I knew I liked him.

Sarah Green
Fellow in Law
St Hilda's College
Oxford
OX4 1DY

sarah.green@law.ox.ac.uk

01865 286661

http://www.law.ox.ac.uk/profile/sarah.green

________________________________________
From: James Lee [j.s.f.lee@bham.ac.uk]
Sent: 14 March 2014 13:10
To: obligations@uwo.ca
Subject: Possession and Intangible Property

Dear Colleagues,



A short but interesting case has been decided by the English and Welsh Court of Appeal today - Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281 http://www.bailii.org/ew/cases/EWCA/Civ/2014/281.html - considering the question whether it is possible to a common law possessory lien over an electronic database. The Court holds that the answer is "no", but here is much consideration of OBG v Allan and the proper scope of property as opposed to obligations. Of course, there is also citation of ODGers Sarah Green and John Randall QC's work, with which Moore-Bick LJ expresses some obiter sympathy:



[27] "Many of Mr. Cogley's arguments owed a debt to a scholarly volume entitled The Tort of Conversion, in which Sarah Green and John Randall Q.C. make a powerful case for recognising that the essential elements of possession can be exercised over digitised materials, of which a database is a prime example, which should therefore be amenable to the tort of conversion. They also make a powerful case for reconsidering the dichotomy between choses in possession and choses in action and recognising a third category of intangible property, which may also be susceptible of possession and therefore amenable to the tort of conversion. Inevitably they are critical of the decision in OBG v Allan, which they regard as a wasted opportunity to set the law on a modern footing. In my view there is much force in their analysis, which, if accepted, would have the beneficial effect of extending the protection of property rights in a way that would take account of recent technological developments. However, to take the course which they propose would involve a significant departure from the existing law in a way that is inconsistent with the decision in OBG v Allan. That course is not open to us – indeed, it may now have to await the intervention of Parliament – and I do not think that any purpose would therefore be served by embarking on a fuller discussion of their suggestions here."



The case also contains the following line from Davis LJ: "The law of unintended consequences is no part of the law of England and Wales. But it is worth paying attention to it, in an appropriate case, all the same."



Best wishes,

James



--
James Lee
Senior Lecturer and Director of Admissions
Birmingham Law School, room 235
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk


Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx


SSRN: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1192219

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