Defences and Remedies (AQA A-Level Law): Revision Notes
Defences and remedies
Introduction
In tort law, once a claimant has established that the defendant is liable, there are still mechanisms through which the defendant may challenge or reduce liability. These mechanisms are known as defences. If the claimant is successful, they will be entitled to a remedy – typically compensation or a court order. Understanding both defences and remedies is essential, as they determine the final outcome of a tort claim and whether the claimant receives any compensation or other form of relief.
This material forms the foundational knowledge that underpins the entire tort law topic. While you may not face a full exam question solely on this area, you must be familiar with these concepts and use the terminology accurately throughout your answers.
This content supports Paper 2 assessment.
Defences in tort law
What are defences?
Just as in criminal law, defendants in civil law cases have ways to challenge or refute a claim brought against them. However, there are significantly fewer defences available in civil law compared to criminal law.
Defences operate by shifting responsibility and blame from the defendant back towards the claimant. Rather than denying that the tort occurred, a defence accepts that the incident happened but argues that the claimant bears some degree of responsibility for their own loss or injury. This approach reduces or eliminates the defendant's liability by demonstrating that the claimant contributed to, or accepted the risk of, the harm they suffered.
How defences work
When a defendant successfully raises a defence, they are essentially arguing that although they may have committed a tort, the claimant should not recover full damages (or any damages at all) because of the claimant's own conduct or decisions. The defence diverts blameworthiness away from the defendant and redirects it towards the claimant, suggesting the claimant was, to some extent, responsible for causing or contributing to their own damage.
The availability and success of a defence depends on the specific circumstances of each case and the type of tort involved. Unlike the substantive elements of a tort (which the claimant must prove), the burden of proving a defence typically falls on the defendant who raises it.
Remedies in tort law
What are remedies?
A remedy is the legal solution or relief that a successful claimant receives after proving their case in court. Remedies serve to address the harm suffered by the claimant and provide some form of compensation or prevention of future harm.
In tort law, there are two principal types of remedy available to successful claimants: damages and injunctions. The choice of remedy depends on the nature of the tort, the type of harm suffered, and what outcome the claimant seeks.
Damages
Damages are monetary compensation awarded to the claimant. The fundamental purpose of damages in tort law is to restore the claimant, as far as money can achieve, to the position they would have been in had the tort never occurred. This principle is sometimes called restitutio in integrum (restoration to the original position).
The court calculates damages by assessing the financial value of the harm the claimant has suffered. This may include:
- Physical injuries and pain
- Property damage
- Financial losses (such as lost earnings or medical expenses)
- Emotional distress and loss of amenity
While damages aim to return the claimant to their pre-tort position, this is often impossible to achieve perfectly with money alone. For example, no amount of money can truly restore a lost limb or erase a traumatic experience. Nevertheless, damages represent the law's best attempt to provide fair compensation using financial means.
Injunctions
An injunction is a court order that requires the defendant to stop engaging in particular conduct. Unlike damages, which compensate for past harm, injunctions are forward-looking remedies that prevent future harm or continuing wrongdoing.
Injunctions are most commonly granted in certain types of torts, particularly:
- Trespass – where the defendant is ordered to stop entering the claimant's land
- Nuisance – where the defendant is ordered to cease activities that interfere with the claimant's use and enjoyment of their property
An injunction is a discretionary remedy, meaning the court is not obliged to grant it even if the claimant proves their case. The court will consider whether an injunction is the appropriate remedy given all the circumstances, including the severity of the harm, the defendant's conduct, and whether damages would be an adequate alternative.
Financial implications of civil litigation
The costs rule
Beyond the remedy itself, claimants and defendants must be aware of the financial risks associated with civil litigation. The general rule in civil cases is that the losing party must pay the winning party's legal costs in addition to their own legal expenses. This "loser pays" principle means that an unsuccessful claimant will face a substantial financial burden, having to cover both their own legal fees and those of the defendant.
This costs rule makes bringing a civil claim a risky undertaking, particularly for claimants without substantial financial resources or appropriate legal expenses insurance. The potential costs liability can act as both a deterrent to weak claims and a barrier to access to justice for those with legitimate grievances but limited means.
Understanding this costs dimension is crucial when advising on whether to pursue a tort claim, as the financial risk may outweigh the potential remedy even where the legal merits of the case are strong.
Exam guidance
Application in exam answers
Although you are unlikely to face a complete exam question dedicated solely to defences and remedies, this knowledge forms essential underpinning material that you must integrate throughout your tort law answers. Examiners expect you to:
- Accurately use the terminology of defences and remedies
- Understand the purpose and limitations of each type of remedy
- Recognize when defences might apply in problem scenarios
- Appreciate the practical implications of the costs rule
Assessment in Paper 2
This content may appear in Paper 2 through:
- Multiple-choice questions testing your understanding of key concepts such as the purpose of damages or the nature of injunctions
- Short-answer questions requiring brief explanations of remedies or defences
- Long-answer questions where you must apply these principles alongside substantive tort law when analyzing scenarios or evaluating the law
When tackling problem questions, always consider what remedy the claimant is seeking and whether any defences might be available to the defendant. In essay questions evaluating tort law, you should assess whether the available remedies adequately compensate claimants and whether the defences strike a fair balance between protecting defendants and ensuring justice for victims.
Remember!
Key Points to Remember:
- Defences shift blame from the defendant back to the claimant, suggesting the claimant bears some responsibility for their own harm
- Damages aim to restore the claimant financially to their pre-tort position, though money cannot always achieve this perfectly
- Injunctions are court orders requiring the defendant to stop harmful conduct, commonly used in trespass and nuisance cases
- The loser pays rule means unsuccessful parties must pay both their own and the winner's legal costs, making civil litigation financially risky
- This knowledge is foundational material that supports all of tort law and must be applied accurately in exam answers, particularly in Paper 2