Date: Wed, 21 Jun 2006 16:01:14 +0100

From: Robert Stevens

Subject: Economic Loss in The House of Lords

(1) Sharp is important, as I understand it, because the English system of land registration is predicated on its being right, or at least it was when I studied it years ago. It is no doubt good law, as the HL just affirmed.

(2) We cannot see the claim in Sharp as based upon the infringement of the claimant's property right over the house. The claim was brought by a chargeholder who lost his charge because of the careless failure of a clerk at a local land registry to register it. The property right was no doubt lost if it was not registered but the failure to register didn't infringe the property right itself. Charges over land don't give rise to (property) rights against everyone else that they be registered carefully.

(3) Assumption of responsibility is not a universal solvent and it is a bad mistake to think it is. Treating it as if it was led to it becoming discredited. Conversely, just because a concept cannot explain everything shouldn't lead us to conclude that it explains nothing.

(4) I don't know the answer to your intentionally caused hypo. It is no doubt contempt, but are consequential losses recoverable? I know of no case off the top of my head. You could try arguing it is the intentional infliction of loss by unlawful means.

Robert Stevens
Barrister
University of Oxford

Jason Neyers writes:

Dear Colleagues:

The Commissioner case is very interesting. I wish it had been clearer that an assumption of responsibility and reasonable detrimental reliance were the only way to recover pure economic losses and that White v Jones is a dead-end (being a contract case as explained by Peter at the conference) but at least it is a step in the right direction.

I wonder though why the Sharp case is treated as 1) being so important; & 2) treated as a pure economic loss case since it seems that the destruction of the plaintiff's property right and the loss consequential on that which drives the result (Lord Mance acknowledges as much).

I also wonder if the result would have been different if the bank had intentionally refused to comply with the order. What do others think about that issue? Would it be just another Bradford v. Pickles?

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