Protecting Property Through Tort: The Implications of Using Tort Law to Protect ‘Property Interests’ in English Common Law

This thesis is concerned with the protection of property interests in English common law through the law of torts. Specifically, it considers conversion, trespass to goods, trespass to land, private nuisance, and negligence (as far as it relates to property damage). The overarching questions explored, are: What are the implications of relying on tortious mechanisms to protect property interests?; and, If there are implications, how can these be rectified? These questions stem from the fact that English common law lacks any true proprietary action, in the sense of an action that is proprietary in both substance and form. My approach in this thesis is to use the oft-quoted criticism by Tony Weir of the chattel torts and the common law’s lack of a bespoke proprietary protective mechanism as a starting point for analysing the property torts. The analytical approach taken in this thesis focuses on the underlying role of tort law and the implication of having an action classified as tortious, as both a problem, and a possible solution. It argues that, because the actions are classified and thought of as tortious mechanisms, the underlying view of tort law (as, for example, based on a loss-based model) has implications for how these actions develop through the case law. These decisions often move the actions away from their property roots and ignore the importance to property law that these actions have. The tortious nature of these actions also has implications for how well these actions remedy interferences with property. My solution in this thesis is that greater recognition needs to be given to the special place these actions have, as they have a unique role spanning both property and tort law. If this is done, and in conjunction we think of tort law in a way which respects the underlying rights that tort law focuses on, property can be better respected and protected by these actions.