DOI: 10.1111/j.1748-121X.2010.00191.x

Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This article, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.

ISBN: 1748121X

This paper examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.

The view that the wrong of defamation protects the interest in reputation, and nothing but that interest, is ordinarily taken for granted in modern English law. It is, however, incorrect. This paper gives four examples of ways in which the English law of defamation has strayed into the protection of other interests, in particular privacy, self-worth and wealth. They are: the supplementary tests of defamatoriness (the ridicule test and the ‘shun and avoid’ test); s. 8(5) of the Rehabilitation of Offenders Act 1974; the rule that slanders are not ordinarily actionable without proof of ‘special damage’; and, finally, the compensation of losses consequential upon the injury to reputation. It is argued that these are all unwarranted and ought to be reformed.

ISBN: 10393285

The present article concerns itself with the relationship between defamation and negligence in the protection of the interest in reputation. The bijection between defamation and reputation is typically thought of as perfect: defamation only protects reputation, while reputation is only protected by defamation. This article shows, however, that neither limb of the proposition is true; furthermore, there is no principled ground why they should be. In particular, there is no reason why the tort of negligence could not prima facie extend the scope of its protection to reputation. It might seem that the fact that negligence, as a tort, requires by construction culpa, whereas defamation appears to rely on either more or less than that as a standard of liability, would prove an insuperable stumbling-block in the way of this suggestion. The hurdle, however, is not nearly as formidable as it might appear at first, because, as this article documents, negligence has for more than a century been acting as a magnet on the law of defamation, surreptitiously bringing its standard of liability increasingly close to negligence-culpa.

ISBN: 0143-6503

A paper in the Reports section of the MLR on the Scottish Law Commission's Report on Liability for Psychiatric Injury. In the paper, I summarise the Report and subject it to a detailed critique.

ISBN: 0026-7961

An overview of the law governing psychiatric injury and an assessment of the options for reform. Commissioned by the journal, which is practitioner-oriented.

ISBN: 1352 7533

A review article of Duncan Fairgrieve, State Liability in Tort: A Comparative Law Study. The article considers the current state of governmental liability in English law from three different perspectives (public law, private law, and legal politics), and focuses in particular on the lessons that can be learned from the French law of state liability.

ISBN: 0026 7961

This article critically evaluates judicial arguments against the imposition of tort liability on police forces for negligent investigations of crime. The article analyses and defends the much-criticised decision of the European Court of Human Rights in Osman v UK.

In the new era of concurrent liability, Commonwealth appellate courts have called for the rationalisation of the law of remedies across causes of action. Yet the formalistic logic of the current remedial rules applicable to misrepresentations actionable in tort and contract can yield widely discrepant results on the same matrix of facts. Anomalies are exposed where the contract was induced by fraudulent or negligent misrepresentation, but the victim discovered the truth only after fully performing the contract. The tort damages will usually equal the contract award where the misrepresentation was relatively minor, such that the court concludes that had the plaintiff known the truth, it would have been negotiated the contract price to reflect the actual circumstances, increasing the profit margin. However, where the misrepresentation was so serious that the fully informed victim would have refused to contract with the defendant under any terms, the award is calculated on the basis of the plaintiff's cost of performance, without any compensation for loss of profit. To circumvent this paradox, the courts have devised several stratagems to award the plaintiff damages for lost profit. This article shows these devices to be flawed, and that under the current orthodoxy, the law still leaves the defendant to enjoy the fruits of its tort. The author proposes an alternate rule which redefines loss of profits in this context as reliance loss, submitting that this measure best achieves tort's remedial objectives of full compensation and deterrence.

Despite expressions of judicial distaste for the "current fashion" of alleging civil fraud, there continue to be significant of damages to pleading the tort of deceit as alternate or concurrent liability to negligent mistatement. This article explores the evidentiary difficulties in proving the requisite mental intent in the tort of deceit, with particular focus on pronouncements from the British Columbia Court of Appeal and the Supreme Court of Canada requiring that a plaintiff prove that the defendant intended to deceive the plaintiff in making the false statement. The author contends that this view was mistaken, and that both precedent and policy dictate that the requisite mental intent be merely that of inducing reliance upon the mistatement. To impose an additional requirement of proof of intent to deceive would extinguish recklessness as a separate avenue to establishing the dishonesty which is the essence of the tort, and might well result in making the tort of fraud more difficult to prove than the criminal offence of fraud.

Critically evaluates the decision of the Supreme Court of Canada in Hill v Church of Scientology [1995] 2 S.C.R. 1130 holding that the common law tort of defamation generally complies with the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms.

Discusses the decision of the Supreme Court of Canada holding builders liable in negligence to subsequent purchasers for the cost of repairing dangerous defects in Winnipeg Condominium No 36 v Bird Construction [1995] 1 SCR 85, and argues that the House of Lords should abandon the immunity from such liability it accorded builders in D&F Estates and in Murphy v Brentwood.

critically evaluates the decision of the House of Lords in Hunt v Severs [1994] 2 AC 350 holding that a catastrophically injured claimant could not recover for her past and future cost of care, where that care had been provided by the tortfeasor.

Fourth edition of this textbook

This book examines the whole process of child protection from complaint investigation to prosecution in the criminal and civil courts. It provides a coherent analysis of current law and procedure across the legal and geographical boundaries within which legal discussion of child abuse is usually confined, analysing criminal, family, tort, human rights and evidence law as they bear on child abuse cases. Comparative material is drawn from over 75 jurisdictionsusing the adversarial trial model. The book was awarded the first Inner Temple Book Prize (2008). The paperback edition is updated in English law, including the Coroners and Justice Act 2009 enacted on 12 November 2009.

ISBN: 978-0-19-957156-7

The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line.

This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores.

The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.

ISBN: 9780199562794

Third edition of McBride and Bagshaw's Textbook on Tort.

ISBN: 978-1-4058-5949-3

Markesinis and Deakin's Tort Law is an authoritative, analytical, and well-established textbook, reaching its sixth edition in the space of twenty years. It provides a general overview of the law and full discussion of the academic debates on all major topics, highlighting the relationship between the common law, legislation, and judicial policy as well as the new European influences emanating from Luxembourg and Strasbourg. In addition, the authors provide a variety of comparative and economic perspectives on the law of tort and its likely development, always placing the subject in its socio-economic context thus giving students a deeper and richer understanding of tort law. Written by leading authorities on tort law, this detailed book offers teachers a wide range of topics to cover while offering students a text which is both descriptive and reflective of this branch of law. A bibliography and rich footnotes provide interested readers with further references.

ISBN: 9780199282463

The fifth edition of Markesinis and Deakin's Tort Law has been fully revised and updated to cover all important developments which have occurred in this field since the previous edition appeared in 1999. The structure of the book remains the same as in previous editions, as has its underlying philosophy - to provide a good general overview of the law of tort for students and their lecturers which will also be of interest to practitioners and judges in the field. The book includes discussion of much new material, including important appellate court decisions on wrongful birth, defamation, privacy, nuisance, the liability of public authorities, causation and many others; the growing impact of the Human Rights Act upon tort law, including discussion of many important cases decided since the Act came into force; important recent legislative developments, including the Contracts (Rights of Third Parties) Act 1999. Throughout the book the relationship between the common law and legislative policy is a key theme, while economic and comparative analysis of the cases and issues are used where appropriate.

ISBN: 9780199257126

Tort Textbook

ISBN: 582357012

This chapter investigates the concept of ‘cause’ which ought to be used by tort lawyers when making claims such as that Derek’s wrongful behaviour ‘caused’ Trevor to act in some way, in particular in circumstances where we regard Trevor’s action as ‘voluntary’ rather than ‘coerced’. The central issue is whether a tort lawyer’s inquiry into whether Derek’s wrongful behaviour ‘caused’ Trevor to act in some way ought to be the same as an inquiry into whether Derek’s wrongful behaviour ‘caused’ the kettle to boil or the toaster to burn the toast.

Most proponents of a ‘rights-focused account’ of the law of torts argue that not only are there currently no general common law rights to pure economic benefits but there are also good reasons why general common law rights to purely economic benefits should not exist whilst general common law rights to property do, or good reasons why legislators or judges should not in future create or recognise general common law rights to purely economic benefits. The main purpose of this chapter is to evaluate these ‘good reasons’ using three perspectives provided by the ‘edges’ of currently recognised legal rights.

ISBN: 9781849461429

The principal theme of this chapter is that in pursuing the goal of making English tort law compatible with Convention rights, and the related goal of developing tort law so as to allow it to assist in protecting these rights, we should not lose sight of what makes a good tort duty. Lord Bingham commended the opinion that ‘where a common law duty covers the same ground as a Convention right, it should, so far as practicable, develop in harmony with it’ (Van Colle v. Chief Constable of the Hertfordshire Police; Smith v. Chief Constable of Sussex Police [2008] UKHL 50; [2009] 1 AC 225 at [58]). But this chapter aims to unsettle any assumption that such harmony requires the development of tort duties which mirror Convention rights, even in situations where the tort duties will be owed by public bodies. It is more important for newly developed duties to be harmonious with the goals of the law of torts than for them to replicate concepts used by the Strasbourg Court.

This chapter explores the relationship between the capacity of tort law to achieve its goals and the nature of the concepts that are incorporated in the law.

Leading practitioners' work on Torts

ISBN: 0-421-88890-3

A summary of, and critical commentary on, the tort cases published in the All England Law Reports in 2004.

ISBN: 1-405-70360-1

A summary of English case law developments in the law of tort in 2003.

ISBN: 406965439

Chapter in book

ISBN: 9041199179

summary of the year's tort cases

ISBN: 406965439

in-depth analysis of public authority tort liability for new practitioners' work

ISBN: 406896720

summary of the year's tort cases

ISBN: 406950423

summary of the year's tort cases

ISBN: 406940967

This chapter explores the invasion of part of the territory of common law obligations by the fiduciary phenomenon, considering in particular Canadian and Australian jurisprudence. The encroachment of fiduciary concepts into Hedley Byrne advisory relationships and fiduciary liability for sexual exploitation is considered in some depth.

ISBN: 0-19-876488-X

a casenote on the HL decision in Barker v Corus

ISBN: 0306 2945

Casenote discussing Douglas v Hello! (no 3)

ISBN: 0023-933X

A note of the House of Lords' decision in Gregg v Scott

ISBN: 0023-933X

Casenote

ISBN: 0023933X

Casenote on Transco v Stockport MBC

ISBN: 0023-933X