Tort and Regulatory Law in England and Wales

Abstract

This chapter deals primarily with the law as it applies in England and Wales, it is however accompanied by certain observations that hold true for all of the legal systems of the United Kingdom (UK). As an initial comment, it should be pointed out that the term “administrative law” has a very particular (and in comparison to the manner in which it is used in civil law jurisdictions, relatively limited) meaning in UK law. Administrative law, which forms a sub-category of public law more generally, normally encapsulates the law relating to the “composition, structures, powers, duties, rights and liabilities of the various organs of government which are engaged in administering public policies”.1 In the sense that the term “administrative law” is used in this paper, in UK law, it would more usually be encompassed by the term “regulatory law”. The general position in UK law is that the common law is relegated to a subsidiary role in those situations where State sponsored regulatory regimes have been put into place. This general view was endorsed obiter dictum by the House of Lords in the high profile environment torts case of Cambridge Water Co. Ltd v Eastern Counties Leather [1994] 2 Appeal Cases (AC) 264: “[...] given that so much well-informed and carefully structured legislation is now [...] in place [...] there is less need for the courts to develop the common law to achieve the same end.”2 Indeed it could be said that regulatory law plays the prime role in regulating the environment, supplemented by judicial review controls, with the common law playing very much a secondary, supporting role.3