Ask the Editor

I have been asked - Is there really a difference between negligence and gross negligence under English law?

English law has no real concept of “gross negligence” but the courts will try and give meaning to the parties intentions. Clearly, when people say “gross” negligence in a contract they mean something more than just “standard” or “regular” negligence.

Therefore, it all comes down to the degree of negligence. The classic definition of negligence is that (a) you owe your client/principal a duty of care, (b) you have breached that duty by acting without the reasonable skill and care one would expect from a reasonable person in your position (c) that breach caused the claimant a loss.

So when does regular or standard negligence becomes “gross negligence?”

As a starting point, look to see if it has been defined in your contract. If it is defined, the courts will try to apply that definition. If it is not defined, or the definition itself is unclear then the usual starting point is Lord Mance’s judgement in Red Sea Tankers v Papachristidis (the Hellespont Ardent) [1997]. He said:

“Gross negligence is clearly intended to represent something more fundamental than failure to exercise proper skill and/or care constituting negligence. But, as a matter of ordinary language and general impression, the concept of gross negligence seems to me capable of embracing not only conduct undertaken with an actual appreciation of the risks involved but also a serious disregard of or indifference to an obvious risk.”

However, it should be noted that the difference between negligence and gross negligence is one of degree and not kind.

There is no need for gross negligence to require dishonesty, bad faith or deliberate misconduct. Wilful default and reckless carelessness are usually separate legal concepts from gross negligence.

Cockerill J said in the Republic of Nigeria v JP Morgan Chase Bank NA, [2022] that gross negligence is “a notoriously slippery concept: it requires something more than negligence, but it does not require dishonesty or bad faith and indeed does not have any subjective mental element of appreciation of risk.”

He went on to summarise that: “…even a serious lapse is not likely to be enough to engage the concept of gross negligence. One is moving beyond bad mistakes to mistakes which have a very serious and often a shocking or startling (cf. “jaw-dropping”) quality to them. The target is mistakes or defaults which are so serious that the word reckless may often come to mind, even if the test for recklessness is not met. That is why the Hellespont Ardent points one to actual appreciation of the risks involved or conduct which is in serious disregard of an obvious risk.”

In summary, if there is no contractual definition, the courts will be looking for:

1. Jaw-dropping, shocking and startling mistakes; and/or
2. An actual appreciation of the risks involved and disregarding them; and/or
3. A complete disregard for an objectively obvious risk, even if it was not appreciated subjectively.

Therefore, if you can limit your liability to just instances of “gross negligence” in your contract, we recommend doing so as it is a higher standard for your counterparty to establish.