Date: Wed, 9 May 2007 12:20

From: Andrew Tettenborn

Subject: OBG again

Taking issue with John Murphy's dangerous work: but I'm going to do it, at least in regard to conversion (where I think Hoffmann is right). A few comments:

1. John is of course right to say that the cases mentioned about conversion of documents pregnant with value are share certificate cases. But they're not the only ones. These days cheques and bank drafts, I suspect, form the subject of the majority of cases.

2. The real difficulty with extending conversion to intangibles is that it is simply ill-designed to deal with them. You feel as if you're trying to eat soup with a fork. True, you could adapt the fork in some way: but then it wouldn't be a fork. In particular, most of the instances of conversion concern physical dealing with a thing: taking it, giving it, etc. Applying these to something you can't see, hear, smell or touch is difficult. The only case where a purely abstract transaction amounts to conversion of a chattel is a sale which is actually effective to transfer title without delivery. But this is a narrow example, and presumably those who would like to say you could convert intangibles would want the tort to cover at least some cases of interference that were ineffective to destroy the plaintiff's title.

3. John would like to see a strict liability tort referring to intangible property, but not to contract rights. What kind of property is being thought about here? It's always been my view that (intellectual property aside) contract rights are the most important form of intangible property.

4. It seems to me that the strict liability in conversion is actually part of the problem rather than the solution. The justification for it is purely historical, and due to the fact that it moonlights as a vindicatio. No other civilised legal system, or for that matter Scots law, accepts it. And it's increasingly tempered by statute, including the example of cheques: see Cheques Act 1957, s.4. If anything we should be taming this rampant exemplar of liability without fault, not encouraging it to colonise yet more territory.

Best wishes to all
Andrew

-------- Original Message --------
Subject: ODG: OBG again
Date: Wed, 09 May 2007 12:31:28 +0200
From: John Murphy

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.

--
Andrew Tettenborn MA LLB
Bracton Professor of Law
University of Exeter, England

Tel: 01392-263189 / +44-392-263189 (outside UK)
Cellphone: 07870-130528 / +44-7870-130528 (outside UK)
Fax: 01392-263196 / +44-392-263196 (outside UK)

Snailmail: School of Law,
University of Exeter,
Amory Building,
Rennes Drive,
Exeter EX4 4RJ
England

Exeter Law School homepage: http://www.law.ex.ac.uk
My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml

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