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Category: Delicts and torts

Primary rights and liability in delict

Primary rights and liability in delict

Published 25th February 2025

By John MacLeod, Senior Lecturer in Private Law, University of Edinburgh 

Since the turn of the 21st century, Common Lawyers have discussed the basis of tortious liability extensively.[1] In particular, defences have been mounted against instrumentalism (i.e. considering law in terms of social policy). Much of the analysis turns on the idea that tort is about responding to infringements of primary rights (or to breach of primary duties). Primary rights are rights (and primary duties are duties) which do not arise from infringement of another right. They are contrasted with secondary rights, which do arise from such infringements. Property rights or rights to contractual performance are primary; rights to compensation for culpable damage or breach of contract are secondary.

If torts are thus conceptualised, the reasons which justify a primary right explain the wrongfulness of the tortious action and so support liability. Justifications for primary rights can vary and need not depend on some general logic within tort law.

What, if anything, does this literature mean for Scotland?

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The Willy’s Chocolate Experience debacle: A classic case for solatium in damages for breach of contract?Children celebrating during a festival on the street

The Willy’s Chocolate Experience debacle: A classic case for solatium in damages for breach of contract?

Published 4th June 2024

by Thorsten Lauterbach, Teaching Excellence Fellow, Robert Gordon University, Aberdeen

It will have been difficult not to see the tale of woe behind the Willy’s Chocolate Experience, a story that dominated headlines[1] in Scotland and beyond,[2] as it went viral on social media: children and their parents had been looking forward to around an hour of exhilarating entertainment, at up to £35 per ticket, only to receive the exact opposite. It is a box of wondrous legal issues aplenty: advertising, employment law, intellectual property law, consumer law, contract law – and there may well be some more. This blog entry looks at this story from a consumer redress angle, particularly focusing on solatium for breach of contract in common law, and how the thinking on this concept was driven by one – or two – prominent Scots.

What happened?

Advertising via the Willy’s Chocolate Experience website had promised “a place where chocolate dreams become reality. Book your adventure now and embark on a journey filled with wondrous creations and enchanting surprises at every turn!”,[3] “an enchanted garden, with giant sweets, vibrant blooms, mysterious looking sculptures, and magical surprises that add an extra layer of wonder to your Chocolatey Experience!”,[4] Imagination Lab, Twilight Tunnel – an “event [which] guarantees an immersive and delightful entertainment experience suitable for aged 3+ years old”.[5] However, the reality turned out to be different.

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Nuisance, amenity and praediality: Fearn’s implications in Scotland

Nuisance, amenity and praediality: Fearn’s implications in Scotland

Published 18th April 2023

by John MacLeod, Senior Lecturer in Private Law at the University of Edinburgh.

The UK Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2023] 2 WLR 339 generated an unusual degree of interest for a private law decision with reports and commentary in a number of newspapers (helpfully collated here). Much of this is no doubt due to the Tate being such a well-known institution but the case also represents an interesting development in the law of nuisance.

The claimants were the leaseholders of flats in London directly opposite the viewing gallery at the top of the Blavatnik Building, which is part of the Tate Modern. The flats had floor-to-ceiling windows. This meant that the viewing gallery’s visitors (who numbered several hundred thousand per year) had a direct view into the claimants’ flats. It can readily be imagined that this was undesirable for the claimants but there was considerable doubt about whether they had any remedy of in the law of nuisance.

Doubts focused on two questions: 1) whether “overlooking” can, as a matter of principle, ever amount to a nuisance and 2) how courts should approach the question of determining whether a given interference in a particular case.

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Delictual Liens

Delictual Liens

Published 30th September 2020
By Andrew Steven, Professor of Property Law, University of Edinburgh

In Scotland, the law of rights in security develops slowly. There are reasons for this. First, there is limited legislative time for reform of private law. Second, it is an area which has been relatively neglected in terms of doctrinal study. Third, we are a small jurisdiction and case law is limited.

Nevertheless, there are some grounds for optimism. The Scottish Government’s legislative programme for 2020/21 published on 1 September contains a commitment to “work towards implementation of the Scottish Law Commission proposals on reforming the law relating to Moveable Transactions, with a view to introducing a Bill early in the new Parliament” and accepts that this would “make it easier for businesses and individuals to raise finance, thereby assisting economic recovery”. The last month has also seen the successful defence by Andrew Sweeney of his University of Edinburgh doctoral thesis on the landlord’s hypothec. In addition, an earlier Edinburgh thesis on floating charges by Dr Alisdair MacPherson, now Lecturer in Law at the University of Aberdeen, has been published in book form.#

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