Dear Colleagues,

 

Eoin is indeed right: Sir Declan Morgan is to succeed Sir Brian Kerr, who will replace Lord Carswell upon his retirement from the Appellate Committee at the end of this month. This news is important for our new Supreme Court in the United Kingdom. Under s. 27(8) of the Constitutional Reform Act 2005, the selection commission for appointments to the new Supreme Court is required to continue to "ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom". The House of Lords Select Committee on the Constitutional Reform Bill noted that "there is a long-standing constitutional convention that two Law Lords are appointed from Scotland, whereas the practice of appointing a Law Lord from the Northern Ireland is much more recent and less well-established." The Committee recommended that this convention should continue, without express statutory recognition: http://www.publications.parliament.uk/pa/ld200304/ldselect/ldcref/125/12505.htm. It is not clear whether the convention requires that the Northern Irish representative should have been the Lord Chief Justice: Lords Carswell, Hutton and Lowry served as Lord Chief Justice before being appointed to the Lords. Lord Lowry's predecessor, Lord MacDermott, was, I think, actually appointed a Lord of Appeal in Ordinary prior to becoming Lord Chief Justice. It will be interesting to see whether Morgan LCJ (as he will be) subsequently ends up in the Supreme Court.

 

This is otherwise a significant decision. Although the point is not explored, the defendants objected to the claim in conspiracy to injure: "[17] The tort of conspiracy to injure has been the subject of sharply contrasting submissions. The defendants contend that although there is an economic tort of conspiracy to injure there is no such tort in respect of the infliction of personal injury. In any event the defendants contend that the mental element required for the economic tort is a specific intention to injure a particular plaintiff and that no such intention can be established in this case. I do not intend to explore this further except to note that one has to draw the distinction between liability under the tort of conspiracy to injure and liability in respect of concerted action. Where an act is done in pursuance of a concerted enterprise which is tortious it is the joint tort of those involved (see Brooke v Bool [1928] 2 KB 578). All persons in trespass who aid or counsel, direct, or join, are joint trespassers (see Petrie v Lamont (1842) Car & Marsh 93)."

 

We could compare this view with the recent human trafficking case of AT & Ors v Dulghieru & Anor [2009] EWHC 225 (QB), which was previously circulated to members: that case saw a claim in conspiracy to traffic and sexually enslave succeed.

 

The rulings as to damages can be found from [271]: although no award of exemplary damages was made, the judge did award aggravated damages. The judge (at [4]-[5]) endorses the Ashley view of proceedings as vindicatory, which might relate back to Prof Tettenborn's query on the availability of exemplary damages, given Lord Hutton's approach in Kuddus (his Lordship made particular reference to Northern Ireland in that speech, albeit in the context of actions of the executive).

 

At [272], the judge notes: "[272] Many of these cases are claims for psychiatric injury. Such claims occasionally give rise to issues in relation to remoteness. Since I have concluded that the liability of the defendants is based upon trespass, an intentional tort, I do not consider that any issue of remoteness arises (see Wainwright v Home Office [2004] 2 AC 406 and Clerk and Lindsell 19th edition paragraph 2-110). I do not intend to rehearse the detail of the medical reports or the accounts given to me of the enormous difficulties a number of those involved had in coping with the consequences of this bomb. For many the effects are catastrophic and their lives will never be the same."

 

While recognising that the claim here is in trespass and not in negligence, we might compare the list of the circumstances of each claimant at [273]-[284] with the account of the claimants' circumstances by Parker L.J. in Alcock [1991] 3 All ER 88 at 92-94.

 

Best wishes,

 

James

 

--

James Lee

Lecturer

Director of the LLB Programme

Birmingham Law School

University of Birmingham

Edgbaston

Birmingham

B15 2TT, United Kingdom

 

Tel: +44 (0)121 414 3629

E-mail: j.s.f.lee@bham.ac.uk

 

 

________________________________

From: Eoin O'Dell [mailto:odelle@tcd.ie]

Sent: Mon 08/06/2009 22:52

To: obligations@uwo.ca

Subject: Re: omagh (2)

Dear all,

Further to the emails of the two Andrew about the Omagh judgment, I thought I

might add a little background about Morgan J, the judge in the case: media

reports over the weekend suggested that he is in line to become the next Lord

Chief Justice of Northern Ireland:

http://www.irishtimes.com/newspaper/ireland/2009/0606/1224248171028.html

Eoin.

========================================================================

Dr Eoin O'Dell                                     main: +353-1-896 1125

Fellow & Senior Lecturer                         direct: +353-1-896 1178

Director of Research                             mobile: +353-87-2021120

School of Law                                  main fax: +353-1-677 0449

Trinity College                               blog: http://www.cearta.ie <http://www.cearta.ie/>

Dublin 2, Ireland                      odelle@tcd.ie \ eoin.odell@tcd.ie

------------------------------------------------------------------------

All opinions are personal:  no legal responsibility is accepted for this

email or attachments, which may be confidential or privileged or subject

to a Freedom of Information request: if you have received this in error,

let me know and delete it. Please think 'green' before printing. Thanks.

========================================================================