13. B&T II Flashcards
possible claims to protect intangible rights
ONE - CONTRACTUAL CLAIMS against debtor
TWO - TORTS (sue 3P)
GENERAL RULE
NO recovery for economic loss
- to have a claim, C must show D interfered with C’s right
- no general right for economic well-being that is good against the rest of the world
- if there was, that would be very bad for freedom of trade
Bradford v Pickles
D extracted water from his land to stop water percolating to C’s land (to hold C’s land at ransom so D can obtain a high price for his land)
MALICIOUS INTENT =IRRELEVANT
- B had no right to the water and thus, no cause of action
- if an act is lawful, motive is irrelevant
- to bring a claim, there must be a right interfered with
Allen v Flood
- R did not promise work the next day
- X threatened not to work unless R stopped hiring E
- E was not offered work because E was not member of TU
NO CLAIM - E has no right so no claim
- no general liability for causing economic loss
- “right” to work is just a liberty with no correlative duty (like FOS)
- R not liable, X deffo not liable
- if R liable, X might be liable for procuring breach
OBG v Allen (procuring BOC)
CLEAR ATTEMPTS TO LIMIT THE TORT
- rejected less precise formulations (e.g. interference)
- MUST be a primary wrong (breach of contract)
- rejected attempts to frame the tort widely enough to cover (1) causing loss by unlawful means, (2) procuring BOC, (3) conspiracy
Lumley v Gye
TORT OF PROCURING BREACH OF CONTRACT
one - breach of contract (yes)
two - mental element (no, G thought W was free to sing because L failed to pay her, so G thought Q could terminate - misunderstanding is unreasonable but he honestly believed so not liable)
three - conduct (procuring/facilitating)
four - defences?
Torquay v Cousins
NO PRIMARY BOC - D LIABLE for procuring failure to delivery oil
this case is wrong now under OBG v Allen
PROCURING BREACH (mental element)
D must have knowledge of breach
- predominant purpose does not need to be an aim to cause loss to C
OBG
- need to intend to procure breach
- if breach is not an end itself (just foreseeable consequence) not intending BOC
Lumley v Gye (DISSENT)
Coleridge J - too difficult to draw line between procuring/facilitating (liable) and mere advice (not liable) so tort is too uncertain and shouldn’t exist
Lewis v Yeakes
solicitor liable for client’s BOC
PROCUREMENT AND PERSUASION (more than just mere advice)
hard to draw line
- also persuasion was not acceptable here but it was in Lumley?
OBG v Allen (conduct)
mental element is narrow so conduct element can be wider
facilitating = liable
assist = liable
BMTA v Salvador
facilitate = liable
- bought car @ price D knew C couldn’t sell at
- D didn’t ask C to sell, C already wanted to sell
- D facilitated sale = liable
Edwin Hill v First National
D lent money to C (D got charge over property)
- D had power of sale
- D just asks C to fire architect instead
- procuring BOC
DEFENCE: justified
- D had a right to sell anyway which would have meant architect was fired
OBG v Allen (causing loss by unlawful means)
HOFFMAN: 4 differences between tort 1 and tort 2
2 main ones:
ONE - means must be independently unlawful
TWO - mental requirement requires targeting C
OBG v Allen (unlawful means in causing loss by unlawful means)
unlawful = acts intended to cause loss to C
- D is only liable if D targeted C
- must be unlawful in relevant sense
DISSENT (Nicholls)
- unlawful is unlawful in general sense
RCA v Pollard
sold bootlegged records
- C had exclusive license
- D committed crime
HOFFMAN (in OBG): not unlawful in relevant sense (contrary to statute is not enough; the statute is protecting (c) owner not party with license) AND D not targeting C
NICHOLLS (in OBG): not liable because D not targeting C ONLY
MENTAL ELEMENT (causing loss by unlawful means)
OBG - need for targeting of C (predominant intention)
A HIGH DEGREE OF BLAMEWORTHINESS IS CALLED FOR
- INTENTIONALLY cause loss to 3P
R&C v Total Network
unlawful means conspiracy confirmed
- need 2 or more people
- no targeting aspect required
- can be any criminal conduct
lawful means conspiracy
confirmed in 3 HL cases
- allen v flood
- harris v veitch
- loroko v shell (no.2)
Environment Agency v Churngold
electronic copies of electronic documents
- NO conversion for intangibles
OBG v Allen
MAJ: NO CONVERSION FOR CHOSE IN ACTION
Your Response
CA acknowledged powerful case of recognising possession could be exercised over digital doc
- position re: intangible prop should be reconsidered
OBG (why extend conversion?)
Hale: because property essential characteristic = transferability and choses in action are transferable and should be treated as property
BUT
- can’t define property with one essential characteristic
- choses in action not transférable
NICHOLLS: treated as property commercially
BUT
- N agrees there should be high mental element for procuring BOC (to protect freedom to act) so why not the concern here?
OBG v Allen (why not extend conversion)
ONE - traditionally wary of imposing liability for PEL (economic torts are restricted in application - “extraordinary step” to expand conversion)
TWO - extending liability limits freedom to commercial parties (preserve liabilities is important)
THREE - physical goods are different
- strict liability is dangerous (harder for parties to avoid interfering unlike physical goods)
Lipkin v Karonale
rogue partner took money from partner bank account and gambled it away
UE
- D unjustly enriched so can’t retain benefit
Cressman v Coys
D buys car but auctioneer made mistake
UE
- D is unjustly enriched so can’t retain benefit
UE
a way of protecting intangibles
- where C has intangible right
- but something happens without consent of C, meaning right (or value of right) ends up with D
PROTECTS VALUE OF CHOSE IN ACTION
- limited though, depends on showing benefit received by D
- most of the time, original contractual right still valid anyway
