M1 In-class test correction (GROUP 2 and GROUP 52)

M1 In-class Test Correction : Group 2

I.                    Complete the following sentences:

1.       In order to establish someone’s liability in Tort, the claimant has to prove on the balance of probabilities that the defendant owed him a duty of care, the breach of which is the direct cause of the harm sustained.

2.       While in a business context intention to form a contract is presumed, in a domestic contexte the intention of the parties to be bound by contract is reversed, although it is rabuttable which menas that the parties may provide evidence that they intenses their agreement to be binding.

3.       Unlike a bilateral contract, a unilateral contract is an agreement whereby the promisor undertakes to do something if a certain act is performed, but there is no obligation for the promise to undertake performance.

4.       Although consideration must be sufficient, it does not have to be adequate that is to say that it does it have to be of equal monetary value to the original promise.

5.       Goods displayed in a shop window or at auctions cannot be considered as an offer but only as an invitation to treat.

 

II.                  Text:

1.       The parties to the litigation are, on the one hand, a former Miss India UK (i.e. the claimant), and on the other hand three defendants, namely the producer, the broadcaster and another housemate of the Big Brother TV show.

The claimant brought an action for defamation against the three defendants on account of the broadcasts of two Big Brother episodes, and also issued a claim for breach of contract against the producer of Big Brother. That is called pleading in the alternative.

Given that county courts have no jurisdiction over defamation cases, the case at hand was thus necessarily heard by the Queen’s Bench Division of the High Court.  

 

The claimant, however, did not obtain redress.

 

Concerning the first broadcast, the court ruled that contrary to claimant’s assertion, the housemate’s comments did not have a bearing on the claimant’s social or intellectual status. These comments had also been condemned by the broadcaster and producer. As for the second broadcast, the court deemed that the racist nature of S’s remark actually undermined S’s own status and credibility in the eyes of viewers more than it affected the claimant’s reputation.

2.       Defences:

Pursuant to the Document handed out in class concerning the Defamation Act 2013, the defences available to a defendant are:

 

-          Truth (section 2) and Honest Opinion (section 3)

-          Publications on a matter of public interest (section 4). This defence replaces the common law defence known as The Reynolds Privilege.

-          Qualified Privilege (section 6)

-          (Section 5 provides a new defence for website operators who comply with the Defamation (Operators of Websites) Regulations 2013.

 

Note that since the reform, defamation is not actionable per se. The claimant must prove his reputation has suffered serious harm.

Similarly, defamation cases are generally not tried by jury any longer.

 

Please read below the Updated Factsheet of the Glossaire on Defamation:

Defamation can be defined as the publication of a statement, which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. To establish defamation, three elements must be proved: the statement made is defamatory, it refers to the claimant and it is communicated to at least one person other than the claimant.

 

Defamation takes the form of two separate torts: slander and libel. Slander occurs when the defamatory act is in temporary form and libel when it is in permanent form. Slander requires special damage being proved. Whereas previously libel was actionable per se, the claimant must now show serious harm. Libel can be prosecuted as an offence. A defamation case was formerly tried by a judge and a jury in the High Court. Now defamation trials are without a jury unless the court orders otherwise. The jury will assess the quantum of damages, which can be nominal, aggravated or contemptuous.

There are four specialised defences: true and honest opinion (replaces common law defences of justification and fair comment respectively), absolute or qualified privilege, responsible publication on matters of public interest (new defence introduced in the Defamation Act 2013, which replaces the Reynold’s defence) and offer of amends under statutory provisions. If the claimant manages to prove malice, the defendant’s defence fails. In the 2010s, the tort of defamation has been more particularly relevant concerning the freedom of speech in relation to the press. There have been calls for a blanket protection for the press relative to political discussion and information. The courts try to strike a balance between the duty and interest of members of the public to know a fact and the defendant’s right to privacy.

• serious harm: level of the injury sufficient to justify legal action in court under the tort of defamation; fr: ≈ dommage/préjudice particulier
• special damage: to establish his claim in slander, the claimant needs to show that he was actually harmed by the defamatory statements; fr: ≈ dommage/préjudice avéré
• true and honest opinion: statutory defence which determines whether the opinion could be held by an honest person, based on the known facts at the time of writing; fr: ≈ exception de commentaire honnête
• the claimant’s claim stands: fr: la demande en justice du demandeur est recevable

• to be privileged: fr: jouir de l’immunité
• to be sued for defamation: fr: être poursuivi en diffamation

• to dismiss someone's claim: fr: débouter quelqu'un de sa demande

• to make an offer of amends: fr: faire amende honorable
• to tarnish/harm someone’s reputation: fr: porter atteinte à la reputation de quelqu’un

3.       Students’ own answers.

M1 In-class test correction: Group 52

I: Sentence Completion:

1.     Unless there is consideration … a contract will be not be considered as legally enforceable or binding on the parties. 

2.     While in a business context intention to form a contract… is presumed, in a family (/domestic) context the presumption is reversed so that the parties must prove they intend to be bound.

3.     Unlike a bilateral contract, … a unilateral contract is an agreement where only one party promises to do something, in the event that a certain act or promise is performed.

4.     Although a promise of a gift is not a contract in English law, a deed, that is to say a written promise that derives its validity from being intended, witnessed and signed, is a form of binding agreement.

5.     A qualified acceptance… cannot be considered as acceptance but as a counter offer, which causes the original offer to be revoked.

II: Document:

1.     The parties to the litigation are Richard Fowles (claimant) and referee David Evans and the Welsh Rugby Union (defendants). 

The claimant is a rugby front row player who sustained severe injury as a result of the referee’s negligence. Indeed, the referee should have made sure that the scrums were not contested but passive. The referee failed to do so, and as a consequence the scrum collapsed a number of times, eventually causing Fowles’s serious injury.

The claim is therefore a claim in tort as Fowles brought an action for negligence. Fowles alleges that as referee, Evans owed players a duty of care, that he had breached his duty of care and that this breach is the direct cause of the injury he sustained. In other words, Fowles would not have sustained his injuries but for Evans’s negligence.

2.     At first instance, given its complexity and the amount of money at stake, the case was heard by the Queen’s Bench Division of the High Court, as it has jurisdiction over tort cases. (Develop on the High Court: see Glossaire)

The WRU is involved in the case because of the principle of “vicarious liability”, according to which employers are responsible for harm caused by their employees during the course of their work.

3.     The underlined sentence refers both to the classic defence of consent available to defendants in tort cases, as well as its exception (i. e.) “Sciens is non volent”. The defence of consent applies for example to cases related to sport where the defendant contends that the claimant agreed to the risks inherent to the sport practiced (e.g. rugby). “Sciens is non volent” on the other hand means that being aware of the risks may not mean consenting to the risks.

In the case at hand, Fowles may have agreed to the risks entailed by the game when played by the rules. He did not agree on the other hand to the risks that arose from a foul or from the fact that the referee failed to apply the rules. (The scrum in that game should not have been contested, which means that the players should not have been allowed to both front rows to engage and thrust forward.)