Henderson v Merrett Syndicates Ltd [1994]

Henderson v Merrett Syndicates Ltd [1994] UKHL 5 is a landmark House of Lords case that established the possibility of concurrent liability in both tort and contract. The case involved Lloyd's of London, an insurance market organised in syndicates, where investors share business risks and rewards. Hurricanes in the United States resulted in significant losses for insurers, leading Lloyd's to call upon investors to cover their share of these losses. The litigation ensued, with names suing the underwriting agents for negligent management of the investment fund.

Mr Henderson, one of the names, sued Merrett Syndicates Ltd, one of the underwriting agents. The question at the heart of the case was whether the underwriting agents could be liable to the indirect investors, i.e. the names behind in the syndicate who had formed another syndicate. The contractual relationship existed between the head syndicate managers and their direct members, but not necessarily with the members of the sub-syndicate. This raised the issue of whether a duty could arise in tort, involving the matter of assumption of responsibility.

The House of Lords held that Merrett Syndicates was liable to both types of shareholders due to sufficient foreseeability, extending pure economic loss liability to un-proximate third parties. The significant aspect of the case was the allowance of claims in both contract and tort, blurring the traditional divide between the two. The House of Lords expressly overruled Lord Scarman's ruling in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986], which had stated that seeking liability in tort within a contractual relationship was not advantageous to the law's development.

Lord Goff, in his opinion, addressed the interpretation of the assumption of responsibility principle established in Hedley Byrne Co Ltd v Heller Partners Ltd [1964]. He disagreed with the notion that this principle was restricted to cases where there is no contract. He emphasised that the law of tort is the general law, and parties can contract within its framework. The assumption of responsibility may occur in a contractual context, and tortious liability should be attributed to it. Lord Goff advocated for the development of the assumption of responsibility principle to clarify that a tortious duty of care may arise not only in cases of gratuitous services but also when services are rendered under a contract.

Henderson v Merrett Syndicates Ltd is significant for challenging the traditional separation between contract and tort, allowing concurrent claims in both. The case expanded the scope of liability and highlighted the importance of the assumption of responsibility in determining duty of care. Lord Goff's opinion underscored the interplay between contract and tort principles and advocated for the development of legal principles to adapt to changing circumstances.
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