Has the Contracts (Rights of Third Parties) Act 1999 gone far enough in reforming the English law of privacy?

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Has the Contracts (Rights of Third Parties) Act 1999 gone far enough in reforming the English law of privacy?

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Abstract

Under the doctrine of privacy, which became entrenched in English law in the latter half of the 19th century , contractual rights and liabilities are limited to the parties to the contract. The mounting criticisms and arguments for reform have led to the Contracts (Rights of Third Parties) Act 1999 , an important statute which modernizes the law of contract and diminishes the relevance of complex case law dealing with the rule of privacy and its exceptions. However, while the Act has introduced a substantial exception to the privacy rule, it has left the rule intact for cases not covered by the Act . Therefore, for a number of cases, third party claims will still have to be based on pre-existing statutory and common law exceptions. This essay shall examine the problems caused by the privacy rule and the impetus for reform; it shall set out the circumstances in which third parties may or may not rely on the Act; finally, it shall analyze the incomplete nature of the Act in the context of the reform of the rule of privacy.

Introduction
The 1999 Act: The creation of a wide-ranging exception to the doctrine of privacy
1. The doctrine of privacy: Rationale and arguments for reform
2. The scope of the 1999 Act: Under what conditions can third parties obtain a right to enforce contracts?
An incomplete reform: The limits of the 1999 Act
1. Exclusions and limitations: The cases not covered by the Act
2. The 1999 Act and the pre-existing exceptions to the privacy rule: The effect of the Act on judicial development
Conclusion

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[...] See Law Commission Report No “Privacy of Contract: Contracts for the Benefit of Third Parties” [1996], hereafter Law Commission Report”, Tweddle v Atkison (1861) 1 B & S 393; Dunlop Pneumatic Tyre Co. Ltd v Selfridge & Co Ltd [1915] AC 847; Midland Silicones Ltd v Scruttons Ltd [1962] AC 446; Beswick v Beswick [1968] AC 58. H. Collins, The Law of Contract, 4th edition (Luton: Lexis Nexis UK, 2003), p M. Chen-Wishart, Contract Law (Oxford: Oxford University Press, 2005), p.626. [...]

[...] Stone, The Modern Law of Contract, 6th edition (London: Cavendish Publishing, 2005), p.128; Law Commission Report No For example, s Married Women's Property Act 1882 on life insurance; s. 148(7) Road Traffic Act 1988 on motor insurance; s Third Parties (Rights Against Insurers) Act 1930 on third parties' rights against insurers; Bills of Exchange Act 1882 on bills of exchange and negotiable instruments generally; s. 56(1) Law of Property Act 1925 on land interests; s Companies Act 1985. See Law Commission Report No 2.52 - Whereby a promise is made in a separate contract with the promisor. [...]

[...] The rights of a third party under the Act thus appear to be supplementary to rights the third party has under the common law or other statutes.[19] This makes it possible for a third party to invoke both the Act and a pre-existing statutory or common law exception: Treitel gives the example of a situation where the same facts not only satisfy the requirements of s.1 but also give rise to a trust in favor of a third party.[20] As noted by several academics, invoking and enforcing third party rights apart from the Act could be more advantageous to third parties.[21] The fact that third parties will still stand to benefit under other statutory or common law exceptions to the privacy rule surely diminishes the overall importance of the Act in its reform of the privacy rule. [...]

[...] Beatson, Ansons' Law of Contract, p. 421; G.H. Treitel, The Law of Contract, p. 258; R. Upex and G. Bennett, Davies on Contract, 9th edition (London: Sweet & Maxwell, 2004), pp. 188-189. A. Chandler and I. Brown, Law of Contract, 6th edition (Oxford: Oxford University Press, 2006), p.250. Law Commission Report No 5.10 - Ibid, Jackson v Horizon Holidays [1975] 1 W.L.R Darlington Borough Council v Wiltshier Northern Ltd and another [1995] 1 W.L.R Alfred Mc Alpine Construction [...]

[...] As the Law Commission noted, contracts can have far-reaching effects beyond the realm of the contracting parties.[8] The various objections can be summarized in the following way: the privacy rule thwarts the intentions of the parties; it leads to injustice to third parties in defeating their reasonable expectation of having a legal right to enforce the contract, and their reliance interests. The privacy rule also creates a ‘black hole' in the law, due to the fact that where a contract intended to benefit a third party is breached by the promisor, the third party who suffers the loss has no cause of action, while the promisee has the right to sue on the contract but has suffered no loss.[9] Finally the privacy rule has been criticized as incompatible with commercial transactions which can involve ‘multiple-linked contracts'[10]. [...]

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