Date: Wed, 21 Jun 2006 17:29:54 +0100

From: Andrew Tettenborn

Subject: Economic Loss in The House of Lords

I accept that the assumption of responsibility test isn't a universal solvent, but it does seem to me that the HL was right to use it in Commissioners. Effectively, it strikes me that they're making a perfectly valid point: Barclays Bank is paid to look after the interests of its customer and not his creditors, and if there's no compelling social reason to make it liable to extend this duty then we shouldn't do it.

On contempt as wrongful means, list members might note one clear English decision that this is a chicken that won't fight. See Chapman v Honig [1963] 2 QB 502 (no damages for action taken against plaintiff to punish him for having testified against the defendant).

Andrew

===== Original Message From Robert Stevens

(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.

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

Tel: 01392-263189 (int +44-1392-263189)
Fax: 01392-263196 (int +44-1392-263196)
Cellphone: 07870-130528 (int +44-7870-130528)

Snailmail:

School of Law
University of Exeter
Amory Building
Rennes Drive
Exeter EX4 4RJ
England

Lawyer (n): One skilled in circumvention of the law.
Litigation (n): A machine which you go into as a pig and come out of as a sausage.

- Ambrose Bierce (1906).

<<<< Previous Message  ~  Index  ~  Next Message >>>>>