My book, Economic Loss, is now in its 3rd edition.

It is 2,717 pages long, in two volumes: General Principles (Chapters 1-5), and Specific Applications (Chapters 6-10).

It is published by Sweet and Maxwell, London, UK, but it covers the legal position pertaining to economic loss in England and Wales, Scotland, Ireland, Australia, New Zealand and Canada; plus some cases in the USA, Singapore and Hong Kong.

The Foreword is written by Lord Phillips, who was the President of the Supreme Court of the United Kingdom at the time.

This is what he wrote:

“I received the invitation to write a foreword to the Third Edition of Economic Loss on my Blackberry when walking in the Italian Dolomites.  I was not familiar with this work, but accepted nonetheless because of my interest in this topic.  I envisaged that it would be a relatively slim volume.  How wrong I was.

The Introduction to the book begins with the statement that it deals primarily with the various situations in which a person suffers what is called pure economic loss.  That is something of an understatement.  Mr Bernstein approaches his topic from the ground up.  He examines the foundations of the law of negligence and the building blocks that culminate in the situations where the law permits recovery of pure economic loss or, perhaps more frequently, bars such recovery.  Thus, Chapter 6, which introduces the topic of Product Liability, is concerned with “Physical Injury and Property Damage”.  The author explains that it is necessary to consider these “non-economic loss” cases in order to appreciate fully the tenor of the pure economic loss decisions.  This reflects the approach that he has adopted throughout this book.  Chapter 2 addresses the elements of the tort of negligence, classically stated as: (1) duty of care; (2) breach of duty; (3) causation; and (4) remoteness.  This indeed is the starting point for the detailed analysis that the author has devoted to the topic of economic loss.  But many of the cases examined are not cases about economic loss.  This is a substantial work that subjects to detailed analysis the whole of the law of negligence.

I have never before encountered a legal textbook such as this one. Each chapter is introduced by a series of citations from judgments relevant to its topic, set out in chronological order and thus portraying the development of judicial thought.  They make fascinating reading and should not be galloped through.  This means some quite lengthy pre-reading before one gets to the text of the chapter – Chapter 2 opens with approximately 240 citations!  Many of these cases then receive detailed analysis in the body of the chapter.  Mr Bernstein sets out the propositions that the cases exemplify, and does not hesitate to criticise judicial reasoning where he considers it deserves criticism, which is quite often.  I am happy to say that I seem to have come away relatively unscathed!  Mr Bernstein does not content himself with saying what the law is, as laid down by the judges.  He expresses his own views as to what the law ought to be.  He appreciates the need not to open the floodgates or to countenance the presence of indeterminate liability, which are the policy reasons that have so often led the courts to deny liability for pure economic loss, but is critical of the refusal to hold a defendant liable for negligently causing foreseeable pure economic loss where this does not raise the spectre of indeterminate liability because the act of negligence will have damaged only one victim.  Thus he is particularly critical of the negative approach of the courts towards liability in negligence for pure economic loss resulting from the purchase of a defective product.

I had some difficulty in preparing to write this foreword because I was constantly enticed by the very detailed analysis and discussion of topics that I find fascinating – such as, for instance, the judicial and extra-judicial dialogue between Lord Hoffmann and Professor Jane Stapleton as to whether the control mechanism for pure economic loss claims is properly to be described as “scope of duty” or “remoteness” – see Chapter 2.

This is not a book that is always going to provide the practitioner with a speedy answer to a specific problem. It is a book for the advocate, seeking to persuade the Court of Appeal or the Supreme Court to make new law in the field of pure economic loss, or the jurist keen to trace how the judges have disguised decisions based on policy as principled conclusions, or anyone who enjoys following this author through the labyrinthine alleyways that make up the landscape of the law of negligence.  Sometimes one finds oneself in very unlikely territory.  Who, when perusing a work on economic loss, would expect to find reference to the reaction of the House of Lords to the decision of the Strasbourg Court in Osman v United Kingdom (1998) 29 EHRR 245, a decision that held that, striking out a claim against the police for damages for failing to prevent a man from shooting two victims, contravened the right to a fair trial under Article 6 of the Human Rights Convention?  But occasionally finding oneself in a byway is part of the charm of this work.

If the reader of this foreword has only borrowed a copy of the Third Edition of Economic Loss, I suspect that, by the time he has delved into its contents, he will wish to add one to his personal library.  I certainly look forward to adding one to mine.”

Lord Phillips of Worth Matravers