The right to sue can be analysed in a number of rather different ways. Take, for example, the following problems. First, H contracts with D, a firm of builders, to replace the roof on the matrimonial home actually
140 See, eg, Photo Production Ltd v Securicor Transport Ltd [1980] AC 827.
141 See, eg, Forward v Pittard (1785) 99 ER 953; Liver Alkali Co v Johnson (1875) LR 9 Ex 338; Nugent v Smith (1876) 1 CPD 423.
142 See, eg, The Albazero [1977] AC 774.
143 For a case that involves the ‘status’ of a partner in a long-standing homosexual relationship with respect to a statutory right to take over a lease see: Fitzpatrick v
Sterling Housing Association Ltd [1999] 3 WLR 1113 (HL). This case can be
owned by W, H’s wife. The work is done carelessly and when H goes to see his solicitor he is told that neither he nor his wife can sue D because H has suffered no damage, not being the owner of the house, and W has no contractual or tortious obligational link with D. Secondly, C consigns goods to B via D, a shipper, and the goods are lost at sea owing to the negligence of D. If property in the goods remained with C, but the risk of loss had passed via the contract of sale to B, it would appear that B, although the one to suffer loss as a result of the negligence, has no action at common law. For, he has neither a contractual relationship with D nor an action in tort because D owes a duty of care only to the person who has a property interest in the goods.144C, of course, can sue D, but
as he has suffered no damage he will receive only nominal damages.145
These problems can be approached from a law of persons, law of things and law of actions position.
From a law of persons position, the first problem could be easily solved by treating H and W as a single persona. Instead of saying that the contract was between H and D one might say that it was between the family and D: do not family lawyers talk of a matrimonial home instead of a house belonging to W? Of course, from a technical position, neither the law of procedure nor the law of persons is formally prepared to treat the family as a single unit as we have seen. Nevertheless, from a law of obligations position, the House of Lords is not happy to tolerate D being immune to liability: ‘[s]uch a result would ... be absurd and the answer is that the husband has suffered loss because he did not receive the bargain for which he had contracted with the ... builder and the measure of damages is the cost of securing the performance of that bargain by completing the roof repairs properly by [a] second builder’.146The second problem also raises a law of persons question if one thinks of rights attaching to ‘consignors’ or ‘bailors’. One could, for example, allow C as ‘bailor’ to obtain the value of the lost goods which C would then hold either on trust for B or as money obtained on B’s behalf.147
From a procedural position, one can say, with respect to the second problem, that although D is under an obligational (contract and tort) duty to look after the goods, the legal party who suffers the damage has no action in justice. Consequently, all that a law reformer need do to allow B to claim compensation for his loss is to pass a statute which vests in B ‘all rights of suit under the contract of carriage as if he had
144 The Aliakmon [1986] AC 785; cf Carriage of Goods by Sea Act 1992, s 2(1). 145 The Albazero [1977] AC 774.
146 Lord Bridge in Linden Gardens Ltd v Lenestra Sludge Disposals Ltd [1994] AC 85, p 97.
Chapter 2: Procedural and Substantive Questions
been a party to that contract’.148 The problem is largely solved at the law of actions (procedural) level.149 The reason for adopting this approach was to avoid a confrontation with the privity of contract rule whereby third party strangers to a contract could obtain neither rights nor duties from such an obligation (Chapter 10 § 7).150Yet, in Beswick v
Beswick,151Lord Denning MR said of this privity rule ‘at bottom that is only a rule of procedure’ in that it ‘goes to the form of the remedy, not to the underlying right’. Again, then, law reformers have no need to function within the law of obligations itself if they wish to ameliorate the position of third parties; the whole problem could be treated as a question of procedure or remedies.152 In fact, Lord Denning also suggested a law of things approach to the privity problem that presented itself in Beswick. A promise to pay a debt is, according to the Law of Property Act 1925, a form of property and once one is in the realm of in rem rights the problem of privity is again avoided. Admittedly the House of Lords refused to accept this analysis;153but in granting the estate the remedy of specific performance they avoided in practice the privity rule through recourse to the law of actions.
Problem solving in the law of obligations is, accordingly, not just a question of applying rules from the law of obligations. The law of procedure, the law of persons and the law of remedies are equally important and this is why it is not particularly realistic to divide up the common law into scientifically arranged categories. Indeed, even when there is a rationalised structure of obligations, as in Roman law, the rules of the law of obligations still cannot function in isolation from the other categories. As Oliver LJ once observed, ‘many rules which are recognised as rules of substantive law could be classified merely as rules of practice’. And he continued: ‘It may be that, in some jurisprudential theory, it is possible to classify as a legal right some claim which will not be enforced by the court, but on a practical level the existence of a right depends upon the existence of a remedy for its infringement’.154The
English law of obligations is not, therefore, a subject that exists isolated from other areas of the law such as procedure and actions. It is a subject that is dependent upon them when it comes to the question of a right to sue. It is, of course, tempting to say that it is the role of a category like
148 Carriage of Goods by Sea Act 1992, s 2(1)(c).
149 See, also, Contracts (Rights of Third Parties) Act 1999, s 1.
150 White v Jones [1995] 2 AC 207. But cf Contracts (Rights of Third Parties) Act 1999. 151 [1966] Ch 538, p 557.
152 Which is indeed more or less how the new statutory reform operates: Contracts (Rights of Third Parties) Act 1999.
153 [1968] AC 58.
obligations to predict when such a right to sue will become a right to succeed. Yet, it should be increasingly evident that English law does not always find it easy to distinguish between these two aspects of litigation. Did the plaintiff in Esso v Southport (Chapter 1 § 7(a)) fail because the corporation had no right to succeed in the law of obligations or because the plaintiff had, in the situation before the House of Lords, no right to sue?