Per Incuriam Easter 2017

PER INCURIAM EASTER 2017

2017 LEGAL UPDATES Updates on Tripos subjects: new cases, articles, & important notes.

A RIGHT NOT TO BE OFFENDED? Linguistic uses which are the enemies of free speech.

Sir John Laws

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Contents

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CONTENTS PRESIDENTS WELCOME

4 Lucia Azzi | President

EDITOR’S MESSAGE

5 Alicia Loh | Editor

ARTICLES

6-7

A Right Not To Be Offended

Sir John Laws | Goodhart Professor of Legal Science & Hon Fellow of Robin

8-9

International Banking Regulations Colleen Cassidy | St Edmund’s College

10-11

International Pro Bono Trip

Chloe Hassard | St Catherine’s College

12

20

Land Law

Dr D.P. Waddilove | Newton Trust Research Fellow, St Catharine’s College

21

Administrative Law

Dr Paul Daly | Senior Lecturer in Public Law, Faculty of Law and the Derek Bowett Fellow in Law, Queens’ College

15

Constitutional Law

Stevie Martin | Ph.D. Candidate, Law Faculty, University of Cambridge

32-33

Civil Law

Giuseppe Jafari Corpus Christi College

Katherine Archer | St John’s College

23

EU Law

Albertina Albors-Llorens | University Reader in EU Law, Fellow and Director of Studies in Law, St John’s College

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Family Law

Dr Brian Sloan | College Lecturer, Director of Studies and Fellow in Law, Robinson College

2017 LEGAL UPDATES | TRIPOS

Dr Joe Sampson David Li Fellow in Law, Selwyn College

Fiona Lin | Queens’ College

Dr Dominic de Cogan | University Lecturer, Fellow, Christ’s College

Law of Equity

Professor Simon Deakin | Professor of Law, University of Cambridge; Director, Centre for Business Research

Civil Law I

Family Law

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25

14

30-31

22

Top Tips For Tort Tripos Triumph Dr Janet O’Sullivan Senior Lecturer, Faculty of Law

TRIPOS ESSAYS

Labour Law

27

Intellectual Property

Dr Christina Angelopoulos | Lecturer in Intellectual Property, Centre for Intellectual Property and Information Law (CIPIL)

2017 LEGAL UPDATES | LL.M

Company Law

35

Tort Law

Edward Low | St John’s College

36-37

Contract Law

Alicia Loh | Peterhouse

38-39

Criminal Law

Yen Jean Wee | St John’s College

40-41

Criminology, Sentencing & The Penal System Sher Lin Wong | Queens’ College

42-43

EU Law

Abbie Coombs | Queens’ College

44

International Law

Andrew Ng | Wolfson College

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46-47

Joshua Cainer | Downing College

Matthew Dyson | Associate Professor, Faculty of Law and Corpus Christi, University of Oxford

Dr Felix Steffek University Lecturer in Comparative Commercial Law, Newnham College

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Dr Elaine Freer | College Teaching Officer, Robinson College, Barrister-at-law, 5 Paper Buildings

Dr Elizabeth Howell Slaughter and May Lecturer in Corporate Law, Fellow of Magdalene College

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Criminal Law

Criminal Law

18

Comparative Commercial Law

Corporate Finance

Labour Law

48-49

Land Law

Gareth Goh | St Catherine’s College

50-51

Equity Law

Fabienne Carey | Pembroke College

Law of Contract

Dr Stelios Tofaris | Fellow, Girton College

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EASTER 2017

President’s Welcome

PRESIDENT’S WELCOME DEAR READERS, Welcome to the Easter edition of Per Incuriam! Alicia and Yukiko have put together an edition that I am sure our readers will find interesting, thought provoking and invaluable for revision, with top tips for tripos, brilliant legal updates and the unmissable tripos essays.

Lucia Azzi | President

I hope everyone had a fantastic Easter break and feels refreshed and ready for exam term. For Freshers facing Easter term for the first time, definitely do not panic. While it is long and drawn out (so make sure to pace yourselves), and it feels like there is more to memorise than is humanly possible, everyone gets through it, and everyone always goes into the exams knowing a lot more than they think they do.

I would like to introduce the new CULS committee for this year. I am incredibly excited to be working with Sophie (VicePresident), Cara (Treasurer) and Charmaine (Secretary) as well as our fantastic appointed committee. We are working on a lot of ambitious projects to enhance what CULS membership offers you; this includes an app that will be launched at the start of

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Michaelmas, which will provide you with quick access to information about events, recently published articles and a compendium of all of CULS’s sponsors, closer links with our alumni and many new and exciting careers and social events for Michaelmas and Lent term next year. Keep an eye on the CULS Facebook page and newsletter for updates.

The highlight of Easter term for CULS is always our Garden Party, and our Socials Secretaries and the Garden Party committee have been busily planning over the holidays what looks to be an incredible event. I look forward to seeing lots of you there.

I would also like to thank Alicia Loh, the Editor of Per Incuriam, and Yukiko Lui, the Deputy Editor, for their incredible work and dedication this year. I would also like to thank our generous sponsors for their continued support of CULS, without which the success of our society would not be possible.

Best of luck for exams!

Lucia Azzi CULS President 2017-18

Editor’s Message

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EDITOR’S MESSAGE DEAR READERS, Welcome to the final Per Incuriam issue of 2016-17! It has been a wonderful year, and we are so excited to round off the year with an exciting variety of articles to kick off your Easter term, from the intellectual to careerminded and of course, Tripos-focussed.

Alicia Loh | Editor

Yukiko Lui | Deputy Editor

First up in this Easter 2017 issue, we have a special feature by Sir John Laws on the right not to be offended that is sure to get you thinking. For those of you returning to Cambridge next year, Chloe Hassard’s article sharing her experiences on a trip to Panama organised by the CULS Pro Bono sub-committee will give you an insight into the exciting pro bono work we do and how you can help. Lastly, watch out for Colleen Cassidy’s piece on the enforcement of international banking regulations from a firsthand perspective.

On the Tripos side, we are excited to share a series of articles and essays that are sure to help you make it through exams. Our brilliant lecturers and supervisors have kindly contributed updates to recent cases and developments that are relevant to our subjects in the 2017 Legal Updates, which covers all of the compulsory subjects across

If you are interested in contributing to Per Inc, drop us a line at per-inc@culs.org.uk. We accept articles from all, whether you are an academic, professional, or current student, including people from all universities.

We also welcome First Class Tripos essays.

Please send them typed, and with their respective year, question number, and marks indicated, along with your name, College and alternate email address.

the three years along with a wide range of popular optional subjects such as Labour Law and Family Law, and two LL.M subjects. Be sure to read for Dr O’Sullivan’s tips for Tripos triumph, which are sure to help whether you are a first year Law student or running the last lap of your degree.

Finally, we are very pleased to feature 12 First Class Tripos essays (several of which received Starred Firsts) to help you prepare for your exams.

I would like to thank Yukiko Lui, my wonderful Deputy Editor, and our terrific Fresher Representatives, Rabin Kok and Patrick Campbell, for all of their hard work and support which has brought this issue before you today. I wish all the best to the incoming Editors, Yukiko, Rabin, and Tatiana, who I am sure will do a fantastic job with Per Incuriam.

All the best for Tripos!

Best wishes, Alicia Loh Per Incuriam Editor 2016-17

Keep in touch! ‘Like’ our Facebook page for the latest legal developments and updates on Per Inc. Facebook: fb.com/CULSperincuriam Contact: per-inc@culs.org.uk

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EASTER 2017

Articles

A Right Not To Be Offended

A RIGHT NOT TO BE OFFENDED? Sir John Laws | Goodhart Professor of Legal Science and Hon Fellow of Robinson College

There are some linguistic uses which are the enemies of free speech and need to

be exposed as such. There are three particularly bad examples: (1) offence, and its

cognates offended and offensive; (2) respect; and (3) unacceptable. I propose to carry out the exposure.

It has become common currency, particularly in the sphere of religion, to heed complaints that this or that speech or action is offensive to the beliefs of a person or group. But very little thought is given to what this means.

It might mean little more than that the supposedly offended person disagrees, no doubt strongly disagrees, with what has been said or done. It might mean that he is in some sense hurt by the speech or action, especially if his belief, very strongly held, is ridiculed.

The hurt in question, not being physical hurt, is presumably some form of mental anguish. No doubt there are widely varying degrees of such anguish. What is hopelessly sloppy about this form of speech is that the notion of offensiveness (itself an umbrella covering a range of situations) mutates. It does so with little or no argument, indeed as often as not without even being noticed. It mutates in two connected ways. Sometimes it mutates into a claim that a believer has a right not to be offended by speech which attacks his belief. Sometimes it mutates into a justification for prohibiting the speech or action in question: the offender should be stopped from offending. If the suggestion here is only that of a moral prohibition, then this mutation means no more than the first one, the mutation into a claim of right. That is so because a right not to be offended implies, subject maybe to exceptions, a duty not to offend; and that amounts to a moral prohibition against causing offence. But it is

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sometimes suggested that there should be a legal prohibition against giving offence.

The moral or legal prohibition of speech or action is never justified simply on the ground that it gives offence, even grave offence.

Stifling free speech stifles free thought. It gives power to whoever raises the loudest shout of protest.

I will say a little about the other terms which are the enemies of free expression: respect and unacceptable. Consider these statements: Everyone’s beliefs are entitled to respect; and Speech which is offensive to any other person’s beliefs is simply unacceptable.

These are common currency. They might be said to constitute arguments in favour of a right not to be offended. But they are not arguments. They are only assertions. They provide, at most, rhetorical support for the right, and the prohibition, that are mutated out of offensiveness. But what do they actually mean?

Take the first: Everyone’s beliefs are entitled to respect. By any reasonable measure of the meaning of respect, this is plainly false. Some people believe the most horrendous things.

Some people believe that children should be tortured or killed because that will exorcise an evil spirit. Some people believe – still believe – that a race, or a class, is so inferior to their own that its members should be treated as

lower than the low: as untermensch. Some people believe that a person who abandons his religion for another should be killed for doing so. By the lights of any remotely civilised standard, these beliefs are repulsive.

None of them is remotely entitled to respect.

Now take the second statement I mentioned: Speech which is offensive to any other person’s beliefs is simply unacceptable. This too is false. It amounts to much the same thing as the first statement. There are some beliefs which are morally disgusting, involving horrific cruelty to other people. How can it be “unacceptable” to excoriate such beliefs in the most emphatic language?

It is easy to see that these statements, about offence, respect, and what is or is not unacceptable, are false if they are considered by reference to the content of the beliefs in question. Might they be saved if a different kind of meaning is attributed to them?

One possibility – an ironic one, since I set out to condemn these expressions in the name of free speech – is that they might be justified as expressions of the ideal of free speech itself. Thus when we say Everyone’s beliefs are entitled to respect we may mean no more than that everyone is entitled to believe what he believes and within limits to say what he believes. If there is any respect involved, it is simply respect for the principles of free

A Right Not To Be Offended

thought and expression. The other statement – Speech which is offensive to any other person’s beliefs is simply unacceptable – may at a stretch be understood in the same way.

Perhaps it means no more than that a person should not be bullied out of his beliefs.

In considering the idea of free expression as a candidate for the real truth behind those false propositions – Everyone’s beliefs are entitled to respect and Speech which is offensive to any other person’s beliefs is simply unacceptable – it is useful to dwell for a moment on the difference between political and religious belief. Is it possible that the general rule of free speech – that critics and supporters meet on equal terms – does not apply to religious beliefs?

RELIGIOUS BELIEF, OR ANY OTHER BELIEF, IS NEVER AN EXCUSE FOR BAD MANNERS The truth of a political proposition is taken to depend on reason and evidence, whereas the truth of a religious proposition is taken to depend on faith or revelation. Thus you can refute a political proposition: you can marshal reason and evidence to demonstrate that it is false. Not so with a religious proposition.

No amount of reason or evidence will refute such a proposition in the mind of the believer, for he takes it as a given, immune from any such refutation, above and beyond reason and evidence. There are exceptions to this conceptual stand-off between religion and politics. Some extreme political positions are adhered to with an over-arching faith that scorns reason and evidence. And there have sometimes been religious positions whose adherents have accepted reason and evidence as the proper touchstone of belief: John Locke, and more generally the Deists of the late 17th and 18th centuries. Usually, however, faith and revelation, not reason and evidence, are the conditions of religion.

This contrast between political and religious belief – one based on reason and evidence, the other on faith and revelation – helps explain why liberal opinion speaks with a relatively uncertain voice in relation to religion: why, instead of robustly defending alike the rights of critic and believer, it sometimes comes close to accepting a right on the part of the religious not to be offended, so that, in effect, the believer’s right is bigger than the critic’s. So long as political opinion rests on reason and evidence, it can co-exist with this rule perfectly comfortably.

The tenets of anyone’s politics are always, so to speak, up for grabs. Its lifeblood is argument. It is honed on the anvil of disagreement. But religion is not like this.

Its truth is held to be sacred, inviolable. If

religious belief is assaulted with great vigour, if it is ridiculed, that is blasphemy, or at any rate is to be treated not as matter for legitimate argument, but as outrageous: a hurt not only to the believer, but to his god.

But there is no escape from the necessity that critics and supporters meet on equal terms. Acceptance of the overarching idea of free speech is a necessary condition of a tolerable society. No religious or political belief is self-proving. Religious and political beliefs are many and various and contradictory. The constitutional law of the State, which includes the laws relating to free expression, must proceed on the footing that the truth or falsity of any belief is irrelevant to the rights of its believers and critics to express their beliefs and criticisms. If it does not, it will give a tyrannous priority to one view over another, with who knows what unspeakable consequences. By contrast all the justifications deployed to show that some beliefs – political, religious or other – should be specially protected depend on the belief’s supposed truth. A belief’s supposed truth is categorically incapable of justifying its being specially protected.

I have said that all the justifications deployed to show that some beliefs should be specially protected depend on the belief’s supposed truth. That was implicit in a rationale for the law of blasphemy which was described by Lord Diplock in Whitehouse v Lemon, the Gay News case: “In the post-Restoration politics of 17th and 18th century England, Church and State were thought to stand or fall together. To cast doubt on the doctrines of the established church or to deny the truth of the Christian faith upon which it was founded was to attack the fabric of society itself; so blasphemous and seditious libel were criminal offences which went hand in hand.”

This passage is interesting, at least if Lord Diplock’s history is right; for it suggests a theocratic perception of the State. The idea of a theocratic State is always tyrannous, always to be condemned, because its necessary premise is that the divine law cannot be questioned. Queen Elizabeth I would not make windows into men’s souls; a theocratic constitution turns men’s souls into State property.

I suggested that the value of free expression might act as a stand-in for our two false propositions, Everyone’s beliefs are entitled to respect and Speech which is offensive to any other person’s beliefs is simply unacceptable. It could only do so, as I have put it, if we were to accept that the believer’s right of free expression is bigger than his critic’s; if we were to deny that critics and supporters meet on equal terms. But it

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cannot be so. The ideal of free expression cannot justify a right not to be offended. Our false propositions remain false.

But I cannot think that that is the end of the matter. I would take no satisfaction in a brittle, unfeeling society, in which offence to the deep convictions of honest people is dismissed with a shrug, a shrug seemingly justified by the liberal ideal that a belief’s critics and supporters meet on equal terms.

The exuberance of free speech needs to be moderated. Not by the breathless assertions of the truth of a believer’s beliefs; but by the value of good manners. Good manners is the most underrated of underrated virtues.

Some people see it as a kind of icing on the moral cake, not really part of the cake itself. Nothing could be more misguided.

Good manners is central to good conduct.

It is the very medium of self-restraint, and of consideration for others. It is a species of kindness, which I would suggest is the greatest of all the virtues. It is the leading mark of a civilised community.

This is the principle which is offended by gratuitous insult of another’s beliefs.

It is an offence against kindness; against treating others considerately. There are three important things to say about it. First, it is no inhibition against the vigorous and uncompromising criticism of foul opinions, religious or otherwise. Kindness does not require you to bow and smirk in front of the bully or the jackboot, or anyone who is simply full of hate. Secondly, the restraint which is demanded by kindness, good manners, is perfectly consistent with the principle that critics and supporters meet on equal terms.

The believer owes as much a duty of good manners to the critic as does the critic to the believer. Religious belief, or any other belief, is never an excuse for bad manners.

My third point about good manners is the most important. Unless its place is kept, the space it occupied will be swallowed up by more and more compulsory law. Without good manners, self-restraint, there may come a vicious conflict about the borderline between the domain of the law and the domain of free speech and action. The middle ground will collapse, or be greatly diminished.

It will be filled by new rules and regulations about how we ought to behave towards one another. The premise of this brave new regime is that we cannot be trusted to behave properly and the law must be harnessed to tell us how to do it.

It is too easy to forget that rights do not always have to be insisted on; you can waive a right, but never a duty; Shylock’s pound of flesh has modern, less corporeal, analogues; using up your last ounce of free speech may be one of them. We are not made more free by shouting when we can talk.

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EASTER 2017

Articles

International Banking Regulations

INTERNATIONAL BANKING REGULATIONS Enforcement through disclosure.

Colleen Cassidy | St Edmund’s College ABOUT THE WRITER: Prior to studying at Cambridge, Colleen worked with the Secretariat of the Basel Committee on Banking Supervision, which is headquartered at the Bank for International Settlements, an international organisation based in Switzerland. This allowed Colleen to work alongside senior officials from bank regulatory agencies and central banks, shaping international banking policies that would be applied to some of the world’s largest banks. Colleen joined the Basel Committee from another department within the Bank for International Settlements, where she led a team of lawyers, economists and actuaries whose role was to train banking

supervisors from around the world. Before working at the Bank for International Settlements, Colleen worked in banking policy and enforcement with Australia’s banking regulator, which gave her the opportunity to draft policies, travel to other countries to train supervisors and participate in policy working groups, and visit banks to review risk management practices. Colleen hopes to encourage law students to consider a career in financial services regulation. In addition to offering scope to be involved in a wide range of public policy and enforcement activities, regulation provides an excellent platform for learning more about financial services.

International banking regulations are set by a number of global standard-setting bodies.

One of the main standard-setting bodies for banks is the Basel Committee. Based in Switzerland, the Basel Committee sets banking regulations that member countries apply in local jurisdictions. Up until the global financial crisis that began in 2007, not a lot of attention was paid by the Basel Committee to assessing countries’ implementation of the regulations that had been agreed.

However, this changed with the onset of the global financial crisis, which emphasised the need for global harmonisation of Basel rules and a method for ensuring that the rules were being followed. The challenge was that Basel Committee rules, like many international laws, had no legal force. The Basel Committee therefore needed to devise a framework for ensuring consistency in implementation. This article explains the framework that the Basel Committee developed to achieve global consistency.

THE EVOLVING ROLE OF THE BASEL COMMITTEE

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The Basel Committee is the primary international body that sets banking regulations relating to prudential matters such as capital, liquidity, risk management and a range of other areas. It comprises 45 members from 28 jurisdictions, each of whom has formal responsibility for banking supervision. Its mandate is to strengthen the regulation, supervision and practices of banks to maintain and strengthen global financial stability. One of the primary tools that the Committee has at its disposal for achieving its mandate is the issuance of global standards and guidelines that are turned into regulations in member countries. Another is the sharing of information among supervisors on good supervision practices and emerging issues.

One characteristic which is absent from the Basel Committee’s make-up, relative to many other international organisations, is any formal supranational authority. Established

in 1975, the Basel Committee was originally established to agree how supervision activities should be divided amongst countries for banks operating across national borders so that no bank escaped supervision. With the globalisation of banks and the increasing complexity of international financial markets, the Committee morphed into an international standard setter, yet it retained its foundation as an agreement-based body.

Prior to the global financial crisis, the lack of supranational authority was not regarded, for the most part, as a significant obstacle.

The Basel Committee’s mandate was pursued through members’ commitments to contribute to the development of banking regulation and to promote the interests of global financial stability (and not solely national interests). Members came together periodically to discuss banking issues and a range of banking standards and other publications were developed for implementation by members over time.

International Banking Regulations

THE BASEL COMMITTEE’S RESPONSE TO THE GLOBAL FINANCIAL CRISIS However, the global financial crisis necessitated significant change in how regulators approached the supervision of global banks, highlighting the interconnectivity between the world’s largest national banking systems. Banks and other institutions in several large economies accumulated exposure to a potential downturn in the US housing market by investing in complex financial products to profit from seemingly low risk investments.

Few parties truly understood the risks inherent in these products. Fewer still understood the threat to global stability that came about through the accumulation of risks between different banks and across different economies and different financial markets.

When the US housing market deteriorated, so too did the value of these investments; leading to significant financial losses and, most importantly, a crisis of confidence in financial markets more broadly.

THERE ARE LIMITS TO THE HARMONISATION OF REGULATION In the wake of the financial crisis, the Basel Committee set about overhauling its existing rules. Its goal was to increase the resilience of the international banking system to enable it to withstand future shocks of similar magnitude. It also sought to improve its information sharing arrangements and how individual countries went about supervising banks, so that the regulatory sector would never again be caught unawares. The Committee introduced new rules in a wide range of areas to deal with issues not previously thought to have been significant at an international level – such as a global liquidity standard for banks to ensure banks maintained adequate cash flows. Unsurprisingly given the scale of the crisis, agreements were reached in areas where consensus was previously thought to be unobtainable. These agreements came to be known collectively as Basel III. In addition, the Basel Committee began to focus on improving global consistency in banking regulation. Most importantly, it aimed to ensure that all of its members were implementing the agreed banking regulations as intended. Global consistency was important in order to promote global financial stability, encourage certainty in regulation for global banks, restore public confidence in financial systems and facilitate more competitive financial markets and cross-border trade and capital flows.

To accommodate this new focus, the Basel

Committee expanded its mandate beyond making policies and sharing information.

The revised mandate included member commitment to implementing and applying regulations within pre-defined time frames.

It also required its members to undergo and participate in peer reviews to assess the consistency and effectiveness of national rules and supervisory practices relative to international banking standards. What now seems obvious for an international regulatory body was at the time new and unfamiliar territory for an organisation that had previously relied upon the goodwill of members to get things done.

IMPROVING IMPLEMENTATION OF BANKING REQUIREMENTS THROUGH DISCLOSURE To achieve its expanded mandate in the absence of any legal authority, Basel Committee members agreed to adopt what is largely a self-regulatory framework. As is well known to law students, a regulatory framework will be most effective when it provides an incentive to behave appropriately and an adequate system of sanctions or other actions to penalise inappropriate conduct.

Hence, the Basel Committee developed a framework of peer review and disclosure (or ‘name and shame’ tactics) to encourage members to meet their commitments.

The framework comprises two components (a third component that focuses on how banks implement the rules will not be considered here): •

Monitoring of members’ implementation of bank regulations through selfreporting; and

•

On-site peer reviews of countries’ implementation of regulations.

The first component is a semi-annual ‘report card’ based on familiar traffic light indicators to show how jurisdictions are tracking relative to the agreed implementation timetable.

The Committee anticipated that this type of disclosure would provide the necessary incentive to keep members working towards implementing global rules; it was hoped that the shame of failing to meet targets would be enough to prevent members from falling behind. Notwithstanding that the report is more form than substance, the disclosure appears to be working. A review of the most recent report card shows that most members are in the green for most banking regulations; where there are laggards, this looks to be because of the nature of the topic rather than because of the members’ reluctance to implement.

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members’ national banking regulations against the globally-agreed banking rules.

These assessments are essentially a lineby-line comparison of global and national regulations to ensure consistency with the letter and spirit of the international rules.

Where a difference is found that might be less strict than the international regulation, the actual or potential materiality of the difference is evaluated. The benefit of these arrangements is three-pronged. First, it provides a second check of members’ implementations to address any inadvertent errors and unintended divergences when translating requirements to local legislative frameworks. Second, it challenges members to defend their implementations and in doing so work through the implications of deliberate differences. And third, as for the report card approach, the prospect of peer review provides a strong incentive to members to adhere to international regulations or otherwise be prepared to justify any material deviations.

The enforcement initiative is therefore using peer pressure and public disclosure to achieve, at best, international consistency, and at worst, improved transparency. The significance of the latter should not be understated. In a competitive world where economies find themselves competing for funds, it is important that financial markets fully understand the health of the banking system in which they are planning to invest.

Understanding the differences in regulations between jurisdictions, and comparing those differences to financial ratios, helps investors to understand the comparative strength of banks. The ability of markets to discern the strong from the weak, adds to the potential for disclosure to play an enforcement role.

LIMITS TO INTERNATIONAL CONSISTENCY The end goal of the Basel Committee’s enforcement framework is not a single global rulebook that can be applied to all banks in all jurisdictions. For one thing, member countries are free to implement banking rules in excess of the globally-agreed international standards. Moreover, in some situations local circumstances are such that differences in regulations continue to exist for good reasons. Clearly there are limits to the harmonisation of regulation. Hence the goal is to achieve consistency wherever possible and to make differences known where these cannot be ‘harmonised away’.

Reports so far are that the Basel Committee’s approach is working well. Ultimately, the measure of success will be how well the regulatory sector anticipates and cuts off another financial sector shock – with good fortune of that we will never know.

The second and more substantial component is a programme of peer assessments of

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EASTER 2017

Articles

International Pro Bono Trip

INTERNATIONAL PRO BONO TRIP GLOBAL BRIGADES HUMAN RIGHTS BRIGADE, PANAMA Chloe Hassard | St Catherine’s College IIn June 2016, I travelled to Panama to participate in a Human Rights Brigade alongside twelve other students from Brighton, Cambridge and Exeter Universities.

The brigade was coordinated by CULS International Pro Bono sub committee, and was organised by Global Brigades. Global Brigades is an international non-profit organisation that spearheads the largest student led social responsibility movement aiming to improve global equality. They are committed to a holistic model of operation, where the work of each brigade is followed by continual monitoring and support, with the ultimate aim of communities transitioning to self-sustainability.

GLOBAL BRIGADES IS A MULTI FACETED ORGANISATION THAT ALSO RUNS MEDICAL, ENVIRONMENTAL & BUSINESS BRIGADES We spent eight days in the Darien Province of Panama, a rural region that suffers from a lack of familiarity of legal procedure, a distrust of lawyers, poor record keeping

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and subsequently an over reliance on verbal agreements. Our brigade was based in the small rural village of Rio Congo Arriba, which took over two hours each day to reach due to the poor road conditions and frequent police checkpoints. Upon arrival in the village, we shadowed Panamanian lawyers and held pro bono legal clinics, which allowed local residents to access free legal support for a range of legal issues. This helps to combat the distrust that commonly surrounds lawyers.

The cases were predominantly family law orientated, and having studied Family Law, this gave me an interesting insight into how UK and Panamanian law compare. We students were responsible for interviewing the clients and recording their information, which provided a refreshingly practical insight into the importance and effect of law in individuals’ lives. I gained a renewed appreciation of the vitality of adequate access to justice, as I witnessed the reality of unenforced child maintenance payments and incomplete child recognition proceedings (a process not dissimilar to adoption). Playing a part in the completion of divorce proceedings and the resolution of property disputes, that would not otherwise have been possible without the pro bono work of our brigade, was a hugely satisfying experience.

Community educational workshops were also a significant part of our work. They involved advance preparation, and were consequently an opportunity for us to learn about Panamanian law and legal process.

Six students taught a school lesson on the rights of a child, whilst the other seven (myself included) presented to fifteen women the topic of domestic violence. Both issues were particularly relevant in light of the large gender divide in Panama, and in many cases the perceptions held about women were striking. The importance of tackling such complex issues affecting women’s daily lives, and publicising avenues for help and support in a manner that extends beyond our time in Rio Congo Arriba, became very apparent.

We were so encouraged by the male leaders of the community attending our presentation and affirming their commitment to pursue justice in the area of domestic violence. This was an example of the community taking justice into its own hands.

Global Brigades is a multi faceted organisation that also runs medical, environmental and business brigades, amongst many others.

On our final day in Panama, our team visited a community bank that had been set up by a previous Micro Finance Brigade. We were responsible for presenting to the community

International Pro Bono Trip

members the rules of the bank, and explaining the requirements for savings and loans.

Establishment of a banking system is crucial to any community’s self-sustainability, and is therefore central to Global Brigades’ holistic model. I was able to appreciate the important interaction between Micro Finance and Human Rights Brigades, because the ultimate goal is for community members to be able to utilise the community bank to access capital that can then fund necessary legal services.

Good communication skills and effective teamwork were central to all of our work, not least because of the Spanish language barrier and our dependence on three amazing interpreters as a result. Each evening we had team reflections, played games, explored the land surrounding our accommodation compound and even ventured right to the

PER INCURIAM

edge of the Panamanian jungle! I am hugely grateful to have had the opportunity to partake in a Global Brigades Human Rights Brigade, and would unhesitatingly encourage others to do the same.

THE BRIGADE WAS A WONDERFUL MEANS OF MEETING NEW PEOPLE & BUILDING FRIENDSHIPS Our Human Rights Brigade was excellently organised and structured, as Global Brigades retain strong links with the local politicians and police. Global Brigades has an expansive network of ‘technicians’ who reside in each of the communities that brigades visit. These individuals identify the families that could most benefit from pro bono legal work, and ensure adequate follow up support is provided to resolve cases after the brigade’s visit has ended. They also publicise the upcoming visits of brigades to encourage as many individuals as possible to attend the workshops and clinics. This is part of the clear, consistent emphasis placed on holistic collaboration and co-operation: on improving access to justice with the community as opposed to for the community.

Without a doubt, I personally learned and benefited from my time in Panama just as much as I contributed. In addition to exposure to a new country, climate, culture and cuisine, the brigade was a wonderful means of meeting new people and building friendships.

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EASTER 2017

Articles

Top Tips For Tort Tripos Triumph

TOP TIPS FOR TORT TRIPOS TRIUMPH Dr Janet O’Sullivan | Senior Lecturer, Faculty of Law In fact, the title of this little article is a bit misleading – it would be more accurate to call it ‘Top Tips for Avoiding Tort Tripos Disaster’, but not as attractively alliterative. The thing is that, with the benefit of over two decades of marking exams here in Cambridge, I can see what goes wrong for some candidates.

Nearly all of our students work incredibly hard and, by the time of the exams, understand their subjects in depth and have learnt vast amounts of detail, caselaw and academic literature. So when students do badly, or fail to achieve their potential, in tripos, it is very often because their exam technique lets them down. So here are my five top tips – I’ll focus on the Law of Tort, but I suspect the advice applies across the board.

TIMING AND MATHS Each exam is three hours long and you have to do four questions, so that’s roughly 45 minutes per question. It is vital be really disciplined and move on to the next question after 45 minutes, because each question is equally weighted and carries equal marks.

You may be tempted to spend longer on the first three, so as to do a really good job and show the examiner what you are capable of, but please resist this temptation! You will very easily run out of time to do that fourth question. Look at the maths: imagine you only do three questions but get first class marks on all three, perhaps 74%, 72% and 70%. Brilliant – you are clearly a very able law student. Except that comes to 216/400, or 54%, also known as a mid-2:2 overall. See what I mean…?

READ THE QUESTION – AND ANSWER IT PRECISELY This is familiar advice from school and supervisions, but it’s worth repeating. In a problem question, notice what you are asked to do – is it to advise one party, or all parties?

Stick closely to the facts in the problem, don’t speculate or worry about facts or parties that

12

haven’t been mentioned. In an essay question, again, notice what you are asked – if an essay title is just about Negligence, don’t spend any time on other torts; if asked about the Law of Tort more generally, don’t just cover Negligence. In an essay, you can show you understand the Law, but also that you can think critically about it, exploring your own opinions rather than regurgitating lecture or text book notes (avoid being overly critical, though – it grates a bit when a first year Law student writes that a Supreme Court Justice’s reasoning was ‘appalling’ or ‘incoherent’!)

DON’T PARAPHRASE STATUTORY LANGUAGE The magic of legislative law-making is that the words of the statute are the law: you can express in your own words what the ratio of a case is, but you can’t paraphrase a statute. Which is great news, because you will have the text of the statute in front of you in the exam. Make sure you apply the precise statutory language to the question asked, and you can’t lose. Also, avoid misciting the relevant statutory provision. For example, candidates often mis-cite the bit in the Occupiers’ Liability Act 1957 about independent contractors doing work of construction, maintenance or repair, as ‘section 4(b)’ when it is actually ‘section 2(4) (b)’. A tiny thing in a way, but lawyers are keen on attention to detail.

HONE IN AND CONCENTRATE ON THE NUB ISSUES Part of the skill of a lawyer is to be able to focus on the crucial issues. In a problem question, you should be looking for what’s relevant or controversial or tricky (which is what the examiner was likely to have been thinking about when setting the question), and dealing with those bits in a lot more detail than the bits that are straightforward. Be guided by how a court decides a case – in Fairchild, for example,

the House of Lords briefly mentioned the straightforward bits of the cause of action, i.e. that the successive employers owed common law and statutory duties to the deceased victim and that those duties had been breached, before concentrating at length on the nub issue, factual causation in the context of mesothelioma. Spending too long labouring straightforward things shows a lack of discernment, and cuts down the time available for you to show your prowess analysing the nub issues. And sometimes this tendency strays beyond just wasting time – I’ve said it many times, but it bears repeating – do avoid ‘Caparo-isation’, by which I mean it is actively wrong to trot out the Caparo factors in a well-established duty situation, such as a road accident!

AVOID HOWLERS Finally, try and avoid silly mistakes – they may be trivial but they can leave a surprisingly bad impression on a tired, grumpy examiner. You don’t need to know the exact year of cases, but do have a rough idea of chronology, so as to avoid howlers like ‘Hedley Byrne was wrongly decided, because the House of Lords failed to apply the Unfair Contract Terms Act’ (oops – Hedley Byrne was fourteen years earlier than the Act). Make sure you use technical terms correctly – don’t say, for example, that one tortfeasor could seek ‘contributory negligence from’ another tortfeasor responsible for the same harm, when what you mean is, ‘seek a contribution’ from that other tortfeasor. And make sure you know how to spell familiar legal words, like ‘omission’ (just the one ‘m’) and Donoghue v ‘Stevenson’ (with a ‘v’ not ‘ph’), otherwise you risk looking like someone who has never actually read a law book!

I hope these tips make sense and are useful.

Good luck with your revision and with the exams ahead.

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EASTER 2017

2017 Legal Updates

Civil Law I

2017 LEGAL UPDATES

CIVIL LAW I

Dr Joe Sampson | David Li Fellow in Law, Selwyn College Dolus, the Roman Law label for bad faith, is consistently misused by students in the Civil Law I exam. There are two basic levels at which dolus can operate: as the basis for a claim (the actio doli) and as a defence (the exceptio doli). In both contexts, there are some important elementary points that are easily forgotten.

THE WRONGED PARTY DOES NOT NEED TO EXPRESSLY RAISE THE EXCEPTIO DOLI TO MAKE THE ISSUE LIVE Beginning with the exceptio doli, students would do well to consider whether the

14

formula of the action to which bad faith might be a defence requires the separate pleading of dolus through the exceptio doli, or whether the formula directs the iudex to consider bad faith as a matter of course.

For example, any contract founded on good faith will automatically direct the iudex to consider what good faith requires. If a sale is procured by duress, fraud or some other untoward factor, the judge can take that into account automatically when either party sues on the contract. The wronged party does not need to expressly raise the exceptio doli to make the issue live. It is only where the formula for an action doesn’t give the iudex this adjudicative flexibility that the wronged party needs the exceptio.

This will most commonly be the case when a stricti iuris contract is enforced, but can also be relevant within the law of property

(where an owner seeks to enforce his rights in bad faith via a vindicatio).

The actio doli ought to be extremely rare in problem questions. This is because it was a residual action. It could be used on where no other action was available, or where the proper action offered only ephemeral relief. The Roman law of actions was fairly comprehensive, and even the most imaginative of examiners will have a hard time dreaming up scenarios in which no action other than the actio doli was available. So think twice before saying an actio doli lies.

Constitutional Law

PER INCURIAM

2017 LEGAL UPDATES

CONSTITUTIONAL LAW Declarations and Nicklinson: a new challenge, a new perspective.

Stevie Martin | Ph.D. Candidate, Law Faculty, University of Cambridge Considering news of a new challenge to the compatibility of the blanket ban on assisted suicide in s 2(1) of the Suicide Act 1961 (‘SA’) with the right to private life in Article 8 of the European Convention on Human Rights (‘ECHR’)1, it is a propitious time to examine a particularly dubious aspect of the reasoning of the majority Supreme Court in Nicklinson2 given the likelihood that that decision will significantly influence the nature and substance of the new challenge.

Nicklinson concerned, inter alia, an application pursuant to s 4 of the Human Rights Act 1998 (‘HRA’) for a declaration that the blanket ban on assisted suicide in s 2(1) of the SA was incompatible with the right to private life enshrined in Article 8 of the ECHR. Of the nine presiding justices, four considered that it was ‘institutionally inappropriate’ for the court to even consider the compatibility of s 2 with Article 8.3 While Lords Neuberger, Mance and Wilson rejected

PARLIAMENT CAN COMPLETELY DISREGARD THE COURT’S DECLARATION the institutional inappropriateness claim, their Honours nonetheless determined that Parliament ought to have the opportunity to consider the question of amending s 2 before the court ‘…finally ruled on it.’4 Lady Hale and Lord Kerr in dissent considered that there was no reason why the court should not get involved5 and, having considered the question of compatibility, determined that the blanket ban constituted a disproportionate interference with the right of people in the position of Mr Nicklinson to decide when and how to end their lives. There Honours would, then, have issued a declaration of incompatibility pursuant to s 4 of the HRA.

‘…does not affect the validity, continuing operation or enforcement of the provision…’, nor is the declaration ‘…binding on the parties…’7 Parliament can choose to remedy an incompatibility the subject of a declaration under s 4 or it can choose: …to do nothing … either because it does not share [the court’s] view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative.8 Implicit in the finding of the majority that Parliament was the more appropriate forum is the suggestion that a s 4 declaration would in some way impinge upon Parliament’s power to amend legislation. This is plainly erroneous.

As both Lady Hale and Lord Kerr observed, Parliament can completely disregard the court’s declaration. More significantly, the majority’s approach (particularly that of Lords Neuberger, Mance and Wilson) undermines the strength of the declaratory power; it denied Parliament the benefit of the opinion of the Court regarding the ban’s compatibility with Article 8, and a key (if not the key) strength of a declaration is the ability to ‘… remit the issue to Parliament for a political decision, informed by the court’s view of the law’.9

1

See, for example, F Walsh, ‘ “I fear being entombed in

my body” – suicide legal challenge’ (6 January 2017) BBC News (http://www.bbc.co.uk/news/health-38500873); O Bowcott and H Sherwood, ‘Terminally ill UK man launches legal challenge for right to die’ (6 January 2017) The Guardian (https://www.theguardian.com/society/2017/ jan/06/terminally-ill-uk-man-launches-legal-challenge-forright-to-die).

2

R (On the Application of Nicklinson and Anor) and Ors v

Ministry of Justice and Ors [2014] UKSC 38 (‘Nicklinson’).

3

4

Lords Clarke, Sumption, Reed and Hughes.

Lord Neuberger, ‘The Supreme Court and the Rule of Law’,

Conkerton Lecture, Liverpool Law Society (9 October 2014).

5

Indeed, Lord Kerr considered that the court had a ‘duty’ to

consider the question of compatibility: Nicklinson at [327].

6

I.e. Lords Clarke, Sumption, Reed and Hughes, and Lords

Neuberger, Mance and Wilson.

7

8

HRA, s 4(6).

Nicklinson at [300]. The limited practical effect of a

declaration has not immunised the courts from criticism for allegedly encroaching upon Parliamentary sovereignty by making a s 4 declaration. See, for instance, J Finnis, ‘Judicial Power: Past, Present and Future’, Judicial Power Project, 21 October 2015. Available here: http://judicialpowerproject. org.uk/john-finnis-judicial-power-past-present-and-future/ (accessed 4 November 2016).

9

Nicklinson at [344], per Lord Kerr.

The approach of both camps comprising the majority6 fundamentally mischaracterises the nature of the declaratory power. A declaration

15

EASTER 2017

2017 Legal Updates

Criminal Law

2017 LEGAL UPDATES

CRIMINAL LAW

It works in practice, but does criminal law work in theory?

Matthew Dyson | Associate Professor, Faculty of Law and Corpus Christi, Oxford The English law of complicity continues to do what is needed of it: it works in practice.

But though it sounds like a joke, like a great deal of the criminal law, it is not clear it works in theory. Jogee [2016]1 was an important decision, but one particularly designed for collection by a trial judge prior to deployment for a jury. While underlying theory issues were cited to the court, they did not form part of the judgment. This is often the way. English criminal law is certainly based on underlying principles, but resolves the tensions in them on a case by case basis by asking what solution will work in practice.

For example, a newly enunciated test for accessories could have necessitated greater clarity on the role of principals and accessories, but Jogee itself did not attempt this. We do not know precise line between an accessory and a principal. Prosecutors are already trying to push that line, particularly because a principal might have strict liability but an accessory must at least know the fact that make it a crime (Jogee, [9], [16]).

A recent example concerns the offence of “making” an indecent image: the prosecution tried to argue that not only the cameraman was the “maker”, but also anyone in the image or who facilitated the taking of the image; that argument was rejected and only the cameraman was the maker of it2, s.1(1)(a) of the Protection of Children Act 1978).

Similarly, Jogee now requires the secondary party (S) to intend the principal (P) to have the fault required (e.g., [100]). Thus, if S deliberately manufactures a scenario where P does not have the fault, S cannot be liable as an accessory. S would have to be a principal or not liable. The linguistic arguments against P raping the complainant with S’s penis in

16

reference to cases like R v Cogan and Leak [1976] 3, even though made by the likes of Glanville Williams and JC Smith, seem even less persuasive now.

AT THE TIME OF WRITING, EVEN THE CPS HAS NOT UPDATED THEIR CHARGING PRACTICE TO REFER TO PACE The English habit of not seeking to complete difficult substantive definitions but instead leaving them to the jury to decide, case by case, jury by jury clearly demarcates one border of legal theory. The jury might help to prevent state overreaching, involve the public in criminal justice and see the system’s value, but they also mean we have not got answers to some important questions. What is sufficient assistance or encouragement in complicity? What is gross negligence in gross negligence manslaughter? What is dishonesty in theft and fraud (even more so in fraud without s. 2 of the Theft Act 1968)? What is intention? That question is particularly important now. Foresight of what P might do is not sufficient on its own, but it can be evidence of what S intended P to do. Yet how can any change Jogee might have brought be carried out in practice? In particular, carried out against the wiles of prosecutors trying to suggest the facts show an intention or a conditional intention? Prosecutors are already seeking to use the same evidence that would previously have founded a conviction in complicity on the basis of foresight, instead for an intention to assist/

encourage P, intending P to have any fault necessary, where either of those intentions might be conditional. It’s hard to push back effectively when everything seems to be so context-dependent.

The “intend all physical elements” approach to the Criminal Attempts Act 1981, s. 1(1) is a similar example. So far, R v Pace and Rogers [2014] 4 has only been used in three reported decisions, so it is not clear it is really replacing Khan [1990] 5. Indeed, the only two to really apply it also featured Davis LJ who gave the judgment in Pace and Rogers and were on the same issue: scrap metal stings and the same harsh rules under the Proceeds of Crime Act 2002 that only required D to suspect the property might be “criminal property”. At the time of writing, even the CPS has not updated their charging practice to refer to Pace, a decision now 3 years old.

Of course, just because the criminal justice system tends to solve only the issue in front of it, without deeper theoretical foundations, does not mean that we (and certainly students, in exams) should not do better. That particularly applies to students who will perhaps more keenly feel an examiner’s red pen than do those in practice and on the bench feel our strident case notes or respectfully but judgmentally submitted articles.

1 2

UKSC 8; UKPC 7; [2016] 2 WLR 681 R v Maughan, Price and Connors (unreported, 29 July

2016, QBD) 3 4 5

R v Cogan and Leak3 [1976] QB 217 R v Pace and Rogers [2014]4 1 WLR 2867 Khan [1990] 1 WLR 815

Criminal Law

PER INCURIAM

2017 LEGAL UPDATES

CRIMINAL LAW R v Brandford: Indirect Duress

Dr Elaine Freer | College Teaching Officer, Robinson College, Barrister-at-law, 5 Paper Buildings In December 2016 the Court of Appeal handed down judgement in R v Brandford & Ors [2016]1. All three Appellants had been convicted by a jury of two counts of conspiracy to supply controlled drugs (contrary to s.1 Criminal Law Act 1977).

Brandford appealed against conviction and sentence, the other Appellants only against sentence (hence no more is said about them).

At trial the Judge had withdrawn from the jury the defence of duress for Brandford.

Brandford’s account was that she had been pressured into carrying the drugs by Alford, a co-defendant. She was aware that he was involved in drug-dealing, but thought this to be low-level cannabis dealing. She knew that he had been assaulted and stabbed himself, and that another associate had been murdered, though she claimed that she did not realise the links, and that he was a Class A drug-runner, until the first leg of journey, the return leg on which they were stopped by police and drugs found secreted in Brandford’s vagina.

raised the question of ‘indirect duress’ – could Brandford rely on threats made to Alford which she only knew about through him? The judge ruled that in this case indirect duress could not be relied upon – the threats of which Brandford was told were unspecific and unattributed. She had no way of knowing how realistic they were.

The Court of Appeal ruled that indirect duress could, as a matter of law, found a defence of duress: ‘The more directly a threat is conveyed the more it will be capable of founding a defence of duress… However, the mere fact that the threat was conveyed

indirectly does not seem to us to constitute a fatal bar to the defence [39]’.

However, although the Court of Appeal did not support the Judge’s reasoning for withdrawing Brandford’s defence of duress from the jury, they ruled that she was entitled to withdraw it on the basis it was bound to be found disproved on general principles of duress – that the threat was not immediate enough and that she had voluntarily associated with criminality.

1

R v Brandford & Ors [2016] 1 EWCA Crim 1794

THE MORE DIRECTLY A THREAT IS CONVEYED THE MORE IT WILL BE CAPABLE OF FOUNDING A DEFENCE OF DURESS The Judge ruled that B had not been ‘physically forced’ to secrete the drugs. She claimed to have done so because she was told by Alford of the duress which he was under, and that this extended to threats against his family and her. This consequently

17

EASTER 2017

2017 Legal Updates

Law of Contract

2017 LEGAL UPDATES

LAW OF CONTRACT Is the end near for Foakes v Beer?

Dr Stelios Tofaris | Fellow, Girton College In MWB Business Exchange Centres Ltd v Rock Advertising Ltd,1 Rock entered into a written agreement with MWB to licence office premises managed by MWB. Rock struggled to pay the licence fee and incurred arrears of £12,000. Soon afterwards, Rock and MWB orally agreed to reschedule the payments.

Rock were to pay less than the originally agreed amount for the first few months, and more later, so that the arrears would be cleared by the end of the year. Rock paid £3,500 as the first instalment of the revised schedule. Two days later, MWB gave notice, terminating the licence agreement, and sued for the arrears.

The main issue was whether the oral agreement, which varied the written one, was enforceable. This required consideration.

Standing in the way was Foakes v Beer,2 in which the House of Lords ruled that where A promises to forgo the balance of a debt owed by B in exchange for B’s promise to pay a lesser sum (‘decreasing pact’), B’s promise is not good consideration.3 However, in Williams v Roffey Bros,4 the Court of Appeal held that where A promises B to pay more in exchange for B’s promise to perform his preexisting contractual duty (‘increasing pact’), B’s promise counts as ‘practical benefit’ and is good consideration. The same court also held in Re Selectmove5 that under the system of precedent only the Supreme Court could apply the ‘practical benefit’ reasoning to a ‘decreasing pact’.

‘practical benefit’ reasoning applies. In MWB, the creditor obtained a ‘practical benefit’ because of the continued occupation of the office premises. Consequently, there was good consideration.

The analysis of Foakes is problematic. Arden LJ suggested that the doctrine of ‘practical benefit’ is the modern equivalent of the old exception that the giving of a ‘horse, hawk, or robe’6 can be accepted in full satisfaction of the debt. But a ‘horse, hawk, or robe’ is different from what the creditor is entitled to receive, and the creditor is free to value the substitute as he wants. By contrast, a smaller sum of money cannot be valued as being more valuable than a larger one.

leave Foakes with little relevance. Third, it can go further and hold that prompt receipt of the part payment is a ‘practical benefit’, leaving Foakes with no relevance. Fourth, it can abolish the rule in Foakes, eighty years after the Law Revision Committee recommended this.7 Admittedly, it would require a bold Supreme Court8 to take the most drastic options. Lord Denning’s distinction of ‘bold spirits’ and ‘timorous souls’ comes to mind.9 No prizes for guessing in which camp he would have been.10 1

2

3

4

THE WRONGED PARTY DOES NOT NEED TO EXPRESSLY RAISE THE EXCEPTIO DOLI TO MAKE THE ISSUE LIVE

5

6

7

(1884) App. Cas. 605.

Affirming Pinnel’s Case (1602) 5 Co. Rep. 117a.

[1991] 1 QB 1.

[1995] 1 WLR 474, 481.

Pinnel’s Case (1602) 5 Co. Rep. 117a (Lord Coke).

Law Revision Committee, Sixth Interim Report, Cmd

5449 (1937).

8

Nonetheless, the rule in Foakes is contrary to commercial practice. For most businessmen, a bird in the hand is worth two in the bush.

Moreover, there is no basis in principle for treating ‘increasing pacts’ differently from ‘decreasing pacts.’ In addition, other doctrines, such as economic duress, can now protect the creditor.

[2016] EWCA Civ 553; [2016] 3 WLR 1519.

A. Burrows, A Restatement of the English Law of Contract

(Oxford, 2016), 68.

9

Candler v Crane, Christmas & Co [1951] 2 KB 164, 178.

10

It was in order to get round the rule in Foakes that

Denning J developed the doctrine of promissory estoppel in Central London Properties Trust Ltd v High Trees House Ltd [1947] KB 130 (cf D & C Builders Ltd v Rees [1966] 2 QB 617). In MWB the Court of Appeal reigned back on this by

Faced with this, the Court of Appeal in MWB circumvented Foakes. Foakes was distinguished on the basis that the only benefit to the creditor was prompt receipt of part payment which is not enough to establish consideration. But where the creditor gains an additional benefit from the part payment, the

18

The Supreme Court has granted permission to appeal. With no precedent hurdles, all options are available. First, the Supreme Court can affirm the rule in Foakes and hold that ‘practical benefit’ does not apply to a ‘decreasing pact’. Second, it can accept the Court of Appeal’s reasoning in MWB and

holding obiter and contrary to earlier suggestions in Collier v P & MJ Wright (Holdings) Ltd [2008] 1 WLR 643, that it is not inequitable for the creditor to go back on his promise merely because the debtor made a payment in reliance on the representation. After MWB, ‘practical benefit’ rather than ‘promissory estoppel’ is the preferred tool for chipping away at Foakes.

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EASTER 2017

2017 Legal Updates

Land Law

2017 LEGAL UPDATES

LAND LAW LAW LAND

Mortgage Language

Dr D.P. Waddilove | Newton Trust Research Fellow, St Catharine’s College Most people talk about going to the bank or building society to “get” a mortgage.

Eventually they might hope to “pay off” that mortgage. But having studied land law, you know that this language is wrong.

A borrower “gives” a mortgage to the bank; eventually he or she might pay off a loan to “discharge” the mortgage. Why this confusion between legal and ordinary language? History provides the answer.

MORTGAGES THUS BECAME ABOUT ACQUISITION, BOTH OF MONEY TO BUY A PROPERTY & OF PROPERTY ITSELF Before the 20th century mortgages were not primarily about buying houses. They

20

were a way to induce extension of credit on relatively advantageous terms: debtors secured their creditors with a pledge (aka a gage – we’ll leave why it is a “dead” pledge for another time) that the creditor could take particular property if the debtor defaulted.

A creditor therefore could always recover the value of the debt, and so could extend credit more cheaply. Because the debtor actively gave the pledge, he or she was the mortgagor; because the creditor passively received it, he or she was the mortgagee.

Over time mortgages became significantly used to finance home purchases. A borrower who would never otherwise be able to afford a house got a loan to buy one by pledging the only asset big enough to cover that loan – the house itself. Mortgages thus became about acquisition, both of money to buy a property and of property itself. Hence mortgages in the general population were associated with acquisition – so one “gets” a mortgage – and because repayment is

involved one “pays off” the mortgage.

As lawyers we know that mortgages are a little more complex than this. A debtor’s pledge of property – whether newly acquired or pre-owned – charges it with a debt. So we know that really one “gives” a mortgage in hopes that one might “pay off” a loan to “discharge” a mortgage.

Administrative Law

PER INCURIAM

2017 LEGAL UPDATES

ADMINISTRATIVE LAW Good and Standardised Reasons for Administrative Decisions Dr Paul Daly Senior Lecturer in Public Law, Faculty of Law and the Derek Bowett Fellow in Law, Queens’ College As is well-known, perhaps even notorious, there is no general common law duty to give reasons for administrative decisions.

But does the common lawyer’s obdurate stance make sense in a world in which decision-makers use “standardised reasons” to process “large numbers of applications” more efficiently “by employing information technology, using decision templates, drop-down menus and other software” (R (Agyarko) v Home Secretary [2017] UKSC 11, at para. 71, per Lord Reed)?

machinery have been rendered suspect by technological developments.

makers could not rely so readily on the new technologies that facilitate the production of standardised reasons.

TECHNOLOGY COULD HELP DECISIONMAKERS TO PROVIDE STANDARDISED REASONS THAT ARE ALSO GOOD REASONS

Given the relative ease with which reasons for decisions can be produced these days, it is worth wondering why the common law continues to set its face stubbornly against the recognition of a general right to reasons. The usual objections based on the potential of a reason-giving requirement to gum up the works of administrative

However, if the point of requiring reasons is, at least in part, to treat people with dignity and respect, the point is blunted by the provision of reasons that do not engage with the unique circumstances of individual cases. Taking the point seriously means courts would have to inquire into whether good reasons were provided. But if so, decision-

Nonetheless, technology could help decisionmakers to provide standardised reasons that are also good reasons. Drop-down menus and templates can usefully focus decision-makers’ minds on issues that regularly recur and generally prompt one of several responses.

With technology focusing their minds on what is relevant, decision-makers can then turn their surplus attention to providing good reasons that are responsive to the facts presented.

To the extent that technology makes this possible, the objections to recognising a general duty to give reasons in administrative law will start to ring hollow.

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EASTER 2017

2017 Legal Updates

Law of Equity

2017 LEGAL UPDATES

LAW OF EQUITY Public Policy in the Charity Spotlight

Dr Dominic de Cogan | University Lecturer, Fellow, Christ’s College In a characteristically helpful short note1, Turner outlines the Australian case of Aid/ Watch and suggests that English law might follow it in rejecting the political purpose doctrine in charity law. The argument is developed further by Garton in Landmark Cases in Equity, who (from p. 550) rejects the view that political lobbying should not benefit from charitable tax reliefs.

I am not entirely convinced. It has frequently been alleged that politicians have secured positions in charities with a view to furthering party-political agenda that have been unsuccessful in Parliament. These charges are often made against Labour, an example being the accusation of co-ordination between Oxfam and Ed Miliband (see Charity Commission decision of 19/12/2014).

However, the recent Charity Commission decision of Politics and Economics Research

22

Trust (‘PERT’) confirms that the Conservatives are also in the spotlight.

THIS POINTS TO A PROPHYLACTIC FUNCTION FOR THE POLITICAL PURPOSES DOCTRINE There is a powerful intuition that party politics, and certain other controversial campaigns, should not receive concealed state support in the form of tax reliefs. The political purpose rule expresses this belief. It also provides the Commission with a backstop for upholding the reputation of the charity sector and encouraging existing charities to behave

consistently with this end. As the rule permits political activity falling short of a purpose, this need not involve extreme measures. The Commission – euphemistically – ‘engaged’ with Oxfam and PERT, but did not strip either organisation of charitable status.

This points to a prophylactic function for the political purposes doctrine, akin to the rule against bias in public law. A donor should be able to give to major charities without worrying that she is funding, or attracting tax relief for, partisan politics with which she disagrees. It would be a mistake to disband one of her major protections without establishing an adequate alternative.

1

[2011] CLJ 504

EU Law

PER INCURIAM

2017 LEGAL UPDATES

EU LAW

ENHANCING THE ACCOUNTABILITY OF THE EU

INSTITUTIONS: SMALL STEPS THAT GO A LONG WAY Albertina Albors-Llorens University Reader in EU Law, Fellow and Director of Studies in Law, St John’s College We live in turbulent times for the European Union. The EU has been painted, at best, powerless and, at worst, ineffectual at dealing with the crises that have swept Europe in recent years and its institutions have become a lightning rod for mounting criticism on the basis of their perceived elitism and disengagement. The Court of Justice of the EU, in particular, has often been censured for pursuing a relentlessly integrationist agenda, which has involved a readiness to call Member States to account for potential breaches of EU law while adopting an intensely deferential approach towards the exercise of broad discretion by the Union political institutions in the adoption and application of EU legislation.

In the face of the momentous political and legal developments of the past few months, it is easy to lose track of significant steps taken away from the limelight. Two of these, taken by the Court in the context of the non-contractual liability of the EU institutions (Articles 268 and 340(2) TFEU), are interesting and particularly relevant.

First, In September 2016, the Grand Chamber of the Court of Justice ruled on the appeal against the decision of the General Court in Ledra Advertising.1 This case was decided against the background of the Eurozone crisis and concerned, inter alia, actions for damages brought by some Cypriot citizens and a Cypriot company against a measure agreed in 2013 between the Commission and the ECB on the one hand and the Cypriot Government on the other. The Court held that the actions of the Commission and the ECB were outside the scope of EU law in the sense that they concerned the European Stability Mechanism (ESM) alone, an intergovernmental mechanism created by an international agreement.

However, contrary to the view taken by the General Court at first instance – which had decided that it had no jurisdiction to consider actions for compensation against EU institutions in areas outside the scope of EU Law - the Court held that the EU Commission retained its role as a guardian of the Treaties

within the framework of the ESM and thus had a duty to ensure that measures in which it was involved were consistent with the principles of EU law. The Court therefore concluded that it had jurisdiction to examine the actions for damages brought against the Commission and the ECB. Second, in January 2017, the General Court delivered its ruling in Gascogne Sack Deutschland GmbH and Gascogne2 and ordered the EU to pay more than € 50,000 in damages to two companies on account of the harm that they suffered as a result of the failure of the General Court to adjudicate within a reasonable period of time in the initial proceedings brought against these companies. The judgment of the General Court follows the decisions of the Court of Justice in 20133, where the Court had considered, on appeal, the decision of the General Court4 upholding a Commission decision that had found these companies in breach of the EU competition rules (specifically, Article 101(1) TFEU) and had imposed hefty fines on both companies.

While the Court of Justice dismissed the appeal against the substantive aspects of the decision of the General Court, it nonetheless upheld the claim that, even taking into account the inherent complexity of competition law cases, the long period that had elapsed between the end of the written part of the proceedings and the opening of the oral phase (three years and ten months) could not be justified. The entire length of the proceedings before the General Court had amounted to five years and nine months.

The Court concluded that the General Court had breached Article 47(2) of the Charter of Fundamental Human Rights of the EU and that a claim for compensation for such a breach should be brought before the General Court itself. The General Court, in the first case of its kind and sitting in a different formation from the one that heard the initial proceedings, then decided in January 2017 that all the conditions to create non-

contractual liability were fulfilled and awarded damages to both companies both for material and non-material harm suffered.

In sum, these decisions seem to reflect a move towards strengthening the accountability of EU institutions. It may be that their results are not earth shattering. In Ledra Advertising, the conditions for liability were not found to be fulfilled and therefore the applicants did not receive any compensation. In the Gascogne cases, the damages awarded were relatively modest. However, these cases send two clear messages. First, that the EU political institutions, particularly the Commission in its role as the guardian of EU law, can attract non-contractual liability for potential breaches of EU law even when they act outside the scope of EU law. Second, that while cases like Kobler5 and Traghetti6 had already shown that national courts can be liable in damages for breaches of EU Law under the Francovich7 doctrine, the same measure will also be used for the Court of Justice of the EU. 1

Case C- 8/15P Ledra Advertising Ltd and Others v

European Commission and European Central Bank (ECB) (ECLI:EU:C:2016:70).

2

Case T-577/14 Gascogne Sack Deutschland GmbH and

Gascogne v European Union (ECLI:EU:T:2017:1) 3

Case C-40/12 P Gascogne Sack Deutschland GmbH v

European Commission (ECLI:EU:C:2013:768) and Case C-58/12P Groupe Gascogne SA v European Commission (ECLI:EU:C:2013:770).

4

Case T-72/06 Groupe Gascogne SA v European Commission

(ECLI:EU:T:2011:671).

5

Case C-224/01 Gerhard Köbler v Republik Österreich

(ECLI:EU:C:2003:513).

6

C-173/03 Traghetti del Mediterraneo SpA v Repubblica

italiana (ECLI:EU:C:2006:391).

7

C-6/90 - Francovich and Bonifaci v Italy

(ECLI:EU:C:1991:428).

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EASTER 2017

2017 Legal Updates

Family Law

2017 LEGAL UPDATES

FAMILY LAW

Civil Partnership Appeal Fails Dr Brian Sloan | College Lecturer, Director of Studies and Fellow in Law, Robinson College The Marriage (Same Sex Couples) Act 2013 opened up marriage to same-sex couples but retained substantively nearly-identical civil partnerships exclusively for such couples.

Opposite-sex couples seeking to avoid the patriarchal associations of marriage have little choice but to live together informally and legally precariously.

In Steinfeld and Keidan v Secretary of State for Education, one such couple argued that the bar on their entering a civil partnership (Civil Partnership Act 2004, s 3(1)(a)) was discriminatory under Article 14 of the European Convention on Human Rights, in conjunction with the right to respect for family life in Article 8. They failed at first instance1, and their appeal was dismissed by a majority in February 20172.

EXTENDING CIVIL PARTNERSHIPS WOULD NOT BE A COMPREHENSIVE SOLUTION TO THE LEGAL POSITION OF UNMARRIED COUPLES Beatson, Briggs and Arden LJJ found the issue to be within the ‘ambit’ of Article 8, meaning that Article 14 was engaged. They disagreed with the judge’s conclusion that the applicants needed to show adverse impact beyond the mere fact of exclusion to satisfy ‘ambit’. It was sufficient that, following recent ECtHR cases, a stable cohabiting relationship was within ‘family life’. Significantly, the Court of Appeal did not feel bound by the restrictive approach to ‘ambit’ in previous domestics cases, strongly influenced by the ECtHR’s onetime refusal to regard same-sex relationships as constituting ‘family life’.

Beatson and Briggs LJJ, however, held that the discrimination was justified. It was a legitimate, proportionately pursued, aim for the Secretary of State to await evidence on same-sex marriage’s impact on civil partnership before deciding whether to

24

extend, abolish or phase out civil partnerships, although interestingly they made it clear that the status quo could not be maintained for long. Arden LJ, dissenting, considered Government policy disproportionate because inter alia it was open-ended and focused on same-sex couples’ attitudes to civil partnerships (irrelevant to the applicants).

Even she, however, would have refused a declaration of incompatibility inter alia because there was a Civil Partnership Act 2004 (Amendment) Bill before Parliament.

Extending civil partnerships would not be a

comprehensive solution to the legal position of unmarried couples. While Steinfeld and Keidan are aware of that position and could theoretically remedy it, more injustice is arguably caused to cohabitants who erroneously believe that the formalisation is unnecessary because they are in a ‘common law marriage’.

1

2

[2016] EWHC 128 (Admin) [2017] EWCA Civ 81

Labour Law

PER INCURIAM

2017 LEGAL UPDATES

LABOUR LAW Are Uber Drivers ‘Workers’?

Professor Simon Deakin

Professor of Law, University of Cambridge; Director, Centre for Business Research One of the most pressing issues facing labour lawyers today is the rise of precarious and insecure forms of work associated with the ‘platform economy’. Labour law is an area of regulation which governs the employment relationship, and it works mostly by setting statutory protections in areas such as wages, working time and dismissal, for the benefit of employees. Many tests have been developed over decades, even centuries, for identifying the ‘employee’ as opposed to the ‘self employed’ person or ‘independent contractor’.

These tests, which include ‘control’, ‘integration’ and ‘business reality’, are familiar to first year lawyers from tort law, where they figure prominently in the law governing vicarious liability. A further test, ‘mutuality of obligation’, is of little significance in tort law, but has been hugely influential in labour law since the 1980s. When, as a result of this test, workers employed on a casual or intermittent basis (including ‘zero hours contract workers’) found that their status as employees was in

doubt, Parliament responded by extending the definition of ‘workers’ protected by minimum wage and working time laws to include some of the self employed. This arrangement is now challenged by the growing use of platforms such as Uber. Uber maintains that it is a technology company which makes its software available to drivers for their own use in dealing with their customers. The drivers are in business on their own account and not working for Uber.

b) of the Employment Rights Act 1996), which would entitle them to the minimum wage. In October 2016 the Central London employment tribunal decided in Aslam v.

Uber in favour of a group of Uber drivers making this argument, but this case is being appealed and may well go all the way to the Supreme Court in 2017. How it is resolved will affect the position of millions of workers in an economy increasingly reshaped by technological change.

THE CENTRAL LONDON EMPLOYMENT TRIBUNAL DECIDED IN ASLAM V. UBER IN FAVOUR OF A GROUP OF UBER DRIVERS Another way of looking at it is that Uber is running a taxi business and that the drivers are, if not necessarily employees, then ‘limb (b) workers’ (a reference to section 230(3)

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Intellectual Property

PER INCURIAM

2017 LEGAL UPDATES

INTELLECTUAL PROPERTY Hyperlinks and Copyright Infringement Dr Christina Angelopoulos Lecturer in Intellectual Property, Centre for Intellectual Property and Information Law (CIPIL) Does the posting of a hyperlink to somebody else’s content infringe their copyright? The answer to this question depends on the interpretation of the notion of ‘communication to the public’. This is established as an exclusive right of copyright-holders by Article 3(1) of the Information Society Directive1.

According to the case law of the CJEU, the right requires two elements: an act of communication and a ‘new public’.

160/15) in September 2016. In that case, the Court noted that, as a general rule, people who post links do not know and cannot reasonably know whether or not a work has been published on the internet with the consent of the copyright holder. As a result, they cannot be said to have engaged in an act of communication, as this requires that they have ‘intervened in full knowledge of the consequences of their conduct’.

The CJEU was first asked to consider whether hyperlinking can constitute a communication to the public in 2014 in Svensson (Case C-466/12). There, it declared that the provision of a link is an act of communication, as it affords users direct access to works. The second element of a ‘new public’ was however found missing in that case. Pertinently, the linking in Svensson had been to content that had been made freely available online with the permission of the right-holder. The Court concluded that all internet users will therefore have lawful access to the work, so that the hyperlinker’s communication cannot be understood to be to a ‘new public’.

In a significant twist however, the Court declared that, where the linker knows or ought to know that the hyperlink provides access to a work placed online illegally, e.g. because she received a notification to that effect, she is performing a communication to the public. Moreover, when the posting

of hyperlinks is done for profit, a rebuttable presumption of knowledge exists. As a result, unless shown otherwise, it is assumed that profit-motivated hyperlinks to infringing content are infringing themselves.

The innovative dependence of communication to the public on the subjective element of the defendant’s knowledge has raised eyebrows, copyright traditionally being understood to be a strict liability tort. The effects of the ruling could be felt particularly heavily by online publishers, as it essentially transforms them into the perpetrators of any infringement to which they link.

1

O.J. [2001] L 167/10

IT IS ASSUMED THAT PROFIT-MOTIVATED HYPERLINKS TO INFRINGING CONTENT ARE INFRINGING THEMSELVES That decision left open the question of whether hyperlinks that lead to content placed online without the consent of the right-holder are infringing. This issue was considered by the Court in GS Media (C-

27

EASTER 2017

LL.M

Comparative Commercial Law

LL.M

COMPARATIVE COMMERCIAL LAW Alternative Dispute Resolution for Traders and Consumers

An Empirical Study Commissioned by the German Government Dr Felix Steffek | University Lecturer in Comparative Commercial Law, Newnham College On 1 March 2017, Dr Naomi Creutzfeldt (Westminster and Oxford) and Dr Felix Steffek (Cambridge) started a research project on alternative dispute resolution.

For the next four years, they will collect and analyse data on conciliation procedures used to solve conflicts between traders and consumers. The German Ministry of Justice has commissioned the study and their research report will be presented to the German Parliament in 2021.

Alternative dispute resolution is increasingly used to solve disputes without going to court. The reasons are not only the usual suspects, money and time. Mediation, conciliation, ombud and arbitration procedures are often cheaper and faster than the procedure leading to a day in court. In addition, however, alternative procedures may offer a chance to preserve relationships and develop innovative solutions.

Improving access to justice for disputes between traders and consumers has been a

28

priority for both national and EU legislators.

The Directive on Consumer ADR (2013/11) has established common principles of quality, for example as regards access, expertise, neutrality, transparency, effectiveness, fairness, liberty and legality of alternative dispute resolution. The ODR Regulation (524/2013) cultivates online dispute resolution in the European Union and has established a common entry point for online dispute resolution: the ODR platform.

IF THE TRADER & THE CONSUMER DO NOT FIND A COMMON GROUND TO AGREE ON A WAY FORWARD, THE CONCILIATORS OF THE DISPUTE RESOLUTION CENTRE PROPOSE A SOLUTION

In Germany, the General Consumer Dispute Resolution Centre (Allgemeine Verbraucherschlichtungsstelle) based in Kehl offers conciliation services for consumers and traders. Such disputes may, for example, arise out of a piece of furniture bought or a holiday package booked online. If the trader and the consumer do not find a common ground to agree on a way forward, the conciliators of the Dispute Resolution Centre propose a solution.

The research project lead by Naomi Creutzfeldt and Felix Steffek will collect and evaluate empirical data on these conciliations. The aim is to answer the following questions: who uses these procedures? What kind of disputes are conciliated? What is the success rate?

How high are the costs? Do those involved consider the procedure to be just?

Corporate Finance

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LL.M

CORPORATE FINANCE Shareholders v RBS: A Milestone Moment for Corporate Finance Law? Dr Elizabeth Howell | Slaughter and May Lecturer in Corporate Law, Fellow of Magdalene College This spring could witness the start of landmark litigation with respect to corporate finance law. The legal action in question concerns the beleaguered, bailed-out bank, Royal Bank of Scotland (‘RBS’), and a number of its former directors (not least its disgraced former Chief Executive Officer, ‘Fred the Shred’ Goodwin).

IF THERE IS MISLEADING INFORMATION IN THE PROSPECTUS, OR WHERE INFORMATION IS OMITTED, THEN THERE ARE A NUMBER OF OPTIONS INVESTORS CAN USE TO TRY & OBTAIN COMPENSATION

WHAT IS A PROSPECTUS? In a nutshell, when a company offers its shares to the public via a main stock exchange, it is generally required to publish a document (a prospectus) that provides information about the company and its shares to enable investors to decide whether or not to purchase shares. If there is misleading information in the prospectus, or where information is omitted, then there are a number of options investors can use to try and obtain compensation. There may be remedies via the general law (e.g. in contract and tort) but the most straightforward method is to use a statutory provision under the Financial Services and Markets Act 2000, section 90.

WHY IS SECTION 90 SO ATTRACTIVE?

I n particular, the elements an investor must prove to succeed are softer than those under the general law. Nonetheless, historically, there has been an absence of such civil claims, making the RBS action all the more notable.

Indeed, although some investors recently settled their claim, two sets of investors (that include thousands of retail investors) wish to have their day in court. Although this case could run for several years, it has the potential to be pivotal in relation to the role that civil claims could play in regulating capital markets activity.

In general terms, a group of investors are pursuing a collective civil claim against RBS alleging that it misled them into buying shares in a £12 billion fundraising during the 2008 financial crisis, months before the bank nearly collapsed and required a taxpayer bailout.

The claim concerns allegedly misleading statements and omissions about the state of the bank’s financial health in RBS’s prospectus.

29

EASTER 2017

Tripos Essays

Family Law

FAMILY LAW 2016, Question 8 Fiona Lin | Queens’ College It might be possible for Lucas (l) to contend that he and Sara (S) are not married at all, due to the non-observance of the necessary formalities for marriage as per the Marriage Act 1944 and the Matrimonial Causes Act 1973 (MCA). There are two options for what the ceremony by the “priest of their sect” – lacking the necessary public exchange of vows and crucially registration – would constitute: either a non-marriage or merely a void marriage.

It might seem like a purely religious service in a non-official location such as a “hotel” would lend to a non-marriage. For instance, the Muslim ceremony in A-M in a flat was treated as a non-marriage, as was the Hindu ceremony in Gandhi v Patel in a restaurant.

Nonetheless, it is likely here that the ceremony by a “priest” in the “Christian sect” would be seen as close enough in having the “hallmarks” of a typical Christian wedding to be a void marriage rather than a nonmarriage. This is seen, for instance, in Geries v Yagroub – involving a non-formal Greek Orthodox ceremony – being treated as a void marriage rather than a non-marriage at all.

As Le Grice notes, the law on non-marriages, versus void marriages still seems to have

30

a traditional Christian-centric perspective due to England’s history. Nonetheless, it is still the law in place. In the absence of contrary evidence of intention suggesting that L, S and the priest have “no intention” of the ceremony leading not to a marriage (Hudson v Leigh), it would seem that the “marriage” is not a non-marriage, but is void.

Hence, L could obtain a decree of nullity to confirm that the marriage is a void “nullity”: MCA s. 11(a)(ii). Strictly speaking it is not necessary as the marriage never existed, but it does help confirm the position – especially if S is adamant she wants to remain “married” – and moreover, the decree of nullity gives both L and S access to the powerful financial adjustment jurisdiction of the court under MCA s. 23.

VOIDABLE MARRIAGE If L’s claim that the marriage is void failed – for instance, if it turned out that the ceremony and “marriage” had indeed been properly, formally registered, he could still claim that the marriage is voidable. He would be able to obtain a decree of nullity under s.

12 of the MCA. There are three potential

grounds of voidability that L could place: (1) non-consummation due to “incapacity”, (2) a “wilful refusal” to consummate by S, and (3) lack of consent on his part.

Onto ground (1) for voidability – that of non-consummation due to incapacity by MCA s. 12(1)(a). As Gilmore and Glennon note, the case law here is rather confused and complex in attempting to define when consummation has occurred – nonetheless, D-M v A-G suggests that consummation is achieved upon “ordinary and complete intercourse”. Ejaculation is not necessary – indeed, nor is evidence of it in pregnancy necessarily sufficient to prove consummation (Clarke) and nor is any satisfaction (SY).

Nonetheless, as suggested in some case law such as S v S, although an artificial vagina may be insufficient for ordinary intercourse, it is typically seen that an “erection” being maintained for some period of time is at least necessary for consummation. Although the case law too on what constitutes “incapacity” is unclear – with D suggesting that wilful refusal to undertake surgery might not be sufficient for “incapacity” if the surgery is simple – it seems probable that the courts would consider a lack of

Family Law

sexual attraction to women as sufficient to determine “incapacity”. Hence, L is likely to be able to get a decree of nullity due to s. 12(1)(a), although this is highly factsensitive and does depend on context.

Ground (2) for voidability is that of S’s “wilful refusal” to consummate the marriage (s. 12(1) (b)), given their “next night” where S was too “humiliated” to try to have sex with C again.

S’s humiliation could constitute “refusal”, depending on the context. However, Potter suggests that “anxiety” or “fear” would not necessarily constitute wilful refusal – so the similar emotion here of “humiliation” on S’s part due to their disastrous first night together seems justifiable and not like “wilful refusal”. Ford suggests that even if a couple is given time together, it is not necessarily the case that they would be expected to take the opportunity to consummate the marriage, even if it were available. Hence, the marriage is not voidable on the ground in s. 12(1)(b).

IT IS POSSIBLE THAT THE COUPLE CAN CONTINUE BEING UNDER THE SAME ROOF BUT NO LONGER BE IN ONE HOUSEHOLD Ground (3) is that the marriage is voidable due to the lack of valid consent to it given

by L: s. 12(1)(c). This would be on the basis of duress, which Bradney and Lim highlight is often a highly context-sensitive line of case law due to the court’s wishes to respect the differing cultural and religious practices present in England. There are two approaches to determining if duress has operated so as to vitiate L’s consent – an (A) objective approach as in Buckland and (B) a subjective approach as in Scott v Sebright.

present in Hirani and R v R, and here L’s fear of being exposed, due to S’s threat, would seem insufficient. Therefore, in addition to the ground of voidability in s. 12(1)(a), L might be able to claim that the marriage is voidable on the basis of s. 12(1)(c).

DIVORCE L would also be able to claim the necessary fact situation coupled with the one ground of divorce – “irretrievable breakdown” (Buffrey), as a petitioner. Adultery is not relevant here – especially as it appears that S has slept with “Steve”, although S may be lying.

Instead, L would be able to claim that divorce should be granted (1) on the basis of s. 1(2)(b), that of “behaviour” from s that he cannot be “reasonably” expected to live with. The definition of the behaviour necessary is rather broad, including DIY (O’Neill), tickling (Lines) and even involuntary illness (Katz) – so staying out late, being messy, and spending time with Steve would seem insufficient. The second limb is also fulfilled as in “all the circumstances” it could seem unfair (Livingstone-Stallard, Thurlow) that L is subjected to this constant, wearying behaviour, when it was S who tried to pressure him into marriage in the first place. So, he could obtain a divorce even without S’s consent on the basis of s. 1(2)(b) being fulfilled.

He would potentially also be able to claim (2) desertion on the basis of two years of separation that constituted “desertion” by S’s part. As to the physical separation point, it is possible that the couple can continue being

PER INCURIAM

under the same roof but no longer be in one household: Hopes. This depends on whether there is an “intention to desert” (Santos).

Here, however, it seems that this notion of “animus deserendi” has not been fulfilled given that S and C still cohabit “together” and they both wish to keep the appearance of living together for the “sake of their families” – it does not appear that S, who wishes to remain married, has the intent to desert.

There could be also be a divorce on the fact situation of five years of separation (Mouncer, Fuller, Hollens: s. 1(2)(e)), although this would require L to wait in contrast to using s. 1(2)(b). As they have been “married” (in the improbable alternative that the wedding is not void) for over a year: MCA s. 3, then there is no bar to divorce. s. 13 as an “estoppel” bar to divorce is also unlikely to apply as it is rare for it to be seen as “unjust” to grant a divorce, as Mathias notes.

Hence, if L were unsuccessful in showing that the marriage were void for lack of formality, voidable for lack of consummation or consent, he would still be able to divorce without her consent by s. 1(2)(b).

(II) THE CIVIL CEREMONY If a civil ceremony were conducted, then presumably the marriage would not be a void marriage on the basis of breach of formality: s. 11(a)(iii). Nonetheless, the previously mentioned grounds would either allow him to contend that the marriage is voidable (s. 12(1)(a) or s. 12(1)(c)) or that, in the alternative, a divorce should be granted due to an “irretrievable breakdown” and the fact situations of s. 1(2)(b) being fulfilled.

On the objective approach, that of needing (i) L to entertain a fear (ii) for that fear to be reasonably entertained and (iii) for the petitioner not be responsible, it would seem that no “duress” has operated on L. As Singh v Singh and Sigh v Kaur highlight, often the threat of shaming in a community that one’s family belongs to is not sufficient for a fear to be reasonably entertained. This is especially the case for a twenty-five year old man who can and should be reasonably expected to support his own living. However, as Harris-Short and Miles note, a “subjective” approach to duress is increasingly common, merely requiring that there is pressure leading to “mental incompetence”, “improperly brought” to bear. This is the approach

31

EASTER 2017

Tripos Essays

Civil Law

CIVIL LAW

Comment on Justinian’s categories of quasi-contractual and quasi-delictual obligations

Giuseppe Jafari | Corpus Christi College Justinian classified obligations into four categories: obligations from contract; obligations from delict; obligations from quasi-contract and obligations from quasi-delict. In this regard, Justinian went further than Gaius who merely divided obligations into those arising ex contractu and those arising ex delicto – his final category was “other”. We shall examine the quasi-contracts first, asking ourselves whether there is a thread running through the four which Justinian chose before doing the same with quasi-delicts.

The contractual obligations are those which were triggered when one of the ten recognised (or nominate) contracts had been entered into: these were sub-divided into contracts whereby the in personam rights and obligations were triggered verbis (by the use of the correct word); re (by the delivery of a res); litteris (by writing) and consensu (by the agreement between the parties). In other words, the nominate contracts were explained according to the causa (the reason) for the obligation. This is essential to understanding Justinian’s quasi-contractual category of obligations.

This is because the obligations which Justinian chose to include under his heading of quasi-contracts looked like obligations arising as if from contract. Let me explain.

32

The key to understanding quasi-contracts is that the Romans did not have such a thing as quasi-contracts. Justinian talks of obligations as if from contract; so it is the obligation which is triggered that looks like an obligation arising as if from contract.

In other words, the Latin talks of obligationes quasi ex contractu (obligations as if from contract) not obligationes ex quasi contractu (obligations from quasi contract). Take condictio indebiti (which is the one obligation arising as if from contract that can, pace Paul du Plessis, be described as an unjust enrichment claim). I pay you 10 sesterces believing that I owe you a debt. There has been no agreement between me and you and so nothing which looks like a contract (i.e. an agreement between two parties who intend to create obligations). In my case, I am attempting to discharge a contractual obligation – not create one. So there is nothing that looks like a contract. It is the obligation that is triggered on your part to pay me 10 sesterces transferred sine causa which looks like an obligation arising as if from contract. In other words, the moment in which you are unjustifiably enriched (i.e. sine causa) by my giving you 10 sesterces an obligation is triggered that you pay me back 10 sesterces. The obligation, therefore, is one arising very much as if from contract – in this case the contract of mutuum. Your obligation

to repay me money in a contract of mutuum arises where I hand over money to you – that is when the obligation is triggered. So condictio indebiti does not look like a contract (no agreement and no intention to create a contractual obligation); it is the obligation which is triggered on your part which looks like an obligation arising as if from contract.

The same conceptual point applies for the other so-called quasi-contracts.

Take negotiorum gestio: no agreement between two parties and so nothing which looks like a contract.

However, your obligation to the gestor (assuming the gestor has acted reasonably) arises when the gestor begins to take care of your affairs; so the obligation arises as if very much from mandate.

In the final two cases – co-ownership and the tutor-ward case – there are no agreements which look like contractual agreements.

Rather, they give rise to obligations as if from contract: obligationes quasi ex contractu.

QUASI-DELICTS It is important to explain why Justinian chose four particular cases as falling under his quasidelictual heading. There are numerous other delicts in the Digest but Justinian chose four in particular. Three possible explanations may

Civil Law

be given: (i) the four quasi-delicts involve strict liability; (ii) the four quasi-delicts involve an assumption of responsibility on the part of the defendant either for the actions of the tortfeasor or for the safety of the claimant; (iii) like with the obligations arising as if from contract, the quasi-delicts are in fact cases of obligations which arise as if from delict.

STRICT LIABILITY? Can we explain the four quasi-delicts on the grounds of strict liability? – i.e. D is found liable in the absence of fault. In the case of the judge making a case their own (iudex litem suam facit), there is some uncertainty in the texts of Ulpian and Gaius. Possibly, mere inadvertence was enough to be found liable (i.e. unintentionally straying from the terms of the formula). However, inadvertence is arguably a fault element and so cannot be described as strict liability. The texts also suggest that the judge might be liable where he is unable to explain why the formula has been departed from (i.e. res ipsa loquitur applies). This suggests an idea of implicit fault and so strict liability seems irrelevant.

In the cases of things thrown or poured and things hanging/suspended strict liability might be read as underlying these quasi-delicts; however, the texts suggest that an occupier is implicitly at fault in allowing things to

be thrown or poured into the street below or in allowing dangerous things to be left hanging. Finally, in the case of liability for innkeepers and ship owners, strict liability seems a convincing explanation for this quasi-delict where the employer was not at personal fault for the actions of their employees. However, Justinian talks of the possibility of culpa in eligendo – i.e. the fault in choosing unsuitable employees.

Strict liability, then, does not adequately explain these quasi-delicts.

IT MIGHT BE ARGUED THAT AT LEAST SOME OF THESE QUASIDELICTS DO NOT LOOK LIKE NORMAL DELICTUAL CASES ASSUMPTION OF RESPONSIBILITY? In the case of the judge who makes a case their own, it is argued that the civic duty in acting as a judge gave rise to an assumption of responsibility for the litigants.

However, there is no possible assumption of responsibility for the acts of others.

In the two quasi-delicts of things thrown/ poured and things hanging or suspended,

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arguably D assumes responsibility for the people below and for the acts of the wrongdoer e.g. a slave. Assumption of responsibility is an excellent explanation for the liability of ship owners and innkeepers: they assume responsibility to the claimant for the well being of their property and assume responsibility for the activities of the tortfeasor (i.e. it is a case of vicarious liability).

Assumption of responsibility, then, is a better explanation for why Justinian chose the four quasi-delicts than strict liability.

OBLIGATIONES QUASI EX DELICTO? It might be argued that at least some of these quasi-delicts do not look like normal delictual cases, rather it is the obligation that is placed on the defendant which arises as if from delict.

Take the case of the judge. Say the iudex fails to adjourn the case: either the claimant or the defendant can bring the action and the assessment of damages was not calculated according to someone’s loss. Also, we might say that no actionable form of harm has occurred where the judge simply fails to turn up to hear a case. Usually, an actionable form of damage (usually property loss) is essential for an action in delict.

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EASTER 2017

Tripos Essays

Company Law

COMPANY LAW The free availability of limited liability and separate legal personality to entrepreneurs in the UK is little short of a rogues’ charter. The

Companies Act 2006 and the common law do too little to protect third parties from abuse of the limited liability company.

Discuss.

Katherine Archer | St John’s College It is undoubtedly true that the current climate in English company law values highly entrepreneurial activity and growth and believes that this is best fostered by easy access to limited liability and separate legal personality. This approach can be seen most starkly in the strict application of limited liability and separate legal personality in cases such as Salomon v. Salomon and Lee’s Air Farming. It will here be argued that, although there are clear advantages to these doctrines, they in fact facilitate an occasionally unwarranted shift of risk to those who may not be best equipped to bear it. They also enable ‘rogues’ to enter into risky ventures at very little personal expense or risk Furthermore, statute and common law is not keen to protect third parties from such abuse, at least not through company law. Indeed, courts are slow to ‘lift the corporate veil’ in such situations and are much more keen to do so in cases of entity shielding where they clearly view abuse of separate legal personality as more grave.

First it must be seen whether free availability of limited liability and separate legal personality is really ‘little short of a rogue’s charter’. In contradiction to this statement there are clear benefits that the principles bring. They allow passive investment and diversification of investment, as individuals may become the shareholders in companies without risking their own personal assets.

This encourages business activity by making acquisition of capital easier. Further, of particular note for smaller companies, it allows entrepreneurs to embark on projects without risking their own assets. If entrepreneurial growth is a desired goal, as it appears to be in society currently, this is clearly beneficial.

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However, it is conceivable to view the free availability of such protection as little short of a rogue’s charter. Freedman has argued that it may make businesses less likely to succeed as entrepreneurs are encouraged to take un-wise risks which they would not if their personal wealth was at risk. Further, as noted by Pound, free use of limited liability creates asymmetry in risks and benefits for entrepreneurs: their downside risk is capped whereas their upside gain is potentially unlimited. Such asymmetry does not exist for creditors.

Indeed, Pound has argued that limited liability merely shifts the risk from entrepreneurs to creditors. Whilst large institutional creditors may be able to bear such a risk by, for example adjusting their interest rates, smaller creditors may be ill-equipped to deal with such risk. This is all the more true of involuntary creditors who are obviously unable to deal a priori with the risk that it transferred to them. It is here that arguably the greatest protection from limited liability is required and it has led to Hansmaan and Krackman’s unfortunately unimplemented suggestion of imposing a compulsory insurance in order to protect involuntary creditors such as tort victims.

However, as the title statement suggests, the courts and the Companies Act 2006 prove unable or unwilling to protect such third parties from abuse of the limited liability company. The key way in which courts may afford such protection ex post any abuse, is through the doctrine of piercing the corporate veil. However, such a doctrine has been limited by Lord Sumption in Prest v. Petrodel.

Following this case, the doctrine only applies if there is an existing legal obligation on the defendant, the defendant then interposes

a company and such interposition is done with the aim of avoiding liability under the existing obligation (evasion). All other cases, of which Gencor and Trustor were given as examples, fall into the legally banal category of ‘concealment’ where the veil is not pierced but merely ‘looked around’ ([35] Prest).

While the outcome is the same in such ‘concealment’ cases, Lord Sumption appeared concerned with the clarity of the procedure by which such outcomes are reached. However, no greater clarity is gained by offloading a company law problem to different areas of the law – in Prest the solution was found through use of trust law.

It is also key that the case of Prest did not in fact involve limited liability but entity shielding, where the courts have proved more willing to interfere in the case of abuse and pierce the veil. In those cases the concern is one of debtor opportunism where entrepreneurs may seek to transfer their assets to the company in order to shield them from claims of their personal creditors.

Thus, the doctrine of piercing the veil has been unduly limited and is unlikely to apply in cases of abuse of limited liability to protect third anyhow. Although there may be attempts to afford such protection through other areas of law, exemplified by Arden LJ’s reasoning in Chandler v. Cape it is here submitted that company law should be the one to deal with the problems it has created through free availability of separate legal personality and limited liability.

Tort Law

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TORT LAW 2016, Question 4 Edward Low | St John’s College REY’S BATTERY OF LINDA As Rey throws his pear recklessly into the garden (intention to hit someone per se is required) (Collins v Wilcock) (Wainright v Home Office), and his pear does in fact strike Linda (indirect touching still counts), this constitutes an unlawful infringement of her bodily integrity if he had perceived that she was there and tried to hit her. If Linda had perceived the pear coming, Rey might be guilty of assault as well, but the facts as uncertain.

LINDA’S ASSAULT OF REY There are two instances whereby an assault might have taken place. The first is when Linda runs out of the garden holding a knife. If she brandishes it or waves it about (the facts are unclear) this is more likely to constitute assault since it is more likely an apprehension of force might have been perceived. This depends on the facts. The second is when she makes her statement, the facts being analogous to the case where it was held not to be assault when a man put his hand on his sheathed sword and said ‘were it not assize time’ he would kill the plaintiff. However once again, his sword was sheathed while Linda waved the knife while shouting. This is likely assault.

GREENBERG’S TORT AGAINST HENRY FOR NEGLIGENCE IN DRIVING There is a prima facie duty of care (Nettleship v Weston) and clear breach of careless driving (Ibid), and obvious causation (Barnett v Chelsea). Henry should be liable for his medical fees, and non-pecuniary damages for back pain.

sight or sound. It was held in Alcock that a television broadcast whereby specific love ones were identified could suffice. It is unstated how direct the angle of view for the CCTV was but as long as she knew it was Greenberg it should suffice. Finally, it must have been graphic enough such that a person of reasonable fortitude would have suffered a nervous breakdown. It is however, problematic that the facts stop as ‘nervous breakdown’ because it is unclear if an actual psychiatric illness that is both medically and legally recognised develops. If nothing more than a nervous breakdown results, her suit is unlikely to succeed. There are no issues with breach (as covered) and the foreseeability of secondaries watching the accident is obvious

GREENBERG AND AGAINST VARSITY SCHOOL AND ATP LTD FOR DUAL VICARIOUS LIABILITY As it is likely that Henry will be insolvent, Greenberg and Ingrid might consider vicarious liability. Henry works for ATP Ltd, so employment ties are satisfied. But was his relationship so close as to akin to employment such that it would have been fair, just, and reasonable to hold Varsity school liable as well (JGE)? The fact pattern is fairly scarce, but it would be determined by two things. First, how much control was Varsity School able to assert over Henry’s work, such as a list of instructions, disciplinary action, and possibly direct management. Secondly, what was his degree of integration into Varsity School? It is unlikely that they shared a common purpose (Catholic Child Welfare), though it does depend on how broadly the scope of purpose

is defined, such as ‘duty to take care of school children in their current care’ etc. Finally, it is clear that his tort of careless driving was committed in the course of employment, for it was an unauthorised means of carrying out an authorised task (Salmond Test) (Rose v Plenty). Whether or not there will be dual vicarious liability depends primarily on the level of control Varsity could have asserted on Henry (Viasystems) but the facts are unclear.

GREENBERG’S TORT AGAINST JASMINE FOR NEGLIGENCE The facts of this case are very similar to Chester v Afshar which primarily concerns problems in but-for causation. Before discussing that though, it is clear that Jasmine owed a duty of care to inform Greenberg about the risks (Bolam), and breached it.

It is highly likely that Greenberg would have wanted to have the surgery anyway as the risks were so low, even if he were informed of them. Hence, the issue is that even if the breach had not occurred, the chance of the material risk materializing was exactly the same. The issue was never completely resolved in Chester v Afshar, although it was mentioned in obiter that in order for consistency and coherence in teh law, the damages should be flagged out explicitly as damages for violating the patient’s consent by not allowing him the liberty to make an informed decision. Therefore, Jasmine ought to be liable for any loss in amenities of life due to being unable to walk, as well as auxiliary costs such as a wheelchair, and pecuniary costs of potential loss of employment.

INGRID’S TORT AGAINST HENRY FOR NEGLIGENCE Ingrid, having suffered no personal injuries and not being at the scene of the accident witnessing a threat to herself firsthand (Dulieu v White), is a secondary victim. Hence, in line with the Alcock test, Ingrid has to adduce evidence to provde that she was in a sufficiently close and loving relationship with Mr Greenberg, as they are not married nor do they have a parental relationship.

Secondly, she would ahve to perceive the accident as it happened (she did) and through

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EASTER 2017

Tripos Essays

Contract Law

CONTRACT LAW

‘[Frustration] is really a device by which the rules as to absolute contracts are reconciled with a special exception which justice demands.’ (LORD SUMNER) Discuss.

Alicia Loh | Peterhouse The doctrine of frustration allows for contracts discharged on the ground of frustration to be brought to an end automatically by the operation of the rule of law, regardless of the parties’ desires (Hirji Mulji [1926]). There are some similarities with mistake, with the main difference in whether something is a mistake or frustration lying in timing (Treitel, 2011); hence the differing conclusions in Griffith v Brymer (1903) and Krell v Henry (1903), which concerned similar fact patterns. This essay shall explore whether the basis of frustration, as a special exception to absolute contracts, is truly justice, as Lord Sumner asserted in Hirji Mulji, examining the doctrine’s development, when a contract may be frustrated, the limits of the doctrine, and other possible bases.

DEVELOPMENT Force majeure clauses were originally introduced into English law in response to the general narrowness of the doctrine of frustration (McKendrick, 1995). They generally provide that the parties will be released from their obligations, or excused from liability, by reason of freak and excusable events.

The common law has developed a robust doctrine of frustration since Paradine v Jane (1646), which established that where

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‘the party is disabled to perform [his duty or charge] without any default in him [...] there the law will excuse him’. The general doctrine was first recognised by Blackburn J Taylor v Caldwell (1863) (discussed below).

The test for frustration was established by Lord Radcliffe in Davis Contractors [1956] as being whether the change in circumstances would render performance ‘radically different from that which was undertaken by the contract’.

IMPOSSIBILITY Frustration occurs when performance of the contract is made completely impossible.

This includes where the subject-matter is destroyed and unavailable to carry out the obligation: Taylor v Caldwell, where a music hall was destroyed; Arthur v Capel [1919], where the charterparty was frustrated when the ship was requisitioned; and possibly when the subject-matter is temporarily unavailable (Jackson v Union Marine Insurance (1874).

In the last case, the court must consider the ratio of likely interruption in performance to duration where the contract is of fixed duration and the unavailability of the subjectmatter is only temporary, whereby the higher the ratio, the more likely it is that the contract

will be frustrated (The Nema [1982]). It is thus evident that the doctrine thereby assures that a party’s arm is not twisted when his performance is rendered impossible.

That said, the courts exercise much caution, demonstrating their concern with justice.

As Judge Learned Hand in Blake (1929) (a US case) highlighted, a promise still involves a risk that the promisor may find ‘burdensome or even impossible to meet’, and the ‘very purpose [of the promise/ contract] is to give assurance to the promise against hazards of the future’. This is supported in English jurisdiction in The Mary Nour [2008], which emphasised that a claim based on frustration is unlikely to succeed where performance is still possible, but merely difficult/disadvantageous to perform; Davis Contractors stresses that difficulty and ‘impracticability’ is not frustration. Thus, we see that courts do not concur with Beatson’s 1996 argument for a ‘safety valve’ in extreme cases. Frustration is a doctrine that strives to ensure justice for both parties, not simply the unfortunate party who will lose his profit or even incur a loss due to a workers’ strike, for example.

Contract Law

FRUSTRATION OF PURPOSE? It is in frustration of purpose that we see more the more intricate workings of the doctrine. This is rare in practice (Mustill LJ in Shepherd v Jerrom [1987]) as the courts do not wish for the doctrine to provide an escape route (Lord Roskill in The Nema), but is possible. The leading case for this is Krell v Henry, where a flat was hired to watch Edward VII’s coronation procession, which was then postponed due to his illness. The CA held that the contract had been frustrated. However, Krell should not be taken as flinging open the doors. It was distinguished in Herne Bay v Hutton [1903] (and later in Amalgamated Investment [1976]). Hutton concerned a trip to see the naval fleet race, and Krell was distinguished as the coronation was the very foundation of the contract whereas the race in Hutton was not the foundation. Thus, there is no frustration where only part of the anticipated satisfaction is removed, and frustration of purpose is a ‘special exception’ which will only be found in rare circumstances where indeed the whole purpose has been frustrated; the concern with securing justice for both parties is hence emphasised.

SUPERVENING ILLEGALITY The doctrine of frustration clearly has a narrow scope. However, a clear case where ‘justice demands’ frustration to operate is supervening illegality (now ‘customary’ according to Chitty), a branch of the doctrine of illegality of contract. This is where a contract, legal when entered into (illegal contracts will not be enforced, per Pearce v Brooks (1866)), is rendered illegal by a change in law or national circumstances (eg. war). Its operation is demonstrated by Fibrosa [1943], where war rendered it illegal to trade with the enemy, and the contract was frustrated due to supervening illegality.

As highlighted in Bermuda [2010], the chief consideration is public policy, especially in ensuring that the law is observed; the doctrine, then, is not concerned simply with ensuring ‘justice’ for the parties involved and merely with the distribution of loss, but ‘is also concerned with the public interest that the law is observed’ (Beatson J).

Supervening illegality therefore bolsters Lord Sumner’s regard of frustration as a ‘special exception which justice demands’.

LIMITS OF FRUSTRATION This notion is underscored by the doctrine’s limits. The most obvious is that the contract is not frustrated where there is an express provision for the occurrence of the event (Joseph Constantine [1942]), the exception being that overriding public policy considerations deny effect to continued performance in wartimes (Ertel Bieber [1918]).

The courts have narrowly interpreted this (HL in Metropolitan Water Board [1918]), and insist that the provision for the full event must be ‘full and complete’. Frustration also cannot be claimed where the event is within the contemplation at the time that the contract was concluded (Walton Harvey [1931]). Lord Denning’s opposition to this in The Eugenia [1964] must be noted, however, and this rule is uncertain, as dicta suggests both that the general rule requires reconsideration, and that contrary outcomes can be reconciled as the events are insufficiently foreseeable to satisfy the stringent test. The current position seems to be that the event will be foreseeable, thus preventing frustration, only where it is one which ‘any person of ordinary intelligence would regard as likely to occur’.

The second negative factor is ‘self-induced frustration’, which supports the purpose of frustration being a device to ensure justice. If this occurs, a party cannot invoke frustration (Ocean Trawlers [1935], despite an unclear ratio), and will prima facie be found in breach of contract. This was illustrated in Super Servant Two [1990], where Hobhouse J held that an event was not supervening if caused by a negligent act, or if the party claiming frustration opted to take a route which would lead to ‘frustration’ where an alternative would have allowed for performance of the contract.

The limits of frustration thereby ensure that it remains a ‘special exception’ that can only be invoked when ‘justice demands’.

OTHER THEORETICAL BASES Lord Sumner’s assertion in Hirji Mulji [1926] is hence justified .

However, this is not the only theory as to the juristic basis of frustration. Lord Wilberforce in Panalpina [1981] considered it as one of ‘various theories’, including the theory whereby it is an ‘implied term, as a matter of construction of the contract’, relied upon by Blackburn J in Taylor v Caldwell. Articulated

by Lord Loreburn in Tamplin [1916], it views that the court can, and should, examine the contract and its context, and hold that if the parties entered into the bargain on the basis that a particular state of affairs would continue to exist (ie. the court can imply such a term), then the contract would be frustrated and end. This supposedly interprets the contract to give effect to the parties’ subjective real intention at the time of contracting. However, this view is disputed.

It is artificial to impute to the parties a provision for events they never thought of (Davis Contractors); it is even more unlikely that if they had thought about it, they would have agreed the contract would end (Lord Wright in Denny [1944]). A possible solution, if we wish to support this justification, is to formulate an objective test on whether the parties, as reasonable persons, would have

PER INCURIAM

included it in the contract to deal with the possibility; however, this raises the question of the ‘officious bystander’, who is as hard to predict as the ‘man on the Clapham omnibus’.

Lord Radcliffe rejected this theory in Davis Contractors, as the whole point of frustration is unexpectedness.

A FURTHER PLAUSIBLE JUSTIFICATION IS THE ‘CONSTRUCTION THEORY’, REQUIRING COURTS TO CONSTRUE TERMS IN LIGHT OF THE CONTRACT’S NATURE & SURROUNDING CONTEXT Another theory is that the frustration releases the parties when the foundation of the contract is frustrated (Jackson v Union Marine). However, it is difficult to determine when a term is ‘fundamental’, and this position was rejected by the HL in Panalpina.

A further plausible justification is the ‘construction theory’, requiring courts to construe terms in light of the contract’s nature and surrounding context. This is in reference to the ‘radically different’ test of Davis Contractors. However, though the test has been accepted into the doctrine of frustration, the theory has been criticised. The CA in particular asserted that application of this test cannot be undertaken without being measured against the demands of justice, as frustration may lead to the reversal of contractual allocation of risk.

The final theory exposited by Lord Wilberforce is total failure of consideration, but this has been roundly rejected.

CONCLUSION Having assessed the doctrine of frustration, I submit that Lord Sumner is indeed correct to assert justice as the basis of frustration. It is perhaps not the sole justification, however, as courts evidently take into account factors outside what is just to the parties, mainly public policy. With regard to the other theories, there is no principle reason why we must reject them all in favour of upholding the justice theory. As Lord Wilberforce emphasised in Panalpina, it is ‘not necessary to attempt selection’ as ‘they shade into one another’. As a matter of strength, however, it appears that the demands of justice is the strongest in justifying why the doctrine of frustration is a ‘special exception’ to absolute contracts.

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EASTER 2017

Tripos Essays

Criminal Law

CRIMINAL LAW

‘Recklessness is a branch of the law of negligence; it is that kind of negligence where there is a foresight of consequences.’ (GLANVILLE WILLIAMS)

Explain, and illustrate with examples from the case law, how the concept of recklessness has developed in the criminal law. Do you agree with Williams that recklessness is a branch of the law of negligence?

Yen Jean Wee | St John’s College This essay will explain how the concept of recklessness has developed in the criminal law from a more objective conception to a more subjective one, as well as the underlying normative reasons that this reflects about a defendant’s culpability. It will then argue that although Williams’ statement is true to the extent that there is indeed overlap between recklessness and negligence, recklessness is not a branch of negligence for two reasons: firstly, the concept of ‘recklessness’ is itself not unitary and cannot be reduced to ‘negligence plus foresight’; and secondly, that the structure and underpinning justification for the two concepts is very different, and thus one is not simply a branch of the other.

DEVELOPMENT OF RECKLESSNESS IN THE CRIMINAL LAW It can broadly be said that the concept of recklessness developed from one that placed greater emphasis on the objective nature of the defendant (D)’s conduct – Caldwell recklessness – to one that placed greater focus on D’s state of mind – Cunningham recklessness. Under Caldwell recklessness, D was liable if his conduct displayed a disregard for a risk that was objectively reasonably foreseeable, thus demonstrating a close affinity with the focus on the reasonable person in negligence. This meant that even

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Ds who were incapable of attaining the standard of foresight (foreseeing the risk) were inculpated, leading to considerable unfairness – this was demonstrated clearly in Elliott v C, where a 14-year-old girl of limited intelligence was convicted of criminal damage on the basis of Caldwell recklessness even though she herself could not have foreseen the risk of damage to property. This was unfair in principle – as Robinson and others have argued, the criminal law as an institution for assigning blame loses its moral legitimacy if it does not ensure that D is punished in a way commensurate to his culpability, in the sense of being able to be held morally responsible for one’s actions. In practical terms, this approach was arguably also unsustainable since the better way of dealing with Ds who were incapable of foreseeing the risk would surely not be to punish them but to ensure that they received more appropriate treatment (for example). This perhaps explains the shift to subjective recklessness – Cunningham recklessness – where D must have foreseen the risk of harm and yet gone on to run that risk – approved by the House of Lords in G and Another. To that extent, there is thus considerable truth in Williams’ statement since it can be characterised as negligence – not behaving as a reasonable person would – coupled with D’s foresight.

However, the development of recklessness

arguably also goes beyond what Williams says due to the introduction of an additional element – that the risk foreseen must be unjustified – by G, applicable in certain contexts (like criminal damage) but not to others (e.g. offences against the person).

NEGLIGENCE DIFFERS FUNDAMENTALLY IN STRUCTURE & RATIONALE FROM RECKLESSNESS RECKLESSNESS: NOT A UNITARY CONCEPT The above, however, illustrates that recklessness is not so easily reducible to a branch of negligence since recklessness itself is not a unitary concept – it applies slightly differently in different contexts.

For example, a more objective version of recklessness is adopted in the context of criminal damage (as demonstrated by Parker, where D was presumed to have foresight because of the inherent dangerousness of his act of smashing) and to cases of intoxication and offences against the person (such as Majewski involving OAPA s.47 assault, or

Criminal Law

Richardson v. Irwin where D was judged based on the foresight he would have had if he had been sober at the time). By contrast, in the Attorney-General’s reference case in 2004 involving death in police custody, a more subjective form of recklessness was adopted. The case law thus demonstrates that even with the shift in focus to a subjective recklessness standard, there are still cases in which D’s actual foresight is tempered by objective considerations, particularly in the law of intoxication. Williams’ straightforward reduction of recklessness to ‘negligence plus foresight’ thus does not capture the complexity of the concept of recklessness as it is applied today.

RECKLESSNESS & NEGLIGENCE: DIFFERENT NORMATIVE RATIONALES Even beyond that, Williams’ statement implies that recklessness and negligence share the same principles and justifications, and this should be questioned – they are not quite so interchangeable. Recklessness, particularly in its present form after G, criminalises the taking of a foreseen, unjustified risk, whereas negligence often criminalises the failure to advert to the risk at all – in Moore’s words, negligence is the “culpability of unexercised capacity”. This is thus not just a simple issue of whether or not D had foresight of

consequences, as Williams suggests, but rather a question of why D failed to foresee the risk, and what position D was in that put him under a moral obligation to advert to it – in negligence, this would be the existence of some sort of duty of care. Hart argues that the source of D’s culpability in negligence is his failure to advert to, and control, conduct and its consequences. In Adomako, for example, D’s grossly negligent medical treatment leading to death was culpable because he was in a position where he should have adverted to the risk yet failed to do so; similarly, in Wacker and Willoughby, both Ds were in positions where they could fairly be held responsible for their lack of advertence (or foresight). Goudkamp, writing about Bannister, introduces further complexity to the concept of negligence by questioning if it is truly about D creating a greater risk than the reasonable person would (which would be more similar to recklessness) or acting differently from the reasonable person (which seems to be the approach currently adopted, for example in Bannister where no account was taken of D’s special driving skills which meant he did not create a greater risk). It can thus be seen that at both its duty and standard of care stages, negligence differs fundamentally in structure and rationale from recklessness, which focuses much more on the idea of D – who need not be in any

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particular position – being culpable based on his running of an (unreasonable) risk – a much more positive, active form of culpability than simply a “failure to advert”.

CONCLUSION Ultimately, therefore, there is great merit in Crosby’s suggestion that we look instead to the reasons for D’s lack of foresight to determine more accurately and in a more principled manner his culpability – this is also the approach Glidewell J adopted in Elliott.

For example, if D lacked foresight of the risk because he was in a blind rage, that would not detract from his liability; but if he did not foresee or advert to the risk because he was rushing to save a life, this becomes much less culpable, and this cuts across the language of both recklessness and negligence. Williams’ statement is thus too reductive and simplistic, and rather than being a branch of negligence, recklessness is instead fundamentally different in penalising a different type of wrongful conduct – and moreover, both should be seen as ‘branches’ of culpability stemming from D’s reasons for acting or not acting, rather than doctrinal labels alone.

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EASTER 2017

Tripos Essays

CSPS

CRIMINOLOGY, SENTENCING & THE PENAL SYSTEM It is undeniable that some black and minority ethnic groups are overrepresented as suspects and defendants in the criminal justice system in England and Wales.

How can we best explain this? What can be done to address the problem?

Sher Lin Wong | Queens’ College One of the most pressing problem of the criminal justice system in England and Wales is the overrepresentation of black and minority ethnic groups (BME) as suspects and defendants. In particular, BME are five times more likely to be arrested compared to the whites. It is therefore, fundamental that we anaylse this issue, whether it can be legitimately be attributed to social disadvantage and demographic factors or does this disproportion point towards discrimination. As our former PM Tony Blair mentioned in a public statement in 1993, ‘Race goes to the heart of our criminal justice system’ which demands that everyone should be treated equally. In the next few paragraphs, I will briefly address the issue of overrepresentation of BME, how we can best explain this issue and what has and can be done to address the problem.

OVERREPRESENTATION OF BME AT ALL STAGES OF THE CRIMINAL JUSTICE SYSTEM (CJS) According to the Race and Criminal Justice Statistics 2011, BME make up around 14% of the population in England and Wales and 25% of the BME make up the prison population. At the stop and search stage, this can perhaps be attributed to the fact that BME are more likely to be stopped and searched and more likely to be subjected to intrusive search (Skogan).

According to the MoJ 2013 statistics, BME above 10 years old are five times more likely to be stopped and searched as compared to other groups. At the post-arrest stage, Bucke and Brown noted that there may be indirect

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discrimination where BME are less likely to exercise their right to silence, less likely to plead guilty or be legally represented.

Hence, they would not be able to receive less custodial sentencing for deduction in guilty pleas or for providing assistance to the police force. At the pre-sentencing stage, direct form of discrimination arises as the pre-sentencing reports allow for stereotypical and racists remarks to creep in. The Asians and minority ethnic groups are deemed to be less remorseful because of the use of distancing language (Halsall & Bramhall). At the sentencing stage itself, in the ‘Seminal on Race and Criminal Justice’ by Hood on 6000 defendants in Birmingham/West Midlands, there was evidence of discrimination where BME are 5% more likely to be sentenced and are sentenced for a longer period (9 months longer for Asians; 6 months longer for BME compared to Whites). Although this study was done 21 years ago, it is by far the most holistic and methodological robust approach to date. All these discriminations have led to overrepresentations of BME in prison.

Hence, Robert Reiner describes the criminal justice system as a microcosm of a wider discriminatory society.

INDIVIDUALIST & STRUCTURAL PERSPECTIVES DUE TO CULTURAL EXPLANATIONS The overrepresentation of BME can also be attributed to individual and structural perspectives as a result of cultural explanations. According to Smith & Gray, it was alright for the police force in the

1980s to use racist remarks and jokes such as ‘Paki’ and ‘nigger’. This can be described as at best ignorant remarks, at worst racist jokes. It could be that these racist languages are due to the naivety of the police officers. However, MacPherson describes this as institutionally racist the failure of an organisation to provide professional service to people because of their ethnicity and colour which could be seen and detected in processes amounting to discrimination through prejudice and stereotype. As McNair puts it, prison is an institutionally racist organisation for an institutionally white people.

THE REGIME WILL CONTINUE TO ADAPT TO TAKE ACCOUNT OF GLOBAL, & NOT JUST EUROPEAN, MARKET FORCES. COULD THIS BE ATTRIBUTED TO SOCIAL DISADVANTAGE OR DEMOGRAPHIC FACTORS? Clancy et al suggests that the overrepresentation of BME can be explained by factors such as age, lack of education and unemployment. According to the Office of National Statistics (ONS) in 2013, around 48% of BME are under 24 as compared to the whites (35%). Regarding demographic factors, Miller takes into

CSPS

account the fact that these BME are present in areas and at times where stop and search are more frequently conducted.

Waddington, however disputes it as he says police activity are crime-led. The fact that there are more BME at the particular area are merely coincidental. Furthermore, it is more difficult for racism and discrimination to arise in a moving vehicle when police are patrolling areas.

EVIDENCE OF DISCRIMINATION According to a self-survey report by Sharpe and Budd, which is free from potential biasness and prejudice by the criminal justice workforce and which is considered fairly reliable, the offending rate of both white and BME are the same.

Despite the social disadvantage factors and demographic factors, it is clear that racial issues interact with class disadvantages leading to overrepresentation in the CJS in England and Wales (Bowling).

These perceived inequitable and illegitimacy has constituted a problem in the CJS as it undermines the effectiveness of government’s approach.

WHAT HAS/CAN BE DONE Following the death of Stephen Lawrence, government has initiated the ministerial priority to instill confidence of the BME in our CJS. It is important that we provide a platform for the BME to report evidence of racism and there has to be a managerial oversight for this. Furthermore, recruitment of the BME in our CJS is vital as this would increase the diversity in the workforce as well as providing a form of legitimacy. The BME are able to relate more to the suspects and defendants in terms of overcoming language barriers, cultural misunderstandings and stereotypes. However, as of 2005, only 5% of BME are in the police force and court whereas 15% of them are in the Crown Prosecution

PER INCURIAM

Service. Therefore, continuous recruitment and retention in the workforce has to be a major initiative by the government as this also conveys a symbolic meaning.

It is clear, therefore that there is indeed misrepresentation of BME at all stages of the CJS. Perhaps, the overrepresentation has decreased due to continuous efforts by government but the perception of BME remains the same. There has to be therefore, reform not just at individual level but at a structural level as well. The role of the government in reducing discrimination plays an important factor which can help to address this pressing problem. to attempt selection’ as ‘they shade into one another’.

As a matter of strength, however, it appears that the demands of justice is the strongest in justifying why the doctrine of frustration is a ‘special exception’ to absolute contracts.

WHAT HAS BEEN DONE The government thus proposed positive leadership in the CJS and has taken positive approaches such as constant monitoring and analysis to ensure fair treatment to all races but at the same time preserving the discretionary powers of officials. However, according to Edgar and Martin, this informal power lacks managerial oversight. Padfield and Gelsthorpe have also noted that this day to day discretion has made justice injustice.

However, government has taken more initiatives such as awareness and training programme for all officials in the CJS. This cumulative training does not merely focus on a one-off tick-the-box programme. Also, the government has clearly emphasise on zero tolerance racism and has provided more welfare support for the BME. However, these government approaches may not be working because perception of unfairness still persists in the CJS. According to Clancy et al, during stop and search, about 35% of BME believe that they are treated unfairly. Moreover, at the sentencing stage in the crown court, Hoode and Seemungal noted that there has not been evidence of overt racism but about one third of the BME believe that this is due to racism.

Stephen Lawrence and Zahid Mubarak has further marred government’s approach.

The death of Stephen Lawrence was said to be attributed to institutional racism, organisational incompetence and failure of prison authorities.

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EASTER 2017

Tripos Essays

EU Law

EU LAW Directive 100/93 is a (fictitious) measure designed to increase the protection of the health of taxi drivers and the safety of their passengers and of other road users. It includes these provisions: Article 1.

“Every Member State shall establish a National Taxi Authority. It shall be the duty of the Authority to ensure that taxi drivers receive adequate training before becoming licensed, and generally to oversee the provision of taxi services in the Member State concerned.

Article 2.

No taxi driver shall work continuously for more than 8 hours.

Article 10.

The Member States shall take the necessary measure to ensure that: 1. wilful failure to comply with the requirements of this Directive is punishable as a criminal offence; 2. there is strict civil liability for physical harm to persons resulting from such wilful failure”.

Consider the following events, which occur after the date for the implementation of Directive 100/93: •

Armando is a taxi-driver in Rome. Exhausted after working continuously for 9 hours, he falls asleep at the wheel and crashes his cab, seriously injuring his passenger, Bruno.

Italy has taken no steps to implement Directive 100/93. However, there is national legislation making it an offence for a taxi driver to work continuously for more than 10 hours.

•

Chris has a business meeting in Paris, at which he hopes to conclude a deal worth many thousands of pounds. He flies to CDG airport, where he takes a taxi driven by Didier who has only recently obtained his taxi license. Didier gets hopelessly lost on the way into Paris, with the result that Chris misses his meeting, and the deal is made with somebody else.

The French Government has established a National Taxi Authority in conformity with Directive 100/93.

However, the Authority has not yet taken steps to ensure that taxi drivers receive adequate training.

•

Eric, who is going to Scotland for a fishing holiday, hires the taxi owned and driven by Fred to take him from Exeter to Inverness. After 9 hours’ continuous driving, Fred is involved in a multiple motorway pileup. Eric is unharmed but too shaken to continue with his holiday, which has already been paid for.

The United Kingdom has fully implemented Directive 100/93. However, the implementing legislation provides for an exception from the 8-hour rule in Article 2, in the case of journeys of over 500 miles. The legislation has been notified to the Commission, which made no comment on the exception to the 8-hour rule.

Advise, as to relevant aspects of EU law: 1.

2.

3.

4.

the Rome authorities who are considering prosecuting Armando.

Bruno, who hopes to recover substantial damages for his injuries.

Chris, who wants to be compensated for the loss of the deal he was hoping to conclude.

Eric, who wants to recover the cost of his lost holiday.

Abbie Coombs | Queens’ College ARMADO General Comments: A clear first-class and one of the top answers to this question for this year. Well done! Below are remarks on rather minor points that could have been discussed further.

Haris Psarras In order to prosecute A, the authorities would have to rely on both Art.2 and Art.10(1) of Directive 100/93 by suggesting it is directly effective, with those provisions being sufficiently clear, precise and unconditional (Van Duyn).With the implementation period for the Directive having passed, the question turns on whether Art.2 and 10(1) contain a self-executing, justiciable rule of behaviour, which could be applied directly

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by a national court. Taking into account that Art.2 is a categorical, clear prohibition on taxi drivers working continuously for more than 8 hours, the answer would most likely be yes. Moreover, as Art.10(1) sets out a clear consequence for failing to comply with the Directive, it is also likely to pass the test.

However, although this is a vertical situation, in which directives can have direct effect (Marshall),vertical direct effect only works upwards and not downwards (Kolpinghuis; Arcaro). When analysing the ‘estoppel argument’, if a Member State cannot prevent an individual’s reliance on a sufficiently clear and precise provision of a Directive after the time for its implementation has elapsed, then a Member State is to be precluded from enforcing the non-implemented Directive against its own nationals. Therefore the

Rome Authorities cannot prosecute A.

Correct. For the estoppel argument see also Ratti.

BRUNO B could suggest both Art.2 (established above) and Art.10(2) of the Directive are directly effective. Taking into account Art.10(2) sets out another clear consequence of failing to comply with the Directive, it is likely to pass the ‘clear, precise and unconditional’ test (Van Duyn).

B could then plead the direct effect of this Directive against A, but both B and A are private individuals – even on the very extensive notion of state adopted by the court (Foster),5 it is impossible to

EU LAW

claim that A would be an emanation of the member state. Thus B finds himself in a horizontal situation, in which he cannot rely on the direct effect of directives as against another individual (Marshall; Faccini Dori).

Even though direct effect is excluded, B could rely on the principle of harmonious interpretation, which requires national law to be interpreted ‘in the light of’ directives (Van Colson).It is not an issue that the Italian national law regarding working hours predates Directive 100/93 (Marleasing).

However, although this interpretive obligation is a strong one, (Pfeiffer) interpreting the national law of 10 hours continuous working to mean 8 hours of continuous working, would require an interpretation of national law that is contra legem (Impact). Therefore B could not rely on indirect effect.

ART.8 CAN BE CONSTRUED AS CONFERRING RIGHTS UPON INDIVIDUALS B could nevertheless claim that a maximum limit of 8 working hours is a general principle of EU law. As such, it would transcend any material or temporal limits to its application expressed in the Directive (Mangold).This was true of non-discrimination on grounds of age, which is enshrined in Art 21 of the Charter of Fundamental Rights (Mangold; Kücükdevec).However, the scope of the Mangold/Kücükdeveci approach seems to have been limited substantially in later caselaw (Dominguez; AMS).In AMS, the Court seemed to re-frame Kücükdeveci as a case where a general principle of law enshrined in the Charter was allowed to display horizontal direct effect by itself (because of its wording in the Charter), and not in conjunction with the Directive that implemented it. This reasoning could be extended to the current case, with the worker’s rights to limitation of maximum working hours enshrined in Art 31 of the Charter. However, it is unlikely to work in this case, as Italy have already set a limitation of maximum working hours of 10 hours; there is no general principle of EU law for that limit to be 8 hours as opposed to 10.

Provided B was not able to convince the national court in respect of any of the previous grounds, B could try to claim damages from Italy for its failure to properly implement the Directive. Examining the conditions for State liability (Francovich; Brasserie du Pecheur), B suffered actual and certain damage (his personal injury). The damage is in causal link to the Italian failure to properly implement the Directive (the wrong): if Art.2 and 10 of the Directive were transposed into national law, A would not have been driving for 9 hours, and thus not

have crashed, causing B physical harm. Thus, Article 8 can be construed as conferring rights upon individuals (the guarantee of fair and just working conditions). But is the breach ‘sufficiently serious’? In the practice of the court, this is a leftover category, which may include anything from subjective elements of liability to objective questions.

However, taking into account the categorical imperative of Article 8, which could even be construed as being directly effective, it could be suggested that Italy has little discretion when implementing the Directive and that its failure to do so might be sufficiently serious.

CHRIS The taxi authority would fall under the wide definition of the state (Foster). Therefore we are dealing with vertical direct effect, so long as Art.1 of the Directive can be considered directly effective. It is questionable whether this provision will satisfy the ‘clear, precise and unconditional’ test, as it is doubtful whether establishing a National Taxi Authority, and making sure that authority ensures taxi drivers receive adequate training, can be described as self-executing. This would likely require some kind of ancillary legislation or other type of implementing action. If however it were considered to be directly effective, C could use the directive as against the state.

However, C would not be able to recover the loss from the deal he missed out on, as under Art.10(2) of the Directive, there is only civil liability for ‘physical harm’ to persons as a result of failing to comply with the Directive.

C could try to claim damages from France for its failure to properly implement the Directive.

Examining the conditions for State Liability (Brasserie du Pecheur; Factortame), B suffered actual and certain damage (the loss of money from the deal). The damage is in causal link to the Italian failure to properly implement the Directive (the wrong): if Art.1 of the Directive were transposed properly into national law, D would have had adequate training and not got lost, causing C to miss his meeting. Thus, Art.8 can be construed as conferring rights upon individuals (guaranteeing taxi drivers’ proper training). It is unlikely that the breach is ‘sufficiently serious’; looking at the wording of Art.1, which could hardly be construed as being directly effective, it could be suggested that France does have some discretion when implementing the Directive and that its failure to do so properly is not sufficiently serious.

Your remarks on the potential lack of sufficient clarity and precision of Art.1 due to the vagueness of ‘adequate training’ are correct. It is good that you address the point. Note, also, that an alleged lack of precision that allows for Member States’ discretion on the matter (as is the case, here) does not necessarily mean that the provision in question is

PER INCURIAM

not justiciable/self-executing – for this argument see e.g. the Court’s remarks in C-72/95 Kraaijeveld (para 59), C-287/98 Linster (paras.36-7) For further cases on that see Craig & de Burca, 6th ed., p.202, fn.73.

ERIC Whether E can sue for the cost of his holiday turns on whether the Directive prescribes a specific postponement period during which the state should abstain from legislating until they hear back from the Commission (e.g. Art.9 of Directive 83/189 in Unilever).

If this is true of the current case, and the postponement period had passed, then the UK is free to legislate as it wishes (as the Commission has not responded).

This would mean E could not enforce the Directive against F, with the UK legislation precluding Art.2 of the Directive.

However, if the postponement period had not passed, the UK would have legislated prematurely regarding the exception to Art.2. Therefore, the Directive would be allowed to have the effect of precluding the application of the UK legislation (Unilever; CIA Security). This can occur even though E is in a horizontal situation, just as the claimants were in Unilever and CIA Security.

E would therefore be able to enforce the Art.2 of the Directive against F. However, it is unlikely E would be able to recover the cost of his holiday, as the Directive only allows for civil liability for physical harm.

Once we establish the relevance of the incidental effect (as established in CIA Security and Unilever) to the problem question, a further question is whether the incidental direct effect will be exclusionary (as the Court wants the incidental effect to be) or substitutive (the Court has disapproved the substitutive effect, because it would otherwise inevitably challenge the clear-cut distinction established since Marshall). It seems that in the case of Eric the application of the directive’s provision would have a substitutive, not an exclusionary effect and would, therefore, not be covered by the Court’s account of the incidental effect. This is because an ‘exclusion’ of the UKlegislation’s exception to the 8-hour rule would impose an obligation on Fred, not incidentally through allowing for the application of other provisions of UK law (exclusionary effect), but through substituting the directive’s provision for a provision of UK law (substitutive effect).

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EASTER 2017

Tripos Essays

International Law

INTERNATIONAL LAW 2016, Question 7 Andrew Ng | Wolfson College CORUSCANT’S BREACH OF CONTRACT Since the transaction occurred in the UK, the SIA 1978 is applicable. Prima facie, Coruscant has immunity under s1 SIA 1978, hence, Amidala Leia (AL) would not be able to successfully use Coruscant.

However, AL can argue that the commercial transaction fell within the exception provided for by s3 SIA 1978. In this case, the contract was for a supply of services by AL and thus falls within s3(3)(a) SIA 1978. This is notwithstanding that the purpose of supplying the services was not purely a commercial one (ie national defence), s3(3)(c) SIA 1978 does not allow for purpose to be directly relevant and only the nature of the transaction (eg Holland v Lampen-Wolfe, though Lord Wilberforce pre-SIA in I Congresso asserted that the purpose can be relevant to the extent it allows for the nature of the transaction to be understood, there is an extremely high threshold and it is submitted it is not fulfilled on the facts of this question). There is also no mention on the facts that this contract was governed by Corscant administrative law so s3(2) SIA 1978 would not be relevant.

Hence, since the commercial contract falls within the s3 SIA 1978 exception, Coruscant does not have immunity and thus AL can sue Coruscant for breach of contract (but AL would still have to argue on the merits, the lack of immunity merely removes a procedural bar).

CRIMINAL CHARGES AGAINST MINISTER DARTH Since it is unclear if a Minister of Defence enjoys personal immunity, my analysis would comprise of two parts – one where Minister Darth enjoys personal immunity and the other where he doesn’t.

If Darth enjoys personal immunity, AL cannot press criminal charges in the UK since the crime was committed in Coruscant and not the UK (Kurtis Bat exception not met). While Re Mofaz allows personal immunity to be applied to a Minister of Defence (by taking

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an expansive view of Arrest Warant, focussing on “such as” in [53] to conclude that the list is not conclusive) and personal immunity has also been applied to a Minister of Commerce and International Trade in Re Bo Xilai, it is emphasised that both Re Mofaz and Re Bo Xilai were only Magistrate level judgments and thus might be overruled if brought before superior courts. Nonetheless, if Re Mofaz is correct, Minister Darth would have personal immunity and thus AL cannot successfully press criminal charges.

If Minister Darth does not have personal immunity, it is still unlikely that AL can press criminal charges. This is as the UK does not have any jurisdiction to do so since the incident occurred in Coruscant and not the UK (classic territorial principle, affirmed in Lotus (France v Turkey)). AL’s strongest argument would be to argue that the UK has jurisdiction due to the passive personality principle as elucidated by the Joint Sep Op in Arrest Warrant. This is however unlikely to succeed for two reasons. Firstly and more obviously, this principle was only brought up in the Joint Sep Op in Arrest Warrant and not the main judgment (as DRC dropped the jurisdiction point and argued purely on immunities).

This undermines the authoritativeness of the principle. Secondly, the Joint Sep Op enunciated the passive personality in the context of terrorism, citing US v Yunis (No 2), a counter terrorism example as where passive personality might be justified. This suggests that passive personality can only be invoked for crimes of the magnitude and severity of terrorism and LA being beaten up by “stormtroopers” is nowhere near the magnitude of terrorism. Hence, AL would still be unable to press charges due to the lack of jurisdiction on the part of the UK.

IF TORTURE WAS COMMITTED BY CORUSCANT A. State Immunity If torture was committed, AL would not be able to sue the state notwithstanding the ius cogens nature (recently explicitly acknowledged, albeit obiter, in Prosecute or Extradite at [99]) of torture (eg Jones v Saudi Arabia, Adsani v UK).

This is as state immunity still applies.

B. Minister Darth If torture was committed and Minister Darth had personal immunity (see above analysis), AL would not be able to press charges notwithstanding the ius cogens nature of torture. This principle was affirmed in Pinochet No 3 (though the case concerned one of functional immunity) where the House of Lords emphatically emphasised that Pinochet would not be prosecuted if he had personal immunity. This analysis is also supported

by International Law jurisprudence eg in Arrest Warrant, the personal immunity of the Minister of Foreign Affairs precluded criminal prosecution notwithstanding the severity of his crimes (war crimes, crimes against humanity). Hence, if Minister Darth has personal immunity, AL would still be able to prosecute him.

If however, Minister Darth does not have personal immunity, AL would be able to prosecute Minister Darth if she can establish jurisdiction for the UK courts. AL’s strongest argument would again be from the Joint Sep Op in Arrest Warrant where the judges asserted at [65] there was universal jurisdiction for crimes of great severity, such as torture in that case. While this analysis support AL’s argument, there are competing views within Arrest Warrant that threatens to undermine the Joint Sep Op. For example, Judge Guillaume in his Sep Op though universal jurisdiction applied only to piracy while Judge Rezek at [8] in his Sep Op cautioned against so easily establishing jurisdiction – the world might not be ready if an African national prosecuted a European leader for his crimes. Hence, it is currently unclear as to the significance and extent of universal jurisdiction. However, it seems that universal jurisdiction has been applied (albeit not by the ICJ) in Jorgic v Germany (ECtHR – genocide) and Prosecutor v Furundzija (International Criminal Tribunal – torture) and hence it is submitted that universal jurisdiction is an established one. Hence, AL would be able to establish universal jurisdiction due to the nature of torture and would succeed if Minister Darth does not have personal immunities.

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EASTER 2017

Tripos Essays

Labour Law

LABOUR LAW ‘Trade union legislation in Britain consistently breaches

Article 11 ECHR and the Trade Union Bill 2016 is just the latest example of this.’

Discuss.

Joshua Cainer | Downing College It is true that certain aspects of the British labour law regime on trade unions are not human rights compliant. Certainly, the latest Trade Union Bill (TU Bill), which is now an Act of Parliament, is more restrictive and more likely to breach A11 ECHR. However, the fluctuating position of the ECtHR on A11 means that it is now unclear as to what extent A11 and our trade union laws might conflict. It is arguable that whilst our collective bargaining regime breaches A11, after RMT v UK, our industrial action legislation and the TU Bill might survive to some extent.

THE HUMAN RIGHTS LAW ON TRADE UNIONS The ECtHR handed down the epoch-making judgement in Demir where, contrary to Wilson and Palmer, it held that collective bargaining is an essential part of A11. It held that the practices of the member states had converged over time on the right to collective bargaining, and also normatively reflected

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ILO and ESC jurisprudence to support this development. A strong line was taken on the margin of appreciation under A11(1) and on proportionality under A11(2). Thus, it is clear that the UK has to face up to the fact that its collective bargaining laws may conflict with this strong right.

Later, in Enerji Yapi, it was held that the right to strike was part of A11. This was taken further when the ECtHR held that any sanction which attenuates the right to strike as an essential part of collective bargaining breaches A11 – be it a criminal sanction (Urcan), a disciplinary warning (Keya and Seyhan), or selection for redundancy (Danilenkov). However, from this strong approach mirroring Demir but focusing on the right to strike, RMT v UK was a climbdown. The Court held that the right to strike was a part of A11, but declined to hold whether it was essential – creating a distinction between core and ancillary parts of the A11 right. Ewing and Bogg heavily

criticise the judgement. First, it held that there was insufficient interference from the English law procedural notice requirement for that part of the claim to be admissible, which ignores the cost of the injunction to the union, ignores contrary precedent which held similar levels of interference to be sufficient for admissibility purposes (Keya and Seyhan and Spycatcher) and unacceptably prioritises case management concerns over hearing an important case. Secondly, Ewing and Bogg argue that this climb-down constitutes a retreat from normatively reflecting international human rights instruments and instead normatively collapses into democratic deference in not applying the correct proportionality test and just citing the impact of secondary action on the UK economy. This is an unacceptable sacrificing of rights on the altar of democratic deference. Thus, whilst the UK has to meet a strong collective bargaining right under A11, they face far less of a challenge in terms of the right to strike, which is where the TU Bill is most focused.

Labour Law

COLLECTIVE BARGAINING There are two clear examples where collective bargaining trade union legislation will breach A11. As Ewing and Hendy note, if ILO Convention 98 is Demir’s lodestar for the content of the A11 right, then the mere obligation for employers to meet with trade unions is a breach. This is because the ILO Convention and A11 would require a remedy against an intransigent employer in negotiations. Further, Fraser-Butlin argues that the current ability of firms to voluntarily recognise sweetheart unions and thus oust the recognition of independent unions (Boots) is also a breach of A11 as it goes to the heart of the collective bargaining right. To that extent, she argues that Boots No.1 is correct, Boots No.2 is wrong and on appeal, Boots No.1 should prevail. Thus, it is clear that trade union legislation in Britain breaches the A11 collective bargaining requirement.

THE TRADE UNIONS WOULD OFTEN STRUGGLE TO STAFF THE NECESSARY NUMBER OF SUPERVISORS

service rather than a 40% threshold might be more appropriate. Thus, these provisions breach the ILO Convention, although this might have been ameliorated somewhat as the final Act finally makes allowances for electronic voting which might make achieving these thresholds much easier.

Other issues include two weeks’ notice before a strike which, when combined with agency workers, minimises the impact of any strikes and disruption to almost nothing. The fact that the unions must renew their strike mandate every four months is expensive and restrictive, though perhaps less so with e-voting. Finally, Ford and Novitz doubt the compatibility of the picket provisions concerning picket supervisors with human rights instruments, especially as the trade unions would often struggle to staff the necessary number of supervisors.

Thus, if Ewing and Hendy are correct that, under the Demir approach, ILO jurisprudence fills out the content of A11, it is doubtful as to whether the TU Bill is compliant with A11 because it certainly breaches many ILO standards. However, the normative collapse in RMT v UK towards democratic deference as opposed to normatively reflecting common member state practice and international

PER INCURIAM

human rights instruments might suggest the contrary result. Currently, it is doubtful as to whether these restrictions on the right to strike in the Bill breach A11. Yet it may be that such severe restrictions are the catalyst for the ECtHR to wake up to its responsibilities, recognise the right to strike as an essential part of A11 and find the TU Bill, as well as other restrictive British trade union legislation, to be in breach of A11.

In short, British trade union legislation, under the Demir approach, definitely breaches the A11 collective bargaining right in insufficiently supporting negotiation and in supporting sweetheart unions. Whether or not the legal restrictions on the right to strike, especially the TU Bill, breach A11 remains to be seen.

If the ECtHR were to arrange a repeat performance of RMT v UK, then that would be disappointing and there may well be no breach. If, however, they wake up and find the right to strike to be an essential element of A11, then the TU Bill would most definitely breach A11.

THE RIGHT TO STRIKE Whilst it appears that the current restrictive approach to procedural notice (e.g.

Metrobus) and the restrictions on secondary action (TULRCA S224) have survived the challenge of A11 intact after RMT v UK, much more interesting is whether the TU Bill pushes things far enough that it will be in breach of A11.

Ford and Novitz highlight a number of the restrictive features of the Act which are open to question. The new ability of employers to hire temporary replacement agency workers for strikers is a huge restriction on the efficacy of strike action and the ILO restricts the acceptability of such a provision to essential public services. Thus, this clearly breaches the ILO Convention. Further, there are the restrictive new balloting thresholds that the Bill introduces. This means that for all strikes there must be a 50% turnout of eligible voters and, additionally, for essential public service strikes 40% of those voting must vote in favour of striking. This is highly restrictive and, as Darlington points out, whilst essential public service strikes would largely have been unaffected, around half of other strikes in the last year would have been defeated by the 50% threshold. Certainly, the ILO suggests that the Bill’s essential public service provision goes too far – education is not an essential public service, and if the true aim is to reduce public service strike impact, then a minimum

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EASTER 2017

Tripos Essays

Land Law

LAND LAW

‘[In cases where the courts have] been required to determine the [relative priority] of claimants to property rights and mortgage lenders … the needs of lenders

have been found persuasive. … [A] ‘dead heat’ is not permitted[.]’ (HOPKINS) Discuss Gareth Goh | St Catherine’s College In order for mortgage lenders to exercise their right to possession and power of sale, they need to have priority over anyone with an interest in the secured property. In disputing what Hopkins is arguing, it will be asserted that the needs of lenders have not always been found persuasive, and in practice an equitable balance, for the most part, has been struck between lenders and borrowers.

THE ISSUE OF PRIORITY If a mortgagee has validly registered his charge over a property, s.28 allows preexisting property rights to have priority so long as they are first in time, not waived and not overreached. S.29 provides an exception to this, such that, upon a valid registered disposition for valuable consideration, the purchaser will take the land free from any preexisting property rights except for overriding interests or registered interests. This framework sets up the analysis for disputes between lenders and borrowers, and in this regard, three particular areas will be analysed – the issue of consent, overriding interests and court ordered sales under TOLATA, s.14.

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THE ISSUE OF CONSENTS It is trite law that if a borrower signs an acquisition mortgage they are expressly waiving their priority in the property (Abbey National v Cann). This consent has also been held to extend to secondary mortgages, if any of that mortgage is used to pay off the first, triggering the doctrine of subrogation (Prestridge). Therefore, in most cases, lacking any vitiating factors, this consent will be sufficient for the mortgagee to realise his interest in the property. This may seem prima facie like the lender is straightforwardly favoured, but the reality is more nuanced than this.

Where a vitiating factor arises that may negative the consent provided by the borrower, such as undue influence of fraudulent misrepresentation, the bank will often be put on ‘notice’ if they have actual or constructive notice of this vitiating factor. It has been conclusively held in Etridge (No 2) that a bank will automatically be put on notice where a wife signs the mortgage as a surety.

Additionally, in Pitt, it was held that even if

the mortgage is advanced jointly to both husband and wife as co-mortgagors, the bank will be put on notice if there are reasonable grounds to suspect that the mortgage is being advanced solely for the benefit of one party. An example of this was in Chater, but ultimately on the facts it was held that there was nothing to suggest that the bank should have known that the loan was being advanced for the benefit of one party. Outside these defined circumstances, the bank may also be put on notice if there is presumed undue influence under Etridge (No 2), and if the transaction is disadvantageous to the weaker party (O’Brien). It may seem that this regime is overly beneficial to borrowers, offering them ample protection of their priority over lenders.

But in reality, the Etridge protocol, which the lender must satisfy in order to discharge their duties, is not particularly demanding.

In essence, they only need to ensure that the wide has access to a solicitor and the solicitor is provided with all the necessary financial information and any evidence of the transaction being suspicious that the bank has. Therefore, most competent lenders will provide such a service automatically, hugely

Land Law

blunting the force of an undue influence/ misrepresentation claim to vitiate the consent of the borrower.

OVERRIDING INTERESTS PRESENT A BALANCED APPROACH TO THE PRIORITY DISPUTES BETWEEN LENDERS & BORROWERS An interesting and potentially damaging extension of the consent rule arose in the recent case of Kaymuu. Here, in a coownership relationship, one party trusted his partner to take care of all the finances between them. However, when a fraudulent mortgage was carried out, the courts held that the careless partner had impliedly waived his consent, therefore giving the lender priority over the property. The reasoning of the court derived from an archaic estoppel principle advanced in Brocklesby, whereby if the careless partner has authorised, facilitated the transaction and then omitted to prevent the fraud, their consent was implied. If this is true, it would threaten the very core of the Boland principle, meaning that actual occupation and an overriding interest would be impliedly waived simply because the innocent party was careless in authorising his partner to deal with the finances. If this principles catches any judicial traction, the rights of the borrower in terms of his priority will be severely diminished. With respect, that cannot be allowed to happen. Sampson, in his recent case note on Kaymuu, argued that the courts had no interpretative right to justify the result – the governing statute and the case law are sufficiently clear on the matter. He therefore concluded that, if we are not to add another arrow to the mortgagee’s quiver, Boland needs to be distinguished from Kaymuu, and if not, then Kaymuu should be confined to its own particular facts.

contract to its compatriot in Schedule 1, this actual occupation must be reasonable discoverable. Although there is an element of objectivity to this test, it is submitted that any competent lender should be able to discover actual occupation and will not be surprised if they secure a charge over a property and suddenly find out that they do not have priority. By the same accord, short legal leases and easements should be relatively easy to discover.

Hence, overriding interests present a balanced approach to the priority disputes between lenders and borrowers.

A LACK OF PRIORITY FOR THE BANK Even if the bank lack priority that will enable them to repossess and sell the property, they can apply for a court ordered sale under TOLATA 1996, s.14.

Recent case law has tended to favour sale for creditors, unless there are exceptional circumstances (Bell / Achampong / more recently in Fred Perry v Genis). Of course, there are cases in which the court will refuse sale (e.g. Edwards TSB / Shaire) and the potential impact of human rights may have to be considered (Rushmer), but on the whole, sale is often the outcome for a creditor under s.14.

This is even more so if the borrower is bankrupt, whereby the courts will have to look to s.335A Insolvency Act 1986 to see whether a sale can be ordered. Typically, sale cannot be postponed for more than a year (Re Citro).

PER INCURIAM

Thus, is a bank does not have priority and a application under s.14 does not work, they can sue the debtor to bankrupt him and then apply for a sale through the trustee in bankruptcy. This will not be an abuse of process (Slayford).

AN APPROPRIATE BALANCE Contrary to the assertion of Hopkins, the current balance in priority disputes between lenders and borrowers is justified and principled. If borrowers have priority, sale or repossession cannot be ordered, and the doctrine of undue influence provides some protection (albeit not much), as well as the priority given to overriding interests under LRA 2002, s.29.

Even if repossession proceedings commence, if the property is a dwelling, s.36 Administration of Justice Act 1970 will postpone or even suspend proceedings if it seems likely that the repayments will be met within a reasonable period (Norgan).

Finally, even if s.14 sale is ordered, the bank will be able to realise their interest, but subject to the priority of any equitable owners, who should be well compensated for their interest in the property.

The policy interests at stake here are important, and the development of a vast body of case law in relation to priority disputes is a testament to the balance that has rightly been struck here, though some decision (i.e. Kaymuu) require immediate clarification.

OVERRIDING INTERESTS If the borrower has not expressly waived their priority, the fact that they have an overriding interest under Schedule 3 will be sufficient to prevent a bank from exercising its powers of repossession and sale.\ The balance between lenders and borrowers with regard to overriding interests is well struck. Firstly the LRA 2002 fundamentally cut down on the number of interests that can override, so there is less for mortgagees to worry about. Secondly, although establishing actual occupation under pa.2 might be quite easy to satisfy (look at Link Lending, Chokar v Chokar and Hussain), by

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EASTER 2017

Tripos Essays

Equity Law

EQUITY LAW

‘‘The complexity of the law relating to unincorporated associations arises

because so many of the old cases rest on legal analyses that are obsolete to the point of being plainly wrong. Yet this rich variety of analyses does provide the courts with the tools to achieve practical justice in an area of law where the factual circumstances can be extremely various.’

Discuss Fabienne Carey | Pembroke College INTRODUCTION In this essay, I will point to 3 areas of the law “relating to Unincorporated Associations” (UA,) which might now be considered “obsolete”: 1.

The relevance of the resulting trust on dissolution

2.

A finding of a quistclose arrangement (between an outsider and an UA)

3.

An analysis of the term “members, ” of a UA (as in Re Horley Town FC as per Collins J)

I will suggest that it might be wrong to dismiss these 3 apparently obsolete areas because, as the quotation asserts, their use might help us achieve “practical justice” amidst an area which may have various different fact patterns.

I would note this is slightly different to what the quotation suggests which implies that the wide variety of analyses- even if we might dispense of them – are still suggestive of a useful, oriented approach- the word “yet” is used in the question. What I am suggesting is that these 3 apparently obsolete areas should not be dispensed with at all. They are not “obsolete” preciously because they can be used as tools or instruments of “practical justice”. This requires us to subscribe to a certain “results-orientated approach” (Gardner,) which some may question. I will break my essay down into two parts. In the first part, I will briefly explain why some may view the 3 areas identified above as “obsolete.’’ In the second part of the essay, I will illustrate the ways in which these areas are not obsolete, precisely because they are tools of practical justice.

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PART I: “OBSOLETE TO THE POINT OF BEING WRONG” The relevance of the resulting trust on dissolution One might make the point that the resulting trust is no longer of any relevance and is now a “plainly wrong” way to describe what might happen to a UA’s assets on dissolution.

definitive statement is misplaced. It simply reflects the fact that the trust analysis on these facts would have been inconvenient.

If an individual had tried to settle 50p for a raffle ticket on trust the UA is likely to say “no deal”. Nonetheless, both suggestions- of irrelevance and of inconvenience, suggest a decline in the relevance of the RT, if not a preclusion. This will be addressed below.

Finding of a quistclose arrangement

THE ATTEMPT TO CONSTRUCT LEGAL REASONING IN A WAY THAT ACHIEVES PRACTICAL JUSTICE APPEARS TO SUBSCRIBE TO A “RESULTSORIENTATED” VIEW

The argument would suggest that the direction of the assets on dissolution is determined by the way in which they were held by the UA whilst it was operating since the contract-holding theory now depicts the “default” explanation about the way assets are held (Re Recher, Re Bucks.) One might suggest that the resulting trust analysis on dissolution has been rendered “obsolete,’’ as a direct result of this. This is because assets given to an association are rarely put down on “trust” anymore as in Re Denley.

Thus a resulting trust does not arise when the UA is dissolved (that is, an ART as in Vandervell v IRC.) Indeed, Goff J in Re West Sussex suggested that the trust analysis is precluded, (in relation to subscriptions and collection boxes). However, as Gardner points out, this

Where an individual makes a loan to an UA under a stipulated condition of use, one might suggest that a quistclose trust analysis is apt. However arguably such an analysis is “obsolete”. This claim of obsolescence might be levied in 2 senses: •

The Q trust analysis is ‘generally’ obsolete in terms of fit - some such as Hudson have argued that a commercial loan explanation, which does not involve a trust at all, would be more apt.

•

The Q trust seems odd in the context of an UA, where we are rarely dealing with the context of insolvency. Arguably in a context devoid of insolvency, the underlying loan contract should govern before we jump to a trust law analysis without need. (Challinor v Juliet Bellis) However, this will also be challenged below.

Discussion of the term “members,’’ (Re Horley) One might argue that Collins J’s lengthy discussion of the term members” in Re Horley and his distinction between “full members”, “associate members” and “temporary members”, was unnecessary.

Arguably now the default position on

Equity Law

dissolution (where the contract holder theory governs) is equal division between all members (Re Bucks) unless the contract stipulates otherwise. However again I will argue that this is misplaced.

PART II: THE OPPOSITE OF “OBSOLETE”- NECESSARY FOR PRACTICAL JUSTICE. “Achieving practical justice’’- a normative choice.

Firstly, we need to acknowledge that the attempt to construct legal reasoning in a way that achieves practical justice appears to subscribe to a “results-orientated” view.

This of course is not accepted without difficulty and, in any case, we must accept its limits since there must always be some clear facts which allow us to construct a select analysis designed to achieve a targeted result. Gardner has argued that in this particular context of UA law, where the theory on dissolution depends on the theory of holding, this RO approach can be identified, and he points to cases such as Re Hobourn and Re Printers. He also endorses its use from a normative perspective. Such endorsement depends on a liberal notion of property holding which suggests that the use of property ought to be governed by its owner’s wishes. If we subscribe to this particular view then we can see that the above 3 apparently “obsolete” areas might in fact be very important in implementing the approach identified by Gardner. In order to illustrate this I will construct 3 hypothetical examples below:

Hypothetical 1- on the relevance of the resulting trust Imagine Sarah owns a spare plot of land and she is very unsure what she should do with it.

In fact, she is in 2 minds. She does not know whether to: •

Give the land to her daughter Sally to use to set up the headquarters for her new party planning business.

•

Give the land to Camberwick Sports Club, as all of her children have had many fond memories of the club when growing up and Sarah wants other children to have the same memories for many years to come.

Legal Analysis: On these facts let’s say there was no evidence that Sarah intended to leave the land on trust to the club. In the absence of such evidence the default seems to suggest that the contract-holding theory governs. If we apply this theory, as in Re Bucks, then Sarah’s gift of the land takes effect as a gift to the club generally. As such it will be held by the club’s treasurer under the terms of the club’s constitution, (the contract). On this analysis when the club is wound up 11 months later, Sarah is left with nothing. The rules of the contract would dictate what happens to the assets on dissolution. Most likely the land would be sold and shares of the money would be distributed amongst the 12 members.

An Unfair Legal Analysis?

This seems to look distinctly unfair. After all poor Sarah was in 2 minds and she made the decision to give the land to the club specifically so that other children could enjoy it for many years in the future. However, there is no such future and the club is being wound up. Sally could have had the land for her business after all! It is perhaps at this point that the resulting trust and it’s potential to do “practical justice” steps into the fore.

If somehow we could construct our legal analysis to find evidence that Sarah donated the land to the club on trust then, subject to the beneficiary principle, (perhaps saved

by Re Denley,) and subject to the rules on perpetuities the court could make this finding.

If such evidence was constructed then on dissolution, the land or its value would go back to Sarah via a resulting trust – (ART). This appears to be a more “just result”.

recover a small proportion of the £10,000 that it originally gave.

An Unfair Legal Analysis?

If, however, the conditions for a quistclose trust arrangement could have been made out when the gift was made, the government would have possessed an equitable interest which would have given them priority in insolvency and also enabled tracing. In this specific context where we are perhaps dealing with potentially scarce government resources, this definitely looks like the most just result.

Thus, far from being “obsolete”, quistclose can be used in this context as a tool of practical justice.

Hypothetical 3- on the relevance of the “members” discussion.

Imagine Alexandra gives a £20,000 donation to Camberwick Sports club because she has heard about their swanky Christmas balls and would like to attend them. It is well known that donor’s get full access to these events.

Alexandra does not bother becoming an actual member though because she is “not really into sports”. On the above facts, the club closes 11 months later.

Legal Analysis: Alex will not have had a chance to experience any of the swanky Christmas balls as she wished, however she is £20,000 short. If the contract only divides between the 12 members then the money will be split between them and she will stand to gain nothing.

An Unfair Legal Analysis?

Hypothetical 2: on the relevance of quistclose Imagine the government has awarded Camberwick Sports Club a £10,000 grant for the specific purpose of expanding recreational space in disadvantaged areas for children who don’t have access to green space. The club has received the £10,000 grant but never got around to expanding this recreational space.

Imagine further that when the club dissolves it is left with very few assets, save a spare plot of land which it has had for years and is now worth around £10,000. The club has been declared insolvent.

Legal Analysis:

Sarah finally makes up her mind and decides on the latter (making the gift to the club.) 11 months later the club dissolves leaving 12 standing members.

PER INCURIAM

This again looks distinctly unfair and the outcome could have been prevented by some discussion of membership beyond what the contract had said, as Collins J was arguably doing in Re Horley, (although ultimately adopting a restrictive result,) the discussion itself may have helped Alex out on the facts here and achieved a more practically just result.

CONCLUSION To conclude, I have shown that these 3 areas are not obsolete” precisely because they depict crucial tools for achieving a just result.

This can be defended on a liberal option of property rights, (Gardner).

If the government brought a personal action in relation to its grant, perhaps in unjust enrichment, it would await repayment in a queue of other creditors, and may only

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