Public Law Computer Marked Assessment II

Marks: 1 Which of the following was a key effect of the Human Rights Act 1998?
Choose one answer. A. A written constitution for the United Kingdom for the first time
B. A major constitutional change, since all rights under the European Convention on Human Rights became part of the law of the United Kingdom
C. An important constitutional change, since most of the rights under the European Convention on Human Rights became directly enforceable in domestic courts
D. None of the above, since the European Convention on Human Rights already bound the United Kingdom
E. Don't know
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The correct answer is (c).

Domestic courts were given jurisdiction to protect most (but not all) ECHR rights by the 1998 Act, whereas previously the courts had only been able to use ECHR rights as an interpretative aid when faced with an ambiguous domestic law. See Barnett Chapter 19 and the subject guide at 15.3.

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Marks for this submission: 1/1.Question 2
Marks: 1 Which of the following is NOT among the requirements for bringing a claim to the European Court of Human Rights at Strasbourg?
Choose one answer. A. The application must be made within 6 months of the final domestic court decision
B. Available domestic remedies must have been exhausted
C. The applicant must be personally affected by the alleged violation
D. The application must be endorsed by the Council of Ministers
E. Don't know
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The correct answer is (d).

The European Court of Human Rights and the European Union are entirely separate entities, each with its own organs. It is vital that you understand the history of each and the distinction between them; every year, many students confuse the EU system and the ECHR system, with disastrous results in the examinations. See the subject guide at 15.1 and Barnett pages 500-505.

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Marks for this submission: 1/1.Question 3
Marks: 1 When is it possible to derogate from ECHR rights?
Choose one answer. A. A derogation may be made from any Convention right except Articles 3, 4, 7 in times of war or public emergency; except that derogations from Article 2 may only be made in times of war
B. A derogation may be made from any Convention right, as long as the State doing so has a legitimate aim and the derogation is proportionate to that aim
C. A derogation may be made from any Convention right in times of war or public emergency, but only for a period of six months
D. A derogation may be made from any Convention right (except Articles 3 and 4) in times of war or public emergency
E. Don't know
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The correct answer is (a).

Article 15 of the ECHR limits permissible derogations even further: ‘In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under the Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. The legality of any derogation may be challenged: see Brogan v United Kingdom (1988) 11 EHRR 117

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Marks for this submission: 1/1.Question 4
Marks: 1 Which of the following ECHR articles is unqualified?
Choose one answer. A. Article 2, the right to life
B. Article 9, freedom of thought, conscience and religion
C. Article 6, the right to a fair hearing (trial)
D. Article 10, freedom of expression
E. Don't know
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The correct answer is (b).

The only absolute Convention rights are those under Articles 3, 4, 7 and 9. The other Articles contain express limitations or qualifying criteria. For example, freedom of expression under Article 10 can be restricted, but only where the restriction is one prescribed by law, and is necessary in a democratic society to pursue one of the legitimate aims listed in Article 10(2). Restrictions must be proportionate to their legitimate aims. You should also understand and be able to explain the effect of derogations, the margin of appreciation and restrictive interpretation of rights by courts; see 15.1 and 15.2 in the subject guide and pages 504-521 in Barnett.

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Marks for this submission: 1/1.Question 5
Marks: 1 What is the effect of the Human Rights Act on domestic judges?
Choose one answer. A. They must interpret legislation and the common law in a manner which complies with Convention rights, and can declare a piece of legislation unconstitutional if it is impossible to interpret it in such a manner.
B. They must interpret legislation in accordance with Convention rights. If it is impossible to do so, they may make a declaration of incompatibility, but cannot render the legislation invalid. Where a case is based on common law, judges must also uphold Convention rights.
C. They must interpret primary legislation in accordance with Convention rights, and may issue a declaration of incompatibility if it is impossible to interpret it in such a manner. But judges may declare secondary legislation invalid if it breaches Convention rights.
D. They must interpret legislation in accordance with human rights, but have no specific duty to apply the Convention rights in common law cases.
E. Don't know.
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The correct answer is (b).

Under s.3 of the Human Rights Act, courts must interpret primary and secondary legislation in accordance with the Convention rights, ‘so far as it is possible to do so.’ According to Lord Steyn in R v A [2002] AC 45, Section 3 may require courts ‘to adopt an interpretation which may appear linguistically strained.’ Declarations of incompatibility do not affect the validity of a statute; it is for Parliament to choose whether to amend the statute in question. Since courts are public authorities within the meaning of s.6, judges must also uphold Convention rights even when a case involves only common law.

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Marks for this submission: 1/1.Question 6
Marks: 1 What is the doctrine of judicial deference?
Choose one answer. A. Another name for the concept of justiciability in judicial review.
B. Judges in the United Kingdom must defer to those in the European Court of Human Rights when interpreting Convention rights.
C. The judiciary are always careful to avoid offending politicians by making political judgments.
D. Judges treat some matters as being outside their own competence, and as issues to be determined by Parliament or the executive.
E. Don't know.
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The correct answer is (d).

Judicial deference is linked strongly to the doctrine of separation of powers, but judges must also take care to ensure that they are not so deferent that their duty to uphold Convention rights is compromised. For the relationship between justiciability and judicial deference, see Barnett at p. 531. (b) is incorrect since the Human Rights Act only requires judges to take Strasbourg jurisprudence into account, not to apply it in all cases.

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Marks for this submission: 1/1.Question 7
Marks: 1 What is the constitutional status of the Human Rights Act 1998?
Choose one answer. A. It has a special protected status and can only be amended or appealed after a unanimous vote of both Houses of Parliament.
B. It has a special protected status and cannot be amended or repealed.
C. The same as any other Act of Parliament; it can be amended or repealed at any time.
D. Generally the same as any other Act of Parliament, but it could not be amended for five years after it came into force.
E. Don't know.
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The correct answer is (c).

Since legislation cannot be entrenched. However, it would be very difficult in practice for a future Parliament to repeal the 1998 Act, since there would be many adverse political and moral consequences of so doing.

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Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers either to the reading in the subject guide or to an extract. Please make sure you read the relevant extract before answering the questions below.
Please read the extract from Hashman and Harrup v United Kingdom [2000] 30 EHRR 241, then answer the two questions (Q8 and Q9) that follow. Question 8
Marks: 1 Which of the following is NOT evident from Steel v UK [1998] and Hashman v UK [2000]?
Choose one answer. A. That there is an overlap between Articles 10 and 11 in relation to the right to protest.
B. That breach of the peace is not sufficiently well-defined to satisfy the requirement of ‘prescribed by law’ in Articles 10 and 11.
C. That freedom of expression can protect behaviour which shocks, offends, annoys or disgusts others.
D. Applying sanctions to a person for their part in a protest will be compatible with Article 10(2) only to the extent that it is proportionate to the need to maintain public order or to protect the rights and freedoms of others.
E. Don't know.
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The correct answer is (b).

Both cases find that breach of the peace is sufficiently well-defined; in Steel the violations of Article 5(1) were due to the arrest and detention of peaceful protesters who had not interfered with the rights of others.

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Marks for this submission: 1/1.Question 9
Marks: 1 What was the basis of the violation of Article 10 on the facts?
Choose one answer. A. The applicants had not been convicted of any criminal offence, and so the restriction on their freedom was disproportionate.
B. The interference with freedom of expression was not ‘prescribed by law’ since the order imposed on the applicants was too imprecise to allow the applicants to know what it was that they were not allowed to do.
C. The right to protest is more important than the law of breach of the peace.
D. The interference with freedom of expression was not ‘prescribed by law’ since the order imposed on the applicants was based on common law, not statutory authority.
E. Don't know.
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The correct answer is (b).

A restriction on a Convention right cannot satisfy the requirement of ‘prescribed by law’ unless it is sufficiently precise to enable a citizen to foresee whether his conduct is likely to break the law.

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Marks for this submission: 1/1.Please read this extract from the speech of Lord Hope in the case of Campbell v MGN [2004] 2 AC 457, then answer the two questions (Q10 and Q11) that follow. Question 10
Marks: 1 What is the proper balance of rights between Article 8 and Article 10?
Choose one answer. A. There should be no automatic priority of one right over the other, and the court should evaluate whether it is necessary in any given case to qualify the one right in order to protect the other.
B. The presumption is that freedom of expression takes priority, as recognised in s.12 of the Human Rights Act 1998; that presumption can be overturned by the specific facts of the case.
C. The presumption is that the right to respect for private life takes priority; that presumption can be overturned by the specific facts of the case.
D. Freedom of expression takes priority in matters of serious public concern.
E. Don't know.
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The correct answer is (a).

Section 12(4) does not create a priority of rights: the case for each right should be considered in full on the facts. On a different issue, see Cream Holdings v Banerjee [2004], however, for the current interpretation of s.12 (3) of the Human Rights Act: an injunction to prevent publication by the media of a matter of serious public concern is difficult to obtain. Prior restraint of the media via an injunction to prevent publication raises serious Convention concerns. The Cream case can be found in ‘Recent Developments’ for 2006.

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Marks for this submission: 1/1.Question 11
Marks: 1 For Lord Hope, which factor tipped the balance from being relatively equal to being an intrusion into the claimant’s private life, and hence a violation of Article 8?
Choose one answer. A. The fact that photographs of the claimant had accompanied the published story.
B. The relevant provision of the Press Code, which stipulates that a person may have a reasonable expectation of privacy, even in a public place.
C. The grossly intrusive nature of the story, which revealed details of the claimant’s treatment for drug addiction.
D. The specific photographs of the claimant which had been published, in conjunction with the story.
E. Don't know.
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The correct answer is (d).

See paragraphs 123-124 of the judgment. However, the Press Code does recognise that long-lens photography is particularly intrusive; and the European Court of Human Rights has found violations of Article 8 in relation to the publication of photographs (see Peck v UK [2003] 36 EHRR 719).

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Marks for this submission: 1/1.Application
Please answer the following examination questions:
Question 12
Marks: 1 Luella is the presenter of a late-night television programme. She has become a minor celebrity by going to a lot of high profile parties and having affairs with several other minor celebrities. She's always been pleased to co-operate with the media in posing for photographs and giving interviews. She becomes engaged to a television presenter, and they fly off to Barbados, without telling anyone, for a private holiday. Unfortunately they are recognized in their exclusive secluded beach hotel, and a photographer takes pictures of them from an adjoining property, with a long-lens camera. The pictures, which include semi-naked shots of her cavorting in the sea, appear in the Sunday Blurb with a story which details the couple’s wedding plans. The wedding plans were taken from the couple’s hotel room without their permission. Luella now brings a case to court under the Human Rights Act, stating that her "right to privacy" guaranteed under the European Convention on Human Rights has been breached.

Advise her.

Choose one answer. A. She should have taken a case to the Press Complaints Commission first, and so will not succeed in a privacy claim.
B. She may succeed in a case based on breach of confidence/misuse of private information, and receive damages.
C. The court is likely to find that the public right to know outweighs the couple’s right to respect for private life.
D. Luella’s previous willingness to appear in media publications means that she cannot succeed in a privacy claim.
E. Don't know.
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The best answer is (b).

There is no requirement that a claimant should first complain to the Press Complaints Commission and, in any case, the PCC has always not been supportive in such cases- see the example of Anna Ford v Daily Mail [2001]. There is a specific provision in the Press Code (3(ii)) which prohibits the use of long-lens photography, but there is no effective sanction for breaches of the Press Code. However, s. 12 of the Human Rights Act requires courts to have regard to the Press Code when weighing up freedom of expression against respect for private life. The court must weigh up the balance between the relevant Article 8 and Article 10 rights. Overall, recent cases both in the UK and in Strasbourg suggest that the combination of confidential information and intrusive photography in the facts of this question would allow Article 8 to prevail over Article 10, especially since there is no pressing need for the public to receive the information. Relevant cases include Campbell v MGN, Douglas v Hello!, Peck v UK.

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Marks for this submission: 1/1.Question 13
Marks: 1 The following is a sample examination question. Without looking at the answer plans below, write your own plan to the question. Which of the answer plans below is the closest to yours?

“The Human Rights Act 1998 was carefully constructed in an attempt to achieve two seemingly contradictory aims: the guarantee of protection of rights and freedoms on the one hand and the preservation of the traditional balance of power under the constitution on the other.”

Choose one answer. A. A detailed discussion of all aspects and provisions of the Human Rights Act, including its history, and of the European Convention on Human Rights, with reference to as many examples from cases as possible. Current challenges for human rights, both in the UK and in the Strasbourg caselaw.
B. Outline of the Human Rights Act and the methods by which it renders the Convention rights enforceable in the UK, explaining how rights are guaranteed by the Convention and upheld by domestic courts, with reference to interesting and recent cases.
C. Effect of the Human Rights Act on parliamentary sovereignty and the separation of powers; scope of protection of rights under the Act; contrast with situation before 2/10/2000; key definitions (public authority, victim); role and interpretative duty of the courts; declarations of incompatibility (but not of invalidity); relevant caselaw.
D. Introduction to the European Convention on Human Rights and to the Human Rights Act 1998; discussion of whether the Human Rights Act can be entrenched in English law; whether the Human Rights Act is equivalent to a Bill of Rights; role of the courts and of parliament in relation to the Act; remaining inadequacies of the 1998 Act as a guarantee of Convention rights.
E. Don't know.
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(c) is the best choice.

(a) would produce a general essay which does not answer the specific question asked, and so will not achieve a good mark- this is a very common problem. Pre-prepared answers will rarely answer the question which is on the examination paper! (b) only answers the first part of the question, neglecting to evaluate the relationship between the Human Rights Act and the key constitutional concepts of parliamentary sovereignty and the separation of powers. (d) answers a completely different question (the extent to which the Human Rights Act is equivalent to an entrenched Bill of Rights and so, again, would not achieve a good mark. Precision and accuracy in analysing the question are absolutely vital in order to succeed in law examinations, and the ability to construct a good plan will help you to do your best under stressful conditions.

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Marks for this submission: 1/1.

Public Law Computer Marked Assessment 1

Marks: 1 What are Dicey's three principles of the rule of law?
Choose one answer. A. No punishment may be inflicted other than for a breach of the law, irrespective of rank or status all are equal under the law, and rights and freedoms are best protected under codified law.

B. No punishment may be inflicted other than for a breach of statutory law, irrespective of rank or status all are equal under the law, and rights and freedoms are best protected under the common law.
C. No punishment may be inflicted other than for a breach of the law, irrespective of rank or status all are equal under the law, and the law must seek to do social justice.
D. No punishment may be inflicted other than for a breach of the law, irrespective of rank or status all are equal under the law, and rights and freedoms are best protected under the common law.
E. Don't know
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The correct answer is (d)

This is core knowledge which is covered in the Subject Guide at 5.3, so please revise Chapter 5 and its 'essential readings' if you answered this question incorrectly. The rule of law is one of the fundamental concepts of the constitution, to which we shall refer again at various points in the course.

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Marks for this submission: 1/1.Question 2

Marks: 1 What is the basis of Sir Ivor Jennings' critique of Dicey on the rule of law?
Choose one answer. A. Dicey's views are too conservative and favour certainty over social justice.
B. Dicey's views are too revolutionary and favour social justice over certainty.
C. The rule of law is a subterfuge which hides injustice.
D. The focus should be on the morality of law, not the rule of law.
E. Don't know
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The correct answer is (a)

This is essential material, so you should be familiar with the range of perspectives on the rule of law. See Barnett, Constitutional and Administrative Law, chapter 4 for the range of relevant academic writings. Jennings argued that Dicey was 'concerned not with clearing up the nasty industrial sections of the towns, but with the liberty of the subject', and that more discretionary power is necessary in order to promote social justice. If you chose answers (c) or (d), re-read pages 76-81 of Barnett and you should be able to see whose viewpoints those answers represent.

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Marks for this submission: 1/1.Question 3
Marks: 1 Which factor may be said to have undermined the rule of law in CCSU v Minister for the Civil Service?
Choose one answer. A. Due to the doctrine of the separation of powers, courts cannot interfere with decisions made by a Minister of the Crown.
B. Due to the doctrine of the separation of powers, some important policy decisions are non-justiciable.
C. Due to the margin of appreciation, some important policy decisions are non-justiciable.
D. Due to the doctrine of the separation of powers, courts cannot interfere with decisions of the executive.
E. Don't know
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That's correct

Judicial review is not always available. See Barnett page 89; in the CCSU case, the House of Lords identified the categories of decision which would be immune from judicial review as including (but not limited to) the making of treaties, the dissolution of parliament, the appointment of ministers, declarations of war and peace, and matters relating to the granting of honours.- all of which involve matters of 'high policy'. In the courts' view, such matters should be determined by the executive, not by the judiciary.

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Marks for this submission: 1/1.Question 4
Marks: 1 What is the effect of the Human Rights Act 1998 on the rule of law in the UK? (Please choose two of the following options)
Choose at least one answer. A. It makes no difference since the UK has been a signatory to the European Convention on Human Rights for over 50 years, and so the rights were already guaranteed.
B. It makes no difference since all relevant rights were already protected under the common law.
C. It is supportive of the rule of law since judges are required to interpret legislation 'so far as it is possible to do so' in accordance with the Convention.
D. It is supportive of the rule of law since it requires public authorities to uphold Convention rights, and failure to do so is now generally unlawful.
E. Don't know
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The correct answers are (c) and (d)

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Marks for this submission: 1/1.Question 5
Marks: 1 In Entick v Carrington (1765) 19 St. Tr. 1029, the court found that:
Choose one answer. A. The search and seizure warrant was illegal since it had not been signed by a justice of the peace, and hence the officers executing the warrant had been trespassing on the plaintiff's property.
B. The search and seizure warrant was illegal since there was no lawful authority for its issue, and hence the officers executing the warrant had been trespassing on the plaintiff's property.
C. The search and seizure warrant was legal but unenforceable since it had expired, and hence the officers executing the warrant had been trespassing on the plaintiff's property.
D. The search and seizure warrant was illegal but its use was justified because the plaintiff had committed a serious offence against the state.
E. Don't know
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The correct answer is (b)

This case is discussed in the Subject Guide, see p.59, where it is among a list of cases which you were asked to research further, and to think about. You should be familiar with its facts and understand the important issues which it raises!

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Marks for this submission: 1/1.Question 6
Marks: 1 Which of the following was emphasised in the ruling of the Court of Appeal in R (L and Another) v Secretary of State for the Home Department, Lord Chancellor's Department, interested party ((2003) Times LR, 30 January)
Choose one answer. A. The need for the law to be accessible.
B. That even those whose claims for asylum are refused have rights under the ECHR.
C. That ignorance of the law is no defence.
D. That prevention of terrorism can justify exceptions to legal rights.
E. Don't know
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The correct answer is (a)

The Master of the Rolls stated that: 'It was an aspect of the rule of law that individuals and those advising them, since they would be presumed to know the law, should have access to it in authentic form.' If you did not know the answer, note that this case is in the online update to the textbook; you should therefore be familiar with it. It is very important in Public Law to keep up to date with legal developments, both statutory and in case law. You need up to date examples of each legal principle on the course and its exceptions.

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Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers either to the reading in the subject guide or to an extract. Please make sure you read the relevant extract before answering the questions below.
Question 7
Marks: 1 What does Entick v Carrington tell us about the rule of law?
Choose one answer. A. That the common law protects human rights.
B. That the rule of law has exceptions where the state is protecting the public interest.
C. That the courts have a general power to review executive actions and ensure that they comply with the law.
D. That the courts may safeguard the rule of law through review of executive actions.
E. Don't know
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The correct answer is (d)

See the textbook at p.25 and consider the contrasting case of Liversidge v Anderson (1942) if you answered (c). However, also note the effect of the Human Rights Act 1998 - the Act allows a citizen to challenge government action which appears to violate his rights under the European Convention on Human Rights.

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Marks for this submission: 1/1.Question 8
Marks: 1 In R v R [1991] 3 WLR 767, the key rule of law issue was that:
Choose one answer. A. The appellant was convicted, and his conviction upheld, due to a retrospective change in the relevant statute; he would not have been guilty under the law at the time of his act.
B. The appellant was convicted, and his conviction upheld, due to a retrospective change in the common law; he would not have been guilty under the law at the time of his act.
C. The courts tried to overturn the marital exemption to rape which had been created by Parliament.
D. The appellant's human rights had been violated due to a breach of Article 7 of the European Convention on Human Rights.
E. Don't know
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The correct answer is (b).

This case is the subject of Activity 5.1 in the Subject Guide, where you were asked to research the case and then to write a passage evaluating the case from the perspective of the rule of law. There are several case commentaries available on Westlaw which you might find helpful. The case is also relevant to human rights and to the powers of judges to make law; further, it is interesting from the perspective of separation of powers. Note that Parliament subsequently endorsed the decision of the House of Lords by amending the relevant statute.

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Marks for this submission: 1/1.Please read the following extract from the decision of the European Court of Human Rights in CR and SW v UK [1995] 21 EHRR 245, then answer the two questions (Q9 and Q10) that follow. Question 9
Marks: 1 How does retrospectivity undermine the rule of law?
Choose one answer. A. It attacks accessibility, clarity and certainty in the law.
B. It is an arbitrary exercise of power.
C. It gives too much discretion to the courts in the definition of criminal offences.
D. All changes to statutory law should be made by Parliament, not the courts.
E. Don't know
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The correct answer is (a).

From Dicey to the European Convention on Human Rights, retrospectivity in law is condemned for the reasons given in (a): a person should not be made liable for an act which was not unlawful at the time he committed it. See page 56 in the Subject Guide and pages 85-6 in the textbook.

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Marks for this submission: 1/1.Question 10
Marks: 1 Which of the following most accurately portrays the reasons why the European Court of Human Rights found that Article 7, which prohibits retrospectivity in criminal offences, had not been violated?
Choose one answer. A. Marital immunity was an unacceptable and out of date principle, had many exceptions which affected the clarity of the law and no injustice had been done by its removal.
B. Rape is such a serious offence that no immunity should ever have been justified, the change to the law was foreseeable, and the common law immunity did not protect one of the applicants in the present case.
C. Marital immunity had never really had a sound basis in the common law but had been created by academic writers such as Hale; thus no injustice was done by the removal of the unsound principle and there had not really been a change in the common law.
D. Marital immunity was an unacceptable and out of date principle which failed to give effect to the rights of wives; the courts had removed the immunity in accordance with the requirements of equality between the sexes; the change was reasonably foreseeable and reflected Convention principles.
E. Don't know.
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The correct answer is (d).

Although the reasons behind the decision of the European Court of Human Rights are complex, in essence they were as summarised in (d). The convictions did not violate Article 7 since they were a continuation of a line of reasoning which diminished a husband's anachronistic immunity; the convictions had been a reasonably foreseeable development in the law and did not contravene either the aims of Article 7 or the underlying aims of the entire Convention.

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Marks for this submission: 1/1.Question 11
Marks: 1 Which of the following do we learn from the events in Malone v Metropolitan Police Commissioner [1979] 1 CH 344 and Malone v UK [1984] 7 EHRR 14?
Choose one answer. A. That illegally intercepted communications cannot be used as evidence in criminal trials since to do so would violate the rule of law.
B. That without a statute to regulate police actions in intercepting communications, such actions will be unlawful according to English courts and the Convention.
C. That although a state action may be lawful under English law, it may still be the case that insufficient protection is given to Convention rights or that the law lacks the necessary degree of certainty and clarity.
D. That a state action taken to prevent or detect crime in a manner which is lawful under English law will not be interfered with by the European Court of Human Rights, since it is within the margin of appreciation left to a state to determine how to deal with such matters.
E. Don't know.
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The correct answer is (c).

While reliable and complete evidence is of crucial importance to the rule of law, equality before the law is subject to many exceptions and you should be aware of how the principle has moved on since Dicey. We shall return to the human rights aspects of this case later in the course.

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Marks for this submission: 1/1.Application
Please answer the following examination question (Q12):
Question 12
Marks: 1 The following is an examination question from a past paper involving the rule of law. Which set of issues would you discuss in answering it?

"In our society the rule of law rests on twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law." (Lord Bridge of Harwich, 1991). Discuss.

Choose one answer. A. The rule of law, the sovereignty of Parliament, the role of the judiciary and separation of powers; the relationship between the three; in discussing the rule of law, the key matters to discuss are Dicey's three principles and the critique of them from other academics and viewpoints.
B. The rule of law, the sovereignty of Parliament, the role of the judiciary and separation of powers; the relationship between the three; in discussing the rule of law, an in-depth analysis of all aspects is necessary for this question.
C. The rule of law, the sovereignty of Parliament, the role of the judiciary and separation of powers; the relationship between the three; in discussing the rule of law, the key matters to discuss are the nature and purpose of the rule of law, i.e. to ensure that powers are exercised according to the law and that individual rights are protected by the law.
D. The rule of law, the sovereignty of Parliament and the role of the judiciary; the relationship between the three; in discussing the rule of law, the focus should be on recent cases after a detailed historical examination of the development of the rule.
E. Don't know.
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The correct answer is (c).

This is the best plan. The rule of law is an important topic and one which pervades this course, but it does not always require detailed consideration in examination questions, and there are obvious topics with which it is intertwined. Sometimes a question may involve two or even three central topics, and you should be prepared to deal with such questions appropriately; writing everything you know about the topics is not an appropriate answer. It is vital to answer the specific question asked. Students often hope, very optimistically, to find a whole question in the exam on each identifiable topic of the course; past papers should show you that this is not realistic. Planning answers is a vital skill. If you have not already done so, look at the Examiners' Reports for previous years: this question was from the 2003 paper and was unpopular and not answered particularly well by students.

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Marks for this submission: 1/1.

Review of the Regulation of Investigatory Powers (RIPA) Act

As part of the measures to protect the UK proud tradition of individual freedom including from unjustified interference by the State, the government is considerating changes to RIPA . RIPA powers have been criticised as an extension of the "surveillance state"Councils were found to be using them to investigate parents accused of lying about where they live to get their children in to better schools.

BLocal officials have been condemned as "Bin Stasi" for using the powers to target people who put their bins out on the wrong day or let their dogs foul in the street.
Councillors or senior officials might in future be required to approve their use, The Tories have called for the use of the powers to be restricted to offences that carry a prison sentence.

Home Secretary Jacqui Smith said it was right they could be used for combating fly tipping and rogue traders as well as serious crime and terror

She said: "

"The government is responsible for protecting both types of freedom. In order to do this, we must ensure that the police and other public authorities have the powers they need. But we must also ensure that those powers are not used inappropriately or excessively.

"The government has absolutely no interest in spying on law-abiding people going about their everyday lives. I don't want to see these powers being used to target people for putting their bins out on the wrong day or for dog fouling offences.

"I also want to make sure that there is proper oversight of the use of these powers which is why I am considering creating a role for elected councillors in overseeing the way in which local authorities use RIPA techniques."

SALIENT POINTS ON TORT III

NEGLIGENCE

AN INTRODUCTION TO TORT

Tort law determines who bears the loss which result from defendant action based on the following principles

a) Compensation
b) Fault
c) Retributive justice (punishment)
d) Deterence
e) Economic efficiency (market deterence)
f) Loss distribution (spreading losses in a socially fair way)

Interest Protected by Tort

Tort laws aims to protect individaul from actual or threatened harm to certain specific interests such as

a) Personal harm
b) Harm to property
c) Harm to reputation
d) Harm to financial interests
e) Harm to the due process of law - Martin v Watsone D maliciously made a groundless accusation on indecent exposure against the plaintiff.

The Role of Tort in the law of obligations


Its mixed aims are the inevitable result of common law system where law is develoed on a case-by-case bases. Although compensation is the most common reason for bringing a tort action, claimant may have a number of other reasons including deterence and retribution. In Hill v Chief Constable of West Yorkshire for example, the mother of the last visito of Peter Sutchliffe (a serial killer) sued the police for negligence for their carelessness in apprehending the killer and to point out the need to improve the practice. In Lord Templeman's view the action was misconceived pointing out that "an action for damages for alleges acts of negligence by individual police officers in 1980 could not determine whether and in what respects the West Yorkshore police force can improve in 1988.

INTERESTS PROTECTED BY TORT

Tort law aims to protect the individual from actual or threatened hardm to certain specific interest interest such as:

a) Personal Harm: - Tort law responded to the the threats to the safety of individual brought about by industrial revolution. This supplemented the existing protection provided by trespass to the person, where the torts of assault, battery and false imprisonment serve to protect indvidual fron intentional interference with their personal freedom and bodily intergrity.

b) Harm to property - protection against property remain important. Personal property is protected by the torts of trespass to goods and conversion (civil theft). Real property is protected by a number of torts including trespass to land nuisance and the rule in Rylands v Fletcher,


c) Harm to reputation -
In practice the distinction between contract law and tort is by asking that Have the rule of contract law been complied with? If the answer is no, the obligation or wrong in question cannot be classified as contractual, but may be classified as tortius. There are other compensation system that are often used rather than tort such as the Criminal Injuries Compensation Scheme. These other scheme are use in consideration of the cost, time, risk, difficulty associated with the implementation of tort law. This is also in addition to the absence of litigation consciousness of a greater majority of people.

There are various proposals for reform which include a mixture of tort law and social security, no fault-liability, insurance


TORT OF NEGLIGENCE - DUTY OF CARE

Lord Atkin's 'Neighbour Principle' in Danoghue v Stevenson formulated a general principle for determining the existing of duty of care in the following instances; where the defendant owes a duty to the victim, where the defendend neglected in the performance of that duty and where the negligence resulted in harm or injury to the victim.

Thereafter Lord Wilberfoce set out a 'two stage test' These are

Stage 1: Is there between the claimant and the defendant, a sufficient relationship of 'proximity' or 'neighbourhood' such that the defendant can reasonably foresee that carelessness on his or her part would be likely to cause damage to the claimant? if the answer to this question is affirmative, then a prima facie duty of care arises.

Stage 2: Are there other considerations which should nevertheless lead the court to deny duty of care, or to limit its scope, in these particular circumstance?

The test was later abandoned because on interpretation it did no truly reflect the ways the courts decided the existence of duty of care. This is because of the difficulty for judges to avoid explicit reference to political and economical consideration when answering the 2nd question in the two way test.


The modern approach to duty of care was espoused by the House of Lords in Capara v Dickman and the creteria were:

1) The damage must be forceable

2) There must be a sufficiently proximate relationship between the parties.

3) It must be 'fair, just and reasonable' for the court to impose a duty of care in the light of policy consideration which the court is concerned.

The main feature of Caparo are forceability (what a reasonable person in the circumstance of the defendant ought to have forseen (objective test); foreseeable claimant (someone who is closely and directly affected by defendant's conduct Bourhill v Young); proximity (closeness of relationship between the defendant ant the claimant); fair, just and reasonable (policy concern are relevant to the degree of proximity - this enables to court to determine liability on the basis of policy. In applying thge caparo criteria, it is necessary to determine the type of harm the claimant has suffered i.e.

a) Whether the damage is question is caused by a positive act )misfeasance), or by an omission (non-feasance);

b) the type of defendant being sued.


MISFEASANCE AND NON-FEASANCE

Lord Atkin in Donoghue v Stevenson spoke of a duty of care arising in respect of 'acts or omissions' yet as Lord Goff notes in Smith va Littlewoods Organisation Ltd '.... the common law does not impose liability for what are called pure omissions.' The laws draws a distinction between a positive act which causes harm (misfeasance) and a mere failure to prevent harm from arising (non-feasance. In Curman v Northern Ireland Housing Association Lord Bridge pointed out that duties to prevent harm being caused (as opposed to duties to refrain from causing harm) would normally only arise whre one person, under a contract, had promised to make another person better off and that it may not be appropriate for such duties to be imposed in tort. Similar reasoning was employed by the House of Lords in Sutradhar v Natural Environment Research Council. Misfeasance or non-feasance depends essentially on the nature of the relationship between claimant and defendant. In English law in contrast to civil law jurisdictions, there is no general duty to rescue another (unless there a prior relationship of care has existed between the defendant and person who needs rescuing); and there is no general duty to prevent others people from causing damage. There are four particular situations as mentioned below where liability for the acts of third parties can arise:

a) Special relationship betweeen the defendant and the claimant - Where D assumed responsibility to look after the claimant's property (Stanbie v Troman)contractual relationship when the plaintiff employed a decorator who left the premises unsecured.

b) Special relationship between the defendant and the third party - In (Home Office v Dorset Yacht) the defendant were liable because they have control over the third party who caused the damage.


c) Special relationship betweeen the defendant and the claimant - Where D assumed responsibility to look after the claimant's property (Stanbie v Troman)contractual relationship when the plaintiff employed a decorator who left the premises unsecured.

d) Special relationship between the defendant and the third party - In (Home Office v Dorset Yacht) the defendant were liable because they have control over the third party who caused the


FUNCTIONS OF THE DUTY CONCEPT

1. Duty of care at the abstract level (the notional duty or duty in law) Does a road user owe duty to other road users; is the particular claimant within duty of care (duty in fact or problem of unforeseeable claimant.

2. Hall v Simons: The fact that lawyers in court owe a duty to the court and may sometimes conflict with the duty to their clients (ii) the prospect of being sued in negligence might adversely affect the quality of their argument by e.g. raising every conceivable point in their client's interest (iii) suing the lawyer would to some extent reopen the correctness of the original decision. The HL thought these reasons no longer apply in 2002, because public would not understand why lawyer had an immunity that other professionals did not enjoy.

3. Congenital Diabilities (Civil Liability) Act 1976 - The act imposse liability only where the damage cause the disability from which the baby suffers when it is born. This would not apply where the claim is by the father or mother

4. Negligence is gthe omission to do something which a reasonable man is expected to do (Glasgow Corporation v Munir (1943). The defendant is qualified with reasoble person with the relevant skill or qualities certain groups and specialist - Balan v Frien Hospital Management Committee; Bolinov v City and Hackney Health Authority (1998. English law adopted the principle that information provided by a medical personnel was in accordance with a respectable body of medical opinion. Children are judged by what is expected of a child.

6. Claim for consequence of medial treatments are based on the idea that individual doctor was negligent and the health authority vicariously liable by entrusting a procedure to an inappropriate junior doctor or overstaffing staff who become tired and make mistake.

7. Eliminating harm must be proportionate to the damage Bolton v Store (1995) and the judge will considered the circumstance Roe v Ministry of Health (195..) Decision on breach is a question of fact Qualcast v Haynes (1959)

8. Proving breach res ispa loquitur - the facts speak for itself (Scott v London & St Kathawis Dock. This is used only when there is no explanation for the breach.

CAUSATION AND REMOTENESS

9. Causation is a factual and logical question and remoteness is a legal question based on policy consideration. It is important to link tort and not merely the defendant to the damage.

10. If the damage would not have occured but for D;s breach, then the breach caused the damage :but for" failure to do what should have been done.

11. Damages for loss of charce 1/4 chance of recovery Hotson v East Barkshire Area Health Authority Gregg v Scott (2005) re-affirmed Hutson. Loss of chance can be allowd for breach of contract

11. In Baker v Wiloughby (1970) the HL held that the damage was not subsumed in the new tort, but the negligent motorist continue to be answerable for the damage to the leg (and its continue economic and other consequences). The case is concerned witn continuing liability for the consequences of the original injury and not with liability for the second injury.

13. Where two or more people contributed to tort, the court would likely hold both them responsible for the tort Bonnington Castings Ltd v Wardlaw (1956)

14. Fairchild v Glenhaven Funeral Services (2002) highlighted the problem of uncertainty of fact. The HL held that all the companies were liable for the absestor suffered by the workers.

15. Defendant is liable for damage only if it was foreseeable consequence of the breach of duty - Wagon Mound (No. 1961)

17. The common confusion for student is that in Haley v London Elecicity Board the defendant had behave in a way that pose no danger to most people: only a person with a particular susceptibility would have been in any real danger of injury at all. Defendt's breach - forseeable phsical injury by the defendant + particular susceptibility by the claimant. Robinson v Post Office.


18. Intervening course - Dorset Yacht Co. v Home Office (1970) held that the original tortfeasor could be liable for intervening human conduct, whether that was criminal, negligent or innocent, but only if it was something very likely to happen, a mere foreseeable possibility was not enough.

19. Intervening criminal conduct Smith v Littlewoods Ltd (1987) claim might likely failed. Sometimes intervening criminal conduct, even though surprising, is not too remote if it is closely related to risk posed by the defendant’s conduct: Al-Kandari v Brown (1988)

20. Intervening negligent conduct: In Knightley v Johns (1982) the hospistal is not negligent for the aggracvation of Daphine injury. Robinson v Post Office – the hospital's negligent fails the but for test\


21. Intervening conduct by the claimant - there is need to consider if the defendant owes a duty to protect the claimant against his own stupidity, carelessness McKew v Holland & Hannen & Cubitts (1969); Wieland v Cyril Lord Carpets (1969), deliberate Kirkan v Chief Constable of Greater Manchester Police (1990). In addition, does the defendant action break the chain of causation; are the defences of voluntary assumption of risk, contributory negligence or illegality.

22. Chester v Afshar - duty situation, where information was withheld, causation of original injury . Defendant would continue to be liable for the original consequence of loss (Baker v Willoughby and Jobling). D who was speeding and using phone cannot be liable unless C shows on a balance of probabilities that D would have been able to stop is she had not been speeding and using her phone; to prove that she would not have suffered the head injury if the lifeguard had carried out a careful rescue; whether administering brandy was a breach of duty or whether the brandy was irrelevant and failure to cause an ambulance was the cause of death

22. Liability for pure economic loss and for negligent misstatement. Hedley Byrne & Co. v Heller & Partners Ltd (1964) HL held that the defendant's banker owes a duty to the claimant and would have been responsible for tort (tort of deceit) if not for the disclaimer. What the claimant need to prove is that they knew the statement were untrue or reckless. Consequential Economic loss - damages are recoverable for the economic consequences of personal injuries and economic consequences of property damage. Pure economic loss: where the is no injury to any person or property and where is injury to a person other than the claimant of to property of some other person other than the claimant.

23. Even after Hedley Byrne recovery for purely economic loss under tort follows a restrictive approach. The speaker could be liable if giving advice in a serious, business or professional context or in a business of giving advice (Hedley Byrne v Heller). Duty could also arise between friends in a social context Chaudhry v Probhakar (1988). Liability could also result from assumption of responsility. There is only liability where there is evidence of lack of care. The loss may be suffered by someone other than those to whom the advice or information was address Smith v Eric S Bush (a firm) (1990); Caparo Industries v Dickman (1990) – the relationship is close enough, advice may be r

DAMAGE TO ANOTHER’S PROPERTY

24. Economic loss, defective building. In Amos v Merlon London Bureau Council (1975) there is liability on the part of builders who had constructed buildings inadequately and Inspectors employed by the Council who certified the loss. Features of this loss are (1) loss classified as economic loss (there is a difference between property that is defective thus commanding less value or requiring money for repair and defective property that injure people (2) Exceptionally such claims may be successful in tor (no contract with the claimant). This is not entire settled.

25. Liability for Psychiatric injury – Damages are recoverable only in exceptional circumstance White v Chief Constable of South Yorkshire Police (1999). Control mechanism – damages are available for recognized psychiatric illness not for grief, distress, sorrow, etc. In exam situation a character who was mentioned to suffer psychiatric illness has passed the test). Either primary (directly involves (Page v Smith (1996); Simmon v British Steel Plc (2004); secondary victim (not directly involved (Alcock v Chief Constable of South Yorkshaire Police (1992) – The TV viewers and spectators at a football match where some people crushed to death. To be successful, the claimant must be in close loving relationship with the victim, claimant must have perceived the event with unaided sense, suffered moderate sudden impact and must not have special sensitivity.

25. Rescuers – Rescuers can only succeed if there is danger of physical injury. Employees exposed to work related stress may have claim but the relationship between psychiatric injuries is unclear. Participation in an event could be a source of action depending on the fact of the case. Owen v Liverpool Corporation (1939) rare case of psychiatric injury claim as a result of witness damage to a property. W v Essex County Council (2001) PI for voluntary assumption of responsibility.

27. Liability for Omission - Neighbourhood principle in Donogue v Stevenson. English law imposes liability for an omission where (1) omission is part of ongoing physical activity (motorist who fails to turn the steering or give signal) (2) relationship where positive duty is attached(3) position of duty must be established; breach of duty which caused the damage (Opopogbo). Involuntary action must have made the matter worst that if nothing is done (East Suffork River Catchment Board v Kent (1941)

28. Defendant acting under statutory power – statutory authority has at least a duty properly to consider whether how to exercise its powers. If public authority is acting lawfully in the exercise of its discretion there can be no liability in tort, but if the failure is at the operational level there may be liability Office v Dorset Yacht Co. (1970) compared to Stove v Wise; where it was held that the council was not responsible for the accident despite failing to remove a particular mould of earth near a junction which impedes driver’s view.

29. The liability of inspectors and other regulators - This include responsibilities for inspection and regulation (Anns v Merton London Borough Council); shipping and financial services and police and fire services. The policy issues are – set up for the purpose of protecting the public or a section of it; it is clearly foreseeable that harm may be suffered if the work is carelessly done and imposition of liability in tort help encourage regulator’s independence and prevent too close relationship between the regulator and the regulated. Alternatively, award of damages will come out of public fund, there will always be public law remedy (judicial review) where the regulator has erred; many cases involve omission and not positive action and the law is reluctant to impose liability; a regular has difficult job of balance conflict of interest and imposing a duty of care may lead to over defensive attitude on part of the regulators.

30. Common law tended to impose liability on public bodies where the defendants made the matter worse that if nothing has been done Capital and Counties Plc v Humpshire County Council (1977); defendant had assumed responsibility towards the particular claimant Kent v Griffiths (2000); D has intervened and requested C to behave in a particular way to their disadvantage Welton v North Cornwall District Council (1997); the claimant had suffered personal injury rather than property damage Perrett v Collins (1998).

31. Impact of Human Rights Act 1998. Relevant area are Art. 2 (Right to life) 3 (torture and inhuman degrading treatment ) and 8 (respect for family and private life). The Police hold no duty of care to individual members to identify and arrest serial killers – Hill v Chief Constable of West Yorkshire; CA in Osman v Ferguson (1993)

32. Rescuers – Rescuers can only succeed if there is danger of physical injury. Employees exposed to work related stress may have claim but the relationship between psychiatric injuries is unclear. Participation in an event could be a source of action depending on the fact of the case. Owen v Liverpool Corporation (1939) rare case of psychiatric injury claim as a result of witness damage to a property. W v Essex County Council (2001) PI for voluntary assumption of responsibility.

OCCUPIERS LIABILITY ACT 1957 REPLACED BY OCCUPIERS LIABILITY ACT 1984

33. Lawful visitors are owed duty in 157 Act and non-lawful visitor are owed duty set in 1984 Act. It is left for the claimant to prove that he is a lawful visitor to claim the more favourable duties in earlier act. S.1(1) of both acts provides that the rule have effect in place of common law. Claim could only be brought under common law if it is outside the scope of the act; the acts are concerned with liability to people physically in the premiss.

34. Scope of 1957 Act - Fergoson v Welsh – the act applied to activities on the premises. S.1(3)(a) talk about what can be occupied (houses, offices, schools), etc who is an occupier s.1(2) based on control and not necessarily title; who is a lawful visitor s.1(2) person invited, implied permission, invitation may be estended by someone other than the occupier (son, daughter) but must have authority) police etc

35. Nature of Duty : - common duty of care s.2(2) duty to children s.2(3)(a)) more care; trade visitors s.2(3)(b) gas supplier, electrician, warning s.2(4)(a) enough warning; independent contract s.2(4)(b) need to check that they belong to professional association and are competent to do the job;

36. Defences – contributory negligence; volenti non fit inturia; exclusion of liability. The occupier is exclude to exclude liability by ensuring notice must be clear; notice cannot exclude liability for those required by law; cannot reduce below the level of that required by a trespasser.


34. Scope of 1984 Act - Fergoson v Welsh – the act applied to activities on the premises. S.1(3)(a) talk about what can be occupied (houses, offices, schools), etc who is an occupier s.1(2) based on control and not necessarily title; who is a lawful visitor s.1(2) person invited, implied permission, invitation may be estended by someone other than the occupier (son, daughter) but must have authority) police etc

35. Nature of Duty : - common duty of care s.2(2) duty to children s.2(3)(a)) more care; trade visitors s.2(3)(b) gas supplier, electrician, warning s.2(4)(a) enough warning; independent contract s.2(4)(b) need to check that they belong to professional association and are competent to do the job;

36. Defences – contributory negligence; volenti non fit inturia; exclusion of liability. The occupier is exclude to exclude liability by ensuring notice must be clear; notice cannot exclude liability for those required by law; cannot reduce below the level of that required by a trespasser. Important cases are
Ratchclife v McConnel (1999); Donogue v Folkestone Properties Ltd

38. Liabilities of Manufactures - Donogue v Stevensons (1932)

39. Liabilities of Employers; Injured employee has three possible action against employer – negligence; breach of statutory duty imposed by parliament and vicarious liability. The Nature of common law action clearly explained in Mcdermid v Nash Dredging (1987); White v Chief Constable of Yorkshire Work related stress.

BREACH OF STATUTORY DUTY

40. A statute will expressly provide for civil liability, provide the machinery for civil liability, say there is no civl liability or says nothing (in this case the court will decide based on matter of policy.

41. Court may impose liability for breach of statutory duties based on the following conditions:

a) Where the statute is for the protection of a particular class
b) where Statutory duty is quite precise (e.g. helmet of particular size)
c) where a private right of action for damages will not be appropriate and where
a public action would be more effective

42. Lonrho Ltd v Shell Petroleum Co. (1992): Compensation for damages to business as a result of D's breach of embargo imposed Southern Rodesia government failed because the embargo was to bring down the regime and not to protect business.

Hague v Deputy Governor of Parkhurst Prison (1992): A claim for damages by segregated prisoner against prison rules failed because the purpose of the rule was to secure administration and not create individual rights.

X v Bedforshire Countu Council (1995) HL rejected the argument that the breach of various welfare and educational standard provisions could be the basis of an action in breach of statutory duty.

O'Rourke v Camdem London Borough Council (1995): Breach of provisions of house is not the basis for an action in tort.


SCOPE OF THE ACTION

43. Some of the important elements required to establish that the claim is within the scope of the action are as follows:

a) The statute must have been broken (consideration of the mental elements – strict liability, things should be done as far as possible or duty to take care)_
b) The claimant must belong to class of people (Hartley v Mayo & Co. (1954)
c) The damage must be of a kind the statute intended to protect - concept of remoteness (Gorris v Scott (1874)
d) The damage must have been caused by the breach of duty McWilliams v Sir William Arroll & Co. Ltd (1962)

THE HUMAN RIGHTS ACTS 1998

44. s.6 makes it unlawful for a public authority to act in a way which is incompatible with a convention. S.7 enables a person to bring proceeding against the public authority. S.8 envisages that damages may be awarded. S.8 (3) no award of damage unless the court is satisfied that award is necessary to avoid just satisfaction. Award may be fitted into law of tort in the following way:

a) A breach may fit into an established tort without reference to convention– torture police (tort of battery)
b) An existing tort, may if necessary, be adapted to accommodate requirement of convention (nuisance, defamation)
c) Courts may award damages for breach of convention. Damages are not of right for claims brought under the act, whereas the reverse is the case in damages caused by tort.
d) Damages could be awarded where there is administrative failure depriving a claim of welfare benefit (alleged breach of Art. 3 or Art. 8) (R (Bernard v Enfield London Borough Council (2002);
e) Anufrijeva v Southwark London Borough Council (2004) - when maladministration amounts to an infringement on convention right; when such infringement merit award of damage.

The approach to be followed in breach of convention rights is still developing.

45. Question on courts treatment of welfare legislation - Refer to Lord Hoffmann on O’Rourke and say whether you are attracted to this reasoning on not. You might conclude that the tort of breach of statutory duty should be abolished or that an approach such as that developing under the Human Rights Act 1998 should be adopted.

46. Question 2. Can Martha who was injured by a luggage sue for breach of regulations? Is the regulation is intend to give rise to civil liability? Is the regulation aim at safety of employees? If there is an action they seem to apply an approach of strict liability. It is enough for the passage to be obstruction (the question is whether the package is an obstruction). There is nothing to point that Lex and his employees were responsible (vicarious liability, alternatively it could be argued that Lex ought to ensure that the passage is not obstructed at any time no matter the source). The purpose of the regulation was to ensure that either fire does not spread or employees are able to escape. Martha injury is quite different (Compare Goris v Scott). If this fail there might be a possible negligence claim against John and if John is in the course of employment against Karry. For Nick as a general rule, traffic regulations such as speed limits, parking regulations do not give rise to civil liability. Even if they do it is doubtful if the purpose of the regulations is to prevent crashes. Nick must try negligence or public nuisance.

SALIENTS POINTS ON LAW OR TORT II

PRIVILEGE

1. This could either be absolute (statement made in parliaments by MPs - Hamilton v Al Fayed (2000; s.13 of Defamation Act 1996) reports ordered published by parliament, judicial proceedings or report of court proceedings (s.14 of Defamation Act; Chatterton v Secretary of State for India (1895) or Qualified privilege, applicable where freedom of speech should be protected but not where the author is activated by malice - Horrocks v Lowe (1975). The judge would look at each case on its merit - Reynolds v Times Newspaper Ltd (2001). Reynold test (serious of allegation, nature of information, step taken to verify, status of information, comment sought from claimant, tone of article, whether the gist of the claimant side has been told, general circumstance and timing of publication. It is a test of reasonable journalism.

2. Qualified Privilege under statute: Found under s.14 and schedule 1 of the Defamation Act.

3. Innocent dissemination:: s.1 of Defamation Act. Defendant need to show that he is not the author/publisher, took reasonable car, did not know or has any reason to belief that she caused or contributed to the publication

4. Unintentional defamation.: s.2-4 of DA 1996. Defendant can publish an apology and pay compensation. s.2

5. Consent: It is a defence if the claimant has expressly or implied consented to the publication - Cookson v Harewood (1932); Chapman v Lord Ellesmere (1932)

REMEDIES

6. Two types of remedies i.e. Damages and Injunctive relief. Damages are assessed by the jury and may includded aggravated damgages (where D's conduct led to mental distress) or exemplary damage (where D deliberately set out to profit at the expense of C's reputation). S.12(1) and 4 of the HRA 1998 which asked court to have particular regards to freedom of expression would be considered.

7. Concern has been expressed that the jury is not the best body to assess damages due to notoriously high awards. s.8 of the Court and Legal Services Awards Act 1990 empowers court of appeal to subsitute the figure without need for retrial. Case of Rantzen v Mirror Group Newspapers (1986) John v Mirror Group Newspaper (1997) seek to increase judicial guidance.

EXAMINATION ADVICE


8. An essay question will focus on interest protected by defamation and compare it with the provisions of which provide for freedom of expression (Art. 10 of HRA). Problem question tend to focus on various statement and whether they are defamatory (refer to the claimant, published and require student to identify any defences which may exist. Students must also be able to distinguish defamation from claim for harassment, injury to privacy rights and malicious falsehood. Harassment is now covered by the Protection From Harassment Act 1998, Privacy is protected by breach of confidence, and malicious falsehood deals with false statements of fact which can be shown to damage the business interest of the claimant - Khodaparast v Shad (2001)


9. Is it realist to allege that the statement tend to lower the plaintiff in estimation of right thinking members of the society generally (Sim v Strtch (1930); Knuppfer v London Express Newspaper will make it difficult for a member of a group to show that a statement points directly at him. However, this may be easier where the group is small (3 in this case). Where it proven that the statement is defamatoty, it needs to be shown that it refer to the claimant and must have be published, then we need to look at the defences. Are the words used substantially true Alexander v North Eastern Railway Co. (1865) every allegation or sting must be jusfified Cruise and another v Express Newspapers Plc (1999). Fair comment as a defenced must be based on substantium of fact Kemsley v Foot (1952)and qualified privilege (Reynolds v Times Newspaper (2001) sensational journalism or statement indicative of malice are unlikely to be found to amount to responsible journalism. Inuendo (Cassidy v Daily Mirror Newspapers Ltd (1995). If the explanation was not immediately apparent to the reader, the court will not find the statement defamatory Charleston v News Group Newspaper Ltd (1995). It is defamatory to accuse a young woman of relationship with an older man Youssoupoff v MGM Pictures Ltd (1934). Since her name was not mentioned, she needs to prove that a reasonable person would on the fact have drawn the inference (Morgan v Odhams Press Ltd (1971).


VICARIOUS LIABILITY

10. Vicarious liabilities mean one person (not a tortfeasor) is liable for a tort committed by someone else. There are three distinctions between primary liability and vicarious liability and these are:

11. Home Office v Dorset Yacht Co. (1970). The home office was vicariously liable for the torts of the borstal officers. But neither the Home Office nor the borstal Officers were vicariously liable for the torts of the boys. The officers were primarily liable for failing to control the boys and enabling them escape and damage a yacht.

12. Attorney-General of the British Virgin Island v Hartwell (2004): The claimant was successful that the police authority were liable for their own negligence for allowing the policeman to remove the gun from the police station for his own use, but fail that on the argument that the police authority were vicariously liable for the torts committed by the police man – the policeman is primarily liable for his torts.

13. McDermid v Nash Dredging & Reclamation Co. Ltd (1987): The claimant was an employee and both vicarious liability and the employer’s non-delegable duty of care (a form of primary liability) were possible routes to success for the claimant.

14. There are at least two practical advantages for the doctrine is (1) an employer is much more likely to have assets to pay damages and be insured against liability than an individual employee (2) it may sometimes be unclear which of a number of employees have actually committed the tort. The following are some of the theories to justify the doctrine:

a) The employer has established a business and derives and derives the economic benefits of commercial success and should therefore be liable if the risk arising from the business materializes
b) The employer is more like to take staff training and supervision seriously if they know they could be vicariously liable.

15. To succeed in a claim it is necessary to establish that (1) the alleged tortfeasor was an employee (2) the employee committed the tort; and (3) the tort was committed in the course of employment. It is necessary to distinguish between an employee and an independent contractor (a chauffeur and driver), this is usually determine by the contract of employment. An employer has greater employment rights and protection and there are different tax and national implications for employees.

16. In arriving at a distinction between employee and independent contractor the courts have adopted an impressionist approach i.e. the extent the employer can control how the employee does the job; how far the individual is integrated into the business; considered where the balance law in arriving at decisions. Some of the illustrative cases are Stevenson Jordan & Harrision v Macdonald & Evans (1952); Market Investigations Ltd v Minister of Social Security (1969) Hall (Inspector of Taxes) v Lorimer (1994).

17. Borrowed servants present peculiar problem. Where a company supply a crane and the driver, it is presumed that the lending company unless this is clearly displaced on the facts Mersey Docks & Harbour Board v Coggins and Grifiths (Liverpool) Ltd (1947); Bhoomidas v Port of Singapore Authority (1978). The effect of contract between two competing employers was considered in Philips Products v Hyland (1987) and Thompson v T. Lohan (Plant hire) Ltd (1987);

18. There is a special case of vicarious liability called ‘casual delegation’ the court held the owner liable for the negligence of a driver who is driving with the owner’s permission and at least to some extent for the owners purposes. Ormrod v Crossvile Motor Services Ltd (1953). Attempt to create family car by Lord Dennings in was rejected by the House of Lords in Morgan v Launchbury (1973).

19. The employee can take advantage of any defence but where for any reason the employee who committed the tort cannot be sued, the employer cannot take advantage of such defence Brown v Morgan (1953).

20. A master is liable even for the act which he has not authorized provided they are so connected with the act he has authorized and they may be regarded as modes – although improper modes – of doing them. Century Insurance Co. Ltd v Northern Ireland Road Traffic Board (1942); Board v London General Omnibus Co. (1900); General Engineering Services Ltd v Kingston and St. Andrew Corporation (1989).

21. Where an employee deviated (Williams v Hemphill 1966) or does something specifically forbidden Plumb v Cobden Floors Mills Co. Ltd (1914) the employer could still be liable depending on the level of deviation or whether the prohibition limited the sphere of employment.

22. The Lister test apply where there is close connection between the tort and what the employee expected to do Mattis v Pollock (2003) (vicarious liability imposed); Attorney General of the British Virgin Islands v Hartwell (2004) vicarious liability rejected, but employer primarily liable).

23. Even though the employers is vicariously liable, the employee remains liable and the employer can recover from the employee the amount of damages paid to the claimant DEFENCESLister v Romford Ice & Cold Storage Co. Ltd (1957).



24. Contributory negligence: Successful pleading was a complete defence, but Law Reform (Contributory Negligence) Act 1945 now provides for apportionment of liability between the claimant and the defendant. e.g. contributing to the accident motorcyclist by failing to look out for other vehicles or contributed to the injury by failing to wearcrash helmet (Jones v Boyce (1816); Jones v Livox Quarries (1952); Froom v Butcher (1975);

25. Consent: The claimant who consent to surgery, but where the tort involved in negligence or a tort of strict liability, consent may not provide defence for the defendant.

26. The defence of violenti non fit iniuria (damage is not done to someone who consents) cannot operate until there has been a tort. The claimant who work in dangerous job cannot complain of tort if employers observe all regulations. The issue of consent only arises if there has been a breach of regulations or of the common law duty, and it is argued that the claimant knew of this breach and nevertheless agreed to face the risk.

27. Consent can operate by either ss2(1) and 2(5) of the Occupiers’ Liability Act 1957. Exclusion of liability will only be effective knew of the terms in advance, the terms clearly covered the situation and the claimant was free to choose whether to encounter the risk or not. The statutory intervention are UCTA 1977; The Road Traffic Act 1998.

28. Agreement to face physical risks. The court have insisted that the employee must not merely know about the danger but freely consent to run the risk (Smith v Baker (1891). In the case of a car passenger and learner who is drunk. The passenger should be unable to sue because of consent or D owe duty of care expected of the person with similar characteristics - Dann v Hamilton (1939) KB; Insurance Commissioners v Joyce (1948; Cook v Cook (1986)

29. The Road Traffic Act 1988 prevents the defence applying to cases of road accidents, although it may apply in other kinds of traffic accident to which the 1988 Act does not apply Pitt v Hunt (1991) (road accident; Morris v Murray (1991) (aircraft accident)
.

30. Action by spectator or competitor in sporting event against organiser/competitor. The defedant owe a lesser duty appropriate to someone striving to succeed in a competitive activity Woodrige v Summer (1963); white v Blackstone. The defence may not apply where D is under a duty to protect the claimant Reeves v Commissioner of Police for the Metropolis (2000). Applying the defence to negligence cases needs care.

ILLEGALITY

31. On the particular fact there is no relevant basis on which (the appropriate standard of care could be determined) Pitts v Hunt (1991); Revell v Newbury (1997) Clunes v Camden and Islinton Health Authority (1998); Vellinov v Chief Constable of Greater Manchester Police (2002)

DAMAGES

32. Damages are the the commonest remedy for tort. General critique of the way in which damages are assessed are three levels

a) Given the objective of the presents system doesn't achieve
b) Should the payment be madeon monthly basis reflecting on the claimant's condition at the time of payment
c) Should the system of damage be abolished and absorbed within the social security system.

33. Principles: Assessment of damages are laid down by common law with some statutory modification (Administration of Justice Act 1982) Damages Act 1966; Lim Poh Choo v Camden and Islinton Authority (1980)

b) Place the claimant where he would have been without the tort; compensation based on lost but not present need; damages are awarded once and for all and cannot be re-opened. There is very limited power to award provisional damages in the Administration of Justice Act s.6 and Damages Act s.3.

34. Damages are calculated based on (1) Pecuniary damage - compensation paid for money (loss income - using multiplier method and mutliplicand is the claimant's net (after deducting tax, etc, using low risk investment for the compensation - Wells v Wells (1999); Damages Act 1996 s.1 Damages (Personal Injury) Order 1001) For assumption on future Mallet v McNonagegle (1970) the claimant has lost and expenditure incurred (medical treatment, future institution care, adaptation of hone and assistance with daily routine) as a result of tort.

35. Where tort reduced claimant lost life, the claimant should be compensated for those year less the amount he would have spent on himself Pickett v British Rail Engineering !9980. Where claimant receive money from other sources as a result of the tort,there are three possible theory solution (1) the sums are deducted from the damages payable by the tortfeasor (tortfeasor gets benefits of victim prudence or others generority) (2) the claimant keeps these benefit and also damages (overcompensation) (1) the tortfeasor pays back the donor (high administrative cost).

36. Social Security (Recovery of Benefits) Act 1997; Parry v Cleaver (1970); Smoker v London Fire & Civil Defence Authority (1991) ensures that the tortfeasor pays back some social security payment to the state.

NON-PECUNIARY

37. Non pecuniary damage is compensation for pain and suffering and for loss of amenities. These could be paid Structure settlements involves calculation of a lump sum, sanctioned by statutes Damages Acts 1996, not taxable but return on investment made with the payment is taxable.

39. Law Reform (Miscellaneous Provisions) Act 1934 and Fatal Accidents Act 1976 remedied the common law positions that a cause of action in tort lapsed if either party died and that the dependant on the disease cannot be a action for loss of support respectively. 1976 Act provided for more damages than 1934 Act.

40. When the victim survived tort for sometime and died later, the estate can sue for damages for loss of earnings, medical expenses, pain and suffering between tort and death, where death is instantaneous, there is little or nothing payable (Hicks v Chief Constable of South Yorkshire Police (1992) - Administration of Justice Act s.4

41. Dependants have some right of actions unde the Fatal Accidents Act 1976. Look at changes made by Wells v Wells and Heil v Rankin.

42. Jamie seem to have committed battery, throwing a ball is not part of umpire job. Has he commmitted the tort in the course of employment Lister v Hasley Hall might not be of help as it is not sure if he was performing the club's or pastoral duties. Older cases (poland v Parr and Warren v Henlys) would suggest that if the battery was to protect employer's interest it might be in the course of employment, here it seems as a result of personal annoyance at the damage to Jamies car. It is then necessary to explain the principles on which damages will be assessd for pecuniary and non pecuniary damges including the problem where the claimant is quite young and the job prospect relatively uncertain

SALIENT POINTS ON LAW OF TORT

STATUTORY LIABILITY

CONSUMER PROTECTION ACT 1987

1. s.3 of the Consumer Protection Act 1987 imposes liability for the producer, suppluer in course of business for defective goods.

2. Warning of Danger be effective as a defence if it falls within the decision in Woseley v Tambrands Ltd (008)


3. Standard Product is expected to meet the rule set in A v National Blood Authority

4. s.5(1)(e) provides a defence of development risk. The decison in A and European Union v United Kingdom make set a high standard for defendant planning to benefit from the defence provided by the section

5. s.5(1) allows for recovery for personal injury provided it is not commercial asset


6. D will be liable as a supplier if it fails within a reasonable time to identify who supplied the defective product. s.2(3)

ANIMAL ACT 1971

7. Mirvahendy v Henley (2003) Dangerous animals causing damage (A horse that bolted and caused injury). s.2(1) Animal Act 1971 and the three test in s.2(2)


8. Contributory negligence, voluntary assumption of risk and no trespass are possible defences against liability


9. Duty of care to emplouer under Employers Liability (Wilson & Clude Coal Co. v English (1983) & Employers Liability (Defective Equipment) Act 1969.

10. There would be no ls.3 of the Consumer Protection Act 1987 imposes liability for the producer, suppluer in course of business for defective goods.

11. There would be no liability if proximity is difficult to establish. Caparo v Dickman (1990)

12. s.5(2) the producer is not liable to any any losses to the product itself. Remedy could only be pursued in contract against the seller.

13. Courts prefer to apply volenti test to a rescuer. Cunning v Grang for contributory negligence

INTENTIONAL INJURIES TO THE PERSON

14. Assault, battery and false imprisonment. Torts requiring proof of direct and deliberate act on part of the defendant

15. The elements of torts of assault & battery are similar to those of the crime of assault & battery. However, the claimants myst prove on balance of probabilities whereas in crimimal law prosecution the standard of proof is beyond reasonable doubt.

16. Deliberate but indirect physical harm if wilfully done as an act calulate to cause harm to the plaintiff is known as rule in Wilkam v Downton


17. False imprisonment is the intention deprivation of the claimants freedom of movement from a particular place for any time however short, unless expressly or impliedly authorised by law. Principle in Murray v Ministry of Defence 1988). It involves complete restriction. Bird v Jones (1845).

18. Conditions onthe men egress from a premises is not false imprisonment. Train not stopping until the next station. Insistence on payment for ferry, when C decides not to continue the journey.

19. The restraints must be actual rather than potential. It must be direct (sayers) and must be an act not an omission. The awareness of the imprisonment might be immaterial.

20. Intentionally causing nervous shock rule in Wilkinson v Downtown (1867), intentional not actionale per se, actual damage must be proved.

21. Defences (1) consent (s) implied consents - stretching out arm for injection, social context (train, plan or bus passengers) Wilson v Pringe


15. The elements of torts of assault & battery are similar to those of the crime of assault & battery. However, the claimants myst prove on balance of probabilities whereas in crimimal law prosecution the standard of proof is beyond reasonable doubt.

16. Deliberate but indirect physical harm if wilfully done as an act calulate to cause harm to the plaintiff is known as rule in Wilkam v Downton


17. False imprisonment is the intention deprivation of the claimants freedom of movement from a particular place for any time however short, unless expressly or impliedly authorised by law. Principle in Murray v Ministry of Defence 1988). It involves complete restriction. Bird v Jones (1845).

18. Conditions onthe men egress from a premises is not false imprisonment. Train not stopping until the next station. Insistence on payment for ferry, when C decides not to continue the journey.

19. The restraints must be actual rather than potential. It must be direct (sayers) and must be an act not an omission. The awareness of the imprisonment might be immaterial.

20. Intentionally causing nervous shock rule in Wilkinson v Downtown (1867), intentional not actionale per se, actual damage must be proved.

21. Defences (1) consent (s) implied consents - stretching out arm for injection, social context (train, plan or bus passengers) Wilson v Pringe



15. The elements of torts of assault & battery are similar to those of the crime of assault & battery. However, the claimants myst prove on balance of probabilities whereas in crimimal law prosecution the standard of proof is beyond reasonable doubt.

16. Deliberate but indirect physical harm if wilfully done as an act calulate to cause harm to the plaintiff is known as rule in Wilkam v Downton


17. False imprisonment is the intention deprivation of the claimants freedom of movement from a particular place for any time however short, unless expressly or impliedly authorised by law. Principle in Murray v Ministry of Defence 1988). It involves complete restriction. Bird v Jones (1845).

18. Conditions onthe men egress from a premises is not false imprisonment. Train not stopping until the next station. Insistence on payment for ferry, when C decides not to continue the journey.

19. The restraints must be actual rather than potential. It must be direct (sayers) and must be an act not an omission. The awareness of the imprisonment might be immaterial.

20. Intentionally causing nervous shock rule in Wilkinson v Downtown (1867), intentional not actionale per se, actual damage must be proved.

21. Defences (1) consent (s) implied consents - stretching out arm for injection, social context (train, plan or bus passengers) Wilson v Pringe


22. Consent obtained by fraud or duress will be vitiated (R v Williams[1923]). However, consent will not be vitiated by claimant's age provided the claimant understands the nature of the act (Gillick v West Norfolk Health Authorityu (1986). Consent may be viatiated by public policy (R v Brownn (1994); Lane v Holloway (1968)

23. Self-Defence (subjective belief that force is reasonable and necessary); necessity (choice between lesser evil)

INTERFERENCE WITH ECONOMIC INTEREST


24. It is difficult to recover for economic loss brought about negligently


25. Tort of deceit - loss resulting from deliberate falsehood (Derry ve Peek (1989) Limited application of the tort of deceit because it is very difficult to prove. The elements of the tort are:

a) False statement of fact (Edginton v Fitzmaurice (1889). D must know that thje statement is false or be reckless )Derry ve Peek (1989) D must have the intention. The law allows for negligent misrepresentation , which is easier to prove than dishonesty, but if this is proven, the claimant can recover not not merely foreseeable losses, but all losses arising directly from the mistatement (Smith Alan Court Securities Ltd v Scrimageour Vicker (Asset Management) Ltd.


26. Economic tort - general consideration; intention, motive, right against interference, subject matter.


27. Business competition is regulated by Competition Law and employment dispute by Labour Law.

28. The starting point is Fundamental Allen v Flood (1898) AC D Told X to terminate the contract with C or face the consequence of D going on strike if the contract is not terminated.

29. In Allen v Flood. All the contracts were terminable at very short notices. so the dismissal of the shipwrights was not a breach of thr contract of employment and if the boildermaker had walked out they would not have broken the contract with X. The House of Lords held that no tort had been committeed, the defendant were merely promoting their self-interest.


30. Inducing breach of contract. Recognised in Lumley v Gye (1853) and confirmed by Allen v Flood (1898). Interference with others genuine rights. C will have right of action against X for breach of contract and D for tort of inducing the breach. It is not a tort for D to persuade X not to enter into a contrac with C.

31. J. T. Stratford & Son Ltd v Lindley. D persuades Y to break contract with X so that X in turn will break contract with C.

32. Where D directly approached X, the means uses are not in themself unlawful. The illegality lies in the consequence of the broken contract. D may however be liable even for getting X indirectly bu in that case the means of getting X must in them be illegage. Separate inducement of breach by the fourth party.

INTIMIDATION


33. No intimidation with genuine pre-existing rights but affected by some illegal action or threat usually by 3r party.

CONSPIRACY

34. Pure Purpose; Two or more people conspire with the ultimate motive or purpose of damaging the claimant. Not necessarily actionable if done by one person (Loniho Ltd v Shell Petroleum Co. Ltd (1982) Established in Quinn v Leather but the scope was limited in Sovrell v Smith (1925); Crofta Han Woven Harris Tweed v Veith (1942) Unlawful means conspiracy.


35. Determine if there is a contract and aim to break the contract or merely persuaded the college not to enter into the contract. Is there any justification (desire to prevent unacceptable, illegal or indecent conduct)

THE LAW OF NUISANCE AND THE RULE IN RYLANDS V FLETCHER


36. Private nuisance and the associated rule in Rylands v Fletcher are confined to interference with your rights in land. Public nuisance has a wider application. It is limited however, to claimants who have experienced special damage above and beyond that suffered by the rest of the public.


PRIVATE, PUBLIC AND STATUTORY NUISANCES

37. Private nuisance - physical injury to land (flooding); substantially interference with the enjoyment of land (for example smells, dusts and noise; encroachement on a neighbours land for example by spreading roots of overhanging branches, which is of minor significance.

38. Only those with rights to land or exclusive possession will be ale to sue (Maloney v Laskey (1907) HL . Is exclusion of family members living in a house consistent with the Art. 8 of ECoHR. Rhovasander v Bush (1993) (daughter can sue, but following Hunter v Canary Wharf (1951)there must be rights or exclusive possession. Protection from Harrassment Act (1997) provides remedies for such harrassment.

39. The test is of reasonable use i.e. use land as legally permitted against the right of others to quiet enjoyment of their land. It is not a test of reasonableness Care Repair v London Tramway Co (1893). Reasonable common sense ordinary use, Southware LBC v Mills; Baxter v Camden LBC (2001)

40. Court will likely find nuisance if there is (1) physical damage (personal discomfort will be susbtantial to merit consideraion (Walter v Self (1851) and St. Halless Smelting Co. v Tipping (1865)(2) nature of locality (industrial v residential area);(3) Duration and frequencies; (4) utility of D’s conduct (effect on C rather than commits) Courts will not interfere in case of abnormal sensitivity (Robinson v Kilvert (1889); Heath v Mayor or Brighton (1908) but there could be claim if the heat could have affected ordinary paper McKinnon Industries Ltd v Walker (1951); (5) Malice (the intention of D to cause nuisance (Christy v Davey (1893)

41. Who can sue? Creator of nuisance, employer or landlord, the local council, etc. Employer (Malanta v National Provincial Bank (1936) and Bowen v Peace; (2) An occupier who has adopted continued noise (Sedleigh-Denfield v O’Gallghan). The ability of D to remove the nuisance will be taken into consideration by the courts in arriving at a decision.

42. In the absence of express provision in the case of statutory authority the court will interpret the Act to ascertain whether authorization is implied as a true consequence of acting within the scope of the Act (Allen v Gulf Oil Refining Ltd (1981).

43. Twenty year provision – This provides a defense where the nuisance has interfered with C’s interest in land for more than 20 years – Sturgs v Bridsman (1879).

44. Defences Rejected by Courts: - Coming to nuisance (Bliss v Hall (1833); Miller v Jackson (1977); existence of nuisance before the arrival of the claimant (2) Nuisance is a social utility (Miller v Jackson); (3) that D is one of the many causing the nuisance (Lambton v Mellish (1894)

REMEDIES

45. Injunctions (discretions remedy as the claimant has no right to an injunction). Court may decides damages in-lieu of injunction (s.50 of Supreme Court Act 1981) (2) Abatement (self-help, cutting root or branches of tree) this remedy is of limited utility (Delaware Mansions Ltd v Westminster City Council (2001); (3) Damages (Hunter v Canary Wharf (1997); Householder may obtain damages for interference with his interest in land, be it physical or non physical, but not for personal injury but damages for personal injury available under public nuisance. Private nuisance is a tort to land

THE RULE IN RYLANDS V FLETCHER

46. Rylands v Fletcher – D brings to his land for own purpose something likely to do mischief; which excapes (Read v J. Lyons & Co. Ltd (1947); due to non-natural uses; and which cause foreseeable harm. D is prima facie answerable for all damages which is the natural consequence of its escape (Blackborn J.)

47. Cambridge Wate Co. v Estern Counties Leather Plc (1994) HL only foreseeable harm would be recoverable. In Transco Plc v Stockpoint MBC HL confined that the rule was in fact a subset of private nuisance and confine it to exceptional circumstance, extra-ordinary circumstance and unusual use of land.

48. Who can Sue? Claimant must have some rights to land (Transco) overruling decision in Shiffman v Order of the Hospital of St. John of Jerusalem (1936) and Perry v Kendricks Transport Ltd (1956) which permitted non-occupiers of land to sue for damages..

DEFENCES

49. Ponting v Noakes (1894) and Law Reform (Contributory Negligence) Act 1945 liability will be reduced or eliminated if escape is due partly or wholly to claimant’s fault.

50. Unforeseeable act of a stranger. Unforeseeable (Greenock Corp v Caledonian Rly (1917) Act done by 3rd party over whom the defendant has no control Box v Jubb (1879) Rickards v Lothian (1913) and Ribee v Norrie (2001); Act of God(due solely to natural causes where no human foresight could guard against such occurrence) Nichols v Marland (1876) and Greenock Corp v Caledonian Rly (1917); Statutory authority (Green v Chelse Waterworks Co, (1894) and consent, implied or express ed e.g. watertank maintained for a block of flats provide the escape occurs without negligence Kiddle v City Business Properties Ltd (1942)

DAMAGES

51. Injunctions (discretions remedy as the claimant has no right to an injunction). Court may decides damages in-lieu of injunction (s.50 of Supreme Court Act 1981) (2) Abatement (self-help, cutting root or branches of tree) this remedy is of limited utility (Delaware Mansions Ltd v Westminster City Council (2001); (3) Damages (Hunter v Canary Wharf (1997); Householder may obtain damages for interference with his interest in land, be it physical or non physical, but not for personal injury but damages for personal injury available under public nuisance. Private nuisance is a tort to land

51. 11.6 Rules in Rylands v Fletcher there is an escape but the mischief, non-natural use of shed are difficult to satisfy (Transco), any person injury is unlikely to be recoverable. A storm could be classified as act of God and other defences do not apply. He may recover damages for his flowers if he can show that the damage was reasonably foreseable

PUBLIC NUISANCE

52. Public nuisance arises when the interference does not affect the claimant’s land but the public as a whole and the claimant has suffered ‘special damage’. The claim by the Claimant is a question of fact (AG v P.Y.A. Quarries Ltd (1957).

53. The claimant must prove special damage in excess of that suffered by the class which must be direct and substantial and covers personal injury, property damage, loss of custom or business and delay and inconvenience. If individual cannot claim prove damage, the only other basis for claim is in the name of AG or by local authority under s.222 of the Local Authority Act 1972 (Stoke-on-Trent City Council v B & Q (Retail) Ltd (1984).

THE RELEVANCE OF HUMAN RIGHTS ACT 1998

54. The Act may have some impact on tort of private nuisance and the rule in Rylands v Fletcher (1) who can sue (2) increasing the landlord's ability for the actions of tenants. It is a question of compatibility with Art. 8 (right to private and family life and (2) Art. 1 of Protocol 1 (Right to peaceful enjoyment of one's possession) The ECtHR decisions in Hatton v United Kingdom (2002) which favoured intervention under Art. 8 has been overturned: (2003) 37 EHRR 28

55. Who can sue? It's been suggested that limiting who can sue to those with rights to land is contrary to Art. 8 of the European Convention on Human Rights McKenna v British Alumiunm Ltd weak authority and the restrictive approach taken by the HL in Marciv v Thames Water Utilities Ltd (2003)


56. Landlord's liability for his/her Tenants: Could the claimant in Hussain and Mowan be able to invoke Art. 8 against Local Authority to force them their tenants creating nuisance. Provide the LAs adopts decision making process which satisfies proportionality and does not impose a disporportionate burden on the person concerned, it may escape liability. Art. 8 a developing area.


57. Common errors in dealing with nuisacne include failing to appreciate the potential claim in a public nuisance and applying the rule in Rylands v Fletcher indiscriminately. In relation to private nuisance, it is important to check that the interference is with an interest in land and claimant has such interest and may restrict damages.

54. The Act may have some impact on tort of private nuisance and the rule in Rylands v Fletcher (1) who can sue (2) increasing the landlord's ability for the actions of tenants. It is a question of compatibility with Art. 8 (right to private and family life and (2) Art. 1 of Protocol 1 (Right to peaceful enjoyment of one's possession) The ECtHR decisions in Hatton v United Kingdom (2002) which favoured intervention under Art. 8 has been overturned: (2003) 37 EHRR 28

55. Who can sue? It's been suggested that limiting who can sue to those with rights to land is contrary to Art. 8 of the European Convention on Human Rights McKenna v British Alumiunm Ltd weak authority and the restrictive approach taken by the HL in Marciv v Thames Water Utilities Ltd (2003)


56. Landlord's liability for his/her Tenants: Could the claimant in Hussain and Mowan be able to invoke Art. 8 against Local Authority to force them their tenants creating nuisance. Provide the LAs adopts decision making process which satisfies proportionality and does not impose a disporportionate burden on the person concerned, it may escape liability. Art. 8 a developing area.


57. Common errors in dealing with nuisacne include failing to appreciate the potential claim in a public nuisance and applying the rule in Rylands v Fletcher indiscriminately. In relation to private nuisance, it is important to check that the interference is with an interest in land and claimant has such interest and may restrict damages.


58. If the claimant does not have an interest in land, it will also exclude a claim under Rylands v Fletcher, but there could be alternative claim in public nuisance (or even negligence) The important questions are (1) Is there a cause of action? On what basis? Do you think a court will find liability? Are there defences? What are the remedies?

59. Landlord could be liable for the activities of his tenants if he is aware of the potential activity (Tetly v Chitty (1986). Would it lead to property damage? Only if this could be established would Ben be liable for the activities of Charles and his visitors. Charles may incur liability as occupier of the land under Sedleight-Denfield, where the occupier adopts or continue nuisance, he will be liable. Defence, has Charles taken reasonable test to abate the nuisance?


60. The noise disturbs the worshippers (who have no right to sue), but are they extra-sensitive (Heath v Mayor of Brighton (1908). Damage to property will however be regarded as nuisance (Halems Smelting Co. v Tipping (1865). Traffic jams in the village. Arabella needs to show special damage. Four requiremens in Cambrdige water needs to be satisfied in order to apply the Rule in Rylands v Fletcher.

61. REMEDIES - Arabella would like an injunction to stop the property damage and damages for the barbecue explosion. She would not obtain any damage for personal injury under private nuisance or the rule in Rylands v Fletcher. It seem unlikely that social utility would prevent the Court from awarding an injunction (contrast Miller v Jackson.)

DEFAMATION

62. Defamation as tort seeks to protect the claimant against damage to his or her reputation. Divided into Slander (Temporary) Libel (permanent). Libel is actionable per se. The claimant must prove loss and the loss must not be too remote (Lynch v Knight). Libel unlike slander is also a crime but few prosecutions are made.

63. Difficulties - (1) Distinction between libel and slander is unclear Youssoupoff v MGM Pictures Ltd (1934). When a speech is recording is it permanent? Performance of a play on stage and broadcasting on television and radio are libel. s.4(1) Theatre Act 1968 and Broadcast Act 1990


64. As a general rule special damage must be proved for slander and there are four forms of slander which are are actionable per se and these are (1) imputation of a criminal offence punishable by imprisonment (2) imputation of contagious disease (leprocy, plague) (3) imputation of unchastity or adultery by female s.1 of Slander of Women Act (1891); (4) imputation of unfitness or incompetence s.(2) Defamation Act (1952) the last one arises most frequently and needs special attention.

65. The case usually be heard by a Judge (question of law and nature of damage) and Jury (matters of fact and level of damage)


66. Who can sue?. (Any human can sue) but the claim does not survive death s.1(1) Law Reform (Miscellaneous Provisions) Act 1934; companies but not governmental bodies (Derbyshashire CC v Times Newspaper Ltd (1993) or Political Parties (Goldsmith v Boyrich (1998) .

67. The Claimant must prove that the statement is defamatory (Sim v Sretch (1936); Youssoupoff v MGM Pictures Ltd (1934). The standard is objective (Byrne v Dean (1937)provides a good example of the application of the test in practice. the court will ignore mere abuse (Berkoff v Burchill (1998)

68. INNUENDO True (hidden in the absence of special fact) Tolley v J. S. Fry & Son. Ltd (Amateur golfer whose carricature was used in an advert without his knowledge or consent this portraying his as a professional contrary to his claim as an amateur thus casting aspersion that his statement are not true. Cassidy v Daily Mirror Newspapers Ltd (1929). False innuendo - where a reasonable person would infor from the natural and ordinary meaning of the word (Lewis v Daily Telegraph Ltd (1964). The statement must be considered in context and not a particular statement - Charlesfour News Group Newspaper Ltd (1995).


69. Does the statement refers to the claimant? Claimant will only be able to bring an action if he can show that the word refer to him and prove that ordinary reasonable person with knowledge of all circumtances would recognised the person referred to as the claimant. (Morgan v Oldhams Press Ltd). It is irrelevant that the defendant did not intend to defame the claimant (Hulton & Co. v Jones (1910); Newstead v London Express Newspaper Ltd (1940)


70. Group Defamation: Criticism of a group will not support action for defamation unless it can be proven that the claim is easily recognised as the target. Knuppfer v London Express Newspapers Ltd.

71. Statements will only harm reputation if third parties are aware of them. If it is reasobably foreseeable that statement will come to the knowledge of a third party publication will exist - Theaker v Richardson (1962) a defamatory letter sent to a wife but read by her husband. Contrast with (Huth v Huth (1915).

72. Repeating a defamatory statement will be regardes as further publication, le and D may be found liable if (1) authorised or requested publication (intended that the statements should be repeated (3) informed a person under a moral duty to republish the statement.


DEFENCES

73. Justification or Truth: D must show that defamatory statement are substantially true - Alexander v North Eastern Railway Co. (1865); s.5 Defamation Act 1952. The only exception is s.5 of the Rehabilitation of Offenders Act 1974.

74. Fair Comment:. To provide defence the statement must be in public interest, a comment on true facts and honest and fair. Public interest does not translate in any topic which the public is interested in but matters in which people are legitimately interest or concerned London Artists v Littler (1969). The statement muust be a comment on a set of fact Kemsley v Foot (1952; and recently the statement could be isolated Telnikoff v Maturesvitch (1992; s.6 of Defamation Act 1952


75. Comments must be fair and honest: The courts use objective test; honestly held by the person expressing it Reynolds v Times Newspapers (2001) and Albert Cheng v Tse Wai Chun (2001; Branson v Bower (No. 2) (2002)