5.2.4 Contract Law and Torts – Cases Brought by a Plaintiff

(This is a current page, from the Patterns of Power Edition 3 book contents.  An archived copy of this page is held at https://www.patternsofpower.org/edition03/524.htm)

One individual or organisation – a ‘plaintiff’ – can bring a case against another in some circumstances, under what is known as ‘civil law’.  According to Diffen.com, Civil Law vs. Criminal Law, “[t]he object of civil law is the redress of wrongs by compelling compensation or restitution” – whereas criminal law cases, such as theft or violence, are brought by the State.

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 (defamation) 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.  It reduces the effectiveness and fairness of the law in protecting people’s human rights.

A Guardian article, Legal aid: how has it changed in 70 years?, described the purpose of the British system:

“to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services”.

The article points out that government cuts have led to a reduction in the proportion of people qualifying for legal aid, from 80% when the system was introduced in 1949 to an estimated 20% in 2019.

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.  Numerous solicitors offer this service – notably for personal injuries, medical negligence and debt collection.

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