Date: Tue, 8 May 2007 12:01

From: Jason Neyers

Subject: OBG Ltd

Andrew Dickinson wrote:

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.

To me that is the problem with the decision since I take it to be a general principle of private law that the only person who can enforce a right is the right-holder, and persons who suffer loss because of the infringement of someone else’s right cannot sue merely because of this fact. There is just no cogent reason given by any of the judges as to why a privity exception needs to be made for the economic torts. If the best that they can come up with is "because we said so" or for some unexpressed "policy", then English law is not as mature a legal system as it claims to be.

Lord Hoffmann may clarify the rules but his clarifications are totally arbitrary and incoherent and are therefore as Lord Walker states, unlikely to be the last word of the subject.

----- Original Message -----
From: Andrew Dickinson
Date: Tuesday, May 8, 2007 6:38 am
Subject: ODG: RE: 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.

--
Jason Neyers
January Term Director
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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