Date: Thu, 10 Feb 2005 18:14:48

From: Andrew Tettenborn

Subject: Remoteness Rules

Jason may care to take heart.

There are at least 2 cases in England involving concurrent liability for malpractice where it's been suggested that there's no difference in remoteness whether you sue in contract or tort. One is Banque Bruxelles in the CA (see Bingham at [1995] 2 All ER 769, 841); the other is Brown v KMR [1995] 4 All ER 598.

Stateside, there's the interesting Posner opinion in Evra Corp. v. Swiss Bank Corp 673 F.2d 951, cert. denied, 459 U.S. 1017 (1982), making effectively the same point.

best wishes

Andrew

===== Original Message =====

Dear Colleagues:

I am not sure whether I agree with Robert's suggestion that a plaintiff can choose tort over contract (provided all the elements are established) in order to take advantage of the better remoteness rule. If it is true that the contract remoteness rule is really a rule of contract interpretation and risk allocation, then it would seem to follow that since one cannot use tort to escape explicit contractual limitations on liability (Henderson, Central Trust), one cannot use it to escape implicit allocations of risk either. Thus, in a situation of concurrency where the remoteness rule in contract gave you less recovery than that in tort, you should be limited to the contractual amount. No case, to my knowledge, has explicitly addressed this issue in this manner but I think the answer follows if one accepts the use/risk interpretation of H v B.

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

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