This introductory chapter first reviews the current state of the law of tort. It discusses the increase in tort claims due to our greater ability to cause more and greater harm and our reduced willingness to put up with the normal vicissitudes of life. It considers the law of individual responsibility. It suggests that tort law is becoming by the day a more complex set of rules than it ever was, where national law mixes with legal ideas emanating from foreign jurisdictions. Tort law rules are also becoming intermingled with those from other branches of English law. The second part of the chapter discusses the relationship between tort and contract.
Chapter
1. Introduction
Chapter
11. State Responsibility
State responsibility arises from the violation by a State (or other international legal person) of an international obligation that can be one of customary international law or arising from a treaty. The violation must be due to conduct attributable to a State. This chapter discusses the nature of State responsibility; attribution; breach of an international obligation of the State; circumstances precluding wrongfulness (defences); consequences of a breach; enforcement of a claim; and treatment of aliens.
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22. Illegality and restraint of trade
This chapter analyses the law on illegality and restraint of trade. The law on illegality is very complicated. Illegal acts vary greatly in range and severity. The Supreme Court has recently held that a ‘range of factors’ need to be considered when deciding whether the claimant’s illegality should defeat a claim, and it is likely that the law will become increasingly flexible in this area. Restraint of trade is concerned with balancing the competing rights of private parties, notably the employer’s right to expect a certain degree of loyalty as regards their business against the employee’s freedom to leave their employment and to undertake new business activities. The key consideration tends to be whether restraint of trade clauses are reasonable.
Chapter
24. Summary Judgment
Summary judgment is used where a purported defence can be shown to have no real prospect of success and there is no other compelling reason why the case should be disposed of at trial. The procedure for entering summary judgment is not limited to use by claimants against defendants. Defendants may apply for summary judgment to attack weak claims brought by claimants. This chapter discusses time for applying for summary judgment; defendant’s application for summary judgment; excluded proceedings; orders available; amendment at hearing; other compelling reasons for a trial; directions on summary judgment hearing; and specific performance, rescission, and forfeiture in property cases.
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21. Damages for death and personal injuries
This chapter examines various issues in relation to damages in tort, beginning by looking at the principles that lie behind damages awards. The primary object of the law is to compensate those who have been harmed by another’s wrongdoing by making an award that seeks to put the claimant into the position that they would have been in had the harm not occurred. The chapter discusses the calculation and forms of damage payments, and special and general damages; independent, joint and several concurrent liabilities; time limitations on claims; the problem with damages; and debunking the compensation culture myth.
Chapter
24. Summary Judgment
Summary judgment is used where a purported defence can be shown to have no real prospect of success and there is no other compelling reason why the case should be disposed of at trial. The procedure for entering summary judgment is not limited to use by claimants against defendants. Defendants may apply for summary judgment to attack weak claims brought by claimants. This chapter discusses time for applying for summary judgment; defendant’s application for summary judgment; excluded proceedings; orders available; amendment at hearing; other compelling reasons for a trial; directions on summary judgment hearing; and specific performance, rescission, and forfeiture in property cases.
Chapter
31. The claims process
This chapter considers preliminary issues, involving both jurisdiction and admissibility, before international courts and tribunals. It discusses prior negotiations, the requirement of a dispute, grounds of inadmissibility, diplomatic protection, and mixed claims.
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27. Compensatory damages
This chapter focusses on compensatory damages for breach of contract. The innocent party will often seek to recover damages to compensate them for their ‘expectation loss’. Essentially, such loss corresponds to the profits the claimant hoped to make from the contract. Damages based upon ‘expectation loss’ protect the innocent party’s ‘expectation interest’ in having the contract performed. Damages are generally assessed at the date of breach. However, the court can take into account events that occur after the date of breach when assessing damages. Damages are not generally recoverable for disappointment or injured feelings resulting from the breach. But, if an object of a contract is to provide pleasure, or the distress is a result of physical inconvenience caused by the breach of contract, then damages for non-economic loss may be recoverable. Sometimes “negotiating damages” can be awarded to compensate the innocent party.
Chapter
21. Damages for death and personal injuries
This chapter examines various issues in relation to damages in tort, beginning by looking at the principles that lie behind damages awards. The primary object of the law is to compensate those who have been harmed by another’s wrongdoing by making an award that seeks to put the claimant into the position that they would have been in had the harm not occurred. The chapter discusses the calculation and forms of damage payments, and special and general damages; independent, joint and several concurrent liabilities; time limitations on claims; the problem with damages; and debunking the compensation culture myth.
Chapter
12. Drafting Statements of Case
A statement of case is a summary of allegations of fact which sets out all the elements required by law to show a cause of action, and entitlement to all remedies claimed. Clear, concise, and complete statements of case are central to effective litigation. A good statement of case encapsulates what the case is about, demonstrating good factual analysis, based on a proper understanding of the relevant law. This chapter deals with the rules and skill related to statements of case, and how statements of case can be refined. The discussions cover the process for drafting a statement of case; rules for drafting; principles for focusing on issues; headings for statements of case; framework for particulars of a claim; specifying remedies and relief; refining a statement of case; and challenging a statement of case.
Chapter
13. Joining the Right Parties
The accurate identification of parties is vital in an adversarial system. There must be a clear cause of action by the party named as claimant against the party named as defendant or the action will fail. Loss and damage must be also shown to have been caused to the named claimant by the named defendant or damages will not be recoverable. This chapter first discusses the selection of claimants and defendants, and other types of involvement (agency, vicarious liability, the role of insurance, substitution of parties). Where a business is a party to an action, it may be run by a sole trader, by a partnership, by a company, or by a public limited partnership. The correct legal personality must be used for the proper service of documents, for success in the action, and for enforcement of judgment. The remainder of the chapter covers the rules for specific types of parties; additional claims and additional parties under Civil Procedure Rules (CPR) Part 20; and the drafting of the Part 20 claim.
Chapter
14. Pursuing Appropriate Remedies
The main purpose of most litigation is to secure a remedy or relief. That is the reason why the claimant starts the action, and it should be the focus of many decisions relating to the case. From the first contact with the client, lawyers must be clear about what the client really wants to achieve, and decisions about causes of action, evidence, and interim applications should focus on the remedies and relief being pursued. This chapter discusses the remedies a court can and cannot order; claims for damages; quantification of damages; and claims for interest on top of claims for the payment of a sum of money or damages. The final section covers the importance of taking a proactive approach to claiming and quantifying damages.
Chapter
16. Defending an Action
This chapter focuses on the role of the defendant. The litigation system in England is adversarial, thus on the face of it the role of the defendant is potentially defensive, confrontational, and non cooperative. While the objective of the defendant will usually be to make the claim go away, the perhaps natural desire to take an approach that involves denial, delay, and obfuscation wherever possible must be resisted, or at least carefully considered. The chapter discusses the main types of defence to an action; dealing with the early stages of an action when a claim form is received; rules for drafting a defence; making a counterclaim; claiming a set-off; a general framework for a defence and counterclaim; and strategies and tactics in defending a case.
Chapter
19. Evidence and Disclosure
Collecting and analysing evidence is often one of the most expensive elements of litigation. The approach to dealing with disclosure of evidence has been modified as part of the reforms introduced following the review carried out by Lord Justice Sir Rupert Jackson. The norm of standard disclosure has been replaced by options for the level of disclosure designed to ensure that disclosure is proportionate, which presents opportunities for saving costs and opens up some tactical considerations as regards the level of disclosure to seek and to offer. This chapter focuses on general principles and approaches that are most likely to be effective in preparing a case. It discusses the key rules of admissibility; questions of weight and reliability on the evidence presented; identifying what needs to be proved in a case; types of evidence; collecting evidence; disclosure of evidence; electronic disclosure of evidence; and reviewing and advising on evidence.
Chapter
4. Confidentiality and access to medical records
This chapter examines confidentiality as a fundamental aspect of doctor–patient relationships: its ethical basis and equitable, contractual, and tortious obligations. It then considers the law governing access to medical records and statute that necessitates fair and lawful processing of sensitive personal data and the EU General Data Protection Regulation aimed at harmonising data protection legislation. It discusses exceptions to the duty of confidentiality, including explicit and implied consent, prevention of harm to others, police investigation, public interests, and press freedom. The chapter considers confidentiality with respect to children; adults who lack capacity and deceased patients; remedies available for breach of confidence; access to electronic patient records; and issues raised by genetics-related information.
Chapter
8. Limitation and Contribution
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines the principles of contribution and their effect on the remedies that can be obtained by a successful claimant, as well as the statutory rules of ‘limitation’ that govern the time-barring of claims. The liability of more than one party for ‘the same damage’ is discussed, together with the apportionment of responsibility for the damage. Relevant provisions found in the Civil Liability (Contribution) Act 1978 and the Limitation Act 1980 are also considered.
Chapter
6. Defences to negligence
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers engage fully with each subject and check their understanding as they progress. The claimant has the burden of establishing liability for the tort while the defendant has the burden of establishing the defence. If the claimant establishes a successful cause of action in tort, the defendant must plead one (or more) of the defences available to them. If the defendant establishes a successful defence, either their liability for the damage may be reduced or they may be totally absolved from liability. This chapter examines general defences applicable to all torts but which have particular relevance to claims in negligence, focusing on contributory negligence, volenti non fit injuria, and ex turpi causa non oritur actio.
Chapter
15. Nature of a Patent
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter provides an overview of the nature of the patent, with emphasis on the variety of ways in which patents are described, how they are drafted, and what they contain. It begins by looking at the types of patent in the UK and the two authorities that grant patents in the country: the UK Intellectual Property Office and the European Patent Office. It then considers the complex and difficult process of drafting a patent before discussing the four key parts of a patent, namely, an abstract, a description of the invention, one or more claims, and any drawings referred to in the description or claims. It also looks at some of the more common types of claims.
Chapter
6. Defences to negligence
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The claimant has the burden of establishing liability for the tort while the defendant has the burden of establishing the defence. If the claimant establishes a successful cause of action in tort, the defendant must plead one (or more) of the defences available to him. If the defendant establishes a successful defence, either his liability for the damage may be reduced or he may be totally absolved from liability. This chapter examines general defences applicable to all torts but which have particular relevance to claims in negligence, focusing on contributory negligence, volenti non fit injuria, and ex turpi causa non oritur actio.
Chapter
15. Issuing Proceedings, Track Allocation, and Directions
This chapter begins with a discussion of court selection. The issue of proceedings, and to some extent the choice of court, is increasingly being streamlined, with the procedure for County Court money claims and bulk claims being moved online. For the larger multi-track cases, however, the High Court and the County Court have concurrent jurisdiction for many types of proceedings. The chapter then explains the issuance of the claim form, which marks the start of formal litigation; the service of proceedings, i.e. the formal process by which the defendant is notified of the claim; the claimant's selection of the court in which the claim is brought; and the court's allocation of the case to a particular ‘track’. The final section deals with the directions questionnaire (form N180), which should not be seen as a formality but as a key step in defining how the case should move forward.