[HOUSE OF LORDS]

AND

AND

AND

AND

AND

[CONJOINED APPEALS]

Insurance - Lloyd's - Managing agent - Agency and sub-agency agreements with Names - Conduct and management of underwriting - Whether agents owing duty of care in tort - Whether members' agent liable for default of managing agent - Lloyd's Agency Agreement (byelaw No. 1 of 1985)

Negligence - Duty of care to whom? - Lloyd's agent - Liability to Names - Whether concurrent liability in tort and contract

The plaintiffs, underwriting members ("Names") at Lloyd's, brought proceedings against the defendant underwriting agents, who were members' agents, managing agents or combined agents, in which they alleged that the defendants were negligent in their conduct of the Names' underwriting affairs and in breach of their legal obligations. In order to simplify and shorten the trial and preparation of the actions Saville J. ordered, with the consent and co-operation of the parties, determination of a number of preliminary issues of principle common to many of the actions, relating to the existence, nature and scope of the alleged legal

obligations of underwriting agents. Until 1990 each Name entered into one or more underwriting agency agreements with either a members' agent or a combined agent governing the relationship between the Name and the members' agent, or between the Name and the combined agent in the capacity of members' agent. If the Name became a member of a syndicate which was managed by the combined agent, the agreement also governed the relationship between the Name and the combined agent acting in the capacity of managing agent. In such a case the Name was known as a direct Name. If the Name became a member of a syndicate which was managed by another managing agent, the Name's underwriting agent (whether or not a combined agent) entered into a sub-agency agreement appointing the managing agent as sub-agent to act in relation to the Name. In such a case the Name was known as an indirect Name. Before 1 January 1987, there were no prescribed forms of underwriting agency or sub-agency agreements, but standard clauses were in common use, and forms of agreement used by underwriting agents were similar, if not identical. Agreements of that nature related to the Merrett actions. By the Lloyd's Act 1982, byelaw No. 1 of 1985 forms were prescribed for the agency agreement and the sub-agency agreement which were made compulsory as from 1 January 1987, and those were the relevant forms in the Feltrim actions and the Gooda Walker actions.

In the Merrett actions there were three groups of actions brought by Names who were members of syndicate 418/417. In all three groups of actions there were complaints of negligent closure of one or more years of account; in one of them there was also a complaint as to the writing of specific contracts of insurance, in relation to which an issue of limitation also arose.

In the Feltrim actions indirect Names brought actions against the managing agents and about 40 members' agents alleging negligent underwriting during the years 1987-1989 arising out of their syndicates' participation in the London market excess of loss business.

In the Gooda Walker actions the Names alleged against their members' agents that they were contractually liable for failure by the managing agents of the syndicates of which the Names were members, to which the members' agents had delegated the function of underwriting, to exercise reasonable care and skill in relation to such underwriting.

On the hearing of the preliminary issues Saville J. found in favour of the Names. The Court of Appeal affirmed his decision. In the Merrett appeals the issue was the liability either in tort or for breach of fiduciary duty of the managing agents, whether to direct Names (where the appellants were combined agents), or to indirect names. In the Gooda Walker appeals the sole issue arose in relation to the agency agreements entered into between Names and the members' agents. In the Feltrim appeals issues arose both as to the liability of the managing agents, either in tort or as fiduciary to the indirect Names who were members of the syndicates in 1987-1989, and as to the members' agents' liability in relation to the agency agreements entered into between them and Names, as in the Gooda Walker appeals.

On the appeals:-

Held, dismissing the appeals, (1) that a duty of care was owed by managing agents in tort both to direct Names and indirect Names, and that the existence of such a duty of care was not

excluded by virtue of the relevant contractual regime either under the pre-1985 agreements, or under the terms of the agreement prescribed by the 1985 byelaw, and that the Names were free to pursue their remedy either in contract or in tort (post, pp. 169F,182E-G, 194C-F, 204C-D, 206H-207A).

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, H.L.(E.) and Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 348 applied.

Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. [1986] A.C. 80, P.C. considered.

(2) That on the true construction of the prescribed agency agreement the members' agents had agreed to underwrite on behalf of the Name at Lloyd's, and the fact that they delegated that task to the managing agents did not alter their implicit promise that reasonable care and skill would be exercised in carrying out that agreement; that the circumstances that the managing agents themselves were under a similar, though non-contractual, duty to the Name did not alter the obligations which the members agents had agreed to assume by their bargain (post, pp. 169F, 197B-C, 203C-H,204C-D, 206H-207A).

De Bussche v. Alt (1878) 8 Ch.D. 286; Powell & Thomas v. Evan Jones & Co. [1905] 1 K.B. 11, C.A. and Tarn v. Scanlan [1928] A.C. 34, H.L.(E.) distinguished.

Decision of the Court of Appeal affirmed.

The following cases are referred to in their Lordships' opinions:

Aluminium Products (Qld.) Pty. Ltd. v. Hill [1981] Qd.R. 33

Arenson v. Arenson [1977] A.C. 405; [1975] 3 W.L.R. 815; [1975] 3 All E.R. 901, H.L.(E.)

Bagot v. Stevens Scanlan & Co. Ltd. [1966] 1 Q.B. 197; [1964] 3 W.L.R. 1162; [1964] 3 All E.R. 577

Batty v. Metropolitan Property Realisations Ltd. [1978] Q.B. 554; [1978] 2 W.L.R. 500; [1978] 2 All E.R. 445, C.A.

Bean v. Wade (1885) 2 T.L.R. 157, C.A.

Bell v. Peter Browne & Co. [1990] 2 Q.B. 495; [1990] 3 W.L.R. 510; [1990] 3 All E.R. 124, C.A.

Boorman v. Brown (1842) 3 Q.B. 511; sub nom. Brown v. Boorman (1844) 11 Cl. & F. 1, H.L.(E.)

Braconnot (J.) et Cie. v. Compagnie des Messageries Maritimes [1975] 1 Lloyd's Rep. 372

Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164; [1951] 1 All E.R. 426, C.A.

Cann v. Willson (1888) 39 Ch.D. 39

Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605; [1990] 2 W.L.R. 358; [1990] 1 All E.R. 568, H.L.(E.)

Central Trust Co. v. Rafuse (1986) 31 D.L.R. (4th) 481

Cook v. Swinfen [1967] 1 W.L.R. 457; [1967] 1 All E.R. 299, C.A.

De Bussche v. Alt (1878) 8 Ch.D. 286

Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc.)

Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801; [1976] 2 W.L.R. 583; [1976] 2 All E.R. 5, C.A.

Finlay v. Murtagh [1979] I.R. 249

Forster v. Outred & Co. [1982] 1 W.L.R. 86; [1982] 2 All E.R. 753, C.A.

Grant v. Australian Knitting Mills Ltd. [1936] A.C. 85, P.C.

Groom v. Crocker [1939] 1 K.B. 194; [1938] 2 All E.R. 394, C.A.

Hawkins v. Clayton (1988) 164 C.L.R. 539

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575, H.L.(E.)

Heywood v. Wellers [1976] Q.B. 446; [1976] 2 W.L.R. 101; [1976] 1 All E.R. 300, C.A.

Howell v. Young (1826) 5 B. & C. 259

Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 A.C. 520; [1982] 3 W.L.R. 477; [1982] 3 All E.R. 201, H.L.(Sc.)

Kelly v. Cooper [1993] A.C. 205; [1992] 3 W.L.R. 936, P.C.

Lister v. Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555; [1957] 2 W.L.R. 158; [1957] 1 All E.R. 125, H.L.(E.)

Macpherson & Kelly v. Kevin J. Prunty & Associates [1983] 1 V.R. 573

Manby and Hawksford, In re (1856) 26 L.J.Ch. 313

Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57; [1959] 2 W.L.R. 702; [1959] 2 All E.R. 345

McClaren Maycroft & Co. v. Fletcher Development Co. Ltd. [1973] 2 N.Z.L.R. 100

Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 384; [1978] 3 W.L.R. 167; [1978] 3 All E.R. 571

Murphy v. Brentwood District Council [1991] 1 A.C. 398; [1990] 3 W.L.R. 414; [1990] 2 All E.R. 908, H.L.(E.)

National Bank of Greece S.A. v. Pinios Shipping Co. No. 1 [1990] 1 A.C. 637; [1989] 3 W.L.R. 1330, H.L.(E.)

Nocton v. Lord Ashburton [1914] A.C. 932, H.L.(E.)

Powell & Thomas v. Evan Jones & Co. [1905] 1 K.B. 11, C.A.

Punjab National Bank v. de Boinville [1992] 1 Lloyd's Rep. 7; [1992] 1 W.L.R. 1138; [1992] 3 All E.R. 104; [1992] 1 Lloyd's Rep. 7, 28, C.A.

Robinson v. National Bank of Scotland Ltd., 1916 S.C. (H.L.) 154

Sawyer v. Goodwin (1867) 36 L.J.Ch. 578

Simaan General Contracting Co. v. Pilkington Glass Ltd. (No. 2) [1988] Q.B. 758; [1988] 2 W.L.R. 761; [1988] 1 All E.R. 791, C.A.

Smith v. Eric S. Bush [1990] 1 A.C. 831; [1989] 2 W.L.R. 790; [1989] 2 All E.R. 514, H.L.(E.)

Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. [1986] A.C. 80; [1985] 3 W.L.R. 317; [1985] 2 All E.R. 947, P.C.

Tarn v. Scanlan [1928] A.C. 34, H.L.(E.)

Youell v. Bland Welch & Co. Ltd. (No. 2) [1990] 2 Lloyd's Rep. 431

The following additional cases were cited in argument:

Anns v. Merton London Borough Council [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492, H.L.(E.)

Ashmore v. Corporation of Lloyd's (No. 2) [1992] 2 Lloyd's Rep. 620

Balsamo v. Medici [1984] 1 W.L.R. 951; [1984] 2 All E.R. 304

Barlee Marine Corporation v. Mountain [1987] 1 Lloyd's Rep. 471

Boobyer v. David Holman & Co. Ltd. [1993] 1 Lloyd's Rep. 96

Calico Printers Association v. Barclays Bank Ltd. (1930) 36 Com.Cas. 71

Cheshire & Co. v. Vaughan Bros. & Co. [1920] 3 K.B. 240, C.A.

Clark v. Kirby-Smith [1964] Ch. 506; [1964] 3 W.L.R. 239; [1964] 2 All E.R. 835

Coupland v. Arabian Gulf Oil Co. [1983] 1 W.L.R. 1136; [1983] 2 All E.R. 434; [1983] 3 All E.R. 226, Hodgson J. and C.A.

Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004; [1970] 2 W.L.R. 1140; [1970] 2 All E.R. 294, H.L.(E.)

Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373; [1972] 2 W.L.R. 299; [1972] 1 All E.R. 462, C.A.

Ecossaise Steamship Co. (Ltd.) v. Lloyd, Low and Co. (1890) 7 T.L.R 76, C.A.

Forsikringsaktieselskapet Vesta v. Butcher [1989] A.C. 852; [1988] 3 W.L.R. 565; [1988] 2 All E.R. 43, C.A.

Gran Gelato Ltd. v. Richcliff (Group) Ltd. [1992] Ch. 560; [1992] 2 W.L.R. 867; [1992] 1 All E.R. 865

Greater Nottingham Co-operative Society Ltd. v. Cementation Piling and Foundations Ltd. [1989] Q.B. 71; [1988] 3 W.L.R. 396; [1988] 2 All E.R. 971, C.A.

Iron Trade Mutual Insurance Co. Ltd. v. J. K. Buckenham Ltd. [1989] 2 Lloyd's Rep. 85; [1990] 1 All E.R. 808

Jarvis v. Moy, Davis, Smith, Vandervell & Co. [1936] 1 K.B. 399, C.A.

Lancashire and Cheshire Association of Baptist Churches v. Howard & Seddon Partnership [1993] 3 All E.R. 467

Mackersy v. Ramsays (1843) 9 Cl. & F. 818

Norwich City Council v. Harvey [1989] 1 W.L.R. 828; [1989] 2 All E.R. 1180, C.A.

Pacific Associates Inc. v. Baxter [1990] 1 Q.B. 993; [1989] 3 W.L.R. 1150; [1989] 2 All E.R. 159, C.A.

Peabody Donation Fund (Governors of) v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C. 210; [1984] 3 W.L.R. 953; [1984] 3 All E.R. 329, H.L.(E.)

Pirelli General Cable Works Ltd. v. Oscar Faber & Partners [1983] 2 A.C. 1; [1983] 2 W.L.R. 6; [1983] 1 All E.R. 65, H.L.(E.)

Rich (Marc) & Co. A.G. v. Bishop Rock Marine Co. Ltd. [1994] 1 W.L.R. 1071

Robertson v. Fleming (1861) 4 Macq. 167, H.L.(Sc.)

Ross v. Caunters [1980] Ch. 297; [1979] 3 W.L.R. 605; [1979] 3 All E.R. 580

Royal Products Ltd. v. Midland Bank Ltd. [1981] 2 Lloyd's Rep. 194

Scally v. Southern Health and Social Services Board [1992] 1 A.C. 294; [1991] 3 W.L.R. 778; [1991] 4 All E.R. 563, H.L.(N.I.)

Societe Commerciale de Reassurance v. ERAS (International) Ltd. (formerly ERAS (U.K.)) [1992] 1 Lloyd's Rep. 570; [1992] 2 All E.R. 82n., C.A.

Trevor Ivory Ltd. v. Anderson [1992] 2 N.Z.L.R. 517

White v. Jones [1995] 2 A.C. 207, 216; [1993] 3 W.L.R. 730; [1993] 3 All E.R. 481, C.A.

THE MERRETT ACTIONS

APPEAL from the Court of Appeal.

This was an appeal by leave dated 28 February 1994 of the House of Lords (Lord Keith of Kinkel, Lord Mustill and Lord Nolan) by the appellants, who included Merrett Syndicates Ltd. and Merrett Underwriting Agency Ltd., from the judgment dated 13 December 1993 and order dated 6 January 1994 of the Court of Appeal (Sir Thomas Bingham M.R., Hoffmann and Henry L.JJ.) dismissing the appeal of the appellants from the judgment dated 12 October 1993 and order dated 8 November 1993 of Saville J., in favour of the respondents, who included Ian McIntosh Henderson, William Hallam-Eames, and Elise Heckman Hughes, Names at Lloyd's. The respondents and other Names at Lloyd's had brought actions for damages against the appellants who included the Names' underwriting agents, some being members' agents, some managing agents, and some both. The judge ordered that certain preliminary issues

of principle mainly directed to deciding whether underwriting agents (and if so, which) owed a duty of care to their Names, should be determined before the trial of the actions and it was the determination of those issues which was the subject of the appeal.

The facts are stated in the opinion of Lord Goff of Chieveley.

THE FELTRIM ACTIONS

THE GOODA WALKER ACTIONS

APPEALS from the Court of Appeal.

These appeals by leave dated 28 February 1994 of the House of Lords (Lord Keith of Kinkel, Lord Mustill and Lord Nolan) arose from the judgment dated 13 December 1993 of the Court of Appeal (Sir Thomas Bingham M.R., Hoffmann and Henry L.JJ.) dismissing the appeals of the appellants from the judgments dated 12 October 1993 of Saville J. in favour of the respondents. In the appeal in the Feltrim actions, the appellants were Feltrim Underwriting Agencies Ltd., who were managing agents only, and a number of other underwriting agents, called in the proceedings the Feltrim members' agents. In the appeal in the Gooda Walker actions, the appellants were a number of members' agents called in the proceedings the Gooda Walker members' agents. The respondents were, or had been at all relevant times, Names at Lloyd's, or were the personal representatives of deceased persons who had been Names at Lloyd's at the relevant times. The Gooda Walker managing agents took no part in the proceedings.

The facts are stated in the opinion of Lord Goff of Chieveley.

Anthony Temple Q.C., John Rowland and Aidan Christie for the appellants in the Merrett actions. As to the question expressed by the Court of Appeal as question 1, relating to indirect Names, namely, "Did managing agents (who were not also members' agents) owe Names a duty under the pre-1985 forms of agreement to carry out their underwriting functions with reasonable care and skill?" the first sub-issue is whether the law of tort imposes any duty on the managing agents not to cause purely economic loss to the Names. A written contractual chain was deliberately created: Name - members' agent - managing agent. The agreement was in terms directed to the creation of a sub-agency. The test for estab- lishing a duty of care in tort has three requirements: (i) foreseeability of damage, (ii) proximity and (iii) whether it is "fair, just and reasonable" for there to be a duty of care.

Foreseeability is not an issue. Negligent conduct by the managing agent of underwriting (in the sense of subscribing to a risk) will forseeably give rise to economic damage to a Name.

As to proximity, which represents the degree of closeness of the relationship required before a court will find a duty in tort (see Governors of Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C. 210, 240), the necessary relationship of proximity does not arise, given that (a) the parties regulated their relationship by contract and (b) this is a pure economic loss case. The relevant relationship has to be sufficiently close and direct. In the case of an indirect Name,

the relationship is neither close nor direct; on the contrary, an intervening party has been deliberately and contractually imposed.

As to the fair, just and reasonable requirement, where the parties have chosen to express their relationship in a written agreement, that is a compelling fact against there being a duty in tort. This is particularly so in commercial contracts.

A duty of care in tort can only arise from a relationship. The relationship between the appellants and the indirect Names had the following features. (a) Each indirect Name chose to become a contracting party with a members' agent, and chose not to contract directly with the managing agent. (b) Each contract between the indirect Name and the members' agent expressly contemplated and authorised the delegation by the members' agent to the managing agent of the underwriting which is the subject of the complaint. (c) The contract was in writing, comprehensive and professionally drafted. (d) The contractual scheme itself gave remedies in contract to the Names for the very matters of which they now complain and was wholly inconsistent with any duty of care being owed in tort: see Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Ltd. [1986] A.C. 80, 107B-108G. In so far as the Names have lost their remedies, that arises because of Parliamentary enactments, the Limitation Act 1980 and Latent Damage Act 1986. (e) The venture as between each Name, members' agent and managing agent was commercial. It was not a case of a member of the public necessarily having to consult a professional person, such as a solicitor or barrister.

The principle to be adopted is expressed in the maxim pacta sunt servanda. A finding of an independent duty of due skill and care in tort is unfair because it deprives the managing agents of the bargain, and the consequences of the bargain, they made. Such a finding substitutes new and potentially different rights and obligations. It would potentially give rise to joint liability as between joint tortfeasors, and the spreading of that tortious liability given the substitution of a tripartite tortious relationship in place of the contractual chain. If, for instance, managing agents were liable to indirect Names in tort and if, in addition, members' agents were to owe a concurrent duty to the indirect Names in tort as well as in contract, it would be open to Names to contend that members' agents and the managing agents were joint tortfeasors in respect of the same damage. In this way solvent managing agents and members' agent would or might become liable as joint tortfeasors in respect of liabilities for the same damage to which they would never be exposed if only the chosen contractual route was adopted. Thus if one group is not financially viable the other, for instance, the managing agents, would become 100 per cent. liable for the alleged defaults of the members' agent. The creation of joint liability in tort is precisely where, in practice, the decision in Anns v. Merton London Borough Council [1978] A.C. 728 fell into error. It remains to be seen what limitation or other defences would arise in respect of each members' agent, and each element of loss claimed by each respective members' agent.

As to limitation, the contractual scheme itself gave rise to remedies to the Names for the matters in relation to which they sue. They had contractual remedies. In some cases these are likely to be barred by the

operation of the Limitation Act 1980. If indirect Names are entitled to sue in tort they may well avoid the limitation periods. It is impermissible for the Names to pray in aid different results derived from the application of the Limitation Acts as a reason for finding a duty of care in tort. To find such a duty in tort (a) deprives the parties of their contractual expectation, and (b) avoids the policy of Parliament which is that there are different limitation regimes for contract and tort.

As to latent damage, see Iron Trade Mutual Insurance Co. Ltd. v. J. K. Buckenham Ltd. [1989] 2 Lloyd's Rep. 85; Lancashire and Cheshire Association of Baptist Churches v. Howard & Seddon Partnership [1993] 3 All E.R. 467, 475; Scally v. Southern Health and Social Services Board [1992] 1 A.C. 294, 301H, 302H et seq.; SociŽtŽ Commerciale RŽassurance v. ERAS (International) Ltd. (formerly ERAS (U.K.)) (The Eras Eil Actions) [1992] 1 Lloyd's Rep. 570, 597-600.

The question arises whether the case falls within an existing category of tortious liability which is clearly established. Punjab National Bank v. de Boinville [1992] 1 W.L.R. 1138 does not establish a category within which managing agents fall. An increase in the ambit of the duty of care requires an incremental approach and justification by the plaintiff or plaintiffs concerned. The Punjab case is no authority for the proposition that insurance brokers generally owe a duty of care to third parties. [Reference was made to Ross v. Caunters [1980] Ch. 297; Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 616-618, 619B and Youell v. Bland Welch & Co. Ltd. (No. 2) [1990] 2 Lloyd's Rep. 431.]

A finding of tort liability to indirect Names gives rise to the prospect of a massive increase in tort liability on a far wider basis than concerns managing agents. If the Names' proposed incremental increase were to be accepted it would thereby be established that in cases of sub-agency, absent privity of contract or a specific assumption of responsibility, the sub-agent would be liable directly in tort to the principal. If this were to be adopted Calico Printers Association v. Barclays Bank Ltd. (1930) 36 Com.Cas. 71, Royal Products Ltd. v. Midland Bank Ltd. [1981] 2 Lloyd's Rep. 194 and Balsamo v. Medici [1984] 1 W.L.R. 951 would have to be distinguished or overruled. Further, liability would be imposed on a basis as wide as, if not wider than, that imposed in Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 A.C. 520. But that decision should be regarded as an authority confined to a unique set of facts. Alternatively, it should not be followed.

The so-called "contract fallacy," that is, the idea that if there is no liability in contract there can be none in tort, does not arise. In Donoghue v. Stevenson [1932] A.C. 562 the plaintiff was never in contractual relationship with the manufacturer but that did not prevent a successful claim in tort. In the present case the plaintiff is part of the contractual chain.

As to whether employees are liable in tort for economic loss, see an analogous New Zealand case of a one-man company: Trevor Ivory Ltd. v. Anderson [1992] N.Z.L.R. 517, 520, 526. [Reference was also made to Simaan General Contracting Co. v. Pilkington Glass Ltd. (No. 2) [1988] Q.B. 758, 781-786.]

In the present case the managing agent employs an active underwriter who accepts or rejects the risks. This is a pertinent factor for consideration under the just and reasonable heading: see Greater Nottingham Co-operative Society Ltd. v. Cementation Piling and Foundations Ltd. [1989] Q.B. 71, 109A and Pacific Associates Inc. v. Baxter [1990] 1 Q.B. 993. The Names do not consult the managing agent or the underwriter. It should be noted that Barlee Marine Corporation v. Mountain (The Leegas) [1987] 1 Lloyd's Rep. 471, 475 was concerned not with the general duty of care in the conduct and management of the underwriting for the syndicate but with a situation outside the contractual framework, where one underwriter took on the role of leading underwriter. There was clearly scope for an assumption of duty by the leading underwriter to other syndicates (even to each of the Names on the syndicates) not to commit them to something negligently. It was the antithesis of the present case since it presumed that there was no contractual framework within which to regulate the underwriter's conduct.

The second issue is: did managing agents (who were also members' agents) owe Names a non-contractual duty under the pre-1985 forms of agreement to carry out their underwriting functions with reasonable care and skill?

No court has previously held that underwriting agents owe concurrent duties of due skill and care in contract and tort. There is no justification for the further increase in the categories of concurrent duties. On the contrary, the guidance of the Privy Council in Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. [1986] A.C. 80 should be given practical effect by restricting the existence and scope of concurrent duties in tort in pure economic loss cases. In favour of concurrent duties are Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801; Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 384; Pirelli General Cable Works Ltd. v. Oscar Faber & Partners [1983] 2 A.C. 1; Youell v. Bland Welch & Co. Ltd. (No. 2) [1990] 2 Lloyd's Rep. 431, 459; Smith v. Eric S. Bush [1990] 1 A.C. 831; Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 and Punjab National Bank v. de Boinville [1992] 1 W.L.R. 1138. Against concurrent duties are Jarvis v. Moy, Davis, Smith, Vandervell & Co. [1936] 1 K.B. 399; Groom v. Crocker [1939] 1 K.B. 194; Bagot v. Stevens Scanlan & Co. Ltd. [1966] 1 Q.B. 197; Cook v. Swinfen [1967] 1 W.L.R. 457; Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. [1986] A.C. 80, 107; Simaan General Contracting Co. v. Pilkington Glass Ltd. (No. 2) [1988] Q.B. 758; Norwich City Council v. Harvey [1989] 1 W.L.R. 828; Greater Nottingham Co-operative Society v. Cementation Piling and Foundations Ltd. [1989] Q.B. 71 and Pacific Associates Inc. v. Baxter [1990] 1 Q.B. 993.

The present state of the law relating to architects, brokers, solicitors, and the like provides no warrant for a finding that in the case of managing agents concurrent duties of due skill and care are owed in contract and in tort. [Reference was made to Bagot v. Stevens Scanlan & Co. Ltd. [1966] 1 Q.B. 197 and Jarvis v. Moy, Davis, Smith, Vandervell & Co. [1936] 1 K.B. 399.] Medical practitioners are a special case. Historically they were considered to be liable in tort as the damage suffered was physical. The doctor also often did not have a contract. The position of solicitors

is of fundamental importance. It is necessary to distinguish between a solicitor's

liability to his client (with whom he has a contractual relationship) and his liability to third parties (with whom he has no contractual relationship). In the latter case, any duty of care must necessarily arise in tort. In the former, the issue is whether in addition to the contractual duty of care, a free-standing and independent duty of care in tort also arises.

There are two principal conflicting decisions on the question of whether a solicitor owes his client a duty of care in both contract and in tort. The Court of Appeal in Groom v. Crocker [1939] 1 K.B. 194 held that a solicitor's duty to his client arose only in contract, and not in tort. That decision was followed in the Bagot case [1966] 1 Q.B. 197; Cook v. Swinfen [1967] 1 W.L.R. 457; Clark v. Kirby-Smith [1964] Ch. 506 and Heywood v. Wellers [1976] Q.B. 446. However, Oliver J. in Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 384 discerned a line of authorities based upon Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 and Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801 that permitted him to depart from the rule in Groom v. Crocker [1939] 1 K.B. 194 and to impose concurrent duties of care in contract and tort. Oliver J.'s interpretation of Hedley Byrne and Esso Petroleum v. Mardon was incorrect and he was wrong to introduce into the solicitor's relationship with his client a free-standing and independent duty of care in tort. Those cases were concerned with a duty of care arising in situations where there was no contractual relationship. Oliver J. sought to establish that Groom v. Crocker [1939] 1 K.B. 194 was inconsistent with older authorities. There was a long analysis of the cases beginning with Howell v. Young (1826) 5 B. & C. 259, but Oliver J. confused the historical importance placed upon the technicalities of the forms of action with the emergence during this century of a free-standing independent duty of care in tort. That a person could bring an action in assumpsit or in case based on a breach of a contractual duty did not mean that there was a duty of care arising independently of the contract. Brown v. Boorman (1844) 11 Cl. & F. 1 established the existence of a concurrent tort, not a tort independent of the contract. In modern parlance such tort would be described as contractual negligence: a negligent breach of contract or breach of contract simpliciter. [Reference was also made to Robertson v. Fleming (1861) 4 Macq. 167; Bean v. Wade (1885) 2 T.L.R. 157; Nocton v. Lord Ashburton [1914] A.C. 932, 945, 955, 956, 958, 964 and J. M. Kaye, "The Liability of Solicitors in Tort" (1984) 100 L.Q.R. 680 et seq.]

None of the leading cases on duty of care in tort requires the conclusion that a duty of care in tort arises whether or not there is a contract Donoghue v. Stevenson [1932] A.C. 562; Hedley Byrne & Co. v. Heller & Partners Ltd. [1964] A.C. 465; Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801 and others all involved cases where there was no contractual relationship. Nevertheless, in many cases since Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 384 it was assumed or conceded that there were concurrent duties: see Pirelli General Cable Works Ltd. v. Oscar Faber & Partners [1983] 2 A.C. 1; Forsikringsaktieselskape Vesta v. Butcher [1989] A.C. 852; Youell v. Bland Welch & Co. Ltd. (No. 2) [1990] 2 Lloyd's Rep. 431; Smith v. Eric S. Bush [1990] A.C. 831; Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 and Punjab National Bank v. de Boinville [1992] 1 Lloyd's Rep. 7. The respondents in their printed

case rely on, inter alia, Lister v. Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555, but that is a case of master and servant and is equivocal. Thus Lord Radcliffe's observations, at p. 587, are referable as much to a contractual as to a tortious situation.

The second sub-issue is whether the "absolute discretion" conferred on the managing agents as to the acceptance of risks precludes the implication of any duty other than a duty to act honestly, rationally, and loyally. There is an unbroken line of authority for the proposition that "absolute discretion" in the context of a private law agreement means that the exercise of the power given by the agreement by the recipient of the power cannot be challenged by the donor or beneficiary of the power unless: (a) the power has been exercised in bad faith or (b) (arguably) the exercise of the power is totally unreasonable. The phrase is inconsistent with, and operates to preclude, the imposition of a tortious duty to take reasonable care. Similarly, it is inconsistent with, and operates to preclude, an implied contractual duty of reasonable care. [Reference was made to Ashmore v. Corporation of Lloyd's (No. 2) [1992] 2 Lloyd's Rep. 620, 627.]

The Names' contention on this issue is inconsistent with the decision of Saville J. in Boobyer v. David Holman & Co. Ltd. [1993] 1 Lloyd's Rep. 96. The judgment of Saville J. in the present case is not consonant with that decision and the judge did not attempt to reconcile the two decisions.

This agreement has to be seen in the context of a risk business. The implication is that "we the Names, will not complain if there is a loss unless you the underwriter are dishonest or act in an irrational manner."

The assertion of a fiduciary relationship gives rise to the question whether that relationship creates certain duties characteristically associated with a fiduciary relationship, for example, a duty not to delegate discretions or place fetters on discretions.

The categories of existing fiduciary relationships are reasonably clearly defined and do not include a fiduciary obligation of due skill and care equivalent to the common law duty of due skill and care arising in negligence. The facts of a given case may fall within a common law duty of skill and care but that is a duty derived from the relationship but is not a fiduciary relationship. [Reference was made to Finn, Fiduciary Obligations (1977), pp. 15, 16 and Powell & Thomas v. Evan Jones & Co. [1905] 1 K.B. 11.] A contention for a freestanding fiduciary duty of due skill and care involves a radical change in the law. The law draws a distinction between the concept of due skill and care in tort and fiduciary duties of due skill and care. They are not coterminous: see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, 486, 502, 509, 523. Fiduciary duties can co-exist and arise from a contract. On the supposition that in the present case there is no duty arising in tort, there is no fiduciary duty equating to a common law duty of due skill and care in negligence.

The 1985 byelaw form of agreement did not come into force until 1 January 1987. The byelaw pursuant to which it was introduced did not and was not intended to impose the 1985 byelaw form of agreement in respect of underwriting years of account prior to the year 1987. Although the closing of the 1984 year of account into the 1985 year of account occurred on 21 May 1987, it did not involve the 1987 year of account. The closing of the 1984 year into the 1985 year took place under the

agreements in force prior to the introduction of the 1985 byelaw form on 1 January 1987.

The byelaw introducing the 1985 byelaw form of agreement expressly permitted an underwriting agent to run off the insurance business of an underwriting member, underwritten for a year of account prior to 1 January 1987, in pursuance of the existing agency agreements applicable to years of account prior to 1 January 1987. It is logical for the byelaw to have done so because otherwise Names on the same syndicate for the same year could have differing contractual arrangements with their members' agents depending upon whether or not they continued underwriting as a Name after 1 January 1987. Clearly that would be an unsatisfactory position both for the Names and for the underwriting agents appointed by them.

On a true and proper construction of Lloyd's byelaw No. 1 of 1985 the contractual relationship between (a) the Names on syndicate 418/417 for the 1985 year of account and their respective underwriting agent, and (b) (if applicable) between such underwriting agents (on the one part) and the managing agents of syndicate 418/417 (on the other part) in relation to the acceptance by (or for) that syndicate in about June 1987 of the reinsurance to close syndicate 418/417 for the 1984 underwriting year of account was governed by the pre-1985 byelaw forms of agency and sub-agency agreements.

Anthony Boswood Q.C., Stephen Moriarty and Marcus Smith for the respondents. There are four issues. The first two issues raise respectively the question whether a managing agent of a syndicate at Lloyd's for the years in question owed a duty of care in tort to "indirect" Names and "direct" Names to conduct the underwriting for the account of those Names with reasonable care and skill. The third issue raises the question whether a managing agent, as fiduciary, owes Names (whether "direct" or "indirect") a duty to conduct the underwriting for the account of those Names with reasonable care and skill. The fourth issue, one of far less importance, is concerned with whether the "closing" of the syndicate's 1984 underwriting year of account into its 1985 year of account was governed by the 1985 form of agreement, or by the pre-1985 form of agreement.

The existence of a duty of care involves a three-stage test: (i) foreseeability of damage, which is not in issue; (ii) proximity, which is in issue in that the existence of a contract or contractual chain is said to exclude it; (iii) whether it is fair, just and reasonable to impose the duty. Contract does not automatically exclude a tortious duty of care in any class of case. There is accordingly no difference in principle between bipartite, tripartite or multi-party contracts, or (in the present case) between the positions of direct and indirect Names. Although the diversity of situations with which the tort of negligence has to cope means that there is no singular formula or touchstone for establishing the existence of a duty of care, the fact still remains that, at the most basic level of principle, there is one tort of negligence with underlying principles common to the whole field of that tort: see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, 517 and Murphy v. Brentwood District Council [1991] 1 A.C. 398, 485E-H. Whether or not a duty of care

arises is a question considered by reference to the type of loss the plaintiff is seeking to recover. There are traditionally said to be three types of loss: (i) personal injury, (ii) loss following physical damage to property and (iii) "economic loss." "Economic loss" is, however, too broad and sloppy a definition; at least two different kinds of loss must be distinguished: "expectation loss" (see White v. Jones [1995] 2 A.C. 207, 216) and "subtraction loss," i.e., loss resulting in a diminution of the plaintiff's assets, as in the present case. Subtraction loss is akin to loss of the value of damaged property.

A duty to avoid personal injury will almost always arise when the injury is reasonably foreseeable. A duty to avoid reasonably foreseeable physical loss to property will generally arise (but not where the plaintiff does not own the property or have a proprietary interest in it, so that his loss is purely economic). A duty to avoid economic loss will seldomarise, especially if the loss is an expectation loss rather than a subtraction loss. The reasons for this are, inter alia, that recovery of economic loss may impose unreasonable burdens on people and contracts exist to regulate peoples' economic affairs and expectations. Nevertheless, the fundamental principle must be the same in each class of case: see Marc Rich & Co. A.G. v. Bishop Rock Marine Co. Ltd. [1994] 1 W.L.R. 1071.

Any argument that the existence of a contract (whether a direct contract between A and B or a contractual chain or network) automatically and without more excludes a tortious duty of care runs immediately into the impossible difficulties posed by, inter alia, Donoghue v. Stevenson [1932] A.C. 562, 609-610 and Grant v. Australian Knitting Mills Ltd. [1936] A.C. 85, 102-104. To say that contract automatically excludes tort is to embrace the fallacy partly articulated in the dissenting speech of Lord Buckmaster in Donoghue v. Stevenson [1932] A.C. 562, 577-578. It is for this reason that, as a matter of principle, the decisions and dicta to the effect that a duty of care is, absent anything in the terms of engagement to the contrary, owed by a professional man to his client both in contract and tort must be correct: see Midland Bank Trust Company Ltd. v. Hett, Stubbs and Kemp [1979] Ch. 384, 403-433 and Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 619, per Lord Bridge of Harwich.

For a long period before and after the enunciation of a more generalised principle of negligence in Donoghue v. Stevenson [1932] A.C. 562, the question of whether a person could be liable in tort was approached on a category by category basis. During that period, therefore, it would not necessarily follow from the fact that a surgeon or an innkeeper would owe an independent duty in tort quite apart from any contract (which could be sued upon in tort even if there was a contract) that the same thing would be true of a solicitor, a broker or some other professional person. To found a criticism, however, of a judgment given in 1979 by reference to historical categories of tortious duty recognised pre-Donoghue v. Stevenson is to analyse a 20th century case through 19th century spectacles. Whatever the position may have been before the decision in the Hedley Byrne case, Oliver J. in the Midland Bank case was plainly right to recognise that the question of whether a solicitor owed a concurrent duty in tort to his client required revisiting in the light of the duty of care not to cause economic loss acknowledged by the House of

Lords in the Hedley Byrne case. There is no warrant for confining the Hedley Byrne principle to non-contractual situations: see [1964] A.C. 465, 486, 488-489, 494-495, 502, 509, 514, 523, 528-529, 531-532, 538. It would defy both common sense and legal principle if the Hedley Byrne principle did apply where there was no contract, but did not apply where there was. This raises the question: is the law really that a person who satisfies all the conditions in Hedley Byrne, but who is also charged a nominal fee for the credit reference, deprived of a cause of action in tort (and therefore reliance upon the Latent Damage Act 1986) just because he happens to have a contract? [Reference was made to Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801, 818F-820E; Lister v. Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555; Matthews v Kuwait Bechtel Corporation [1959] 2 Q.B. 57 and Coupland v. Arabian Gulf Oil Co. [1983] 1 W.L.R. 1136.]

If Oliver J.'s reasoning was correct in 1979, it is even more difficult to believe that it has been proved wrong by subsequent developments. Anns v. Merton London Borough Council [1978] A.C. 728 may have been displaced by Murphy v. Brentwood District Council [1991] 1 A.C. 398 since the decision in the Midland Bank case [1979] Ch. 384, but neither that case nor Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373 were anything like central to Oliver J.'s analysis: see [1979] Ch. 384, 427B-428B. What were central to his analysis were the Hedley Byrne case and his view that it was not limited to non-contractual situations. Not only was that a correct view at the time, it is an interpretation actually confirmed by the observations of Lord Keith of Kinkel in the Murphy case itself. Although it is true that cases that proceed upon an assumption, without argument, are of little weight in terms of strict precedent, it is somewhat striking that in several subsequent cases on solicitors' liabilities to have reached the Court of Appeal no one has thought fit even to argue that the solicitors' duties are contractual alone because the Midland Bank case was wrong: see Forster v. Outred & Co. [1982] 1 W.L.R. 86, 99A and Bell v. Peter Browne & Co. [1990] 2 Q.B. 495.

As for the distinction between "positive" and "negative" obligations, the law of tort, ordinarily at least, imposes no positive obligation to act. But if the defendant does voluntarily act, he may (if the relevant conditions are satisfied) come under an obligation to do so carefully: see the Hedley Byrne case [1964] A.C. 465, 495.

The next question to be considered is the "incremental" approach, and the criticism that has been made of the decision of the Court of Appeal in Punjab National Bank v. de Boinville [1992] 1 W.L.R. 1138.

The appellants get off on the wrong tack by even talking of the "incremental" approach in terms of narrow and hard and fast categories like "broker," "managing agent," "innkeeper," "solicitor," and then suggesting that there is some burden of proof upon the plaintiff to show that a duty owed by an insurance broker should be extended to an insurance underwriter as well. If this is taken literally "incrementalism" runs the risk of developing into a sterile debate about correctly identifying the precise category: are insurance brokers, commodity brokers and stockbrokers three categories or one? The great value of the incremental approach is the discipline it provides in requiring courts to look carefully

for a good analogy before recognising a duty of care on the facts of a particular case. But what is a good analogy? Can it be divorced from a consideration (i) of what the material factors were which give rise to a duty of care in one situation where it has been recognised, and (ii) of whether there is any material distinction between that situation and the new one which is said to be analogous. The incremental approach is no more than convenient shorthand for the process of reasoning by analogy described by Lord Diplock in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1058-1061. As such, it is a useful tool of analogical reasoning, not a factual straightjacket.

Far from being an unjustified increment to recognise the duty of care recognised in the Punjab case [1992] 1 W.L.R. 1138, it would have been extremely surprising to have denied its existence. There was ample authority, and every reason in principle, to recognise that an insurance broker owed a client a duty of care in tort as much as in contract: see Forsikringsaktieselskapet Vesta v. Butcher [1989] A.C. 852, 860 and the other cases cited in Youell v. Bland Welch & Co. Ltd. (No. 2) [1990] 2 Lloyd's Rep. 431.

Once the duty of care recognised in the Punjab case is recognised for the legitimate "increment" that it is, the case does provide a compelling analogy with the present case. In the light of the Punjab case, one is bound to ask: what possible justification in principle can there be for saying that, for example, an accountant or surgeon owes a duty in tort as much as in contract to his client, but that a solicitor or insurance broker does not? If an insurance broker does, what rational distinction is there between an insurance broker and an insurance underwriter? Nor, despite the fact that the duty extends beyond the contractual client, is the category recognised in the Punjab case even a very wide one. It is limited by the requirements that (a) it be for reward (which in this case the Names were effectively funding); (b) the services be provided to the other party (in this case not only would the actual identity of each of the Names be known to the managing agent, but the underwriting was expressly being done "for and on behalf of" the Names to whom the service was thereby being provided); (c) the person must rely (and be known to rely) upon the special skill and expertise of the professional. Indeed, the present case is even a stronger one for a duty of care, given the presence of the (admitted) direct fiduciary relationship between managing agency and all Names, and the fact that the managing agent enters into contracts with third parties which bind the Name directly and irrevocably.

Alternatively, if the category which Punjab establishes is a category of "insurance broker," then there can be no material distinction between the circumstances which gave rise to the duty of care owed by the insurance broker, and the circumstances relied upon by the Names in the present case. For this purpose, the distinction between an insurance underwriter and an insurance broker cannot be material. Accordingly, the analogy is so compelling, the increment is more than justified.

The next question for consideration is: why does contract sometimes exclude tort, and sometimes not? There are readily identifiable criteria which determine whether the existence of a contract, or of a contractual chain or network, does or does not exclude a tortious duty of care, and

these can be shown to be of general application, so that a coherent set of rules can be laid down. Perhaps the most important positive criterion is that the relationship between the parties is "akin" or "equivalent" to contract: see the Hedley Byrne case [1964] A.C. 465, 528-529; Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 A.C. 520, 533 and Smith v. Eric S. Bush [1990] 1 A.C. 831, 846. That is certainly the position here.

However, the "akin to contract" terminology risks begging the question what is "akin to contract?" The underlying idea could perhaps better be expressed by a "who for?" test: who is the defendant acting for, or who is his "client?" If his client is the plaintiff that is a strong reason for finding a duty of care, albeit that the defendant's contract is with someone else: see Smith v. Eric S. Bush and Punjab National Bank v. de Boinville [1992] 1 W.L.R. 1138. In the present case, if one asked the active underwriter at Merrett's box "who are you doing this underwriting for?" the answer would be, "the Names on my syndicate, of course." The underwriter would be unlikely to add, "who are either direct Names in contract with Merrett managing agency or indirect Names in contract with many members' agents who have themselves concluded sub-contracts with the Merrett agency." But, if he did, it would not alter the fact that he was doing the underwriting for all his Names.

There are six categories of cases that demonstrate negative criteria, that is, cases pointing away from the existence of a duty of care.

(i) A duty of care will not be imposed where the parties must be taken to have intended their rights and obligations to be governed exclusively by the contract or contracts into which they have entered. Most obviously this will be the case where there is an express provision in an agreement which says so in terms. However, even where there is no such express provision in a contract, the parties may have deliberately created themselves a network or chain of contracts whose risk allocation would be altered by allowing a direct cause of action in tort to cut across those contracts: see The Eras Eil Actions [1992] 1 Lloyd's Rep. 570, 597-598; Simaan General Contracting Co. v. Pilkington Glass Ltd. (No. 2) [1988] Q.B. 758, 782D-E; Greater Nottingham Co-operative Society Ltd. v. Cementation Piling & Foundations Ltd. [1989] Q.B. 71, 106A-B, 109A-C and Pacific Associates Inc. v. Baxter [1990] 1 Q.B. 993, 1020C-1022C, 1023C-1024C, 1028G-1033B, 1039B-D. Similarly, the parties may have contracted against the background of a carefully worked out scheme of liabilities whose risk allocation would again be altered by allowing a direct cause of action in tort: see Marc Rich & Co. A.G. v. Bishop Rock Marine Co. Ltd. [1994] 1 W.L.R. 1071. But whereas voluntary participation in the network of contracts may be a strong indication that the direct cause of action is excluded, this is certainly not always the case: see the Vesta case [1989] A.C. 852. For the duty of care owed by the leading underwriter to the following market in operating a leading underwriter's clause, see Barlee Marine Corporation v. Mountain [1987] 1 Lloyd's Rep. 471.

(ii) Where there is a potential mismatch between either (a) obligations sought to be imposed extra-contractually on a defendant and the obligations of the contract itself, or (b) the obligations imposed in contracts between different parties, a duty of care will again ordinarily not be imposed. As to (a), see Tai Hing Cotton Mill Ltd. v. Liu Chong Hing

Bank Ltd. [1986] A.C. 80, where the extent of any obligation in tort is limited by reference to the contract. As to (b), the most obvious example is where a sub-contract between A and B contains an exclusion clause, so that to give C a right in tort to sue A deprives A of the benefit of his exclusion clause in the contract with B: see Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 A.C. 520, 537A-E, 551E-552C and Norwich City Council v. Harvey [1989] 1 W.L.R. 828, 836H-837A.

(iii) For the purposes of the counter-party cases, a counter-party is a person on whom a plaintiff seeks to impose a non-contractual duty of care in circumstances where the party has an actual or potential divergent interest to that of the plaintiff. Thus, the bank in Hedley Byrne [1964] A.C. 465 was not a counter-party, whereas the petrol company in Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801 was. In order for the law to impose a duty of care on a counter-party, specific facts must exist which indicate that the counter-party is acting for the plaintiff, in view of the normal presumption that the plaintiff should look after his own interests and not be urged to say that he has relied upon the counter-party or the counter-party's agent. [Reference was made to Smith v. Eric S. Bush [1990] 1 A.C. 831 and Gran Gelato Ltd. v. Richcliff (Group) Ltd. [1992] Ch. 560, 571H-572B.]

(iv) In Anns v. Merton London Borough Council [1978] A.C. 728 and Murphy v. Brentwood District Council [1991] 1 A.C. 398, there were significant socio-economic reasons for not making a local authority liable when its responsibility for the defects causing loss was, at best, peripheral, and when the effect of imposing liability was to render it in effect the insurer of negligent but insolvent builders.

(v) This category excludes cases where the purpose of the defendant's work was not that the plaintiff should rely on it, but something else altogether. If the work was not done, or the advice was not given, for the benefit of the plaintiff (or for the specific purpose for which the plaintiff actually used or relied upon it), but for some other purpose, the duty of care may be excluded. It is, in a sense, the obverse of the "who for?" test and provides a separate explanation for, for example, Murphy v. Brentwood District Council, where the purpose of the functions performed by the local authority was to ensure that builders did not erect dangerous houses, and not the avoidance of the financial consequences to house buyers of acquiring such houses: see Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164 and the Caparo case [1990] 2 A.C. 605, 621-623.

(vi) The willingness of the law of tort to recognise the duty of care in a particular case may be influenced by the nature of the loss itself, so that a duty of care not to cause personal injury will be imposed on a party in circumstances where a similar duty not to cause some kind of financial loss will not. In the case of pure economic loss, although it is frequently treated as only one kind of loss, there is in fact a range of losses which might be sued for. At one extreme, are "expectation loss" claims: see Scally v. Southern Health and Social Services Board [1992] 1 A.C. 294. At the other extreme, however, are cases of genuine financial loss, where the kind of interest thus affected is at its closest to damage to property: see Hedley Byrne [1964] A.C. 465.

Generally speaking, the tortfeasor (or alleged tortfeasor) will in any given case be obvious. Whether or not a duty of care is in fact owed will depend upon the foregoing criteria. In some cases, however, matters will be complicated by the involvement of more than one actual or potential tortfeasor, giving rise to an additional question of attribution between defendants. The question of attributions raises no new positive or negative criteria, indicating whether or not a duty of care arises. It is simply that the application of those criteria must be considered discretely in relation to the point of view and position of each individual defendant: see Punjab National Bank v. de Boinville [1992] 1 Lloyd's Rep. 7, 18, 19. This approach is just as relevant in the context of sub-agents. It is certainly not the case that the sub-agency cases relied on by the appellants would have to be overruled. On their facts Calico Printers Association v. Barclays Bank Ltd., 36 Com.Cas. 71 and Royal Products Ltd. v. Midland Bank Ltd. [1981] 2 Lloyd's Rep. 194 were correctly decided.

As to the relevance of the managing agent's fiduciary position, it has never been disputed that the managing agent stands as fiduciary qua the Names, and owes the ordinary duties of a fiduciary. A fiduciary, consistently with the "who for?" test owes a non-contractual duty of care to those in relation to whom he stands as fiduciary. This can either be regarded as a paradigm example of a relationship where the common law imposes such a duty, or, if necessary, as a free-standing duty imposed by equity (although this equitable duty to compensate may arise only on breach of what are strictly fiduciary duties): see Nocton v. Lord Ashburton [1914] A.C. 932, 945-946, 955-958, 962-965, 972 and Hedley Byrne [1964] A.C. 465, 486, 502, 509, 520-521, 523, 536. There is nothing remarkable in this: it would surely be extraordinary if a fiduciary did not owe a duty of care.

The argument based on joint and several liability is wholly fallacious. There certainly are cases (see Anns v. Merton London Borough Council [1978] A.C. 728) where the results of imposing a duty of care may, because of joint and several liability, impose a disproportionate burden on a defendant who may be only peripherally responsible for the plaintiff's loss. This may have unacceptable socio-economic consequences and encourage litigation against "deep pocket" defendants. In such cases, the duty of care will be excluded by the existence of one or more of the negative criteria.

All this, however, has nothing to do with the present case. These are claims arising from allegedly negligent underwriting done solely by the managing agent, for which (as between it and the members' agents) it is one hundred per cent. responsible.

As to the issue of limitation, it is said by the appellants that to allow a non-contractual duty of care would in terms of limitation (a) deprive the parties of thir "contractual expectations" and (b) avoid the policy of Parliament which is that there are different limitation regimes for contract and tort. The first point appears simply circular; the parties' expectations would be that contractual limitation periods would apply only if they were advised and believed that they could not also be liable in tort. But that is the question for decision; and, in any event, the belief of the market was to the opposite effect. The second point is more serious. In the first place,

the premise of the argument is unsound. It is, of course, difficult to argue that section 14(A) of the Limitation Act 1980 (inserted by the Latent Damage Act 1986) applies to actions framed in contract: see The Eras Eil Actions [1992] 1 Lloyd's Rep. 570, 601-603. But this is not because Parliament intended that plaintiffs claiming for breach of a contractual duty of care should be worse off, in terms of limitation, than those claiming in tort. On the contrary, Parliament assumed that those to whom a contractual duty of care was owed would also be able to sue in tort, so that the provisions of the Act of 1986 would be available to them also: see The Twenty-Fourth Report of the Law Reform Committee (Latent Damage) (Cmnd. 9390), paras. 1.2, 2.1, 2.3. In the second place, the reasoning of Judge Kershaw Q.C. in Lancashire and Cheshire Baptist Churches Inc. v. Howard & Seddon Partnership [1993] 3 All E.R. 467, 475D-J is correct. If a new right that the liability of members' agent to their Names for negligent underwriting (or rather default for which they are not personally responsible) by their sub-agent is in contract only, so that the Names have lost their causes of action before they knew they had it, then it is unfair, unjust and unreasonable to hold that the effect of the contract is, without more, to deprive the Names of a claim in tort against the person truly responsible for the loss.

[LORD KEITH OF KINKEL. Their Lordships do not wish to hear argument on the question of absolute discretion.]

The third issue, duty as fiduciary, can be dealt with briefly, because it follows from the reliance already placed upon a fiduciary relationship as a core instance of the "special relationship" which gives rise to a duty of care in tort. (i) Although the high authority relied upon in Hedley Byrne for that proposition was Nocton v. Lord Ashburton [1914] A.C. 932, the House of Lords appears in that case to have treated the fiduciary relationship as generating its own obligation to compensate a "client:" see pp. 945-948, 955-958, 964-965. (ii) In any event, whether the position is that the relationship between the fiduciary and the "client" for whom he acts simply generates a common law duty of care, or whether it can also give rise to a parallel obligation in equity, the duty is aptly owed by the managing agent of a syndicate when acting for and on behalf of its Names (whether direct or indirect).

Bernard Eder Q.C. and David Foxton for the appellants, the members' agents in the Feltrim appeal, and Bernard Eder Q.C. and Christopher Butcher for the appellants, the members' agents, in the Gooda Walker appeal. It is important to emphasise that the managing agent is acting on behalf of each and every Name in his syndicate. There is not a chain of contracts. The managing agent is the agent who binds each Name in the syndicate. This factual situation relates to the issues of duty of care in tort, in contract or, indeed, to the existence of a fiduciary duty. The question of whether a members' agent owes a duty of care to the Names does not arise.

An agent will be liable for breach of any promise which he has undertaken. But in each case it is necessary to identify what promise he has undertaken. The fact that an agent has sought to perform his promise through another party is not relevant to the agent's liability to his own principal, assuming always that the agent has undertaken the relevant

contractual responsibility. It may be that an agent will be prohibited from delegating the performance as a matter of general law or under a specific term of his contract and that any delegation of performance will be impermissible and a breach of the agent's contract with his principal. But even when delegation is contemplated or permitted it will not absolve the agent from his own contractual duties. The issue, therefore, which arises is whether the members' agents have contracted to perform or to undertake responsibility for the "entire transaction." They have not. Whatever their liability may be for personal acts of negligence, they are not contractually responsible for any negligence on the part of the managing agents because there are no clauses to this effect, or to require this conclusion, in the agency agreement prescribed by Lloyd's byelaw No. 1 of 1985. Moreover, the managing agents owe legal duties to, and not on behalf of, the respondents.

The agency and sub-agency agreements must be construed against a background of the Lloyd's Act 1982, the byelaws thereunder regulating the role of members' agents and managing agents at Lloyd's, and the market at Lloyd's. The most important of the byelaws is byelaw No. 4 of 1984, under which the committee was required to maintain a register of all underwriting agents permitted to act and to specify whether an underwriting agent was permitted to act as a managing or a members' agent or as both. Under the definitions in that byelaw, it is the managing agent who performs the functions of underwriting contracts of insurance at Lloyd's and reinsuring such contracts.

The Court of Appeal held that the members' agents did undertake to underwrite on behalf of the Names and that this undertaking was to be found in clause 2(a) of the agreement. But there is nothing in this clause which indicates that the members' agents undertook either to do the underwriting, or to be responsible for it. Clause 2(a) is concerned with status, and not with obligations. The clause does no more or less than appoint the agent to act "as the underwriting agent . . . for the Name for the purpose of underwriting at Lloyd's" and identifies the class of business in respect of which the members' agent is to act. The clause, however, is wholly silent on the question of what type of "underwriting agent" the members' agent has agreed to act as, and what functions he has agreed to perform or in relation to which he has agreed to accept responsibility. There is no definition of "underwriting agent" in byelaw No. 1 of 1985 but, significantly, the term is defined in byelaw No. 4 of 1984 as "a managing agent or a members' agent or a managing agent which is also a members' agent . . ." For the alternative meanings of the expression "underwriting agent," see section 1(c) of the Interpretation Byelaw No. 1 of 1983 as amended on 9 April 1994. Section 2 of the Lloyd's Act 1982 defines an "underwriting agent" as "a person permitted by the Council to act as an underwriting agent at Lloyd's."

Clause 2(a) has to be read together with clause 2(b). This clause is important for two reasons. (i) It confirms the legitimacy - and necessity - of construing the agency agreement against the background of the regulatory framework at Lloyd's. The agent is obliged at all times "to comply with the byelaws, regulations and requirements for the time being of the Council affecting the Name as an underwriting member of Lloyd's."

But the byelaws which impose obligations relating to the actual conduct of the underwriting impose these obligations specifically on managing agents and not on underwriting agents or members' agents. (ii) For the members' agents to have contracted to perform the underwriting for the Names would have constituted a non-compliance with byelaw No. 4 of 1984. If this would otherwise have been the effect of the agreement, the relevant provision(s) would be modified by clause 2(b).

The Court of Appeal in coming to its decision referred also to clauses 4(a) and (b)(G) of the agreement. However, clause 4(a) concerns powersand not duties placed upon the agent. As to clause 4(b)(G), a proper analysis of it demonstrates the fallacy of the construction adopted by Saville J. and the Court of Appeal. Having accepted that the members' agent could not perform the underwriting, and yet held that the members' agents had undertaken a contractual responsibility to do so, the Court of Appeal held that the power to appoint or delegate the underwriting "in effect becomes a duty." Yet clause 4(b)(G) is wholly permissive and contains no words of obligation.

So far as the members' agents duties (as distinct from powers) are concerned, these are set out in clause 5. There is nothing in any of the provisions set out under it to indicate that the members' agents contracted to underwrite or be responsible for the underwriting in the sense advanced by the Names. The purpose and effect of such a clause are simply to prevent the Name from interfering in the way in which the underwriting business is carried on. Alternatively, if the effect of the clause is to impose any obligations on the members' agent the only obligation that could be imposed is one as to control and management of the underwriting business. Control and management here cannot mean the carrying on of the day-to-day underwriting business because that is something which the members' agents themselves cannot do by reason of byelaw No. 4 of 1984. Moreover, clause 5(a) is inconsistent with an obligation to the effect that the members' agents are contractually responsible for the actual underwriting in the sense advanced by the Names.

The sub-agency agreement is plainly entered into between the agent and the sub-agent. That general position is qualified by clause 8(c). The structure of the agreement is that the sub-agent is given an authority to act to enter into contracts of insurance and reinsurance for the Names. The question is therefore whether the sub-agent in carrying out that particular task is acting for the agent or the Name. There is sufficient privity of contract in agency for present purposes. The Names have a remedy in tort against the managing agent.

It is of no consequence that the obligations for the proper conduct of the underwriting are found in tort and not in contract: Punjab National Bank v. de Boinville [1992] 1 Lloyd's Rep. 7, 16. In each case, the duty will be the same, i.e., to exercise proper skill and care in carrying out the actual underwriting. Indeed, the reality which underlies the Merrett appeal is that Names who are owed duties in tort are better placed than Names owed duties in contract, so far as limitation is concerned.

In any event, the Court of Appeal erred in law in holding that there was no contract between the managing agents and the Names pursuant to which the managing agents were contractually responsible for the proper

performance of the underwriting for the Names in that (i) it is clear that under the agency agreement the members' agents had authority to enter into a contract with the managing agents on behalf of the Names (clauses 4(a), 4(b)(B)); (ii) it is also clear that the members' agents appoint the managing agent to act as the agent of the Names and not the agent of the members' agent. [Reference was made to Tarn v. Scanlan [1928] A.C. 34, 47-48, 56; De Bussche v. Alt (1878) 8 Ch.D. 286, 310-311; Powell & Thomas v. Evan Jones & Co. [1905] 1 K.B. 11, 17, 22-23; Calico Printers Association v. Barclays Bank Ltd. (1930) 36 Com.Cas. 71 and Bowstead on Agency, 15th ed. (1985), p. 133.]

Anthony Boswood Q.C. and Stephen Moriarty for the respondents in the Feltrim actions, adopting the argument of the respondents in the Merrett actions. The underwriting agent expressly undertakes by clause 2(a) of the agency agreement to act as the underwriting agent of the Name, is given by clause 5(a) sole control and management of the underwriting business, is given the necessary powers by clause 4, and is by clause 4(b)(G) expressly granted the power to delegate the powers, authorities and discretions conferred by the agreement. It is an ordinary implied term of the agency agreement that the obligations which the underwriting agent thereby assumes will be carried out with reasonable care and skill. Accordingly, where the underwriting agent performs the underwriting through another (by delegating it to the managing agent of a given syndicate as its sub-agent) the underwriting agent remains responsible for any breach of that implied term. In accordance with ordinary contractual principles, the fact that the breach arises from the negligent acts of the sub-agent is nihil ad rem: see Chitty on Contracts, 26th ed. (1989), vol. 1, pp. 899-900, 901, paras. 1432, 1434.

The members' agents argued in the courts below that in clause 4(b)(G) of the agency agreement the expression "appoint or employ" was presented as an alternative to "delegate or confer upon." But clause 4(b)(G) is a composite provision, and these words simply echo the concepts in clauses 2 and 4 of the agreement, and in clauses 2 and 5(a) of the sub-agency agreement. The construction ventured by the members' agents does end up giving different meanings to the words in the agency agreement depending on whether the agent is also acting as a managing agent or not, or, at the very least, making great tracts of the agreement redundant where the agent is only acting as a members' agent, including clause 4(a) where the power to carry on the underwriting business (which is the whole purpose and point of the agreement) is spelled out. If the members' agents are right, then no one undertook any contractual commitment to underwrite for the Names. As was pointed out in both courts below this cannot have been intended.

It is perhaps to meet this point that the members' agents have argued that under the agency agreement and the sub-agency agreement the Name and the sub-agent were put into a direct contractual relationship. But, once again, this simply flies in the face of the words used in the sub-agency agreement, especially clause 2. If this had been the draftsman's intention he would, as the courts below pointed out, not have conferred the relevant tasks and discretions on the agent with power to delegate, but rather have authorised the agent (when acting as members' agent) to give

the necessary powers and discretions to the managing agent of the syndicate concerned. That is precisely what the Council of Lloyd's did when it enacted the agency agreements byelaw No. 8 of 1988, whereby, with effect from 1 January 1990, Names were put, for the first time, into a direct contractual relationship with the managing agents of each of the syndicates of which they were members, and the different functions of members and managing agents respectively were defined.

Geoffrey Vos Q.C., Jonathan Gaisman and David Lord for the respondents in the Gooda Walker action, adopting the argument of the respondents in the Feltrim actions, on the contract point. A number of arguments may be advanced in answer to the members' agents' construction of the standard agency agreement. (i) There is nothing in byelaw No. 4 of 1984 which prevents members' agents from contracting to perform the underwriting as opposed to actually performing the underwriting. (ii) The terms of both the standard agency agreement and the standard sub-agency agreement clearly support the Names' construction. (iii) There is no direct contract between the Names and the managing agents. (iv) The Names' construction gives effect to the plain intention of the draftsman. (v) The standard agency agreement was entered into by both members' agents and combined agents. A combined agent must be responsible to the Name for the underwriting. The standard agency agreement cannot have one result if entered into by a combined agent, and another result if entered into by a members' agent. (vi) It was generally known that managing agents (and not members' agents) actually performed the underwriting. That knowledge has no bearing on the contractual obligations undertaken.

The members' agents rely on the prohibition in paragraph 4 of byelaw No. 4 of 1984 that "no person may act as managing agent . . . unless it is a body registered as such under this byelaw." Since members' agents were not registered under that byelaw to perform the underwriting functions reserved for managing agents (and therefore could not actually themselves perform those functions), it is argued that members' agents cannot have contracted to do so. But, as the courts below held, byelaw No. 4 of 1984 only prohibits a members' agent from personally conducting the underwriting, not from contracting to do it, or from undertaking contractual responsibility for it. The members' agents make the further point that clause 2(b) of the standard agency agreement provides that the agent should comply with all byelaws. That does not assist their argument because they are not violating the prohibition against conducting underwriting by agreeing to conduct it, so long as they delegate that function to an authorised managing agent. In fact, the definition of "members' agent" in byelaw No. 4 of 1984 supports the Names' case, for this definition emphasises the Names' contention that privity of contract is between the Name and the members' agent, and not between the Name and the managing agent.

The theory underlying the agreements is that the contracting agents will have responsibility for the underwriting, and will have power to appoint or employ others and to delegate: see clause 2 and clause 4(b)(G) of the standard agency agreement and clause 2 and clause 5 of the standard sub-agency agreement.

The members' agent cannot delegate any duty or responsibility that it does not itself have. Accordingly, since the members' agents had the power to delegate the actual conduct of the underwriting it would be remarkable if they had no responsibility to the Names for it.

There is no power for the agent to create contractual privity between a Name and a managing agent (or, if the agent, is a combined agent, another managing agent). The terms employed are to be contrasted with those later introduced by byelaw No. 8 of 1988, which, by clause 2(2)(b), gave the members' agent express authority, on behalf of the Name, to enter into a direct agreement with the managing agent. [Reference was also made to the standard agency agreement, clauses 2(a), 3, 4, 5, 9(a), 11, 13(a), 19.]

The standard sub-agency agreement is precisely what it is said to be, namely, a sub-agency agreement: see clauses 1(a), 2, 3, 4, 5, 8, 12(a), (b), 21. It does not create any privity of contract between Names and managing agents. The managing agents are contractually responsible to the members' agents, who in turn are contractually responsible to Names.

The introduction to the code of practice for underwriting agents and active underwriters at Lloyd's issued 9 December 1985 affirms the application of ordinary principles of agency to all underwriting agents at Lloyd's. The general principles applicable to the question of whether or not there is privity between a principal and a sub-agent were well expressed by Wright J. in Calico Printers Association v. Barclays Bank Ltd., 36 Com.Cas. 71, 77-79. [Reference was also made to Bowstead on Agency, 15th ed., p. 131, art. 36(3).]

The members' agent rely on three cases for the proposition that a direct contract can be created between a principal and sub-agent: De Bussche v. Alt (1878) 8 Ch.D. 286; Powell & Thomas v. Evan Jones & Co. [1905] 1 K.B. 11 and Tarn v. Scanlan [1928] A.C. 34, 47, 55, 56. Those cases do not lay down any general principle, but turned on their particular facts.

The fact that the members' agent may delegate (pursuant to clause 4(b)(G)) some of his contractual responsibilities does not absolve him from liability: see Bowstead on Agency, pp. 130-135, art. 36; Mackersy v. Ramsays (1843) 9 Cl. & F. 818, 845 and Calico Printers Association v. Barclays Bank Ltd., 36 Com.Cas. 71, 77-79.

The position in the present case is no different from that of any other main contractor (the members' agent), who remains liable for the acts of his sub-contractor (the managing agent) to whom he has delegated his contractual responsibilities: see Chitty on Contracts, 26th ed., vol. 1, pp. 899-901, paras. 1432-1434.

Since it is clear both as a matter of construction and on authority that the agency agreement byelaw No. 1 of 1985 did not create privity between an indirect Name and the managing agent, the members' agents' argument leads to the unacceptable conclusion that nobody bears contractual responsibility for the underwriting conducted for an indirect Name. Byelaw No. 8 of 1988 introduced an entirely new scheme. The draftsman of that scheme plainly intended to make the managing agent (for both direct and indirect Names) contractually responsible to the Names for the

underwriting: see clause 2.2(b). Had the 1985 byelaw intended so to do, it would have been simple to achieve that result.

As to the application of the standard agency agreement to direct and indirect Names, Saville J. rightly found this to be a key point and the Court of Appeal agreed. There can be no doubt that the standard agency agreement effectively imposes upon a combined agent full contractual responsibility for the underwriting. Once that is accepted, it is impossible for the agreement to mean something different when entered into by a members' agent with an indirect Name.

The standard agency agreement specifically allows for some agents to delegate their contractual underwriting responsibilities, whilst others may not. Whether or not Names generally or the respondents knew that managing agents (and not their members' agent) actually conducted the underwriting, is irrelevant. The standard agency agreement has to be construed objectively on its natural and ordinary meaning in its commercial context. It cannot matter who actually undertook the underwriting: the only queston is who contracted to undertake responsibility for it to the Name.

John Rowland and Kirsten Houghton for the appellants, the managing agents in the Feltrim appeal, adopted the argument of the appellants in the Merrett actions in relation to the first and second issues and the arguments of all the respondents in relation to the third issue.

Rowland, in reply on behalf of the appellants in the Merrett actions and the managing agents in the Feltrim appeal, referred to Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. [1986] A.C. 80; Grant v. Australian Knitting Mills Ltd. [1936] A.C. 85; Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465; Murphy v. Brentwood District Council [1991] 1 A.C. 398 and Punjab National Bank v. de Boinville [1992] 1 Lloyd's Rep. 7.

Eder Q.C. in reply, referred to Calico Printers Association v. Barclays Bank Ltd., 36 Com.Cas. 71; Ecossaise Steamship Co. (Ltd.) v. Lloyd, Low and Co. (1890) 7 T.L.R. 76; Cheshire & Co. v. Vaughan Bros. & Co. [1920] 3 K.B. 240 and Mackersy v. Ramsays, 9 Cl. & F. 818.

Their Lordships took time for consideration.

25 July. LORD KEITH OF KINKEL. My Lords, for the reasons set out in the speech of my noble and learned friend, Lord Goff of Chieveley, which I have read in draft and with which I agree, I would dismiss these appeals.

LORD GOFF OF CIEVELEY. My Lords,

Introduction

The appeals now before your Lordships' House arise out of a number of actions brought by underwriting members (known as Names) of Lloyd's against their underwriting agents, in an attempt to recoup at least part of the great losses which they have suffered following upon recent catastrophic events, mainly in the United States of America, which have led to unprecedented claims being made upon Lloyd's underwriters.

The actions in question form part of a large number of actions of this kind, which are now approaching trial in the Commercial Court. At the root of many of these actions lie questions of law, upon the resolution of which depends the nature of the legal responsibility which rested upon underwriting agents towards the Names for whom they acted. Accordingly, with the co-operation of the parties to the actions out of which the present appeals arise, Saville J. ordered that certain issues of principle should be decided as preliminary issues. Having heard argument upon these issues, he gave judgment on 12 October 1993, his rulings being favourable to the contentions advanced on behalf of the Names. On 13 December 1993, the Court of Appeal unanimously affirmed the decision of Saville J., for the reasons given by him. The matter now comes before your Lordships' House, with the leave of the House; and the hearing of the appeals has been expedited, in the hope that the fact that the appeals have come before the House will result in as little disturbance as possible to the programme now established for the hearing of the various Lloyd's actions in the Commercial Court.

It is necessary for me now to identify, and place in their context, the various issues which fall for consideration on these appeals. But before I do so, it is desirable that I should first set out certain basic facts about the structure of Lloyd's, with special reference to the relationship between Names and their underwriting agents.

Every person who wishes to become a Name at Lloyd's and who is not himself or herself an underwriting agent must appoint an underwriting agent to act on his or her behalf, pursuant to an underwriting agency agreement. Underwriting agents may act in one of three different capacities. (1) They may be members' agents, who (broadly speaking) advise Names on their choice of syndicates, place Names on the syndicates chosen by them, and give general advice to them. (2) They may be managing agents, who underwrite contracts of insurance at Lloyd's on behalf of the Names who are members of the syndicates under their management, and who reinsure contracts of insurance and pay claims. (3) They may be combined agents, who perform both the role of members' agents, and the role of managing agents in respect of the syndicates under their management.

Until 1990, the practical position was as follows. Each Name entered into one or more underwriting agency agreements with an underwriting agent, which was either a members' agent or a combined agent. Each underwriting agency agreement governed the relationship between the Name and the members' agent, or between the Name and the combined agent in so far as it acted as a members' agent. If however the Name became a member of a syndicate which was managed by the combined agent, the agreement also governed the relationship between the Name and the combined agent acting in its capacity of managing agent. In such a case the Name was known as a direct Name. If however the Name became a member of a syndicate which was managed by some other managing agent, the Name's underwriting agent (whether or not it was a combined agent) entered into a sub-agency agreement under which it appointed the managing agent its sub-agent to act as such in relation to the Name. In such a case the Name was known as an indirect Name.

Before 1 January 1987, no forms of underwriting agency or sub-agency agreements were prescribed at Lloyd's; but standard clauses were in common use, and forms of agreement used by underwriting agents were similar, if not identical. For the purposes of the first group of actions now under appeal (the Merrett actions), which were concerned with that period, specimen agreements were placed before Saville J. for use by him in respect of those actions. These are to be found annexed to his judgment. However, pursuant to the Lloyd's Act 1982, byelaw No. 1 of 1985 was made which prescribed forms of agency agreement and sub-agency agreement. These forms became compulsorily applicable as from 1 January 1987, and are the relevant forms in the other two groups of actions which are the subject of the present appeals, the Feltrim actions and the Gooda Walker actions. A subsequent byelaw, No. 8 of 1988, prescribed new standard forms of agreement for use in 1990 and subsequent years of account. With these forms, which swept away the distinction between direct and indirect Names, your Lordships are not directly concerned in the present appeals.

I turn to the appeals now before your Lordships' House. These are (1) the Merrett appeals, and (2) the conjoined Feltrim and Gooda Walker appeals.

(1) The Merrett appeals

The appellants in these appeals (referred to as "Merretts") are in fact Merrett Syndicates Ltd. ("M.S.L.") and Merrett Underwriting Agency Management Ltd. ("M.U.A.M."). Up to 1 January 1986, M.S.L. was a combined agent. It was the managing agent of Syndicate 418/417, and was also a members' agent. From 1 January 1986, M.U.A.M. became the Managing Agent of Syndicate 418/417, and M.S.L. operated solely as a members' agent. There are three groups of Merrett actions brought by Names who were members of Syndicate 418/417. In all three groups of actions, there are complaints of negligent closure of a year or years of account into subsequent years by reinsurance to close ("R.I.T.C."). In one of them, there is also a complaint as to the writing of certain contracts of insurance; and in this case there is also an issue of limitation.

(2)(a) The Feltrim appeals

The appellants are (i) Feltrim Underwriting Agencies Ltd. ("Feltrim"), which acted as a managing agent only; and (ii) about 40 members' agents ("the Feltrim members' agents"), which are in fact unrelated to Feltrim. In the actions which are the subject of these appeals, Names who were members of syndicates managed by Feltrim sue Feltrim as managing agents, and also sue the Feltrim members' agents as their members' agents. All the Names are indirect Names. The Names allege against Feltrim negligent underwriting during the years 1987-1989 arising out of their Syndicates' participation in the London market excess of loss ("L.M.X.") business, it being alleged that the underwriters assumed greatly excessive aggregate liabilities, and took out far too little reinsurance. The Feltrim members' agents are sued on the basis that they are contractually liable for the defaults of Feltrim as managing agents to whom the underwriting was delegated. There is no limitation issue.

(2)(b) The Gooda Walker appeals

The appellants are 65 members' agents ("the Gooda Walker members' agents"), against which it is alleged by Names that they are contractually liable to the Names for failure by the managing agents of the syndicates of which the Names were members, to which the Gooda Walker members' agents had delegated the function of underwriting, to exercise reasonable care and skill in relation to such underwriting.

It might have been expected that, in all three groups of appeals, there would be appeals by both the members' agents and the managing agents, and that in each case issues would arise whether there was liability on their part in contract, or in tort, or for breach of fiduciary duty. But that is not in fact the case. In the case of the Merrett appeals, there is no issue before your Lordships between the Names and their members' agents acting as such. Except for one entirely distinct issue concerned with R.I.T.C., the appeals are concerned only with the issue of liability, either in tort or for breach of fiduciary duty, of Merretts as managing agents, whether to direct Names (where Merretts were combined agents) or to indirect Names. By way of contrast, in the Gooda Walker appeals the Gooda Walker managing agents are not appealing to this House against the decision of the Court of Appeal, with the result that the ruling of the Court of Appeal that they owed a contractual duty to direct Names, and a duty of care in tort to indirect Names, will remain binding as between them and the Names in question. The only issue now before your Lordships on the Gooda Walker appeals arises in relation to the agency agreements entered into between Names and the Gooda Walker members' agents. So far as the Feltrim appeals are concerned, however, issues arise both as to Feltrim's liability as managing agents, viz. whether Feltrim owed a duty of care in tort, or as fiduciary, to the indirect Names who were members of the Feltrim syndicates in the years 1987-1989, and as to the Feltrim members' agents' liability as such in relation to the agency agreements entered into between them and Names, as in the Gooda Walker appeals.

In the result, the following issues have been identified as arising for the decision of your Lordships' House on these appeals.

Issue 1

(A) Merrett appeals: liability of managing agents to Names under the forms of agreement in force before 1987

(1) Duty of care - indirect Names. Did managing agents (who were not also members' agents) owe indirect Names a duty under the pre-1985 byelaw form of underwriting agency agreement to carry out their underwriting functions with reasonable care and skill for the 1979 to 1985 years of account inclusive? (a) Does the law of tort impose any duty upon managing agents not to cause purely economic loss to Names? (b) Does the "absolute discretion" conferred upon managing agents under the pre-1985 byelaw form of underwriting agency agreement preclude the implication of any duty other than duties to act honestly, rationally and loyally?

(2) Duty of care - direct Names. Did Merretts as managing agents who were also members' agents owe direct Names a non-contractual duty under the pre-1985 byelaw forms of underwriting agency agreement to carry out their underwriting functions with reasonable care and skill for the 1979 to 1985 years of account inclusive?

(3) Fiduciary duty. Did Merretts as managing agents (whether they were also members' agents or not) owe Names as fiduciary a duty to conduct the underwriting for the account of the Names with reasonable care and skill for the 1979 to 1985 years of account (inclusive) equivalent to the alleged duty of care in tort?

(B) Feltrim appeals: liability of managing agents to Names under the forms of agreement in force between 1987 and 1989

(1) Duty of care - indirect Names. In tort - did Feltrim, a managing agent only, owe a duty of care in tort to the (indirect) Names on the Feltrim syndicates to carry out the conduct and management of the underwriting business of the Feltrim syndicates with reasonable care and skill at any material time between 1987 and 1989?

(2) Fiduciary duty. As fiduciary - did Feltrim owe Names a fiduciary duty equivalent to a duty of care in tort as described above?

Issue 2

Feltrim and Gooda Walker appeals: liability of members' agents to Names under the forms of agreement in force during the period 1987 to 1989

Whether, in relation to, and on the true construction of, agency agreements entered into between Names and members' agents in the standard form provided for by Lloyd's byelaw No. 1 of 1985: (1) It was a term of the said agency agreements that the actual underwriting would be carried on with reasonable care and skill, so that the members' agents remained directly responsible to their Names for any failure to exercise reasonable care and skill by the managing agents of any particular syndicate to whom such underwriting had been delegated. (2) There was a term of the said agreements that the members' agent was only required to exercise reasonable care and skill in relation to such activities and functions as members' agents by custom and practice actually perform for their Names personally. (3) There was a direct contractual relationship of principal and agent between Names and the managing agents of syndicates in which the Names participated.

Issue 3

Merrett appeals: reinsurance to close

Whether for Names who executed the new prescribed 1985 byelaw form of underwriting agency agreement the contractual relationship between such Names for the 1985 underwriting year of account and their members' agents and between their members' agents and the managing agent in relation to the acceptance in about June 1987 by the syndicate for the 1985 underwriting year of account of the reinsurance to close the

1984 underwriting year of account was governed by the 1985 byelaw form of agreement or by the pre-1985 byelaw form of agreement.

For the purpose of considering these various issues, I shall for convenience organise them a little differently, as will appear hereafter.

I. Merrett and Feltrim appeals

A. Duty of care - Liability of managing agents to Names (both direct and indirect Names) in tort

1. Introduction

I turn now to the tortious issues which arise in the Merrett and Feltrim appeals. The first issue, in the order in which they are stated, is concerned with the question whether managing agents, which were not also members' agents, owed to indirect Names a duty of care in tort to carry out their underwriting functions with reasonable care and skill. The second issue is concerned with the question whether managing agents, which were also members' agents, owed such a duty to direct Names.

The first of these issues, relating to indirect Names, arises in both the Merrett appeals and the Feltrim appeals. However the issue in the Merrett appeals arises in the context of the pre-1985 byelaw forms of agency and sub-agency agreements, whereas that in the Feltrim appeals does so in the context of the forms of agreement prescribed under the 1985 byelaw. The second of these issues, relating to direct Names, arises only in the Merrett appeals, in the context of the pre-1985 byelaw forms.

It is desirable that I should at once identify the reasons why Names in the Merrett and Feltrim actions are seeking to establish that there is a duty of care owed to them by managing agents in tort. First, the direct Names in the Merrett actions seek to hold the managing agents concurrently liable in contract and in tort. Where, as in the case of direct Names, the agents are combined agents, there can be no doubt that there is a contract between the Names and the agents, acting as managing agents, in respect of the underwriting carried out by the managing agents on behalf of the Names as members of the syndicate or syndicates under their management, the only question being as to the scope of the managing agents' contractual responsibility in this respect. Even so, in the Merrett actions, Names are concerned to establish the existence of a concurrent duty of care in tort, if only because there is a limitation issue in one of the actions, in which Names wish therefore to be able to take advantage of the more favourable date for the accrual of the cause of action in tort, as opposed to that in contract. Second, the indirect Names in both the Merrett and the Feltrim actions are seeking to establish the existence of a duty of care on the part of the managing agents in tort, no doubt primarily to establish a direct liability to them by the managing agents, but also, in the case of the Merrett actions, to take advantage of the more advantageous position on limitation. Your Lordships were informed that there is no limitation issue in the Feltrim actions.

I turn next to the forms of agreement which provide the contractual context for these issues. I have already recorded that, so far as the pre-1985 byelaw forms are concerned, no form was prescribed, but those in use were substantially similar if not identical, and that specimen forms of

agency and sub-agency agreement were agreed for the purposes of these preliminary issues and are scheduled to the judgment of Saville J. The most relevant provisions of the specimen forms are the following.

(1) Agency agreement

"1. The Agent shall act as the underwriting agent for the Name for the purposes of underwriting at Lloyd's for the account of the Name policies and contracts of insurance reinsurance and guarantee relating to all classes of insurance business which with the sanction of the Committee of Lloyd's may be transacted at Lloyd's by the syndicate."

"4. The agent shall have full power and authority to appoint and employ the sub-agent to carry on or manage the underwriting and to delegate to or confer upon the sub-agent all or any of the powers authorities discretions and rights given to the agent by this agreement."

"6. (a) The agent shall have the sole control and management of the underwriting and absolute discretion as to the acceptance of risks and settlement of claims whether such claims shall in the opinion of the agent be legally enforceable or not. . . . (d) The Name shall not in any way interfere with the exercise of the aforesaid control or management or discretion."

"7. The following provisions shall apply concerning the accounts of the underwriting:- . . . (e) The syndicate account of any calendar year shall not be closed before the expiration of the two calendar years next following the calendar year in question and in order to close the syndicate account of any year the agent may:- (i) reinsure all or any outstanding liabilities in such manner and by debiting such account with such sum as the agent shall in the absolute discretion of the agent think fit as a premium for reinsurance and crediting the reinsurance premium to the syndicate account of the next succeeding year or (ii) reinsure all or any outstanding liabilities of such account into the account of any other year then remaining open or in any other manner which the agent thinks fit or (iii) allow the whole or part of a syndicate account of any year to remain open until its outstanding liabilities shall have run off . . ."

"12.(a) The agent may from time to time retain out of the profits of the underwriting which would otherwise be payable to the Name any moneys which the agent may in the absolute discretion of the agent (subject to any requirements prescribed by Lloyd's) think desirable to carry to reserve and such moneys may be placed on deposit at any bank or discount house of public or local authorities or building society or may be invested in such stocks funds shares or securities (including bearer securities) in any part of the world as the agent may determine and the agent shall not be responsible for any loss of principal or interest on such deposits or investments. Interest or dividends earned on any such deposits or investments shall be credited to the Name in respect to the Name's due proportion thereof."

(2) Sub-agency agreement

"2. The sub-agent agrees and is retained and authorised to act as underwriting sub-agent for the agent for the purpose of underwriting at Lloyd's in the names and for the account of each of the Names policies and contracts of insurance reinsurance and guarantee relating to all classes of insurance business which with the sanction of the Committee of Lloyd's may be transacted as insurance business and of carrying on for each of the Names the business of marine underwriter at Lloyd's and the appointment of the sub-agent shall take effect in respect of each of the Names on and from the date specified in the second column of the schedule hereto opposite the name of each of the Names."

"5. The agent delegates to the sub-agent the exercise of all such powers authorities discretions and rights conferred upon the agent by the underwriting agency agreement as it may be in any way necessary for the sub-agent to have to enable the sub-agent or any underwriter or agent appointed by the sub-agent to carry on the underwriting for the Names and to close the accounts of the Names."

"6. Subject to the provisions of clause 7 hereof the underwriting shall be conducted and the accounts thereof shall be kept and made up and the profits ascertained in such manner as the sub-agent may for the time being think fit and the sub-agent shall have the sole control and management of the underwriting and sole discretion as to the acceptance of risks and the compromise or settlement of claims."

"8. All questions relating to the investment of premiums and other monies not required for the current service of the underwriting and to the time and manner of paying over profits and the placing of sums to a reserve shall be decided by the sub-agent and subject as aforesaid the sub-agent shall pay over the profits of the underwriting to the agent for distribution to the Names."

Turning to the forms of agency and sub-agency agreements prescribed by the 1985 byelaw, I will set out the material provisions below when considering Issue 2, concerned with the liability of members' agents. These provisions will therefore be available for reference, and I do not propose to repeat them here.

In the result, in neither the specimen agreements nor the agreements prescribed by the 1985 byelaw is there any express provision imposing on the agent a duty to exercise care and skill in the exercise of the relevant functions under the agreement; but I understand it not to be in dispute that a term to that effect must be implied into the agreements. It is against that background that the question falls to be considered whether a like obligation rested upon the managing agents in tort, so that the managing agents which were also members' agents owed such a duty of care in tort to direct Names, with the effect that the direct Names had alternative remedies, in contract and tort, against the managing agents; and whether managing agents which were not also members' agents owed such a duty of care in tort to indirect Names, so that the indirect Names had a remedy in tort against the managing agents, notwithstanding the

existence of a contractual structure embracing indirect Names, members' agents and managing agents, under which such a duty was owed in contract by the managing agents to the members' agents, and by the members' agents to the indirect Names. Furthermore, the question also arises whether, under the pre-1985 forms of agreement, the absolute discretion as to the acceptance of risks (and settlement of claims) vested in agents under clause 6(a) of the agency agreement, and delegated by them to sub-agents (the managing agents) under clauses 5 and 6 of the sub-agency agreement, was effective to exclude any duty of care which might otherwise have been imposed upon the managing agents, either in contract or in tort.

Saville J. resolved all these issues in favour of the Names. He held that a duty of care was owed by managing agents in tort both to direct Names and to indirect Names, and that the existence of such a duty of care was not excluded by reason of the relevant contractual regime, whether under the pre-1985 specimen agreements, or under the forms of agreement prescribed by the 1985 byelaw. In particular, he held that the absolute discretion conferred on the agent under clause 6(a) of the pre-1985 byelaw specimen agency agreement, and delegated to the managing agent under clauses 5 and 6 of the related sub-agency agreement, did not exclude any such duty of care. On all these points Saville J.'s decision was, as I have recorded, affirmed by the Court of Appeal.

2. The argument of the managing agents

The main argument advanced by the managing agents against the existence of a duty of care in tort was that the imposition of such a duty upon them was inconsistent with the contractual relationship between the parties. In the case of direct Names, where there was a direct contract between the Names and the managing agents, the argument was that the contract legislated exclusively for the relationship between the parties, and that a parallel duty of care in tort was therefore excluded by the contract. In the case of indirect Names, reliance was placed on the fact that there had been brought into existence a contractual chain, between Name and members' agent, and between members' agent and managing agent; and it was said that, by structuring their contractual relationship in this way, the indirect Names and the managing agents had deliberately excluded any direct responsibility, including any tortious duty of care, to the indirect Names by the managing agents. In particular, the argument ran, it was as a result not permissible for the Names to pray in aid, for limitation purposes, the more favourable time for accrual of a cause of action in tort. To do so, submitted the managing agents, would deprive them of their contractual expectations, and would avoid the policy of Parliament that there are different limitation regimes for contract and tort.

Such was the main argument advanced on behalf of the managing agents. Moreover, as appears from my summary of it, the argument is not precisely the same in the case of direct Names and indirect Names respectively. However, in any event, I think it desirable first to consider the principle upon which a duty of care in tort may in the present context be imposed upon the managing agents, assuming that to impose such a

duty would not be inconsistent with the relevant contractual relationship. In considering this principle, I bear in mind in particular the separate submission of the managing agents that no such duty should be imposed, because the loss claimed by the Names is purely economic loss. However the identification of the principle is, in my opinion, relevant to the broader question of the impact of the relevant contract or contracts.

3. The governing principle

Even so, I can take this fairly shortly. I turn immediately to the decision of this House in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465. There, as is of course well known, the question arose whether bankers could be held liable in tort in respect of the gratuitous provision of a negligently favourable reference for one of their customers, when they knew or ought to have known that the plaintiff would rely on their skill and judgment in furnishing the reference, and the plaintiff in fact relied upon it and in consequence suffered financial loss. Your Lordships' House held that, in principle, an action would lie in such circumstances in tort; but that, in the particular case, a duty of care was negatived by a disclaimer of responsibility under cover of which the reference was supplied.

The case has always been regarded as important in that it established that, in certain circumstances, a duty of care may exist in respect of words as well as deeds, and further that liability may arise in negligence in respect of pure economic loss which is not parasitic upon physical damage. But, perhaps more important for the future development of the law, and certainly more relevant for the purposes of the present case, is the principle upon which the decision was founded. The governing principles are perhaps now perceived to be most clearly stated in the speeches of Lord Morris of Borth-y-Gest (with whom Lord Hodson agreed) and of Lord Devlin. Lord Morris said, at pp. 502-503:

"My Lords, I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise."

Lord Devlin said, at p. 526:

"The respondents in this case cannot deny that they were performing a service. Their sheet anchor is that they were performing it gratuitously and therefore no liability for its performance can arise. My Lords, in my opinion this is not the law. A promise given without consideration to perform a service cannot be enforced as a

contract by the promisee; but if the service is in fact performed and done negligently, the promisee can recover in an action in tort."

He then cited a number of authorities, and continued, at pp. 528-529:

"I think, therefore, that there is ample authority to justify your Lordships in saying now that the categories of special relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Nocton v. Lord Ashburton [1914] A.C. 932, 972 are 'equivalent to contract,' that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract. Where there is an express undertaking, an express warranty as distinct from mere representation, there can be little difficulty. The difficulty arises in discerning those cases in which the undertaking is to be implied. In this respect the absence of consideration is not irrelevant. Payment for information or advice is very good evidence that it is being relied upon and that the informer or adviser knows that it is. Where there is no consideration, it will be necessary to exercise greater care in distinguishing between social and professional relationships and between those which are of a contractual character and those which are not. It may often be material to consider whether the adviser is acting purely out of good nature or whether he is getting his reward in some indirect form. The service that a bank performs in giving a reference is not done simply out of a desire to assist commerce. It would discourage the customers of the bank if their deals fell through because the bank had refused to testify to their credit when it was good.

"I have had the advantage of reading all the opinions prepared by your Lordships and of studying the terms which your Lordships have framed by way of definition of the sort of relationship which gives rise to a responsibility towards those who act upon information or advice and so creates a duty of care towards them. I do not understand any of your Lordships to hold that it is a responsibility imposed by law upon certain types of persons or in certain sorts of situations. It is a responsibility that is voluntarily accepted or undertaken, either generally where a general relationship, such as that of solicitor and client or banker and customer, is created, or specifically in relation to a particular transaction."

He said, at pp. 531-532:

"Since the essence of the matter in the present case and in others of the same type is the acceptance of responsibility, I should like to guard against the imposition of restrictive terms notwithstanding that the essential condition is fulfilled. If a defendant says to a plaintiff: 'Let me do this for you; do not waste your money in employing a professional, I will do it for nothing and you can rely on me;' I do not think he could escape liability simply because he belonged to no profession or calling, had no qualifications or special skill and did

not hold himself out as having any. The relevance of these factors is to show the unlikelihood of a defendant in such circumstances assuming a legal responsibility, and as such they may often be decisive. But they are not theoretically conclusive and so cannot be the subject of definition. It would be unfortunate if they were. For it would mean that plaintiffs would seek to avoid the rigidity of the definition by bringing the action in contract as in De La Bere v. Pearson Ltd. [1908] 1 K.B. 280 and setting up something that would do for consideration. That, to my mind, would be an undesirable development in the law; and the best way of avoiding it is to settle the law so that the presence or absence of consideration makes no difference."

From these statements, and from their application in Hedley Byrne, we can derive some understanding of the breadth of the principle underlying the case. We can see that it rests upon a relationship between the parties, which may be general or specific to the particular transaction, and which may or may not be contractual in nature. All of their Lordships spoke in terms of one party having assumed or undertaken a responsibility towards the other. On this point, Lord Devlin spoke in particularly clear terms in both passages from his speech which I have quoted above. Further, Lord Morris spoke of that party being possessed of a "special skill" which he undertakes to "apply for the assistance of another who relies upon such skill." But the facts of Hedley Byrne itself, which was concerned with the liability of a banker to the recipient for negligence in the provision of a reference gratuitously supplied, show that the concept of a "special skill" must be understood broadly, certainly broadly enough to include special knowledge. Again, though Hedley Byrne was concerned with the provision of information and advice, the example given by Lord Devlin of the relationship between solicitor and client, and his and Lord Morris's statements of principle, show that the principle extends beyond the provision of information and advice to include the performance of other services. It follows, of course, that although, in the case of the provision of information and advice, reliance upon it by the other party will be necessary to establish a cause of action (because otherwise the negligence will have no causative effect), nevertheless there may be other circumstances in which there will be the necessary reliance to give rise to the application of the principle. In particular, as cases concerned with solicitor and client demonstrate, where the plaintiff entrusts the defendant with the conduct of his affairs, in general or in particular, he may be held to have relied on the defendant to exercise due skill and care in such conduct.

In subsequent cases concerned with liability under the Hedley Byrne principle in respect of negligent misstatements, the question has frequently arisen whether the plaintiff falls within the category of persons to whom the maker of the statement owes a duty of care. In seeking to contain that category of persons within reasonable bounds, there has been some tendency on the part of the courts to criticise the concept of "assumption of responsibility" as being "unlikely to be a helpful or realistic test in most cases" (see Smith v. Eric S. Bush [1990] 1 A.C. 831, 864-865, per Lord

Griffiths; and see also Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 628, per Lord Roskill). However, at least in cases such as the present, in which the same problem does not arise, there seems to be no reason why recourse should not be had to the concept, which appears after all to have been adopted, in one form or another, by all of their Lordships in Hedley Byrne [1964] A.C. 465 (see, e.g., Lord Reid, at pp. 483, 486 and 487; Lord Morris (with whom Lord Hodson agreed), at p. 494; Lord Devlin, at pp. 529 and 531; and Lord Pearce at p. 538). Furthermore, especially in a context concerned with a liability which may arise under a contract or in a situation "equivalent to contract," it must be expected that an objective test will be applied when asking the question whether, in a particular case, responsibility should be held to have been assumed by the defendant to the plaintiff: see Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605, 637, per Lord Oliver of Aylmerton. In addition, the concept provides its own explanation why there is no problem in cases of this kind about liability for pure economic loss; for if a person assumes responsibility to another in respect of certain services, there is no reason why he should not be liable in damages for that other in respect of economic loss which flows from the negligent performance of those services. It follows that, once the case is identified as falling within the Hedley Byrne principle, there should be no need to embark upon any further enquiry whether it is "fair, just and reasonable" to impose liability for economic loss - a point which is, I consider, of some importance in the present case. The concept indicates too that in some circumstances, for example where the undertaking to furnish the relevant service is given on an informal occasion, there may be no assumption of responsibility; and likewise that an assumption of responsibility may be negatived by an appropriate disclaimer. I wish to add in parenthesis that, as Oliver J. recognised in Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 384, 416F-G (a case concerned with concurrent liability of solicitors in tort and contract, to which I will have to refer in a moment), an assumption of responsibility by, for example, a professional man may give rise to liability in respect of negligent omissions as much as negligent acts of commission, as for example when a solicitor assumes responsibility for business on behalf of his client and omits to take a certain step, such as the service of a document, which falls within the responsibility so assumed by him.

4. The application of the principle to managing agents at Lloyd's

Since it has been submitted on behalf of the managing agents that no liability should attach to them in negligence in the present case because the only damage suffered by the Names consists of pure economic loss, the question arises whether the principle in Hedley Byrne is capable of applying in the case of underwriting agents at Lloyd's who are managing agents. Like Saville J. and the Court of Appeal, I have no difficulty in concluding that the principle is indeed capable of such application. The principle has been expressly applied to a number of different categories of person who perform services of a professional or quasi-professional nature, such as bankers (in Hedley Byrne itself); solicitors (as foreshadowed by Lord Devlin in Hedley Byrne, and as held in the leading

case of Midland Bank Trust Co. Ltd v. Hett, Stubbs & Kemp [1979] Ch. 384, and other cases in which that authority had been followed); surveyors and valuers (as in Smith v. Eric S. Bush [1990] 1 A.C. 831); and accountants (as in Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605). Another category of persons to whom the principle has been applied, and on which particular reliance was placed by the Names in the courts below and in argument before your Lordships, is insurance brokers. As Phillips J. pointed out in Youell v. Bland Welch & Co. Ltd. (No. 2) [1990] 2 Lloyd's Rep. 431, 459, it has been accepted, since before 1964, that an insurance broker owes a duty of care in negligence towards his client, whether the broker is bound by contract or not. Furthermore, in Punjab National Bank v. de Boinville [1992] 1 Lloyd's Rep. 7 it was held by the Court of Appeal, affirming the decision of Hobhouse J., that a duty of care was owed by an insurance broker not only to his client but also to a specific person whom he knew was to become an assignee of the policy. For my part I can see no reason why a duty of care should not likewise be owed by managing agents at Lloyd's to a Name who is a member of a syndicate under the management of the agents. Indeed, as Saville J. and the Court of Appeal both thought, the relationship between Name and managing agent appears to provide a classic example of the type of relationship to which the principle in Hedley Byrne applies. In so saying, I put on one side the question of the impact, if any, upon the relationship of the contractual context in which it is set. But, that apart, there is in my opinion plainly an assumption of responsibility in the relevant sense by the managing agents towards the Names in their syndicates. The managing agents have accepted the Names as members of a syndicate under their management. They obviously hold themselves out as possessing a special expertise to advise the Names on the suitability of risks to be underwritten; and on the circumstances in which, and the extent to which, reinsurance should be taken out and claims should be settled. The Names, as the managing agents well knew, placed implicit reliance on that expertise, in that they gave authority to the managing agents to bind them to contracts of insurance and reinsurance and to the settlement of claims. I can see no escape from the conclusion that, in these circumstances, prima facie a duty of care is owed in tort by the managing agents to such Names. To me, it does not matter if one proceeds by way of analogy from the categories of relationship already recognised as falling within the principle in Hedley Byrne [1964] A.C. 465 or by a straight application of the principle stated in the Hedley Byrne case itself. On either basis the conclusion is, in my opinion, clear. Furthermore, since the duty rests on the principle in Hedley Byrne, no problem arises from the fact that the loss suffered by the Names is pure economic loss.

This conclusion is, however, subject to the impact, if any, of the contractual context. In argument before your Lordships this was regarded as constituting the main basis for the managing agents' challenge to the conclusion on this point of the courts below. To this point I must therefore turn; but before I do so I propose to consider briefly, if only to put it on one side, the question whether, under the pre-1985 forms of agreement, a duty of care on the part of the managing agents was excluded

by the absolute discretion vested in them under their contract with the direct Names, or with the members' agents in cases involving indirect Names.

5. Absolute discretion

I can deal with this point briefly because, like the Court of Appeal, I agree with Saville J. that there is no substance in it. It was the submission of the managing agents in the Merrett appeals before your Lordships, as it had been before Saville J., that there was an unbroken line of authority supporting the proposition that the expression "absolute discretion" in the context of a private law agreement meant that the exercise of the power given by the agreement to the recipient of the power cannot be challenged by the donor or beneficiary of the power unless (a) the exercise of the power is in bad faith, or (b) (arguably) the exercise of the power is totally unreasonable. It followed, so the argument ran, that a duty to exercise due skill or care, whether contractual or extra-contractual, was inconsistent with the bargain and so must be excluded. However, it appears to me, as it did to the judge, that in the present context the words used cannot have the effect of excluding a duty of care, contractual or otherwise. Clear words are required to exclude liability in negligence; and in the present case the words can, and in my opinion should, be directed towards the scope of the agents' authority. No doubt the result is that very wide authority has been vested in the agents; but the suggestion that the agent should as a result be under no duty to exercise due skill and care in the exercise of his function under the agreement is, in the present context, most surprising. I am content to adopt the following passage from the judgment of Saville J. as my own:

"As I have said in other cases, Lloyd's could not exist as an insurance and reinsurance market unless the business is conducted by professionals who must be given the widest possible powers to act on behalf of the Names. Thus the underwriting agency agreement makes absolutely clear that the Name must leave it exclusively to the underwriting agents actually to run the business. The standard of behaviour to be expected of the underwriting agents in carrying out this task is an entirely different matter. The underwriting agency agreement contains no express provisions in this regard, but I do not find this in the least surprising, since it seems to me literally to go without saying that the underwriting agents must act with reasonable care and skill in exercising their authority and carrying on the underwriting business on behalf of the Name. The very fact that the agents are given the widest possible authority to act on behalf of the Name, together with the fact that the Name's potential liability for the actions of the agents is unlimited and the further fact that the agents receive remuneration for exercising their professional skills on behalf of the Name, seem to me to point irresistibly to the conclusion that in such a relationship the law does (as a matter of common sense it should) impose a duty of reasonable care and skill upon the underwriting agents of the kind alleged by the Names, which could only be modified or excluded by clear agreement between the parties. I can find nothing in the underwriting agency agreement which

indicates that this duty (the ordinary one owed by any professional person) is in any way modified or excluded in the present cases, nor to my mind is there anything of relevance in this context in the sub-agency agreement."

For these reasons I am, like both courts below, unable to accept the managing agents' argument on this point. With this point out of the way I can turn to the main argument on this part of the case, relating to the impact of the contractual context.

6. The impact of the contractual context

All systems of law which recognise a law of contract and a law of tort (or delict) have to solve the problem of the possibility of concurrent claims arising from breach of duty under the two rubrics of the law. Although there are variants, broadly speaking two possible solutions present themselves: either to insist that the claimant should pursue his remedy in contract alone, or to allow him to choose which remedy he prefers. As my noble and learned friend, Lord Mustill, and I have good reason to know (see J. Braconnot et Cie. v. Compagnie des Messageries Maritimes (The Sindh) [1975] 1 Lloyd's Rep. 372), France has adopted the former solution in its doctrine of non cumul, under which the concurrence of claims in contract and tort is outlawed (see Tony Weir in XI Int.Encycl.Comp.L.,ch. 12, paras. 47-72, at paragraph 52). The reasons given for this conclusion are (1) respect for the will of the legislator, and (2) respect for the will of the parties to the contract (see paragraph 53). The former does not concern us; but the latter is of vital importance. It is however open to various interpretations. For such a policy does not necessarily require the total rejection of concurrence, but only so far as a concurrent remedy in tort is inconsistent with the terms of the contract. It comes therefore as no surprise to learn that the French doctrine is not followed in all civil law jurisdictions, and that concurrent remedies in tort and contract are permitted in other civil law countries, notably Germany (see paragraph 58). I only pause to observe that it appears to be accepted that no perceptible harm has come to the German system from admitting concurrent claims.

The situation in common law countries, including of course England, is exceptional, in that the common law grew up within a procedural framework uninfluenced by Roman law. The law was categorised by reference to the forms of action, and it was not until the abolition of the forms of action by the Common Law Procedure Act 1852 (15 & 16 Vict. c. 76) that it became necessary to reclassify the law in substantive terms. The result was that common lawyers did at last segregate our law of obligations into contract and tort, though in so doing they relegated quasi-contractual claims to the status of an appendix to the law of contract, thereby postponing by a century or so the development of a law of restitution. Even then, there was no systematic reconsideration of the problem of concurrent claims in contract and tort. We can see the courts rather grappling with unpromising material drawn from the old cases in which liability in negligence derived largely from categories based upon the status of the defendant. In a sense, we must not be surprised; for no

significant law faculties were established at our universities until the late 19th century, and so until then there was no academic opinion available to guide or stimulate the judges. Even so, it is a remarkable fact that there was little consideration of the problem of concurrent remedies in our academic literature until the second half of the 20th century, though in recent years the subject has attracted considerable attention.

In the result, the courts in this country have until recently grappled with the problem very largely without the assistance of systematic academic study. At first, as is shown in particular by cases concerned with liability for solicitors' negligence, the courts adopted something very like the French solution, holding that a claim against a solicitor for negligence must be pursued in contract, and not in tort (see, e.g., Bean v. Wade (1885) 2 T.L.R. 157); and in Groom v. Crocker [1939] 1 K.B. 194, this approach was firmly adopted. It has to be said, however, that decisions such as these, though based on prior authority, were supported by only a slender citation of cases, none of great weight; and the jurisprudential basis of the doctrine so adopted cannot be said to have been explored in any depth. Furthermore when, in Bagot v. Stevens Scanlan & Co. Ltd. [1966] 1 Q.B. 197, Diplock L.J. adopted a similar approach in the case of a claim against a firm of architects, he felt compelled to recognise (pp. 204-205) that a different conclusion might be reached in cases "where the law in the old days recognised either something in the nature of a status like a public calling (such as common carrier, common innkeeper, or a bailor and bailee) or the status of master and servant." To this list must be added cases concerned with claims against doctors and dentists. I must confess to finding it startling that, in the second half of the 20th century, a problem of considerable practical importance should fall to be solved by reference to such an outmoded form of categorisation as this.

I think it is desirable to stress at this stage that the question of concurrent liability is by no means only of academic significance. Practical issues, which can be of great importance to the parties, are at stake. Foremost among these is perhaps the question of limitation of actions. If concurrent liability in tort is not recognised, a claimant may find his claim barred at a time when he is unaware of its existence. This must moreover be a real possibility in the case of claims against professional men, such as solicitors or architects, since the consequences of their negligence may well not come to light until long after the lapse of six years from the date when the relevant breach of contract occurred. Moreover the benefits of the Latent Damage Act 1986, under which the time of the accrual of the cause of action may be postponed until after the plaintiff has the relevant knowledge, are limited to actions in tortious negligence. This leads to the startling possibility that a client who has had the benefit of gratuitous advice from his solicitor may in this respect be better off than a client who has paid a fee. Other practical problems arise, for example, from the absence of a right to contribution between negligent contract-breakers; from the rules as to remoteness of damage, which are less restricted in tort than they are in contract; and from the availability of the opportunity to obtain leave to serve proceedings out of the jurisdiction. It can of course be argued that the principle established in respect of concurrent

liability in contract and tort should not be tailored to mitigate the adventitious effects of rules of law such as these, and that one way of solving such problems would no doubt be to rephrase such incidental rules as have to remain in terms of the nature of the harm suffered rather than the nature of the liability asserted (see Tony Weir, XI Int.Encycl.Comp.L. ch.12, para. 72). But this is perhaps crying for the moon; and with the law in its present form, practical considerations of this kind cannot sensibly be ignored.

Moreover I myself perceive at work in these decisions not only the influence of the dead hand of history, but also what I have elsewhere called the temptation of elegance. Mr. Tony Weir (XI Int.Encycl.Comp.L. ch.12, para. 55) has extolled the French solution for its elegance; and we can discern the same impulse behind the much-quoted observation of Lord Scarman when delivering the judgment of the Judicial Committee of the Privy Council in Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd. [1986] A.C. 80, 107:

"Their Lordships do not believe that there is anything to the advantage of the law's development in searching for a liability in tort where the parties are in a contractual relationship. This is particularly so in a commercial relationship. Though it is possible as a matter of legal semantics to conduct an analysis of the rights and duties inherent in some contractual relationships including that of banker and customer either as a matter of contract law when the question will be what, if any, terms are to be implied or as a matter of tort law when the task will be to identify a duty arising from the proximity and character of the relationship between the parties, their Lordships believe it to be correct in principle and necessary for the avoidance of confusion in the law to adhere to the contractual analysis: on principle because it is a relationship in which the parties have, subject to a few exceptions, the right to determine their obligations to each other, and for the avoidance of confusion because different consequences do follow according to whether liability arises from contract or tort, e.g. in the limitation of action."

It is however right to stress, as did Sir Thomas Bingham M.R. in the present case, that the issue in the Tai Hing case was whether a tortious duty of care could be established which was more extensive than that which was provided for under the relevant contract.

At all events, even before the Tai Hing case we can see the beginning of the redirection of the common law away from the contractual solution adopted in Groom v. Crocker [1939] 1 K.B. 194, towards the recognition of concurrent remedies in contract and tort. First, and most important, in 1963 came the decision of your Lordships' House in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465. I have already expressed the opinion that the fundamental importance of this case rests in the establishment of the principle upon which liability may arise in tortious negligence in respect of services (including advice) which are rendered for another, gratuitously or otherwise, but are negligently performed - viz., an assumption of responsibility coupled with reliance by the plaintiff which, in all the circumstances, makes it appropriate that a

remedy in law should be available for such negligence. For immediate purposes, the relevance of the principle lies in the fact that, as a matter of logic, it is capable of application not only where the services are rendered gratuitously, but also where they are rendered under a contract. Furthermore we can see in the principle an acceptable basis for liability in negligence in cases which in the past have been seen to rest upon the now outmoded concept of status. In this context, it is of particular relevance to refer to the opinion expressed both implicitly by Lord Morris of Borth-y-Gest (with whom Lord Hodson agreed) and expressly by Lord Devlin that the principle applies to the relationship of solicitor and client, which is nearly always contractual: see pp. 465, 497-499 (where Lord Morris approved the reasoning of Chitty J. in Cann v. Willson (1888) 39 Ch.D. 39), and p. 529 ( per Lord Devlin).

The decision in Hedley Byrne, and the statement of general principle in that case, provided the opportunity to reconsider the question of concurrent liability in contract and tort afresh, untrammelled by the ancient learning based upon a classification of defendants in terms of status which drew distinctions difficult to accept in modern conditions. At first that opportunity was not taken. Groom v. Crocker [1939] 1 K.B. 194 was followed by the Court of Appeal in Cook v. Swinfen [1967] 1 W.L.R. 457, and again in Heywood v. Wellers [1976] Q.B. 446; though in the latter case Lord Denning M.R., at p. 459, was beginning to show signs of dissatisfaction with the contractual test accepted in Groom v. Crocker - a dissatisfaction which crystallised into a change of heart in Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801. That case was concerned with statements made by employees of Esso in the course of precontractual negotiations with Mr. Mardon, the prospective tenant of a petrol station. The statements related to the potential throughput of the station. Mr. Mardon was persuaded by the statements to enter into the tenancy; but he suffered serious loss when the actual throughput proved to be much lower than had been predicted. The Court of Appeal held that Mr. Mardon was entitled to recover damages from Esso, on the basis of either breach of warranty or (on this point affirming the decision of the judge below) negligent misrepresentation. In rejecting an argument that Esso's liability could only be contractual, Lord Denning M.R. dismissed Groom v. Crocker [1939] 1 K.B. 194 and Bagot v. Stevens Scanlan & Co. Ltd. [1966] 1 Q.B. 197 as inconsistent with other decisions of high authority, viz. Boorman v. Brown (1842) 3 Q.B. 511, 525-526, per Tindal C.J., and (1844) 11 Cl. & F. 1, 44, per Lord Campbell; Lister v. Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555, 587, per Lord Radcliffe; Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57 and Nocton v. Lord Ashburton [1914] A.C. 932, 956, per Viscount Haldane L.C. He then held that, in addition to its liability in contract, Esso was also liable in negligence. The other members of the Court of Appeal, Ormrod and Shaw L.JJ., agreed that Mr. Mardon was entitled to recover damages either for breach of warranty or for negligent misrepresentation, though neither expressed any view about the status of Groom v. Crocker [1939] 1 K.B. 194. It was however implicit in their decision that, as Lord Denning M.R. held, concurrent remedies were available to Mr. Mardon in contract and tort. For present purposes, I do not find it necessary to

comment on the authorities relied upon by Lord Denning as relieving him from the obligation to follow Groom v. Crocker; though I feel driven to comment that the judgments in Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801 reveal no analysis in depth of the basis upon which concurrent liability rests. That case was however followed by the Court of Appeal in Batty v. Metropolitan Property Realisations Ltd. [1978] Q.B. 554, in which concurrent remedies in contract and tort were again allowed.

The requisite analysis is however to be found in the judgment of Oliver J. in Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 384, in which he held that a solicitor could be liable to his client for negligence either in contract or in tort, with the effect that in the case before him it was open to the client to take advantage of the more favourable date of accrual of the cause of action for the purposes of limitation. In that case, Oliver J. was much concerned with the question whether it was open to him, as a judge of first instance, to depart from the decision of the Court of Appeal in Groom v. Crocker [1939] 1 K.B. 194. For that purpose, he carried out a most careful examination of the relevant authorities, both before and after Groom v. Crocker, and concluded that he was free to depart from the decision in that case, which he elected to do.

It is impossible for me to do justice to the reasoning of Oliver J., for which I wish to express my respectful admiration, without unduly prolonging what is inevitably a very long opinion. I shall therefore confine myself to extracting certain salient features. First, from his study of the cases before Groom v. Crocker, he found no unanimity of view that the solicitor's liability was regarded as exclusively contractual. Some cases (such as Howell v. Young (1826) 5 B. & C. 259) he regarded as equivocal. In others, he understood the judges to regard contract and tort as providing alternative causes of action (see In re Manby and Hawksford (1856) 26 L.J.Ch. 313, 317 and Sawyer v. Goodwin (1867) 36 L.J.Ch. 578, 582, in both cases per Stuart V.-C., and most notably Nocton v. Lord Ashburton [1914] A.C. 932, 956, per Viscount Haldane L.C.). However Bean v. Wade (1885) 2 T.L.R. 157, briefly reported in the Times Law Reports and by no means extensively referred to, provided Court of Appeal authority that the remedy was exclusively contractual; and it was that case which was principally relied upon by the Court of Appeal in Groom v. Crocker [1939] 1 K.B. 194 when reaching the same conclusion. Oliver J. put on one side those cases, decided for the purpose of section 11 of the County Courts Act 1915, under which a different statutory test had to be complied with, viz. whether the action was one "founded on a contract" or "founded on a tort."

It is evident that the early authorities did not play a very significant part in Oliver J.'s decision (see [1979] Ch. 384, 411C-D). He loyally regarded Groom v. Crocker as prima facie binding upon him. His main concern was with the impact of the decision of this House in Hedley Byrne [1964] A.C. 465, and of subsequent cases in the Court of Appeal in which Hedley Byrne had been applied. As he read the speeches in Hedley Byrne, the principle there stated was not limited to circumstances in which the responsibility of the defendant had been gratuitously assumed. He referred in particular to the statement of principle by Lord Morris of

Borth-y-Gest, at pp. 502-503, which I have already quoted, and said, at p. 411:

"The principle was stated by Lord Morris of Borth-y-Gest as a perfectly general one and it is difficult to see why it should be excluded by the fact that the relationship of dependence and reliance between the parties is a contractual one rather than one gratuitously assumed, in the absence, of course, of contractual terms excluding or restricting the general duties which the law implies."

Oliver J. went on, at p. 412, to quote from the dissenting judgment of Denning L.J. in Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164, 179-180 (a passage approved by Lord Pearce in Hedley Byrne [1964] A.C. 465, 538) and said, at p. 413:

"Now, in that passage, I think that it is abundantly clear that Denning L.J. was seeking to enunciate a general principle of liability arising from the relationship created by the assumption of a particular work or responsibility, quite regardless of how the relationship arose. . . . The inquiry upon which the court is to embark is 'what is the relationship between the plaintiff and defendant?' not 'how did the relationship, if any, arise?' That this is so appears, I think, with complete clarity from subsequent cases."

Later he said, at p. 415:

"The matter becomes, in my judgment, even clearer when one looks at the speech of Lord Devlin in the Hedley Byrne case [1964] A.C. 465, for he treats the existence of a contractual relationship as very good evidence of the general tortious duty which he is there discussing. He said, at pp. 528-529: 'I think, therefore, that there is ample authority to justify your Lordships in saying now that the categories of special relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Nocton v. Lord Ashburton [1914] A.C. 932, 972, are "equivalent to contract," that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract.' "

He expressed his conclusion concerning the impact of Hedley Byrne on the case before him in the following words, at p. 417:

"The case of a layman consulting a solicitor for advice seems to me to be as typical a case as one could find of the sort of relationship in which the duty of care described in the Hedley Byrne case [1964] A.C. 465 exists; and if I am free to do so in the instant case, I would, therefore, hold that the relationship of solicitor and client gave rise to a duty in the defendants under the general law to exercise that care and skill upon which they must have known perfectly well that their client relied. To put it another way, their common law duty was not to injure their client by failing to do that which they had undertaken to do and which, at their invitation, he relied upon them to do. That

duty was broken, but no cause of action in tort arose until the damage occurred; and none did occur until 17 August 1967. I would regard it as wholly immaterial that their duty arose because they accepted a retainer which entitled them, if they chose to do so, to send a bill to their client."

I wish to express my respectful agreement with these passages in Oliver J.'s judgment.

Thereafter, Oliver J. proceeded to consider the authorities since Hedley Byrne, in which he found, notably in statements of the law by members of the Appellate Committee in Arenson v. Arenson [1977] A.C. 405 and in the decision of the Court of Appeal in Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801, the authority which relieved him of his duty to follow Groom v. Crocker [1939] 1 K.B. 194. But I wish to add that, in the course of considering the later authorities, he rejected the idea that there is some general principle of law that a plaintiff who has claims against a defendant for breach of duty both in contract and in tort is bound to rely upon his contractual rights alone. He said, at p. 420:

"There is not and never has been any rule of law that a person having alternative claims must frame his action in one or the other. If I have a contract with my dentist to extract a tooth, I am not thereby precluded from suing him in tort if he negligently shatters my jaw: Edwards v. Mallan [1908] 1 K.B. 1002; . . ."

The origin of concurrent remedies in this type of case may lie in history; but in a modern context the point is a telling one. Indeed it is consistent with the decision in Donoghue v. Stevenson [1932] A.C. 562 itself, and the rejection in that case of the view, powerfully expressed in the speech of Lord Buckmaster (see, in particular, pp. 577-578), that the manufacturer or repairer of an article owes no duty of care apart from that implied from contract or imposed by statute. That there might be co-existent remedies for negligence in contract and in tort was expressly recognised by Lord Macmillan in Donoghue v. Stevenson, at p. 610, and by Lord Wright in Grant v. Australian Knitting Mills Ltd. [1936] A.C. 85, 102-104. Attempts have been made to explain how doctors and dentists may be concurrently liable in tort while other professional men may not be so liable, on the basis that the former cause physical damage whereas the latter cause pure economic loss (see the discussion by Christine French in (1981-84) 5 Otago L.R. 236, 280-281). But this explanation is not acceptable, if only because some professional men, such as architects, may also be responsible for physical damage. As a matter of principle, it is difficult to see why concurrent remedies in tort and contract, if available against the medical profession, should not also be available against members of other professions, whatever form the relevant damage may take.

The judgment of Oliver J. in the Midland Bank Trust Co. case [1979] Ch. 384 provided the first analysis in depth of the question of concurrent liability in tort and contract. Following upon Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801, it also broke the mould, in the sense that it undermined the view which was becoming settled that, where there is an alternative liability in tort, the claimant must pursue his remedy in

contract alone. The development of the case law in other common law countries is very striking. In the same year as the Midland Bank Trust Co. case, the Irish Supreme Court held that solicitors owed to their clients concurrent duties in contract and tort: see Finlay v. Murtagh [1979] I.R. 249. Next, in Central Trust Co. v. Rafuse (1986) 31 D.L.R. (4th) 481, Le Dain J., delivering the judgment of the Supreme Court of Canada, conducted a comprehensive and most impressive survey of the relevant English and Canadian authorities on the liability of solicitors to their clients for negligence, in contract and in tort, in the course of which he paid a generous tribute to the analysis of Oliver J. in the Midland Bank Trust Co. case. His conclusions are set out in a series of propositions at pp. 521-522; but his general conclusion was to the same effect as that reached by Oliver J. He said, at p. 522:

"A concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or limitation of liability for the act or omission that would constitute the tort. Subject to this qualification, where concurrent liability in tort and contract exists the plaintiff has the right to assert the cause of action that appears to be the most advantageous to him in respect of any particular legal consequence."

I respectfully agree.

Meanwhile in New Zealand the Court of Appeal had appeared at first, in McLaren Maycroft & Co. v. Fletcher Development Co. Ltd. [1973] 2 N.Z.L.R. 100, to require that, in cases where there are concurrent duties in contract and tort, the claimant must pursue his remedy in contract alone. There followed a period of some uncertainty, in which differing approaches were adopted by courts of first instance. In 1983 Miss Christine French published her article on "The Contract/Tort Dilemma" in (1981-84) 5 Otago L.R. 236, in which she examined the whole problem in great depth, with special reference to the situation in New Zealand, having regard to the "rule" in McLaren Maycroft. Her article, to which I wish to pay tribute, was of course published before the decision of the Supreme Court of Canada in the Central Trust case. Even so, she reached a conclusion which, on balance, favoured a freedom for the claimant to choose between concurrent remedies in contract and tort. Thereafter in Rowlands v. Callow [1992] 1 N.Z.L.R. 178 Thomas J., founding himself principally on the Central Trust case and on Miss French's article, concluded that he was free to depart from the decision of the New Zealand Court of Appeal in the McLaren Maycroft case and to hold that a person performing professional services (in the case before him an engineer) may be sued for negligence by his client either in contract or in tort. He said, at p. 190:

"The issue is now virtually incontestable; a person who has performed professional services may be held liable concurrently in contract and in negligence unless the terms of the contract preclude the tortious liability."

In Australia, too, judicial opinion appears to be moving in the same direction, though not without dissent: see, in particular, Aluminum

Products (Qld.) Pty. Ltd. v. Hill [1981] Qd.R. 33 (a decision of the Full Court of the Supreme Court of Queensland) and Macpherson & Kelley v. Kevin J. Prunty & Associates [1983] 1 V.R. 573 (a decision of the Full Court of the Supreme Court of Victoria). A different view has however been expressed by Deane J. in Hawkins v. Clayton (1988) 164 C.L.R. 539, 585, to which I will return later. In principle, concurrent remedies appear to have been accepted for some time in the United States (see Prosser's Handbook on the Law of Torts, 7th ed. (1984), p. 444), though with some variation as to the application of the principle in particular cases. In these circumstances it comes as no surprise that Professor Fleming, writing in 1992, should state that "the last ten years have seen a decisive return to the 'concurrent' approach" (see The Law of Torts, 8th ed. (1992), p. 187).

I have dealt with the matter at some length because, before your Lordships, Mr. Temple, for the managing agents, boldly challenged the decision of Oliver J. in the Midland Bank Trust Co. case [1979] Ch. 384, seeking to persuade your Lordships that this House should now hold that case to have been wrongly decided. This argument was apparently not advanced below, presumably because Oliver J.'s analysis had received a measure of approval in the Court of Appeal: see, e.g., Forster v. Outred & Co. [1982] 1 W.L.R. 86, 99, per Dunn L.J. Certainly there has been no sign of disapproval, even where the Midland Bank Trust Co. case has been distinguished: see Bell v. Peter Browne & Co. [1990] 2 Q.B. 495.

Mr. Temple adopted as part of his argument the reasoning of Mr. J. M. Kaye in an article "The Liability of Solicitors in Tort" (1984) 100 L.Q.R. 680. In his article, Mr. Kaye strongly criticised the reasoning of Oliver J. both on historical grounds and with regard to his interpretation of the speeches in the Hedley Byrne case [1964] A.C. 465. However, powerful though Mr. Kaye's article is, I am not persuaded by it to treat the Midland Bank Trust Co. case [1979] Ch. 384 as wrongly decided. First, so far as the historical approach is concerned, this is no longer of direct relevance in a case such as the present, having regard to the development of the general principle in Hedley Byrne. No doubt it is correct that, in the 19th century, liability in tort depended upon the category of persons into which the defendant fell, with the result that in those days it did not necessarily follow that, because (for example) a surgeon owed an independent duty of care to his patient in tort irrespective of contract, other professional men were under a similar duty. Even so, as Mr. Boswood for the Names stressed, if the existence of a contract between a surgeon and his patient did not preclude the existence of a tortious duty to the patient in negligence, there is no reason in principle why a tortious duty should not co-exist with a contractual duty in the case of the broad duty of care now recognised following the generalisation of the tort of negligence in the 20th century.

So far as Hedley Byrne itself is concerned, Mr. Kaye reads the speeches as restricting the principle of assumption of responsibility there established to cases where there is no contract; indeed, on this he tolerates no dissent, stating (at p. 706) that "unless one reads [Hedley Byrne] with deliberate intent to find obscure or ambiguous passages" it will not bear the interpretation favoured by Oliver J. I must confess however that, having

studied yet again the speeches in Hedley Byrne [1964] A.C. 465 in the light of Mr. Kaye's critique, I remain of the opinion that Oliver J.'s reading of them is justified. It is, I suspect, a matter of the angle of vision with which they are read. For here, I consider, Oliver J. was influenced not only by what he read in the speeches themselves, notably the passage from Lord Devlin's speech at pp. 528-529 (quoted above), but also by the internal logic reflected in that passage, which led inexorably to the conclusion which he drew. Mr. Kaye's approach involves regarding the law of tort as supplementary to the law of contract, i.e. as providing for a tortious liability in cases where there is no contract. Yet the law of tort is the general law, out of which the parties can, if they wish, contract; and, as Oliver J. demonstrated, the same assumption of responsibility may, and frequently does, occur in a contractual context. Approached as a matter of principle, therefore, it is right to attribute to that assumption of responsibility, together with its concomitant reliance, a tortious liability, and then to inquire whether or not that liability is excluded by the contract because the latter is inconsistent with it. This is the reasoning which Oliver J., as I understand it, found implicit, where not explicit, in the speeches in Hedley Byrne. With his conclusion I respectfully agree. But even if I am wrong in this, I am of the opinion that this House should now, if necessary, develop the principle of assumption of responsibility as stated in Hedley Byrne to its logical conclusion so as to make it clear that a tortious duty of care may arise not only in cases where the relevant services are rendered gratuitously, but also where they are rendered under a contract. This indeed is the view expressed by my noble and learned friend, Lord Keith of Kinkel, in Murphy v. Brentwood District Council [1991] 1 A.C. 398, 466, in a speech with which all the other members of the Appellate Committee agreed.

An alternative approach, which also avoids the concurrence of tortious and contractual remedies, is to be found in the judgment of Deane J. in Hawkins v. Clayton, 164 C.L.R. 539, 582-586, in which he concluded, at p. 585:

"On balance, however, it seems to me to be preferable to accept that there is neither justification nor need for the implication of a contractual term which, in the absence of actual intention of the parties, imposes upon a solicitor a contractual duty (with consequential liability in damages for its breach) which is coextensive in content and concurrent in operation with a duty (with consequential liability in damages for its breach) which already exists under the common law of negligence."

It is however my understanding that by the law in this country contracts for services do contain an implied promise to exercise reasonable care (and skill) in the performance of the relevant services; indeed, as Mr. Tony Weir has pointed out (XI Int.Encycl.Comp.L., ch. 12, para. 67), in the 19th century the field of concurrent liabilities was expanded "since it was impossible for the judges to deny that contracts contained an implied promise to take reasonable care, at the least, not to injure the other party." My own belief is that, in the present context, the common law is not antipathetic to concurrent liability, and that there is no sound

basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy. The result may be untidy; but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him, subject only to ascertaining whether the tortious duty is so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded.

In the circumstances of the present case, I have not regarded it as necessary or appropriate to embark upon yet another detailed analysis of the case law, choosing rather to concentrate on those authorities which appear to me to be here most important. I have been most anxious not to overburden an inevitably lengthy opinion with a discussion of an issue which is only one (though an important one) of those which fall for decision; and, in the context of the relationship of solicitor and client, the task of surveying the authorities has already been admirably performed by both Oliver J. and Le Dain J. But, for present purposes more important, in the instant case liability can, and in my opinion should, be founded squarely on the principle established in Hedley Byrne itself, from which it follows that an assumption of responsibility coupled with the concomitant reliance may give rise to a tortious duty of care irrespective of whether there is a contractual relationship between the parties, and in consequence, unless his contract precludes him from doing so, the plaintiff, who has available to him concurrent remedies in contract and tort, may choose that remedy which appears to him to be the most advantageous.

7. Application of the above principles in the present case

I have already concluded that prima facie a duty of care was owed in tort on the Hedley Byrne principle by managing agents both to direct Names and indirect Names. So far as the direct Names are concerned, there is plainly a contract between them and the managing agents, in the terms of the pre-1985 byelaw form of agency agreement, in which a term falls to be implied that the agents will exercise due care and skill in the exercise of their functions as managing agents under the agreement. That duty of care is no different from the duty of care owed by them to the relevant Names in tort; and, having regard to the principles already stated, the contract does not operate to exclude the tortious duty, leaving it open to the Names to pursue either remedy against the agents.

I turn to the indirect Names. Here there is, as I see it, no material distinction between the claims of the Names in the Merrett actions, and those of the Names in the Feltrim actions. True, the former arise in the context of the pre-1985 byelaw forms of agency and sub-agency agreements, whereas the latter arise in the context of the forms of agreement prescribed by the 1985 byelaw. However in both cases there must be implied into the sub-agency agreements a duty upon the managing agents to exercise due skill and care. A similar responsibility must rest upon the members' agents under the 1985 byelaw form of agency agreement, and I will assume that the same applies under the pre-1985 byelaw form (though the point does not arise for decision by your

Lordships). In neither case, however, is there any material difference between the relevant contractual duty and any duty which is owed by the managing agents to the relevant Names in tort. It is however submitted on behalf of the managing agents that the indirect Names and the managing agents, as parties to the chain of contracts contained in the relevant agency and sub-agency agreements, must be taken to have thereby structured their relationship so as to exclude any duty of care owed directly by the managing agents to the indirect Names in tort.

In essence the argument must be that, because the managing agents have, with the consent of the indirect Names, assumed responsibility in respect of the relevant activities to another party, i.e. the members' agents, under a sub-agency agreement, it would be inconsistent to hold that they have also assumed responsibility in respect of the same activities to the indirect Names. I for my part cannot see why in principle a party should not assume responsibility to more than one person in respect of the same activity. Let it be assumed (unlikely though it may be) that, in the present case, the managing agents were in a contractual relationship not only with the members' agents under a sub-agency agreement but also directly with the relevant Names, under both of which they assumed responsibility for the same activities. I can see no reason in principle why the two duties of care so arising should not be capable of co-existing.

Of course I recognise that the present case presents the unusual feature that claims against the managing agents, whether by the members' agents under the sub-agency agreement or by the indirect Names in tort, will in both cases have the purpose, immediate or ultimate, of obtaining compensation for the indirect Names. In these circumstances, concurrent duties of care could, in theory at least, give rise to problems, for example in the event of the insolvency of the managing agents or the members' agents. Furthermore, as Mr. Temple suggested in the course of his submissions on behalf of the managing agents, questions of contribution might, at least in theory, arise. But your Lordships' task, like that of the courts below, is to answer the questions of principle raised by the issues presented for decision; and in these circumstances it would be quite wrong to embark upon the examination of questions which do not arise on those issues, and indeed may never arise in practice. For myself, I am all the more reluctant to do so since, because the liability (if any) of the managing agents will in each case flow from claims by the indirect Names, it may well be that practical problems such as these will, if they arise, find a practical solution.

I wish however to add that I strongly suspect that the situation which arises in the present case is most unusual; and that in many cases in which a contractual chain comparable to that in the present case is constructed it may well prove to be inconsistent with an assumption of responsibility which has the effect of, so to speak, short circuiting the contractual structure so put in place by the parties. It cannot therefore be inferred from the present case that other sub-agents will be held directly liable to the agent's principal in tort. Let me take the analogy of the common case of an ordinary building contract, under which main contractors contract with the building owner for the construction of the

relevant building, and the main contractor sub-contracts with sub-contractors or suppliers (often nominated by the building owner) for the performance of work or the supply of materials in accordance with standards and subject to terms established in the sub-contract. I put on one side cases in which the sub-contractor causes physical damage to property of the building owner, where the claim does not depend on an assumption of responsibility by the sub-contractor to the building owner; though the sub-contractor may be protected from liability by a contractual exemption clause authorised by the building owner. But if the sub-contracted work or materials do not in the result conform to the required standard, it will not ordinarily be open to the building owner to sue the sub-contractor or supplier direct under the Hedley Byrne principle, claiming damages from him on the basis that he has been negligent in relation to the performance of his functions. For there is generally no assumption of responsibility by the sub-contractor or supplier direct to the building owner, the parties having so structured their relationship that it is inconsistent with any such assumption of responsibility. This was the conclusion of the Court of Appeal in Simaan General Contracting Co. v. Pilkington Glass Ltd. (No. 2) [1988] Q.B. 758. As Bingham L.J. put it, at p. 781:

"I do not, however, see any basis on which [the nominated suppliers] could be said to have assumed a direct responsibility for the quality of the goods to [the building owners]: such a responsibility is, I think, inconsistent with the structure of the contract the parties have chosen to make."

It is true that, in this connection, some difficulty has been created by the decision of your Lordships' House in Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 A.C. 520. In my opinion, however, it is unnecessary for your Lordships to reconsider that decision for the purposes of the present appeal. Here however I can see no inconsistency between the assumption of responsibility by the managing agents to the indirect Names, and that which arises under the sub-agency agreement between the managing agents and the members' agents, whether viewed in isolation or as part of the contractual chain stretching back to and so including the indirect Names. For these reasons, I can see no reason why the indirect Names should not be free to pursue their remedy against the managing agents in tort under the Hedley Byrne principle.

I. Merrett and Feltrim appeals

B. Fiduciary duty

The question arising under this issue is whether Merretts acting as managing agents (whether or not they are also members' agents) owed the Names a fiduciary duty to conduct the underwriting for the account of the Names with reasonable skill for the 1979 to 1985 underwriting years of account (inclusive) equivalent to the alleged duty of care in tort.

Both Saville J. and the Court of Appeal declined to address this question since having regard to the manner in which they decided the issue on the tortious duty of care, the question did not arise. Having

regard to the conclusion which I have reached on the tortious duty, I likewise do not think it necessary for your Lordships' House to address the question of fiduciary duty.

II. Feltrim and Gooda Walker appeals: liability of members' agents to Names during the period 1987-1989

Saville J. held that this issue should be decided against the members' agents, and his decision was affirmed by the Court of Appeal, for the same reasons. As a result it was held that, under agency agreements in the form prescribed by Lloyd's byelaw No. 1 of 1985, members' agents are responsible to the Names for any failure to exercise reasonable skill and care on the part of managing agents to whom underwriting has been delegated by the members' agents; and that the members agents are not required to exercise skill and care only in relation to those activities and functions which members' agents by custom and practice actually perform for the Names personally.

This issue raises a question of construction of the prescribed form of agency agreement. Since however the prescribed forms of agency and sub-agency agreements together constitute the contractual regime established by the byelaw, it follows that the agency agreement should not be considered in isolation, but as forming, together with the sub-agency agreement, a coherent whole which, in a case concerned with indirect Names, regulates the contractual relationship between Name, members' agent and managing agent. Furthermore it is not to be forgotten that, in a case concerned with a combined agent, the agency agreement may fulfil the dual function of regulating the functions of the combined agent both in its role as members' agent, and in its role as managing agent in respect of any syndicate under its management of which the Name is a member.

In order to consider this question of construction I think it desirable that I should, like Sir Thomas Bingham M.R., first set out the terms of the most relevant provisions of the prescribed forms of agency and sub-agency agreements. These are as follows.

"THE AGENCY AGREEMENT

"1. Definitions. In this agreement the under mentioned expressions shall where the context so requires or admits have the following meanings: - (a) The expression 'the syndicate' shall mean the syndicate or, if more than one, each of the respective syndicates of which the Name is for the time being a member under the provisions of this agreement, being the syndicate or syndicates specified in the schedule(s) attached hereto. . . ."

"2. Appointment of the Name's agent at Lloyd's. (a) The agent shall act as the underwriting agent for the Name for the purpose of underwriting at Lloyd's for the account of the Name such classes and descriptions of insurance business, other than those prohibited by the Council, as may be transacted by the syndicate (hereinafter referred to as 'the underwriting business'). (b) In acting as underwriting agent for the Name the agent shall at all times comply with the byelaws, regulations and requirements for the time being of the Council affecting the Name as an underwriting member of Lloyd's. Provided

that if and to the extent that any provision of this agreement shall be inconsistent with any such byelaw, regulation or requirement such inconsistent provision shall be deemed to be modified or cancelled so far as may be necessary or appropriate to the intent that the byelaw, regulation or requirement in question shall prevail and have full effect."

"4. Powers of the agent. (a) The agent is authorised . . . to exercise such powers as the agent may consider to be necessary or desirable in connection with or arising out of the underwriting business, including without prejudice to the generality of the foregoing: (i) the acceptance of risks and the effecting of reinsurance, including reinsurance for the purpose of clause 5(g) hereof: . . . (b) Without prejudice to the generality of the provisions of sub-clause (a) of this clause, the agent shall have the following customary and/or special powers in connection with the conduct and winding-up of the underwriting business: . . . (G) Delegation of agent's powers: Power, subject to any requirements of the Council, to appoint to employ any person, firm or body corporate to carry on or manage the underwriting business or any part thereof, and to delegate to or confer upon any person, firm or body corporate all or any of the powers, authorities and discretions given to the agent by this agreement including this power of delegation and the other powers contained in this paragraph.

"5. Control of underwriting business. (a) The agent shall have the sole control and management of the underwriting business and the Name shall not in any way interfere with the exercise of such control or management. . . . (g) In order to close the underwriting account of any year the agent may: (i) reinsure all or any outstanding liabilities in such manner as the agent shall think fit, including the debiting of such account and the crediting of the underwriting account of the next succeeding year with such reinsurance premium as the agent in its absolute discretion (subject to any requirements of the Council) thinks fair or (ii) reinsure all or any outstanding liabilities into the underwriting account of any other year then remaining open or in any other manner which the agent (subject as aforesaid) thinks fair."

"8. Remuneration. (a) The Name shall pay to the agent as remuneration for the services of the agent a fee at the rate per annum specified in the syndicate schedule."

"9. Undertaking by the Name to pay all liabilities and outgoings. (a) The Name shall keep the agent at all times in funds available for the payment of the liabilities, expenses and outgoings of the underwriting business."

"THE SUB-AGENCY AGREEMENT

"Whereas the agent is the underwriting agent at Lloyd's for certain underwriting members of Lloyd's and it has been arranged between the agent and the sub-agent that the sub-agent shall act as the sub-underwriting agent for one or more of such underwriting members upon the terms hereinafter mentioned.

"Now it is hereby agreed and declared between the parties hereto as follows:-

"2. The sub-agent shall act as sub-agent for the agent for the purpose of conducting in the names and for the account of each of the agent's Names that part of the underwriting business as defined in clause 2(a) of the agency agreement which is to be transacted by such Name as a member of the syndicate (hereinafter called 'the syndicate underwriting business'): . . ."

3.(a) The sub-agent shall underwrite for the agent's Names as part of the syndicate . . . (b) The individual premium income limit to be allocated to the syndicate in respect of each of the agent's Names shall be agreed from time to time between the sub-agent and the agent . . ."

"5.(a) The agent delegates to the sub-agent the performance of all such duties and the exercise of all such powers, authorities and discretions imposed or conferred upon the agent by the agency agreement (including without prejudice to the generality of the foregoing the power of delegation contained in that agreement) as it may be appropriate or necessary for the sub-agent to perform or exercise for the purpose of carrying on the syndicate underwriting business."

"7.(a) The sub-agent shall conduct the syndicate underwriting business in such manner as to comply with the provisions of the agency agreement and Lloyd's byelaws and regulations and is to have regard for Lloyd's Codes of Conduct or similar forms of guidance for the Lloyd's market."

"12.(a) The agent undertakes to put and keep the sub-agent at all times in funds to such extent as the sub-agent shall in its sole discretion determine to be requisite for payment of all liabilities, expenses and outgoings from time to time payable in connection with the syndicate underwriting business but (subject to any supplementary provision) only to the extent that the agent shall be able to enforce against a Name the provisions of the agency agreement."

The rival contentions of the parties centred upon the construction to be placed upon clause 2(a) of the agency agreement. For the Names in the Feltrim actions, it was submitted by Mr. Boswood that clause 2(a) contains an express undertaking by the underwriting agent to act as the underwriting agent of the Name, with the effect that (except to the extent that, where the agent is a combined agent, it acts as managing agent of a syndicate of which the Name is a member) members' agents are as such bound to underwrite insurance business for the Name. It was conceded that, if that submission was correct, there was an implied term that such underwriting should be carried out with reasonable care and skill. Mr. Boswood's argument on this point was supported by Mr. Vos for the Names in the Gooda Walker actions.