Professional Negligence: Some Further Limiting Factors
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00922.x |
| Published date | 01 May 1992 |
| Author | Richard O'Dair |
| Date | 01 May 1992 |
May
19921
Professionul Negligence: Some Further Limiting Factors
to exercise a legal right against another suggests that the obstacles
in
the way of
disclosure are not especially onerous. The legislative policy is, therefore,
in
some
danger of being swept aside. One obvious response to the decision in
XLtd
v
Morgun-
Grumpian Ltd and Others
is to consider the repeal of the ‘interests of justice’
exception, an argument which is strongest where, as here, the public interest
in
‘the prevention of crime’ could have been argued by those seeking disclosure. In
the meantime,
it
is interesting to speculate whether, as Lord Templeman confidently
declared, the order to disclose
in
the present case conforms with our obligations
under Article
10
of the European Convention on Human Rights.24
Professional Negligence: Some Further Limiting Factors
Richard
0
’Dair*
In
a number
of
recent decisions, as is well known, the Courts have shown that
whatever might have been the position
in
the
1970s
and early 1980s, they are now
anxious to limit the liability of the professional for his negligence to those with whom
he’ is
in
a contractual relationship or one closely analogous to a contractual
relationship.? Rather less well known is the way
in
which the law of limitation has
also
been developing favourably to the negligent professional. In particular, recent
cases have greatly increased the difficulties posed for plaintiffs by the problem of
latent damage, thereby exposing the weaknesses of the reforms introduced by the
Latent Damage Act 1986.’ This note will review the cases
in
which these
developments have occurred.
The starting point is Lord Keith’s speech
in
Murphy
v
Brentwood Disrrict
Co~ncil.~
The crucial passage occurs
in
the context of his Lordship’s critique of
24 119911
1
AC
I.
at
49.
Article
10
provides that:
(I)
Everyone has the right to freedom
of
expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers.
The exercise
of
these freedoms. since
it
carries with
it
duties and responsib
subject to such formalities. conditions, restrictions
or
penalties as are prescribed by law and
are necessary
in
a democratic society. in the interests
of
national security, territorial integrity
or
public safety. for the prevention of crime
or
disorder, for the protection
of
health
or
morals,
for the protection of the reputation
or
rights of others,
for
preventing the disclosure of
information received in confidence,
or
for
maintaining the authority and impartiality of the
judiciary.
(2)
*Faculty of Law. University College. London.
I
2
The masculine form of the pronoun is used
in
this note
to
refer
to
both male and female professionals.
The principal decisions are Cupuro
Industriesplc
v
Dickmun
[
19901 2
AC
605;
D
&
F
Estates
v
Church
Cot,itnissioner.s
.for
Englund
und
Wules
[
I9891
AC
177;
and
Murphy
v
Brentuvod
District
Council
[
19911
I
AC
398.
See generally
J.
Stapleton. ‘Duty of Care and Economic Loss: A Wider Agenda’
(1991)
107
LQR
249.
The trend is not, however, uniform: see
Smith
v
Eric
S.
Bush
[
19901
AC
831.
See generally
N.J.
Mullaney. ’Latent Damage
-
An Australian Perspective’ (hereafter ‘Mullaney
Damage’)
(1991)
54
MLR
2
16
and ‘Reform
of
the Law of Latent Damage’ (hereafter ‘Mullaney Reform’)
op
cit
at
349.
supru
n
2.
The substantive aspects
of
Murphy
have already been reviewed by the writer in an earlier
edition of this review. See
‘Murphy
v
BrentunodDi.strict
Council
-
A House with Firm Foundations?’
54
MLR
561.
570
(hereafter ‘Firm Foundations’).
3
4
405
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