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The disparate aims of tort law

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atrocity in the course of the years of violence which occurred in Northern Ireland from the late 1960s onwards’. 85 Relatives of those killed initiated a landmark civil action against the five people they believed to be responsible. After a number of trials and retrials, four men were found civilly liable and ordered to pay the victims’ families £1.6 million in compensation. 86 Responding to the decision at the successful retrial of two of the four men, Michael Gallagher, whose son Aidan was killed in the bombing, commented: We will be doing our best to try and recover the damages but at the moment, we’re just happy that we’ve got a judgement [sic] that we, the families, the victims, have held some one to account for what happened at Omagh. 87

More recently, in Young v Downey [2020], another case involving a bomb attack claimed by the IRA, 88 Yip J commented on the vindicatory purposes of the proceedings: I accept that there can be no objection to civil proceedings being brought for a vindicatory pur pose, see Ashley v Chief Constable of Sussex Police [2008] . . . The motivation for bringing a valid claim for damages is of no concern to the court. I observe, as did Morgan J, in the claim brought in Northern Ireland arising out of the Omagh bombing . . . that the role of the civil court is not the same as in the criminal jurisdiction. In this court, there is no criminal charge in issue. The role of this court is to determine whether the claimant has succeeded in proving her claim on a balance of probabilities . . . that involves considering whether the claimant has established, to that standard, that the defendant was responsible for the unlawful killing of her father. (at [8]) One consequence of using tort law in this way is that it can appear as though the tort system does little to encourage cooperation between the parties. It is, after all, dangerous—and, more importantly, costly—to apologise or admit responsibility (however limited) for an accident when litigation is likely. 89 The Compensation Act 2006 attempts to go some way to remedying this by explicitly separating any admission of culpability from simply ‘saying sorry’: ‘An apology, an offer of treatment or other redress, shall not in itself amount to an admission of negligence’ (s 2). A variation of the vindicatory function of tort can be seen in League Against Cruel Sports v Scott [1986] a case about stag hunting on Exmoor. While formally this is a case about trespass to land, in reality it has very little to do with protecting land interests. Rather, it was a mixture of publicity and activism, of mobilising and using the law to further collectively held ends, in this case the desire of those opposed to stag hunting to put a stop to it on Exmoor by strategically buy ing up parcels of land so that the hunt, in passing over them, could be sued in trespass. 85. McKevitt and Campbell v UK [2016] at [5]. 86. Breslin v McKenna [2009]; BBC News ‘Real IRA chief to blame for Omagh’ 8 June 2009. The European Court of Human Rights rejected an attempt by two of those found civilly liable to establish that their trial was ‘unfair’ in September 2016 (BBC News ‘Omagh bombing: European court dismisses Real IRA men’s claim’ 29 September 2016). BBC News ‘Timeline of Omagh bomb families’ search for justice’ 28 January 2025. 87. BBC News ‘Omagh bomb: Colm Murphy and Seamus Daly found liable at retrial’ 20 March 2013. 88. The claimant sought to recover damages for the psychiatric harm suffered as a young child following her father’s death in the Hyde Park bombing in 1982 ( Young v Downey [2019]). Discussed in section 5.6.2.1 . 89. Carol Harlow Understanding Tort Law (3rd edn Sweet & Maxwell 2005) 38. PROPERTY OF OXFORD UNIVERSITY PRESS