Intentional Delicts

Front 1

What is the definition of assault in delict?

Back 1

"Non consensual invasion of bodily integrity"

Ewing v Earl of Mar

- Use or threat of physical force.

- Reasonable fear of harm.

Front 2

What defences are available for assault?

Back 2

1) Consent (refer to definition)

2) Self defence (Lane v Holloway) & believes there is a threat of imminent harm (Ashley)

3) Reasonable Chastisement of Children (Criminal Justice (Scotland) Act 2003 / A v United Kingdom - human rights breach

4) Authorisation Tolmie

Front 3

What is the definition of Seduction?

Back 3

Woman consents to sexual intercourse but her consent is vitiated by the man's use of deception in establishing consent, for example, by abusing a position of trust - Murray v Fraser

Front 4

What is the definition of Entrapment?

Back 4

Fraudulent inducement to enter a marriage which is void (one party already married) - Burke v Burke

Front 5

What is the definition of Enticement?

Back 5

A entices B to leave B's family, B's family can pursue. Family =/= spouse - Law Reform (Husband and Wife (Scotland) Act 1984)

Front 6

What is the definition of Harassment

Back 6

i) A course of conduct (on at least two occasions) which;

ii) causes a person alarm or distress;

iii) which a reasonable person would conclude amounted to harassment.

Protection from Harassment Act 1997

Front 7

Can a company be vicariously liable for harassment by their employees?

Back 7

Yes - Roberts v RBS (542 nuisance calls in 14 months)

Front 8

What defences are available to harassment?

Back 8

i) For the purposes of preventing crime

ii) Authorised by law

iii) Reasonable

Front 9

What court actions can be taken to tackle harassment?

Back 9

i) interdict - breach = contempt of court

ii) Non-harassment order - breach = criminal offence.

iii) Damages - compensation for anxiety/financial loss

Front 10

What is the general principle underpinning economic delict?

Back 10

A can wield economic pressure on B to act to his own or another's economic harm, but the means must be lawful. If unlawful, delictual liability arises.

Allen v Flood (shipwrights strike action)

Front 11

What is intentional economic loss inflicted by unlawful means?

Back 11

A commits a wrong (theft, breach of contract, inducement to breach contract) against B with the intention of causing economic loss to C.

- OBG v Allan

Front 12

What are the characteristics of an inducement to breach of contract?

Back 12

Global Resources Group:

1. B must breach contract with C

2. A must know his acts will result in a breach of contract (aware of contract, can't turn blind eye)

3. A must intend to induce breach of contract (don't need to intend harm)

4. A must in fact induce B (British Motor Trade Ass.)

5. Can breach be justified? (Brimelow)

Front 13

What is the principle underpinning Conspiracy?

Back 13

A & B intend to cause economic harm to C. C could withstand the economic pressure from one actor, but not many.

Quinn v Leathem (butcher mafia)

Front 14

Define the two types of Conspiracy.

Back 14

Lawful means: Main motive to harm and have to prove economic loss. Harris Tweed & Scala Ballroom.

Unlawful Means: Intention to harm C, but might not be the only motive. Total Networks

Front 15

Outline 'Misuse of Private Information'

Back 15

i) People have a reasonable expectation of privacy

i) Balance Article 8 (right to respect for private and family life) with Article 10 (freedom of expression).

Front 16

What is considered when justifying the publication of private life?

Back 16

Does it contribute to a debate of general interest? Must balance public interest with privacy - Von Hannover cases

Goodwin - in charge of RBS, national bank, sheggin an employee. Public interest.

Ferdinand - Infidelity. Was a role model.

Front 17

What is Goodwill and how is it established?

Back 17

Goodwill = the features of a product which attract people to trade with that business. Includes trade names & 'get up' (distinctive container) - Reckitt & Coleman Products

Use of ordinary/descriptive words can make it difficult to establish goodwill - Cellular Clothing/Salon Services

Usually restricted to a common field of activity - Scottish Milk

Front 18

Can an overseas business establish goodwill in this jurisdiction?

Back 18

Yes - must have sufficient business & customer numbers in this jurisdiction (Starbucks) but doesn't necessarily need premises here.

Front 19

What is 'passing off'?

Back 19

Defender misrepresents their product by using the same or similar device that forms the goodwill of the pursuer. Pursuer must establish:

i) goodwill exists (see previous)

ii) the misrepresentation is likely to cause confusion (Stringfellow - not moron in hurry)

iii) damage or likelihood of damage (Fage - don't have to be of worse quality)

Front 20

What remedies are available for a 'passing off' action?

Back 20

primary remedy is interdict. establishing loss is difficult.

Front 21

What is confidential information?

Back 21

Information which has the 'necessary quality of confidence about it' (Scotsman Publications)

i) must be specific (Bailey v Graham)

ii) can be embodied in property (Waste Management Systems)

iii) a few people can know about it and it still be confidential (Exchange Telegraph)

Front 22

What constitutes a breach of confidence

Back 22

Unauthorised use of confidential information to the detriment of the pursuer.

Can only be breached while the information is not public knowledge (Exchange Telegraph)

Front 23

When can a breach of confidence be justified?

Back 23

When is it in the public interest (Lion Lab v Evans/X v Y3)

Front 24

What constitutes 'trade secrets'

Back 24

Information that the disclosure of which would offer an advantage to competitors.

Cannot form part of the employee's stock of knowledge, skill and experience - Force India v Malaysia Racing Team

Front 25

What is trespass?

Back 25

Temporary intrusion without permission, not criminal per se in Scots Law, though if damage is done to property:

i) damages awarded

i) interdict granted if trespass likely to occur again and if there is potential for damage (Winans v Macrae)

Front 26

What is encroachment?

Back 26

Person builds beyond their property boundaries.

Front 27

What is In aemulationem vicini?

Back 27

A uses his land in a way detrimental to B's enjoyment of his land. Must intend to harm B. No intent = no nuisance.

More v Boyle (water pipes)

Front 28

What is Scot's Law concerning moveable property?

Back 28

Scots law offers remedies for the unlawful occupation of property be it heritable or moveable (Phestos Shipping)

Front 29

What is Defamation?

Back 29

Communication of false statements about an individual which are detrimental to the honour, character or reputation - Sim v Stretch

Defender has to prove the communication is:

a) true

b) without intent to harm

Front 30

How can the statement be communicated?

Back 30

i) written, oral or pictorial (Monson v Tussauds)

ii) may only be to the pursuer (Ramsay v McLay)

iii) to a third party

Front 31

Who can sue for defamation?

Back 31

i) natural person

ii) small group

iii) commercial entities (North of Scotland Banking) - letter alleging 'juggling' funds

iv) local/public authorities cannot (Derbyshire County Council)

Front 32

How do we tell if a statement is defamatory?

Back 32

1) "would lower the pursuer in the estimation of right thinking members of society generally." (Sim v Stretch) (Crow v Johnson = reasonable people might differ)

2) Consider the whole text (MacAvennie)

3) May arise form innuendo/implication (Tolley v Fry)

Front 33

What defences are available for defamation?

Back 33

i) Veritas (justification) = all facts must be true (Fairbairn v SNP)/what can be proved is so bad you don't need to prove everything (Rothschild)

ii) Vulgar Abuse = (McGrath v Dawkins) funny amazon review

iii) Fair comment = (Joseph v Spillar) public interest

iv) Privilege = Flood v Times/Galloway

v) In rixa = (Carroll v BBC) heat of argument.