Tort is a wide and fascinating area of law which encompasses areas such as negligence, libel and slander and trespass to land. Tort is often the relevant area of law when an individual suffers harm due to the actions of someone else. This could include intentional physical harm, for example, if someone punched another person, or it could be unintentional harm, for example, a car accident which causes harm to another person through physical injury and harm to their property (damaged car).

Over several blog posts I will give a overview of some of these areas of Tort, providing lots of everyday examples to explain how the principles of Tort are applied in real life.

But firstly, what does Tort mean?

The word Tort essentially means ‘wrong’. A tort occurs when there has been an infringement of a legal right or the breach of a legal duty and it will give rise to a claim in the civil courts. As mentioned above, it is the branch of law that deals with someone suing another individual because of the actions of that individual.

If a person commits a tort they will be described as a tortfeasor and they will have tortious liability.

Tort is distinguishable from crime and contract law, although there can be some overlap. There are situations where it is possible to have both criminal and tortious liability. For example, if Jon was to punch Sam in the face it would be a crime as it would constitute physical assault but it would also give rise to a Trespass to the Person claim in Tort. However, whilst criminal claims are usually brought by a public officials, such as the CPS (see my blogs on Criminal Law), Torts are brought by the injured party. Tort cases seek to compensate the victim and are dealt with in the civil courts whereas criminal cases are dealt with in criminal courts are meant to punish the offender. (see my blog posts on the court system)

Contract and Tort claims are both civil claims and usually the claimant will seek damages as a remedy. However, there are big differences. Firstly, in Contract for a claim to arise, there must be a contractual relationship between the parties. Additionally, the obligations owed by the defendant are fixed and set out by the terms of the contract (these can be implied by law). The scope for liability in Tort is much wider and is imposed by law.

Tort Claim 

To establish a claim in Tort the claimant must prove the elements of the specific tort (such as Negligence) which have developed through the common law. The burden of proof lies with the claimant; they must establish that the defendant has committed a tort. The standard of proof is ‘on the balance of probabilities’ which is a lower standard of proof that criminal cases.

In my next blog posts on Tort, I will examine some of the key Torts. My next post will be on Trespass to the Person.

It is very important for lawyers and aspiring lawyers to be up-to-date with the latest changes in society and understand how these changes may impact the legal profession. With this in mind, I will be posting a monthly blog post relating to current awareness. This will focus on recent stories about technology, including the increasingly relevant AI. Technology and AI are playing an increasing role in how law firms are run. These blog posts will hope to chart this change.

Internet of Everything   

One thing of note is the increase in the Internet of Everything (IoE). This is a broad terms describing gadgets, devices and other consumer products that have access to the internet and other expanded digital features. The rise in use of such products has led to increased risk of hacking. These devices have the potential to be hacked into and changed by the hacker. For example, IoE toy dolls have been hacked to say offensive things as opposed to their normal, programmed answers (a great example of this can be found on the BBC website which is linked below).

In order to prevent a rise in cyber-attackers, new laws have been proposed by the Digital Minister Margot James to try and make these IoE products safer. For example, new legislation (if made) could force companies to give all products a unique password that has to be used to connect to the product. The proposed law would introduce an initially voluntary labelling system which will give customers an indication of how safe the product is. To get a label a business must ensure the product will have to have a unique password, state how long security updates will be available for and ensure customers have a point of contract if they have cyber-security vulnerabilities they want to disclose.

For more information: BBC

Cryptocurrency: Blockchains  

Something else which is on the rise is the use of cryptocurrency and particularly blockchain technology.

I found the simplest explanation, including a helpful diagram, of blockchains on a website called blockgeeks. It describes a blockchain in the following way: ‘A blockchain is, in the simplest of terms, a time-stamped series of immutable record of data that is managed by cluster of computers not owned by any single entity. Each of these blocks of data (i.e. block) are secured and bound to each other using cryptographic principles (i.e. chain).’ (Link to Block Geek) It is through blockchain technology that cryptocurrency is transferred.

In order to learn more about cryptocurrency the International Monetary Fund and World Bank have launched a private blockchain and cryptocurrency. It will have no monetary value and will not be accessible outside of the IMF and World Bank but will be useful training for its staff to understand cryptocurrency principles and challenges such as how cryptocurrency can be used to facilitate money laundering.

The Land Registry is also trying to explore the benefits of blockchain technology as part of a longer term project to assess how new technologies could innovate the house buying process.

The impact of blockchain technology is definitely something to keep an eye out for!

Artificial Intelligence

Recently, there has been great interest in the ethical implications of AI. This morning the Financial Times released an article on the ethical problem of using AI in law enforcement in China. Like something out of Minority Report, the Xinjiang region in China is seeing AI used for predictive policing. The algorithm uses such information as a citizens’ religion, travel history and family connections gained from a smartphone app. The algorithm will then identify suspicious people and they might be taken into custody.

A report by a US research group, Partnership, however has raised concerned with the way these predictive policing tools are designed. There is a danger that algorithms could repeat existing inequalities within the police department by using such inaccurate or bias data.

Earlier this year, in April, the EU published some ethical guidelines on AI which the FT described as ‘noteworthy’. The guidelines emphasis the importance of fundamental human rights when dealing with AI. It is hoped this will ensure that big firms, when developing AI technology will give top priority to human rights.

For more information check out the FT articles: AI Law Enforcement   EU Guidelines

 

In my earlier blog post I defined the difference between criminal and civil law. This post will focus on the criminal procedure, demonstrating how a criminal case is formed and in which court a criminal case will be heard.

First of all, it is important to draw a distinction between different types of criminal offences. They can be categorised in three ways:

1. Summary only offences – minor offences such as driving without insurance
2. Indictable only offences – most serious offences such as murder
3. Either way offences – typically offences which can be more or less serious depending upon the way in which they are committed.

Secondly, there are two types of court of first instance in criminal cases. These are the Magistrates’ Court and the Crown Court.

Magistrates’ Court 

Magistrates’ deal with around 90% of all criminal trials. There are around 330 all over the country. It is often lay magistrates (usually three), who are not legally qualified, who sit in the Magistrates’ Court. They will be assisted by a clerk to the justices to advise them on questions of law, practice and procedure. It could also be a sole district judge who sits in the court who will have legal qualifications. It is the magistrates who will decide a defendant’s guilt or innocence and pass sentence.

The Crown Court 

This court will be far more familiar to most people as it is in the criminal court we have a jury deciding a defendant’s guilt or innocence. As well as a jury there will also be a judge overseeing the trial. It is the duty of the judge to direct the jury on points of law. Additionally, they will sentence the defendant, if they have been convicted.

How the offence is categorised will depend on whether the case is heard in the Magistrates’ Court or the Crown Court. Summary only offences will be heard at the Magistrates’ Court and Indictable offences are heard at the Crown Court. Either Way offences are held in either court depending on the judgement of the magistrates at the allocation hearing. Even if the magistrates say it should be dealt with in the Magistrates’ Court the defendant has the right to demand a trial at criminal court.

How does a case get to court? 

Here follows a brief outline of the criminal procedure

• Police investigate a crime, gathering evidence
• Police commence proceedings via a charge or summons. It is the duty of the Crown Prosecution Service to prosecute suspects
• Preliminary hearing at the Magistrates’ Court
• After which, the trial will proceed in the appropriate court depending on the categorisation of the offence.
• Verdict and sentence passed

But what if the party is really innocent. Can they appeal their decision? How do appeals work? The Magistrates’ Court and Crown Court are only courts of first instance, it is possible for a criminal trial to go to a higher court on appeal. Look out for my next ‘Court System’ blog on Criminal Appeals.

Brexit. Its everywhere, you can’t escape it. And yet, it seems to me that a lot of people do not understand what the European Union actually is! And yet surely how it works, functions and how it affects the UK is crucial to understand how to leave the EU and the impact Brexit will have on our country. So, what is it?

To try to answer this questions I am going to give an overview of some key areas and quash some common misconceptions about the EU. For example, that the EU is unelected and therefore undemocratic. I am going to start in this blog by giving an overview of the institutional framework of the European Union and consequently quash this particular misconception.

The Council 

The council consists of one representative from each Member State. This is not a fixed body as the representatives will change depending on the topic to be discussed at each meeting. For example, if the meeting was involving agriculture then the representatives from each state would be their agricultural ministers. Each Member State will have a President of the Council at some point as the Presidency rotates every six months from one Member State to another based on a pre-agreed rota. The Council is responsible for co-coordinating the general economic policies of the Member States.

The European Council

The European Council consists of the Heads of State or Government of the Member States and its President. It will only meet about 5 or 6 times a year. It’s role is to discuss key political decisions and establish policy guidelines. It is an important mechanism for inter-government cooperation. The current President is Donald Tusk.

The Commission 

There is a Commissioner for every Member State who are appointed every 5 years. The selection process is as follows:

• The European Council agrees by qualified majority voting (QMV) whom to nominate for Commission President. This President – designate must be approved by Parliament.
• The European Council and President – designate select the other members of the Commission. This is adopted via QMV by the European Council and sent to the Parliament for approval. The Parliament will vote on whether to approve or not
• The new Commission will be appointed by the European Council

In reality, those chosen by the President-designate and the European Council are the individuals chosen by the Member States.

Their functions include: Implementing Union policies and the budget; ensuring Member States comply with their obligations under EU law, administering and enforcing EU Competition Law and negotiating international agreements between the EU and other countries.

The Parliament

The number of MEPs from each Member State is determined by the size of the state’s population. MEPs have to be directly elected in their Member State based on the voting systems of that state.  They sit according to political sympathies rather than nationality. Parliament has supervisory and legislative powers.

Unelected?

Clearly, the members of the Council and European Council are made up of elected politicians in their own Member States. Therefore, they are elected. Clearly, MEPs in the Parliament are elected in their own Member States. The Commission is technically chosen by the European Council and President – designate. However, firstly the European Council is made up of elected Heads of State and secondly, in reality the candidates proposed by the Member States are generally chosen.

In my next blog I will go through how the EU creates and passes legislation to build on this basic framework.

 

We enter into contracts everyday without even thinking about it and they are incredibly important for everyday life. Most people could easily identify contracts they’ve signed in the past, such as a tenancy agreement or their employment contract. However, the definition of a contract covers a far wider range of situations than many people imagine.

So, what is required for a valid contract?

There are three essential agreements for a valid contract: Agreement, consideration and intention to create legal creations.

1. Agreement

Agreement is made up of an offer and acceptance. An offer is a willingness to enter into a contract on certain terms. The person making the offer is the offeror and they must intend their offer to become legally binding as soon as it is accepted by the person to whom it is made (the offeree).

An offer needs to be distinguished from an invitation to treat. This is when someone is simply inviting negotiations and does not mean to enter into a binding contract. There is a general principle that goods on display in a supermarket and self-service shops are regarded as invitations to treat, rather than an offer by the shop. The case that established this principle was Pharmaceutical Society of Great Britain v Boots Cash Chemists. A contract will become binding from acceptance so its good news for customers that a loaf of bread on the shelf is simply an invitation to treat. If this was an offer, every time you put an item in your basket, it would be counted as acceptance and you’d have to buy it or be in breach of contract!

Acceptance must be a complete and unqualified acceptance of the all the terms of the contract. This is where the offeree communicates their acceptance of the offer and the contract will become binding .

So in our supermarket scenario we know the bread of the shelf is only an invitation to treat. The offer is made by the customer at the till. They are offering to buy the bread. Acceptance comes as the payment point when the supermarket agrees to your offer of buying the bread for a certain price.

2. Consideration

Consideration has been defined in terms of being a benefit and/or a detriment to the parties. For example, if you sell your car for £3,000 you are getting the benefit of the £3,000 and the detriment of transferring ownership of the car. The buyer is getting the benefit of the car and the detriment of paying £3,000. Consideration can also be based on promises such as what one party does or promises to do for the other party’s promise.

So in the bread scenario above, the supermarket are providing you with bread and in return you are giving them money. The money you pay will be good consideration for the bread. And the bread is good consideration for receiving the money.

3. Intention to create legal relations

For a court to treat an agreement as legally binding there needs to have been intention between the parties that the agreement is legally enforceable. This is easily achieved through formal requirements, such as writing an intention into a written and signed contract. This will clearly demonstrate the parties’ intention. In cases where this cannot be established there are presumptions based on whether as agreement is a domestic/social agreement (e.g. agreement between family members) or a commercial agreement (if an agreement is not deemed to be domestic).

In domestic agreements there is a presumption that there is no intention to create legal relations and therefore the agreement will not be legally binding. However, the opposite presumption exists for commercial agreements, as it presumed the parties intended to create legal intentions. Both of these presumptions are rebuttable with evidence. Therefore it is possible to have a legally binding contract between family members.

If all three elements are met there will be a legally binding contract.

Conclusion

Let’s put this in the everyday context of going to the shop to buy a bottle of milk. We know that the milk on the shelf is simply an invitation to treat. The customer makes an offer to buy and acceptance is made by the supermarket at the point of payment. Consideration will be the money in exchange for the milk. As it is a commercial context, there will be a strong presumption that there is intention to create legal relations. As a result, you have a contract with the shop for the milk. This means if there is something

wrong with the milk, the supermarket will have breached an implied term of the contract and you will have a claim against the supermarket for breach of contract.

You may have read that the government intends to update legislation on divorce. My previous blog post on divorce outlined the five ways you can currently apply for divorce. Three required blame to be placed on one of the married couple. These were adultery, desertion or unreasonable behaviour. The other two required a time period before qualifying for a divorce. Two years separation if divorce was mutual and five years if it was the wish of only one party.

The government has now announced its plans to introduce no-fault divorce and would make these changes as soon as parliamentary time was made available. This would make it possible to obtain a divorce more quickly without needing to place blame on one of the married party.

For more information: The Guardian