Category Archives: Remedies and Procedure

Stavros Brekoulakis, ‘The Historical Treatment of Arbitration under English Law and the Development of the Policy Favouring Arbitration’

Abstract The article examines the judicial attitude and the development of the policy of English law favouring arbitration. It suggests that, contrary to the prevailing narrative in legal literature, English judicial attitudes in the 18th and 19th centuries never reflected a hostility to arbitration. As is demonstrated, a policy favouring arbitration was introduced by the […]

‘The 50th Anniversary of the European Law of Civil Procedure’

“On 27-28 September 2018, the Court of Justice of the European Union and the Max Planck Institute Luxembourg organised an international conference at the premises of the CJEU to commemorate the 50th anniversary of the signing of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. It brought together […]

Mary-Elizabeth Tumelty, ‘Calculating the Cost of Medical Negligence Litigation’

Introduction Medical negligence litigation is frequently criticised due to concerns that the traditional adversarial process is financially burdensome. During the height of the ‘medical malpractice crisis’ in the United States in the 1990s, Bovbjerg observed, ‘folklore, anecdote, and stereotypes predominate the tort reform debate … because solid information has been scarce for many years’. Although […]

Cathro and Connell, ‘New Variations on the Rule Against Penalties’

Abstract As a consequence of the rule against penalties, contractual clauses with a penal character are unenforceable. The rule has recently undergone significant revision in both the United Kingdom and Australia, following decisions by the highest courts in those jurisdictions. This article sets out and considers the options that those decisions put forward for the […]

‘Imperfect solutions for access to justice – success fees are no longer recoverable in English defamation and privacy cases’

“On 29 November 2018, the Government published its response to the 2013 consultation on costs protection in defamation and privacy claims. In particular, the written statement by the Lord Chancellor and Secretary of State for Justice summarizes the amendments to costs provisions, raising access to justice concerns. In short, the Government has decided to implement […]

Yonathan Arbel, ‘Book Review: Civil Justice Reconsidered: Toward a Less Costly, More Accessible Litigation System

Abstract A book review of Steven P Croley’s book Civil Justice Reconsidered: Toward a Less Costly, More Accessible, Litigation System (NYU Press, 2017). In this review, I evaluate Professor Croley’s engaging book and highlight the various contributions to the public discussion of tort reform and other critical issues affecting our system of civil justice. The […]

John Goldberg, ‘You Can’t Spell “America” Without C A R’

Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Legacy, 53 Wake Forest Law Review 293 (2018). For the past century, the car accident has served as the paradigmatic (über-?) tort. What does this tell us about tort law’s past, present, and future? Nora Freeman Engstrom’s elegant and informative When Cars Crash offers some highly […]

Anidjar, Katz and Zamir, ‘Enforced Performance in Common-Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation’

Abstract Legal systems differ about the availability of specific performance as a remedy for breach of contract: While common-law systems deny specific performance in all but exceptional cases, civil-law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practices of litigants and courts […]

Jojo YC Mo, ‘In search of a privacy action against breaches of physical privacy in Hong Kong’

Abstract The focus of privacy laws in Hong Kong has always been on the use and dissemination of personal or confidential information, but a person’s privacy can also be intruded by unwanted watching or listening irrespective of whether information is collected or used. Despite an attempt to introduce two privacy torts by the Law Reform […]

Neil Foster, ‘Tort Liability of Churches for Clergy Child Abuse after the Royal Commission: Implications of Developments in the Law of Vicarious Liability and Non-Delegable Duty’

Abstract While the Royal Commission into Institutional Responses to Child Sexual Abuse has made a number of recommendations concerning a range of Australian institutions, some of the most difficult issues concern the liability of Christian churches. While the churches are committed to being part of a statutory recompense scheme, there seems no doubt that general […]