Henderson v Merrett Syndicates Ltd [1994] UKHL 5, [1995] 2 AC 145 is one of the foundational decisions of modern professional negligence law. It arose out of the Lloyd's Names litigation, but its principle reaches every profession that undertakes services for a client. Lord Goff of Chieveley, giving the leading speech, held that where a professional assumes responsibility for the performance of services, a duty of care in the tort of negligence arises alongside the contractual duty. The client may sue in whichever cause of action is more advantageous.
The practical consequence is that a client whose contractual claim is time-barred may still have a viable claim in tort, because contract and tort run different limitation clocks. That single point has shaped how professional negligence claims are pleaded for the past three decades.
Before Henderson, the law was unsettled. Some authorities suggested that where the parties had chosen to define their relationship by contract, tort had no independent role — the contract governed, and any duty of care lived inside it. Others, following Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, accepted that an assumption of responsibility could give rise to a tortious duty in the absence of contract, but the overlap position was doubted.
The seed had been planted earlier. In Nocton v Lord Ashburton [1914] AC 932 the House of Lords accepted that a solicitor owed fiduciary duties alongside his contractual retainer. And in Robinson v National Bank of Scotland Ltd 1916 SC (HL) 154 Lord Haldane, obiter, recognised that a duty of care could exist independently of contract in a professional advisory relationship. Henderson pulled these threads together.
Lord Goff treats the assumption of responsibility identified in Hedley Byrne as the organising principle. Where a professional holds themselves out as possessing a particular skill or knowledge, and undertakes to apply that skill for the benefit of a client who relies on them, a duty of care in tort arises. The existence of a contract does not displace it. The client may elect to sue in contract, in tort, or in both.
This is not a licence to circumvent the contract. If the contract limits or excludes liability, those terms will generally apply to the tort claim as well, because the duty in tort takes its shape from the contractual context. But where the contract is silent — as most retainers are on limitation — the tort claim runs its own course.
Under the Limitation Act 1980, a contract claim accrues on breach — usually the date the negligent advice was given — and runs for six years (s.5). A tort claim in negligence accrues when damage is suffered (s.2), which can be much later. Section 14A adds three years from the date of knowledge of the material facts, subject to a fifteen-year long-stop under s.14B. The gap between breach and damage is where Henderson does its real work.
Worked example. A client engages a solicitor in 2015 to advise on a trust structure intended to shelter a family business from future inheritance tax. The advice is negligent. The client acts on it in 2015 but suffers no measurable loss until 2019, when HMRC issues an adverse assessment.
In contract, the breach occurred in 2015. The six-year period expired in 2021. A contractual claim issued in 2022 is out of time.
In tort, damage was suffered in 2019 when the assessment crystallised. The six-year period under s.2 runs to 2025. Alternatively, s.14A gives three years from the date of knowledge — if that knowledge came with the 2019 assessment, the claim runs to 2022. The client sues in tort to preserve the claim, and Henderson is the authority that makes it possible.
The mechanics of s.14A, its long-stop, and the knowledge test are explored at Limitation Act 1980 section 14A and professional negligence.
Henderson applies wherever a professional undertakes services with an assumption of responsibility. That reach is wide. It covers solicitors advising on transactions, accountants preparing accounts or giving tax advice, financial advisers recommending investments, architects certifying works, surveyors valuing property, engineers designing structures, and consultants advising on business decisions.
For the professional and their insurer, the practical points follow. Notify circumstances early — a PI policy responds to circumstances that may give rise to a claim, and the tortious limitation clock does not extend the notification deadline in a claims-made policy. Keep records of the advice given, the instructions received, and the caveats attached, because a Henderson-style tort claim can be pursued years after the contractual clock has stopped ticking. Read the retainer carefully: exclusion or limitation clauses may or may not survive the concurrent-duty analysis, and the wording matters.
Apex Insurance Brokers Limited is authorised and regulated by the Financial Conduct Authority. Firm reference number 724952. This entry is general information, not advice on any particular policy.