White v Jones

Factual and Procedural Background

The Testator asked the Defendant (a solicitor employed by Company A) to draw a new will leaving £9,000 to each of his two daughters (the Respondents) and making various smaller provisions for grandchildren. Written instructions confirming these wishes reached the Defendant on 17 July 1986. Owing to the Defendant’s unexplained delay—he failed to keep three appointments and took no effective steps before departing on holiday—no fresh will was ever prepared.

The Testator suffered a fall while on holiday in late August, returned home on 6–7 September, suffered a heart attack and died on 14 September 1986. His earlier will, excluding the Respondents, was admitted to probate. Each Respondent thereby lost the £9,000 legacy her father had intended.

The Respondents sued the Defendant in negligence. The High Court (Judge [Last Name]) dismissed the claim, holding that no duty of care was owed. The Court of Appeal reversed the decision and awarded £9,000 to each Respondent. The Appellants (the Defendant solicitor and his partners) appealed to the House of Lords.

Legal Issues Presented

1. Whether a solicitor who negligently delays preparation of a will owes a duty of care in tort to intended beneficiaries who are not parties to the retainer.
2. Whether such beneficiaries may recover purely economic loss representing the value of the lost legacy.
3. Whether the existence of the solicitor’s contractual duty to the Testator precludes a concurrent duty in tort to the beneficiaries.

Arguments of the Parties

Appellants’ Arguments

• No duty of care was owed to persons who were neither clients nor parties to the contract; English law rejects jus quaesitum tertio.
• The Respondents’ loss was merely an expectation of future benefit and therefore fell within the “exclusive domain” of contract, not tort.
• Recognising liability would expose solicitors to indeterminate and uncontrollable claims, including those by remote or unborn beneficiaries.
• The claim was based on an omission; absent a pre-existing duty, omissions are not actionable in negligence.

Respondents’ Arguments

• The Defendant had assumed responsibility to carry out the Testator’s instructions with reasonable care and knew the Respondents would suffer loss if he failed.
• The situation fell within the principle of Hedley Byrne: reliance, proximity, and foreseeability all existed.
• To deny a remedy would leave a lacuna: the only person with a cause of action (the Testator) suffered no loss, while the only persons who suffered loss (the Respondents) would have no claim.
• The award granted by the Court of Appeal was modest, certain, and posed no threat of indeterminate liability.

Table of Precedents Cited

Court’s Reasoning and Analysis

The House divided 3:2.

• Majority (Lord Goff, Lord Browne-Wilkinson, Lord Nolan)
  The solicitor’s acceptance of the Testator’s instructions created an assumption of responsibility to the Respondents because (a) the solicitor knew their economic welfare depended on prompt performance; (b) the loss was plainly foreseeable; and (c) denying a remedy would leave a remedial lacuna—only the persons suffering loss would lack a claim. The duty was consistent with Hedley Byrne principles and with the incremental approach endorsed in Caparo. Contractual privity did not bar a concurrent tort duty; the loss was not too remote or speculative; and fears of limitless liability were unfounded because the class of beneficiaries was closed and identifiable.
• Minority (Lord Keith, Lord Mustill)
  Allowing recovery would, in substance, confer on beneficiaries the benefit of a contract to which they were not parties, contrary to established doctrine. No decided case (properly analysed) justified the incremental step; the solicitor had made no representation or undertaking to the Respondents; and recognising such a duty risked uncontrolled expansion of liability for pure economic loss.

Holding and Implications

APPEAL DISMISSED. The Order of the Court of Appeal was affirmed; the Appellants remain liable to pay £9,000 damages to each Respondent and the costs of the appeal.

Implications: The decision confirms that solicitors may owe a tortious duty of care to intended will beneficiaries where negligence defeats the Testator’s intentions. It solidifies Ross v Caunters as good law, aligns English law with leading Commonwealth authority, and clarifies that contractual privity does not automatically preclude concurrent duties in tort. The ruling does not establish a broad duty to indeterminate classes; liability is confined to identifiable beneficiaries named (or clearly intended) in the instructions.