Solicitors' Liability Towards Third Parties: Back Into the Troubled Waters of the Contract/Tort Divide
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01886.x |
| Published date | 01 July 1993 |
| Date | 01 July 1993 |
me Modem Law Review
[Vol.
56
the such a test would adequately describe the conduct that ought to be
regarded as theftuous. If Gomez precipitates such a major statutory overhaul of the
offence of theft, then perhaps all will not have been in vain.
Solicitors
’
Liability Towards Third Parties: Back Into
the Troubled Waters
of
the Contract/Tort Divide
Werner Lorenz* and Basil Markesinis**
Introductory Remarks
In white v Jones’ the Court of Appeal was asked to consider the continued vitality
of
Ross
v Caunters2 in the post-Murphy v Brentwood DC3 era. An additional
reason for attempting to escape the Ross ruling was that in the instant case the
negligence of the solicitor, which deprived the beneficiaries of the intended legacy,
consisted of failing to draw up the will that the defendants had agreed to prepare
for his client, rather than advising him badly about the witnessing requirements.
This double-pronged attack failed, it is submitted rightly, to shake the court’s belief
in the soundness and applicability of the
Ross
ruling. The decision raises many
important issues which, for reasons of space, we shall discuss unequally under three
sub-headings.
The Relatively Easy Questions
(i)
Was
Ross
Affected
by
Murphy?
The Court rightly said
‘No.’
Murphy’s opinions make it clear that, at most, Ross
was treated as one of those exceptional cases that lay outside the rule their Lordships
were trying to fashion. This must be right since the economic and policy arguments
that may have (implicitly) dictated the Murphy result are not duplicated in
ROSS.~
Nor, it is submitted, is the Murphy decision as unassailable as it may appear by
virtue of the fact that it was delivered by a seven-judge Bench. Its doctrinal
weaknesses, stressed by eminent judges5 and academics,6 will in due course come
home to roost. Counsel should thus not be encouraged to use Murphy to cut down
further the ambit of tortious redress.
26
*D
Iur
(Heidelberg); D
Iur
hc (Copenhagen); Emeritus Professor of Comparative Law in the University
of Munich and Director of the Institute for International Law at
the
University of Munich.
**D
Iur
(Athen), MA, PhD, LLD (Cantab), D
Iur
hc
(Ghent); Denning Professor of Comparative Law
in the University of London; Professor of Anglo-American Law in the University
of
Leiden.
See further Giles and Uglow,
ante
n 20.
1
2 [1980] Ch 297.
3
[1991]
1
AC 398.
4
The
Times,
9 March 1993.
See Markesinis and Deakin, ‘The Random Element of Their Lordships’ Infallible Judgment: An
Economic and Comparative Analysis of the Tort of Negligence from
Anns
to
Murphy’
(1992)
55
MLR
619
et
seq,
esp 622-632.
eg
Sir
Robin Cooke in (1991) 107 LQR 46.
eg Professor Fleming (1990) 106 LQR 525; Peter Cane in
Torf
Law
and
Economic
Interests
(OUP,
5
6 1991) 511-518.
558
0
The Modern
Law Review
Limited
1993
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