Private Law Theory

Abstract:
This chapter tracks and appraises significant changes in the law, practice and culture of liability for misstatements in private law across several different jurisdictions since the landmark decision of the House of Lords in Hedley Byrne v Heller, identifying some of the modern challenges for judges and actors operating in this now highly complex sphere and drawing together several themes developed in subsequent chapters in the book. The basic messages are that the field is now ridiculously over-complicated as a result of significant interactions and overlaps between liability rules developed in tort, equity and under statute; that there has in some spheres been a significant shift from the welfarist phase of the latter part of the twentieth Century back towards free-market voluntarism and that debates continue to rage, apparently without sign of easy resolution, regarding the way in which misstatement liabilities are to be understood conceptually and organised taxonomically in the modern law. Some of the instabilities of the field represent the fall-out of recent concerns about the potential extent of the liability of auditors and insurers in the wake of the global financial crisis and government responses to such concerns that seek to change the distribution of advisors’ liabilities in cases of pure economic loss, when one or more parties to litigation are insolvent. Others stem from conceptual and linguistic uncertainties; and from unevenness in the way in which key policy concerns are understood. In any event, the shape of the law as a whole is now in clear need of rationalisation and this is the responsibility of both judges and governments, not of any single operator in the field. This in itself calls for closer co-ordination between the respective efforts of all of those seeking to achieve justice in the field.

Barker, Kit, Hedley Byrne v Heller: Issues for the Twenty-First Century (January 30, 2015). in K Barker, R Grantham and W Swain (eds), The Law of Misstatements: 50 years on From Hedley Byrne v Heller (Oxford, Hart Publishing, 2015) 3-26.

First posted 2015-10-17 09:50:08