Date: Wed, 9 May 2007 14:18

From: Andrew Tettenborn

Subject: OBG again

Just a few other thoughts.

Andrew

John Murphy wrote:

Dear all,

Andrew wrote:

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.

Yes it would, it would be an adapted fork. In the 19th century we allowed private nuisance to extend to cases involving physical damage to land whereas it had originally been concerned with what we today call amenity nuisance. That didn't stop nuisance being nuisance. It is arguable that it made nuisance law better --- because it was better suited to an increasingly industrialised Britain (I have in mind the St Helen's case). If we had had a well formed law of negligence at the time, the extension of nuisance in this would have been more objectionable. But at the time, it filled a gap.

I cling to an old-fashioned view that if I want to eat soup I'll invent a spoon, rather than make alterations to a fork. In John's house they may well refer to spoons as adapted forks (having lived in Yorkshire I confess I never did understand Lancastrian customs): down yere in Devon we calls 'em spoons.

You could say the same about the rule in Wilkinson v Downton filling a gap not yet filled by a law of negligence that embraces psychiatric harm.

The point is: when a gap arises in the law, you do one of two things.

(i) Either fill it by adapting what you have already [some would say this is what happened with Rylands v Fletcher???]

or

(ii) You invent something new. (eg, Wilkinson v Downton (and, in my view, Rylands v Fletcher]

or

(iii) You leave it to Parliament if you feel it is beyond the judicial role (but note Baroness Hale's reflections on this approach in OBG)

I think a better analogy is the ill-fated extension of nuisance to cover harassment in Khorasandjian. It didn't work: it was far better to do what we eventually did and invent something new (harassment).

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.

True. But this is mainly down to historical reasons. And the historical explanation of thing doesn't seem to me to be the best basis for its retention in the current era.

Yes, but ...

it seems to me there's a pretty fundamental difference between tangibles and intangibles (as any Continental lawyer will tell you). I'm as ready to move with the times as anyone: but I don't think there's much to be gained by giving similar treatment to very different things.

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.

Not exactly. I can stomach strict liability more where it protects our most cherished things. That's all. [Christian Witting, however, would strongly advocate (as opposed to tolerate) strict liability in respect of the protection of property ... see his paper in the last part of last year's NSWLJ.]

What kind of property is being thought about here?

I was thinking of things like domain names (which apparently present a number of problems these days); and Baroness Hale makes reference to computer records and data.

Hmm ...

Suppose I buy a domain name which then turns out to have been doled out to someone else earlier. Or I download computer data in which someone else has rights. I may be being stupid here: but I still don't see why I should have to pay damages despite the fact that I acted innocently and with all due care.

It's always been my view that (intellectual property aside) contract rights are the most important form of intangible property.

But are they really proprietary? I don't want to get myself into the business of trying to define property ... much better (qualified) scholars than I have tried and failed. But a right against only one person (the other contracting party) doesn't seem to me to have a proprietary feel to it.

You can certainly buy and sell it, mortgage it, etc ...

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.

I would have thought that saying this in a way that suggests that Scots law is not a civilised legal system is far more dangerous than disagreeing with me.

There are many Scots lawyers that contribute to the ODG, and they know where you are, Andrew!

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.

It is problematic, I agree. However, it less problematic to have an odd law of conversion than nothing at all in those cases where no other cause of action avails itself. And as for colonising new territory, I'm actually advocating much greater caution than either Hale or Nicholls.

If you're saying conversion should cover a kind of asset it doesn't at the moment, this seems to me an invitation to colonisation.

The Hoffmann argument based on keeping things the way they are, just because that is the way they have always been is just the kind of thing that invites comments from Canadians along the lines that we lack a mature legal system that doesn't really move on.

I can't really see why the defendants should be liable in OBG. The HL has held they're not ... so to that extent I'm happy.

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

Tel: 01392-263189 / +44-392-263189 (outside UK)
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LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906).

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