Date: Tue, 8 May 2007 12:18

From: Andrew Dickinson

Subject: OBG Ltd

In my view, legal systems do not need to embrace artificial constructions of personal or human "rights" to construct a "mature" system of legal obligations. Why, for example, is it immature for the English legal system to tell me that it is wrong to lie and to enable not only the person misled but also any other person whose relationship with the representee is affected by the lied to pursue a civil claim against me (but not any other Tom, Dick or Harry whom might claim to have been affected by the lie or might object to fibs being told, i.e. the private attorney general)? The entire tort of negligence is based on such fine policy judgments, and does not deploy a "privity" doctrine in the sense that I understand you to use it. One might disagree with Lord Hoffmann as to where the line is to be drawn, and one might also criticise the fact that he did not clearly express the policy reasons underlying his decision, but I cannot agree that the decision in OBG is flawed because it fails to identify the right of the claimant that was infringed by the defendant's conduct.

Andrew

-----Original Message-----
From: Jason Neyers
Sent: 08 May 2007 12:02
To: Dickinson, Andrew (L&DR-LON)
Subject: Re: ODG: RE: 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.

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