7. Judicial and Extra-Judicial Remedies

This is the 7th post in Law of Torts, Unit 4 — Business and Reputation Related Torts and Remedies. This post gives an overview of the remedies available in the law of torts, dividing them into judicial remedies (obtained through a court) and extra-judicial remedies (lawful self-help available without going to court), with detailed treatment of the extra-judicial remedies.

The Problem This Topic Solves

Once a tort has been committed, or is about to be committed, the law must provide the injured party with some way of putting things right or preventing further harm. Tort law recognises two broad categories of remedy for this purpose. Judicial remedies are obtained by approaching a court, which then orders the appropriate relief. Extra-judicial remedies, by contrast, are forms of lawful self-help that a person may exercise on their own, without any court order, to prevent or undo a wrong — provided they act within carefully defined limits. Confusing the two, or exceeding the limits of a self-help remedy, can itself expose a person to liability, so understanding exactly which remedies fall into which category, and the conditions attached to each, is essential both for practical situations and for examinations.

Judicial Remedies — Overview

Judicial remedies are the relief a court grants to a successful plaintiff in a tort action. The three principal judicial remedies are damages, injunction, and specific restitution of property. Damages are a monetary award compensating the plaintiff for the loss or injury suffered as a result of the tort; this is the most common judicial remedy and is discussed in full detail, including its kinds, the principles of assessment, and the rules on remoteness of damage, in the next post in this unit. Injunction is a court order either restraining the defendant from continuing or repeating a wrongful act (a prohibitory injunction) or compelling the defendant to undo the effects of a wrongful act (a mandatory injunction); the different kinds of injunctions and the test for granting them are discussed in full detail in the post following the one on damages. Specific restitution of property is a remedy available where the defendant has wrongfully taken or is wrongfully detaining the plaintiff's property — the court orders the actual property to be returned to the plaintiff, rather than merely awarding its money value as damages, and is typically invoked in torts such as trespass to goods or conversion, where the plaintiff's interest is better served by getting the specific item back than by receiving its equivalent value in money, particularly where the property has some unique or sentimental value that money cannot adequately replace.

Extra-Judicial Remedies — Meaning and Rationale

Extra-judicial remedies are self-help remedies that the law allows a person to exercise on their own initiative, without first obtaining a court order, to protect their rights or property from an ongoing or imminent wrong. The law permits these remedies because insisting on a court order before any protective action could be taken would often leave the injured party without any practical protection — a trespasser must often be removed immediately, not after the delay of litigation, and goods wrongfully taken must often be recovered before they disappear or are disposed of. At the same time, because self-help carries an obvious risk of abuse and escalation, the law confines every extra-judicial remedy within strict limits: the remedy must generally be exercised promptly, without unreasonable delay; only reasonable and proportionate force may be used, never more than is necessary to achieve the lawful purpose; and the action must not involve an unnecessary breach of the peace. If these limits are exceeded, the person exercising the "remedy" themselves becomes liable in tort, and may also incur criminal liability.

Expulsion of a Trespasser

A person in lawful possession of land may use reasonable force to expel a trespasser who has entered or remains on the land without permission. The occupier must first request the trespasser to leave and allow a reasonable opportunity to comply before resorting to force, except where the trespasser's conduct is such that an immediate request is impractical or futile. Only the force reasonably necessary to remove the trespasser may be used; excessive force converts the occupier into a wrongdoer liable for assault or battery against the trespasser. For example, if A finds a stranger sitting uninvited in A's private garden and refusing to leave after being asked, A may take hold of the stranger and physically escort them off the property, but A may not strike the stranger beyond what is needed to remove them.

Re-entry on Land

Where a person has been wrongfully dispossessed of land — for instance, ousted by a trespasser who has taken over occupation — the law permits the dispossessed person to retake possession by peaceful re-entry, provided this is done promptly, without unreasonable delay, and without using force that breaches the peace. If peaceful re-entry is not possible because the wrongful occupant resists, the rightful owner is generally expected to seek the court's assistance instead of forcing entry, since forcible re-entry against active resistance risks a breach of the peace and may itself expose the owner to liability. For example, if B discovers that a trespasser has moved into B's vacant house while B was away, and the house is unoccupied and unresisted, B may simply walk back in and resume possession; but if the trespasser is present and refuses to leave, physically resisting B's entry, B should approach the court for repossession rather than force their way in.

Re-caption of Goods

Re-caption (or recaption) of goods is the remedy that allows a person entitled to the possession of goods to retake them from a person who has wrongfully taken or is wrongfully detaining them, without needing to sue for their return. The remedy must be exercised promptly, using no more force than is reasonably necessary, and without committing a breach of the peace; where retaking the goods would require forcing entry into another person's premises or otherwise risks a serious confrontation, the safer and legally sounder course is to seek the court's assistance rather than to force the recovery. For example, if C's bicycle is taken by D without permission and left standing on the street, C may simply take the bicycle back; but if D has locked the bicycle inside D's house and refuses to hand it over, C should not break into D's house to retrieve it, and should instead bring an action for its recovery.

Distress Damage Feasant

Distress damage feasant is the ancient common law remedy allowing an occupier of land to seize and detain any chattel — most typically cattle or livestock, though the remedy applies to other stray property as well — found trespassing on the occupier's land and causing damage there, and to keep the chattel until the owner pays compensation for the damage caused. The remedy exists to give the occupier practical leverage to secure compensation without having to first track down the owner and sue. The occupier may only detain the property as security for the actual damage caused, may not use the property or work it while it is detained, and must release it once proper compensation is tendered; the occupier has no right to sell the seized property to recover compensation, that being a step the occupier must obtain through court process if the owner refuses to pay. For example, if E's cattle stray onto F's field and trample F's standing crop, F may seize and hold the cattle until E pays for the damage done to the crop, but F may not put the cattle to work in the meantime or claim ownership of them.

Abatement of Nuisance

Abatement of nuisance is the self-help remedy that allows a person affected by a nuisance to take reasonable steps, personally, to remove or terminate the nuisance, rather than waiting for a court order. The person exercising this remedy must generally give notice to the wrongdoer before abating the nuisance, except where the nuisance is an emergency requiring immediate action; must use no more force or destruction than is reasonably necessary to abate the nuisance; and must avoid, where reasonably possible, causing unnecessary damage or entering another person's property without justification while abating it. For example, if the overhanging branches of G's tree extend across the boundary into H's garden and interfere with H's use of the land, H may cut off the overhanging branches up to the boundary line without needing to sue G for an injunction, provided H uses reasonable care and does not enter G's land to do so; but if abating the nuisance would require H to enter G's premises, H should ordinarily give notice first, or seek the court's assistance instead.

A Practical Example

P's neighbour Q's dog repeatedly strays into P's garden and damages P's flower beds. P may lawfully catch and detain the dog under the remedy of distress damage feasant until Q compensates P for the damage, but P may not keep the dog permanently or use it as P's own. Separately, if a branch from Q's overgrown tree hangs over the boundary into P's garden and blocks sunlight from P's plants, P may cut the overhanging branch back to the boundary line as abatement of nuisance, without needing to sue Q first, provided P does not enter Q's land to do the cutting. If, instead, Q's teenage son repeatedly climbs over the fence and sits in P's garden despite being asked to stop, P may use reasonable force to remove him each time this happens, as expulsion of a trespasser — but if the situation escalates to the point where the only way to stop the trespasses is to physically restrain or injure the boy, P must stop and seek an injunction from the court instead, since self-help is confined to reasonable, proportionate measures only.

Quick Revision Points

• Judicial remedies: damages, injunction, specific restitution of property — all require a court order.
• Damages — detailed in the next post; Injunctions — detailed in the post after that; not repeated here.
• Extra-judicial remedies: expulsion of trespasser, re-entry on land, re-caption of goods, distress damage feasant, abatement of nuisance.
• Common limiting conditions on every extra-judicial remedy: promptness, reasonable/proportionate force, no unnecessary breach of the peace.
• Expulsion of trespasser — request to leave first, then reasonable force if needed.
• Re-entry on land — peaceful and prompt only; go to court if the wrongful occupant resists.
• Re-caption of goods — prompt, no forced entry into premises, no breach of peace.
• Distress damage feasant — detain trespassing chattel causing damage as security; no use or sale of the chattel.
• Abatement of nuisance — remove the nuisance personally, prior notice usually required except in emergencies.