"I recall the first meeting of us with Roy as term officially began. We were given an essay topic, a deadline, and a list of cases to consult. The only gesture towards learner support was his laconic, “The law library is that way,” accompanied by a vague gesture of his hand."
Not much has changed
[it is actually 55]
BCL is not very far off from 50, if we include the half-options
we can go back and forth on this forever - have a nice evening!
"Rule 15.1(1)(a) of the High Court Rules 2016 provides that the court may strike
out all or part of a pleading if it “discloses no reasonably arguable cause of action”." [74]
no. *even if* the novel claim was bound to fail, it wouldn't add to the costs and so isn't struck out. you're free to disagree but that is what [174]-[175] say imo
there are 50 paras on public nuisance, and "other causes of action" are dealt with in about 5. they're clearly not considering whether the negligence and other claims are seriously arguable, they're saying that they're all alternative to public nuisance so we'll not strike them out
yes. that means that for a secondary claim to be struck out it has to be not seriously arguable AND should add to the courts' burden. ie if it is not seriously arguable but at the same time does not add to the courts' burden, it will not be struck out.
I disagree that that is what the NZSC is saying in relation to alternative/secondary claims. see the quoted passage above
that's exactly what they say they're doing at [175] imo. they're saying we won't go into whether negligence is seriously arguable because even if it is not, it won't add to the courts' burden and therefore we're not going to strike it out
"Where the primary cause of action is not struck out, the authorities ... discourage striking out any remaining causes of action ... unless it can be said they both meet the criteria for striking out and are likely to add materially to costs, hearing time and deployment of other court resources"
that's the approach to strike out in general, not the reasons for the decision not to strike out the negligence claim specifically, which are at [174]-[175] under the heading "what about the remaining [ie non public nuisance] causes of action?"
in other words the court says that *even if* the neg claim is not seriously arguable, because trying it would not add to the court resources required given public nuisance trial is happening, it should not be struck out. novel duty being neither here nor there to this.
see [174] and [175]. the reason why the negligence claim isn't struck out is that it won't "add materially to costs, hearing time [etc]" given that the public nuisance claim is going to be tried.
I'm not sure they did. my reading is that the (alternative) negligence claim was not struck out principally because the (primary) public nuisance claim was seriously arguable [174], not because of any novel duty that may be found.
on a quick skim I'm not sure that's a great example: the primary claim was in public nuisance and the negligence claim an appendage to that [175]. [78]-[80] discuss whether the duty of care point should be struck out, not whether there is/is not a duty of care owed in this novel circumstance.
maybe, but my rather tangential point was that the cases themselves are very unclear as to what a novel circumstance would look like
to be fair to AI, i have a law degree and i don't understand how novel categories are supposed to develop incrementally to answer questions of duty of care. and in England at least, i am fairly sure the judges don't either
imo there are good arguments for a private duty (Tofaris and Steel here: www.cambridge.org/core/journal...)
but such a duty should be imposed by statute, not invented by the common law
no one doubts that the police owe a duty to the public at large to do their job competently. the question here however, is whether they owe a duty to specific individuals. that needs argument, and re-asserting their public duty does not take matters further.
i just graduated from Oxford with a law degree - happy to help if you follow and DM
