justice

Definition + types

• Oxford English Dictionary defines justice as "just conduct, fairness"

justice in the law

• whole purpose of law is to promote justice

• there are many occasions where law and justice naturally coincide

  • however, this is not always the case, there are occasions when they do not.

• justice can be seen in the idea of conformity

  • applying the rules in the same way to all people

  • basis of the doctrine of stare decisis in common law, treating like cases alike

rule of law

• based on the principle that there is a duty to act fairly

  • no one is:

    1. above the law

    2. punishable except where there is a distinct breach of the law which is established in court

3 types of justice

According to the law, justice can be:

1. procedural

2. substantive

3. corrective

procedural justice - 6 points

1. Key Points

2. When Is English Law Procedurally Just?

3. Institutions Supporting Procedural Justice

4. Safeguarding Procedural Justice – Access to Justice

5. Legal Aid Issues – LASPO 2012

6. Impact on Procedural Justice

procedural justice - key points

• Definition: Procedural justice is concerned with ensuring that the process by which decisions are made is fair and impartial.

• It requires that procedures and systems are in place to ensure that justice is achieved in practice.

• It focuses on how laws made by Parliament and interpreted by judges are applied fairly.

procedural justice - When Is English Law Procedurally Just?

• When it treats like cases alike.

• When it allows anyone with a legitimate grievance to come before the court.

• When cases are heard in a fair and impartial way.

procedural justice - Institutions Supporting Procedural Justice:

• Police

• Courts

• Judiciary

• Juries

• Appeal systems

These provide a structure within which justice can be delivered.

procedural justice - Safeguarding Procedural Justice – Access to Justice

• Everyone has a right to a fair hearing and to understand their legal rights and duties.

• Many people need help to access and use these rights – this is the role of legal aid.

procedural justice - Legal Aid Issues – LASPO 2012

• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) reduced legal aid.

• In April 2013, the government cut the legal aid budget by £350 million.

• Funding was removed from many civil disputes, including:

  • Housing

  • Clinical negligence

  • Immigration

  • Welfare benefits advice

  • Employment issues

  • Family law (except domestic violence cases)

procedural justice - Impact on Procedural Justice:

• The idea that courts are open to all depends on fair legal funding.

• Courts are only genuinely accessible if people can afford adequate representation.

• In theory, anyone can bring a case – but without legal aid, the right to a fair trial is undermined.

corrective justice - 2 points

1. Appeals

2. Damages in Civil Law

corrective justice - Appeals

• The existence of appeal courts helps ensure that miscarriages of procedural justice can be corrected.

• The Criminal Appeals Act 1995 allows the Court of Appeal to overturn a conviction if it is deemed unsafe.

• Notable miscarriages of justice include:

  • The Birmingham Six

  • The Guildford Four
    These cases show that the legal system does not always deliver justice.

• Under the Criminal Justice Act 1998, the prosecution may also appeal against unduly lenient sentences.

corrective justice - Damages in Civil Law

• Damages represent a key form of corrective justice in civil cases.

• Other discretionary remedies include:

  • Specific performance

  • Rescission

a) Negligence

• The aim of damages is to restore the claimant to their pre-breach position, as far as money can do so.

• If the claimant is partly at fault (contributory negligence), the award is reduced accordingly.

b) Contract Law

• The aim of damages is to place the claimant in the position they would have been in if the contract had been properly performed (known as loss of bargain).

• Only losses that were within the reasonable contemplation of both parties at the time of contract are recoverable – Victoria Laundry is an example.

• This shows that damages are awarded based on the merits of the claim, not automatically in proportion to the harm.

substantive justice - 2 points

1. Key Points

2. Questions Raised by Substantive Justice

substantive justice - key points

• Substantive justice is concerned with whether the actual rules and laws themselves are just – e.g., rules on offer, acceptance, and other legal principles.

• It looks beyond how laws are applied (procedural justice) and focuses on what the laws say and whether those laws lead to fair outcomes.

substantive justice - Questions Raised by Substantive Justice

• Has the law failed to achieve a just outcome in a particular case?

• Are the courts able to impose a fair solution when there are conflicting claims between two parties?

• Was a fair decision reached in a specific instance?

theories

• Natural Law

• Positivism

Natural Law

Key Thinker: St Thomas Aquinas (13th Century)

• Natural law theorists reject positivism.

• They believe that a law’s validity depends on its alignment with a higher moral authority.

• If a man-made law does not satisfy this moral authority, it is considered to lack validity.

• Aquinas believed that:

  • Natural law is a moral code based on what humans are naturally inclined towards – i.e., what is good.

  • Positive divine law (e.g., the Ten Commandments) and positive human law must align with natural law.

Positivism

Key Thinkers: John Austin, H.L.A. Hart

• Positivists argue that legal and moral questions should be kept separate.

• John Austin stated that:

  • A law is simply a command from a sovereign (e.g., Parliament in the UK),

  • Obedience is a habit of the people,

  • It is backed by a sanction.

• Criticism of this view:

  • A law can be legally valid even if it is morally wrong – it’s then up to individuals to decide whether to obey.

  • Example: The OAPA 1861 is outdated; although judges interpret it to suit modern values, critics argue that Parliament, not the judiciary, should update such laws.

ITT + offer + acceptance - justice provided

1. FISHER v BELL & PARTRIDGE v CRITTENDEN

   • The justification for these decisions is based on the traditional view of freedom of contract.

   • If a shop display or advert were considered an offer, the shop owner would lose the freedom to choose whether or not to contract.

   • A customer could enter, accept the offer, and form a legally binding contract, even if the shop owner didn’t intend to sell.
     This could lead to unjust outcomes, such as liability for selling prohibited goods (e.g., to underage customers).

2. LAPSE OF AN OFFER

   • An offer will lapse after a reasonable amount of time.

   • It would be unjust to leave the offeror waiting indefinitely.

   • The offeree must be aware that failure to accept within a reasonable time will cause the offer to lapse.

3. REVOCATION OF AN OFFER

   • It is only just that an offeror can revoke an offer at any time before acceptance, as their circumstances may change.
     However, once performance has begun, revocation is no longer possible — as shown in ERRINGTON v ERRINGTON.

ITT + offer + acceptance - justice NOT provided

1. POSTAL RULE – ADAMS v LINDSELL (1818)

   • The court held that a valid contract was formed at the moment the letter of acceptance was posted.

   • This may seem unjust, as the offeror may not know that there has been an acceptance.
     However, the court recognised that the offeror can protect themselves by requiring acceptance to be communicated personally by a specific date — as shown in HOLWELL SECURITIES v HUGHES.

2. ELECTRONIC & INSTANTANEOUS COMMUNICATION

   • Accepted when received, not when sent.
     It would be unjust to argue that a message sent at 3am created a contract when the offeree may not see it until 9am.

   • BRINKIBON: Acceptance is only valid when it can reasonably be expected to be read.

   • MONDIAL: If sent outside office hours, acceptance is only effective when office hours resume.

consideration - justice provided

1. DUTY IMPOSED BY LAW

   • A promise to perform a duty that the law already requires is not sufficient consideration.

   • Example: COLLINS v GODEFROY – This is because the party should not be able to enforce additional benefits for an obligation they are legally required to perform.

   • However, if one person goes beyond their legal duty, they can enforce the promise.

   • Example: GLASBROOK BROS – This shows that exceeding the legal duty creates valid consideration.

2. PART PAYMENT OF DEBT

   • Part payment of a debt does not provide sufficient consideration for the full debt.

   • This rule comes from PINNEL’S CASE (1602), where it was held that a creditor can still claim the remainder of the debt, even if they agreed that part payment would settle it.

   • Example: D&C BUILDERS & REES (1966) – Reinforces the principle that part payment is not enough consideration.

     • This is especially true where creditor has behaved in a way which is immoral → this provides justice

consideration - justice NOT provided

1. PROMISE FOR ADDITIONAL WORK – STILK v MYRICK

   • In STILK v MYRICK, the court's decision may not seem just. The sailors were promised additional payment for working beyond their normal workload but were not given the promised money.

   • This could be seen as unfair.
     However, if D has done substantially more than what was identified in the original contract, they can enforce a promise for additional payment.

   • Example: HARTLEY v PONSONBY – Demonstrates that exceeding the contract terms can lead to enforcement of a promise for more money.

2. THIRD-PARTY RIGHTS

   • The general rule is that third parties (those not part of the contract) cannot sue or be sued under the contract.

   • TWEDDLE v ATKINSON shows how this rule can sometimes be unduly harsh and unjust.

   • The rigidity of this rule was later recognized in JACKSON v HORIZON HOLIDAYS.

   • However, the Contract (Rights of Third Parties) Act 1999 gave wider recognition to the interests of third parties, making the law more just

intention to create legal relations - justice provided

1. INTENTION TO CREATE LEGAL RELATIONS
   The law will not enforce a contract if there is no intention to create legal relations.

• Social agreements are generally not binding, but they can be, especially when clearly set out in writing and signed.

  • Example: SIMPKINS v PAYS (1954) – An agreement to share lottery winnings was held to be legally binding, as all parties had contributed.

  • This is just, as there was clear mutual commitment.

2. COMMERCIAL AGREEMENTS
   In commercial contexts, the law presumes there is an intention to create legally binding contracts.

• This reflects common expectations – for example, that buyers have rights if goods are defective or services are not provided.

  • Example: MCGOWAN v RADIO BUXTON – Shows the presumption applies in business-related deals.

intention to create legal relations - justice NOT provided

SOCIAL & DOMESTIC AGREEMENTS
The general principle is that there is no presumption of an intention to create legal relations in social and domestic agreements.

• When the agreement is between family members, the courts presume it was not meant to be legally binding.

  • Example: BALFOUR v BALFOUR – The court held that a husband’s promise to his wife was not enforceable.

  • This may seem unjust, as the fact they were married did not mean that the claimant relied on the promise any less than in a commercial agreement.

• However, this presumption can be rebutted in more formal situations, such as agreements made during a marriage breakdown.

  • Example: MERRITT v MERRITT – The court found the agreement was intended to be legally binding.

consumer rights - justice provided

1. PROTECTIVE LEGISLATION – CONSUMER RIGHTS ACT 2015
   Parliament has introduced laws to redress unequal bargaining power between consumers and businesses.

• The Consumer Rights Act 2015 imposes strict liability on producers for damage caused by dangerous products and requires goods to be of satisfactory quality.

• This protection is just, as consumers often have little choice and cannot demand changes to unfair terms.

2. SIMPLIFYING RIGHTS & REMEDIES
   The Consumer Rights Act 2015 brings together consumer rights and remedies in contracts with businesses.

• Making the law clear and accessible helps achieve justice.

• If a contract is broken, the innocent party's actions determine the remedy.

consumer rights - justice NOT provided

1. CRITICISM OF CONSUMER PROTECTION

   • The Consumer Rights Act is sometimes criticised for favouring consumers at the expense of businesses, which can be unjust as it prioritises one group over another.

1. LIMITED ACCESS TO JUSTICE

   • Many people still lack access to the law due to cost and lack of awareness, meaning they don’t enforce their rights.

   • As a result, unethical businesses may still dominate — which is also unjust.

terms of a contract - justice provided

BREACH OF CONTRACT & TERMS
If a term is broken, the innocent party can claim for breach of contract.

• Remedies aim to put the claimant in the position they would have been in if the contract had been properly performed – this provides corrective justice.

There are clear guidelines to decide if a statement is a term or a representation.

• For example, if the maker had specialist skill or knowledge, it’s more likely to be a term, which brings justice to the other party.

terms of a contract - justice NOT provided

IMPLIED TERMS
Contracts for the supply of goods and services include several implied terms.

• This may be unjust, as terms are added that the parties did not actually agree to.

The Supreme Court in MARKS & SPENCER PLC clarified that a term is not implied just because it’s reasonable.

• It must be either so obvious it goes without saying or necessary for business efficacy.

vitiating factors: misrep / economic duress - justice provided

1. MISREPRESENTATION
   If a party enters a contract based on false information, there is no true freedom of contract.

• They may not have agreed if they knew the truth, which is unfair.

• The contract becomes voidable, providing justice to the victim.

2. ECONOMIC DURESS

• In PROGRESS BULK CARRIERS LTD (2012) Lord Steyn stated: “The aim of our commercial law is to encourage fair dealings… the critical enquiry is not whether the conduct is lawful but whether it is morally or socially acceptable.”

• This allows justice where firms act immorally.

• Example: ATLAS EXPRESS v KAFCO – A large company threatening a smaller one is economic duress.

vitiating factors: misrep / economic duress - justice NOT provided

INNOCENT MISREPRESENTATION
The defendant can be liable for damages even if the misrepresentation was not their fault.

• This may seem unfair, as the misrepresentation was innocent.

discharge of a contract: breach / frustration - justice provided

1. FRUSTRATION
   A contract is frustrated when, through no fault of either party, it becomes impossible to perform.

• In TAYLOR v CALDWELL (1863), the court ruled frustration applied and both parties were released from their obligations — this is just, as no one is at fault.

2. APPORTIONING LOSSES – LAW REFORM (FRUSTRATED CONTRACTS) ACT 1943
   This Act allows:

• Recovery of money paid in advance.

• A just sum for expenses or benefits gained.

It ensures losses are fairly shared, giving both parties some protection, rather than letting loss fall by chance.

discharge of a contract: breach / frustration - justice NOT provided

EARLY FRUSTRATION RULE
The original rule did not recognise frustration.

• In PARADINE v JANE, the tenant had to pay rent even though he was forced off the land due to war.

• This was unjust, as he had to continue a contract without receiving its benefit.

discharge of a contract: performance - justice provided

1. SUBSTANTIAL PERFORMANCE
   If a party has completed a substantial amount of work under the contract, they are entitled to be paid for the work done.

• In DAKIN v HOEING, the party at fault may still be entitled to payment based on quantum meruit (the value of work performed).

• If there has been no substantial performance, the party has breached the contract and can be sued for

  • BOLTON v MAHADEVA (1972).

2. PARTIAL PERFORMANCE
   If one party agrees that the other need not complete the entire contract, the strict rule does not apply.

• Partial performance can only be accepted if the party receiving the work has a genuine choice to accept it.

• SUMPTER v HEDGES (1898).

3. PREVENTION OF PERFORMANCE
   If one party prevents the other from performing their obligations, the party trying to perform can claim damages, as they may have missed other opportunities.

• PLANCHE v COLBURN (1831).

discharge of a contract: performance - justice NOT provided

1. CUTTER v POWELL – ORIGINAL RULE

   • The original rule in CUTTER v POWELL was unfair to the claimant, as the widow was denied her husband's wages after he failed to complete the contract.

2. EXCEPTIONS TO THE RULE

• Exceptions were developed, such as the divisibility principle.

• If a contract has separate parts, non-completion of one part does not necessarily breach the entire contract.

• Example: RITCHIE v ATKINSON.

exclusion clauses - justice provided

1. PROTECTION FOR THE WEAKER PARTY
   Courts aim to protect the weaker party (consumer) from exploitation, as seen in OLLY v MARLBOROUGH COURT HOTEL. This protection ensures that those in a stronger position do not take advantage, providing justice.

1. UNFAIR CONTRACT TERMS ACT 1977
   The UCTA 1977 seeks to balance the rights of consumers and businesses:

• It prevents businesses from excluding liability for death or personal injury caused by their negligence.

• It also prevents exclusion of rights provided under the CONSUMER RIGHTS ACT 2015.

3. EXCLUSION CLAUSES UNDER UCTA 1977

• Section 2(1): A person cannot exclude liability for death or personal injury resulting from negligence.

• Other exclusion clauses are subject to a reasonableness test, protecting weaker parties from exploitation by those with stronger bargaining power.

• It also prevents businesses from excluding the rights given to consumer under CRA 2015

exclusion clauses - justice NOT provided

EXCLUSION CLAUSES AND LANDLORDS

• While few landlords will intentionally include the right to use violence for eviction, many use exclusion clauses and related notices to avoid their legal responsibilities.

• Even if the law renders such clauses unenforceable, their mere existence often discourages tenants from complaining or enforcing their rights.

• This means that justice is not always provided.

remedies: damages + equity - justice provided

1. DAMAGES IN CONTRACT LAW

   • Damages aim to put the victim in the position they would have been in if the contract had been properly completed by the defendant, ensuring corrective justice.

2. REMOTE LOSS

   • Damages will not be awarded for losses that are too remote a consequence of the defendant's breach.

   • HADLEY v BAXENDALE: This ensures fairness by only imposing responsibility for losses where it is just to do so.

3. RELIANCE LOSS

   • The claimant may also recover for expenses incurred in advance of a breached contract, ensuring they are not left out of pocket.

   • ANGLIA TELEVISION LTD v REED (1972).

remedies: damages + equity - justice NOT provided

REMOTENESS AND JUSTICE

• Remoteness may seem unjust because it can leave claimants without compensation for a loss that wasn't their fault, simply because the loss is of an unusual nature.