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accounts in the transactions for which those

accounts are prepared.” 8

Twelve years later, in Hedley Byrne9, the House of Lords held

unanimously that as a matter of law, the making of a statement upon

which reliance is placed could give rise to a duty of care, even if there

was no contractual or fiduciary relationship. Lord Hudson expressly

referred to the judgment of Lord Denning in Candler v. Crane Christmas

saying that he agreed with it “so far as it dealt with the facts of that

case”10 and that he was therefore of the opinion that Lord Denning’s

judgment “is to be preferred to that of the majority…”. Lord Devlin too

said11 that he was prepared to adopt Lord Denning’s statement “as to the

circumstances in which he says a duty to use care in making a statement

exists.”

Most arbitrators and arbitration practitioners will remember the

Ken

Ren

case.12

The

issue

that

confronted

the

House

of

Lords

was

whether or not to make an order for security for costs in an ICC

arbitration. Their Lordships agreed that the English Court had the power

8 9 10 11 12 Ibid at p.436. Hedley Byrne & Co. Ltd v. Heller & Partners Ltd (1963) 2 AER 575. Ibid at p. 597. Ibid at p. 611. Coppée Levalin NV v. Ken-Ren Chemicals and Fertilisers Ltd (1995) 1 A.C. 38. (For a vigorous criticism of this decision, see Paulsson “The Unwelcome Atavism of Ken Ren: the House of Lords shows its Meddle” 12 ASA Bulletin (314, 1994) p.439.)

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