BL-2022-002117 - [2025] EWHC 2794 (Ch)

Fecha: 28-Oct-2025

F.3 Assumption of responsibility

F.3 Assumption of responsibility

191.

In N v Poole, Lord Reed DPSC (with whom Baroness Hale PSC, Lord Wilson, Lord Hodge and Lady Black JJSC agreed) summarised the principle of assumption of responsibility.

“67.
Although the concept of an assumption of responsibility first came to prominence in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 in the context of liability for negligent misstatements causing pure economic loss, the principle which underlay that decision
was older and of wider significance (see, for example, Wilkinson v Coverdale (1793) 1Esp 75). Some indication of its width is provided by
the speech of Lord Morris of Borth-y-Gest in Hedley Byrne, with which
Lord Hodson agreed, at pp 502—503: “My Lords, I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise. It is also apparent from well-known passages in the speech of Lord Devlin, at pp 528—530: ‘I think, therefore, that there is ample authority to justify your Lordships in saying now that the categories of special relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Norton v Lord Ashburton [1914] AC 932, 972 are “equivalent to contract”, that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract . . . I shall therefore content myself with the proposition that wherever there is a relationship equivalent to contract, there is a duty of care . . . Where, as in the present case, what is relied on is a particular relationship created ad hoc, it will be necessary to examine the particular facts to see whether there is an express or implied undertaking of responsibility.’

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 [1990] 1 AC 831, 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] 2AC 296. In the latter case, Lord Goff of Chieveley observed, at p 318: ‘All the members of the Appellate Committee in [Hedley Byrne] spoke in terms of the principle resting upon an assumption or undertaking of responsibility by the defendant towards the plaintiff, coupled with reliance by the plaintiff on the exercise by the defendant of due care and skill. Lord Devlin, in particular, stressed that the principle rested upon an assumption of responsibility when he said, at p 531, that “the essence of the matter in the present case and in others of the same type is the acceptance of responsibility” . . . Furthermore, although Hedley Byrne itself was concerned with the provision of information and advice, it is clear that the principle in the case is not so limited and extends to include the performance of other services, as for example the professional services

rendered by a solicitor to his client: see, in particular, Lord Devlin, at

pp 529—530. Accordingly where the plaintiff entrusts the defendant with

the conduct of his affairs, in general or in particular, the defendant may be held to have assumed responsibility to the plaintiff, and the plaintiff to have relied on the defendant to exercise due skill and care, in respect of such conduct.’”

192.

In RBS International, the judgment of the Privy Council was given by Lord Hamblen and Lord Burrows JJSC with whom Lord Briggs, Lord Kitchin and Lady Rose JJSC agreed. The judgment having referred to the above summary in N v Poole considers the test for determining whether there has been an assumption of responsibility. The test for determining whether responsibility has been assumed by a defendant to a claimant is an objective one; RBS International [62]. An objective test means that the primary focus is on exchanges which “cross the line” between the defendant and the claimant (or the group of persons of which the claimant is an identifiable member); RBS International [63]. At paragraph 64, the Privy Council identified three factors of particular, but not exclusive, relevance to the exercise:

“An examination of the case law indicates (see Clerk and Lindsell on Torts, 23rd ed (2021), paras 7-113 to 7-137) that the factors which have been of particular relevance in determining whether there is an assumption of responsibility in relation to a task or service undertaken include: (i) the purpose of the task or service and whether it is for the benefit of the claimant; (ii) the defendant’s knowledge and whether it is or ought to be known that the claimant will be relying on the defendant’s performance of the task or service with reasonable care; and (iii) the reasonableness of the claimant’s reliance on the performance of the task or service by the defendant with reasonable care.”