15 May 2008
4 Eng Ltd v Harper and another [2008] EWHC 915 (Ch), [2008] All ER (D) 400 (Apr)
There is no objection in principle to recovery of damages for loss of a chance in an action for deceit.
If the loss of the chance is damage directly caused by the defendant’s deceit, it is as much within the scope of damages for deceit as payments or liabilities in fact made or incurred by the claimant or as damages for the loss of profits in a hypothetical alternative business established on the balance of probabilities.
If damages for loss of a chance were recoverable in negligence, they should also be recoverable in deceit. Moreover, the foreseeability of a head of loss is irrelevant in the award of damages for deceit. A loss is too remote only if it is not in the eyes of the law directly caused by a defendant’s deceit (Mr Justice Richards at 44 and 46).
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