Date: Tue, 8 May 2007 6:38

From: Andrew Dickinson

Subject: OBG Ltd

In this context, does the concept of "right" mean any more than that the law provides a procedural mechanism whereby the claimant can complain that another has fallen short of the standard of conduct which the law requires of him? Thus, in this connection, the law requires that we should not knowingly procure or collaborate in a breach of contract and gives the person to whom the relevant contractual obligation was owed the ability to bring civil proceedings to enforce that standard. The law also requires that we shall not act in various ways which it characterises as being "tortious" and, as in OBG, extends the category of persons who may seek to enforce that standard to include those who are indirectly affected by the defendant's restriction of another person's liberty. As such, selection of "control mechanisms" can be seen in terms of policy arguments about (among other things) incentivising or disincentivising particular activities or conduct, access to justice and judicial resources rather than abstract notions of "rights to trade" etc.

As I see it, Lord Hoffmann's judgment in OBG provides a welcome clarification of the applicable rules concerning the so-called "economic torts", although I would have preferred a stronger endorsement from the other judges on these issues.

Kind regards
Andrew

-----Original Message-----
From: Jason Neyers
Sent: 04 May 2007 21:10
Subject: ODG: OBG Ltd.

I've been surprised that there hasn't been any discussion of OBG Ltd yet. Perhaps marking or the up-coming long weekend across the pond has something to do with it :)

For what it is worth, I found the decision disappointing in that their Lordships never dealt with the most central conundrum surrounding the unlawful means economic torts: namely, why can the plaintiff sue when the plaintiff's rights have not been violated. And how is this anomaly consistent with basic legal principle (what one needs is a violation of one's own rights). Without answers to these questions, one cannot ever hope to come to a satisfactory conclusion as to what should count as unlawful means and what other "control mechanisms" might be required.

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