Voluntary Manslaughter

 Voluntary Manslaughter

• There are three special defences to a charge of murder
• Diminished responsibility
• Loss of control; or
• Suicide pact

When one of these is successful the offence of murder is reduced to manslaughter

Diminished Responsibility

• The defence is set out in s2(1) of the Homicide Act 1957 as amended by s52 of the Coroners and Justice Act 2009
• The effect of this section is that
• A person who kills or is a party to the killing of another is not to be convicted of murder if he was suffering from an 'abnormality of mental functioning' which:
• Arose from a recognised medical condition
• Substantially impaired the defendant's ability to
• Understand the nature of their conduct; or
• Form a rational judgment; or
• Exercise self-control and
• Provides an explanation for the defendant's acts or omissions in doing or being a party to the killing
• The burden of proving the defence rests on the defendant, but it only needs to be proven on the balance of probabilities

Abnormality of Mental Functioning

• Before s 52 of the Coroners and Justice Act 2009 amended the definition of diminished responsibility, the phrase used was 'abnormality of mind' - Byrne (1960)
• Although Byrne uses the old definition it is very likely that the courts will still use the same standard of abnormality, that is:
• that the defendant's mental functioning was so different that the reasonable man would find it abnormal - the jury will decide this covers a wide range of situations:
• Seers (1985) - chronic reactive depression
• Hobson (1998) - battered woman syndrome officially recognised as a valid new condition

Substantially Impaired

• Byrne (1960) - the question of whether the impairment was substantial was one of degree and that it was for the jury to decide
• Lloyd (1967) - substantial does not mean total, but it doesn't mean 'trivial or minimal' either
• Seers (1984) - 'Substantially' means more than trivial but not total - the abnormality of mental functioning was put down to 'depression' but this again was recognised officially by medical evidene as a psychiatric condition
• Medical evidence will normally be given at trial which the jury can consider - Campbell (1997)
• Question will be withdrawn from the jury if there is no evidence of substantial impairment

What must be substantially impaired?

• S2(1A) of the Homicide Act, the defendant's ability to do on of three things must be substantially impaired
• To understand the nature of their conduct
• To form a rational judgement
• To exercise self-control - this was the case in Byrne (1960), medical evidence that his condition of being a sexual psychopath meant he was unable to control his perverted desires; the defence of diminished responsibility was therefore available to him
• Since the Coroners and Justice Act 2009 there must now be some causal connection betweeen the defendant's abnormality of mental functioning and the killing - s2(1B) Homicide Act 1957

Valid 'Conditions'

• R v Dietschmann (2003)
• An adjustment disorder suffered on the death of the defendant's aunt with whom he was having a relationship
• R v Jama (2004)
• A violent reaction founded on the defendant's autism
• R v Gittens (1984)
• Depression
• R v Vinagre (1979)
• 'Othello's Syndrome' or pathological jealousy where the defendant is convinced that their partner is being unfaithful
• R v Simcox (1964)
• Paranoia
• R v Hendy (2006)
• General psychopathy
• R v Erskine (2009)
• Schizophrenia

Diminished Responsibility

• Intoxication alone cannot support a defence of diminished responsibility, Di Duca (1959); Dowds (2012)
• Where the defendant has a pre-existing mental disorder, intoxication does not prevent them using the defence - of the condition existed before the intoxication it is acceptable even though the intoxication may have made it worse - Dietschmann (2003)
• The only time that alcohol may form the basis of a successful diminished responsibility defence when it is a level of alcohol dependency that the court is satisfied had led to a recognisable psychiatric condition (Alcohol Dependency Syndrome can be an abnormality of mental functioning - Wood (2008))
• R v Wood (2008)
• The court made a distinction between having drunk alcohol as a result of giving in to a craving (not a recognised disorder) and the kind of dependency experienced by alcoholics (which is a recognised disorder provided medical evidence classifies it as such...i.e it is a 'syndrome')

Reform of the Law

• The Coroners and Justice Act 2009's new definition, using the phrase 'recognised medical condition', should be more flexible and allow for future developments in the field of medical science
• The 2009 Act also no incorporates the decision in Byrne (1960), in that the Act sets out clearly what aspects of the defendant's mental functioning must be substantially impaired in order for the defence to succeed

Loss of Control

• S.54 of the Coroners and Justice Act 2009
• The defence of loss of control is a partial defence that may reduce liability for murder to manslaughter. It does not operate to absolve the defendant of liability completely. It is not a general defence and exists only for the offence of murder
• The loss of control defence was introduced in response to concerns in relation to the defence of provocation
• The defence of provocation proved problematic and was subject to much consideration by the appeal courts. The appeal courts were not always consistent in the interpretation and application. The defence was also considered to have a gender bias in that it was too favourable to those who killed as a result of losing their temper (generally male defendants) but did not provide a tailored response to those who kill out of a fear of serious violence (often women experiencing domestic violence)
• The extent to which the new legislation addresses these issues is a moot point
• The new defence of loss of control is broadly similar to the defence of provocation in the requirements; however, it is far more restrictive in its application
• The Ministry of Justice Impact Analysis of 2009 estimated that the changes would result in a further 10-20 murder rather than manslaughter convictions per year at a cost of £4-8m in the prison and court systems
• For loss of self-control, there is no requirement that the loss of self-control be suddent (s.54(2))
• This represents a change from the law of provocation, which required the loss of control to be sudden and temporary (R v Duffy) which was seen as a significant barrier to victims of domestic violence. See R v Ahluwalia, R v Thornton, however, in each of those cases there was no loss of control, sudden or otherwise, and thus the cases would have had the same outcome under the new defence
• The Law Commission has recommended that there should be no requirement of loss of control as this was the element of the defence of provocation that operated against women
• By virtue of s.54(4) - If the defendant acted in a considered desire for revenge they cannot rely on the defence. This upholds the principle seen in R v Ibrams & Gregory
• Qualifying trigger - under the old law of provocation virtually any act was capable of being used as evidence of provocation. This was considered problematic in that it was too wide. The provocative action did not have to be deliberate or aimed at the victim, even a baby crying was accepted as a provocative act (R v Doughty). The introduction of qualifying triggers have narrowed the amnit of the new defence quite dramatically
• The qualifying triggers are set out in s.55 Coroners and Justice Act 2009
• A qualifying trigger may only relate to s.55(3) where the defendant's loss of sel-control was atrributable to the defendant's fear of serious violence from the victim against the defendant or another identified person OR
• s.55(4) Where the defendant's loss of self-control was attributable to a thing or things done or said (or both) which - (a) consistuted circumstances of an extremely grave character, and (b) cause D to have a justifiable sense of being seriously wronged
• See the cases of Dawes (2013) and Zebedee (2012)
• The question of what constitutes circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged is decided objectively: R v Hatter (2013)
• The breakdown of a relationship will not normally be regarded as circumstances of an extremely grave character nor entitle the aggrieved party to have a justifiable sense of being seriously wronged: R v Hatter (2013)
• Limitations on qualify triggers - Despite the restrictive wording used to establish a qualifying trigger, s.55(6) Coroners and Justice Act 2009 provides two further limits as to what may be classed as a qualifying trigger:
• s.55(6)(a) the fact that a thing done or said constituted sexual infidelity is to be disregarded
• s.55(6)(b) A person may not raise a qualifying trigger if they incited the thing done or said or the violence
• Sexual infidelity - The limitation based on sexual infidelity represents a major change from the defence of provocation which was largely seen as an excuse for crimes of passion. This change is based on the view that in a civilised society there can be no excuse for killing due to infidelity
• This provision has already been subject to interpretation by the Court of Appeal: R v Clinton (2012) in this case the defendant was suffering from depression and was taking medication for this. He killed his wife. The day before she had told him that she was having an affair. She had taunted him and they had argued, then he killed her. He was convicted of murder but appealed on the basis that the defence of loss of control should have been left to the jury to decide. The Court of Appeal agreed and quashed his conviction - whilst sexual infidelity alone cannot amount to a qualifying trigger it does not have to be completely disregarded. It could be integral to and form part of other factors which could be qualifying triggers
• In Dawes (2013) the Court of Appeal confirmed that sexual infidelity cannot amount to a qualifying trigger
• Degree of tolerance and self-restraint - s.54(1)(c) requires that a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or similar way. This is a question for the jury to decide
• It replaces the reasonable man test which existed under the law of provocation which attracted widespread criticism and was subject to much conflicting interpretation in the courts culminating in the landmark case of Attorney General for Jersey v Holley (2005)
• Reference to sex and age represents the position with regards to provocation established in DPP v Camplin (1978)
• Problems with the reasonable man test related to the characteristics which could be attributed to the reasonable man. S.54(1)(C) makes explicit reference to just age and sex. However, characteristics may be relevant when assessing the circumstances of the defendant although under s.54(3) circumstances which relate to the defendant's general capacity to exercise tolerance and self-restraint are to be disregarded
• According to R v Clinton (2012), sexual infidelity may be considered when looking at the circumstances under s.54(1)(c) in an appropriate case
• Voluntary intoxication is not a matter to be taken into account when considering the defendant's characteristics
• In Asmelash (2013) the Court of Appeal refused to allow the defendant voluntary intoxication to be considered
• The defence of provocation required some degree of proportionality test in that the jury was required to assess the gravity of the provocation in deciding if a reasonable man would have done as the defendant did.
• The new defence of loss of control does not have such a balancing exercise. The gravity of the provocation, or trigger event, is assessed at stage two and must meet the specified thresholds of either fear of serious violence (s.55(3), extremely grave or seriously wronged (s.55(4))
• There is no requirement that this is weighed against the conduct of the defendant
• Also rather than the jury assessing whether the provocation would have made a reasonable man do as the defendant did, the jury are required to consider if a relevant person might have reacted in the same or similar way. The third element of the defence is thus perhaps more generous to defendants
• R v Duffy
• R v Ahluwalia
• R v Thornton
• Teams notes:
• Where a person kills/is party to a killing, they are NOT to be convicted of murder if:
• The acts or omissions resulted from a loss of self control
• This loss of self control had a 'qualifying trigger'
• A person of D's age and sex, with the normal degree of tolerance and self restraint would have reacted in the same way as the defendant
• What is a loss of self control?
• There is no requirement for it to be 'sudden' and something is not sudden if it is done out of reevenge or there is too much thought/planning/premeditation involved
• R v Ibrams and Gregory (1982)
• A plan to beat up an ex-boyfriend of one of the defendants' girlfriends went too far and the ex was beated to death
• Their defence was that they didn't mean to kill him. They admitted to having planned the attack, but in carrying it out they went too far and killed him. They claimed it was a 'loss of self-control'
• HELD - There was far too much evidence of planning and premeditation for loss of control to operate as a defence
• There must be a 'qualifying trigger' that causes the loss of self control
• Two things can act as a trigger:
• Fear of serious violence from the deceased
• R v Pearson (1992)
• Two sons killed their abusive father
• Things that have been said, or done, or both
• In this case, the circumstances have to be of an 'extremely grave character' and there must be a justifiable sense of the defendant having been wronged
• R v Camplin
• The defendant had been raped and then taunted by the deceased, and as a result he had beaten the rapist to death
• The issue was that the trial judge said that the issue of the defendant's age should nnot be a consideration
• The HoL however said that you cannot apply the 'reasonable man' test without thinking of someone that shared the defendant's gender and age - otherwise any such application of the rest would be meaningless
• On the application of the reasonable man (of the same age and gender of the defendant) test, the court changed the murder verdict to one of manslaughter
• Sometimes both triggers can apply at the same time
• R v Humphreys (1995)
• Taunting over sexual behaviour and an inability to commit suicide was deemed to satisfy both triggers
• NEITHER TRIGGER WILL BE DEEMED TO HAVE OCCURRED IS A LOSS OF SELF CONTROL WAS SELF-INDUCED
• Meaning that you cannot use los of self control if you engineer a situation in which so-called 'trigger words and actions' are said and done, just so you can justify taking revenge

Murder

 Definition

• Common Law offence
• Lord Coke´s definition:
• The unlawful killing of a human being under the Queen's Peace with malice aforethought
• Also requirement that death occur within a year and a day
• What is a human being?
• One who is capable of having an existence independent of their mother
• What is death?
• R v Malcherek and Steel (1981) - brain dead (not defined in statute)

Actus Reus

Unlawful Killing

• Can be an act or an omission
• Gibbins v Proctor (1918)
• Defendant must have caused the death
• Prosecution must prove the defendant's act caused the death
• Must establish causation in BOTH fact and law - referred to as factual and legal causation

Factual Causation

• But for test
• But for the actions of the defendant the victim would not have died as and when they did
• White (1910)
• De minimis rule
• Defendant's actions must have been more than just a minimal cause of the death

Legal Causation

• Thin skull test
• Defendant must take the victim as they find them
• Blaue (1975)
• Chain of causation
• Must be a clear link between the actions of the defendant and the victim's death
• Intervening acts may break the chain of causation
• Pagett (1983)
• Original injury must be an operative and substantial cause of the death
• Negligent medical treatment is rarely sufficient to break the chain of causation
• Smith (1959)
• Cheshire (1991)
• Jordan (1956)
• Switching off a life support machine will not break the chain of causation
• Malcherek (1981)

Mens Rea

• Malice aforethought
• Now known as an intention to kill or intention to cause grievous bodily harm
• Can be either express or implied
• Vickers (1957)
• A person can be guilty of murder even though they did not intend to kill. Vickers broke into a sweet shop, he knew that the owner, an old lady, was deaf, however she came in and saw Vickers, who punched her and kicked her once in the head. Shw died from her injuries. The Court of Appeal upheld Vickers' conviction for murder, where a defendant intends to inflict grievous bodily harm and the victim dies, this is sufficient to imply malice aforethought
• The same point was considered in Cunningham (1981):
• The defendant attacked the victim repeatedly with a chair in a pub. The victim died and the defendant was convicted of murder, his appeal was dismissed by the House of Lords - an intention to cause grievous bodily harm was sufficient for the mens rea for murder
• Moloney (1985)
• Moloney killed his father in a drubken state in an argument involving a discussion about who could load and present a gun quickest. Moloney won.
• The court said that they needed to establish that Moloney actually intended to kill, or had reasonable foresight that playing with the gunds in the way that he did was likely to result in death. The court said that the existence of this foresight was not the same as saying that the defendant intended to kill. It is only evidence that goes towards the larger concept of whether the death was intended. In other words, foresight is only evidence of intention, and is not intention itself
• This case is important because of the Court's distinction between crimes that they said should require 'Specific intent' to commit them, and crimes that only require an underlying or 'basic intent' to commit them
• Specific intent
• Murder
• Wounding or Causing GBH
• Basic intent - a slightly lesser degree of intention required
• Manslaughter
• GBH
• ABH
• Arson

Direct intent

• Defendant desires a result and sets out to achieve it
• R v Steane (1947)
• The defendant was charged after the war with making propaganda films for the Nazis. His defence was that he was forced to, otherwise the Nazis were going to put his family in a concentration camp
• PRINCIPLE - You cannot just assume that because someone did something that they had the full Mens Rea to commit the act. Intention has to be dealt with separately as a stand-alone concept

Indirect/Oblique Intent

• Defendant intends one thing but another result actually occurs as a result of his/her actions
• Hancock and Shankland (1986)
• The defendants were stiking miners. They tried to stop another miner from going to work by pushing a concrete block from a bridge on to the road where he was being driven to work in a taxi. The concrete block hit the car and killed the taxi driver - the defendants were convicted of murder following the Moloney guidelines, but on appeal their convictions were quashed
• In Nedrick (1986) the Court of Appeal thought that the judgments in Moloney and Hancock and Shankland needed to be made clearer
• In Nedrick the defendant had a grudge against a woman, he put parrafin through the letter box of her house and set dire to it, a child died in the fire. The defendant was convicted of murder but the Court of Appeal quashed the conviction and substituted it to manslaughter
• The Court of Appeal laid down two questions in Nedrick which they said would be helpful for a jury to ask themselves:
• How probable was the consequence which resulted from the defendant's voluntary act?
• Did the defendant foresee that consequence?
• Following Nedrick it was necessary for the consequence to be a virtual certainty and for the defendant to have realised that
• This remained the law until the case of Woollin (1998): The House of Lords felt that the two questions in Nedrick were not helpful and the model direction laid down by Lord Lane of virtual certainty should be used
• Woollin (1998)
• The defendant threw his 3 month old baby towards his pram which was near a wall some 3/4 feet away

Indirect/Oblique Intent

• Foresight of consequences
• Moloney (1985)
• Lord Bridge's direction to the jury:
• Was death or really serious injury a natural consequence of the defendant's act?
• Did the defendant foresee that consequence as being a natural result of his act?
• This direction has been criticised:
• Lord Bridge did not refer to the word 'probable' which is in the Criminal Justice Act 1967
• In the case of Matthews and Alleyne (2003) the Court of Appeal held that the judgment in Woollin meant that foresight of consequences is not intention, it is a rule of evidence. If a jury decides that the defendant foresaw death or serious injury as a virtual certainty they are entitled to find intention but they do not have to do so

Coincidence of Actus Reus and Mens Rea

• Actus reus and mens rea need to be present at the same time for the defendant to be successfully convicted
• Thabo Meli v R (1954)
• This case is the authority for the principle of the 'continuing act'
• Where someone sets out with the clear intention of killing the victim, but the victim does not die straight away, the courts see this as a 'transaction' - a series of acts designed to bring about a specific end. THe Actus Reus is deemed to continue until the point of death and it is taken as read that the Mens Rea is also present and continuing throughout
• Church (1965
• A knockout blow of the victim who later drowned after she was thrown into a river being believed to be dead was deemed to again be a transactinal crime. The intention lasted throughout and using Thabo Meli as precedent, the court regarded the punch and the later drowing as part of a series of events designed to bring about a particular end

Reform

• The Law Commission in 2006 published a report. Murder, Manslaughter and Infanticide. The report identified many problems with the existing law on murder:
• The law has developed piecemeal and is not a coherent whole
• A defendant can be convicted of murder even though there was only intention to cause serious harm
• There is no defence available if excessive force is used in self-defence
• The defence of duress is not available as a defence for murder
• The mandatory life sentence does not allow sufficient differentiation in sentencing to cover the different levels of blameworthiness in the current law on murder
• The Law Commission proposed that murder should be reformed by dividing it into two separate offences
• First degree murder
• Second degree murder
• In 2008 the Government responded to these suggestions and rejected the Law Commision's two-tier reform of murder.
• The Government did however pass the Coroners and Justice Act 2009 which allows for a defence of 'loss of control' (this could be used by those who use excessive force in self-defence, such as in the case of Martin (Anthony) (2002) though if this defence is proved successfully the charge of murder will be reduced to manslaughter

Misrepresentation and Economic Duress

 Objectives

• Explain what is meant by misrepresentation
• Understand the types of misrepresentation under common law: fraudulent misrepresentation, innocent misrepresentation, and negligent misrepresentation
• Explain misrepresentation by statute under the Misrepresentation Act 1967
• Understand the meaning of economic duress and its distinction with duress

What is a Misrepresentation?

• A representation is a statement made at the time of the contract being made and can be incorporated into the contract
• If the representation is falsely made, however, it can be a misrepresentation and can cause the contract to be voidable
• Legal Definition:
• A misrepresentation is a statement of material fact, made by one party to the other party, during the negotiations leading up to the formation of the contract, which was intended to operate and did operate as an inducement to the other party to enter the contract, but which was not intended to be a binding obligation under the contract, and which was untrue or incorrectly stated
• Key cases:
• Bisset v Wilkinson (1927)
• A statement by someone trying to sell land in New Zealand for raising sheep, that the land was capable of supporting two thousand sheep was deemed, on the facts, to be no more than an opinion. Both men knew that up to that point the land had not been used for sheep farming, therefore any representation was never going to be founded on fact but was more likely to be an opinion
• Edgington v Fitzmaurice (1885)
• An invitation to invest in a company by granting loans in it (debentures) was stated to be for the growth of the business, specifically for improving property and extending the investment portfolio that the business could offer. When this turned out to be an exercise in raising money simply to pay off debts, this was seen as a misrepresentation
• Peyman v Lanjani (1985)
• A lease between persons A and B stated that person A could not sublet to another without person B's consent. This is exactly what happened however, and person C was told by person A that he was fully authorised to sublet, when he wasn't
• HELD - Straightforward fraudulent misrepresentation - the original landlord's permission for the original lease was based on a fraud
• Roscorla v Thomas (1842)
• Oral statement as to the suitability of a horse was not part of the contract and had in fact been made post-contract. It had not therefore been a misleading statement that would allow a remedy for misrep
• JEB Fasteners Ltd v Marks Bloom & Co Ltd (1983)
• The claimants wanted to buy a business in order to secure the services of two directors of the business. The claimant had got wind of the fact that the business was in a precarious financial state, so they asked Bloom and Co to check the accounts of the business as a result.
• The defendants passed the accounts as healthy when they weren't . The claimants said that they had relied upon Bloom to check the figures and had acted to their detriment by buying a failing business
• HELD - not the case. There was ample evidence that the claimants were going to buy the business anyway because they wanted to employ the two directors. No reliance was therefore proven
• Attwood v Small (1838)
• The claimant's own investigations as to the profitability of a mine that they purchased painted a positive picture. BUT - it meant that they had not relied on the defendant's own representations to that effect, and hence could not sue them for misrep
• Couchman v Hill (1947)
• A sales catalogue for an animal auction stated that a heifer for sale had not been mated with a bull, and this had been confirmed by the auctioneer and the defendant
• It turned out to be wrong - the heifer gave birth to a calf and then died. The CoA said that as a result of the statements that the claimant clearly relied on, he could recover damages - the sales catalogue AND the oral representation were part and parcel of the same contract, because both had been consulted by the claimant pre-contract

Fraudulent Misrepresentation

• Where fraudulent misrepresentation is alleged, fraud must also be proved
• Derry v Peak (1889) - if a person makes a false statement which he or she does not believe to be true at the time, this is a fraudulent misrepresentation. The claimant will then sue for damages under the tort of deceit:
• The claimant was mistaken as to whether he had permission for his business to run horse drawn AND steam trams along the sea front in Plymouth - the permission was supposedly given under an Act of Parliament AND came from the Minister of the Board of Trae. Neither was correct
• This meant that the investors in the business lost money because the company wasn't as valuable as it would have been had the statement been true
• HELD - on the facts, this was not a deliberate and therefore not a fraudulent misrepresentation. There was no tort of deceit
• HOWEVER - the HoL decided to clarify when fraudulent misrepresentation would arise, and they gave a three step test
• To be fraudulent, a statement must be:
• Given knowingly
• Without belief in its truth
• Reckless as to whether it is true or not
• The damages will then be awarded according to the tort of deceit and are also available under s2(1) Misrepresentation Act 1967. The equitable remedy of recission is also available. The defendant is responsible for all losses including any consequential loss providing a causal link between the fraudulent misrepresentation and the claimant's loss
• Under the Misrepresentation Act 1967 the responsibility of proving the statement was true now shifts to the defendant

Negligent Misrepresentation

• Hedley Byrne v Heller & Partners (1964) - damages may be recovered for a negligent misrepresentation where a financial loss has been incurred and where there is a special relationship between the parties
• Hedley Byrne needed a credit reference for a business on whose behalf it contracted for work The defendants, a bank, said that the business was in good financial health. Hedley Byrne relied on this and then incurred about £100,000 worth of work for which they were responsible
• They sued Heller Bank saying that they had relied on a professional opinion which was wrong, and had suffered loss as a result
• HELD - sadly in this case, because the claimants had signed a contract with the defendants that contained an exclusion clause denying all responsibility for the inaccuracy of any statement they made, the defendants were not liable
• BUT that need not be the case in the future. In an obiter statement the HoL said that there CAN be liability for negligent misrepresentation on normal tort principles, where a duty of care exists, if there is a special relationship between the parties
• Three requirements:
• The party making the statement must be in possession of the particular type of knowledge for which the advice is required
• There must be sufficient proximity between the two parties that it is reasonable to rely on the statement
• The party to whom the statement is made does rely on the statement and the party making the statement is aware of that reliance
• Damages will be applied according to the standard tort measure of negligence or under s2(1) of the Misrepresentation Act 1967. The equitable remedy of recission is also available
• The court says that if the misrepresentation is proved, then you can claim damages as if it were a Tort situation...meaning that potentially damages could be whatever financial cost flows from the misrepresentation
• Section 2(1) of the Misrepresentation Act 1967 shifts the burden of responsibility for proving that the statement was not wrong/misleading onto the defendant (the statement maker)
• If you prove your claim under the Act, your rights are rescission (ending the contract) and damages - this means that you could sue under the Tort of deceit for damages, which will allow you to claim consequential loss rather than just what a contract promised
• Esso Petroleum Co Ltd v Mardon (1976)
• In the context of the sale of the lease of a petrol station by Esso, one of their reps stated that the garage was capable of selling 200,000 gallons of petrol per year
• This proved to be wildly inaccurate and the defendant lost money
• HELD - under Hedley Byrne, the defendant WAS entitled to rely on Esso's rep's statement about the petrol sales...and he could claim damages on a tort basis

Innocent Misrepresentation

• Any misrepresentation not made fraudulently was historically classed as an innocent misrepresentation regardless of how it was made
• Since the emergence of the Hedley Byrne principle and the passing of the Misrepresentation Act 1967, the only misrepresentations that can be claimed to be made innocently are those where a party makes a statement with an honest belief in its truth - for example, where the party merely repeats innacurate information, the truth of which they are unaware
• The main remedy for innocent representation is the equitable remedy of rescission: that is to void the contract as if it never happened. Damages are also available under s2(1) Misrepresentation Act 1967

Misrepresentation Under Statute

• S2(1) Misrepresentation Act 1967
• "Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently unless he proves that he had reasonable grounds to believe and did believe up to the time the contract was made that the facts represented were true"
• In other words, a party who has been a victim of misrepresentation has an action available without having to prove either fraud or the existence of a special relationship under the Hedley Byrne criteria. The burden of proof is reversed so that the person making the statement has to prove that they were not negligent
• Key cases:
• Howard Marine and Dredging Co Ltd v A Ogden and Sons (Evacuations) Ltd (1978)
• Spice Girls Ltd v Aprilla World Service (2002)
• Under s2(2) Misrepresentation Act 1967 the judge has the discretion of which remedy to apply. Recission will not therefore be available if the judge has decided that damages is a more appropriate remedy

Economic Duress

• A contract may be set aside because extreme coercion has rendered the contract otherwise commercially unviable
• Five conditions need to be satisfied in order for there to be a finding of duress
• Pressure was exerted on the contracting party - North Ocean Shipping Co v Hyundai Construction Co (1979) [The Atlantic Baron]
• The pressure was illegitimate - Atlas Express Ltd v Kafco (Importers and Distributors) Ltd (1989)
• The pressure induced the claimant to enter the contract - Barton v Armstrong (1975)
• The claimant had no choice but to enter the contract - Universe Tankships v International Transport Workers' Federation (1983)
• The claimant protested at the time or shortly after the contract was made - North Ocean Shipping Co v Hyundai Contruction Co (1979) [The Atlantic Baron]

Express and Implied Contract Terms (and UCTA)

 Objectives

• Explain the difference between representation and terms
• Explain the concept of express terms
• Understand implied terms, including those implied by fact and statute
• Explain the incorporation of exclusion clauses and the provisions of the Unfair Contract Terms Act 1977
• Explain other terms, including conditions, warranties and innominate terms

Terms

• The terms of a contract set out the obligations on the parties under the agreement
• Terms can be express, which are laid down by the parties themselves, or implied, which means that terms are assumed by the courts or by statute
• Terms can also be classified according to their importance: conditions, warranties and innominate terms
• Terms should be distinguished from mere representations, which have no liability attached to them because they have just induced a party to enter into the contract
• However, if a representation has been false and has wrongly induced the other party to enter the contract, then this is a misrepresentation and will attach liability
• Terms should also be distinguished from mere opinions, which have no liability attached to them either. The other party's opinion is no more valid than our own and we cannot rely on it
• However, if an opinion has come from an expert, we are entitled to rely on it and so the opinion of experts are said to attach liability

Importance of Terms

Conditions

• A condition is a term of a contract that is so important to the contract that a failure to perform the condition would render the contract meaningless
• If a condition has been breached, then the claimant is entitled to the fullest range of remedies - damages or repudiation (or both)
• Any term implied by statute is also regarded as a condition, in terms of the effect of its breach
• Cases:
• Poussard v Spiers and Pond (1876)
• The Mihalis Angelos (1970)
• Bunge Corp v Tradax Export SA (1981)

Warranties

• A warranty is a term of a contract that is minor
• If a warranty has been breached, the injured party can sue for damages, but not repudiation
• Warranties are regarded as obligations that are secondary to the major purpose of the contract
• Case
• Bettini v Gye

Innominate Terms

• An innominate term is a term of a contract, which cannot be identified as either warranties or conditions, and so are identified as innominate until the contract has been breached
• The idea is that a contract will only be repudiated in the event of a breach if it is fair to both sides
• It is uncertain what the remedy will be until the extent of the breach has been considered and the judge declares the appropriate remedy
• Cases
• Hong Kong Fir Shipping Co Ltd v Kawasaki Ltd (1962)
• Schuler AG v Wickman Machine Tool Sales Ltd (1973)
• Reardon Smith Line v Hansen Tangen (1976)

Express Terms

• In order to be a term of the contract, the statement must be incorportated. This is usually straightforward where a contract is in writing as the terms are the ones that are written in the document
• The importance attached to the representation - Bannerman v White (1861)
• Special knowledge or skill - Oscar Chess Ltd v Williams
• Timing of the statement - Routeledge v McKay (1954)
• Agreements in writing - Routeledge v McKay (1954)

Implied Terms

Terms Implied by Fact

• These are terms which are not laid down in the contract, but which it is assumed both parties would have intended to include if they had thought about it
• Equitable Life Assurance Society v Hyman (2000)
• The courts will consider whether the proposed term would be:
• Reasonable and equitable
• Capable of clear expression
• Compatible with any express terms of the contract
• So obvious that it "goes without saying" (officious bystander test)
• Necessary to give the contract business efficacy (the business efficacy test)
• Officious bystander test: Shirlaw v Southern Foundries (1926)
• Business efficacy test: The Moorcock (1889)
• There has also been further guidelines set out in BP Refinery Property Ltd v Shire of Hastings (1978)

Terms Implied in Law

• These are terms which the law says have to be included, irrespective of the wishes of the parties
• Liverpool City Council v Irwin (1977)
• A landlord who lets property containing several homes in one building is under an implied obligation to provide proper access to the individual homes
• There are also other terms implied in such contracts as employment contracts:
• Spring v Guardian Assurance PLC (1994)
• Malik v Bank of Credit and Commerce International (1997)

Consumer Rights Act 2015

SS9-11: Supply of Goods

• Replaced the Sale of Goods Act 1979, The Unfair Terms in Consumer Contract Regulations 1999 and the Supply of Goods and Services Act 1982
• All goods should be:
• s9 - of satisfactory quality - not faulty or damaged - this is judged by what a reasonable person would consider satisfactory
• s10 - Fit for purpose - should be fit for the purpose they are supplied for as well as any specific purpose made known to the retailer
• s11 - as described - must match any description, models or samples shown at the time of purchase
• Note: "goods" also includes digital content, such as downloads, software and pre installed content

S20, S23: Bringing a Claim

• You must bring the claim against the retailer, not the manufacturer
• Date of purchase
• s20 gives the consumer a legal right to reject goods that are of unsatisfactory quality, unfit for purpose or not as described to get a full refund, but this is limited to within 30 days of purchase
• 30 days
• s23 provides that you have to give the retailer one opportunity to repair or replace any goods if you are outside the 30 days. If the attempt to repair is unsuccessful you can then claim a refund or a price reduction
• 6 months
• If a fault is discovered within six months of purchase it is presumed to have been there since the purchase, unless the retailer can prove otherwise
• If the fault is discovered after six months, the burden is on the consumer to prove that the product was faulty at the time of delivery. You hace six years to take a claim to the small claims court

S28: Delivery

• The retailer is responsible for the goods until they are in the possession of the consumer - this means they are liable for the service provided by the couriers they employ
• If a retailer fails to deliver within 30 days, you have the right to terminate the purchase and get a full refund, even if the timing of the delivery was not essential

SS49-52: Supply of Services

• This includes services for dry cleaning, entertainment, work done by professionals (solicitors, estate agents, accountants), building work, fitted kitchens, double glazing and home improvements
• All contracts for services must do the following
• s49 - the trader must perform the service with reasonable care and skill
• s50 - information that is said or written is binding where the consumer relies on it
• s51 - where the price is not agreed beforehand, the service must be provided for a reasonable price
• s52 - unless a time scale has been agreed, the service must be carried out within a reasonable time

S55, S56: Bringing a Claim

• You must bring the claim against the trader
• If the service does not satisfy the criteria:
• s55 - the trader should either redo the element which is inadequate or perform the whole service again at no extra cost
• s56 - where repeat performance is not possible, the consumer can claim a price reduction. This could be up to 100% of the cost and the trader should refund the consumer within 14 days of agreeing that a refund is due

S62: Unfair Contract Terms

• An unfair term under the Act is not binding on the consumer. If a consumer thinks a term is unfair, they should complain to the trader
• Key terms of a contract may be assessed for fairness, unless they are prominent and transparent
• Examples of unfair terms under the Act include:
• fees and charges hidden in the small print
• something that tries to limit the consumer's legal rights
• disproportionate defauly charges
• excessive early termination charges

Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

• This Act covers shopping online and brings into force the Consumer Rights Directive from the EU. It also supersedes the Distance Selling Regulations
• It requires traders to give certain information before entering into a contract
• The Act covers all contracts entered into after 13 June 2014
• It covers the sale of goods online, over the phone, from a catalogue or face to face somewhere that is not the business premises of the trader (e.g your home)
• Key information which a trader must provide:
• A description of the goods, services or digital conent or the manner in which the price will be calculated
• How the consumer will pay for the goods or services and when they will be provided
• All additional delivery charges and other costs
• Details of who pays the cost of returning items if there is a right to cancel
• Details of any right to cancel - the trader also needs to provide, or make available a standard cancellation form to make cancelling easy
• Information about the seller, including their geographical address and contact details and the address and identity of any other trader for whom the trader is acting
• Information on the compatibility of digital content with hardware and other software that the trader is aware of
• Canceling goods or services
• Cancellation rights under the Act are more generous than if you bought goods or services from a shop
• Your right to cancel starts the moment the consumer places their order and ends 14 days from the day the goods are received
• There is then a further 14 days to actually send the goods back
• The trader then has another further 14 days to give a refund from the date they receive the goods or the consumer providing evidence of having returned to the goods
• The exceptions to the rules on cancellations are for:
• CDs, DVDs, or software if the seal has been broken on the wrapping
• Perishable items
• Tailor-made or personalised items
• Canceling services - the consumer has 14 days to cancel, though they may have to pay for any service they have used up to the point of cancellation
• Canceling digital content - the consumer must acknowledge that once a download has started, they will lose their right to cancel. Retailers must not supply digital content within the 14 day cancellation period unless the consumer has given their consent

Exclusion Clauses

• The courts have found two ways to regulate exclusion clauses:
• Has the clause been incorporated into the contract? This can be done in three ways:
• By signature
• Reasonable notice
• Previous course of dealing
• Does the clause cover the alleged breach?

Common Law Controls: Incorporation

• By signature - if a document is signed at the time of making the contract, its contents become terms of that contract, regardless of whether they have been read and understood:
• L'Estrange v Graucob (1934)
• By reasonable notice - if separate written terms are presented, those terms only become part of the contract if it can be said that the recipient had reasonable notice of them:
• Parker v South Eastern Railway (1877)
• Previous course of dealing - if two parties have previously made a series of contracts between them, and those contracts contained an exemption clause, that clause may also apply to a subsequent transaction, even if the usual steps to incorporate the clause had not been taken:
• Spurling v Bradshaw (1956)

The Unfair Contract Terms Act 1977

• This is an Act that imposes limitations on exemption clauses and controls the use of clauses excluding or limiting liability for breach of a contract where one of the parties is a consumer
• s12 - a party is "dealing as a consumer" when they are not making the contract in the course of a business. Thus, a contract between two consumers is not dealt with by the Act
• The Act does not apply to contracts concerning land, employment, intellectual property, or contracts concerning insurance

Provisions of the Act

• s2 - Liability for negligence - Liability for death or personal injury resulting from negligence cannot be excluded - any clause which attempts to do this will be rendered ineffective
• s3 - Liability for non-performance - applied where there exists a standard form contract. The provisions are subject to the reasonableness test in s11 and provide restrictions on the ability to:
• Exclude or restrict liability for breach of contract
• Provide substantially different performance to that reasonably expected
• Provide no performance at all
• This only applies to 'standard term contracts' - contracts with terms in them that are not negotiated, and which are in the contract because they have been taken from somewhere else and inserted into this one
• AND a standard term contract that tries to limit liability for non-partial completion of a contract must be 'reasonable'
• s6 - Exclusion if liability in contracts for the sale of goods - clauses that are implied by statute such as those in the Consumer Rights Act 2015 cannot be excluded
• s11 - Test of reasonableness:
• the court should ask itself whether the term in question is a "fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made"
• Schedule 2 provides the factors for the court to consider in applying the reasonableness test. The factors are:
• The strength of the bargaining positions of the parties taking into account alternative suppliers available to the purchaser
• Whether the customer received an inducement to accept the term - for example, whether they were given the opportunity to pay a higher price without the exclusion clause
• Whether the customer knew or ought to have known of the term and whether such terms are in general use in a particular trade
• Where exclusion relates to non-performance of a condition whether it was reasonably practicable to comply with the condition
• Whether the goods were made or adapted to the special order of the customer
• Key cases
• George Mitchell Ltd v Finney Lock Seeds Ltd (1983)
• Claimant had bought cabbage seeds with the intention of planting 63 acres worth. The seed turned out to be of poor quality and so the cabbages were unsellable
• The issue was a clause in the contract for sale that said that the sellers, Finney Lock seeds, were limited in terms of liability to the replacement of the seed itself and not for consequential loss
• HELD - it was entirely foreseeable that inferior seed would have a knock-on effect on the claimant, causing them to suffer economic loss in terms of the lost sale of the cabbages
• This is a consumer/business relationship. The 1977 UCTA applied, and the issue of reasonableness under section 11 is relevant
• HELD - the clause was therefore not reasonable. The concept of damages in contract law was such that the innocent party is meant to be placed in the position they would and should have been in had the contract been properly performed
• In cases like Hadley v Baxendale and Caparo v Dickman, losses, to be recoverable, must be foreseeable and flow directly from the breach in terms of causation
• In this case, the exclusion clause was unreasonable and therefore could not apply
• Granville Oil and Chemicals Ltd v Davies Turner and Co Ltd (2003)
• The claimants contracted to buy some paint from the defendants. The paint had to be shipped from Kuwait in the Middle East, and the contract contained a 'time clause', giving the claimant 9 months from the date of purchase to raise a complaint about the quality/suitability of the paint
• As a result of factors like shipping times and the length of time that faults in the paint might become apparent, the Court said that 9 months was too short and fell foul of the reasonableness requirement of s.11 UCTA
• HELD - 9 month limitation period too restrictive under s.11 UCTA and was therefore void
• Britvic Soft Drinks Ltd v Messer UK Ltd (2002)
• The defendants tried to say that an element of Benzine present in the carbon dioxide that they provided to the claimants was so small, that it did not infringe the claimant's rights to a product of satisfactory quality under the Sale of Goods Act 1979. (The SGA was the predecessor of the Consumer Rights Act 2015 that guaranteed certain consumer rights to people dealing as consumers in the course of a business)
• HELD - this was not the case. The contract could not exclude the claimant's right to a product of satisfactory quality given by law...and as re-stated under Section 6 of UCTA
• Photo Production v Securicor (1980)
• A clause in a contract denying responsibility for damage howsoever caused by their employees was deemed to be effective. It excluded liability for the defendants for the reckless act of their employee in building a fire and causing extensive damage to the claimant's factory. The issue was not that the employee's act amounted to a fundamental breach of contract, it was whether the exclusion clause was valid and covered the breach that occurred
• The HoL said that it did, and that since the claimants had signed the contract, they were bound by it

Remedies in Tort

 The Main Remedies

• The main remedies for tort are:
• Damages - the aim is to put the injured party in the same position as they would have been in if the tort had not occurred. Damages are the main remedy for tort
• Injunctions - this is a court order instructing a party to do or refrain from doing something. In tort, injunctions are mostly used in cases of nuisance

Mitigation of Loss

• A claimant who had suffered a loss as a result of a tort is entitled to damages for any losses
• However, the claimant is expected to take reasonable steps to mitigate any losses
• Unnecessary losses on an objective scale will be deducted
• The Flying Fish
• I have a ship called the Flying Fish. Another vessel negligently collides with my ship causing damage. I refuse any offer of aid after the collision. My ship sinks. Can I make a claim against the other vessel for the sinking of my ship?
• If my refusal of aid is regarded as negligent, I can only recover the damage caused by the collision and not the sinking of my ship
• Ronan v Sainsbury's (2006)
• Claimant injured at work due to the defendant's negligence. The injuries were so bad that surgery couldn't fix it. His injuries meant that he couldn't stay in his banking job (after he left the defendant's employment)
• As a result, he decided to go to university and after a year his condition improved to the point that he would've been able to return to his original job at Sainsbury's
• The defendants argued that proper mitigation of loss would have required the claimant to resume his old job with them and drop out of uni
• HELD - No lol. This was unreasonable because he only decided to go to university because of the injuries caused by the defendant

Damages

• The premise of damages is the same as in contract - where the point is to put the person in the position they would have been in had the tort not occurred (had the contract been properly performed) - the phrase for this in tort is 'restitutio in integrum'

Calculating the Loss that Translates to Damages

• South Australia Asset Management Corporation v York Montague Ltd (1996)
• Property had been valued at a certain price but after the loans were made, using these properties as security, the values of the properties fella and the borrowers defaulted in their loans
• The HoL said that when calculating damages for a breach of duty of care, you need to first determine what the exact nature of the duty was
• Courts held that if the defendants had advised the claimants whether or not to actually make a loan, they would have been liable for all of the losses that arose, but as the losses only stemmed from a negligent evaluation, the defendants were only liable for losses stemming from said negligence
• Principle - a defendant will only be liable for the consequences arising from negligent performance of a duty - taking into account things like foreseeability and remoteness of loss

Compensating for Property Damage

• If a property is completely destroyed, the defendant has to pay the cost of completely replacing the house
• If the house is only damaged so far as property is concerned, the damages will be the cost of repair AND the amount by which the house has fallen in value
• The defendant will also be liable for consequential losses on the basis discussed in Caparo
• Simple economic losses could be, in the case of a car accident, the cost of hiring a replacement vehicle while your own is in the garage

Types of Damages Payable

• The main categories of damages payable for tort are:
• General damages
• Special damages
• Nominal damages
• Contemptuous damages
• Aggravated damages
• Exemplary damages

General and Special Damages

• General damages: these are damages which are not capable of being calculated before the trial and the court has to calculate them. For instance, loss of future earning and for pain and suffering
• Giambrone v JMC Holidays (2002)
• Mass food poisoning at a resort in Majorca
• ISSUE - what value do you place on care?
• Defendant said that awarding a sum for parental care is unfair because they should do it anyway
• HELD - damages payable because of the extent of the poisoning as the children needed extra care
• Special damages: these are damages which are capable of being calculated at the time of the trial. For instance, loss of earnings and medical expenses before trial

Pecuniary Losses

• Pre-trial expenses - actually and reasonably incurred since the date of the accident and up to the date of the trial. Loss of expenses, damage to clothing and belongings and especially medical costs. The medical costs can even be homeopathic in nature and slightly out of the mainstream, such as acupuncture

Expenses Incurred on Your Behalf by Another

• Donnelly v Joyce (1973)
• Issue - can a child recover lost earnings forfeited by a parent in order to stay home and care for them?
• Yes. These losses are directly consequential and stemmed directly from the accident
• Hunt v Severs (1994)
• Following the negligence of the defendant, the claimant was allowed to recover the cost of care that she would have had to pay for, despite the fact that the claimant had married the defendant, who had provided the care for her
• Court said not allowing her to recover the cost of care would be unfair and against public policy

Other Losses

• Loss of opportunity/chance, including future earnings that would have been earned up to the date of judgment

Future Loss of Earnings

• Typically calculated by reference to a calculation that takes account of how long a claimant is likely to live, and what they would have earned over that time had the negligence not occurred
• Sometimes when this is calculated for a whole life term, the courts often come up with a figure that will allow the claimant to buy an annuity - a financial package that pays an amount on a monthly/annual basis
• The courts will also make an allowance for the fact that the claimant's prospects may well have improved but for the accident, as seen in Doyle v Wallace. This is called a multiplicand 
• Doyle v Wallace
• Court had to decide calculation for future loss of chance of a careworker who had been about to commence training as a teacher
• Court agreed that it had to try to be realistic and apply a 'discount rate'
• Smith v Manchester - future lost earnings is an accepted head of loss, as is loss of chance in monetary and career terms

Calculating Lost Years

• The courts have to make this estimate, which is usually an attempt to work out how long the defendant would have lived had the accident not occurred, with a view to working out what their earnings would be for that period:
• Pickett v British Rail (1978)
• established the principle that damages for lost years could include a sum to cover loss of earnings in that period, whatever the age of the claimant.
• Hall v Rankin (2000)
• Courts said it is possible to increase damages to take allowances of the fact a claimant might be on a no win no fee arrangement and would therefore need to pay out a success fee to their lawyer when they won the claim

Other Heads of Loss

• Pain and suffering - resulting from the injury itself and/or from the medical treatment
• Loss of amenity - the right to enjoy sport, the loss of smell, sight, touch, even a reduction in the chance of finding a marriage partner. Considerable sums have been allowed for the loss of a sex life

Actual Payments

• Lump sums can be paid in one go, or bit by bit as an interim payment. Also the court might allow a sum to represent the effect of injuries not known at the date of the trial...especially important when you are dealing with asbestos claims
• Social security payments are always deducted from damages
• It may also be the case that the right to sue for damages can be passed down to someone who will inherit from your estate

Nominal Damages

• These damages are awarded when there has been little or no harm caused and the court wishes to award a very small amount - often £20
• They are only used for torts which are actionable per se
• A tort 'actionable per se' is a tort which does not require proof of damage to be actionable. This means that damages are payable just because the tort has happened. Defamation and trespass are two torts which are actionable per se

Contemptuous Damages

• These damages are awarded when the level of harm has been low and the court believes that an action should not have been taken even though the defendant has been liable under tort. These damages can be as low as one penny
• Unlike nominal damages, they can be awarded for any tort

Aggravated Damages and Exemplary Damages

• Aggravated damages: these are damages awarded over and above that needed to put the claimant back in the position that they would have been in had the tort not occurred. They represent an additional sum of money because the initial harm was made worse because of some aggravating factor. They are mostly awarded in cases of defamation and trespass to the person
• Khodarapast v Shad (1999)
• Aggravated damages were deemed appropriate because of the defendant's false rumour-mongering about the immoral conduct of his ex-partner - which involved photoshopping her facial image on top of pornographic images etc
• Rowlands v CC of Merseyside (2006)
• A claim involving wrongful arrest, as well as pain and discomfort caused by handcuffs being placed upon the claimant, not to mention the shame of being arrested in front of her children and family
• Aggravated damages were payable
• Exemplary damages: these are sometimes called 'punitive damages'. These are damages whose purpose is to punish the defendant for committing the tort. They are only awarded in certain circumstances and are meant to punish the defendant, as well as deter others from committing the same offence
• Rookes v Barnard (1964)
• This case is important because when it was heard on appeal in the House of Lords, Lord Devlin explained the purpose of exemplary damages and the circumstances when they could be awarded
• Lord Devlin: "Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter"
• He identified three circumstances when exemplary damages could be imposed:
• Oppressive, arbitrary or unconstitutional action by the servants of the government
• Where the defendant's conduct was calculated by him to make a profit by himself which may well exceed the compensation payable to the claimant
• Where a statute authorises the paying of exemplary damages
• Some argue that exemplary damages should not be allowed because the purpose of civil law is not to punish. Punishment, it is argued, should be the purpose of the criminal law

Statutory Authorisation

• There are no cases yet that demonstrate how this will work, but there is obviously an onus on businesses to demonstrate that they have not used this power wrongly or disproportionately

Conduct Designed to Make a Profit

• Axa Insurance v Financial Claims Solutions Ltd (2018)
• Axa successfully sued the defendant for submitting fake insurance claims, but they were only awarded standard compensation. They argued that they should have received exemplary damages and the CoA agreed, simply because the fraud was so sophisticated that it involved fraud and deceit from the very outset, and their behaviour needed to be punished
• Casell & Co Ltd v Broome (1972)
• Claimant was a retired captain in the navy who had taken part in a naval campaign in the high Arctic in Russia which resulted in the loss of many ships - it was one of the heaviest defeats in WWII and it was implied by the defendant that the claimant had failed to distinguish himself in battle 
• The claimant successfully sued in libel and was awarded £25k in exemplary damages - because the defendant would have made a sizeable profit from the sale of the book

Oppressive Conduct by Government Servants

• This is a reference to behaviour that falls short of what is expected by the state who employs them. The obvious example is the police
• Huckle v Money (1763)
• The claimant was detained under a search warrant. He was detained for 6 hours but was otherwise well treated. Even so, the court awarded £300 exemplary damages stating that entering a person's home with a warrant didn't even have his name on it was a serious breach of the claimant's civil liberties
• Muuse v Secretary of Stare for the Home Department (2010)
• A Somalian man had been unlawfully detained because he was deemed not to have a right to remain - even though there was strong evidence (namely his passport) that he was an EU citizen (Dutch). He was mistreated and detained illegally
• CoA stated that exemplary damages were justifiable in order to show strong disapproval of the official's behaviour
• John v Mirror Group Newspapers (1995)
• The jury were told that exemplary damages could only be made if the publisher of a defamatory statement had no genuine belief that the published info was true
• Thompson v Met Police Commissioner (1997)
• Juries can be told that they can award a sum designed to punish the defendant. This might be from £5000 to £50,000 where officers of at least the rank of superintendent were directly involved
• It is presently uncertain whether exemplary damages will continue to be awarded since not all the courts agree with it in principle, but it does seem the case that where the behaviour of the defendant is really bad on an objective standard - then exemplary damages will continue to be awarded

Problems With Damages

• Cost
• this has been highlighted with the popularity of no win no fee agreements - where the winner takes a success fee
• These days the position has improved for defendants who now only need to make what the courts call 'damages based assessments' where they only take the case on for a percentage of the damages awarded when the claim succeeds. These are called contingency fee agreements
• The CPR states that a lawyer cannot take more than 25% BUT - the winners are now able to recover an automatic 10% on top of that to make up for the fact that claimants are now no longer able to recover the legal expenses insurance premium from the defendants... and if the claimants lose, the position is now that they no longer need to pay their opponent's costs
• Still, damages remain expensive and the role of insurance for losing defendants is obviously important (and sometimes not cheap)
• The complaint about the present system is that it does mean less compensation is payable to the successful claimants
• Lump Sums
• Payment of a lump sum sometimes has the disadvantage of not covering the injury and the losses that the claimant has suffered. Sometimes injuries deteriorate even further in a way not anticipated by the court
• Also, it is sometimes quite hard when assessing loss of earnings and loss of opportunity and chance - given the claimant's present state of employment
• Inflation is another factor
• There is sometimes a concern that the lump sum awarded by the court will be used inappropriately such that the claimant's accident-related losses are not addressed by them
• The courts therefore have a new power to award a structured settlement that means a lump sum is not awarded all in one go
• Do the damages actually reflect the degree of fault of the parties?
• The idea of damages is obviously to compensate the claimant rather than punish the defendant, so sometimes what happens is that the damages that cover losses may only have arisen as a result of one defendant making a momentary mistake, and in terms of fault may be the same as a defendant who is much more seriously careless
• Loss of Amenity
• It is not always easy to calculate a sum that reflects this - amenity being the ability in future of someone to do something - e.g getting married or going to the gym
• The Law Commission is unhappy with how the Courts address this since there is a risk of over-compensation of claimants who might recover more quickly than the evidence suggested at trial
• Damaged for Bereavement
• Are possible but much doubt remains over the amounts and even when someone should be awarded this, does it attach to anyone who knew the deceased as well as obvious relations such as spouses?

Injunctions

• An injunction is a court order that requires the defendant to behave in a certain way
• Injunctions can take two forms:
• Prohibitory injunctions: these instruct the defendant to not behave in a certain way, i.e to stop committing the tort
• Mandatory injunctions: these instruct the defendant to take an action to rectify the situation created by the tort. They are rarely granted in tort actions
• Injunctions tend not to be used for torts such as negligence or occupier's liability
• Injunctions are mostly used for the torts of nuisance, trespass to land and defamation
• The court laid down some guidelines on when mandatory injunctions should be awarded, in a case called Redland Bricks v Morris (1970)
• Redland Bricks v Morris (1970)
• Building work carried out by the defendants undermined the claimant's land. The claimants were awarded damages and also a mandatory injunction ordering the defendants to pay for support work. This work was very costly and amounted to more than the value of the claimant's land itself, so the defendants appealed against it
• HoL held - appeal allowed. This is disproportionate and the claimants should have been limited to compensation only for the damage caused
• They said that in the future, a mandatory injunction would only be granted where:
• damages would not be adequate to remedy the harm done to the claimant
• also, the expense associated with and flowing from a mandatory injunction is not a reason not to award it - particularly where the defendant has acted dishonestly

Quia Timet Injunction

• This is an injunction which is obtained prior to the commission of a tort
• Quia timet is Latin for 'because he fears'
• The circumstances when a quia timet may be granted was stated in Fletcher v Bealey (1884): the danger must be imminent, the potential damage must be substantial and the only way the claimant can protect himself is through a quia timet

Interim Injunction

• This is also known as an interlocutory injunction and may be granted once an action has begun but before the main court hearing. The injunction will instruct the defendant to not behave in a certain way
• Designed to stop any further harm happening to the claimant and/or their property in the period between the start of legal proceedings and the date of trial
• If you are awarded an injunction at trial, then this is typically something that the defendant needs to do in perpetuity - or until a specified time period runs out
• The conditions for granting an interim injunction was stated in American Cyanamid v Ethicon (1975). They are:
• There must be a serious issue to be tried
• The 'balance of convenience' must favour the granting of the injunction - if there is no imbalance then no injunction should be issued so as to preserve the status quo
• (Basically - the court will not grant an injunction if damages are adequate to cover the losses suffered)
• An interim injunction is only granted if the claimant undertakes to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the claimant had not been entitled to restrain the defendant from doing what he was threatening to do. However, these damages may not be adequate compensation if the defendant is made to stop doing something. The courts must try to balance the need for the injunctions against the effects on the defendant

Damages in Lieu of Injunctions

• The court has discretion to order damages instead of an injunction when one is requested
• Shelfer v City of London Electric Lighting Co (1895)
• Established key rules as to when damages ought to be considered in lieu of an injunction:
• When the injury to the claimant's legal rights is small
• Where the loss is capable of being calculated in money terms
• Where the loss is capable of adequate compensation in money terms (where a sum will cover the losses incurred)
• It would simply be oppressive to award an injunction
• Daniells v Mendonca (1999)
• The defendant built an extension to his house that encroached on the claimant's land and also posed a fire risk. The legal issues were of trespass and breach of statute (planning) which required the claimant to be fully informed as a neighbour of proposed works
• Defendant said this case was perfectly capable of being settled by damages and that an injunction would be inappropriate, but the courts disagreed, and in applying Shelfer awarded the injunction because:
• The damage was small but permanent
• The defendant was actually planning more worjds
• There was the structural and potential fire risk
• The defendant had been less than honest in his behaviour throughout
• Defendant had also failed to comply with the relevant Act
• Jacklin v CC of West Yorkshire
• A police force that was having building works done had obstructed a driveway used by the claimant to access his property
• Claimant applied to court for an injunction to get it removed
• Action for damages was in nuisance. The injunction was in addition to the nuisance action, and the police said an injunction was oppressive
• HELD - because of the defendant's behaviour (they made no attempt to clear the driveway) the court decided that it was not oppressive or unfair for the claimant to be granted the injunction
• Regan v Paul Properties
• A claimant whose neighbour had constructed a building that was cutting off light to his building applied for an injunction for the building works to not only cease, but for what had been already built to be pulled down
• Defendants said that the drop in value of the claimant's property could easily be compensated for by damages, and that the effect of the injunction would be much more expensive, oppressive and disproportionate as a remedy
• HELD - CoA said the costs to the defendant of pulling down their building will only be high because they disregarded the wishes of the claimant and carried on building in spite of his agreement. The injunction was therefore granted and was not unfairly awarded in the circumstances
• Coventry v Lawrence (2014)
• Court said that the Shelfer judgment was sound, but these principles shouldn't tue the courts hands to a certain course of action in the event that they aren't fulfilled

Final Injunction

• A claimant will not be granted an injunction unless they can establish that damages would not be an adequate remedy

Injunctions as an Equitable Remedy

• The following are three of the maxims of equity:
• One who seeks equity must do equity
• Equity does nothing in vain
• Delay defeats equity
• Injunctions are an equitable remedy and as such are at the discretion of the court and not a right
• The maxims of equity determine when they might not be awarded
• One who seeks equity must do equity - injunctions will not be granted if the claimant has acted unfairly (e.g where the claimant has encouraged the defendant to commit the tort)
• Equity does nothing in vain - the court will not award an injunction if the defendant will be unable to comply with its terms
• Delay defeats equity - the court is unlikely to award an injunction where there has been an unreasonable delay in asking for an injunction