White v Jones [1995] UKHL 5

A solicitor was instructed to create a new will benefiting the testator's daughters but negligently delayed until the testator's death. The daughters, who received nothing, sued the solicitor. The House of Lords held the solicitor owed a duty of care to the intended beneficiaries.

Facts

Mr Barratt, having previously disinherited his daughters (the plaintiffs) after a family dispute, reconciled with them. On 17 July 1986, he instructed his solicitors (the defendants) to draft a new will to include legacies of £9,000 for each daughter. The solicitor handling the matter negligently failed to act on these instructions with due expedition. Numerous attempts by Mr Barratt’s family to follow up were met with inaction. Mr Barratt died on 14 September 1986, before the new will could be prepared and executed. Consequently, the previous will remained valid, and his daughters received nothing. The daughters sued the solicitor for negligence to recover the value of their lost legacies.

Issues

The central legal issue was whether a solicitor, who was retained by a testator to prepare a will, owed a duty of care to an intended beneficiary who, as a result of the solicitor’s negligence, lost their intended legacy. This question involved navigating the established legal principles of privity of contract, which would normally prevent a third party (the beneficiary) from suing on a contract made between the solicitor and the testator, and the general reluctance of courts to award damages for pure economic loss in tort.

Judgment

By a 3-2 majority, the House of Lords held that the solicitor did owe a duty of care to the intended beneficiaries and was liable for their loss. The majority comprised Lord Goff of Chieveley, Lord Browne-Wilkinson, and Lord Nolan, with Lord Keith of Kinkel and Lord Mustill dissenting.

The Majority Opinion

Lord Goff, giving the leading speech, identified a crucial ‘lacuna’ in the law: if a duty of care was not owed to the beneficiary, a clear wrong would go without a remedy. The testator’s estate suffered no loss (since the estate was distributed as per the valid will), so it could not sue. The beneficiary, who suffered the actual loss, had no contract with the solicitor.

To remedy this injustice, Lord Goff proposed extending the principle of assumption of responsibility established in Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] AC 465. He reasoned that by accepting instructions to draft a will, a solicitor assumes a responsibility to the client (the testator) which extends to the intended beneficiary.

I have come to the conclusion that the interests of justice require that the lacuna to which I have referred should be filled, and that an assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor can reasonably foresee) may, as a result of the solicitor’s negligence, be deprived of his intended legacy in circumstances in which neither the testator nor his estate will have a remedy against the solicitor.

Lord Browne-Wilkinson concurred, framing the decision as a modest, pragmatic extension of existing principles to achieve practical justice. He emphasized the foreseeability of harm to the specific, identified individual (the beneficiary) and the solicitor’s direct assumption of responsibility for the task of ensuring the testator’s wishes were carried out.

The Dissenting Opinion

Lord Keith and Lord Mustill delivered powerful dissents. Lord Mustill argued that creating such a novel duty was a step too far for judicial law-making and was properly the domain of Parliament. He was concerned that the majority’s solution lacked doctrinal coherence and created a ‘transmissible tort’ unknown to English law. He found the proposed extension of Hedley Byrne to be ‘unconvincing’.

My Lords, I take a different view… But in the end they are questions of law, and I believe that we are required to answer them by a process of legal reasoning. For me, a careful analysis of the building blocks of a new structure of liability simply will not yield the result which the majority favour. It is not that I think the claim is intuitively unjust. I am not so sure about this as some of your Lordships… Nevertheless I do not consider that a new pocket of liability can properly be created in the manner proposed.

Implications

White v Jones is a landmark decision in the law of professional negligence. It established a crucial exception to the doctrine of privity of contract, allowing disappointed beneficiaries to bring a direct claim in tort against a negligent solicitor. The decision was driven by the need to ‘do practical justice’ and fill a legal gap where an obvious wrong would otherwise have no remedy. It solidified the ‘assumption of responsibility’ concept as a key element in establishing a duty of care for pure economic loss, particularly in cases involving a special relationship between the defendant, an intermediary, and the claimant.

Verdict: The appeal was allowed. The solicitors were held liable in negligence to the plaintiffs for the value of the legacies they would have received.

Source: White v Jones [1995] UKHL 5