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The work of defence lawyers in civil litigation has been neglected by law and society studies. Research on personal injury cases, in particular, has usually focused on the alleged failure of legal systems to compensate plaintiffs as fully and as quickly as they believe proper. The defence lawyer is conventionally portrayed as a pettifogger in the classic sense, one who seeks points of detail on which to argue, delay and confuse issues until the plaintiff reduces their demands, dies, loses heart or otherwise goes away. Recent work has been widely taken as proposing that the most effective plaintiff response is to harry defendants in an aggressive and uncompromising fashion–so-called ‘hard bargaining’. This paper combines data from two studies of personal injury litigation carried out in the late 1980s and the mid 1990s to question this conclusion. Although the procedural environment has changed in England since the implementation of the Civil Justice Reforms in April 1999, it is argued that the general points on methodology and on the starting assumptions of socio-legal research remain valid.
This article examines the ability of the claimant to recover damages for mental distress in the English law of torts. This is an area of law which has received little attention and indeed, the general impression is frequently that such damages are not recoverable. This article seeks to establish that this is far from the case and that damages are frequently awarded for mental distress even if they are not always openly recognised. Most lawyers are familiar with the award of damages for ‘suffering’ within the action for personal injury, but damages for distress are awarded generally, particularly as aggravated damages, as recognised by the Law Commission in 1997. It will be argued that much will be gained by appreciating the true nature of these damages and the policy factors which determine when the claimant will be granted such an award. Whilst there is no evidence to support a right to claim such damages in their own right, there is sufficient authority for a separate head of damages us part of the claimant's general compensatory claim. It is therefore submitted that open recognition of this head will be to the benefit of individual claimants and the system as a whole in clarifying this area of damages.
The desirability of having a general duty to give reasons for court decisions has been much debated in Commonwealth jurisdictions. In England, a series of recent cases has consistently upheld the duty, albeit with qualifications. The existence of this general duty is defensible in principle. However, exactly what is required to comply with the duty is not clear. The explanation the judge is expected to give may be analysed in terms of its structure, contents and standard. These aspects are dependent on many factors, such as the rationale underlying the duty, the limitations faced by the judicial system, the nature of the decision- making process, and the significance of the decision. While one can identify the major considerations that operate at a general level, the scope and extent of the duty to explain a particular decision are dependent on the circumstances of the case. This variability makes it difficult to be certain as to when a breach of the duty has occurred. The duty must meet the purposes for which it is imposed and at the same time must not be too unrealistic in its demands.
In Bland the House of Lords held it lawful to withdraw tube-feeding from a patient in a ‘persistent vegetative state’ (pvs), even with intent to kill him. The British Medical Association (BMA) recently published guidance on the withholding and withdrawal of ‘medical treatment’, so defined as to include food and water delivered by tube. The guidance endorses the withholding/withdrawal of tube-delivered food and water not only from patients in pvs but also from other non-terminally ill patients, such as those with severe dementia or serious stroke. The underlying justification appears (as in Bland) to be that such lives lack worth. This article offers three major criticisms of the guidance. First, its argument that tube-feeding is medical treatment rather than basic care is weak. Secondly, its reasons for not treating or tube-feeding undermine the BMA's longstanding opposition to active euthanasia and active assisted suicide. Thirdly, it relies heavily on legal precedent at the expense of ethical reasoning.
Occasionally, a case comes to court in which a disappointed relative or other carer seeks the enforcement of a promise made by a testator to leave them all or part of their estate if the relative or other carer looks after them or provides some other service. This article compares and contrasts the courts’ response, in England and in New Zealand, to the enforcement of these testamentary promises. In England the courts have struggled to provide redress with the tools available from the common law and equity. Despite an array of possible remedies from contract to estoppel and restitutionary remedies, few claimants have proved successful. The sanctity of testamentary freedom and formalities has prevailed over the injustice caused to the disappointed carer. Yet in New Zealand testamentary promises are commonly enforced under the Law Reform (Testamentary Promises) Act 1949, a statute passed specifically to loosen the grip of testamentary freedom in the, face of such promises. Under the influence of this statutory impetus, the New Zealand courts have shown a liberal and flexible approach to the interpretation of this statute that is both interesting and enlightening. They have recognised that in the personal context of the testamentary promise traditional notions of contractual promises and consideration or detrimental reliance need to be rethought. Perhaps it is time for us also to rethink our approach to the treatment of those who provide unpaid care or other services when they have been led to expect some sort of testamentary recompense.
In the criminal law it is common to distinguish between motive and intention. One of the main reasons for so doing is that in criminal law we are concerned with the wrongfulness of an action in itself and not the agent's own moral evaluation of that action. For this reason, intention has become central to assessing criminal liability. But a similar problem arises with regard to the term intention. This is because whether or not an agent intends a particular consequence depends upon whether or not it was one of the reasons (that is, explanatory reasons) for which she acted. However, we ought to be interested in the reasons that actually applied to those actions (guiding reasons). Hence, the concept of oblique intention applies where the agent realised that a harmful consequence of her action was virtually certain even though it was not a reason for her action. Some writers suggest that this problem can be solved by including consequences brought about intentionally as well as intended consequences within the concept of intention. And this, they argue, is because the use of the adverb is (either conceptually or causally) related to our moral evaluation of an action. In this essay I show that this is not so. The concept of intention is wholly descriptive. Consequently, we require a suitable supplement or alternative to the concept of intention to reflect the highest degree of moral responsibility for the harmful consequences of our actions.