Estoppel

Insight | March 2017

Estoppel
Image: ‘Girl Interrupted at Her Music’ by Johannes Vermeer

‘Estoppel’ or by virtue of its purpose ‘interruption’, is a legal source of remedy often used in connection to land or property related matters, but is readily used in numerous fields of dispute. The concept behind this intervening doctrine is one that prevents a miscarriage of justice where through discourse and action, a party is found to suffer at the expense of another’s profit. Because this approach often falls outside of common law rules, it frequently requires equity to redress the balance in favour of a fair and reasoned settlement where proven as fact.

To date, there are distinct and overlapping forms of estoppel, and so the list below while no means definitive, aims to cover the more familiar (and unfamiliar) versions used within domestic and international law.

Promissory Estoppel (or Equitable Estoppel)

Founded within contract law, this form of estoppel relies upon the promise of one party to another that is later revoked and proven detrimental to the promisee. Naturally circumspect of the rules of contract, the essence remains equitably valid, and was best witnessed in Central London Properties v High Trees Ltdwhere Denning J remarked:

“The logical consequence, no doubt, is that a promise to accept a smaller sum in discharge of a larger sum, if acted upon, is binding notwithstanding the absence of consideration.”

Proprietary Estoppel

As founded and used most in property law, there are three main elements to qualifying action in proprietary estoppel, namely (i) that the landowner leads the claimant to believe he will accumulate some proprietary right, (ii) the claimant acts to his own detriment in reliance of the aforementioned right, and (iii) those actions are demonstrably in reliance of the expected right, where otherwise different choices might have been made. This was explained by Lord Scott of Foscote in Cobbe v  Yeoman’s Row Management Ltd who said:

“An estoppel bars the object of it from asserting some fact or facts, or, sometimes, something that is a mixture of fact and law, that stands in the way of some right by the person entitled to the benefit of the estoppel. The estoppel becomes a proprietary estoppel – a sub-species of a promissory estoppel – if the right claimed is a proprietary right, usually a right to or over land but, in principle, equally available in relation to chattels or choses in action.”

Estoppel within Public Law

This is often used where a member of a public body has issued assurances that (i) an action can be undertaken by  member of the public, or (ii) that the specific body will exercise its power to the benefit of the person enquiring. Where either fact has been proven correct, the designated department or authority is held liable to follow through on that action where reasonable, and in line with public interest, as was discussed in Southend-on-Sea Corporation v Hodgson (Wickford ) Ltd, although the applicable claim was never upheld after it was stressed by Lord Parker CJ  that:

“[I]t seems to me quite idle to say that a local authority has in fact been able to exercise its discretion and issue an enforcement notice if by reason of estoppel it is prevented from proving and showing that it is a valid enforcement notice in that amongst other things planning permission was required.”

Estoppel by (unjust) Conduct

This phrase is largely self-explanatory, but can be best surmised as visibly manipulative or unreasonable behaviour by one party toward another, for example when securing an annulment, as was explored in Miles v Chilton, where the groom falsely induced his fiancée into a marriage that was by all accounts, illegal, as the bride-to-be was in fact still married to her previous husband, despite his misleading her that the annulment had succeeded. The destructiveness of this self-created dilemma was explained by Dr. Lushington, who despite awarding in favour of the claimant, warned that:

“[H]ere the averment of marriage is made by the party having an opposite interest, and we well know that every one is bound by his admission of a fact that operates against him.”

Estoppel by Per rem Judicatam (or issue estoppel)

This is another family law approach, which translates that a judicial decision to grant nullity cannot be overturned after the fact, except in circumstances where the annulment is proven invalid, after which any party aside from the divorcing couple, can challenge the direction of the court. This form of estoppel can however, be found in criminal law cases, as was seen in Hunter v Chief Constable of the West Midlands Police and Others, where Lord Diplock commented that:

“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”

Estoppel through Acquiescence (or Laches or Silence)

As used in a number of fields, there are requisites that the party claiming estoppel has had their hand forced into complying with matters that they had in fact not been properly consulted upon, as was argued in Spiro v Lintern, where a husband was held to agree to the sale of his co-owned property, despite not having consented to his wife’s putting it up for sale, and the purchaser proving able to enforce the contract in his name through her individual representation. It is also applied in cases where a secondary party to a contract or notice, fails to challenge it within a reasonable period, after which estoppel of acquiescence can be used to deter any claim to the contrary, as was used in Kammins v Zenith Investments, where Lord Diplock again explained:

“[T]he party estopped by acquiescence must, at the time of his active or passive encouragement, know of the existence of his legal right and of the other party’s mistaken belief in his own inconsistent legal right. It is not enough that he should know of the facts which give rise to his legal right. He must know that he is entitled to the legal right to which those facts give rise.”

And in the U.S case Georgia v South Carolina, where it was held that:

“South Carolina has established sovereignty over the islands by prescription and acquiescence, as evidenced by its grant of the islands in 1813, and its taxation, policing and patrolling of the property. Georgia cannot avoid this evidence’s effect by contending that it had no reasonable notice of South Carolina’s actions. Inaction alone may constitute acquiescence when it continues for a sufficiently long period.”

Estoppel through Encouragement

Similar to acquiescence, this form of estoppel was discussed in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd,  where Oliver J defined it in the following passage:

“The fact is that acquiescence or encouragement may take a variety of forms. It may take the form of standing by in silence whilst one party unwittingly infringes another’s legal rights. It may take the form of passive or active encouragement of expenditure or alteration of legal position upon the footing of some unilateral or shared legal or factual supposition. Or it may, for example, take the form of stimulating, or not objecting to, some change of legal position on the faith of a unilateral or a shared assumption as to the future conduct of one or other party.”

Estoppel by Convention

Often used in contract law, this principle comes into effect when two parties have relied upon an assumed true statement of fact, only to learn otherwise after the actions undertaken have been shown as unreasonable or unlawful. Any wrongful decision to then undo the damage is by definition, estopped on those grounds, as was discussed in Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd, where Denning LJ  eloquently concluded that:

“When the parties to a contract are both under a common mistake as to the meaning or effect of it – and thereafter embark on a course of dealing on the footing of that mistake – thereby replacing the original terms of the contract by a conventional basis on which they both conduct their affairs, then the original contract is replaced by the conventional basis.”

Estoppel by Representation (or Pais)

Again found in many contractual matters, this doctrine is bought into effect when a party that has agreed to a change in the terms of the relationship (often supported by a promise of trusted representation of their own) later chooses to renege on that statement, despite the other party altering their position to accommodate that express arrangement. This was found in Royal Bank of Scotland v Luwum, where Lord Justice Rimer outlined that:

“[T]he clear sense of the arrangement was that Mr Le Page was making a representation or promise to Mr Luwum that the Bank would hold its hand on enforcing its rights for three months, and Mr Luwum changed his position in reliance upon that by borrowing £260 from friends and family in order to make a payment to the credit of the account, which was the very purpose of the arrangement that was made. In my judgment those circumstances had the consequence of estopping the Bank from reneging on its promise and starting the proceedings it did before the expiry of the three-month period.”

Estoppel by Deed (or Agreement)

This doctrine is applied when two parties agree to contract with each other for whatever intended gain or purpose, in the knowledge that the terms of the contract (or in these instances deeds) are based upon fraudulent fact, and nothing more. It is suggested that the motivation for such covenants is one of singular gain on the pretence that should the truth out, those facts will remain unchallenged. It is this kind of clandestine deception that was explored in Prime Sight Ltd v Lavarello, where Lord Toulson JSC mused:

“If a written agreement contains an acknowledgement of a fact which both parties at the time of the agreement know to be untrue, does the law enable on of them to rely on that acknowledgement so as to estop the other from controverting the agreed statement in an action brought on the agreement?”

Estoppel by Contract

Again, the terms of the contract can themselves prevent enforcement between disputing parties, as was discussed in Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd, where it was said:

“Where parties express an agreement…in a contractual document neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least so far as concerns those aspects of their relationship to which the agreement was directed. The contract itself gives rise to an estoppel…”

In closing, it must be iterated that the doctrine of estoppel exists as a rule of evidence and not a cause of action, therefore any idea that this principle can, and should, be wielded as a defence or prosecution, falls outside the intended design and usurps its undiluted use.

Global Law

Insight | February 2017

Global Law
Image: ‘Unity’ by Unknown Artist

The idea of a ratified ‘global law’ is a concept that once seemed fantastical, and yet by all accounts, appears now like the primary ingredient to social, industrial and civil equilibrium.

But how does this happen, and what steps might be needed to preserve the needs of the many from the wants of the few? To date, the concept of a single law is more convincing than any suggestion that genuine efforts are being taken to construct a jurisdiction without physical bounds, however it fails to prevent visionaries from imagining such a world, or pondering what form that framework might take.

Giuliana Ziccardi Capaldo, Full Professor of International Law at the University of Salerno Italy, discussed her idea of global law in 2015, and chose to use a web-like hierarchy to describe how each individual player would forge alliance with the next, because in her opinion:

“Global law is elastic enough to integrate the heterogeneous elements of the various and different legal orders into a unitary framework. It is up to the community of international legal scholars/lawyers to manage the complexity in the unit of the web of the global law system; the unitary framework retains the flexibility to allow for respecting the diversity of the plurality of embodied legal orders.”

Yet regardless of how one might perceive an ideology, the sheer scale of expectation asked of legal mega-firms and governmental bodies still seems disproportionate to the discipline required to undertake it. Having investigated current online debate, the results are discouraging to say the least, and when the world’s highest grossing law firm Latham & Watkins LLP offers no visible research, or even discussion of a unitary law, it suggests that perhaps the practice industry think-tanks are predisposed to monitoring investment strategies, over any notion that we may well be walking headlong into dispensation of justice from a centralised platform.

On a smaller scale, the benefits of a singular jurisdiction were recently implemented in October 2016 within Northern Ireland, and while not exactly a transcontinental shift, the objectives become evident, even if only from an administrative level, as was explained in a document published by the Northern Ireland Courts and Tribunal Service (NICTS), which said:

“There will no longer be County Court Divisions or Petty Sessions Districts and all relevant court documents have been amended to reflect this. The words “County Court Division of….” And “Petty Sessions District of……”will no longer appear on any court order or other documentation as court templates have been adapted.”

Whereas in the United Kingdom, we have a groundswell of opposition to the presence of Sharia laws, and if there was ever a reason for the unification of law, this concept would surely warrant a compelling body of evidence against the secular nature of unregulated doctrine.

Formed as part of this resistance, the website onelawforall.org.uk, is built upon a collective determination to remove the propagation of inequality through religious laws, in hope of the reestablishment of democratic values. This growing objection has been defined through a powerful rhetoric, claiming simply that:

“Sharia law is discriminatory and unjust, particularly against women and children.
Sharia courts in Britain are a quick and cheap route to injustice and do nothing to promote minority rights and social cohesion.”

It is suggested that the oppressive effects of this ancient law have been felt through gender specificity, which is not an ideology that could ever hope to find its way into the annals of any ‘new world’ law; and yet because there is no such codification, legal splinter factions are left free to flourish within the confines of domestic legislature.

In India, the application of a single industry law appears to provide huge benefits to small-scale factory owners, desperately trying to navigate the legal loopholes that strangle economic growth and preserve monopolisation.

With the design of improving manufacturing processes, the labor ministry created new legislation in order to overcome the problems faced by the nations entrepreneurs and workers alike, as explained by Mahendra Singhi, in her article for the Times of India:

“At present, small units have to comply with 44 Central labour laws and over 100 state laws…which discourages them to hire workers from the organized sector, and thus denying them basic rights…the government hopes that a single unified law will ensure less cost to the owner and better minimum wages, bonus and maternity benefits to the workers.”

It would seem for now at least, that while unitary rule and governance is constitutionally, commercially and quasi-socially acceptable, the thought of, or preclusion to, entrustment of a law written to serve a race of people, is both a bridge too far and paradoxically swept from the agenda; which while sounding trite in its definition, ought not mislead readers into believing a world law of some kind is not too far beyond our horizon.

This then raises the question of were a unitary law to become a reality, then how would those changes begin to materialise? Will a spark of legal renaissance ignite from within the people, or will the centralisation of power emanate from the core of contributory states?

Contrastingly, does commerce now helm the wheel of judicial evolution, or is politics driving that bus? In the latter event, it seems that the lines frequently blur, so recipients of information inevitably become less concerned with socio-political commentary than the motives underlying it, although whichever sector pushes first for answers, the time for such legal reimagining is overly ripe for discourse.

 

 

Future Law

Insight | February 2017

Future Law
Image: ‘Into the Future’ by Trilby Cole

The world is in an increasing state of flux, and we are all racing to keep up. While there are countless casualties of the speed at which this is happening, the emerging impact upon law, and how it is both written and applied, is in need of collective address. We cannot reasonably hope to continue existing as island communities, instead there is a genuine need to share a goal of jurisdictional interdependence; a process that is already in delicate motion, despite entrenched political and religious divergence, or the increased polarity of wealth.

How these legal adjustments will materialise is still hard to quantify with precision, but there is evidently a number of academic and professional opinions echoing a similar message, and it is perhaps time that the global community started to at least consider the plausibility a uniform rule of law, instead of assuming that the status quo can continue to remain effective.

Regular contributor to domestic industry news is The Law Society, whose recent article ‘The Future of Legal Services‘ touches upon a number of nationally indicative trends that convey a similar pattern to those held here; and key elements such as the growth of national and international economies, along with the quantum progression of technology, are instrumental in shaping emerging legal practices and the prevalence of market-adjusted pricing. However, it is just as important to note that the converging of political manifestos will ultimately produce a narrowing of access to justice, through global regulation and a fierce preservation of economic interests.

In fact, one of the many questions asked of law graduates seeking training contracts, is how they feel the merging of investment and banking sectors will influence the overall operation of multi-national law firms, as a growing number seek consolidation to navigate the undercurrent of change. While it is a reasonable question in itself, it demonstrates a lack of cognisant awareness to the effects of destabilisation, despite history showing that the only real constant is change.

In contrast, we need only look at driverless cars to appreciate the impact automation of transport will have upon civil litigation and road traffic accident claims, as after all who becomes liable when injury does occur? There are also suggestions that mechanised judges could prove the way forward when trying to manage the algorithms of robot-created journalism, and how best to decipher the rights from the wrongs, as was discussed in a recent paper in the European Journal of Law and Technology; an article that ponders not only possible extinction of the human prose, but the relevance of solicitors when complex cases require meticulous attention to detail, and a diverse range of case material to help develop laws.

Similarly, when an internationally administrative view is expressed, the cautionary sentiments remain just as poignant when considering that the reluctance to welcome organic growth leaves a lot to be desired. This concern was remarked by Angel Gurria OECD Secretary-General back in 2015, when she spoke at the UK Global Law Summit and warned:

“The classic model for the development of international law is not always adapted or even adequate to this rapidly changing environment. In contrast, the negotiation of major international conventions or agreements is often slow and painful. In some cases  it has come to a complete standstill.”

So when we contemplate the hybrid mechanisation of justice and legal discourse, we also embrace a fear that risks crippling those students seeking to secure their place in all areas of practice. Although there is no doubt that an empathic and world-experienced lawyer can undoubtedly help lead the charge into this new era of dispute resolution. However, such an endorsement is shallow by design if the industry does nothing to exploit attributive software in lieu of effective human centred mediation, as was pointed out by Adam Nguyen of Law Technology Today, who writes:

“Although technology is taking over many aspects of lawyer’s jobs, automated tools are adept at rescuing lawyers from low-level and repetitive tasks, such as document management, contract review, filing, docketing, billing and accounting which bear little connection to law practice but increasingly consume much of lawyers’ time.”

Whichever way we choose to look at it, the increasingly immediate need to synergise with autonomous (and ultimately supportive) forms of non-human legal administration (and even algorithmic case determination) is inching closer, and while it may send shivers up some spines, it would be unwise to overlook the total number of fail cases falling victim to poor preparation, and the unimaginative cross-referencing of legal resources; all of which dilutes down to shedding the fear in the face of this unavoidable truth, in order to nurture better lawyers, lawmakers and judges, regardless of geography and jurisdiction.

 

Criminal Law Terminology

Insight | February 2017

Criminal Law Terminology
Image: ‘Empty Kingdom’ by Sean Phillips

A crime can be defined both as any wrongful act causing harm to another person, or damage to another’s property, and any act that contravenes those proscribed by common law or statute. Similarly, criminal acts are actions requiring either rehabilitation of the offender and compensation for damages to property, or the victim’s psychological state,  which can also include incarceration in more serious cases (this can also be observed from a moral perspective inasmuch as actions that violate the rights and duties owed to the community), while the perception of criminal behaviour is also subject to various political and social factors, therefore can vary across nations.

A criminal definition is necessary in order to help distinguish a moral wrong from a civil wrong, and so criminal activity tends to be associated with some element of punishment when bought to trial, whereas a civil wrong is not considered an act of deviance, but a conflict of perspectives or contractual obligations.

The purpose of criminal law is to distinguish between the two previously mentioned wrongs, in order to help protect the public and the State from acts of aggression, or violent rebuttal; while the objectives of criminal sentencing are to allow an individual the opportunity to reflect upon any criminal act undertaken, and to help the public observe justice being done when miscarriages occur. In addition, the larger aim of sentencing is to maintain public order and minimise anxiety that could adversely affect productivity, and to help reduce crime through deviant punishment and protection of the public. Shown below are some common phrases used within criminal law:

Thin Skull Rule

This phrase means that despite any unforeseen vulnerabilities in a victim being bought to light during trial (or at case preparation stage), the amount of punishment or (tortious) compensation would remain as full as it would be should, or had, the victims been ‘normal’. An excellent case for this is R v Hayward, where the victim to a brutal domestic beating died of natural causes, yet the offender was held criminally liable.

Act of God (or Naturally Occurring Interventions)

These would constitute naturally occurring disasters such as floods, storms, bolts of lightening etc. that prevent criminal liability being placed upon a person.

Third-Party Interventions

Typically a lawsuit procedure, where the court allows a third person not originally part of the case, to become involved through joining either the plaintiff or defendant.

Medical Interventions

A phrase used to describe a medical procedure serving as an intervening act, which could break the chain of causality when establishing the cause of a victim’s death or serious injury. A case reference for this would be R v Smith, which involved the dropping of an injured solider on the way to hospital, an act alleged to have contributed to his death.

Breaking the Chain of Causation

A process whereby the manifestation of a victim’s actions or moral beliefs, exacerbate the wounding (and in some cases instigation of a death). A useful case for this is R v Blaue, where a Jehova’s witness refused a blood transfusion after being stabbed, thereby legally dying as a result of blood loss, instead of knife inflicted wounds.

Defendants Conduct Culpable

A term used where a defendant engages in set of behaviours or actions, that in and of themselves, bring harm to them, without the actions or inactions of another. In this scenario, a person or defendant cannot readily portray themselves as a victim, rather lacking mental capacity or sound mind and judgment. A case example would be R v Williams, where the victim was killed by stepping in front of a moving vehicle driven by an uninsured and unqualified driver, resulting in their criminal liability.

Actus Reus

The part of a crime that is concerned with identifying the conduct that criminal law deems harmful. It also describes what the defendant must be proven to have done (or failed to do) in circumstances that produce consequences attributable to moral guilt. The case of R v Miller provides that when waking up drunk to find his lit cigarette had started a fire in the home in which he was staying, the defendant simply moved rooms, rather than attempting to extinguish the fire; translating that his actions resulted in an act of arson.

Mens Rea

A term used to describe the element in a criminal offence relating to the defendant’s mental state. Examples of mens rea include intention, recklessness, negligence, dishonesty or knowledge. This legal principle plays a crucial role in ensuring that only blameworthy defendants are punished for their crimes, however, mens rea is not equivalent to moral guilt. A useful case example is Collins v Wilcockwhere it was found that when attempting to question a member of the public, a police officer grabbed their arm with the aim of physically restraining and harming them, as opposed to getting their attention.

Intention

How a defendant determines a consequence of his actions when he acts with the aim, or purpose, of producing that consequence. The case of R v Haigh showed that while the appeal jury had clear evidence a mother had intended to smother her child, a lack of mens rea reduced the verdict from murder to manslaughter.

Recklessness

When a defendant was aware of a risk attached to their conduct, and that the risk was an unreasonable one to take. A useful case for this is R v G, where the judges held that a minor was not capable of possessing the reasoning ability of an adult.

Negligence

When a defendant has behaved in way a reasonable person would not (see also recklessness). A perhaps extreme example of this is R v Adomako, where an anaesthetist failed to observe an oxygen supply disconnection that resulted in his patient’s death.

Novus Actus Interveniens 

A term used to describe a break in the chain of causation bought about by a new action, that alters the effect of injury (or death) of a person in such a way that alters the identity of the person culpable; or a free and voluntary act of a third party, that renders the original act a substantial and operating cause of injury or death. An example of this would be R v Jordan, where a stabbing victim had a fatal allergic reaction to a hospital administered drug, therefore altering the cause of injury and subsequent death; and in R v Kennedy, where the supply of heroin did not constitute liability for a users death.

Birth of the Human Rights Act 1998

Insight | February 2017

Birth of the Human Rights Act 1998
Image: ‘Against Forgetting’ by Marcia Bushnell

The Human Rights Act was brought into being as a consequence of the European Convention on Human Rights (ECHR), which was first formulated by the Council of Europe in 1950.

Founded upon the Universal Declaration of Human Rights (as used by the United Nations), ten countries first rallied for its formation, including Belgium, Denmark, France, Ireland Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. The Convention took effect in September 1953, with the primary directive of protecting specific fundamental rights among Member States of the Council of Europe, while the core values of the UK constitution enjoyed presumptions of liberty, representative government and the rule of law.

Before the ECHR became intrinsic to domestic law, Ministers often found themselves abusing discretionary powers, which amounted to a constitution largely beyond reproach, relying instead upon collective political norms for enforcement. This protracted period of neglect gave rise to an increase in administrative jurisdiction, and during the 1980s the courts began to adopt a more concrete conception of the rule of law, preferring instead to propagate such values as ‘freedom of expression’ ‘equality’ and ‘freedom from destitution’. However, presumptions followed that common law infringement upon these values would deem statute intervention unlawful, and it soon became conventional thinking; particularly in the well known R v Secretary of State for the Home Department ex parte Brind, where the domestic courts held that as the ECHR was not part of English law, the government was able to restrict media coverage of Irish extremist groups, despite clear encroachment upon the right to freedom of expression, and a sadly failed appeal by the journalists fiercely defending that right.

In fact, it wasn’t until 1998 that the British constitution accepted that using convention as a means of entrusting civil liberties could no longer be tolerated, and so on 9 November 1998, the Human Rights Act 1998 was enacted by Royal assent. From 2 October 2000 onward, all rights and freedoms previously safeguard by the ECHR were now directly enforceable though UK common law, and the sovereignty of Parliament was agreed.

This upheaval in institutional law was particularly significant, in that for the first time English judicial authority was awarded greater scope for case interpretation, where historically such matters were determined through ministerial debate. This was however, a change that was not without its detractors, nor ignorant of an entrenched inclination to overlook common law in lieu of political fervour.

Public Body Duty of Care in Tort

Insight | February 2017

Public Body Duty of Care in Tort
Image: ‘Vicarious Trauma’ by Amy Gaskin

Within the field of tort, there are a number of victims that are recognisable for damages in extenuating scenarios. These include rescuers, involuntary participants, communicators of shocking news, witnesses to self-harm and those held under an assumption of responsibility by the defendant.

There are of course exemptions from such events, in particular public bodies (despite being funded by tax payers money). One argument for such paradoxical exclusion is that making public bodies pay for their mistakes would place a strain upon public services funds, and lead to division of public resources in times of need.

This ironically raises the question of whether liability should exist when the public body has the power to act despite no duty to do so? The House of Lords determined that no duty of care was owed in respect to negligent use of power, unless that action made the claimant’s situation worse than it was before, while jurisprudence around the European Convention of Human Rights (ECHR) and the Human Rights Act 1998 (HRA) altered the previous threshold regards duty of care.

In D v East Berkshire Community NHS Trust and others, ‘defensive practices’ were seen as a consequence of liability on the part of the local authority staff, which would compromise their standard of work, therefore it was subsequently felt that a duty of care was owed to children in extraction cases, but not to all parties.

In the earlier case Osman v Ferguson, and the later Osman v UK, the police were initially offered immunity from a duty of care until the parents of a murdered pupil appealed to the European Court of Human Rights (ECtHR), under the observance that while art.6 of the Human Rights Act 1998 provided public body immunity, it denied the family from receiving a fair trial, while no attempts were made to distinguish Osman from the earlier Hill v Chief Constable of West Yorkshire, despite marked differences.

Of notable interest, is the knowledge that the fire service has no duty of care to respond to an emergency call or to turn up and attempt to fight a fire. It does however, have a positive duty not to make matters worse in the event that they do attend such events, albeit with the caveat that it does not have a duty of care to prevent the fire from spreading. On the upside, at least the ambulance service does owe a duty of care to individual claimants in specific circumstances, while also possessing a duty to respond to emergency calls, although this is only because the domestic courts view the service as an extension of the National Health Service (NHS), which itself owes a duty of care to all of its patients.

Much like the fire service before, the coastguard owes no duty of care to respond to calls from people in trouble at sea, only a duty to not make matters worse when they arrive. While in contrast, the British armed forces are only held to owe a duty of care when the defendant can be said to have assumed responsibility to the client, just as little comfort is taken in the knowledge that there is no duty of care owed to the public under battle conditions, or in times of threat.