Paula Giliker - Academia.edu (original) (raw)
Papers by Paula Giliker
The law does not in the ordinary course impose personal (as opposed to vicarious) liability for w... more The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do … The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.' 14 Such duties are not, however, confined to negligence: liability may, depending on the nature of the non-delegable duty in question, be strict or fault-based. However, if the latter, the net result is that the defendant is liable for negligence, committed by herself or another, even if that other is an independent contractor. It is distinct, however, as Lord Sumption indicates above, from the doctrine of vicarious liability which, orthodox theory dictates, imposes secondary, not primary, liability. As might be imagined, this is contentious. It is difficult to discern a clear distinction between the non-delegable duty and vicarious liability on a functional analysis in that both concepts render the employer liable in tort for the tortious actions of another. In rendering an employer (X) liable for the torts of the person to whom he delegated his duty of care, are we not imposing strict liability for the torts of another, in other words, vicarious liability? 15 Further, non-delegable duties have arisen in such a variety of contexts that it seems impossible to identify a single conceptual basis capable of uniting all forms of such duty.
SSRN Electronic Journal, 2014
This article examines the transposition of the Consumer Rights Directive 2011/83/EU into UK law. ... more This article examines the transposition of the Consumer Rights Directive 2011/83/EU into UK law. At face value, the UK has complied with the Directive, adopting and publishing it by 13 December 2013 and providing that its provisions shall apply to contracts concluded after 13 June 2014, as required by Article 28. Indeed, Article 19 of the CRD (extra fees charged to consumers on payment) was introduced a year before the date anticipated in the Directive. It will be argued, however, that despite such positive indicia and the fact that the CRD is primarily a maximum harmonisation directive, a number of strategic decisions have been made, notably by the Department for Business, Innovation and Skills (BIS) charged with responsibility for transposing the CRD into UK law, which reveal an underlying and ongoing suspicion of EU intervention into domestic contract law. The article thus argues that directives, whether maximum or minimum harmonisation in nature, will always be vulnerable to policy choices at national level due to the discretion awarded to Member States in the transposition process.
King's Law Journal, 1999
... Dr Paula Gujker* 14. Such confusion is equally evident in Tremain v Puce [1969] 1 WLR 1SS6. 1... more ... Dr Paula Gujker* 14. Such confusion is equally evident in Tremain v Puce [1969] 1 WLR 1SS6. 15. See Glasgow Coip. v Taylor [1922] 1 AC 44. Note the comments of Lord Diplock in British Railways Board v Herrington (1972] AC 877,933. ...
Common Law World Review, 2018
This special edition of the Common Law World Review will focus on the relationship between UK and... more This special edition of the Common Law World Review will focus on the relationship between UK and Irish law. The four articles published in this volume are based on papers delivered at a joint seminar of the British Association of Comparative Law and the Irish Society of Comparative Law (ISCL) held at University College Dublin on 5 September 2017. It was my pleasure, together with the President of the ISCL, Professor Steve Hedley of University College Cork, to chair this seminar which attracted members of the Irish Law Commission, academics and lawyers from the United Kingdom and Ireland and members of our associations. It is the first time our groups have collaborated in this way and hopefully it will not be the last! The theme of the joint seminar was the 'special relationship' between UK and Irish law in changing times. The speakers were asked to choose an area of law in which UK/Irish comparisons would prove useful and provide an illuminating insight into the law of two jurisdictions sharing a common law heritage. We were fortunate to attract four excellent speakers, based in universities in England, Northern Ireland and Ireland, who were able to speak on a diverse range of topics including property law, banking law, consumer law reform and the legislative treatment of language diversity. As will be seen in the papers included in this volume, the relationship between UK and Irish law is one which has evolved over time and, indeed, is one of vital contemporary importance in the light of the decision of the United Kingdom to leave the European Union (EU) in March 2019. As testified by the papers delivered in the seminar, no discussion can be devoid of reference to the often fractious historical relationship of these jurisdictions. Wylie described Ireland as the 'first adventure of the common law' (Wylie, 1997: para. 1.04) and from the Norman conquest of Ireland in 1171-1172, we see the suppression of native Irish (or Brehon) law in favour of the English common law. From Norman times to Cromwell's brutal occupation of Ireland in the 17th century, to the inertia of the British government towards the Irish potato famine in the 19th century, to the Easter Rising of 1916, the histories of these nations have been tied. And yet with Brexit a divide opens up, with Ireland the last 'common law' man standing in the EU 1 and subject to its future legislation and decisions of the Court of Justice of the European Union, while the United Kingdom (potentially) looks elsewhere in the common law world. Indeed, concern about Brexit and its impact on the UK-Irish relationship is a theme that runs through these papers. The articles in this volume seek therefore to examine different features of the relationship between Irish and UK law: the tensions of the past, prospects for the future and the similar problems faced by two common law jurisdictions in the light of a global banking crisis, linguistic diversity and demands for consumer and land law reform. In our first paper, Rachael Walsh and Lorna Fox O'Mahony write on 'Land law ideologies and the British-Irish
EU Internet Law, 2017
This chapter examines the 2015 proposal of the European Commission for a directive on contracts f... more This chapter examines the 2015 proposal of the European Commission for a directive on contracts for the supply of digital content and compare the proposed measure with that already enacted in the United Kingdom in Part 1 of its Consumer Rights Act 2015. In drafting the directive, the Commission was conscious of the fact that some European Member States, such as the United Kingdom, had already started enacting their own legislation relating to contracts in this field. Nevertheless, the proposal is for maximum harmonisation. This chapter engages in a detailed examination of the directive and contrasts it with the UK Consumer Rights Act 2015. It also examines the implications of the UK’s decision to leave the European Union and whether the Directive (if implemented) is likely nevertheless to have some influence on UK law (and vice versa).
![Research paper thumbnail of Studies in the Contract Laws of Asia: Remedies for Breach of Contract, edited by Mindy Chen-Wishart, Alexander Loke and Burton Ong [Oxford University Press, Oxford, 2016, ISBN 978-0-19-875722-1, 536pp, £75.00 (h/bk)]](https://attachments.academia-assets.com/99083387/thumbnails/1.jpg)
](International and Comparative Law Quarterly, 2016
Werner Menski in his leading work, Comparative Law in a Global Context, highlighted the dangers o... more Werner Menski in his leading work, Comparative Law in a Global Context, highlighted the dangers of a Eurocentric approach to comparative law. He stressed the need to adopt a global, pluralityconscious perspective. In the modern global economy, where China (according to WTO statistics) is the world's leading exporter and the so-called BRICS (Brazil, Russia, India, China and South Africa) economies continue to show impressive growth, increasing their share in world exports from 8 per cent in 2000 to 19 per cent in 2014, it is indeed difficult to justify a failure to engage with comparative law globally and yet there remains, despite the existence of specialist journals such as the Asian Journal of Comparative Law and the Global Journal of Comparative Law, a paucity of comparative studies between the private laws of Asian jurisdictions or even up-to-date accounts of the contract laws of some Asian jurisdictions in the English language. This, at least in the area of contract law, the new series-Studies in the Contract Laws of Asia-seeks to rectify by producing a six-volume series of works covering the key topics of remedies for breach of contract, formation of contract and third party beneficiaries, contents of contracts and unfair terms, invalidity of contract, ending and changing contracts, and public policy and illegality. While the first volume in this series on remedies for breach of contract covers nine jurisdictions (
![Research paper thumbnail of Vicarious Liability in Tort: A Comparative Perspective by Paula Giliker [Cambridge University Press, Cambridge, 2010, 330pp, ISBN 9780521763370, £60 (h/bk)]](https://attachments.academia-assets.com/96359543/thumbnails/1.jpg)
](International and Comparative Law Quarterly, 2011
Vicarious liability in tort : a comparative perspective / Paula Giliker. p. cm.-(Cambridge studie... more Vicarious liability in tort : a comparative perspective / Paula Giliker. p. cm.-(Cambridge studies in international and comparative law) isbn 978-0-521-76337-0 (Hardback) 1. Respondeat superior. 2. Th ird parties (Law) I. Title. II. Series. k962.g55 2010 346.03-dc22 2010017639 isbn 978-1-107-62748-2 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
Liverpool Law Review
Classically a duty to negotiate commercial contracts in good faith has been seen as part of the c... more Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 ...
European Review of Private Law
This article was written as part of a comparative law project to consider how different European ... more This article was written as part of a comparative law project to consider how different European legal systems (common and civil law) address the problem of legal ignorance in private law, that is, the extent to which the rules of contract, tort and unjust enrichment make allowances for ignorance of the law by legal actors. It also addresses the question of civil procedure and whether legal ignorance can provide a ground for disapplying or postponing the commencement of limitation periods. The aim of this article is to identify both the common law response and the motivation of the courts in this field to facilitate comparison with civil law systems. In seeking to understand common law legal reasoning, the starting point remains that citizens should be encouraged to familiarize themselves with the law. The law needs to set rules for the benefit of society in general. Issues such as security of transactions, legal certainty and efficiency also play a role. Nevertheless, some allowanc...
International and Comparative Law Quarterly, 2021
The law of tort (or extra or non-contractual liability) has been criticised for being imprecise a... more The law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictabili...
Economic Torts and Economic Wrongs, 2021
The tort of private nuisance 1 seeks to protect the plaintiff from unlawful interference with his... more The tort of private nuisance 1 seeks to protect the plaintiff from unlawful interference with his or her use or enjoyment of land, or of some right over, or in connection with it. As a tort protecting land rights, it is often termed a 'property' tort 2 and this trait influences who can sue and the remedies provided. Only plaintiffs with a legal right to, or exclusive possession of, the land, will be able to sue. 3 Remedies equally respond to an 'undue' interference with the plaintiff's land rights. Compensation will be awarded for diminution in value of the plaintiff's land and for loss of its 'amenity value'. 4 In the leading nineteenth century case of St Helen's Smelting Co v Tipping, 5 Lord Westbury made it clear that private nuisance would not only remedy physical (material) damage to property (for example damaged crops and buildings), but would extend to sensible personal discomfort (caused, for example, by fumes and noxious gases). In this latter category, however, liability would only arise if the harm was over and above what would be expected of the locality in question. Equity also permits injunctive relief to protect the plaintiff's rights over the land when appropriate. Authors such as Wightman have observed, however, that while the origins of private nuisance lie in the protection of rights over land, it has been used since the nineteenth century by plaintiffs to preserve their estates laying * Professor of Comparative Law, University of Bristol. 1 This chapter will not cover the law relating to the rule in Rylands v Fletcher which is part of private nuisance in the law of England and Wales but is treated as part of the tort of negligence in Australia: see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (HCA). To avoid clumsy duplication, the chapter will also use the term 'plaintiff' in relation to English and Australian law, although English law now prefers the term 'claimant'. 2 D Nolan, '"A Tort Against Land": Private Nuisance as a Property Tort' in D Nolan and A Robertson (eds), Rights and Private Law (Oxford, Hart Publishing, 2011) 459. 3 Hunter v Canary Wharf Ltd [1997] AC 655 (HL). For complications this may cause to business plaintiffs, see Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180, [2011] QB 86. 4 The latter has been defined broadly as 'the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves':
The law does not in the ordinary course impose personal (as opposed to vicarious) liability for w... more The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do … The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.' 14 Such duties are not, however, confined to negligence: liability may, depending on the nature of the non-delegable duty in question, be strict or fault-based. However, if the latter, the net result is that the defendant is liable for negligence, committed by herself or another, even if that other is an independent contractor. It is distinct, however, as Lord Sumption indicates above, from the doctrine of vicarious liability which, orthodox theory dictates, imposes secondary, not primary, liability. As might be imagined, this is contentious. It is difficult to discern a clear distinction between the non-delegable duty and vicarious liability on a functional analysis in that both concepts render the employer liable in tort for the tortious actions of another. In rendering an employer (X) liable for the torts of the person to whom he delegated his duty of care, are we not imposing strict liability for the torts of another, in other words, vicarious liability? 15 Further, non-delegable duties have arisen in such a variety of contexts that it seems impossible to identify a single conceptual basis capable of uniting all forms of such duty.
Research Handbook on EU Tort Law
This article will examine the evolution of a new tort – that of misuse of private information – i... more This article will examine the evolution of a new tort – that of misuse of private information – in the courts of England and Wales. Stimulated by the introduction of the UK Human Rights Act 1998 (c 42), the English courts are moving towards recognition of a distinct tort which is capable of responding to advances in technology which give rise to increased possibilities for intrusion into the personal lives of private individuals. While such a development may seem preferable to the previous practice of “shoehorning” claims into the existing action for breach of confidence, this article will consider, with reference to recent case law in New Zealand and the Canadian province of Ontario, the challenges which recognition of torts protecting privacy rights present to traditional common law reasoning. In particular, it will examine the extent to which the constitutional framework in each jurisdiction, which provides for protection of a right to privacy and freedom of expression, has led t...
UK Supreme Court Yearbook Volume 1, 2015
12, who argues that vicarious liability runs counter to two fundamental principles of English tor... more 12, who argues that vicarious liability runs counter to two fundamental principles of English tort law: that one should only be liable for one's own acts or omissions and that liability should be based on fault. 'These principles', he stated, 'are so deeply rooted in legal thinking that any departure from them seems at first sight impossibly unjust.' 3 Cox (n 1). 4 [2016] UKSC 11, [2016] AC 677. 5 CCWS (n 1) [21] (Lord Phillips).
Research Handbook on EU Tort Law
As discussed in the comparative study of Ken Oliphant (ed), The Liability of Public Authorities i... more As discussed in the comparative study of Ken Oliphant (ed), The Liability of Public Authorities in Comparative Perspective (Intersentia, Antwerp 2016). The UK, for example, has generally restrictive rules in relation to public authority liability in the ordinary law of tort.
Legal Studies
The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contr... more The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contracts for goods, services and digital content, and the law relating to unfair terms in consumer contracts. These are areas where there has been considerable activity at both a national and an EU level. In particular, the Consumer Sales Directive 99/44/EC, the Unfair Terms in Consumer Contracts Directive 93/13/EEC and the Consumer Rights Directive 2011/83/EU have all made significant changes to Member State law, promoting the idea of the ‘informed consumer’, able to assert his or her rights in entering consumer contracts. This paper will examine the extent to which the Act promotes the objectives of these Directives and the implications of the result of the June 2016 referendum that the UK should leave the EU. Does the Consumer Rights Act 2015 represent a valuable consolidation of EU and UK consumer policy, or are EU rights being absorbed into a distinctive national framework of consumer r...
The law does not in the ordinary course impose personal (as opposed to vicarious) liability for w... more The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do … The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.' 14 Such duties are not, however, confined to negligence: liability may, depending on the nature of the non-delegable duty in question, be strict or fault-based. However, if the latter, the net result is that the defendant is liable for negligence, committed by herself or another, even if that other is an independent contractor. It is distinct, however, as Lord Sumption indicates above, from the doctrine of vicarious liability which, orthodox theory dictates, imposes secondary, not primary, liability. As might be imagined, this is contentious. It is difficult to discern a clear distinction between the non-delegable duty and vicarious liability on a functional analysis in that both concepts render the employer liable in tort for the tortious actions of another. In rendering an employer (X) liable for the torts of the person to whom he delegated his duty of care, are we not imposing strict liability for the torts of another, in other words, vicarious liability? 15 Further, non-delegable duties have arisen in such a variety of contexts that it seems impossible to identify a single conceptual basis capable of uniting all forms of such duty.
SSRN Electronic Journal, 2014
This article examines the transposition of the Consumer Rights Directive 2011/83/EU into UK law. ... more This article examines the transposition of the Consumer Rights Directive 2011/83/EU into UK law. At face value, the UK has complied with the Directive, adopting and publishing it by 13 December 2013 and providing that its provisions shall apply to contracts concluded after 13 June 2014, as required by Article 28. Indeed, Article 19 of the CRD (extra fees charged to consumers on payment) was introduced a year before the date anticipated in the Directive. It will be argued, however, that despite such positive indicia and the fact that the CRD is primarily a maximum harmonisation directive, a number of strategic decisions have been made, notably by the Department for Business, Innovation and Skills (BIS) charged with responsibility for transposing the CRD into UK law, which reveal an underlying and ongoing suspicion of EU intervention into domestic contract law. The article thus argues that directives, whether maximum or minimum harmonisation in nature, will always be vulnerable to policy choices at national level due to the discretion awarded to Member States in the transposition process.
King's Law Journal, 1999
... Dr Paula Gujker* 14. Such confusion is equally evident in Tremain v Puce [1969] 1 WLR 1SS6. 1... more ... Dr Paula Gujker* 14. Such confusion is equally evident in Tremain v Puce [1969] 1 WLR 1SS6. 15. See Glasgow Coip. v Taylor [1922] 1 AC 44. Note the comments of Lord Diplock in British Railways Board v Herrington (1972] AC 877,933. ...
Common Law World Review, 2018
This special edition of the Common Law World Review will focus on the relationship between UK and... more This special edition of the Common Law World Review will focus on the relationship between UK and Irish law. The four articles published in this volume are based on papers delivered at a joint seminar of the British Association of Comparative Law and the Irish Society of Comparative Law (ISCL) held at University College Dublin on 5 September 2017. It was my pleasure, together with the President of the ISCL, Professor Steve Hedley of University College Cork, to chair this seminar which attracted members of the Irish Law Commission, academics and lawyers from the United Kingdom and Ireland and members of our associations. It is the first time our groups have collaborated in this way and hopefully it will not be the last! The theme of the joint seminar was the 'special relationship' between UK and Irish law in changing times. The speakers were asked to choose an area of law in which UK/Irish comparisons would prove useful and provide an illuminating insight into the law of two jurisdictions sharing a common law heritage. We were fortunate to attract four excellent speakers, based in universities in England, Northern Ireland and Ireland, who were able to speak on a diverse range of topics including property law, banking law, consumer law reform and the legislative treatment of language diversity. As will be seen in the papers included in this volume, the relationship between UK and Irish law is one which has evolved over time and, indeed, is one of vital contemporary importance in the light of the decision of the United Kingdom to leave the European Union (EU) in March 2019. As testified by the papers delivered in the seminar, no discussion can be devoid of reference to the often fractious historical relationship of these jurisdictions. Wylie described Ireland as the 'first adventure of the common law' (Wylie, 1997: para. 1.04) and from the Norman conquest of Ireland in 1171-1172, we see the suppression of native Irish (or Brehon) law in favour of the English common law. From Norman times to Cromwell's brutal occupation of Ireland in the 17th century, to the inertia of the British government towards the Irish potato famine in the 19th century, to the Easter Rising of 1916, the histories of these nations have been tied. And yet with Brexit a divide opens up, with Ireland the last 'common law' man standing in the EU 1 and subject to its future legislation and decisions of the Court of Justice of the European Union, while the United Kingdom (potentially) looks elsewhere in the common law world. Indeed, concern about Brexit and its impact on the UK-Irish relationship is a theme that runs through these papers. The articles in this volume seek therefore to examine different features of the relationship between Irish and UK law: the tensions of the past, prospects for the future and the similar problems faced by two common law jurisdictions in the light of a global banking crisis, linguistic diversity and demands for consumer and land law reform. In our first paper, Rachael Walsh and Lorna Fox O'Mahony write on 'Land law ideologies and the British-Irish
EU Internet Law, 2017
This chapter examines the 2015 proposal of the European Commission for a directive on contracts f... more This chapter examines the 2015 proposal of the European Commission for a directive on contracts for the supply of digital content and compare the proposed measure with that already enacted in the United Kingdom in Part 1 of its Consumer Rights Act 2015. In drafting the directive, the Commission was conscious of the fact that some European Member States, such as the United Kingdom, had already started enacting their own legislation relating to contracts in this field. Nevertheless, the proposal is for maximum harmonisation. This chapter engages in a detailed examination of the directive and contrasts it with the UK Consumer Rights Act 2015. It also examines the implications of the UK’s decision to leave the European Union and whether the Directive (if implemented) is likely nevertheless to have some influence on UK law (and vice versa).
International and Comparative Law Quarterly, 2016
Werner Menski in his leading work, Comparative Law in a Global Context, highlighted the dangers o... more Werner Menski in his leading work, Comparative Law in a Global Context, highlighted the dangers of a Eurocentric approach to comparative law. He stressed the need to adopt a global, pluralityconscious perspective. In the modern global economy, where China (according to WTO statistics) is the world's leading exporter and the so-called BRICS (Brazil, Russia, India, China and South Africa) economies continue to show impressive growth, increasing their share in world exports from 8 per cent in 2000 to 19 per cent in 2014, it is indeed difficult to justify a failure to engage with comparative law globally and yet there remains, despite the existence of specialist journals such as the Asian Journal of Comparative Law and the Global Journal of Comparative Law, a paucity of comparative studies between the private laws of Asian jurisdictions or even up-to-date accounts of the contract laws of some Asian jurisdictions in the English language. This, at least in the area of contract law, the new series-Studies in the Contract Laws of Asia-seeks to rectify by producing a six-volume series of works covering the key topics of remedies for breach of contract, formation of contract and third party beneficiaries, contents of contracts and unfair terms, invalidity of contract, ending and changing contracts, and public policy and illegality. While the first volume in this series on remedies for breach of contract covers nine jurisdictions (
International and Comparative Law Quarterly, 2011
Vicarious liability in tort : a comparative perspective / Paula Giliker. p. cm.-(Cambridge studie... more Vicarious liability in tort : a comparative perspective / Paula Giliker. p. cm.-(Cambridge studies in international and comparative law) isbn 978-0-521-76337-0 (Hardback) 1. Respondeat superior. 2. Th ird parties (Law) I. Title. II. Series. k962.g55 2010 346.03-dc22 2010017639 isbn 978-1-107-62748-2 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
Liverpool Law Review
Classically a duty to negotiate commercial contracts in good faith has been seen as part of the c... more Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of “good faith” as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the European Union and their use in international conventions such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper will examine whether this situation is changing, focusing on two common law jurisdictions—England and Wales and Canada. In England and Wales and the common law of Canada, case-law in the last 10 years has indicated a movement towards acceptance of express and implied duties of good faith in relation to contractual performance, see e.g. Yam Seng Pte Limited v International Trade Corporation Limited [2013] EWHC 111 (QB) and, most recently, Essex CC v UBB Waste (Essex) Ltd (No. 2) [2020] EWHC 1581 ...
European Review of Private Law
This article was written as part of a comparative law project to consider how different European ... more This article was written as part of a comparative law project to consider how different European legal systems (common and civil law) address the problem of legal ignorance in private law, that is, the extent to which the rules of contract, tort and unjust enrichment make allowances for ignorance of the law by legal actors. It also addresses the question of civil procedure and whether legal ignorance can provide a ground for disapplying or postponing the commencement of limitation periods. The aim of this article is to identify both the common law response and the motivation of the courts in this field to facilitate comparison with civil law systems. In seeking to understand common law legal reasoning, the starting point remains that citizens should be encouraged to familiarize themselves with the law. The law needs to set rules for the benefit of society in general. Issues such as security of transactions, legal certainty and efficiency also play a role. Nevertheless, some allowanc...
International and Comparative Law Quarterly, 2021
The law of tort (or extra or non-contractual liability) has been criticised for being imprecise a... more The law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictabili...
Economic Torts and Economic Wrongs, 2021
The tort of private nuisance 1 seeks to protect the plaintiff from unlawful interference with his... more The tort of private nuisance 1 seeks to protect the plaintiff from unlawful interference with his or her use or enjoyment of land, or of some right over, or in connection with it. As a tort protecting land rights, it is often termed a 'property' tort 2 and this trait influences who can sue and the remedies provided. Only plaintiffs with a legal right to, or exclusive possession of, the land, will be able to sue. 3 Remedies equally respond to an 'undue' interference with the plaintiff's land rights. Compensation will be awarded for diminution in value of the plaintiff's land and for loss of its 'amenity value'. 4 In the leading nineteenth century case of St Helen's Smelting Co v Tipping, 5 Lord Westbury made it clear that private nuisance would not only remedy physical (material) damage to property (for example damaged crops and buildings), but would extend to sensible personal discomfort (caused, for example, by fumes and noxious gases). In this latter category, however, liability would only arise if the harm was over and above what would be expected of the locality in question. Equity also permits injunctive relief to protect the plaintiff's rights over the land when appropriate. Authors such as Wightman have observed, however, that while the origins of private nuisance lie in the protection of rights over land, it has been used since the nineteenth century by plaintiffs to preserve their estates laying * Professor of Comparative Law, University of Bristol. 1 This chapter will not cover the law relating to the rule in Rylands v Fletcher which is part of private nuisance in the law of England and Wales but is treated as part of the tort of negligence in Australia: see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (HCA). To avoid clumsy duplication, the chapter will also use the term 'plaintiff' in relation to English and Australian law, although English law now prefers the term 'claimant'. 2 D Nolan, '"A Tort Against Land": Private Nuisance as a Property Tort' in D Nolan and A Robertson (eds), Rights and Private Law (Oxford, Hart Publishing, 2011) 459. 3 Hunter v Canary Wharf Ltd [1997] AC 655 (HL). For complications this may cause to business plaintiffs, see Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180, [2011] QB 86. 4 The latter has been defined broadly as 'the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves':
The law does not in the ordinary course impose personal (as opposed to vicarious) liability for w... more The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do … The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others.' 14 Such duties are not, however, confined to negligence: liability may, depending on the nature of the non-delegable duty in question, be strict or fault-based. However, if the latter, the net result is that the defendant is liable for negligence, committed by herself or another, even if that other is an independent contractor. It is distinct, however, as Lord Sumption indicates above, from the doctrine of vicarious liability which, orthodox theory dictates, imposes secondary, not primary, liability. As might be imagined, this is contentious. It is difficult to discern a clear distinction between the non-delegable duty and vicarious liability on a functional analysis in that both concepts render the employer liable in tort for the tortious actions of another. In rendering an employer (X) liable for the torts of the person to whom he delegated his duty of care, are we not imposing strict liability for the torts of another, in other words, vicarious liability? 15 Further, non-delegable duties have arisen in such a variety of contexts that it seems impossible to identify a single conceptual basis capable of uniting all forms of such duty.
Research Handbook on EU Tort Law
This article will examine the evolution of a new tort – that of misuse of private information – i... more This article will examine the evolution of a new tort – that of misuse of private information – in the courts of England and Wales. Stimulated by the introduction of the UK Human Rights Act 1998 (c 42), the English courts are moving towards recognition of a distinct tort which is capable of responding to advances in technology which give rise to increased possibilities for intrusion into the personal lives of private individuals. While such a development may seem preferable to the previous practice of “shoehorning” claims into the existing action for breach of confidence, this article will consider, with reference to recent case law in New Zealand and the Canadian province of Ontario, the challenges which recognition of torts protecting privacy rights present to traditional common law reasoning. In particular, it will examine the extent to which the constitutional framework in each jurisdiction, which provides for protection of a right to privacy and freedom of expression, has led t...
UK Supreme Court Yearbook Volume 1, 2015
12, who argues that vicarious liability runs counter to two fundamental principles of English tor... more 12, who argues that vicarious liability runs counter to two fundamental principles of English tort law: that one should only be liable for one's own acts or omissions and that liability should be based on fault. 'These principles', he stated, 'are so deeply rooted in legal thinking that any departure from them seems at first sight impossibly unjust.' 3 Cox (n 1). 4 [2016] UKSC 11, [2016] AC 677. 5 CCWS (n 1) [21] (Lord Phillips).
Research Handbook on EU Tort Law
As discussed in the comparative study of Ken Oliphant (ed), The Liability of Public Authorities i... more As discussed in the comparative study of Ken Oliphant (ed), The Liability of Public Authorities in Comparative Perspective (Intersentia, Antwerp 2016). The UK, for example, has generally restrictive rules in relation to public authority liability in the ordinary law of tort.
Legal Studies
The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contr... more The Consumer Rights Act 2015 seeks to consolidate in one place key consumer rights covering contracts for goods, services and digital content, and the law relating to unfair terms in consumer contracts. These are areas where there has been considerable activity at both a national and an EU level. In particular, the Consumer Sales Directive 99/44/EC, the Unfair Terms in Consumer Contracts Directive 93/13/EEC and the Consumer Rights Directive 2011/83/EU have all made significant changes to Member State law, promoting the idea of the ‘informed consumer’, able to assert his or her rights in entering consumer contracts. This paper will examine the extent to which the Act promotes the objectives of these Directives and the implications of the result of the June 2016 referendum that the UK should leave the EU. Does the Consumer Rights Act 2015 represent a valuable consolidation of EU and UK consumer policy, or are EU rights being absorbed into a distinctive national framework of consumer r...