Date: Wed, 9 May 2007 11:31

From: John Murphy

Subject: OBG again

Dear all:

I have been keeping my powder dry on this case until I felt that I had had enough chance to digest it. What strikes me as being really critical are the following issues.

(1) Why we want to confine --- as the majority suggest --- the meaning of unlawful means in the way that Lord Hoffmann suggests. To begin with, Lord Hoffmann doesn't consider the alternatives nearly as fully as Lord Nicholls, making it annoying (to me, at least) that others members of the House of Lords should agree with him as readily as they do. [In particular, I think Lord Walker misinterprets what Lord Nicholls has to say about INSTRUMENTALITY, as the latter clearly only invokes this idea in relation to three-party cases (see para [159]), but equally clearly envisages that two party cases might arise (see para [161]). So that is most unsatisfactory on Lord Walker's part.]

As you may have guessed, I prefer the Nicholls approach. Partly because he reasons it through better and partly because (f I read him correctly) he is suggesting that the claimant must be the object of the wrongdoing. I know that this raises questions about motive's role in tort. But I think that sometimes, it is no bad thing (as long as it is not the only criterion by which we ascribe tortious liability). If A intentionally blocks a road (a public nuisance) so as to divert customers X away from, B, a rival shopkeeper. But he does so in a such a way that none of the customers could show special damage so as to make the public nuisance actionable as a civil wrong, would it be wrong to say that A has committed the unlawful means tort against B? The public nuisance would be a crime, and only a crime.

This brings me to what Lord Hoffmann said (in agreement with Roderick Bagshaw) at [59]: "it would arbitrary and illogical to make liability depend upon whether the defendant has done something which is wrongful for reasons which have nothing to do with the damage inflicted on the claimant". But if A breaks his contract with B so as to force B to break a contract with C (and thus cause desired harm to C) that is okay because A's breach of his contract is an actionable civil wrong. But hang on. A's breach of contract with B is can perfectly well be seen as "wrongful for reasons which have nothing to do with the damage inflicted on the claimant", just like the criminal wrong of committing a public nuisance.

I reserve the right to disagree with myself at a later stage --- particularly if someone can come up with better reason why pure crimes (i.e., crimes that don't have a civil law counterpart, like Robert's example of a battery) should be excluded, and why civil law wrongs against a third party are what are required.

(b) Conversion. I'm more attracted to Lord Nicholls' analysis than Lord Hoffmann's. But I actually sit somewhere between the two in terms of where I think the law should go. The former's arguments for extending the law of conversion well beyond its historical roots is convincing (to me). However, his argument in favour of protecting contractual rights by conversion (at [233]) would be a step too far in my view, and certainly more than the modest extension he claims it would be. I'm all for protecting intangible forms of PROPERTY by a strict liability tort; but I am much less comfortable about protecting lower ranking rights/interests --- such as contractual rights and expectancies -- in this way. And while several of the judges in OBG remark that Clerk and Lindsell proclaims that a fairly wide variety of documents providing evidence of a debt or obligation already fall within the compass of conversion, EACH ONE fails to point out (or notice) that the only authorities cited relate to share certificates. As I see it, choses in action are protectable because they comprise (as I understand it, which may well be imperfectly) a form of intangible personal property. Other intangible personal property should be treated likewise. And this does no real violence to a tort which, at its heart, is concerned with the protection of personal property.

All efforts to persuade me that I'm wrong (and/or that the majority are right in OBG for better reasons than they have given) welcome.

John Murphy

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