The Temptation of Elegance Resisted

Abstract

In this lecture, the third of Lord Cooke’s Hamlyn Lectures on 'Turning Points in the Common Law', Lord Cooke argues that the courts must resist simple solutions in the law of negligence, especially in regards to tortious liability for economic loss. He asserts that the untidiness of life and complexity of human relations overrules 'elegant', simple solutions. The search for simplicity means to make the law easier to understand, but simple solutions (such as the rejection of any tortious liability for economic loss) do not always lead to more certainty or less litigation. Lord Cooke draws on the Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL(E)) line of cases finding liability for economic loss flowing from negligent misstatements (as well as other cases on other types of duties of care) as examples of how the House of Lords has resisted the temptation of elegant solutions. Lord Cooke argues that the development of the common law must be shaped by the general policy of Parliament but, subject to those general policy indications, judges are responsible for fleshing out the criteria and content of liability in negligence. He emphasizes that progress is not measured by an expansive approach to negligence (in favor of the plaintiff) but that judges do have a creative role to play in developing legal frameworks for resolving complex tort issues.

Keywords: Lord Cooke, tort law, common law, negligence, economic loss, Hedley Byrne

JEL Classification: K13