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English Law (english + law)

Distribution by Scientific Domains

Law and Criminology	91%

Selected Abstracts

Monetary remedies for breach of confidence in privacy cases

LEGAL STUDIES, Issue 3 2007
Dr Normann Witzleb
In Campbell v MGN Ltd, the House of Lords endorsed an expansive interpretation of the breach of confidence action to protect privacy interests. The scope and content of this transformed cause of action have already been subject to considerable judicial consideration and academic discussion. This paper focuses on the remedial consequences of privacy breaches. It undertakes an analysis of the principles which govern awards for pecuniary and non-pecuniary loss, the availability of gain-based relief, in particular an account of profits, and exemplary damages. Even in its traditional scope, the monetary remedies for breach of confidence raise complex issues, mainly resulting from the fact that this doctrine draws on multiple jurisdictional sources such as equity, contract and property law. The difficulties of determining the appropriate remedial principles are now compounded by the fact that English law also aims to integrate its obligation to protect the right to privacy under Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 into the conceptual framework of the breach of confidence action. The analysis provided in this paper supports the contention that not only the scope of the cause of action but also important remedial issues are likely to remain in doubt until the wrong of ,misuse of private information' is freed from the constraints of the traditional action for breach of confidence. A separate tort would be able to deal more coherently and comprehensively with all wrongs commonly regarded as privacy breaches. [source]

Revisiting pure economic loss: lessons to be learnt from the Supreme Court of Canada?

LEGAL STUDIES, Issue 1 2005
Dr Paula Giliker
This article examines the treatment of pure economic loss claims in England and Canada. The two jurisdictions have much in common. Starting from the same case sources, the common law of each system has struggled to deal with claims for negligently-incurred pure economic loss. Yet, the systems diverged in the 1990s when the Canadian Supreme Court refused to follow the lead of Murphy v Brentwood DC and reiterated its adherence to the Anns two-stage test. It is submitted that, in view of recent developments which suggest the gradual convergence of the two systems, English law should carefully examine the categorisation approach adopted by the Canadian courts. The current English position is far from clear, and the Canadian model is capable of bringing transparency and greater clarity to this difficult area of law. [source]

Cultural diversity, human rights and inconsistency in the English courts

LEGAL STUDIES, Issue 2 2001
Urfan Khaliq
Ethnic and cultural diversity within the UK has ensured that English courts regularly have to resolve cultural conflicts. This paper concentrates on cultural conflicts in the courts where there is an international dimension to this issue and where persons not resident in the UK seek the help of the English courts. The paper does this by reference to two areas of law, asylum and child abduction, which also allows a comparison between the approach to human rights by judges in the public and private law spheres. The paper aims to highlight the in consistency of the approach among judges in child abduction cases, where the role of human rights is unclear. It contrasts this with the judicial approach in asylum cases and English law in general, where we argue human rights are increasingly influencing the attitudes to various practices justified on a cultural or religious basis. [source]

Osman and police immunity in the English law of torts

LEGAL STUDIES, Issue 3 2000
Paula Giliker
This article examines and questions the nature of police immunity from claims for negligence in the investigation and suppression of crime, as stated by the House of Lords in Hill v Chief Constable of West Yorkshire. This issue has been discussed before the European Court of Human Rights in Osman v United Kingdom, where the court held that a blanket application of the immunity was contrary to art 6 of the European Convention on Human Rights. This article will argue that this decision does not overturn the basic public policy principles for the immunity stated in Hill and that further examination of this area of law is required. It is submitted that if the law is considered in terms of proximity rather than in terms of public policy immunity, a clearer understanding of the principles underlying this area of law can be reached together with the desirable goal of removing the term ,immunity' from this area of law. [source]

A ,new' head of damages: damages for mental distress in the English law of torts

LEGAL STUDIES, Issue 1 2000
Dr Paula Giliker
This article examines the ability of the claimant to recover damages for mental distress in the English law of torts. This is an area of law which has received little attention and indeed, the general impression is frequently that such damages are not recoverable. This article seeks to establish that this is far from the case and that damages are frequently awarded for mental distress even if they are not always openly recognised. Most lawyers are familiar with the award of damages for ,suffering' within the action for personal injury, but damages for distress are awarded generally, particularly as aggravated damages, as recognised by the Law Commission in 1997. It will be argued that much will be gained by appreciating the true nature of these damages and the policy factors which determine when the claimant will be granted such an award. Whilst there is no evidence to support a right to claim such damages in their own right, there is sufficient authority for a separate head of damages us part of the claimant's general compensatory claim. It is therefore submitted that open recognition of this head will be to the benefit of individual claimants and the system as a whole in clarifying this area of damages. [source]

A Tort-Based Approach to Damages under the Human Rights Act 1998

THE MODERN LAW REVIEW, Issue 5 2009
Jason N. E. Varuhas
This article argues that a strong case can be made for departing from the current approach to damages under the Human Rights Act 1998, and for the adoption of an alternative tort-based approach. The article critically analyses the English courts' arguments against adopting a tort-based approach and demonstrates that neither the Act nor the European Convention on Human Rights militate against such approach. It makes a positive case for a tort-based approach, arguing that the law of damages in tort provides an appropriate model for damages under the Act as a matter of principle given the common functions and protected interests that underpin both areas of the law. Further, tort law offers an established and elaborate corpus of principles to draw on, which can readily and naturally be read across to the human rights context. A tort-based approach would also promote consistency across English law, while generally affording greater protection to human rights than the English courts' current approach. [source]

Advance Refusals of Life-Sustaining Medical Treatment: The Relativity of an Absolute Right

THE MODERN LAW REVIEW, Issue 6 2005
Article first published online: 26 OCT 200, Sabine Michalowski
English law gives the competent patient a right to refuse life-saving treatment, either contemporaneously or in an advance directive. This means that the patient's autonomous choice that in an anticipated situation his/her interests are better served by rejecting life-saving treatment needs to be respected. However, this right is undermined in practice by the courts' approach of applying a presumption in favour of preserving the patient's life whenever the validity and applicability of an advance directive is questioned. The article argues that the patient's right to refuse life-saving treatment only receives the respect it deserves if the decision whether or not a valid and applicable advance directive exists in a given case is instead be approached in an unbiased, disinterested way, and it analyses how this can be achieved in different scenarios. [source]

Insurers, Claims and the Boundaries of Good Faith

THE MODERN LAW REVIEW, Issue 1 2005
John Lowry
This article examines the refusal of the English courts to award damages for consequential losses following unreasonable delay on the part of insurers in settling a claim. This has the potential to give rise to dire consequences for insureds. These difficulties have been addressed in North American jurisdictions where the concept of good faith has been developed and applied as a means of both compensating insureds and regulating the conduct of insurers. However, a hallmark of English law is that it fails to draw a bright line between the law of contract and the law of contracts. As a result, the policy issues that should inform insurance contracts are excluded by virtue of the notion, imported from the law of contract, that the contractual relationship is a matter of private law and is not, therefore, a means for public regulation of insurers. [source]

The Corporate Opportunity Doctrine and Impossibility Arguments

THE MODERN LAW REVIEW, Issue 6 2003
Struan Scott
This article considers whether English law should allow a director to argue that if the company is unable to exploit a corporate opportunity, the director should be free to exploit it personally. The article supports the view of the Company Law Review Steering Group that the answer should remain no. In so doing it analyses US practice to show that, even where such arguments are recognised, they are difficult to prove and their potential application is curtailed through the development of satellite rules. Indeed, in practical terms there may be no significant difference between the Steering Group's recommendations and the position towards which US law appears to be moving. [source]

Transforming Breach of Confidence?

THE MODERN LAW REVIEW, Issue 5 2003
Towards a Common Law Right of Privacy under the Human Rights Act
This article examines the development of a remedy for unauthorised publication of personal information that has resulted from the fusion of breach of confidence with the limited ,horizontal' application of Article 8 of the ECHR via the Human Rights Act. Its analysis of Strasbourg and domestic post-HRA case law reveals the extent to which confidence has in some areas been radically transformed into a privacy right in all but name; however it also seeks to expose the analytical and normative tensions that arise in the judgments between the values of confidentiality and privacy as overlapping but not coterminous concepts, due in part to the failure to resolve decisively the horizontal effect conundrum. This judicial ambivalence towards the reception of privacy as a legal right into English law may, it will argue, also be seen in the prevailing judicial approach to the resolution of the conflict between privacy and expression interests which, it will suggest, is both normatively and structurally inadequate. [source]

Legal implications of mobile shorelines in Great Britain

AREA, Issue 2 2009
Derek J McGlashan
This paper highlights the three legally defined property areas that lie in the coastal zone in Great Britain (land, foreshore and seabed), and considers the mechanisms used by the two legal systems that operate on the mainland (Scots and English law) to cope with natural processes of erosion and accretion. The two legal systems are shown to be slightly different in how they accommodate erosion and accretion. However, they both have difficulty in coherently addressing the issues of coastal mobility and land ownership, which raises important questions of social justice, as they are based on the perceptions of judges in historic cases. [source]