Legal Ignorance in England and Wales: A Study of Contract, Tort, Unjust Enrichment and Civil Procedure Law

Abstract

This article was written as part of a comparative law project to consider how different European legal systems (common and civil law) address the problem of legal ignorance in private law, that is, the extent to which the rules of contract, tort and unjust enrichment make allowances for ignorance of the law by legal actors. It also addresses the question of civil procedure and whether legal ignorance can provide a ground for disapplying or postponing the commencement of limitation periods. The aim of this article is to identify both the common law response and the motivation of the courts in this field to facilitate comparison with civil law systems. In seeking to understand common law legal reasoning, the starting point remains that citizens should be encouraged to familiarize themselves with the law. The law needs to set rules for the benefit of society in general. Issues such as security of transactions, legal certainty and efficiency also play a role. Nevertheless, some allowance is made for legal ignorance in the interests of fairness, although such examples are often controversial and subject to ongoing academic debate.