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Maybe I too am missing something here, but in Wrotham Park the breach was a breach of a restrictive covenant, which is a contract; the fact that is also a proprietary right allowing successors in title to sue doesn't stop it being a breach of contract when the successor to the covanantor breaches the successor to the covenantee's right not have these buildings built, or does it? I accept that it looks odd, but unless we are prepared to say that as between the original covanantee and covanantor it is a contract and then as soon as a successor in title steps in it stops being a contract, Lord Nicholls must be right.

I may of course just be flailing around trying to extricate Lord Nicholls from patent error and falling into it myself.

As for Lionel's point about efficient breach and the lack of empirical evidence we may soon have some empirical evidence from which we can see which of us is right.

Duncan Sheehan

On Mon, 31 Jul 2000, William Swadling wrote:

Have I missed something? In Blake, Lord Nicholls placed great store on the decision of Brightman J in Wrotham Park v Parkside Homes, describing it as shining as a "solitary beacon, showing that in contract as well as in tort damages are not always narrowly confined to recoupment of financial loss". But since the claim in that case was a claim not against the original covenantor but a successor in title, and was brought not by the original covenantee but a successor in title, it was clearly anything but a claim for breach of contract.

Bill Swadling.