Tom Matusiak and Harriet Chapman look at some new torts created by judges in recent years.
In the age of big data, fake news, drones, trading algorithms and driverless cars – overlaid with the uncertainties and transition that Brexit brings – litigants in the courts of England can rest assured that judges strive to bring fairness to the challenges presented by society’s evolution.
The two main sources of English law are: (i) legislation promulgated by parliament; and (ii) the principles and remedies created by judges. The English common law has been developed over the centuries by judges; that process continues. One of the areas most influenced by judges is tort, which can roughly be described as the civil law of non-contractual duties (or ‘delict’ as the equivalent is called in some jurisdictions). Negligence is an example of a tort.
In striving to do justice and/or fill gaps in the law, judges have created new causes of action, or reasons for getting damages or another remedy. This happens rarely but in recent years the judiciary has been active in identifying a number of new torts (or clarifying unusual torts):
- Knowingly inducing or procuring a person to act in wrongful violation of rights under a judgment.
This tort, declared as arguable this year in Marex Financial v Garcia  EWHC 918 (Comm), seeks to protect the economic interest that a successful litigant has in a judgment awarding damages in their favour. It seeks to remedy, for example, asset-stripping of a company by those trying to prevent successful enforcement of a judgment against that company.
- Malicious prosecution of civil proceedings.
It is long established that there is a remedy for ‘malicious’ prosecution of criminal proceedings. In 2016, the Supreme Court decided that protection of the interest in due process extends to ‘malicious’ instigation of civil proceedings, giving a potential remedy where civil court proceedings are brought without legitimate reason and without belief in their foundation. In the case, Willers v Joyce  UKSC 43, Lord Toulson said that the common law is “prized for its combination of principle and pragmatism”.
- Intentional infliction of mental suffering.
A late 1800s case established this rarely cited tort, which protects an interest in mental health. In 2015, the circumstances of Rhodes v OPO  UKSC 32 (which involved the proposed publication of a book and e-book) gave the Supreme Court the chance to hone the tort. The conduct element of the tort is words or conduct directed at the claimant for which there is no justification or excuse. The mental element is an intention to cause at least severe mental and emotional distress. The consequence element is physical harm or recognised psychiatric illness.
- Misuse of private information.
Historically, protection of interests in private information has been covered by the law of confidentiality. Vidal-Hall v Google  EWHC Civ 311, a 2015 case concerning web browser histories, marked a pivotal point in the separate consideration of confidentiality and privacy. The wrong of ‘misuse of private information’ was labelled a tort for the purposes of fitting a claim into a ‘gateway’ for service out of the jurisdiction. This was said to not create a new cause of action, but simply gave the correct label to an action that already existed. The court acknowledged, however, that “there may be broader implications … for example as to remedies, limitation and vicarious liability” and the tort is now developing in cases linked to phone hacking.
In 1628 Sir Edward Coke wrote of English law that: “Reason is the life of the law, nay the common law itself is nothing else but reason.” In 2017, there is big data technology attempting to predict the outcome of judicial decision-making and even speculation about robot judges using artificial intelligence to give judgments. These technologies presumably assume that the law stays the same. But the law doesn’t stay the same. Judges continue to use reason and natural intelligence to mould the law to society’s new contours.