New Torts – Principle And Pragmatism In Uncharted Territory

Tom Matusiak and Harriet Chapman look at some new torts created by judges in recent years.

In the age of big data, fake news, drones, trading algorithms and driverless cars - overlaid with the uncertainties and transition that Brexit brings - litigants in the courts of England can rest assured that judges strive to bring fairness to the challenges presented by society's evolution.

The two main sources of English law are: (i) legislation promulgated by parliament; and (ii) the principles and remedies created by judges. The English common law has been developed over the centuries by judges; that process continues. One of the areas most influenced by judges is tort, which can roughly be described as the civil law of non-contractual duties (or 'delict' as the equivalent is called in some jurisdictions). Negligence is an example of a tort.

In striving to do justice and/or fill gaps in the law, judges have created new causes of action, or reasons for getting damages or another remedy. This happens rarely but in recent years the judiciary has been active in identifying a number of new torts (or clarifying unusual torts):

Knowingly inducing or procuring a person to act in wrongful violation of rights under a judgment. This tort, declared as arguable this year in Marex Financial v Garcia [2017] EWHC 918 (Comm), seeks to protect the economic interest that a successful litigant has in a judgment awarding damages in their favour. It seeks to remedy, for example, asset-stripping of a company by those trying to prevent successful enforcement of a judgment against that company. Malicious prosecution of civil proceedings. It is long established that there is a remedy for 'malicious' prosecution of criminal proceedings. In 2016, the Supreme Court decided that protection of the interest in due process extends to 'malicious' instigation of civil proceedings, giving a potential remedy where civil court proceedings are brought without legitimate reason and without belief in their foundation. In the case, Willers v Joyce [2016] UKSC 43, Lord Toulson said that the common law is "prized for its combination of principle and pragmatism". Intentional infliction of mental suffering. A late 1800s case established this rarely cited tort, which protects an interest in mental health. In 2015, the circumstances of...