A7: HMRC's duty of care
- Absence of statutory duty indicating no intention to confer right to damages (e.g. no statutory right to a decision with a particular time)
"[53] The better view, as it seems to me, is that the legislature, when enacting section 561(9) ICTA, did not confer powers to award damages in respect of loss suffered by the applicant as the result of a wrongful refusal to issue a certificate (when allowing an appeal from that refusal) because it did not intend to impose a statutory duty to issue a certificate within an ascertainable time (or, as the appellant submits, within a reasonable time). I am led to that conclusion by two factors:
(1) The right to appeal conferred by section 561(9) ICTA arises (so far as material in this context) only after there has been a refusal of an application for a certificate. There is no provision for an appeal on the basis of a deemed refusal: c.f. section 78(2) of the Town and Country Planning Act 1990. If the legislature had intended to impose a duty to issue (or refuse) a tax certificate within an ascertainable time, it could have been expected to reinforce that duty by providing that, if no certificate were issued within that time, the applicant could appeal to the General or Special Commissioners as if there had been an actual refusal.
(2) The time which the Revenue might properly require in order to determine whether the relevant conditions were satisfied could have been expected to vary from case to case and to be difficult to predict in any particular case. It is important to have in mind, in this context, that the relevant conditions included the need for the applicant to have complied with all obligations imposed under ICTA or the Taxes Management Act 1990 in respect of periods ending within the previous three years and with all requests to supply to an inspector accounts of, or other information about, any business of the applicant in respect of that period: sections 562(8) and (14) and 565(3) and (9) ICTA. Further, there was a judgment to be exercised as to whether non-compliance had been minor and technical: sections 562(10) and 565(4). To require a certificate to be issued (or refused) within a specified time would have been to introduce a degree of inflexibility which was foreign to the legislative purpose.
[54] For those reasons I am not persuaded that (unless reliance can be placed on section 3 of the Human Rights Act 1998) words are to be read into section 561(2) ICTA which have the effect that the section required that a certificate be issued to an applicant (in respect of whom the relevant conditions were satisfied) within a reasonable time of the application. As I have said, it is accepted that if, on a true construction, the section does not have that effect, then it is clear that the question posed by the first preliminary issue must be answered in the negative." (Neil Martin v. HMRC [2007] EWCA Civ 1041, Chadwick LJ)
STATUTE CONFERRING PRIVATE LAW CAUSE OF ACTION
COMMON LAW DUTY OF CARE
Public authorities may owe duty of care where a private individual would unless duty would be inconsistent with the relevant legislation
"[64]...Thirdly, the decision [in Robinson v. Chief Constable] confirmed, following Michael and numerous older authorities, that public authorities are generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation requires a departure from those principles. That is the basic premise of the consequent framework for determining the existence or non-existence of a duty of care on the part of a public authority.
[65] It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.
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[75]...More fundamentally, in cases such as Gorringe, Michael and Robinson both the House of Lords and this court adopted a different approach (or rather, reverted to an earlier approach) to the question whether a public authority is under a duty of care. That approach is based on the premise that public authorities are prima facie subject to the same general principles of the common law of negligence as private individuals and organisations, and may therefore be liable for negligently causing individuals to suffer actionable harm but not, in the absence of some particular reason justifying such liability, for negligently failing to protect individuals from harm caused by others. Rather than justifying decisions that public authorities owe no duty of care by relying on public policy, it has been held that even if a duty of care would ordinarily arise on the application of common law principles, it may nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority is operating. In that way, the courts can continue to take into account, for example, the difficult choices which may be involved in the exercise of discretionary powers." (GN v. Poole BC [2019] UKSC 25)
- Operating statutory scheme may involve assumption of responsibility
"[53] Lord Reed rejected the submission that "a public authority cannot assume responsibility merely by operating a statutory scheme" (para 70) but made clear that the operation of a statutory scheme may generate an assumption of responsibility if the defendant's conduct pursuant to the scheme meets the criteria set out in cases such as Hedley Byrne and Spring v Guardian Assurance plc." (HXA v. Surrey CC [2023] UKSC 52)
- Statutory duty is, of itself, neutral: apply same principles as apply to private individual
"[87] It is clear that a local authority has relevant statutory duties and powers under, for example, the 1989 Act (see paras 22-33 above). It is also established law (see para 21 above), as laid down in X (Minors) v Bedfordshire CC, that, in respect of such duties and powers, there is no cause of action for the tort of breach of statutory duty even if the breach of statutory duty is a negligent breach. That does not mean that the common law tort of negligence has been excluded by statute. The statute is, in that respect, neutral. But what it does mean, as emphasised in N v Poole (see para 49 above), is that the courts must decide whether there is a duty of care at common law by applying to the public authority the same principles that would be applied if the public authority had been a private individual. See also, generally, the illuminating articles by MJ Bowman and SH Bailey, "Negligence in the Realms of Public Law - A Positive Obligation to Rescue" [1984] PL 277; SH Bailey and MJ Bowman, "Public Authority Negligence Revisited" (2000) 59 CLJ 85. It further means that one has to be very careful not to slide back to resting the duty of care, and breach, at common law on the mere fact that the public authority had statutory duties towards, and powers in respect of, the claimant. In our view, some of the submissions made by Ms Gumbel KC on behalf of HXA and YXA fell into this trap. That is, she sometimes relied on there being a statutory duty on the local authority to safeguard children in need as the very reason why there must be a duty of care owed to such children. As we have just indicated, what is required (which the courts, perhaps unhelpfully, have sometimes referred to - see paras 61(iii), 70, 72, 74, 80, 83 above - as the "something more" or "something else") is that there would have been a duty of care owed - because, for example, there is an assumption of responsibility - had the public authority been a private individual. This is not to deny that, assuming that there would otherwise be a common law duty of care owed, a particular statute may expressly or impliedly exclude that duty of care." (HXA v. Surrey CC [2023] UKSC 52)
- Query the relevance of public law remedy (suggestion that complaints that can dealt with public law may obviate any private law challenge)
"It is said that HMRC has been in breach in failing to process compliant applications and/or in failing to grant a brewing licence to which LFCP was entitled as a matter of public law. The remedy is not in private law but through the statutory scheme and/or judicial review. Likewise, it is said that excessive information was sought which was unreasonable or irrational in a public law sense. There is no reason why such consequences cannot be addressed by public law challenges such as obviates the need for a private law duty." (Wilkinson v. HMRC [2025] EWHC 2773 (KB), Freedman J)
Distinguish failure to confer benefit (omission) v. making things worse (act)
- Generally no duty of care to confer benefit (as opposed to duty not to cause harm)
"[28] Like private individuals, public bodies did not generally owe a duty of care to confer benefits on individuals, for example by protecting them from harm: see, for example, Sheppard v Glossop Corpn [1921] 3 KB 132 and East Suffolk Rivers Catchment Board v Kent [1941] AC 74. In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply. As in the case of private individuals, however, a duty to protect from harm, or to confer some other benefit, might arise in particular circumstances, as for example where the public body had created the source of danger or had assumed responsibility to protect the claimant from harm: see, for example, Dorset Yacht Co Ltd v Home Office, as explained in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057, para 39." (GN v. Poole BC [2019] UKSC 25)
- Ordinarily duty of care generated by doing something rather than omitting to do something (no common law duty directly from statutory duty)
"[38] Even in this context, however, the notion of assumption of responsibility serves a different, weaker, but nevertheless useful purpose in drawing attention to the fact that a duty of care is ordinarily generated by something which the defendant has decided to do: giving a reference, supplying a report, managing a syndicate, making ginger beer. It does not much matter why he decided to do it; it may be that he thought it would be profitable or it may be that he was providing a service pursuant to some statutory duty, as in Phelps v Hillingdon London Borough Council [2001] 2 AC 619 and Ministry of Housing and Local Government v Sharp [1970] 2 QB 223. In the present case, however, the duty is not alleged to arise from anything which the bank was doing. It is true that the bank was carrying on the business of banking, handling money on behalf of its customers. But that is not alleged to have been either necessary or sufficient to generate the duty in this case. Not necessary, because if such a duty is created by notice of the freezing order, it must apply to anyone who has possession or control of the defendant's assets: the garage holding his car, the stockbroker nominee company holding his shares, his grandmother holding a drawer-full of his bank notes. On being given notice of the order, they would all be under an obligation to take reasonable care to ensure that the defendant did not get his hands on the assets. Not sufficient, because there is no suggestion that, apart from the freezing order, the bank in carrying on its ordinary business would be under any duty to protect the position of the Commissioners.
There is, in my opinion, a compelling analogy with the general principle that, for the reasons which I discussed in Stovin v Wise [1996] AC 923, 943-944, the law of negligence does not impose liability for mere omissions. It is true that the complaint is that the bank did something: it paid away the money. But the payment is alleged to be the breach of the duty and not the conduct which generated the duty. The duty was generated ab extra, by service of the order. The question of whether the order can have generated a duty of care is comparable with the question of whether a statutory duty can generate a common law duty of care. The answer is that it cannot: see Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. The statute either creates a statutory duty or it does not. (That is not to say, as I have already mentioned, that conduct undertaken pursuant to a statutory duty cannot generate a duty of care in the same way as the same conduct undertaken voluntarily.) But you cannot derive a common law duty of care directly from a statutory duty. Likewise, as it seems to me, you cannot derive one from an order of court. The order carries its own remedies and its reach does not extend any further." (HMRC v. Barclays Bank plc [2006] UKHL 28, Lord Mance)
- No common law duty from mere failure to perform statutory duty (however irrational)
"[31] ... The resultant position, as explained by Lord Hoffmann [in Stovin v. Wise] in a speech with which the other members of the majority agreed, was that “[in] the case of positive acts, therefore, the liability of a public authority in tort is in principle the same as that of a private person but may be restricted by its statutory powers and duties” (p 947: emphasis in original). In relation to failures to perform a statutory duty, Lord Hoffmann stated at p 952 that “[i]f such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed”.
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[32]...Lord Hoffmann also emphasised the difficulty of finding that a statutory duty or power generated a common law duty of care, observing at para 32 that it was “difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide”." (GN v. Poole BC [2019] UKSC 25)
"[61] There were sound policy reasons why the regime was necessary – as Mr Justice Ferris explained in Shaw v Vicky (in the passage to which I have referred earlier in this judgment) – but fairness required that it be operated in such a way as to limit (so far as possible) the discriminatory treatment to which it gave rise. In particular, the legislature must be taken to have expected and intended that the sub-contractor who could satisfy the relevant conditions set out in sections 562 or 565 ICTA (as the case might be) should be issued with a tax certificate without avoidable delay. Nevertheless, for reasons which I have explained, I have found it impossible to hold that section 561(2) ICTA imposes a statutory duty, enforceable by an individual in a private law suit, to process an application within a reasonable time.
[62] In those circumstances it seems to me impossible to avoid the conclusion that the duty which section 561(2) ICTA does impose – a duty to issue a tax certificate to an applicant in respect of whom the relevant conditions are satisfied – does not, of itself, give rise to a common law duty owed to the applicant to process the application with reasonable expedition. Powerful support for that conclusion is found in the passages in Stovin v Wise and Gorringe on which the judge relied. To those passages may be added Lord Hoffmann's observations in the recent appeal in Customs and Excise Commissioners v Barclays Bank plc [2006] UKHL 28; [2007] 1 AC 181." (Neil Martin v. HMRC [2007] EWCA Civ 1041, Chadwick LJ)
- Situations in which D liable for failing to prevent harm/confer a benefit
"[88] Applying the approach of looking at whether a private individual would have owed the children a duty of care to protect them from harm, it is clear that the claimants must here establish a relevant assumption of responsibility. This is because we are concerned with a failure to benefit the claimants by protecting them from harm by a third party. To establish liability for such a failure to benefit (which can be viewed as imposing liability for an omission), which is the exception rather than the rule in the common law, one of the recognised exceptional principles must be established. These principles were neatly encapsulated by Stelios Tofaris and Sandy Steel, "Negligence Liability for Omissions and the Police" (2016) 75 CLJ 128 in a summary which was cited and approved in Robinson and then in N v Poole.
"In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A's status creates an obligation to protect B from that danger." (HXA v. Surrey CC [2023] UKSC 52)
Conflict with statutory regime
- No liability for that which Parliament has authorised (e.g. exercise of discretion within lawful range)
"[39] Lord Browne-Wilkinson gave the leading speech [in X v. Bedfordshire], with which Lord Jauncey of Tullichettle, Lord Lane and Lord Ackner agreed. He began by dispelling confusion about some aspects of the law governing the liability of public authorities, concluding at pp 734-735 that “in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient.” He went on to explain at p 736 that the exercise of a statutory discretion could not be impugned unless it was so unreasonable as to fall outside the ambit of the discretion conferred:
“It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability.”
In these respects, Lord Browne-Wilkinson’s approach accords with more recent authorities, as well as the older authorities to which he referred." (GN v. Poole BC [2019] UKSC 25)
- No common law duty that may lead to conflict with statutory duty
"[28] This line of authority demonstrates, in my opinion, that where action is taken by a State authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care will not be held to be owed by the State authority to others whose interests may be adversely affected by an exercise of the statutory power. The reason is that the imposition of such a duty would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of their statutory purpose." (Jain v. Trent Strategic Health Authority [2009] UKHL 4)
"When considering the impact of statutory duty on the relationship in the present case, it seems to me that there are at least three categories of conduct to which the existence of the defendants' statutory enforcement duties might have given rise. First, there might be conduct specifically directed to statutory enforcement, such as the institution of proceedings before the justices, the service of an improvement notice and the obtaining of a closure order, in an emergency or otherwise. Such conduct, even if *581 careless, would only give rise to common law liability if the circumstances were such as to raise a duty of care at common law (see per Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633 , 735); and such a duty is not raised if it is inconsistent with, or has a tendency to discourage due performance of, the statutory duty: see per Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council , at p. 739." (Welton v. North Cornwall DC [1991] 1 WLR 570 (CoA))
"[252] This is entirely consistent with that which was said in Jain about not imposing a duty which would or might inhibit the exercise of statutory powers and be potentially adverse to the interests of the public at large. Further, if there was a departure from what would be expected of the public body, then the starting point would be to consider alternative remedies such as an appeal process or judicial review. This too would be inconsistent with the finding of a duty of care at common law.
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[254] In short, the case about the special relationship or the assumption of responsibility has consequences which are at odds with established case law. They give rise to potential conflicts in respect of the licensing function, the investigative function and enforcement. If there is the need for redress, then in an appropriate case, this could be dealt with by judicial review or some statutory appeal method or complaint. There is no reason for this to be the subject of a common law duty of care." (Wilkinson v. HMRC [2025] EWHC 2773 (KB), Freedman J)
- Duty to those being investigated might conflict with duty to investigate
"[170]...The recognition of a duty of care to those who are subject to investigation would in my view risk giving rise to clear conflicts where the interests of those subject to the investigation would point in one direction, whereas the duty to investigate in accordance with the overarching objective would point in the other. For example it can be in the interests of protecting the public that an Interim Orders Tribunal swiftly consider whether restrictions are required in the case of a doctor accused of a serious sexual offence (and therefore for the required notifications to take place to allow that to happen) even though the doctor in question might be put at risk of injury as a result of notification and the impact of that process. The imposition of a duty of care in such circumstances would in my view interfere with the performance by the GMC of its statutory powers and duties in the manner Parliament intended. It would therefore be inconsistent with that framework to impose a duty of care at common law." (Suresh v. GMC [2025] EWHC 804 (KB))
- No duty of care to parents as it may conflict with statutory duty to children
"[54] Although a duty of care might be owed to the child, the court considered that the position of the parents was different. In view of the potential conflict between the best interests of the child and the interests of the parents, there were in the court’s view cogent reasons of public policy for concluding that, where child care decisions were being taken, no common law duty of care should be owed to the parents. Another way of expressing the point would have been to say that the imposition of a common law duty of care towards the parents would be inconsistent with the statutory framework, since it would interfere with the performance by the authority of its statutory powers and duties in the manner intended by Parliament." (GN v. Poole BC [2019] UKSC 25)
- Non-statutory function means no legislative provision against inferring a duty of care
[47]...During the hearing of the appeal we sought to clarify with parties whether and how they would distinguish a "statutory" function from an "administrative" one. Counsel for 4U2 submitted that when considering whether a duty of care arose, the significance of the distinction was that, following the decision in N v Poole BC at paras [64] – [65], a public authority may owe a duty of care where principles would require that of a private individual, unless such a duty were inconsistent with the legislation from which statutory powers and duties were derived. However, when dealing with an administrative decision, there was no legislation to operate as such a bar.
[48] We accept that the grant scheme operated by the council was not a statutory one (albeit paragraph (5) of the Local Government Finance Circular 08/2020 indicates that the grant funding was "made available through powers conferred by sections 126 and 127 of the Housing Grants Construction and Regeneration Act 1996 "). We therefore agree with 4U2's analysis that there is no legislative provision to operate against inferring a duty of care..." (4U2 Limited v. Glasgow CC [2026] SAC (Siv) 13 (Sheriff Appeal Court Scotland)
- Conduct so far removed from administrative matters (contrast inaccurate advice v. making an application for T that T did not authorise
"[252] There was nothing in the relationship which was different from other relationships such as to create a duty to process the applications with reasonable care and expedition or to give "accurate not misleading advice". This is contradicted by established case law. The case of Neil Martin Ltd v Revenue and Customs Commissioners is particularly apposite. In that case, there was no common law duty of care to process applications without a reasonable time or take care to avoid delay. There was no assumption of responsibility to provide correct information. There was a common law duty of care about something so far removed from administrative matters as to take the case into a different realm, namely where an application was processed by the employee without the authority of taxpayer such that public body was assuming an authority to make application which had not been made." (Wilkinson v. HMRC [2025] EWHC 2773 (KB), Freedman J)
Negligent misstatement causing pure economic loss
- Assumption of responsibility by person providing information or advice in circumstances where reliance reasonably foreseeable
"[68] Since Hedley Byrne, the principle has been applied in a variety of situations in which the defendant provided information or advice to the claimant with an undertaking that reasonable care would be taken as to its reliability (either express or implied, usually from the reasonable foreseeability of the claimant’s reliance upon the exercise of such care), as for example in Smith v Eric S Bush, or undertook the performance of some other task or service for the claimant with an undertaking (express or implied) that reasonable care would be taken, as in Henderson v Merrett Syndicates Ltd and Spring v Guardian Assurance plc [1995] 2 AC 296." (GN v. Poole BC [2019] UKSC 25)
- Assumption of responsibility can arise out of performing statutory duty or operating statutory scheme if Hedley Byrne criteria are met
"[72]The correctness of these decisions is not in question, but the dicta should not be understood as meaning that an assumption of responsibility can never arise out of the performance of statutory functions...
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[73] There are indeed several leading authorities in which an assumption of responsibility arose out of conduct undertaken in the performance of an obligation, or the operation of a statutory scheme. An example mentioned by Lord Hoffmann is Phelps v Hillingdon, where the teachers’ and educational psychologists’ assumption of responsibility arose as a consequence of their conduct in the performance of the contractual duties which they owed to their employers. Another example is Barrett v Enfield, where the assumption of responsibility arose out of the local authority’s performance of its functions under child care legislation. The point is also illustrated by the assumption of responsibility arising from the provision of medical or educational services, or the custody of prisoners, under statutory schemes. Clearly the operation of a statutory scheme does not automatically generate an assumption of responsibility, but it may have that effect if the defendant’s conduct pursuant to the scheme meets the criteria set out in such cases as Hedley Byrne and Spring v Guardian Assurance plc." (GN v. Poole BC [2019] UKSC 25)
- What amounts to assumption may vary depending on the type of harm
"[90] The precise ingredients of an assumption of responsibility appear to vary according to the general context in which it is being used. As we shall see, for example, the notion of reliance that may be central to an assumption of responsibility in the classic area of pure economic loss for negligent misrepresentations, as laid down in Hedley Byrne, appears not to be a necessary requirement in the context with which we are concerned in these cases." (HXA v. Surrey CC [2023] UKSC 52)
- Precision as to what responsibility to use reasonable care is said to have been assume for?
"[91] It is very common for the language of "assumption of responsibility" to be used at a high level of generality. However, it helps to sharpen up the analysis always to ask, what is it alleged that the defendant has assumed responsibility, to use reasonable care, to do?" (HXA v. Surrey CC [2023] UKSC 52)
- Reliance must be in relation to a specific transaction
"[50] We consider that the sheriff was entirely correct in concluding that for the necessary proximity to arise, the negligent misrepresentation had to be relied upon in connection with a specific transaction: Hedley Byrne at p 529 ; and Caparo at p.621D – F.
[51] Lord Sumption, giving the opinion of the Supreme Court in Playboy Club London Ltd at para [10], explained that a defendant's knowledge of the transaction in respect of which the statement is made:
"…is potentially relevant for three purposes: (i) to identify some specific person or group of persons to whom he can be said to assume responsibility; (ii) to demonstrate that the claimant's reliance on the statement will be financially significant; and (iii) to limit the degree of responsibility which the defendant is taken to assume if no financial limit is expressly mentioned.
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[53]...The authorities cited show a common theme, where pursuers have been faced with a discretionary transaction, involving significant expenditure or risk of economic loss, and claimed to have acted upon the representations of defenders to their detriment. This has included situations such as seeking advice on a company's financial status before contracting with it ( Hedley Byrne ); relying on advice as to whether to appeal an enforcement notice ( Davy ); relying on an audit when deciding whether to take over a company ( Caparo ; and McNaughton ); relying on audited accounts when deciding whether to extend financial support to a company ( RBS v Bannerman Johnstone Maclay ); relying on directions to carry out alterations purporting to secure compliance with regulations ( Welton ); and relying on advice in deciding whether to spend money on a vehicle to bring into complaints with taxi standards( Wokingham ). Sharp and Commodity are in a distinct category of cases, involving searches of registries which were conducted so negligently as to destroy protective measures to the detriment of creditors. The searchers could be deemed to have assumed a responsibility to these creditors – as member of a class of creditors, rather than as individuals – to correctly note the existence of their interest on the register. Instructing a solicitor or applying for a grant are not transactions of this kind; no significant expense or risk of loss could arise from either “transaction”." (4U2 Limited v. Glasgow CC [2026] SAC (Siv) 13 (Sheriff Appeal Court Scotland)
- Grant application not a specific transaction
"[52] In our view, the general relationship between those who administer grant schemes and those who apply to benefit from them is very different from relationships such as solicitor and client; and cannot, of itself, give rise to a duty of care by the former towards the latter. We agree with the sheriff that for a duty of care to arise in a case of negligent misrepresentation, a specific transaction must be in contemplation." (4U2 Limited v. Glasgow CC [2026] SAC (Siv) 13 (Sheriff Appeal Court Scotland)
- Reliance on information provided not reasonable or reasonably foreseeable where C had immediate access to the correct information
"[38] But in my view this court does not need to explain why the Lord Ordinary cannot be said to have been wrong in concluding that it was not reasonable for Northern Rock to have relied on Ms Steel’s representation without inquiry. We should bypass examination of whether he was wrong and should hold positively that he was right. We should accept that a commercial lender about to implement an agreement with its borrower referable to its security does not act reasonably if it proceeds upon no more than a description of its terms put forward by or on behalf of the borrower. The lender knows the terms of the agreement and indeed, as in this case, is likely to have evolved and proposed them. Insofar as the particular officers in Northern Rock who on 23 March 2007 saw and acted upon the email had never been aware of the terms or had forgotten them, immediate access to the correct terms lay - literally - at their finger-tips. No authority has been cited to the court, nor discovered by me in preparing this judgment, in which it has been held that there was an assumption of responsibility for a careless misrepresentation about a fact wholly within the knowledge of the representee. The explanation is, no doubt, that in such circumstances it is not reasonable for the representee to rely on the representation without checking its accuracy and that it is, by contrast, reasonable for the representor not to foresee that he would do so." (Steel v. NRAM Limited [2018] UKSC 13)
Query how this is consistent with Tinkler
"[89] Like Lord Burrows I do consider that the requirement for some assumption of responsibility by D for the shared assumption does, generally at least, carry with it this additional element. It goes to the heart of what makes it unconscionable for D later to resile from the assumption, after C has relied to some extent on D’s earlier subscription to it. That reliance by C may be subordinate to C’s reliance upon its own view or advice about the reliability of the assumption, but it must have influenced C’s thinking: see Benchdollar at para 55. Reliance of that kind, in circumstances where D had no reason to expect or anticipate it, would not make it unconscionable for D then to resile from it, but reliance of that kind which D could reasonably be expected to foresee would do so.
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[91] The present appeal tests the need for that element of taking responsibility to a more stringent extent. I admit to having been in some real doubt about it. But I am satisfied, for the reasons given by Lord Burrows at para 61, that the requirement was met. On Mr Tinkler’s behalf BDO expressly asserted and thereby affirmed the existence of a valid enquiry in circumstances where it was reasonably apparent that the Revenue would rely on BDO’s subscription to that common assumption, even if only in the negative sense that the Revenue would not thereafter check that the enquiry had been duly opened, and notice of it duly served on Mr Tinkler, before the limitation period for doing so ran out, as they might have done if no such affirmation had been provided." (Tinkler v. HMRC [2021] UKSC 39)
Provision of service: assumption of responsibility
- Nature of the function involves provision of a service on which recipient expected to rely (e.g. healthcare)
"[80] As Lord Browne-Wilkinson explained in relation to the educational cases in X (Minors) v Bedfordshire (particularly the Dorset case), a public body which offers a service to the public often assumes a responsibility to those using the service. The assumption of responsibility is an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care. Thus, whether operated privately or under statutory powers, a hospital undertakes to exercise reasonable care in the medical treatment of its patients. The same is true, mutatis mutandis, of an education authority accepting pupils into its schools.
[81] In the present case, on the other hand, the council’s investigating and monitoring the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely. It may have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by re-housing them, but anxiety does not amount to reliance. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare. The position is not, therefore, the same as in Barrett v Enfield. In short, the nature of the statutory functions relied on in the particulars of claim did not in itself entail that the council assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care." (GN v. Poole BC [2019] UKSC 25)
- Public authority managing land registry is providing public service to provide reliable information: duty to persons relying on certificates + persons whose interests are overriden
"[110] The closest case to the present on which Mr Sales can rely is Ministry of Housing and Local Government v Sharp. But the statutory scheme there was aimed at protecting persons in respect of property purchases and, so far as necessary for that purpose, overriding other proprietary interests. Again, it would have been incongruous if a person relying on such a certificate to his detriment could have a claim because of the closeness of the situation to Hedley Byrne, but the Minister whose cause of action for reimbursement was extinguished had none (cf per Lord Denning MR at p 268H and Salmon LJ at p 278F-H). I consider that Ministry of Housing and Local Government v Sharp was rightly decided. It was referred to without disapproval in the speeches of both Lord Templeman and Lord Griffiths in Smith v Bush (at pp 846D-G and 862F). The result reached was eminently fair, just and reasonable. The role of land registrar was established as a public service to keep accurate records and provide reliable information. The information was to enable buyers to be secure in the property rights they acquired but concomitantly to override other property interests in the public interest in order to achieve this, even though such security and overriding occurred through negligence of the registrar or a clerk fulfilling his function. It would be unjust if no compensation could be obtained for the adverse consequences on property rights of negligence of an official performing such a service in the public interest.
There is no analogy between any of these cases and the present. The recognition of a duty of care in the present case would not be closely incremental upon any existing duty. Here, the bank has not been entrusted by statute or otherwise with the provision of any public service." (HMRC v. Barclays Bank plc [2006] UKHL 28, Lord Mance)
- Updating Companies House Register as a service (duty owed to company adversely affected by entry under wrong name)
"[108] I have set out above extracts from the Customs & Excise case and White v. Jones and compared them with the remarks of Peter Gibson LJ in Reeman. It seems clear that the word "voluntary" sometimes used in formulations of this concept does not mean that it cannot arise where the case concerns the negligent performance of a statutory duty. The phrase of Lord Nolan in White v. Jones is the simplest and clearest expression of this. So far as the relevance of that factor is concerned, he said:-
"The fact that he is doing so in pursuance of a contractual duty or a statutory function cannot of itself exclude that responsibility. The most that can be said is that it may be one of the circumstances to be taken into account in determining the nature and extent of the responsibility"
[109] I understand this to mean that if a person does an act which is capable of causing harm to a particular person if done carelessly he will be held to have assumed responsibility to that person in respect of that task unless (where the act is done further to a contractual duty or statutory function) the terms of the contract or the statute negate or limit that responsibility.
...
"[112] In assessing the requirements of "practical justice" for this purpose I am squarely considering what is fair, just and reasonable. The relevant factors, in my judgment, are these:-
• Unless a remedy is provided by the common law of negligence a company damaged by carelessness in these circumstances can have no remedy. In Arthur JS Hall v. Simons [2002] 1 AC 615 the House of Lords emphasised the need for any immunity to be rigorously justified as being in the public interest. In Van Colle v. Chief Constable of Hertfordshire [2009] 1 AC 225 the House of Lords held the police owed no common law duty of care to protect individuals from harm caused by criminals since such a duty would encourage defensive policing and divert manpower and resources from their primary function of suppressing crime and apprehending criminals in the interest of the community as a whole. This is an illustration of a situation where a remedy may properly be denied, but such considerations are wholly absent from the present case.
• It is not difficult for the staff of the Registrar to avoid errors of this kind. They hardly ever make them.
• Apart from the factors identified by Ms. Jones in her two witness statements there is no reason not to impose a duty. This is not a case where society requires its servants to be free to exercise a judgment without fear of litigation, or where there are any public policy reasons for denying a duty. Ms. Jones makes it clear that the only downside resulting from the imposition of a duty is that the Registrar may feel the need to spend money in ensuring the accuracy of the Register. The accuracy of the Register is obviously a societal good. No-one suggests that an inaccurate register is a desirable outcome. The funding necessary for any such increased scrutiny of changes to the Register will have to be provided by adjustments to the fees paid by companies and by users of the Register. The funding for meeting any claims for damages will have to be met in the same way or by insurance. Ms. Jones's evidence does not persuade me that these outcomes will cause any particular difficulty in an environment where proper application of the Trove Policy would have prevented this error, and where increased use of information provided to the Registrar digitally will further reduce the already very small risk of errors in reading that information and transposing it accurately on to the Register.
• There are no aspects of the statutory duty or contractual relationship between the Company and Companies House which should operate to limit the nature and extent of the responsibility. Section 1080(5) provides:-
"(5) The records kept by the registrar must be such that information relating to a company is associated with that company, in such manner as the registrar may determine, so as to enable all the information relating to the company to be retrieved."
This means that the imposition of a duty would tend to reinforce the statute by requiring Companies House to do exactly what it is already required to do by statute. The information relating to a company must be complete, accurate and easily retrievable.
• In any event balancing the harm actually done to the Company in this case against the potential adverse impact upon Companies House it is clear that the balance favours the loss falling on Companies House rather than the Company. The evidence of Ms. Jones is very general in nature and deals with risks which are unquantified. It does not establish what the actual cost of a duty is likely to be, neither does it establish that it will not be possible to arrange for the payment of that cost, whatever it is. On the other hand the effect of imposing the loss on Companies House will be that it is ultimately borne by either the business community (limited companies and users of the Register who pay fees) or by the public at large.
• Given that the system of registration is compulsory because it is designed to benefit the business community and the national economy by enhancing the benefit of limited liability, it does not seem unjust to impose liability on those who benefit from the system (ultimately the public) for harm done by its faulty operation.
• The ultimate effect of the imposition of this duty is likely to be to improve the accuracy of the Register which is plainly in the public interest. The rather leisurely approach to the correction of the bulk products which occurred in this case perhaps illustrates the kind of conduct which might be far less likely if all concerned realised that the Registrar may be held liable in damages unless rapid and effective action is taken. That would be a salutary outcome of this litigation.
[113] For these reasons I conclude that on the facts of this case there was a relationship between the Company and Companies House, at the time when Mr. Davies entered the winding up order against it, which was a "special" one in the sense used by Lord Browne-Wilkinson in White v. Jones. It follows that there was an assumption of responsibility and that the Company is entitled to succeed on the Duty Issue." " (Sebry v. Companies House [2015] EWHC 115 (QB), Edis J - query whether this extensive reasoning is now necessary)
- Processing applications with reasonable expedition/not make mistakes in processing them (no duty)
"[72] In my view the judge would have been correct to hold that no common law duty of care was owed to the claimant company by either (i) the unidentified employee at the Furness office who inserted the incorrect UTR on the August CIS3 form on or about 11 August 1999 or (ii) the unidentified employee at the Netherton processing centre who posted the CIS6 certificate to the wrong address. As it seems to me, those were plainly administrative mistakes made in the ordinary course of processing the application under section 561(2) ICTA. In the circumstances that, as I have held, the legislature did not intend to impose a statutory duty, enforceable by an individual in a private law suit, to process such applications within a reasonable time, it would be wrong for the courts to recognise a common law duty owed by the Revenue's employees to take care to avoid delay. I respectfully share the concern, expressed by Lord Justice Mummery in Carty v Croydon London Borough Council [2005] EWCA Civ 19, [83]; [2005] 1 WLR 2312, 2337H, that to impose liability on the employee in such circumstances – a liability for which the employer would be vicariously liable - would be "to introduce by the back door an action for breach of statutory duty in a case where . . . no cause of action for breach of statutory duty was created by the relevant legislation"." (Neil Martin v. HMRC [2007] EWCA Civ 1041, Chadwick LJ)
- Advisory service going beyond statutory duty may give rise to duty of care
"Secondly, there is the offering of an advisory service: in so far as this is merely part and parcel of the defendants' system for discharging its statutory duties, liability will be excluded so as not to impede the due performance of those duties: see per Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council , at p. 763. But, in so far as it goes beyond this, the advisory service is capable of giving rise to a duty of care; and the fact that the service is offered by reason of the statutory duty is immaterial: see per Lord Browne-Wilkinson, at p. 763. Thirdly, there is the conduct which is at the heart of this case, namely the imposition by Mr. Evans, outwith the legislation, of detailed requirements enforced by threat of closure and close supervision.
It is, for present purposes, unnecessary further to analyse the nature of the advisory service offered in the present case. For, in my judgment, the existence of their statutory powers and duties affords no reason why the defendants should not be liable at common law for this third type of conduct by their servant, which is otherwise well within the Hedley Byrne principle. If, which I doubt, it is material at this stage to consider policy and what is fair, just and reasonable, these considerations could not, in my judgment, lead to any conclusion other than that conduct in the third category gives rise to a duty at common law." (Welton v. North Cornwall DC [1991] 1 WLR 570 (CoA) - note X has been overruled in this respect, see N v. Poole §74)
No service, but manner in which public authority behaved towards claimant leads to inference of assumption responsibility
- Negligent incorrect statement that works required to comply with environmental laws leading to substantial and unnecessary expense
"It is, in my judgment, irrelevant to the question for decision that the language used by Mr. Evans could properly be described as a recommendation, exhortation or instruction rather than “advice.” The duty may arise whatever the description applied to the words used. Indeed, to the extent that the words are clothed with the voice of authority and the hint of compulsion, the more important that they should be included within the normal ambit of the duty to take reasonable care.
...
Despite the matters raised by Mr. Denyer, once the evidence of Mrs. Welton was accepted and that of Mr. Evans rejected the conclusion that the defendants were liable to the plaintiffs was inevitable on the basis of the application of well established principles. If it had been necessary to deal with public policy considerations on the facts of what actually happened in this case, policy demands that the plaintiffs should have a remedy to compensate them for damages caused by the instructions of an official vested with authority who not only directed them negligently as to what was required to achieve compliance with the statutory provisions, but also gave them inaccurate information about the true extent of his authority and omitted any reference to their own rights under the statutory provisions. It would be neither just nor fair nor reasonable to hold that a duty of care did not exist or that liability could not be established." (Welton v. North Cornwall DC [1991] 1 WLR 570 (CoA))
- Must be some basis for inferring assumption of responsibility to this claimant
"[82] It is of course possible, even where no such assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case. Since such an inference depends on the facts of the individual case, there may well be cases in which the existence or absence of an assumption of responsibility cannot be determined on a strike out application. Nevertheless, the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, however, the particulars of claim do not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred..." (GN v. Poole BC [2019] UKSC 25)
- Public authority undertakes the performance of some task with express or implied assumption of responsibility
"[88] As has been explained, however, the concept of an assumption of responsibility is not confined to the provision of information or advice. It can also apply where, as Lord Goff put it in Spring v Guardian Assurance plc, the claimant entrusts the defendant with the conduct of his affairs, in general or in particular. Such situations can arise where the defendant undertakes the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care will be taken. Such an undertaking may be express, but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. In the present case, however, there is nothing in the particulars of claim to suggest that a situation of that kind came into being." (GN v. Poole BC [2019] UKSC 25)
- Ambulance call handler giving assurance that ambulance would attend with reasonable speed
"[75] While somewhat elusive - and possibly having different requirements in different contexts (eg pure economic loss and misrepresentations) - for present purposes an assumption of responsibility involves the idea that a person may, by words or conduct, expressly or impliedly promise (or undertake or give an assurance) to take care to protect another person from harm. In some situations, but not all (for an exception, see HXA v Surrey County Council, para 108), it is also a necessary element that the claimant has relied on this promise. An example is provided by Kent v Griffiths, where the call handler for the London Ambulance Service gave assurances that an ambulance would attend with reasonable speed. By contrast, in Michael it was found that the police call handler had made no such promise. The principle of assumption of responsibility can also be invoked to explain the duty of care that arises when a person voluntarily accepts a specific role or enters into a specific relationship with another person which carries with it recognised responsibilities to protect the other person's welfare. A classic example is the relationship between a professional person and his or her client or patient." (Tindall v. Chief Constable [2024] UKSC 33)
- Ensuring accuracy of advice re what statute requires for application (no assumption of responsibility/reliance)
"[67] The effect, in this Court, is that we must approach this appeal on the basis that Mr Harrison was wrong to tell Mr Martin, in June 1999, that the company's application for a tax certificate could not be accepted unless supported by the company's own accounts. The question which we have to consider is whether Mr Harrison assumed a responsibility to give Mr Martin, on behalf of the company, information which was correct. In my view the judge was right to hold that Mr Harrison did not assume a responsibility in that respect. It must be kept in mind that it was for the company to decide the basis upon which it would make an application under section 561(2) ICTA; and it was for the company to make that application in the manner (and in the form) prescribed by the Regulations. It was not for individual officers of the Revenue to tell applicants what had to be done: and there is nothing in the facts found by the judge to suggest that Mr Martin (or the company) thought that it was. They had consulted their own accountant; and, on the basis of his advice, they did not accept that the information which Mr Harrison had given was correct." (Neil Martin v. HMRC [2007] EWCA Civ 1041, Chadwick LJ)
- Statutory duty that places trust in public body to ensure it does not damage companies that have no way of defending themselves against errors
"[111] It appears to me that where the Registrar undertakes to alter the status of a company on the Register which it is his duty to keep, in particular by recording a winding up order against it, he does assume a responsibility to that company (but not to anyone else) to take reasonable care to ensure that the winding up order is not registered against the wrong company. This does not impose a duty to verify information supplied by a third party such as an Insolvency Practitioner, but only to ensure that the information is accurately recorded on the Register. This special relationship between the Registrar and the company arises because it is foreseeable that if a company is wrongly said on the Register to be in liquidation it will suffer serious harm. My finding on the Causation Issue shows that in this case that harm amounted to the destruction of a company which had traded for over 100 years and which owned a valuable business. The nature of the exercise also supports the finding of such a relationship. The company is not consulted before its liquidation appears and has no opportunity to protest that the entry, if made, will be a mistake. Effectively, the system places a degree of trust therefore in the Registrar's staff to ensure that it does not damage companies which have no way of defending themselves against errors. When such an exercise is performed in private and behind closed doors, those doing it have truly assumed responsibility for it: indeed no-one else is in any way involved in it. The responsibility for it is entirely placed on the Registrar and his staff. At the time of each entry, it is not the case that a duty is owed to every company on the Register. The duty only arises when the record of a company is altered in a way which will probably cause serious harm if it is done carelessly. At that point the class of persons to whom the duty is owed is confined to one company. White v. Jones makes it clear that the class can be adjusted to meet considerations of practical justice and in my judgment practical justice suggests strongly that it should contain, but be limited to, the Company whose record is being changed." (Sebry v. Companies House [2015] EWHC 115 (QB), Edis J)
- No assumption of responsibility to notify taxpayer of taxpayer mistake spotted by HMRC
"[87] I would dismiss this ground of appeal. [HMRC] has convincingly demonstrated that none of the passages in Code of Practice 14 relied on by the appellants imposed an obligation on HMRC to disclose a matter which had been spotted prior to the enquiry but which was not present to the minds of the officials of HMRC handling the affairs of the taxpayer during the enquiry. To hold otherwise would indeed without justification shift the responsibility for those errors from those who had caused the error, namely the taxpayer and its advisers, to HMRC.
[88] The Charter refers to putting "mistakes right as soon as we can". [The taxpayer] accepts that the duty on HMRC could be no higher than a duty to inform, not to remedy the error. That reinforces my interpretation of this statement as one which refers to errors by HMRC, not those of the taxpayer. On that basis these words have no application. There is in my judgment no other statement in the Charter which could arguably give rise to a duty to notify.
...
[94] As to the established duty of HMRC to act fairly, I conclude that on the facts of this case HMRC did not act unfairly towards Daejan in not informing it immediately the error was spotted or thereafter during the enquiry or in the closure notices, for the following reasons:
i) The primary responsibility for making a claim that took maximum advantage of the losses available to the group always lay with the group.
ii) At the time HMRC spotted Daejan's error regarding its 2005 return, there was sufficient time for the loss relief claim to be amended appropriately and for an enquiry to be opened, when the matter could be appropriately investigated. HMRC went on to open enquiries into the returns of both Daejan and the appellants, first into its 2005 returns in March 2007, and then into their 2006 returns in September 2007.
iii) By doing so HMRC in fact extended the time available to the Daejan group to correct the errors.
iv) Unfortunately from the Daejan group's point of view, the HMRC official having conduct of the enquiries was a different person from the official who spotted the mistake. He was aware of his predecessor's discovery but could not work out the precise nature of the error. However, he did what he could by directing Daejan's attention to the computation of its group relief claims.
v) If HMRC could not say what the error was, the existence of the error was really no more than a possibility. This is not altered by the fact that it later turned into an actuality.
vi) The decision to refuse an extension of time was taken when Mr King of HMRC was responsible for dealing with the Daejan group's affairs, and he had no knowledge of the error spotted by Mr Fletcher.
It follows that, on the particular facts of this case, the appellants have failed to establish that HMRC's failure to notify Daejan of the errors in its loss relief claims constituted a matter which HMRC ought to have taken into account when considering their claim for an extension of time. There can have been no such duty without non-compliance with the Charter or Code of Practice 14 or the "venerable principle", or non-performance by HMRC of their duty of fairness." (R (oao Bampton Property Group Limited) v. King [2012] EWCA Civ 1744)
- No duty to verify accuracy of administrative report subsequently used in litigation
"[38] In my judgment, there is no real prospect of establishing that a duty of care arose to verify the Visit Report and to rectify it if necessary, once Mr Charles' reliance upon it for the purposes of his appeal to the UT became clear and the judge was wrong to come to that conclusion at [36] of his judgment. It seems to me that the same would be true in relation to Mr Charles' reliance upon the Visit Report in the FTT. The point was made succinctly by Lord Bingham in the Barclays Bank case at [18]. As the judge quoted at [32] of his judgment: " . . . no duty is owed by a litigation party to its opponent: Digital Equipment Corpn v Darkcrest Ltd [1984] Ch 512; Business Computers International v Registrar of Companies [1988] Ch 229; Al-Kandari v J R Brown & Co [1988] QB 655." The same point was made by Lord Rodger at [47] and [60]. It seems to me that this must be the case even where the opponent relies upon a document which has been created by the other party to the litigation. It is all the more so where the document was produced for a different purpose in the course of fulfilling HMRC's public duties." (HMRC v. Charles [2019] EWCA Civ 2176, Asplin LJ)
- Assumption of responsibility where HMRC employee makes application on behalf of T without T's authority (HMRC vicariously liable)
"[34] In the Neil Martin case, Chadwick LJ, with whom Smith and Wilson LJJ agreed, held that although a duty of care was not owed by unidentified employees of the Revenue and Customs Commissioners in relation to administrative mistakes, a duty could be owed, for which the Revenue would be vicariously liable, in relation to the act of making an application on behalf of a company which the company had chosen not to make, and which it had not made. The employee had assumed an authority to make the application on behalf of the company and in doing so had assumed a responsibility to the company. In such circumstances it was considered fair, just and reasonable that the common law should recognise the existence of a duty of care." (HMRC v. Charles [2019] EWCA Civ 2176, Asplin LJ)
"[73] Nevertheless, I take the view that the judge would have been wrong to hold that no common law duty of care was owed to the claimant company by the unidentified employee in the Furness office who chose to complete the declaration in support of an application for a registration card on the July CIS3 form without the authority of Mr Martin or the claimant company. That, as it seems to me, goes beyond an administrative mistake made in the ordinary course of processing the application under section 561(2) ICTA. In completing the declaration in support of an application for a registration card the employee took it upon himself (or herself) to make an application on behalf of the claimant company: an application which the claimant company had chosen not to make, and which it had not made. The employee was not processing an application which had been made: he was assuming an authority to make an application which had not been made. I can see no reason why, in assuming that authority, the employee should not be taken to have assumed a responsibility to the applicant. In those circumstances it does seem to me fair just and reasonable that the common law should recognise that a duty of care exists." (Neil Martin v. HMRC [2007] EWCA Civ 1041, Chadwick LJ)
Vicarious liability where employee assumed liability
- Professionals engaged by local authority provide professional advice on which claimant foreseeably relied
"[87] In the former case, Lord Browne-Wilkinson accepted in relation to the Dorset proceedings that the local authority could be vicariously liable for negligence on the part of its educational psychologists because they were providing professional advice to parents on which the parents had foreseeably relied. In the Hampshire proceedings, he accepted that an advisory teacher, brought in to advise on a pupil’s educational needs, owed a duty to the child to exercise reasonable skill and care provided he knew that his advice would be communicated to the pupil’s parents, and could therefore reasonably foresee that they would rely on such advice. In Phelps v Hillingdon, the duty of care of the educational psychologist towards the child was again based on the fact that it was reasonably foreseeable that the child’s parents would rely on the advice provided. Those were all cases where the duty of care arose on the basis of the Hedley Byrne principle. In the present case, on the other hand, there is no suggestion that the social workers provided advice on which the claimants’ mother would foreseeably rely." (GN v. Poole BC [2019] UKSC 25)
- Potential vicarious liability where HMRC employee owes/assumes duty of care which they breach
"[64] The judge took the view – correctly, as it seems to me – that the more pertinent question in the circumstances of the present case was whether the company could establish a duty of care owed by employees of the Revenue, for breach of which the Revenue would be vicariously liable. As I have said, in addressing that question, the judge focussed on the acts and omissions of Mr Harrison. On the facts which he found, there were two periods of delay which were attributable to Mr Harrison's acts or omissions: (i) the period from 9 June to 20 July 1999, during which Mr Harrison was insisting on the provision of company accounts, and (ii) the period from 20 to 29 July 1999, during which the Furness tax office did not have signed CIS3 and CIS8 forms (the July forms). On the facts found by the judge the other periods of delay were not attributable to Mr Harrison's acts or omissions.
...
[72] Nevertheless, I take the view that the judge would have been wrong to hold that no common law duty of care was owed to the claimant company by the unidentified employee in the Furness office who chose to complete the declaration in support of an application for a registration card on the July CIS3 form without the authority of Mr Martin or the claimant company..." (Neil Martin v. HMRC [2007] EWCA Civ 1041, Chadwick LJ)