Date: Tue, 8 May 2007 14:03

From: Robert Stevens

Subject: OBG Ltd

Andrew wrote:

Rather, we should be asking, who deserves to be protected by the civil law from lies told by others, and one cannot escape the conclusion that the line to be drawn is one of policy.

I would have thought that what is required is a theory as to why we think lies are wrongful, rather than some sought of 'policy' explanation, although it may depend upon what you mean by 'policy.'

If, for example, you think lies are wrongful because they damage truth and/or our ability to trust one another, then I would have thought it obvious that the person who has been lied to is the only possible claimant based upon the lie alone. If an elderly woman is deceived by a rogue to part with an heirloom it is she who has been the victim of this wrong, not her heirs.

If by contrast you think lies are wrongful because of their potential to cause other people loss, then there is no obvious reason why the person lied to, as opposed to anyone suffering loss as a result, should be the correct claimant. 'Floodgates' arguments for limiting the scope of liability are never terribly satisfactory as there are so many different ways of shutting the gates.

I don't think the choice between these options is anything to do with 'policy'. It would seem to me that as we don't have a general right not to be caused loss even when deliberately inflicted upon us (Allen v Flood), that the former interpretation of what makes lies wrongful (in England) is the preferable one.

As to causing loss by unlawful means in OBG, if we think the 'unlawful means' are simply a control device for keeping the law within some sort of rational limit for policy reasons, then there seems to be no very good reason why criminal conduct should not count. If it is criminal, we have no good policy reason to allow it.

If, by contrast, you think causing loss by unlawful means is an exceptional situation where the law allows a third party to a right to bring a claim for his consequential loss, then only civil wrongs should count. If I beat up the customers to your shop in order to cause you loss, you can 'piggy back' upon their rights in order to claim because the law does not allow me to use other people, or more accurately their rights, as a means to my own ends.

For myself, I don't think that the 'unlawful means' limitation is simply a matter of an unarticulated policy restriction. It goes to the root of what makes the defendant's conduct wrongful with regard to the claimant.

Robert Stevens

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