Tag Archives: Paula Giliker

Researching European Union Tort Law in the Era of Brexit

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School).

October 2017 marked the publication of the Edward Elgar Research Handbook on EU Tort Law. This is part of the series of Research Handbooks in European Law published by leading Law publishing house, Edward Elgar, which offer authoritative reference points for academics, students, and practitioners studying or working in EU law, private law and comparative law. The aim is to be comprehensive and informative, but also accessible for those approaching the subject for the first time.

The Research Handbook on EU Tort Law is edited by University of Bristol Professor of Comparative Law, Paula Giliker, but also contains contributions from other Bristol academic staff including Dr Jule Mulder, Dr Albert Sanchez-Graells and Professor Keith Stanton, together with 14 other contributions ranging from the UK and Ireland to France, Germany, the Netherlands and Hungary. This truly international project seeks to examine the extent to which EU-sourced law (directives, judicial decisions, regulations, Treaty provisions) have created new rights in the law of tort on which claimants can rely in either the Court of Justice of the European Union (CJEU) or national courts.

The variety of areas of law in which EU-sourced tort law can be found is striking, as highlighted in Giliker’s introductory chapter, ‘What do we mean by “EU tort law”?’ Contributors discuss actions in the CJEU (Gutman), State liability for breach of EU law (Granger), product liability (White), competition law (Odudu and Sanchez-Graells), data protection law (Stauch), employment law (Mulder), insurance law (Davey), financial services law (Stanton) and the law relating to unfair commercial practices (Riefa and Saintier). Further contributions examine what we mean by compensatory remedies in EU law (Leczykiewicz), whether we can identify a culture of EU tort law (Niglia and Knetsch) and the possibility of harmonising European tort law more generally (Martin-Casals, Blackie and Faure). Finally, Giliker examines the future of EU tort law, both as a substantive area of law and as a concept in need of clarification and further academic debate. Continue reading

Comparing UK and Irish law: A special relationship?

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School) and former President of the British Association of Comparative Law.

The British Association of Comparative Law (BACL) held its annual seminar, jointly with the Irish Society of Comparative Law, at University College, Dublin on 5 September 2017. The joint seminar was chaired and organised by Professor Paula Giliker. To celebrate BACL’s first annual seminar in Ireland, the seminar reflected on the relationship between UK and Irish law in the fields of land law, banking regulation, language legislation and consumer law.  The seminar was sponsored by publishers, Intersentia.

The seminar sought to examine different features of the relationship between Irish and UK law: the tensions of the past, the similar problems faced by two common law jurisdictions in the light of a global banking crisis, linguistic diversity and demands for consumer law reform and the future, with one jurisdiction remaining within the European Union and the other deciding to leave.  Continue reading

Penalty clauses and the courts – Does the UK approach differ from the rest of Europe?

by Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School).*

Contractual penalty clauses raise questions going to the heart of contract law: should the courts enforce clauses which make payment of a large sum of money due on breach of contract? The argument is that such clauses act as a penalty for breach and are used by economically stronger parties to “discourage” the other party from breaching the contract. The sums in question are often extortionate and bear no resemblance to the true losses of the parties. Should the courts intervene – and diminish the parties’ freedom to contract as they will – or should they simply enforce the contract?

This question was addressed by the UK Supreme Court in Cavendish Square Holdings BV v Makdessi; ParkingEye Ltd v Beavis ([2015] UKSC 67) and raises profound questions of the role of judges in policing contractual agreements and the “morality” of contract law. Continue reading

When Christmas drinks go wrong – Vicarious liability and the ‘course of employment’ test in the High Court

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

The office Christmas party is something many of us will have enjoyed recently.  In the words of Judge Cotter QC in the recent High Court decision in Bellman v Northampton Recruitment Ltd [2016] EWHC 3104 (QB), it is an occasion “no doubted dreaded by some and an annual highlight for others” (para 14).  Needless to say, in most cases, alcohol will be freely flowing and sadly things may be said or done regretted bitterly the next day.

In the case of the Northampton Recruitment Ltd 2011 Christmas party, it was not the party itself (held at the Collingtree Golf Club) which proved eventful, but the “after party” held in the lobby of the Collingtree Hilton Hotel in the course of which the managing director of the company, John Major, punched an employee (Clive Bellman) twice during the course of a disagreement at 3am. Mr Bellman’s head hit the marble floor, leading to brain damage. By the time of the trial, his condition was such that he was not able to litigate or manage his affairs and brought his claim as a protected party. To add to the tragedy, the parties in question had been friends since childhood. The assault, no doubt fuelled by alcohol, had been provoked by a work-related dispute, although discussions at the Hilton Bar had covered a variety of matters. The question for the court was whether the company would be held vicariously liable for the tort of its managing director. Continue reading

Celebrating the life and work of Professor Bernard Rudden (1933-2015): BACL Annual Seminar 2016

By Prof Paula Giliker, Professor of Comparative Law (University of Bristol Law School) and President of the British Association of Comparative Law.

ruddenProfessor Bernard Rudden DCL, LLD, FBA was Professor of Comparative Law at the University of Oxford from 1979-1999 and Professorial Fellow of Brasenose College, Oxford.  On 6 September 2016, the British Association of Comparative Law (BACL) held its annual seminar in his honour at St. Catherine’s College Oxford.  Its theme was: ‘Bernard Rudden – Comparativist, Legal Scholar, Polymath’.

Professor Rudden, a noted comparative private lawyer, passed away on 4 March 2015, aged 81. His obituary in The Times newspaper described him as a “legal polymath who published extensively on Soviet law”, but the seminar sought to go beyond this succinct description and identify not only Rudden’s contribution to comparative law scholarship but also his impact as a friend, colleague, teacher of law and mentor to numerous comparative law academics. Continue reading

Supreme Court rulings on vicarious liability: Cox and Mohamud

By Prof Paula Giliker, Professor in Comparative Law (University of Bristol Law School).

© The Local Data Company

© The Local Data Company

“To search for certainty and precision in vicarious liability is to undertake a quest for a chimaera”: Lord Dyson (Mohamud)

On 2 March 2016, the Supreme Court delivered two judgments which it described as “complementary to each other” on the controversial topic of vicarious liability in tort.  Vicarious liability imposes strict liability on an employer for the wrongful actions of (usually) its employees which are committed in the course of his or her employment.  Recently, however, as Lord Phillips (former President of the Supreme Court) stated in the case of Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (“the Christian Brothers case”), “the law of vicarious liability is on the move.”  Since 2001, it has been an area of law subject to expansion.  The question on appeal to the Supreme Court was essentially how far this expansion would go, examining, in particular:

  • The relationship needed to give rise to vicarious liability. This was examined in Cox v Ministry of Justice [2016] UKSC 10.
  • The manner in which the wrongful acts of the employee have to be related to the relationship giving rise to vicarious liability – in other words, were the employee’s torts so closely connected with his employment that it would be just to hold the employers liable? This was examined in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11.

Both judgments are short and unanimous.  Neither claim, however, to provide absolute tests, taking the view that a lack of precision is inevitable, given the infinite range of circumstances where the issues arise. Continue reading