White and Another v Jones and Another

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Goff of Chieveley,Lord Browne-Wilkinson,Lord Mustill,Lord Nolan
Judgment Date16 February 1995
Judgment citation (vLex)[1995] UKHL J0216-1
Date16 February 1995

[1995] UKHL J0216-1

House of Lords

Lord Keith of Kinkel

Lord Goff of Chieveley

Lord Browne-Wilkinson

Lord Mustill

Lord Nolan

White and Another
(Respondents)
and
Jones and Others
(Appellants)
1

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Lord Keith of Kinkel

My Lords,

2

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Mustill, and I agree with it.

3

I am unable to reconcile the allowance of the plaintiffs' claim with principle, or to accept that to do so would represent an appropriate advance on the incremental basis from decided cases. The position is that the defendant Mr. Jones contracted with the testator, Mr. Barratt, to perform a particular service for him, namely to take the appropriate steps to enable Mr. Barratt's revised testamentary intentions to receive effect. He negligently failed to take these steps with due expedition with the result that upon Mr. Barratt's death the plaintiffs did not become entitled to the testamentary provisions which but for that failure they would have been taken.

4

The contractual duty which Mr. Jones owed to the testator was to secure that his testamentary intention was put into effective legal form promptly. The plaintiffs' case is that precisely the same duty was owed to them by Mr. Jones in tort. If the intended effect of the contract between Mr. Jones and the testator had been that an immediate benefit, provided by Mr. Jones, should be conferred on the plaintiffs, and by reason of Mr. Jones's deliberate act or his negligence the plaintiffs had failed to obtain the benefit, the plaintiffs would have had no cause of action against Mr. Jones for breach of contract, because English law does not admit of jus quaesitum tertio. Nor would they have had any cause of action against him in tort, for the law would not, I think, allow the rule against jus quaesitum tertio to be circumvented in that way. To admit the plaintiffs' claim in the present case would in substance, in my opinion, be to give them the benefit of a contract to which they were not parties.

5

Further there is, in my opinion, no decided case the grounds of decision in which are capable of being extended incrementally and by way of analogy so as to admit of a remedy in tort being made available to the plaintiffs. Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 was a case where the defendants, in response to a request from the plaintiffs, had made a representation about the financial soundness of a certain concern, in reliance upon which the plaintiffs had acted and in doing so had suffered financial loss. This House held that but for a disclaimer of liability the defendants would have been liable in damages for negligence in the making of the representation. In that case there was a direct relationship between the parties creating such proximity as to give rise to a duty of care. Here there was no relationship between the plaintiffs and Mr. Jones, nor did Mr. Jones do or say anything upon which the plaintiffs acted to their prejudice. No damage was done by Mr. Jones to any existing financial or other interest of the plaintiffs. The intention to benefit the plaintiffs existed only in the mind of the testator, and if it had received legal effect would have given them only a spes successions of an ambulatory character

6

In Henderson v. Merrett Syndicates Ltd. [1994] 3 W.L.R. 761 the managing agents were engaged in conducting the financial affairs of the Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due care which involved the Names in enormous losses. It was held by this House that the managing agents owed to the Names a duty of care in tort, it being irrelevant that no contractual relationship existed between them. Here Mr. Jones was not engaged in managing any aspect of the plaintiffs' affairs. He was employed only to deal with a particular aspect of the testator's affairs.

7

Upon the whole matter I have found the conceptual difficulties involved in the plaintiffs' claim, which are fully recognised by all your Lordships, to be too formidable to be resolved by any process of reasoning compatible with existing principles of law.

8

I would therefore allow the appeal

Lord Goff of Chieveley

My Lords,

9

In this appeal, your Lordships' House has to consider for the first time the much discussed question whether an intended beneficiary under a will is entitled to recover damages from the testator's solicitors by reason of whose negligence the testator's intention to benefit him under the will has failed to be carried into effect. In Ross v. Caunters [1980] Ch. 297, a case in which the will failed because, through the negligence of the testator's solicitors, the will was not duly attested, Sir Robert Megarry V.C. held that the disappointed beneficiary under the ineffective will was entitled to recover damages from the solicitors in negligence. In the present case, the testator's solicitors negligently delayed the preparation of a fresh will in place of a previous will which the testator had decided to revoke, and the testator died before the new will was prepared. The plaintiffs were the two daughters of the testator who would have benefited under the fresh will but received nothing under the previous will which, by reason of the solicitors' delay, remained unrevoked. It was held by the Court of Appeal, reversing the decision of Turner J., that the plaintiffs were entitled to recover damages from the solicitors in negligence. The question which your Lordships have to decide is whether, in cases such as these, the solicitors are liable to the intended beneficiaries who, as a result of their negligence, have failed to receive the benefit which the testator intended they should receive.

10

The facts

11

I shall now set out the facts of the present case, and for this purpose I shall gratefully adopt the account of the Vice-Chancellor, Sir Donald Nicholls, set out in [1993] 3 W.L.R. 730, 733E-734H, which reads as follows:

"The action arises out of an unfortunate family rift. Mr. Arthur Barratt and his wife lived at 84, Whitecroft Road, Sheldon, Birmingham. They had two children, Carol and Pauline. Carol married twice, first to Peter Gould, and later to David White. She lived next door at 82, Whitecroft Road. She moved there to be close to her parents after her father had a stroke in 1983. Carol had three girls: Mandy and Maxine by her first marriage, Karen by her second. Pauline, the other daughter, also lived nearby, three or four minutes' walk away. She was married to John Heath, and they had two boys, Stephen and Andrew.

Mrs. Barratt died on 23 January 1986. There was then a family row between Mr. Barratt and Pauline (Mrs. Heath) about the removal of a money box belonging to Mrs. Barratt. Carol (Mrs. White) sided with her sister. Mr. Barratt felt so strongly that he made a will cutting both his daughters out of his estate. There was no evidence that he had previously made a will. The will, executed on 4 March 1986, was prepared by the defendant firm of solicitors, Philip Baker King & Co. The first defendant, Mr. John Jones, was a legal executive employed by the firm. He had known Mr. Barratt for some years. Mr. Barratt's estate consisted principally of a house worth £27,000, about £1,000 in a building society, and insurances totalling some £1,000. By his will Mr. Barratt appointed his former son-in-law Peter Gould, his granddaughter Mandy, and Mr. Jones to be his executors. He gave £100 each to two of his grandchildren, Karen and Andrew. Apart from these small legacies he left his estate equally between Peter Gould, Mandy and Maxine. He left nothing to either daughter.

Happily, the estrangement between Mr. Barratt and his daughters did not continue for long. By mid-June 1986 they were reconciled. Mr. Barratt became concerned at the terms of the will he had made. He told his daughters what he had done and what he wished to happen. He told Mr. Jones on the telephone that he wanted to change his will. Carol White also spoke to Mr. Jones on the telephone about her father's wishes. Mr. Jones suggested that Mr. Barratt should jot down what he wanted and he, Mr. Jones, would deal with it. Mr. Barratt destroyed his copy of the March 1986 will. Mr. Heath was in the habit of writing letters for Mr. Barratt. In the middle of July he wrote out a letter addressed to Mr. Jones setting forth instructions for the new will: Carol and Pauline were to have £9,000 each, the five grandchildren £1,600 each, Carol and Pauline were to be responsible for the legal costs, and they were to dispose of the contents of the house. The letter said: 'I have destroyed the original will … I trust the above is as required.' The letter was signed by Mr. Barratt. It was posted to the solicitors and received by them on 17 July.

Regrettably, nothing was done by Mr. Jones to give effect to these instructions for a month. Appointments were made for Mr. Jones to call round to see Mr. Barratt on three successive Thursdays but Mr. Jones did not keep them. Then on 16 August he dictated an internal memorandum to a member of the firm's probate department, which read:

'Re: Arthur Thomas Barrett [sic] — New Will. Keith Amos drew up a will which is filed away under reference 30C. Please see Mr. Barrett's instructions in his letter received on 17 July. I have considered the matter and feel possibly a new will should be drawn up if an addendum cannot be made. Would you be kind enough to do it as soon as possible and let me know the amount of your costs. Mr. Barrett is a friend of mine and I [will] pop along to his house to witness the will and obtain costs. I have an appointment to see Mr. Barrett on [blank] and if at all possible could you let me have the will by that date.'

On the following day Mr. Jones went away on holiday. A...

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