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A note on terminology

my view, is to act compatibly with the Convention rights in adjudicating upon existing causes of action, and that includes a positive as well as a negative obligation. (Butler-Sloss P, Venables v News Group Newspapers Ltd [2001] at 918) This view was confirmed in Campbell v Mirror Group Newspapers [2004] where the House of Lords refused to recognise a new cause of action on the basis of the HRA but amended an exist ing action to protect the claimant’s privacy. More recently, however, it seems the courts may be willing to go this extra step—see, for example, Tugendhat J’s development of the misuse of personal information as a distinct tort in Vidal-Hall v Google Inc [2014] (at [49]–[70]). 93 This does not mean, however, that the HRA itself imposes duties on private individuals to respect each other’s human rights. The House of Lords has stated that the HRA does not, itself, provide a remedy in tort ( R (Greenfield) v Secretary of State for the Home Department [2005]), it simply imposes duties on public bodies—yet as developments in the law of pri vacy, as well as other areas, are beginning to show, the ‘horizontal effect’ of the HRA has proven beneficial for tort (and other) litigants. 1.5 A note on terminology Since 1999 the victim or wronged party has been known in England and Wales as the claim ant . 94 They were previously called the ‘plaintiff’ (and still are in some common law jurisdic tions). You will therefore encounter both terms in your reading. In this book, we use ‘claimant’ whenever we are discussing the victim (even in relation to pre-1999 cases), reserv ing the term ‘plaintiff’ for when we quote directly from texts which predate the change. On the other side are one or more defendants , who are also usually (but need not be) the alleged wrongdoers or tortfeasors (i.e. those said to have committed the tort). This distinction is important and usually arises where an action is brought on the basis of vicarious liability . In such cases, actions are brought against an employer (or someone who is akin to an employer) (the defendant) who, it is argued, should be held vicariously liable for the torts of their employee or someone who is in a relationship akin to employment (the tortfeasor). 95 However, it may also arise where the case is brought against an insurer under the Third Parties (Rights Against Insurers) Act 1930, which allows the victim to sue an insolvent defendant’s liability insurer directly.

The humanity of tort law

At the heart of every tort case—indeed of all the cases you’ll encounter throughout your studies—are real people and real-life situations. As Master McCloud acknowledged in Ovu v London Underground Ltd [2021] , a case involving the duty of care owed to the claimants under the Occupiers Liability Act 1984: [w]ith most things in the Law, cases have a triangular character, such that what is at once personal or private between the parties becomes, in the panopticon of the court, both a → PROPERTY OF OXFORD UNIVERSITY PRESS

93. Confirmed by the Court of Appeal in 2015. Discussed further in section 16.4 .

94. Civil Procedure Rules 1998 (which implemented the so-called Woolf reforms designed to speed up and simplify civil litigation). 95. Chapter 20 .