Rights of Action

Actions

An action refers to legal proceedings which one party undertakes in a court of justice in order to enforce rights against or restrain the commission of a wrong by the other party.  The action formally seeks the judgment or order of the court in the manner concerned.  An action presumes a party having a right or claim which is alleged or threatened have been breached of infringed.

An action, in its wider sense may refer to both civil and criminal proceedings.  In modern terms it usually refers to a civil action. Formerly, “actions” referred  primarily to proceedings in the courts of law which “suits” referred to proceedings in the court of  equity.

Since the merger of law and equity, both terms are used interchangeably. Various modern statutes on court jurisdiction have defined actions more widely, to cover a range of other proceedings.

Proceedings, in one sense refer to steps and actions in the course of an action. In the wider although proceedings often refer to the total legal action

A cause of action is the facts or acts on the part of the defendants which constitute the plaintiff’s cause of complaint.  Multiple causes of action may arise in the one transaction or facts.  Every fact which is material to be proved to entitle the claimant to succeed and every fact which the defendant must prove  to defend the matter are an essential part of the cause of action.

Under the Statute of Limitations, the cause of action accrues on the happening of the last necessary fact or event.  It is a fundamental principle of law that wherever there exist a right, there also exist a remedy for infringement of that right.  This is expressed in certain Latin  maxims.

Public and Private Rights

In this context, a right is a private right as opposed to a right exercised in common with the community.  A person (natural or corporate) may take action in respect of breach of a  right.

The appropriate remedy for infringement of a public right, is legal action by the Attorney General as guardian of public rights.  A private person may not maintain an action in his own right unless he is entitled to do so under statute or unless he suffers particular damage over and above that suffered by the public as a whole.

Damage and Loss

Damage is a loss, whether a bodily injury, damage to property or financial loss, which may be reduced to money terms.

In many type of claim,  damages are not necessary to maintain the claim, although they may be practical necessity, in order to economically maintain the claim.   In claims for breach of contract, and many torts, damages are not necessary element of the claim. However, a claim in circumstances of no loss may be uneconomic to pursue. The defendant could usually make the claimant liable for the costs, by making a nominal lodgement

In some types of claim, most notably a claim in negligence, damages are a constituent part of the actual claim.  There is no claim at all, and the Statute of Limitations does not commence to run, unless and until there has been some damage or loss.

Rights without Damage

Where a person’s rights have been infringed, he may  be permitted to maintain an action, notwithstanding that he has suffered no appreciable damage.  This is so that adverse claims can be met and disputed. This may arise where the absence of challenge may lead to adverse claims against his property, character or basic rights.

Where however, a person has no legitimate interest in vindicating his rights, the courts will not usually be permitted to take an actions, unless appreciable damage has been suffered.  Where has no legitimate reason to vindicate his rights, the courts do not favour bringing actions unless appreciable damage has been suffered.  Where the injury is very mall, action might not be permitted.

In some cases, there are rights granted by statute which carry their own mechanism for enforcement.  Questions of interpretation may arise as to whether such mechanisms are exclusive or whether the courts may allow a civil claim for damages for loss incurred, by reason of breach of those rights.

Civil Actions and Crime

A person is not permitted to benefit from his own crime.  A civil action which seeks to take advantage of criminal conduct will not be permitted.

The civil courts may stay  civil proceedings where criminal proceedings are pending.  Where an injury which gives rise to a civil action, is also a serious criminal offence, the right to take civil action is usually suspended until the person who has caused the injury, has been prosecuted.

The principle in its fullest form, applies to crimes formerly categorised as felonies.  Where the matter may constitute a felony, the court may stay proceedings on the civil side.  The court considers the entirety of the circumstances, without limiting itself to the evidence.

The principle applies to parties injured by the act who owed a duty at common law to prosecute the offender.  It does not apply to persons who have sustained indirect or consequential damages.

The principle does not apply where the offender has been charged at the instance of one or more injured parties who were injured by a similar offence.  It does not apply where prosecution may not take place because of the death of the offender or escape or where a conviction may not be reasonably obtained, due to lack of evidence.

The principle does not apply to a defence.  It does not apply to offences which formerly constituted misdemeanours. The legislation which replaced the felony / misdemeanour, distinction, created a new distinction between arrestable and other offences.  An arrestable offence is one which carries a potential sanction of imprisonment for more than five years.

Assignment

It is lawful to assign and acquire a chose in action.  This is an interest that which is asserted by court action such as a debt, share or wider class of action. For example a debt or other receivable may be assigned.

However the acquisition of a bare right to litigate is not permitted.  The question is whether the purchaser’s real object is to acquire an interest in the property or acquire the right to bring the action, whether alone or with the vendor, If the latter applies, the assignment is impermissible and unenforceable.

A person may  assigns a receivable such as a debt, but not a bare right to sue, such as a right of action to recover damages (for example for a past breach of contract or a tort), unless the assignee has a legitimate interest in the matter.  This old prohibition rule against assignment of a bare cause of action, was modified by the House of Lords in 1981.  The court confirmed that it was  a fundamental principle of English law that one cannot assign a bare right to litigate.

However, if the assignment is of a property right or interest, or if the assignee has a genuine commercial interest in taking the assignment and in enforcing it for his or her own benefit, there is no reason why the agreement should be struck down as an assignment of a bare cause of action, or as savouring of maintenance.

The House of Lords later extended the application of the principle to tortious causes of action. The House of Lords determined that the question was whether there had been “wanton and officious intermeddling with the disputes of others in which the meddler has no interest whatever and where the assistance he renders to one or the other party is without justification or excuse.”

Extinguishments

A right of action may be extinguished by a settlement.  A so called “accord and satisfaction” is a contract or agreement to settle followed by performance.

Where a person becomes bankrupt, the rights to take action against the bankrupt ceases and are there is instead, a right to claim in bankruptcy.  Certain personal rights of action cease on death.  Historically, many Most causes of action ceased on death, Most rights of action are now preserved by the Civil Liability Act.

If a person takes a superior right, such as where  security with a covenant to pay is taken in respect of a simple contract debt, the taking of security may be a substitute for the simple contract debt.  The lesser rights merges in the greater.

A right of action may be discharged by payment.  It may be released by a deed or by a contract supported by consideration.

Immunity from Suit

Any person, natural or legal (a corporation) may be sued.  All persons whether national or non-national, infants, persons of unsound mind, prisoners may be sued or be sued. Historical restrictions on non-nationals would not apply, other than in times of war. Infants and persons of unsound mind sue by representatives.

A foreign sovereign may sue in the domestic courts. The Courts will not generally hear cases against foreign governments or sovereigns nor against their property or interests.  There are extensive immunities against suits for diplomats, under international Conventions which have been made part of domestic law. A foreign sovereign or diplomat may waive immunity by submitting to jurisdiction.

Historically, the State was immune from prosecution under the principle / theory that the Crown may not be sued in the royal courts.  The principle was changed under the England by the Crown Proceedings Act 1947.  In Ireland, the case of Byrne v Ireland decided in 1972, the Supreme Court found the principle to be inconsistent with the Constitution.

An executor may, in theory, sue before obtaining a grant of probate, as his title arise from the will.  However a grant of probate is a practical necessity in order to prove the validity of the will.  An administrator derives his titles from the letters of administration.  Accordingly, he cannot commence legal action before obtaining a grant.

Pre-Conditions to Suit

An agreement for arbitration makes an award of arbitration / that the matter be determined by arbitration, a condition precedent before any court based enforcement may be taken in respect of the claim.

In several contexts, a demand is pre-condition to an action being taken.  Generally ,  in an action for money or goods, the same must be demanded.  A solicitor may not commence action for costs unless he has delivered a bill of costs at least one month before commencement.

A demand is necessary to recover money paid under a mistake of fact.  Actions for unlawful detention of goods require prior demand.  Certain form of legal action require prior notice before commencement, most of the statutes have been repealed.

In practical terms, prior notice of action is necessary in order to recover costs.  The defendant should be given the opportunity to pay the amount claimed without initiating of proceeding. Otherwise the claimant is likely to be penalised in costs, if the defendant offers to settle at an early date.

Vexatious Litigants

A person who brings proceedings with reasonable and probable cause or without malice is immune from liability for a civil action.   Outside of this, he may be liable in damages to the person prosecuted or sued, for malicious prosecution/ abuse of process.

If the Attorney General satisfies the High Court that a person has persistently instituted vexatious proceedings without reasonable grounds, a court may order that no legal proceedings are to be instituted by that person unless that he first obtains leave of the court, showing that there is a prima facie case and that it is not an abuse of the process.

In exceptional cases, an order may be justified even though there has been relatively small number of cases taken.  Regard may be had to the character and result of the actions and not merely as to whether there was a possibility of success in some case.  In Ireland, such order are referred to as Isaac Wunder orders, after a prolific vexations litigant in person in the 1960s.

In Rem and In Personam

An action in rem is an action in which a claim is made against a particular property.  It arises most commonly in shipping matter.  Where the claimant can obtain a maritime lien, he can if the ship is within the jurisdiction of the court, arrest it and detain it until the owners pay it or give security until there is judgment in the claim.  If he is successful, effect may be given to the court order by sale of the vessel in order to satisfy it.  The order transfers title to the purchaser.

In the vast majority of cases the action is personal.  An order is obtained against a party to the action only and may be enforced against his assets.  If the assets are ultimately seized  and sold, such title only as the person who is subject of the order had may be given.  In contrast, in an action in rem, the court order gives direct title to matter in dispute

Other types of action have a similar effect to an action in rem.  An action for grant of probate, matrimonial proceedings or determining ownership of property are in the form of an in personal action but have characteristics of an order made in rem.