Date: Thu, 10 May 2007 08:23

From: Robert Stevens

Subject: OBG again

I would have thought that the problem with this account is that, whatever its theoretical attractions, it does not fit with the law as it is known to be. It has never been the case that is a necessary element of causing loss by unlawful means that those means be criminal. It has always sufficed that the unlawfulness constitutes a tort against another, indeed breach of contract suffices. The sufficiency of a crime was disapproved, albeit obiter, by the House of Lords in Lonrho v Shell, and decisively rejected by the House of Lords in OBG.

For what it’s worth, I think the House of Lords, here meaning Lord Hoffmann, are right. Lumley v Gye imposes a burden on third parties to contractual rights, the tort of causing loss by unlawful means allows a third party to take the benefit of the right of another.

Robert Stevens

In message <46421505.2020408@uwo.ca> Jason Neyers writes:

Dear All:

I think that there is no good reason why crime should not be included, in fact, I think that true crimes (along with the breach of some statutes) are the only thing that should be included under the definition of "unlawful". The freedom from crime seems to me to be the only personal right that the plaintiff can point to in the economic torts as being violated (overcoming the Palsgraf objection). Commission of a crime could be wrongful both because it is an offence against Her Majesty and because the defendant's duty not to commit crime is recognized as creating a right in the plaintiff -- moreover this wouldn't be the first time that the criminal law had a collateral effect on the pure private law. As I read Lord Nicholls he supports this reasoning when he argues that the deliberate commission of a crime targeted at the plaintiff in a two-party situation would led to liability as well (a similar argument is suggested by Lord Simonds in the Crofter case to explain the conspiracy conundrum). The mistake I think Nicholls makes is to include pure torts under "unlawful" since the private law doctrines of privity deny this collateral effect (a point that wasn't realized by the majority in Allen v. Flood since they were relying on the pre-Wagon Mound view of culpability and liability).

Anyway, this is a theory I am working on. Comment appreciated.

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