Winterton and Pilkington, ‘Examining the Structure of Remedial Law’

Stephen A Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law, Oxford: Oxford University Press, 2019, 368pp, £80.00. Conventionally, a judicial private law remedy (JPLR) is understood as a court order made following two types of events: a violation of a legally recognised right, or a threatened violation of a legally recognised right. When there is a ‘rights-violation’, the prevailing view is that the innocent party obtains (at least) a ‘secondary’ remedial right against the defendant to be placed in as near position as possible as if the ‘primary’ right had not been violated. When there is threatened rights violation, the innocent party may receive a power to obtain a judicial ruling directing the defendant to comply with its correlative ‘primary’ duty. On this view, the principal reason that most judicial JPLRs are awarded is to declare, or provide defendants with further reasons to comply with, the ‘primary’ or ‘secondary’ legal duties that defendants already owe to claimants …

David Winterton and Timothy Pilkington, Examining the Structure of Remedial Law, Modern Law Review, https://doi.org/10.1111/1468-2230.12649. First published: 8 June 2021.

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