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vypracovaná otázka (19kový) č. 11 (q_11.doc)

11)

1. Remedies

The main remedy for the victim of a tort is an award of damages. Damages are a sum of money payable by the defendant. The defendant may however choose, or be required by law, to insure against the payment of damages. Tort damages are always unliquidated; i.e. they clearly cannot be fixed by prior agreement between the parties. There are three main types of damages:

Compensatory damages

Their purpose is to put the plaintiff so far as money can do, in the position that he was in before the tort was committed. This sum must take into account future loss, since usually only one action may be brought. The damages awarded will be itemised under several “heads”, for example loss of amenity, pain and suffering, loss of expectation of life, loss of income.

Nominal damages

If a tort is actionable per se, and the plaintiff proves the elements of tort without showing actual loss, he will be awarded a small, for example one pound in recognition of the fact that he has suffered a wrong.

Exemplary damages

These are granted in rare cases, their purpose being to punish the defendant in addition to compensating the plaintiff. They may be awarded for oppressive acts of public officials, or when the defendant’s conduct has been calculated to make a profit for himself.

A valuable feature of this remedy is the power of the court to grant an interlocutory (until trial) injunction. Thus a temporary remedy may be obtained within days or even hours of the complaint arising. The matter must however be serious, and the judge must consider that there be a high change of success for the plaintiff at a full hearing of the case.

The Effect of Death on an Award of Damages

At common law if either the plaintiff or defendant died any right of action died with him. Since the Law reform (Miscellaneous Provisions) Act 1934 rights of action now survive in favour of a deceased plaintiff and against the estate of a deceased defendant, except that:

1. Actions for defamation do not survive
2. Exemplary damages cannot be awarded to the estate of a deceased plaintiff

When a potential plaintiff dies, his unexercised rights to compensation survive. This means that the personal representatives (the executors or the administrators) of the plaintiff may claim the compensation instead, and add it to the plaintiff’s other assets, so that it can be distributed in accordance with the plaintiff’s will or intestacy. Spouses and parents of minor children can claim a fixed sum for bereavement.

2. Family law – divorce

Divorces and separations come into effect when marriages are no longer working properly; for some reason the marriage has broken down and either, or both, of the parties now want to separate and perhaps put an end to the marriage. Divorce is not the only way, but in English law there are five other legal remedies that can be used: divorce, annulment, judicial separation, separation by informal agreement, separation under a written deed and separation by magistrates’ court order.

The process for sorting out disputes between divorcing spouses has a lot in common with an action for breach of contract or negligence. Usually each side is represented by a separate lawyer. Each puts forward his or her own side of the case. A judge or a registrar decides the result mainly on the evidence that the two sides put before them.

At present all divorces start in the county courts. Not every county court hears divorces, but some courts are designated divorce county courts and deal with divorces along with their other business. In London, the Divorce Registry at Somerset House is the equivalent of a divorce county court.

Getting a divorce is now much simpler than it used to be. In the vast majority of cases couples no longer have to go to court and answer questions about the reasons their marriage broke down. The whole process is just a matter of getting the paperwork right.

The process starts with a petition for divorce, which is filed with the court. A husband and wife cannot jointly petition for divorce; one of them must start. So, the petitioner (the person asking for the divorce, resident or domiciled in this country) is required to clarify two things:

Has the marriage lasted three years?

The three-year rule will generally prevent a divorce until the marriage is at least three years old so that the divorce is not too easy. The rule only allows a divorce petition to be presented within three years of the marriage if: the other spouse has been guilty of exceptional depravity, or the case involves exceptional hardship

Has the marriage broken down irretrievably?

The evidence of the breakdown is provided by proving one of five facts – petitions will have to be based on one of the following:

1. adultery has been committed and it is intolerable to live together
2. one of the spouses has behaved in such a way that it cannot reasonably be expected to live with him/her
3. one of the spouses deserts the other for a period of at least two years
4. the husband and the wife have lived apart for at least two years, and they consent to divorce
5. the husband and the wife have lived apart for at least five years (the consent is not necessary)

The parties:

Petitioner <---> Respondent