Concurrent liability in contract and tort: A separation thesis

Abstract

Prior to the landmark decision in 'Henderson v Merrett Syndicates Ltd', there were conflicting lines of authority on the question of whether there could be concurrent liability in tort and contract for pure economic loss in English law. Their Lordships in that case put an end to this uncertainty by making clear that there could indeed be such liability. Yet so holding naturally prompted jurists to consider whether there might also be concurrent liability in other areas, such as where contract and equity overlap, and where contract and unjust enrichment coincide. Those broad questions have now been tackled ably enough by others, along with the issue of whether concurrent liability should generally be welcomed (given that it can blur the boundaries between the familiar legal categories according to which the common law is ordinarily learned and applied). None of these matters, however, concern us here. Instead, we address a series of narrower questions that arise in connection with concurrent tortious and contractual liability. Before we enumerate those narrower questions, however, it is perhaps helpful to make clear from the outset the central argument of this article. This is that, notwithstanding the concurrency of liability, the available actions in tort and contract should be regarded as sufficiently different that, ordinarily, there will be no transposition of incidental rules concerning, or elements of, one action to the other.