In 1963 the House of Lords decided, in Hedley Byrne & Co v Heller & Partners, that when economic loss is a foreseeable consequence of a careless statement to a party with whom the adviser has a special relationship, there is the possibility of an action in negligence.
The ebb and flow of the Hedley Byrne duty of care has exercised the courts on numerous occasions since the original judgment, so what is the present opinion in the debate?
Consider this: you are a consulting engineer and are meeting with a potential new client at very short notice. No agenda is produced for that meeting; you are given no notice as to what particular matters you are to be asked to advise on; there is no contractual relationship between you and the other party; and you are to receive no payment.
You are asked to advise concerning necessary remedial works to a site of a former chemical works (concerning which you have previously advised a different client) on which your client proposes to build a discount supermarket.
No minutes of the meeting or details of your advice are recorded in writing. In these circumstances, do you have a duty of care to the other party?
According to the recent judgment in the Official Referees' Court (Lidl UK Properties GmbH v Clarke Bond Partnership), the answer is yes.
The judge held that the engineer had a duty to exercise that degree of skill and care which was to be reasonably expected of a consulting civil engineer. However, he held that because of the surrounding circumstances, the duty in this particular case was relatively narrow – all the circumstances of the meeting were to be taken into account.
The judge also held that, in the context of the meeting, the opinions expressed by the engineer were reasonable and in accordance with the appropriate standard of care.
The judge said that the engineers' scheme was "practical and feasible in engineering terms, and cost-efficient". The claim for damages of £3.7m against them was dismissed.