Date: Thu, 10 May 2007 09:34

From: Anthony de Garr Robinson

Subject: OBG again

Many activities which constitute crimes already are actionable in tort. However, there are thousands of regulatory and other minor offences buried away in unnumbered statutes and statutory instruments which are not. They are there for reasons which have nothing to do with protecting individuals from harm and were never intended to give rise to tort liability. Some are ancient or are there for political/aspirational reasons (“sending out a signal” etc) and would never be prosecuted in practice. Others expressly provide that they do not confer a civil remedy. To bring them all within the ambit of tort law by treating them as unlawful means could create a huge number of windfall claims which would be difficult to justify, either as a matter of justice or legal policy.

The same point applies to treating a breach of statutory duty. The common law has worked out principles for distinguishing between those which are (or the situations in which they are) actionable and those which are not (or the situations in which they are not). The principles can be haphazard and unpredictable, but this is inevitable given the subject matter: when the courts apply them, we all understand what they are trying to do. To treat all breaches of statutory duty as unlawful means would undermine those principles. In my view, it would make it necessary to develop a test to distinguish between those breaches which constitute unlawful means and those which do not. The obvious test is the one that the courts have already invented in order to determine whether a breach is actionable in tort. As I understand it, that is what the law has done for many years and it is what Lord Hoffman has done again now.

To use civil actionability as a control device for these purposes makes a great deal of practical sense. It is relatively easy to apply in practice and it builds on principles which have been carefully developed by the courts to distinguish between conduct which is serious enough to merit civil liability and conduct which is not. The suggestion seems to be that crimes and breaches of statutory duty that are not serious enough to be actionable at the suit of the victim should nevertheless be actionable when committed with the necessary intention to injure. But what pressing need justifies changing the law in this radical way?

The courts would then have to introduce new control devices to limit its wide potential effect. I pity the poor litigants who will have to pay for the privilege of helping the courts do that over the next few decades.

Anthony de Garr Robinson QC

One Essex Court | Middle Temple | London EC4Y 9AR

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From: Jason Neyers
Sent: 09 May 2007 19:38
To: John Murphy
Subject: Re: ODG: OBG again

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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