As a practitioner, I would recommend "ease of use" as a recommendation to sit alongside (although not above) doctrinal coherence any day. We will have to agree to disagree about whether Lord Hoffmann passes muster on the latter.
-----Original Message-----
From: Jason Neyers
Sent: 10 May 2007 13:30
To: Anthony de Garr Robinson
Subject: Re: RE: ODG: OBG again
Clearly if an act states explicitly or implicitly that it creates no rights in any individual then it cannot be used as a basis for the economic torts.
Also, I would think that a fair distinction might be made between true crimes (which would ground the tort) and regulatory offences (which might not). The distinction in Canada is fairly easy to make since the one is a federal matter which leads to a criminal record and another is provincial and does not. Is it that difficult in the UK to distinguish between true crimes and regulatory offences? (Is there any good UK stuff on this difference?)
I would also add that "civil actionability" is not the test that Hoffmann provides since he includes situations where no underlying tort is actually committed (the whole "would have been a tort if suffered loss bit" but I thought there was no such thing as negligence in the air, oh well).
Moreover, I would argue that "ease of use" is not a great test for the cogency of any legal doctrine -- is Wagon Mound easier to use than Re Polemis? The test rather is does the doctrine coherently fit with the central principles espoused in the totality of the other legal doctrines of the private law. By this measure, the Hoffmann test fails miserably.
In response to Rob, I would say three things: 1) the economic torts are generally regarded as a backwater and therefore the reasoning in them is less entitled to respect; 2) the crime theory explains the vast majority of the cases since the torts are also crimes (except the contract ones); 3) Lonhro is distinguishable since the question asked was one of foreseeability, the rest was obiter. I also query whether or not the offence committed was a crime as opposed to a regulatory offence (not having re-read it in many years).
I know that Rob views the economic torts as an exception to the privity doctrine but I still do not understand the basis on which this exception is justified. For example, it does not seem necessary to protect a right that would otherwise be unenforced or unenforceable (as is the case with some of the other exceptions, see White v Jones).
Thanks to everyone who took the time to comment.
