Whither Remoteness? Wellesley Partners LLP v Withers LLP

AuthorAaron Taylor
Published date01 July 2016
Date01 July 2016
Whither Remoteness? Wellesley Partners LLP v
Withers LLP
Aaron Taylor
In Wellesley vWithers, the Court of Appeal held that where a defendant is concurrently liable
in tort and contract, the contractual rules for the remoteness of loss must apply. Two principal
reasons emerge from the judgments. The first, that each party has had the chance to alert
the other to unusual risks, is valid but often unconvincing. The second is more original and
compelling: that the nature of any responsibility assumed in tort is distinct from, but wholly
defined by, the valid contract. This note seeks to develop that argument. It then addresses the
uncertain issue of concurrent liability in equity. It suggests that in a case in which any fiduciary
duties arise out of, and are defined by, a valid contract, it may now be appropriate to apply
the contractual remoteness rules to a concurrent claim for breach of contract and equitable
It is now axiomatic that a supplier of professional services will usually owe its
client concurrent duties in contract and tort.1Where this is so, does a claimant
have the option to ‘pick and choose’ between contractual and tortious remedies
rules in framing its claim?2This is the question addressed by the Court of
Appeal in Wellesley Partners LLP vWithers LLP,3a decision of considerable
conceptual importance for the developing law on concurrent liability, and
practical importance for providers of professional services.
As far as limitation periods are concerned, it is clear that ‘picking and
choosing’ is allowed. In the leading case of Henderson vMerrett, the House of
Postgraduate student, Keble College, Oxford. I am extremely grateful to Professor Edwin Peel,
Hasan Dindjer, and the anonymous reviewer for their valuable comments on a draft of this note. The
usual disclaimer applies.
1 This was authoritatively established by the House of Lords in Henderson vMerrett Syndicates Ltd
(No 1) [1995] 2 AC 145, following Oliver J in Midland Bank vHett, Stubbs & Kemp [1979] Ch
384. This will not be so if the contract explicitly excludes any tortious duty of care. An interesting
analysis of exceptions to the general rule is given by J. O’Sullivan in ‘Suing in tort where no
contractual claim will lie - a bird’seye view’ (2007) 23 PN 165. She further explores some of the
shortcomings of concurrent liability in ‘The meaning of “damage” in pure financial loss cases:
contract and tort collide’ (2012) 28 PN 248.
2 It is impor tant to keep in mind that the present discussion presupposes a claimant seeking to
frame its entire claim in either form; there is no suggestion that it might pick and choose different
contractual and tortious rules within a single claim. Confusion results from losing sight of this
fundamental point.
3 [2015] EWCA Civ 1146; [2016] CILL 3757.
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(4) MLR 678–705
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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