Obligations 1A sec C Flashcards by Harper Clark-Tonberg

Three requirements for civil assault to be established?

Did the defendant’s conduct amount to an assault on the Pursuer?

Did the defendant act with the necessary state of mind?

Does the defendant have a valid defence?

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Conduct of civil assault authority…

Ewing v Earl of Mar 1851 - again fear or alarm, or aggression can constitute assault…

grounds of assault is conduct placing someone in danger and reasonable alarm to their physical safety. It also highlights that parties must be sufficiently proximate to one and other.

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State of mind for the assault?

Reid v Mitchel 1885 - The defender may either intend to injure the pursuer or be reckless as to these injurious consequences.

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Valid civil assault defences authority…

Self-defence - Ashley v Chief Constable of Sussex Police

Consent - Reid v Mitchell (Volenti non fit injuria)

Provocation - Ashmore v Rock Steady Security

Justification - Mason v Orr (Police officer using violence justified)

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Civil Assault self-defence authority and requirements…

was the force proportionate?

was it in response to an imminent risk to life

Ashley v Chief constable of Sussex police

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What are the requirements to establish unjustified detention?

Pursuer’s freedom of physical movement has been constrained by D

D did not act with proper justification.

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Constraint via unjustified detention authority…

MacKenzie v Cluny Hill Hydropathic Co Ltd

liberty is crucial and any infringement of it will give rise to a claim.

also has some authority for proper justification, unless you are certain someone has committed a crime, it is not justified.

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Five requirements for harassment…

i. Has D embarked upon a “course of conduct”?

ii. Did that course of conduct harass, or cause “alarm and distress” to, P?

iii. Did D intend to harass P, or was D’s conduct objectively harassing?

iv. Does D have a valid defence?

v. What remedy should P claim?

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Course of conduct for harassment authority…

S8 (3) Protection from harassment act 2007

must involve two instances of conduct…

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Authority for Conduct being harassing…

Majrowski v Guy’s and St Thomas’s NHS Trust…

‘irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people’ must cause fear or alarm and not just inconvenience…

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Authority for the mental aspect of Harassment

s8(1) essentially…

P must either show that D intended to harass him (i.e. a subjective component), or;
If P cannot do that, P must show that D’s conduct is objectively harassing, i.e. that a reasonable observer would consider it to be harassment.

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Relevant defences for harassment cases…

S8(4): “It shall be a defence to an action of harassment to show that the course of conduct complained of-

was authorised by, under or by virtue of any enactment or rule of law;
was pursued for the purpose of preventing or detecting crime; or
was, in the particular circumstances, reasonable”

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what are the remedies for harassment charges?

S8 - Financial reparation, interdict/interim interdict, non-harassment order.

(breaking the interdict is a criminal offence s9)

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Authority and legal test for MoPI?

i. Did P have a ‘reasonable expectation of privacy’ regarding the information?

ii. Is D’s right to impart and receive information is outweighed by P’s right to have the privacy of that information respected? (i.e. do P’s privacy rights trump D’s freedom of expression rights?)

Campbell v MGN

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is proof of malice necessary to prove for MoPI?

HRH Duchess of Sussex v Associated Newspapers 2020

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What are some of the factors to use in considering the reasonable expectation of privacy in MoPI?

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Murray v Express Newspapers

* P’s attributes;

* nature of activity;

* location, nature and purpose of intrusion; 

* absence of consent;

* effect on P; and

* the purposes for which information came into D’s hands

considerations for the balancing test for MoPI…

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Would disclosure make a contribution of a debate of general interest?

What was the role or function of the person concerned?

What was the nature of the activities which are to be disclosed?

What was the prior conduct of the subject?

In what circumstances was the information obtained?

How is the disclosure to be presented?

How severe would be the remedy for non-justified publication?

Von Hannover v Germany no.2

What remedies are available for MoPI?

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interim interdict, damages,

Requirements for establishing defamation

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a. D must make a defamatory statement

a. The ‘consensus’ test.

a. The serious harm test.

b. That statement must identifiably be about P

c. That statement must be communicated a third party

d. D must have no valid defences

consensus test authority…

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defamation act s1 (4a) - Sim v Stretch

tend to lower [P] in the estimation of right-thinking members of society generally.

Serious Harm Test

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Defamation and Malicious Publication Act 2021 s1 (2)(b):
‘A right to bring defamation proceedings in respect of the statement accrues only if—
[…] the publication of the statement has caused (or is likely to cause) serious harm to the reputation of [P].’
Lachaux v Independent Print [2020] AC 612

No consequence from the email from the impact on employees.

In this scenario, Glenn’s reputation would take significant damage from the assault defamatory statement.

What are the valid defences available for defamation?

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Truth - 2021 act s 5.
It is a defence to defamation proceedings for the defender to show that the imputation conveyed by the statement complained of is true or is substantially true.

A matter of interest - s6 of the act

Defence on honest opinion - s7 of the act

Three requirements for fraud (civil)

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Knowing the statement is false.

Not believing the statement to be true.

Recklessly making the statement.

Derry v Peek 1889

What remedies are there for fraud?

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Damages: Barry v Sutherland

Could also be reduction of contract if contractual

requirements for passing off...

1) Goodwill: P must establish that its product has acquired goodwill in the market, so that it is synonymous with some distinctive mark [or name or branding]. 2) Misrepresentation: D must use a mark which has led, or is likely to lead, to the belief that D’s product are the product of P, resulting in the confusion of consumers (whether intentional or not) 3) Loss: P must suffer loss as a result of D’s misrepresentation. Reckitt & Colman v Borden

'Moron in a hurry' test and authority...

* You need to show your mark would cause conclusion. * Morning Star Co-Operative Society v Express Newspapers [1979] FSR 113 If a moron in hurry would be confused, that is not enough; must show that the reasonable consumer would confuse D’s product with P’s

legal requirements authority for Inducing a breach of contract...

(i) X must breach the contract it has with P. (ii) D must know that its actions would bring about a breach of the contract between X and P. (iii) D must intend to bring about that breach, either as an end in itself, or a means to an end. (iv) D must bring about that breach by positive acts of persuasion, encouragement, or assistance. (v) D may have a defence of lawful justification. OBG V Allen

Breach of contract requirements...

Contract must be valid - (Wayne Rooney case, was able to void the contract so no breach) it must relate to the contract as well...

Knowledge and/or intention to induce the breach of contract...

* OBG v Allan [2008] 1 AC 1 The fact that a breach of conduct is a foreseeable consequence of conduct is insufficient (Millar v Bassey overruled): actual intention required: [43]; [166]; [264].

positive act for inducing a breach of contract...

must be active inducement - Calor Gas v Express Fuels Ltd 2008 SLT 123 there needs to be persuasion, threat or bribery for it to be a positive act...

What defences are available for inducement of breaching a contract...

that the inducement is justified in the circumstances... also potentially good morals. * Brimelow v Casson [1924] 1 Ch 302 (theatre minimum wage case)

Three legal requirements for causing loss by unlawful means

Douglas v Hello! [2008] 1) D must use unlawful means to interfere with the actions of X, a third party in which P has an economic interest. 2) D must intend for that interference to harm P, by restricting X’s freedom of ability to deal with P. 3) D’s interference must cause loss to P through the instrumentality of X.

definition of unlawful means in causing loss...

[U]nlawful means ... consists of acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to the claimant.” Douglas v Hello!

what does Servier prove for causing loss by unlawful means?

* Secretary of State for Health v Servier Laboratories [2022] AC 959 confirms that unlawful means must constrain third party’s freedom to deal with pursuer:

Unlawful means conspiracy requirements...

○ If unlawful means are used, you have to show an intention was to injure P. (i) A combination between D and other parties, whereby at least one conspirator undertakes to use unlawful means against P. (ii) The intention in using those unlawful means is to cause loss to P. (iii) Loss is in fact caused to P. (*Total Network [2008])

unlawful means conspiracy clause one requirement and authority...

* Racing Partnership v Done Brothers [2021] Ch 233 * No need to establish that conspirators knew that means used were unlawful. The fact that parties have grouped together to inflict loss on another party is only thing needed here.

Intention for conspiracy by unlawful means authority and legal test...

○ You must show that the actions were intended and not a foreseeable consequence of actions. Constantin Medien AG v Ecclestone [2014] EWHC 387 (Ch)

Three elements for lawful means conspiracy

1) There must be a combination between D and other parties, whereby at least one conspirator undertakes to use lawful means against P. 2) The predominant intention in using those lawful means is to harm P. 3) Loss is caused to P. Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942]

Obligations 1A sec C Flashcards

(38 cards)