderson vMerrett
Syndicates Ltd.2His Lordship’s words have recently been rehearsed by the Court
of Appeal in Welton and Another vNorth Cornwall District Council.3In this case,
a unanimous Court has held that the Hedley Byrne principle is broad enough to
encompass threats issued by an environmental health officer employed by a local
In one respect, the Court of Appeal’s decision appears cautious. The liability rule
established in Welton is confined to fact-situations of the sort on which the
plaintiffs’ claim was based. This point notwithstanding, the decision reached by the
Court can be regarded as bold. Hitherto, threats have not been identified as falling
within the Hedley Byrne principle. Both the reasons for regarding the Court’s
decision as cautious and those for viewing it as bold are examined in this piece.
Further, the decision is criticised on three grounds. First, the Court’s claim to have
specified a liability rule that falls squarely within Hedley Byrne is identified as
unconvincing. Secondly, it is argued that the Court has responded to Welton in a
manner that has undermined the integrity of the Hedley Byrne principle. Thirdly,
an argument is advanced in support of the view that the claim in Welton should
have been identified as disclosing a novel form of actionable wrong, uncom-
prehended by existing heads of liability.
The facts and first instance decision
The plaintiffs ran a guest house in Cornwall. Guest houses constitute ‘food
premises’. Hence, they are subject to a (local authority-administered) statutory
scheme of regulation under the Food and Safety Act 1990. This regulatory scheme
has the purpose of promoting the public interest in hygienic food preparation. To
this end, environmental health officers can, inter alia, inspect food premises. In
October 1990, one such officer, Mr Brian Evans, called at the plaintiffs’ guest
ßThe Modern Law Review Limited 1999 (MLR 62:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 425
* Law School, University of Newcastle-upon-Tyne.
2 [1995] 2 AC 145, 178–181. (Lord Goff’s speech was approved by his four colleagues.) Hedley Byrne’s
breadth has recently been emphasised by the House of Lords in Williams and Another vNatural Life
Health Foods Ltd and Another [1998] 2 All ER 577, 581–582, per Lord Steyn. (Lord Steyn’s four
colleagues approved his speech.)

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