The forms of Action we have buried but they still rule us from their grave is a statement by FW MAITLAND. Even though the forms of actions were abolished by the Common Law Procedure Act 1852 and Judicature Act of 1875, the judicial system has not been able to detach itself completely from the old relics of forms of action.
Forms Of Action were the old common law patterns for different kinds of law suits. They were the different procedures by which a legal claim would be made. They governed all common law pleadings.
The term cause of action is the fact or combination of facts that gives a person the right to seek judicial redress or relief. It refers to a set of facts or allegations that make up the grounds for a lawsuit. All elements of the cause of action must be detailed in the complaint or it would be dismissed at the onset.
The procedure for initiating actions in common law in the courts of England required a plaintiff to obtain a writ. A writ is a court order commanding the case be heard befor the Royal Court. Writ dictated the type of process, the content of the declaration, the method of proof and the type of remedy. The substance of the law itself was considerably influenced, if not determined by the system of the forms of action.
The forms of action in Tort law can be traced back to the earlier days of common law. Originally, most torts were also regarded as criminal actions. The King punished the defendants according to criminal laws. In time however, the king also began to allow individual victims of the defendant’s tortuous conduct to sue for their personal damages as well.
The law of torts is one of the oldest branches of English law. It was developed in the 13th century in the king’s court. During this time, any action taken before the king had to fit into a particular writ. The writs were regarded as the forms of action. The plaintiff’s right to recover depended not on whether a protected right had been violated, or one similar to a protected right but instead on whether he could bring his case within one of the recognized forms of actions. If an action did not fit into a form of action, there would be no remedy for that complainant.
The procedural system was incredibly rigid for some 500 years. In 1832 and 1833, some amendments were made, and ultimately in 1852, Common Law Procedure Act was passed whereby the writs were abolished. Judicature Act, 1873 further provided that the pleading was to contain only a statement of the summary of the facts of the case. Now the law has became Ubi jus ibi remedium (where there is a right there is a remedy). The creation of new torts from time to time shows the flexibility and justice of the Common Law Courts of England.
Modern Law of Torts
The effect of the abolition of the forms of action was not to dispense with centuries of legal thinking overnight. The old forms of action at common law became causes of action, that is to say, they moved from being procedural structures that obliquely defined ideas to become a list of substantive ideas underpinning liability, detinue became “torts”. Tort, in other words, is not in its origin some rationally conceived category of liability. It was simply a category into which claims which could not be classified elsewhere were housed or dumped.
For example, among our modern Tort causes of action, five specific Intentional Tort actions can be traced directly back to the common law writ of trespass. Notably these Torts (Assault, Battery, False Imprisonment, Trespass to Land and Trespass to Chattels) are the only Torts which still to this day do not require some type of proof of injury in order to be actionable. Moreover, they are also the only intentional Torts in which the requisite intent can be transferred from one to another.
Indeed, each of these Torts can be established merely upon the most “technical” showing of an intentional act. In particular, tort law takes a great deal of interest in the intent of an actor. Most other modern Intentional Tort causes of action require at least some kind of specific intent (i.e., intent to cause emotional distress; an intent to defame; etc), as well as proof of some actual harm to the plaintiff (as compared with merely presuming such harm).
As above discussed law of Tort has evolved so as to almost become unrecognizable from its original forms. Yet it still has the essential, original character and principles for which it was created and valued in the first place.
1.Law teacher www.lawteacher.netMartin Edward, The English Common Law Writ System
2.Bryson Hamlinton Williams, The abolition of the forms of action in Virginia
3.Martin Edward, The English common law writ system
4.Bangia R.K, Law of Torts, (9th Edition 1986)
5.Samuel Geoffrey, Torts: Cases and Materials
6.Strong S.I & Williams Liz, Tort Law: Text, Case and Materials
7.Rodgers W.V.H, Winfield and Jolowicz on Tort (17th Edition 2006)
8.Jackson Tudor, The Law of Kenya (3rd Edition
This Paper was done by:
- Corina Oyier
- Antony Waziri
- Gladys Wambui
- Alex Musymi
- Stephanie Yogo