5.2.4 Contract Law and Torts – Cases Brought by a Plaintiff

(This is an archived extract from the book Patterns of Power: Edition 2)

One individual or organisation – a ‘plaintiff’ – can bring a case against another in some circumstances, including those where the law has not been enforced by a government agency. Two important categories of law that can be operated by plaintiffs are ‘torts’ and ‘contracts’:

· A tort is an infringement of someone's legal rights, which can form the basis for that individual to bring an action against another person or organisation for damages in the courts; libel is an example of a tort.

· Contracts provide a mechanism for plaintiffs to construct legally-enforceable relationships under a specified jurisdiction; any breach of the contract is then enforceable in the appropriate court.

The cost of bringing the action is an impediment to bringing these cases – and legal costs are spiralling upwards. This can mean that justice is only available to the very rich, or those who are poor enough to qualify for legal aid in countries where that is available, so this aspect of law increasingly fails to meet the requirement of equal treatment of everybody.

A partial mitigation of this problem is the ‘no win, no fee' system, whereby the lawyers take on the risk of paying the costs if the case is lost but are well rewarded if it is won. The film Erin Brockovich illustrated this process, where a small law firm had to obtain additional finance to fight a case against a large organisation.[1] The problem of cost reduces the effectiveness and fairness of the law in protecting people’s human rights if they have to bring their own cases.