Balancing Comflicting Interests Flashcards
1st paragraph
In modern society there are many rights and responsibilities conferred on individuals by law and which sometimes come into conflict. The rights and expectations of parties can be described as “interests”. “Balancing” implies the consideration of differing view points and is inherent within law making both from a parliamentary perspective, where laws are debated at length and the court system where judges and juries weigh the evidence before them before coming to a verdict. This may not, however, always lead to compromise.
Pound + miller v Jackson
Roscoe Pound describes rights in terms of public and private. He argued that justice could be achieved by balancing rights on the same level. However, where public rights conflicted with private rights the public interests would prevail. In Miller v Jackson there was the private right to enjoy property set against the private right of the players themselves, but also the public interest in allowing sporting activities. You may expect, following Pound’s theory, that due to the public interest the cricket club may win. However, in this instance the judges found in favour of the home owner, using the tort of nuisance. However, the claimant did not get the injunction they were seeking. The court balanced the interests by allowing the cricket team to play on and granting the claimant a small sum in compensation. Whilst neither party would be fully satisfied the interests were balanced in that a compromise was reached.
CRA 2015
In many areas of contract law the law strives to strike a balance between private interests. For example when looking at the remedies provided in the CRA 2015 the consumer of a service must give the Trader the opportunity to undertake repeat performance to rectify any issues before claiming a right to refund. However, the trader must in turn undertake this without undue delay or inconvenience to the consumer and at his own expense.
The law does not balance
On occasion the law does not strive to balance conflicting interests. For example in Turner both the owner and the garage had proprietary rights in the car. Had the law sought to balance these it is hard to see how the owner would have lost since his right was greater than that of the garage. Never the less the law decided it was possible to commit theft of your own property, thereby recognising the rights of the two parties as coexisting. The owner had infringed the garage’s rights and so the law convicted him of theft, thereby providing a remedy.
