Offside goals and induced breaches of contract

An analysis of Global Resources Group Ltd v Mackay which explores the possibility of building links between the offside goals rule and nominate delict of inducing breach of contract

The end of an era? Illegality in private law in the Supreme Court

Discusses the Supreme Court decision in Patel v Mirza on whether the court should follow the ratio of the House of Lords judgment in Tinsley v Milligan and disallow a claim for the return of monies supplied to the defendant for the purpose of share trading using inside information on the ground that the claimant sought to rely on wrongdoing to make out his cause of action. Assesses how the illegality doctrine has been redefined by the ruling

The contributory negligence doctrine: four commercial law problems

The law of contributory negligence is often treated as an afterthought by academics. It is routinely relegated to a position of relative unimportance in textbooks. This tendency is particularly pronounced in the commercial law sphere, apparently on the assumption that the contributory negligence doctrine is for the most part confined to “accident cases”. As a result, learning regarding the law of contributory negligence in the commercial law setting is particularly underdeveloped. The goal of this article is simple. It draws attention to the fact that the contributory negligence doctrine has profound implications for commercial law litigation. It seeks to advance learning with respect to it by engaging with four issues that arise in the commercial law context. It argues, first, that the decision in Forsikringsaktieselskapet Vesta v Butcher has been implicitly overruled by recent decisions of high authority with the result that apportionment for contributory negligence is unavailable in all types of contractual claims. Second, the merits of rules for which Vesta provides and alternatives thereto are critically considered. It is argued that most existing learning on this point is contaminated with serious confusion. Third, it is asked whether the apportionment statute applies in proceedings against auditors. Legislation arguably excludes it, which is a point that has hitherto been overlooked. Finally, the article addresses the intersection between the reflective loss principle and the law of contributory negligence

Can Tort Law be used to deflect the impact of criminal sanctions? The role of the illegality defence

The suggestion that persons convicted of criminal offences could obtain compensation or indemnity in tort in respect of penalties imposed by the criminal law would undoubtedly strike most people as bizarre and abhorrent. However, in recent years, an increasing number of actions have been brought seeking to do just this. While these actions have generally been unsuccessful as a result of the application of the illegality defence, the courts have failed to properly articulate the public policy considerations which support and militate against the invocation of this defence in this context. This article explores these considerations and concludes that sanction-shifting actions may be permissible in limited circumstances

Rethinking Contributory Negligence

The doctrine of contributory negligence is one of the most important rules in the law of torts, both in practical and in theoretical terms. It is significant for practical reasons because of the frequent and often powerful effect that it exerts on claims and litigation. The doctrine is of theoretical importance for several reasons, but primarily because it shows clearly that tort law is concerned not only with the quality of the defendant?s behaviour but also with the nature of the claimant?s conduct. Despite its significance, legal writers have shown relatively little interest in contributory negligence. Fairly modest progress has been made in terms of advancing our understanding in this connection since Williams published his seminal treatise Joint Torts and Contributory Negligence. That monograph, despite being over 60 years old and written when the apportionment legislation was in its infancy, remains by a significant margin the leading analysis in the field. Possibly as a result of the general juristic neglect of the doctrine of contributory negligence, many erroneous beliefs about it have flourished. The goal of this chapter is to identify and correct some of these mistakes. It will be argued that: 1. the traditional definition of the doctrine of contributory negligence is incomplete because it fails to account for the doctrine?s frequent exclusion for reasons of public policy; 2. contrary to widely held views, rules that specify the standard of care that defendants must achieve for the purposes of the tort of negligence should not be transplanted automatically to the contributory negligence context; 3. the doctrine of contributory negligence has often been conflated with various other rules including the defence of voluntary assumption of risk, the defence of illegality, the mitigation of damage principle and the doctrine of provocation; 4. in contrast with what some writers believe, post-tort fault on the part of the claimant should not result in, or be relevant to, the apportionment of damages; 5. the doctrine of contributory negligence is part of the law of remedies and not, as is widely thought, the law of liability; 6. scholars? concentration on the direct effect of the apportionment legislation has meant that they have failed to notice the legislation?s significant indirect effects on many facets of the law of torts; 7. serious confusion exists as to the permissibility of apportioning responsibility in certain ways; and 8. in opposition to the views of some writers, the apportionment legislation does not apply, and should not apply, to awards of exemplary damages

A tort is born

The case of Willers v Joyce gave rise to a new tort, that of malicious prosecution of civil proceeding

Defences in tort and crime

In most of the common-law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This paper draws attention to the fact that, although most common-law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This paper classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision inFroom v Butcher, at least as it has been understood in subsequent cases, was decidedper incuriam. Froomsits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules