The relationship between tort and regulation: towards a process model

Environmental protection is a public interest dominated by a complex and more or less comprehensive system of state and supranational regulation. But this is also the realm of private law, since individual rights or interests (eg property, physical integrity, amenity) may be affected by the regulation itself or by a regulated activity. What happens when these areas of law meet is unclear, particularly how the regulatory decision should feed into the determination and protection of rights and interests in private law. One of the primary aims of this fellowship is to achieve some descriptive and normative clarity on the relationship between tort and regulation.

Topical examples with the potential for private and public interests and law to meet include windfarms and airports, where regulatory decisions about location and operation are taken in what the regulator or government has determined to be the public interest, but where individuals who find their health, amenity or property adversely affected may turn to the private law of tort for protection. There are many more mundane examples. Regulatory norms and processes at their best strike a reasoned balance between various, sometimes conflicting, public or collective interests, and at their best will also have considered the impact of desirable activities on private rights and interests. The operation of private law may disrupt these careful regulatory arrangements; but without private law, individual rights and interests may be inadequately protected. During this fellowship, I will explore and analyse the range of possible relationships between tort and regulation, and the abundant literature on their respective roles.

The relationship between regulation and tort has many dimensions. It may seem absurd that individual rights or interests could disrupt regulatory arrangements carefully drawn to pursue the public interest; or perhaps equally absurd that administrative decision making can override individual rights and interests. Perhaps tort could provide unofficial 'enforcement' against breach of regulatory standards, or correct regulatory failure in standard setting; but others would argue that the regulatory framework should provide the full range of regulatory 'messages'. Tort might be used to stimulate the concern of regulated parties (who often have the best information and the best control over a process) 'beyond compliance'; it might provide a forum for regulatory deliberation; it might prevent the costs of developments pursued in the public interest being borne disproportionately by some individuals.

In the fellowship I will explore the many dimensions of the tort / regulation relationship. It is clear that both tort claims and regulation are so diverse that there can be no automatic conclusion that regulation should place a limit on the rights of the claimant and duties of the defendant in private law; but equally that there will sometimes be costs to allowing tort to usurp regulatory standards. I will argue that each case needs a proper examination of what regulation and private law are trying to achieve, and how decisions are made. The appropriate approach of the courts must depend on the detail of the regulation. So for example, it is difficult to assess the relative competence of regulator and court without considering the questions being asked by the regulator, and the thoroughness and openness of the regulatory decision making process. Other questions may be relevant in different cases. This new 'process model' will allow for a much more explicit and considered analysis of the relationship between tort and regulation.

This fellowship will create benefits in policy making and regulation, stimulating debate and contributing to legal and policy development. The likelihood of these impacts will be enhanced particularly by articles and presentations targeted directly at the legal profession.

The relationship between private law and regulation is poorly understood in the policy making and regulatory world, and the normative importance of that relationship seems hardly to have been suspected. This fellowship will stimulate debate, alerting policy makers to the complexity and importance of the issue, and the clarity developed during the fellowship will inform developments in public policy. I am well connected with the policy community, particularly through my membership of the Royal Commission on Environmental Pollution (an independent standing body that advises the Queen, Government, Parliament, the devolved administrations and the public on environmental issues) and the London Sustainable Development Commission (which advises the Mayor of London on sustainable development). These bodies provide me with important opportunities to understand what is preoccupying the policy community, to disseminate my research and to collaborate with non-academic (non-law) beneficiaries. I will devote 95% of my time to the fellowship, to enable me to continue my policy work. The policy world will inform the fellowship, and the fellowship will feed directly into my policy work.

The poor understanding of the policy community is scarcely surprising given the general lack of engagement with the subject by the legal profession. To enhance this engagement, lawyers advising the policy community will be the main target of my impact work. The legal profession is diverse, and I include those working in-house in Parliament, government departments, regulators, local authorities, environmental interest groups and industry, as well as those in private practice advising each of these groups. I have good links with practice, and considerable experience communicating with the legal profession. I trained as a solicitor before I became an academic, and I have been a member of the Academic panel of Francis Taylor Buildings (a leading environmental law chambers) for several years. I frequently take part in practitioner events. My informal contacts with the profession include former and current students (practitioners from the public and private sector attend masters level courses on a continuing education basis). These contacts reliably create opportunities for formal and informal dissemination of my work. More structured dissemination of work will be by publication and conference / seminar papers. I will write two articles in high quality journals directed primarily at the legal profession (eg Journal of Planning and Environmental Law / Journal of Personal Injury Law).
- Tort Law and Regulation (6,000 words)
- Tort Law and Personal Injury in the Regulatory State (6,000 words)

I will make at least two presentations to practitioner focused groups, for example UK Environmental Law Association workshops or Francis Taylor Building seminars, at least one in January-March, one April-July. UKELA membership includes lawyers in private practice, but also importantly environmental lawyers in government, the Environment Agency, environmental interest groups and industry. Francis Taylor Buildings' primary reach is within private practice, and includes lawyers advising a wide range of sectors.

Stimulating debate within the legal profession will both raise awareness of the importance and complexity of the relationship between tort and regulation, and contribute to the development of the law by making this an explicit issue in legal argument. The clarity achieved during the fellowship will make a direct contribution to the development of the law.