Per Incuriam Lent 2017

PER INCURIAM xxx

PER INCURIAM

LENT 2017

AN INTERVIEW WITH

ANNE DRAKEFORD

Dispelling the myth that it is harder to be a woman in the legal industry.

BREXIT MEANS...

Are there opportunities to be harnessed in M&A moving forward?

LENT 2017

President’s Welcome

PRESIDENT’S WELCOME HAPPY NEW YEAR! I hope you had a great Winter Vacation.

Freshers, definitely don’t be concerned if you never got beyond reviewing supervision one of Roman. The Vac is meant to be a break from work and there’s plenty of time until exam term.

Jack Lewis | President

Good luck to everyone who’s been writing applications for vacation schemes. Early Lent tends to be filled with assessment centres and Watson Glaser tests. It can be a stressful time with rejection emails and having to constantly rearrange supervisions, but just know that it’ll be worth it in the end.

There will be a few final careers events in Lent term which will be designed to help with assessment centres and interviews.

The Lent edition of Per Inc is set to be as comprehensive as ever. We were very lucky to get an exclusive interview with Clifford Chance’s Anne Drakeford on women in law.

We also have a very interesting comment piece on Brexit (if you haven’t heard enough about it already). As ever, we also have a selection of top-scoring tripos essays for you to look at - a must for exam term.

This is the last edition of Per Inc that I’ll be overseeing, so I would like to say a huge thank you to Alicia and Yukiko for their work in developing Per Inc into such a great publication.

Best wishes, Jack

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Editor’s Welcome

PER INCURIAM

EDITOR’S MESSAGE DEAR READER, Welcome back to Cambridge, and happy 2017!

Alicia Loh | Editor

Yukiko Lui | Deputy Editor

In this Lent issue of Per Incuriam, we have exciting features for you. First up is an exclusive interview with Anne Drakeford, a Partner at Clifford Chance who took the time to share the experiences she has gained throughout her exciting legal career. This article, which began as a Women In Law feature, has expanded encouragingly to reflect the commitment to diversity put forth by the legal industry.

To whet your commercial awareness appetite, we also have an article by Alex Forzani, a trainee at Cleary Gottlieb, on the effects that Brexit will have on M&A. For those of you aspiring commercial lawyers, this is a great opportunity to learn about the concerns that the various stakeholders when concluding deals in an uncertain environment, and what can be done to address these concerns.

We are also pleased to feature an article by Emma Coates as she spends her Erasmus year abroad in Madrid. If you’re thinking of doing the Erasmus programme, Emma’s experience might be just what you need to convince you.

Finally, as always, we bring you top First Class tripos examination essays from across all three years, including a script for Commercial Law that won the Norton Rose Fulbright Prize for Commercial Law just last year. Many of these essays achieved Starred Firsts (above 80%), and we hope that they help you throughout the term.

Special thanks to the wonderful Per Inc Fresher Reps, Rabin Kok and Patrick Campbell for their feedback and contributions to the magazine.

With all good wishes,

Alicia Loh for the Per Inc Editorial Team

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.

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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BE A PART OF EVERYTHING

INTERNATIONAL GRADUATE CAREERS IN LAW Advising clients on front-page matters in Sydney. Reading about your work in the newspaper the next day. We work with some of the biggest international organisations on some of their most ambitious projects.

So be prepared to see the impact your hard work makes in the real world.

When you join Herbert Smith Freehills you get so much more than a job.

You’ll have the chance to gain the skills and experience you’ll need to become a brilliant lawyer. As a full service global firm, our work is incredibly varied and there is no limit to where your career could take you. From first-year workshops to vacation schemes and training contracts, we have a wide variety of opportunities for you.

Don’t just experience everything, be a part of it. careers.herbertsmithfreehills.com/uk/grads SEARCH HSF GRADUATES FOR MORE

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OFFICES GLOBALLY

22

INTERNATIONAL SECONDMENTS

44k

IN FIRST YEAR

Contents

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CONTENTS ANNE DRAKEFORD INTERVIEW Alicia Loh | Peterhouse MY ERASMUS EXPERIENCE SO FAR...

Emma Coates | Robinson College BREXIT MEANS...

Alex Forzani | Trainee Solicitor at Cleary Gottlieb CIVIL LAW I Giuseppe Jafari | Corpus Christi CONSTITUTIONAL LAW Edward Low | St John’s College LAW OF TORT Jay Vinayak Ojha | Sidney Sussex College LAW OF CONTRACT Andrew NG | Wolfson College LAND LAW Harriet Codd | Peterhouse CRIMINOLOGY, SENTENCING, & THE PENAL SYSTEM Alex Peters | Selwyn College EQUITY Daniel Kozelko | Downing College EU LAW Joel Koh | Girton College COMMERCIAL LAW Sher Lin Wong | Queens’ College

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LENT 2017

Articles

Anne Drakeford Interview

ANNE DRAKEFORD INTERVIEW

For all that law is meant to stand for – justice, human rights, and equality – there is something of a perception that it is harder to

be a woman in the legal industry. Per Incuriam sat down with Anne Drakeford, a Partner at Clifford Chance, to dispel that myth.

Alicia Loh | Peterhouse | Edited by Yukiko Lui, Rabin Kok, and Patrick Campbell Her views as to corporate culture are encouraging, as she notes that the teams she has worked are both collegiate and diverse. The breadth of practice in Clifford Chance means that ‘there is a place for everyone to find a home’, while senior women have been great role models who actively share their experiences.

She is one of the 24% of women who make partner in a law firm, but that is not why she has had an impressive career – throughout the interview, Anne emphasises that there is no glass ceiling for women seeking to pursue a career in law.

Having decided to chase her dreams and practice corporate commercial law at an international level, Anne pursued a Masters in Law (LL.M) here at the University of Cambridge. She now specialises in derivatives and financial products, due to her interest in the creative aspect and wider knowledge required by this area of expertise. This has taken her around the world, including time in Paris and Hong Kong, while she works with colleagues globally on a daily basis.

When asked about how her experiences have changed her, she highlights that being a lawyer made her very detail-oriented whilst encouraging her to look also at the bigger picture. As Partner, she has learned how to strategise and organise her team.

Has the fact that she is a woman made her achievements any more difficult? No. Anne stresses that the focus is more on an individual’s ability rather than any other factor. Whilst it is important to have different viewpoints in a team to form a more holistic perspective, this boils down more to the individual’s knowledge and attitude than their gender – a fair point indeed.

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But what about the statistics? Reports show that even though 61.5% of those who secure training contracts are women , only 18.8% of the total partnership roles in top firms are held by women. Anne recognises this disparity, and is optimistic about the future, citing the fact that her own firm (Clifford Chance) has seen positive results from gender equality efforts and has more women amongst its partnership ranks than it did five years ago. With people now digging deeper, Anne highlights that Clifford Chance has made efforts into finding out why so many women enter the legal career profession but leave before making it to the top. A solution she suggests is to promote flexibility, especially in view of increasing digitisation, with legal resources and interactive tools now being remotely accessible. Such flexibility would be beneficial not only for women but for the legal profession as a whole, she says, citing the shifting attitudes towards traditional social roles of men as breadwinners and women as homemakers. Given that there is relative gender equality at the trainee and associate levels, the key issue is why the numbers suddenly diverge at higher levels. Anne notes that this question is often framed in the context of young women and small children, but sees it as just as critical to consider factors such as caring for the elderly in the era of an ageing population, as well as the burden of raising teenagers, one which is perhaps even greater than caring for young children given today’s hyper-competitive academic expectations. ‘I hope that over time we will get there’, Anne said in reference to having more women join her in the partnership ranks.

There are a few things that don’t surprise us

about a law career: hard work, long hours, and an intellectual challenge. However, Anne also took the time to share a few things that we might find surprising, including the fact that being a lawyer can be a flexible vocation that goes beyond office walls. An oft-forgotten aspect when thinking about diversity issues is the clientele that law firms work with, and Anne points out that many clients are in fact women, perhaps balancing the gender ratio slightly.

What advice does she have for students interested in commercial law? ‘It’s a fantasic career with fascinating deals, and you meet lots of interesting people’, Anne enthused.

Young women in particular ‘shouldn’t be put off by a perceived culture that I don’t recognise’, as firms have come a long way in actively recognising and warding off unconscious bias. There are all sorts of opportunities and challenges waiting to be taken; this is clear from Anne’s exciting career.

Perhaps the main takeaway of this interview is that law is a great career option for anyone, regardless of gender, and there are boundless opportunities for those ready to seize them. Whilst law firms themselves may have a way to go in reaching gender equality, this should not be viewed as an obstacle, and they are taking active steps that will hopefully bear fruits soon. Anne’s experiences are something many of us aspire to match, and her insistence on a collegiate, diverse culture in the workplace is what makes a career as a solicitor and enticing one.

SOURCES “Entry Trends,” The Law Society, accessed December 7, 2016 http://www.lawsociety.org. uk/careers/becoming-a-solicitor/entry-trends/.

“2014 Gender in the Law Survey,” Chambers Student, accessed December 7, 2016, http:// www.chambersstudent.co.uk/where-to-start/ newsletter/2014-gender-in-the-law-survey

My Erasmus Experience so far

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MY ERASMUS EXPERIENCE SO FAR… I am currently just over 2 months into my Erasmus year in

Madrid and it is crazy how much I have already experienced!

Emma Coates | Robinson College I study at university from Monday to Thursday which means I get a long weekend and also the workload that we receive is much lighter compared to Cambridge.

Therefore, I have been able to travel a lot, and it is so easy whilst living in the centre of Spain. So far, I have visited Toledo, Salamanca, San Sebastian, Bilbao, El Escorial and have even been hiking, all with other Erasmus students at university. There are also Erasmus organisations that organise trips like these so if you aren’t sure where to find the transport/who to go with, then you still have the option and it’s very cheap. San Sebastian has definitely been my favourite trip so far, the scenery was incredible and we got to try the traditional ‘pintxos’ or ‘pinchos’ from the North.

It is also so much fun to explore Madrid and you are spoilt for choice for things to do.

There are so many bars, restaurants, clubs, theatres, cinemas, museums (free for students) and also important landmarks like the Palace.

Our transport card means that we can use public transport to go anywhere in Madrid and so visiting new neighbourhoods to discover new things is common. My favourite place for tapas is constantly changing and I have become accustomed to receiving free food when I order a drink! At the university there is also an ESN organisation and they organise events for Erasmus students such as club nights, language exchanges, salsa classes, tours and more and when you first arrive this is a great way to make friends.

However, of course we do have to study.

We get to pick our subjects and we can study some Politics modules as well as Law modules, and also some modules from any other subject at the university. There are also a few subjects taught in English and we can choose to study a Spanish language course which is really helpful alongside the other subjects. We have two hour lectures once a week per subject and a seminar of one and a half hours, although this can vary from subject to subject. In seminars we regularly receive multiple choice tests that count towards our final grade and so it is important to do the reading for these. Fortunately, the reading is not much at all, generally one case or a few paragraphs from two or three cases, and providing you have done the reading it is quite easy to pass. The professors are also really kind when you tell them that you are an Erasmus student; they offer to help you and might even be a little lenient with you!

Furthermore, I am finding that through reading and attending lectures is actually how my Spanish is improving. As an Erasmus student if you don’t know any Spanish

students at the university already it is difficult to make Spanish friends. Therefore, you find yourself speaking in English a lot more than you thought you would, as most of the Erasmus students prefer to chat to each other in English. Becoming fluent in Spanish is definitely still a dream, but even within a couple of months I am finding myself becoming more confident in the language and expressions are coming more naturally to me.

I only did Spanish at A Level and didn’t really study it further at Cambridge so this shouldn’t be something that puts you off, it comes back to you very quickly.

Lastly I want to point out that the decision to do an Erasmus year was not easy. I was reluctant to leave my friends in third year and was of course worried about studying law in Spanish – law is usually hard enough!

Even when I arrived I felt a little lost; but once I found my flat and university started, I made so many friends and started to have the best time of my life. So if you’re thinking about doing an Erasmus year even a little bit, stop thinking and do it!

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LENT 2017

Articles

Brexit Means

BREXIT MEANS… In the wake of Britain’s vote to leave the European Union, numerous commentators have clamoured to give their views on what Brexit will actually mean for the

UK economy. To be sure, their concerns are well-founded. London’s position as an international financial centre may be at risk and there is considerable

uncertainty as to the nature of Britain’s future relationship with the EU trading bloc. This uncertainty has already impacted deal volumes: by some estimates, M&A activity was down by nearly 80 per cent in the second quarter of 2016,

compared to the same period last year. But will this climate endure? And, perhaps more importantly, are there opportunities to be harnessed moving forward?

Alex Forzani | Trainee Solicitor at Cleary Gottlieb CONTRACTUAL CHANGES AFOOT Some commentators suggested in the immediate wake of Brexit that material adverse change clauses (MACs) in sale and purchase agreements would be triggered by buyers who had signed but not completed their deals. These clauses, which are heavily negotiated in acquisition documentation, allow the acquiring party the right to refuse to complete the transaction if the target’s financial or business prospects have deteriorated significantly. To date, such concerns have proved overblown. With the threshold for triggering a MAC clause set extremely high, few buyers have felt the need to trip such

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provisions following the vote to leave.

However, during the period between the triggering of Article 50 and the execution of an exit agreement with the EU, we may see some changes in the way that sale and purchase agreements are negotiated. In the pre-contract stage, due diligence of any UK target will probably be conducted with Brexit in mind. Depending on the future relationship of the UK with the European Union (and any trade deals the UK government seeks to negotiate with other countries post-exit), buyers may wish to consider any target’s Brexit planning and the measures that UK targets have taken with respect to their main contracts, key staff and geographical operations.

Additionally during negotiations, counsel for the buyer may insert Brexit conditionality clauses in sale and purchase agreements that would provide buyers with the ability to walk away from a deal if Britain does not achieve certain outcomes in its exit negotiations. Clearly, such clauses would be heavily negotiated. In public M&A, issuers may also seek to incorporate Brexit risk factors into prospectuses to disclose to potential investors, or tendering shareholders, any Brexit-related risks associated with their operations and business models.

Brexit Means

REGULATION NATION Until the UK formally withdraws from the European Union, there will be no impact on the applicability of European law. Once the UK does leave, however, there may be scope for changing a number of the regulations that govern M&A activity. The competition regime is likely to be a prime example. In a post-exit Britain, the Competition and Markets Authority, or CMA, is likely to have greater freedom to interpret competition rules. Additionally, a European Commission competition investigation will no longer prevent the CMA from opening its own investigations and the commission may lose some of its enforcement powers. This does not mean, however, that the European Commission will simply disappear. Indeed, in recent years, some of the largest fines, in both cartel and abuse of dominance cases, have been levied by the commission in respect of non-EU companies. The penalties imposed on Intel (based in California); LG Electronics and Samsung (based in South Korea) and Microsoft (based in Washington state) provide cautionary tales that UK companies cannot afford to ignore.

There may also be an impact on merger control. As previously mentioned, any effect will depend on the model for the United Kingdom’s relationship with Europe. Under the current regime, mergers that satisfy certain required EU thresholds must be notified to the European Commission rather than the CMA. If the UK withdraws from the single market as well as the customs union, then this approach, known as the “one-stop shop”, will likely disappear with parallel EU and UK investigations running at the same time. In the first instance this could give

rise to one authority blocking a potential merger and another authority approving it. Moreover, one authority could propose a certain set of behavioural remedies in order to approve the transaction, with the other authority suggesting slightly different or even contradictory ones. Running an additional investigation will add time and cost to the clearance process for all parties involved and might strain an already overworked CMA. Furthermore, there may be more interventions on “public interest” grounds, as UK authorities seek to protect a wider group of strategic industries in the wake of bids from non-UK companies.

THE REGIME WILL CONTINUE TO ADAPT TO TAKE ACCOUNT OF GLOBAL, AND NOT JUST EUROPEAN, MARKET FORCES. In some respects, however, we can be fairly confident that the UK regulatory landscape will not change. The Takeover Code, which governs the public M&A space, provided the blueprint for those who drafted the EU Takeovers Directive that is now in force. The Code is fairly flexible and has developed over a number of years to reflect market practice in the City of London. Undoubtedly, some elements of the directive, such as the principle of “shared jurisdiction” between regulators, may fall away. In all likelihood, however, the regime will continue to adapt to take account of global, and not just European, market forces.

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THE FUTURE MIGHT BE BRIGHT In the short term, the pound has devalued significantly against the dollar and marginally against the euro. This has made mediumsized UK targets attractive to foreign, particularly US, investors. Immediately after the vote, we saw the ARM-Softbank acquisition, as well as the purchase of Odeon cinemas by AMC. Additionally, there has not been a discernible change in the availability of credit or the pricing of loans in the European leveraged loan market.

Moving out of the short term and into the medium to longer term, London is likely to retain its position as a European hub for M&A activity. First, Brexit should not impact on the choice of English law to govern transaction documents. Despite a potential worry about the enforcement of judgments, the English courts, and the London Court of International Arbitration, provide stable, speedy and secure forums for the resolution of disputes. Secondly, the London markets will continue to provide deep and liquid pools of capital. That said, a lot will depend on the passporting rights, if any, that London retains post-exit, whether the London market is deemed “equivalent” for the purposes of European regulation, and if the City can maintain its position as the principal venue for euro trading.

Even if all or some of the above events happen, London is likely to be at the forefront of any future developments in renminbi trading and clearing. It will retain a strong professional services talent pool and, hopefully, the government will negotiate a deal that provides certainty for investors as soon as possible.

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LENT 2017

Essays

Civil Law

CIVIL LAW I Comment on Justinian’s categories of

quasi-contractual & quasi-delictual obligations.

Giuseppe Jafari | Corpus Christi 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.

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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.

Civil Law

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QUASI-DELICTS

ASSUMPTION OF RESPONSIBILITY?

OBLIGATIONES QUASI EX DELICTO?

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 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.

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.

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.

THE JUDGE MIGHT BE LIABLE WHERE HE IS UNABLE TO EXPLAIN WHY THE FORMULA HAS BEEN DEPARTED FROM

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

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.

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

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.

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LENT 2017

Essays

Constitutional Law

CONSTITUTIONAL LAW Evaluate the Human Rights Act 1998 and fundamental common-law

rights as ways of protecting individual rights in the United Kingdom.

Edward Low | St John’s College The quote inherently divides, or at least, attempts to draw a divide between the HRA and fundamental common-law rights.

This essay will argue that ultimately, recent case law has shown an evolving relationship between this piece of constitutional legislation and the fundamental common law rights of the British Constitution.

At first glance, when juxtaposed against the HRA, common law rights seem entirely inadequate at thoroughly preserving the civil liberties of the citizens in the UK. Even the well-documented right of access to courts is fundamentally unclear in its legal contours.

As ex parte Witham demonstrates, the removal of exemptions for court fees by the executive is ultra vires. But what if Parliament legislated directly and unequivocally on the matter? And as a matter of principle, why are court fees legal in the first place? Laws LJ explains his reasoning with reference to the lawyer fees that we pay to engage a lawyer, claiming that while a lawyer is not strictly necessary when going to court,

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going to court itself must be safeguarded at all costs. But pragmatically speaking this makes absolutely no sense, since going to court without a lawyer is virtual legal suicide.

This in turn, reveals the second problem behind the common law’s fundamental rights: they tend to be ‘negative’ in nature, in the manner expressed by Isaiah Berlin.

Freedom from interference is surely essential, but it is clear, as demonstrated above, that positive rights such as those enshrined by the ECHR like the right to education (Article 14) are clearly vital and worth protecting.

Another specific advantage brought by the ECHR is that it sets a specific mechanism by which such rights can be enforced, and the HRA does so as well on the national level. Rather importantly, its introduction of proportionality as a standard of review has been vital to the function of judicial review, even though it is true that proportionality had been introduced to the UK before the enactment of the HRA.

Allan however, challenges whether specific provisions of the HRA have in fact made a difference to the methodology in judicial review. He cites s. 3 and poses the following proportion: Assuming that s. 3 is to have any meaningful effect/change on the way that judicial review has been carried out, then surely it implies that without s. 3, a ruling such as the one in Ghaidan would surely have been an ultra vires reading of the statute.

This, in his view, surely cannot be correct.

Judicial interpretation of statute always had to be contextually dependent, specifically on the constitutional landscape that the UK inhabits, and its various common law rights. What the HRA has done with s3 is, at best, a sign of support from Parliament that courts should continue to exercise this latitude of sensitivity and creativity in judicial review, or at worst, a new excuse for the courts to lapse into the Constitution of Will, to indulge in the formalistic fantasy that they are merely ‘carrying out the will of Parliament’ instead of recognising the analytic necessity of performing their role,

Constitutional Law

according to the dictum in ex parte Smith that the greater the infringement of fundamental rights, the more justified the reasons will have to be for it to be ‘reasonable’.

A further, albeit minor issue of standing also arises. As Joanna Miles points out, under s.

7 of the HRA, the ‘victim’ test is adopted, rather than the broader ‘public interest’ standing that usually applies in judicial review.

While this was ostensibly for ‘consistency’ with the ECHR, it robs judicial review of its communitarian role, whereby the role of enforcing objective standards of good governance are replaced with individualistic notions of private justice. Furthermore, applicants that use the HRA no longer allow courts to perform a function of expository justice, which would allow a judicial, prudent with doctrines of stare decisis and mootness fleshing out of the various substantive rights that we are constitutionally entitled to.

There is however, reason to be thankful to the HRA. In ex parte Brind, it was held that it was both legally and constitutionally unnecessary to give effect to the claimant’s Convention Rights. There is little doubt that this is no longer the position in the common law, even if the HRA is repealed in the near future. Gearty argues that it is odd that the ECHR and HRA have been demonized in the public eye as instruments of a tyrant court

in Strasbourg, especially when Strasbourg has saved English applicants from its own common law repeatedly, such as in the case of Sunday Times v UK where draconian anti-libel law, requiring absurd standards of proof were held to be a breach, or in Smith v UK which was a triumph for LGBTQ rights. This has largely been due to the common law’s general unwillingness to go beyond procedural review into substantive review, especially seen by Wednesbury being employed in Smith v Secretary State of Defence.

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therefore, it is up to the common law to fill in the gaps. The opposite is also true - the common law tort of breach of confidence, as seen in the case of McKennitt v Ash is almost entirely based on Articles 8 and 10 of the ECHR. A synthesis between the common law and ECHR rights would give rise to greater and more substantive coverage of rights than before, under the auspices of Parliament. If the HRA flourishes it is truly because it was planted in fertile soil.

THE BEST WAY FORWARD IS A COMPLEMENTARY RELATIONSHIP BETWEEN THE COMMON LAW RIGHTS & THE HRA I will now argue that the best way forward is a complementary relationship between the common law rights and the HRA. This is the position advocated in Osborn v Parole Board, where it was held that common law rights ought to be the first step in deciding whether or not certain actions by the executive were in fact unconstitutional. The substantive rights are phrased broadly and

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LENT 2017

Essays

Law of Tort

LAW OF TORT ‘The development of the law of negligence has been by an incremental process

rather than giant steps. The established method of the court involves examining

the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see whether there is an argument by analogy

for extending liability to a new situation, or whether an earlier limitation is no longer logically or socially justifiable. In doing so it pays regard to the need for overall

coherence. Often there will be a mixture of policy considerations to take into account.’

(LORD TOULSON in Michael v. Chief Constable of South Wales (2015)) Examine critically the courts’ approach to the ‘duty of care’ in the tort of negligence in the light of this statement.

Jay Vinayak Ojha | Sidney Sussex College INTRODUCTION

INCREMENTALISM

Even more so than for pure economic loss, the law regarding negligence liability for omissions has proceeded by very slow, incrementalist analogy. From a total bar on liability for pure omissions (Stovin v Wise), the law has come to accept liability in cases where there has been an assumption of responsibility to do a positive act for an identified person (Kent v Griffiths).

Judges have long touted incrementalism as essential to the concept of duty of care, and argued that arguments by analogy are the only way to progress in the law of negligence. For instance, the ‘duties of care’ for pure economic losses progressed incrementally from situations akin to contract in Hedley Byrne, to ‘special relationships’ in White v Jones, a case which could hardly be called akin to contract.

Lord Toulson is also right, to an extent, in saying that through the incremental process, the law on duties of care has broken down old barriers which are no longer justifiable. Page v Smith and Dulieu v White, for example, ended the antiquated 19th century rules over there being no duty of care in respect of psychiatric harm. Through the incremental process, the courts examined whether the old concerns over psychiatric injury – such as ‘nervous

The ‘duty of care concept’ is central to the English law of negligence. In light of the view put forward by Lord Toulson, this law will be examined on the twin axes of ‘incrementalism’ and ‘policy factors or coherence’.

14

shock’ being easy to mimic – were logical; they were not and so they were swept away.

However, the focus on incrementalism ignores the basic fact that there must be a few bold steps for the incrementalism to build on: Donoghue v Stevenson, the famous case which brought the general duty of care into the negligence lexicon was, after all, a giant leap; Lord Atkin would not have made history if he had not articulated the bold, new, ‘neighbour principle’. The law on duties of care has worked in a twin manner: leaps (like D v S) and incremental changes and codifications of accepted norms (as in Caparo v Dickman) working in tandem.

One of the incremental changes, however - the addition of the ‘fair, just and reasonable’ limb to the test for extending duties of care - has been disastrous. This will now be examined.

Law of Tort

PER INCURIAM

‘POLICY FACTORS’

EVALUATION

CONCLUSION

Policy factors have muddled judicial reasoning and led to grossly unfair results in numerous cases. In Sutradhar for example, a case in which negligent reporting by the NERC led to a large number of people in Bangladesh considering arsenic-poisoned water as safe.

What weighed heavily on the court’s mind in declaring that the NERC owed no duty of care to anyone who might drink the water was the possibility of ‘indeterminate liability’ – the ‘floodgates’ argument. This is indefensible; as Howarth pointed out, the judges’ extensive use of this policy argument has led to a situation where a person is less likely to be liable in tort the more people, or the wider the class of persons, which he harms.

It is submitted that incrementalism, coherence, and policy factors have too often tugged against each other in the law regarding duties of care.

In conclusion, it is submitted that the law on duties of care has been incremental but relies far too much on smoke and mirrors policy factors such as the floodgates argument.

Therefore, it would be advisable either to rely less on policy factors and be bolder in going farther to impose liability, or to jettison the concept of duties of care altogether (as French law has) and use damage and causation as the principal control devices in negligence. The current obscuring of judicial decision making by reference to vague policy factors is not desirable.

Furthermore, similarly illogical policy arguments were on full display by the majority in Michael. In a case in which a domestic abuse victim specifically phoned the policy and gave her name and her situation, and the police negligently downgraded her call leading to her death, the ‘floodgates’ argument was employed. Given that liability could, as Lady Hale argued in her dissent, be limited to people who specifically named themselves and explained their situation to the officer, thus creating an assumption of responsibility, the majority’s argument was neither logical nor convincing.

Further policy arguments, such as the possibility of ‘diversion of resources’ and ‘defensive policing’ were given, with an equally cavalier attitude towards logic: would it not only encourage the police to do a better job if liability was held to exist?

In the interests of incrementalism, for instance, somewhat arbitrary and unreasonable restrictions were placed on secondary victims of psychiatric harm in Alcock. Simply because of earlier cases and outmoded views, siblings were automatically classified as ‘less affectionate’ than parents, and seeing events on live TV was somehow inherently different from seeing them happen in person even when the victim knew that a loved one was affected. This is clearly incoherent.

POLICY FACTORS TOO HAVE OFTEN BEEN A MASK TO OBSCURE REAL REASONS AND DEAL A BLOW TO COHERENCE. Policy factors too have often been a mask to obscure real reasons and deal a blow to coherence. Comparing Michael with Kent v Griffiths for example, the only difference was that in the latter the operator used positive words to assure that an ambulance was arriving whereas in the former, the promise was to transfer the call to the appropriate station. The real reason for the different judgment, perhaps, was that the NHS Act did not preclude liability of that kind in K v G whereas in Michael, the judges felt that the appropriate avenue for justice would have been an application for judicial review.

15

Law of Contract

PER INCURIAM

LAW OF CONTRACT The UNIDROIT Principles provide: ‘7.4.2 (1) The aggrieved party is entitled to full compensation for harm sustained as a result of … nonperformance. Such harm includes both any loss which it suffered and any gain of which it was deprived, taking into account any gain to the aggrieved party resulting from its avoidance of cost or harm.

(2) Such harm may be non-pecuniary and includes, for instance, physical suffering or emotional distress.’

How far does this represent current English law?

Andrew NG | Wolfson College I) English law, like the UNIDROIT principle, recognises that full compensation as a result of non-performance includes any loss suffered and any gain that is deprived. This is best seen in the way remedies are awarded.

Following Parke B’s seminal statement in Robinson v Harman, a claimant is entitled to the expectation measure, to compensate the claimant for any loss he was deprived off.

This is best seen from Parke B’s insistence on putting the claimant in the position as if the contract had been performed.

THERE HAS ONLY BEEN LITTLE EXPLICIT MENTION OF A CONSUMER SURPLUS The claimant is always straightforwardly entitled to any financial loss suffered. This is best seen in the awarding of the reliance measure in cases where it seems impossible to quantify any gains that the claimant might have suffered such as in McRae where the wreck did not exist or in Anglia TV v Reed where it was hard to quantify how successful the show would have been if it had aired.

However, there is some uncertainty as to how these financial losses are ascertained.

Following orthodox contract law (as Winterton (2012) notes), the basis of financial loss is entire substitutionary in nature – hence if I suffered loss from a poor construction of a wall, my financial loss would be the cost of substitute performance ie the cost of hiring a contract to fix the wall. However, following recent developments, there is some uncertainty as to whether such financial loss would include the consumer surplus from the contractor. As it stands, there has only been little explicit mention of a consumer surplus, with maybe the exception of Lord Mustill in Ruxley v Forsyth and Lord Scott in Farley v Skinner.

Lord Mustill in Ruxley explained the £2500 awarded to Mr Forsyth as forming the consumer surplus – in other words how much Mr Forsyth valued the pool to be 7 feet deep over the actual diminution in the value of the pool not being 7 feet deep. Likewise, Lord Scott in Farley awarded the £10000 partly due to the claimants’ consumer surplus in wanting to buy a nice and quiet home. It is emphasised that none of the other judges in the cases used the consumer surplus view (eg Lord Lloyd in Ruxley and Lord Steyn in Farley used a narrower view that the contract was one for pleasure when awarding damages).

Hence, it is currently unclear if consumer surplus currently forms part of the law on financial damages for any loss suffered. As Harris (1979) argues, and I respectfully agree, such consumer surplus should be applicable to non-commercial contracts as it better encapsulates loss for a consumer. However, as it stands, there is uncertainty as to the extent such consumer surplus forms part of the law on compensation for any harm suffered.

Before moving on, it is important to note that following The Mamola Challenger (Teare J) and noted by Tetteborn (2011), the two forms of compensation – loss (reliance measure) and gain deprived (expectation measure) – are not discrete entities but rather two different manifestations of the rule against overcompensation. Hence, a claimant might not always be able to claim for any loss suffered if he had, by reason of the loss, gained so much more (see ratio of The Mamola Challenger).

However, the UNIDROIT principles are not such an accurate reflection of English law when it comes to assessing compensation from the gain of the aggrieved party. So far, there has only been two cases that bear any semblance to such restitutionary measures.

The first is Wrotham Park where damages were awarded as 5% of the aggrieved parties gains and Blake which involved stripping the aggrieved party of all the profits. Though

Burrows (2008) argues that these cases are evidence of the restitutionary emphasis of damages, his views are not widely accepted.

As Andrews (2nd Edition) and O’Sullivan (7th Edition) argues, Wrotham Park can be explained as a loss of bargain damages while Blake can be explained as exceptional on its facts since it involved state secrets and espionage. This is perhaps seen in the way Blake has not produced a progeny of cases, as acknowledged by Sales J in Vercoe. Hence, Wrotham Park and Blake can simply be explained within the conventional framework of damages (as elaborated on above) as a loss of bargain compensatory damages (Wrotham) and Blake as wholly exceptional to its facts.

(II) The general rule in English law is that no damages would be awarded for nonfinancial loss (eg Addis v Gramaphone).

However, following Watts v Morrows and Farley v Skinner, there seems to be two exceptions to the rule.

Firstly, when an “important” (Lord Steyn in Farley, expanding the exception in Watts of “sole”) object of the contract is to provide pleasure, for example holidays (Jarvis v Swan Tours) or wedding photographs (Lord Steyn in Farley at [20]). English law allows for damages to be awarded for the disappointment suffered in these cases.

Secondly, when there is an unwelcome sensory experience, eg noise as in Farley. It is unclear as to how much does the current law require that the loss be a physical one (following Watts where the court made it clear it had to be physical distress caused by the loss) with Lord Clyde in Farley criticising the requirement that loss be physical. However, the other judges did not pick up on this point. It is submitted following Farley that the unwelcome sensory experience is to be broadly interpreted (eg Hamilton v David & Snape separation from son viewed as distress) as noise was held to fall within the exception.

17

LENT 2017

Essays

Land Law

LAND LAW In 2012, Robert inherited the registered freehold title to Blossom Hall (‘the Hall’), a rundown stately home. He immediately moved in with his wife, Mary, their 15-year-old disabled son, George, and Mary’s two sisters, Edith and Sybil. Robert wished to share his inheritance with all of his family. He declared a trust in writing over the Hall in favour of himself, Mary, George, Edith and Sybil as beneficial joint tenants.

message, Sybil realised her mistake and was filled with regret. She asked Robert, Mary and George to ‘ignore and delete the email’, saying she ‘didn’t mean any of it’. Mary and George (but not Robert) read the message nonetheless.

Sybil resolved to make amends by remaining at the Hall indefinitely.

In 2013, Edith began a whirlwind romance with Tom. After a disagreement with Robert, who disliked Tom, Edith moved out of the Hall. She agreed in writing to sell her share to her favourite sister, Sybil, for £50,000.

Sybil paid Edith the money.

on trust for herself and Tom ‘as equal partners’. Trade proved difficult, and working together quickly took its toll on Edith and Tom’s relationship. Tom moved out, taking some of his belongings with him. To prop up the Inn business, Edith approached Carson, a local billionaire, who agreed to lend Edith £150,000, secured over the property, provided Tom consented – which looked unlikely.

Edith told Carson that she would trick Tom into signing a waiver form, by pretending that it was a passport application form. The parties proceeded on that basis, and Carson duly acquired a registered charge over the property.

Edith used £100,000 of Carson’s loan to redeem the Upton Bank mortgage, and ploughed the rest into the business.

A month later, Edith purchased a local pub, Clover Inn (‘the Inn’), where she and Tom could ‘blissfully live and work together’. The £150,000 price was met via a £100,000 mortgage loan which Edith obtained from Upton Bank, and the £50,000 received from Sybil. Registered title to the Inn was conveyed to Edith,

By 2014, Sybil was bored of living at the Hall. She emailed Edith saying ‘I can’t bear it any longer. I’ve decided to leave and get my money out of the Hall, but I’m not sure how to tell Robert, Mary and George!’. Sybil accidentally copied Robert, Mary and George into the email. Immediately upon sending the

Edith has also fallen behind on her mortgage repayments to Carson.

Carson does not have any immediate need for the money, but he has always wanted to own a pub. He is threatening to repossess and sell the Inn to one of his companies for £80,000.

Two months ago, Sybil died in a car crash. Her will left everything to Edith. More bad news followed last month. Mary was diagnosed with fast-onset dementia; doctors have recommended that she remain in familiar surroundings. Robert was declared bankrupt. His trustee in bankruptcy wants Robert’s assets sold in order to pay his many creditors.

Advise the parties as to the nature and extent of their interests in Blossom Hall and Clover Inn, and any remedies they may have.

Harriet Codd | Peterhouse BLOSSOM HALL Co-ownership must exist behind a trust s. 1(6) LPA 1925. Legal title to BH is held

by R on trust for R, M, G, E and S. They enjoy the equitable title as joint tenants as declared by the trust (s. 53(1) LPA) given that it is in writing. The declaration of trust is conclusive (Roy v Roy) as to how the equitable interest is to be enjoyed.

When E moves out her position regarding the equitable joint tenancy does not change. Nor does her position change when she agrees to sell her share. The agreement in writing is not sufficient to constitution statutory severance under s. 36(2) LPA given that it is not ‘served’ on all beneficiaries as required by s1. 96(3) LPA. The written agreement may be a specifically enforceable contract however, satisfying the requirements for s. 2(1) LP(MP) A 1989 and under the doctrine in Walsh

18

v Lonsdale. It would constitute severance at the moment of being written down by being an example of E ‘acting on her share’ (Williams v Hensman). E severs before S pays money by virtue of the written contract.

This means that R will hold BH on trust for R, M, G and S enjoying as joint tenants 4/5ths or 80% of BH and S as tenant in common of the remaining 20% as the presumption is severance to equality (Goodman v Gallant).

When S buys E’s share it does not affect her status regarding the joint tenancy (Gibbons v Morris). Beneficiaries can have dual status.

In 2014, S’s email constitutes severance because although she did not mean to copy them into the email she has served notice on the other beneficiaries. S. 36(2) means that severance can be brought about by written notice. The Interpretation Act 1978 sch 1 and further decisions such as Green (Stealth Construction) v Bank of Ireland have

held that emails and other modern forms of communication of the written word can constitute ‘writing’. Furthermore the notice is ‘served’ by S notwithstanding the fact that R has not yet read it (Re 88 Berkley Road). The notice is served for the purposes of s. 196 and s. 36(2) from the moment she delivered ie. from the moment she pressed send and the email was available for them to read.

The court [was] keen to emphasis in Quigley v Masterson that severance by notice was an entirely unilateral act which requires no agreement or consent from the other parties.

This means that R will hold the legal title on trust for R, M, G as joint tenants of 60% of the equity and S will have 40% as a tenant in common (Goodman v Gallant). Her dual status will be destroyed. Given that severance occurs before her death her will will be effective in leaving her shares to E. Gould v Kemp holds that a will cannot sever at the point of death because although it evinces an intention

Land Law

for survivorship not to operate (Greenfield v Greenfield), survivorship is triggered immediately upon death leaving nothing for the will to bite onto.

R will now hold on trust the legal title for the beneficiaries to enjoy as joint tenants of 60% for R, G, M and 40% as tenancy in common for S’s estate – E. Upon bankruptcy the joint tenancy which R enjoys alongside M and G will be severed despite the involuntary nature of bankruptcy (Re Dennis).

This means that R’s trustee in bankruptcy will hold the sole legal title to BH on trust for M and G as joint tenants of 40% and S and R tenants in common of 40% and 20% respectively.

SALE OF BH? R’s creditors will be seeking sale in order to recover their debt. Given the beneficial interests enjoyed by the parties behind the trust, they will have to seek sale under TOLATA 1996 as ‘interested parties’ – s. 14. A normal sale will not work given that overreaching will not be triggered (City of London BS v Flegg) as the purchase money will not be paid to two or more trustees – s. 2 LPA 1925.

The court may order sale under s. 14 taking account of s. 335A of Insolvency Act 1986.

Despite the discretionary nature of s. 14 and the factors included in s. 15 to which the court must have regard (eg welfare of any minor, purpose of trust, intentions of the parties) the courts have tended to favour lenders and creditors.

In this case the creditors interests will be pertinent under s. 335A(2)(a) IA 1986 and will be weighed against the needs and resources of M and G under s. 335A (2)(b)(ii) and (iii) but exclude from consideration the needs of R. In Amapachong v RBS the needs of the wife despite her disability were not connected to a

need to stay in the house. Here the situation is different as she needs to remain in familiar surroundings due to her dementia.

G’s age and welfare will be relevant as in Edwards v TSB and will need to be considered before sale ordered.

Despite the courts’ marked preference for sale in cases involving bankruptcy (Bell v Bank of Ireland) and requiring ‘extraordinary circumstances’ to outweigh the creditors right to their money (Re Evers Trust). Here the circumstances, though relevant will not be on par with extraordinary circumstances of terminal cancer (Re Bremner) or very short life expectancy (Chambarous v Channa) and therefore the court will order sale under s. 14 TOLATA and s. 335A IA. The purchase money will be apportioned regarding their respective shares. 20% each to M, G and Rs trustee in bankruptcy and 40% to S’s estate – E.

THE INN The express words of severance (Martin v Martin): equal shares will mean that E will hold I as sole legal title for the benefit of E and Y as tenants in common in equity. The express declaration of equal shares (Roy v Roy) will be conclusive notwithstanding differing contributions to the purchase price (Pankhania v Chandegra).

The waiver form on the mortgage will be ineffective due to C having actual notice of the fraudulent activity of E. This means that C will have a charge subject to the priority of T; however it is worth noting it is voidable not void. T may therefore rebut by saying he knew it was waiver of priority and not a passport form. This will be unlikely on the facts.

C may however step into the shoes of U to benefit from their priority (Bank of Ghana v Chandiram). C can therefore sell the property under s. 101 LPA

PER INCURIAM

without having to resort to TOLATA. This is because U’s mortgage, being an acquisition mortgage has the highest priority as there is no scintilla temporis as affirmed in Abbey National v Cann and more recently in Re North East Property Buyers Litigation per Baroness Hale.

E has fallen behind and provided the mortgage has been duly created the right to sell has both arisen and become exercisable (s. 101 and s. 103 LPA respectively).

His motive for sale is irrelevant provided that at least one of his motives is to recoup the debt he is owed (Meretz v ICM).

Upon selling C will have fairly unfettered right to sell as he likes. He may decide the date (Tse Kwong Lam v Wong Chit Sen) and the method (Bell v Long). He must however expose the property to the market (Meftah v Lloyds) and advertise it properly (Bishop v Blake). The most pertinent to this situation is that he is under a duty to conduct a true sale (Farrar v Farrars Ltd). There is no bar to selling to an associate (Tse Kwong Lam), but the court can rescind a sale if it was obvious that the sale was part of a ‘cookedup job’ (Corbett v Halifax). He is clearly an interested party and therefore should not sell to his own company. The court may rescind. If they decide not to rescind and the heavy burden of proving a true sale is rebutted (Tse Kwong Lam), the court may nevertheless decide to award damages for the sale at an undervalue (Cuckmere Brick v Mutual Finance) if they decide it is below the bracket of acceptable prices reasonably obtainable (Michaels v Miller).

He can go into possession but should not sell to himself (Four Maids v Millbank Finance). Furthermore if his agreement with E contained a clause for option for purchase in anticipation of this moment the courts would strike it down as repugnant to the nature of a mortgage (Jones v Morgan).

19

LENT 2017

Essays

CSPS

CRIMINOLOGY, SENTENCING & THE PENAL SYSTEM “It is argued by critics and commentators that prison is not the place

for women in conflict with the law because they are often vulnerable, victims of abuse, subject to domestic violence, and poor.”

Discuss this claim, and consider any justifiable, legitimate and viable alternatives to prison for women.

Alex Peters | Selwyn College INTRODUCTION The claim is correct insofar as it indicates the demographic composition of prisons in a general sense. The prison environment is not ideal, but prisons must be retained as an option for the most serious of female offenders. In many other cases, though, prison is being used inappropriately and there are many other justifiable, legitimate and viable alternatives.

THE CLAIM 52% of females convicted of an offence are convicted of theft and handling, compared to 38% of men (MoJ 2012). Jamieson (1999) has argued that women commit more acquisitive, less violent crimes than men, and the PRT (2013) has argued that female crime is often petty, committed by single mothers, and conducted in order to provide for children. This paints a picture of female offenders as poor and vulnerable and merits the suggestion that prison is an inappropriate place for women, given that 59% are in prison on sentences of 6 months or less. Such short sentences must in large part be handed down for breach of community orders, as the Criminal Justice Joint Inspection (2011)

20

outlined. All of this indicates that many women find themselves behind bars due to the strain of poverty and vulnerability, having committed low-level offences not intended to be punishable by imprisonment. It is the breach of the community penalty that often results in imprisonment. As Nagin (2009) has outlined, prisons are a criminogenic environment; Sampson (1993) discussed the heavy stigma associated with imprisonment.

Those findings render the claim to be strong, given that prison has such a negative effect.

As to the claim’s allusion to victims of abuse and domestic violence, the Corston Report (2007) evidences such concerns. 1/2 of women in prison suffered from domestic abuse, it found, and around 1/3 suffered from sexual abuse. Furthermore, MoJ (2016) figures show that 1/4 of women in prison were in local authority care as children, and an Oxford (2006) study shows that 78% of women in prison have mental health issues, compared to just 15% of the general population. Given the aforementioned negative effect of prisons and the findings outlined as to vulnerability, victims of abuse, domestic violence and poverty as characteristics of many female offenders, the claim is certainly true to this extent. However, as Hedderman & Gunby

(2013) outline, prison should be retained as a place for the most serious female offenders (not as a place for the most persistent).

Viewed in this light, the claim is slightly incorrect to suggest that “prison is not the place for women in conflict with the law”, but this observation shouldn’t detract from the general cogency of the claim as a whole.

It might be mentioned that the claim omits a very serious concern as to why prison is inappropriate for women. As the PRT (2013) outlines, 66% of women in prison have dependant children; 17,700 children have a mother in prison. Given that there are only 12 female prisons, there is an average 57-mile distance between mother and child. This has a devastating impact on families and as Farrington (2008) has outlined, the prospects for the children of women in prison are poor.

Furthermore, as Epstein (2012) has outlined, the Article 8 ECHR rights of the child are largely ignored in the sentencing of their mother. This is very concerning and as stated, the familial impact of female imprisonment provides a reason, that the claim omits, as to why prison is generally speaking not the place for women in conflict with the law.

CSPS

ALTERNATIVES THAT ARE JUSTIFIABLE, LEGITIMATE & VIABLE Easton and Piper (2012) outline that alternatives to women’s imprisonment are very important given the social cost of imprisonment. Whilst viewed through the lens of Bottoms’ (1995) popular punitiveness theory, this may be unpopular, one must look beyond media conceptions and popular punitiveness. Much can be learned from Scotland. The Scottish Government, led by Kenny MacAskill, former Cabinet Secretary for Justice, introduced a presumption against sentences of 3 months or less imprisonment in s17 of the Criminal Justice and Licensing (Scotland) Act (2010). There has been a drive towards community penalty allocation in Scotland, and this is clearly a justifiable, legitimate and viable alternative, given that those are still a sanction for violation of the law. Much interest hinges on the mooted idea of extending the length of the sentencing presumption to 6 months or less (See Scottish Government (2016) Consultation). Gelsthorpe and Sharpe (2015) argue for the presumption to be introduced to women in England and Wales.

THERE ARE CLEARLY MANY ALTERNATIVES TO FEMALE IMPRISONMENT THAT ARE LEGITIMATE, JUSTIFIABLE & VIABLE.

PER INCURIAM

CONCLUSION To conclude, the claim is largely true but we must recognise that imprisonment remains the only appropriate sanction for certain female offenders. The claim omits the important issue of the social and familial impact of female imprisonment. Furthermore, there are clearly many alternatives to female imprisonment that are legitimate, justifiable and viable.

Furthermore, Wedderburn et al (2000) have proposed treatment of women as equals, not ‘equal treatment’. Whilst Player (2014) suggests that this may not be justifiable, legitimate or viable in light of the ‘just deserts’ aim of the criminal justice system, Gelsthorpe and Sharpe (2015) in an illuminating chapter in Roberts are able to reconcile treatment as equals with just deserts by proposing a difference not in the level of punishment for women but in the form of punishment.

In this context, much can be said for the justifiability, viability and legitimacy of local centres for women, as outlined by Gelsthorpe (2010) in her “What Works with women offenders” article. For example, Centre 218 in Glasgow is focused on the holistic needs of women. This sort of centre has a far greater chance of success in addressing the needs of women, as outlined in Gelsthorpe’s 9-step plan. Unfortunately, Centre 218 has not had a large impact in reducing female imprisonment rates in Scotland since it only has a capacity of 14. This highlights the eternal funding struggle with which the criminal justice system has to grapple. Another example of such a centre is Asha’s Centre in West Mercia. Its aims are similar to Centre 218 and it has 110 places. Roberts (2002) has outlined that Asha’s Centre has had a positive effect in reducing reoffending rates, and this shows it to be a justifiable, legitimate and viable alternative to prison for women. On this theme, Anawim Women’s Centre merits the same recognition, given its success in reducing reoffending to just 6% for women it helped.

All of the aforementioned demonstrates that there are legitimate, justifiable and viable alternatives to imprisonment for women.

21

LENT 2017

Equity

EQUITY ‘The reasoning of the Court of Appeal in Pennington v. Waine reflects a more general shift in equity jurisprudence towards a greater focus on the intentions of the relevant parties.

This shift continues, both generally and in the specific

context of failed gifts, notwithstanding the widespread

criticism of the Court of Appeal’s decision in that case.’

Discuss.

Daniel Kozelko | Downing College Intention is becoming a very crucial part of Equity. It is often allowed to defeat the rule in Milroy v Lord, with regard to failed gifts, but is also relevant to much of the law more generally concerning defeated transfers. This essay seeks to demonstrate this, but also criticise the development in certain, specific fields. It also seeks to show that, sometimes, actions may speak louder than intention.

The judgement in Pennington v Waine, to a certain extent, clearly demonstrates how intention to produce a gift has extended past the rule limiting failed gifts in Milroy v Lord. In the latter case, the court very clearly stated that the courts would not perfect an imperfect gift. However, Arden LJ in Pennington, for the majority, relied on the judgement in Choithram v Pagarani to essentially find that the rule in Milroy could be avoided on grounds of unconscionability.

Luxton has noted that such a word is very hard to prescribe a precise meaning to – and it is very unclear why the intention of the mother and son in Pennington should perfect the imperfect transfer.

One way of suggesting Pennington does not denote a move towards intention based reasoning is the judgement in Curtis v Pulbrook. Attempting to characterise the judgement on more traditional lines – that case suggests that Pennington is simply a manifestation of detrimental reliance. By doing this, it is not the intentions of the parties that are allowed to govern the finding of the gift, but instead the action of the son in becoming director in that case. Luxton argues that this more orthodox result avoids a more general undermining of Milroy v Lord – and in particular applies normal equitable rules instead of simple, vague unconscionability.

However, even if Curtis can characterise Pennington as a case concerning detrimental

22

reliance, Curtis itself had to accept that Re Rose was a judgement allowing intention – albeit evinced strongly, to defeat the rules relating to the completion of gifts. The difference between Pennington and Re Rose, however, is the fact that everything that could be done had been done to affect the transfer.

Because of this overwhelmingly clear position, that the transfer is intended, a more orderly acceptance of intention over form is evinced.

While these cases clearly demonstrate some move towards more intention based approaches to Equity, other cases outside this field also evince the move. In particular, in cases like Rochefocauld v Boustead and Vandervell v IRC, we clearly see intention beating stipulated statutory requirements. In the latter case the House of Lords effectively accepted that the intention of the party to transfer his equitable interest in land would not be defeated s.53(1)(c) LPA 1925 because it could be said that the equitable proprietary interest said to be transferred was destroyed in favour of an absolute transfer.

Importantly, then, the result is intention beating statutory requirements of form.

Nolan has argued that this case actually evinces more the principle of overreaching.

As such, much like Pennington’s interpretation

by Curtis and Luxton – he essentially justifies it on the basis of classic equitable principles.

However, to a certain extent it must be asked whether, when there is a clear intention to transfer or produce a gift, Equity should strive to defeat this? While it is true that a transfer in signed writing – and a deed in some cases of gift, act to accurately evince intention – to use the words of Arden LJ in Pennington – is it not unconscionable to defeat these gifts?

More generally, in cases like Gray v IRC, the law still demonstrates that it is not necessarily intention always going before

form. In that case s.53(1)(c) LPA 1925 was in question – and the court held that; on a transfer of an equitable estate from one party to another, there must be signed writing, otherwise there would be no valid transfer.

Much like Vandervell, and Pennington, there was clearly evinced an intention to transfer property – but the law stepped in and made the transfer ineffective. As such, it cannot be said that intention succeeds in all cases.

To go outside gifts and the defeat of formality, an area that is slowly seeing intention make a considerable difference is tracing in Equity into a debt – or so called backwards tracing.

Under the older law, as canvassed in Foskett v McKeown, it was impossible to generally trace into a debt. However, very recently the Privy Council has cast doubt on this in the Brazil case. In particular, there the Privy Council held that, where there was an intention, as part of a transaction on the whole, to use money to pay for a thing manifested in a debt – there could be tracing into that debt.

While it is true that this can also be explained by the change to emphasizing tracing value in Foskett (see Worthington on that point) – the Privy Council expressly based its reasoning on the intent of the parties – when taken with the whole transaction, to use the value to pay for the property. The result, then, much like the reading of Pennington, and Re Rose, based on intention, is that the court is evincing a greater focus on relevant party intention.

To conclude, it is clear that, often, the courts now rely on the intent of the parties to reach a result in a case. While sometimes the court will prefer formality, this change must be the preferable move – evidencing and reflecting the consensual result of parties’ views in the real world.

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LENT 2017

Essays

EU Law

EU LAW •

On 15 April 2016, the Council and the European Parliament adopted Regulation 5/2016/EU was based on Article 43(2) TFEU and put in place protective measures in relation to trade with countries outside the EU. In particular, Article 1 of the Regulation suspended, with immediate effect, all imports of pears into the EU. Article 3 of Regulation 5/2016 allowed the EU Commission to impose restrictions on the importation of apples into the EU in cases where a serious disturbance in the market had taken place.

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On 1 May 2016, the EU Commission adopted Implementing Decision 101/2016 on the basis of Article 3 of Regulation 5/2016. Decision 101/2016 was addressed to all the Member States and imposed quotas on the importation of apples into the EU with immediate effect. Decision 101/2016 provided that national competent authorities should administer the system of quotas.

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Green Anjou is a French importer of pears from Argentina. On 15 April 2016, a consignment of pears, which Green Anjou had ordered, was in transit from Argentina. When the consignment of pears arrived at the port of La Rochelle (France) on 20 April 2016, Green Anjou was unable to secure an import licence for the pears, because of the application of Article 1 Regulation 5/2016.

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Captain Kidd is the largest UK importer of apples from New Zealand. On 1 March 2016, Captain Kidd had entered into contracts with its customers to deliver monthly quantities of apples from New Zealand until 1 December 2016. However, as a result of the quotas on the importation of apples imposed by Commission Implementing Decision 101/2016 on 1 May 2016, Captain Kidd will now only be able to deliver half of the quantities of apples agreed with its customers and it is likely to incur contractual penalties.

Advise Green Anjou and Captain Kidd as to their legal position under EU law.

Joel Koh | Girton College GREEN ANJOU (GA)

GENERAL STANDING

GA should be advised to bring an action for annulment under Art 263 TFEU. It will be determined if GA has standing to raise this action, and he should be challenging the Regulation 5/2016. The time limit of 2 months has not passed, and the Regulation is a reviewable act with legal effects within the meaning of Art 288.

Since he is a non-privileged applicant, and it is a legislative act as it was adopted by the Council and the EP, the Lisbon test is of no avail to him: under the Lisbon test, he can only challenge non-legislative acts as part of ‘regulatory acts’. Thus, GA has to demonstrate direct and individual concern under the General Standing test.

GA will be directly concerned, as there is a causal link between the suspension of imports, and the effect suffered by him: there is probably no discretion involved (International Fruit). GA might be able to demonstrate individual concern under the strict Plaumann test, as he arguably belongs to a closed category of traders (PirakiPatraki) with goods in transit. However, in this case, if the restrictive line of case-law in Sofrimport applies, since the Regulation did not place any duty on the Council to take into account the position of traders affected by the import ban, even if he is individually concerned, it might not be sufficient.

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AN OUTRIGHT BAN IS NEITHER SUITABLE TO ACHIEVE THE AIM OF COMMON ORGANIZATION OF THE MARKET, NOR IS IT NECESSARY, AS IT IS AN EXTREMELY ONEROUS MEASURE

EU Law

PRELIMINARY REFERENCE & LEGAL BASIS If this is the case, he could raise a preliminary reference on validity under Art 267 TFEU before national courts, arguing that the measure is invalid, though this might seem like a UPA-type scenario where there is no implementing measure to challenging, potentially representing a gap in judicial protection. Nonetheless, if he can gain access to national courts, the grounds of review will be the wrong legal basis of Regulation 5/2016 as in Tobacco Advertising. It is unclear whether Art 43(2) empowers the Council to impose restrictions on all imports of pears.

Surely, this would fail the proportionality test in FEDESA, even if the Council and EP have wide legislative discretion, this seems to be manifestly disproportionate: an outright ban is neither suitable to achieve the aim of common organization of the market, nor is it necessary, as it is an extremely onerous measure, and less onerous measures could be employed (i.e licenses). GA might wish to bring a challenge on subsidiarity, but this is unlikely to work, as common market organization would necessitate Unionlevel action (Working Time). Finally, he might wish to argue on fundamental rights grounds that this is a disproportionate restriction on his right to provide services.

REMEDY GA could bring a claim for interim relief, as he meets the Zuckerfabrik conditions of a threat or serious urgency of irreversible loss, and there are serious doubts about the validity of the act. However here, the pears have already spoilt. Thus, a free-standing action for damages under Art 278 TFEU might be more appropriate, and he is likely to meet the Bergadem conditions. Though there may be problems with finding that the Regulation was intended to confer him with rights, the Council and EP’s acts of an illegal restriction have directly caused damage to him, so he should be able to claim for contractual losses suffered.

PER INCURIAM

LISBON TEST

LEGAL BASIS

The Decision is a regulatory act (Inuit), as it was adopted by a non-legislative procedure, and is generally applicable. Microban confirms that Decisions are generally applicable.

There might be an issue with direct concern: Microban confirms it is the same as the preLisbon case law, but here national authorities have some discretion as to how to administer the quotas. Nevertheless, on the balance of facts, he should be able to make out direct concern. Unfortunately, the quotas entail implementing measures, as Telefonica confirms that almost any national measure will be deemed to be an implementing measure.

Here, the legal basis for the child measure would be a failure to give reasons (Nold) for imposing the ban, and discrimination (Cordoniu) against apples, as it does not seem to be objectively justified. In light of the Commission’s failure to give reasons, this might be an ultra vires exercise of power, as it can only do so when there are ‘serious disturbances’. Lastly, another challenge to the parent measure could be an unlawful delegation of power to the Commission (Meroni), as the essential elements of what constitutes ‘serious disturbances’ should have been in the parent measure.

PLAUMANN TEST

REMEDIES

CK’s standing under the Plaumann test will be considered: he is directly concerned, but might not be individually concerned. CK does belong to a closed class of importers with pending contracts (Piraki-Patraki), but there is no duty on the Commission to take into account the position of affected importers as in Sofrimport. Whilst CK might want to argue that he would suffer extraordinary economic loss as he is the largest importer of apples as in Extramet, British Shoe Corporation confined Extramet to its facts, and anti-dumping situation.

If the cumulative restriction applies as in Sofrimport, he will have to seek an Art 267 preliminary reference in national courts, by challenging the national import quotas before the national court, who will be obliged to submit a reference to the CJEU (Fotofrost).

In the meantime, CK can apply for negative interim relief (Zuckerfabrik), as there is a serious threat of irreparable damage to CK, and the national court could suspend the national import quota is his regard. If he suffers actual contractual damages, he can raise an action for damages (Art 278) against the EU, in accordance with the Bergadem criteria.

CAPTAIN KID CK would be advised to bring an action for annulment under Art 263 TFEU to challenge the Implementing Decision and should be advised that he can also bring a concurrent Art 277 plea of illegality to challenge the parent Regulation, if he has standing for the child measure.

Since the time limit of 2 months has not passed and the Decision is a reviewable act, CK’s standing will be considered under the Lisbon Test in Art 263(4).

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LENT 2017

Essays

Commercial Law

COMMERCIAL LAW Leaf Ltd was a wholesale supplier of paper. Ezra was a buyer employed by Leaf Ltd; he was to obtain approval from Donald (Leaf Ltd’s managing director) before agreeing to buy any paper for more than £6,000. On 3 October, Ezra inspected a stock belonging to Anne, who was planning to cease trading as a wholesale seller of paper and cards. Ezra considered that the stock was utterly unique and highly likely to appeal to Leaf Ltd’s customers. He offered to buy 100 cartons of marbled paper for £6,000 and twenty cartons of birthday cards depicting pop singers of the 1990s for £3,000. Ezra told Anne that he could not say on whose behalf he was buying the goods. Anne asked whether Ezra was authorised to bind his employer to pay £9,000 on a single contract. Ezra said: ‘Indeed, my employer has faith in me’.

Donald was thrilled that Ezra had procured the marbled paper. However, Donald thought that the birthday cards would not sell. In a letter to Anne dated 5 October, with which he enclosed a cheque for £6,000, Donald wrote: ‘Unlike the marbled paper, the birthday cards would be an unwise purchase for Leaf Ltd. In any case, Ezra was not authorised to buy cards.’ Anne deposited the cheque into her company’s bank account, even though she had sold the marbled paper to Pixie on 10 October for £8,000. She telephoned Donald to inform him that she would no longer sell the marbled paper and that she would keep £3,000 of the money for the birthday cards. She asked how she should repay the difference of £3,000.

Advise Donald.

Sher Lin Wong | Queens’ College Donald (D) may want to know whether he is bound by the contract between Ezra (E) and Anne (A) for the sale of marbled paper and birthday card. In order for D to be bound, E, as an agent for Leaf ltd must have had some form of authority to enter into the contract.

According to Freeman v Lockyer, actual authority refers to the legal relationship between the principal and agent, creating a consensual agreement to which they alone are parties. E will have actual authority if her act has been authorized, either expressly or impliedly at the time of the contract. In this case, E was told to obtain approval from D before agreeing to buy any paper for more than £6000. According to Ireland v Livingstone, where ambiguous instructions are given, the instructing party has to bear the consequences. However, it seems pretty clear that E is only allowed to enter into contract up to £6000 and she has exceeded her authority by entering into a contract to purchase goods worth £9000.

D may nevertheless ratify the act done by E which was not authorized. According to Koenigsblatt, authorization is equivalent to antecedent authority so the act that is done

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takes effect as if it has been authorized at the time the contract was made. According to Firth v Staines, the party who purports to ratify the act must be one whom the agent purports to act on behalf at the time of the contract. In this case, although E did not disclose her principal, she clearly intended to act on behalf of Leaf Ltd, believing that the unique stock is likely to appeal to Leaf’s customers. According to James v Swann, the principal must be capable of ascertainment at the time of contract. There must be some form of identification of the principal in order to allow for a reasonable designation of the person to be bound by the contract. Should we accept this view, D may not ratify given that E mentioned he could not say on whose behalf he was buying the goods for and so there is no identification of the principal made

by E. however, in Hagedorn, the decision in Watson v Swann is criticized to be too narrow and a broader approach was adopted in Oilwell. Therefore, D may ratify E’s act.

One important rule to ratification is that there cannot be partial ratification (Smith v Henniken). D either has to ratify both the purchase of cards and marbled paper or none at all. Furthermore, there seems to be a bar to ratification here as recognized

by Bolton v Lambert. According to Bird v Brown, ratification cannot take place where it has the effect of divesting a third party of ownership of goods on whom title has been vested when delivery of the goods were made. In this case, before ratification, Anne (A) could have already sold the marbled paper to Pixie. In Bird v Brown, Dillon LJ and Nourse LJ distinguished the case on the basis that the act to be performed by the agent will not have legal effect without ratification.

Roch LJ, however prefers to see this rule as a general principle that ratification will not be effective to divest a third party of ownership of goods. Indeed, Roch LJ’s view seems to be the preferable view as ratification should not unfairly prejudice a third party who had no notice of the initial contract of sale. Therefore, D may not ratify the purchase of both the marbled paper and the card. A, however is likely to argue that D is bound to the purchase of the card on the basis of apparent authority. The requirements for apparent authority is set out in Rama Corp. they are: i) representation made by a principal to a third party ii) reliance on the representation iii) alteration of position in reliance on the representation. These conditions were confirmed by the CA in Freeman v Lockyer.

Commercial Law

The representation, in this case may arise from previous course of dealing (Summer v Solomon). However, there is no evidence on the facts of this case that E had previously dealt with A. The fact that she has to inform A he could not say on whose behalf he was buying the goods suggest that they have never contracted before. A representation based on written words (ex p Harrison) is also unlikely to succeed as there is no written evidence of representation made by D.

THE LAW STRUGGLES TO BALANCE BETWEEN PRINCIPLE & PREDICTABILITY AS WELL AS FLEXIBILITY AND FAIRNESS. A may argue that she relied on the representation of the implied conduct of D, notably by putting him in his position to purchase goods. As Lord Keith of Kinkel explained in Armagos, in normal circumstances, an agent will have general authority where the principal puts the agent, which to the outside world appears that the agent has authority to perform the act of the kind in question. In this case, D, by allowing E to look for papers from suppliers may have represented to third party that E has authority to purchase stock without any limitation.

However, one problem here may be that the representation does not seem to have come from D. According to Lord Toulson in ING (RE) UK, the agent’s authority must be able to be traced back to a representation or a chain of representation by the principal. Since E purports to authorize the act herself by saying, ‘indeed, my employer has faith in me’, the apparent authority argument may fail.

Nevertheless, the court has been prepared to depart from the orthodox view as seen in the case of First Energy. According to Lord Neuberger in Akai Holding, the decision in First Energy demonstrated how the law struggles to balance between principle and predictability as well as flexibility and fairness.

Although many cases have suggested that First Energy should be confined to its own facts, according to Brown, the decision is welcomed as it recognizes modern commercial practicalities. Furthermore, in Kelly v Fraser, although the Privy Council reiterated the orthodox principle, they tried to reconcile First Energy on the basis of a general authority by the bank manager to communicate approval. Therefore, it is likely that representation by E himself may suffice.

PER INCURIAM

In this case, A did ask whether E had authority to bind the employer and since E replied that he had without doubt, A must have had acted in reliance on E’s representation. As for reliance, according to Lord Diplock in Freeman, entering into contract is sufficient to prove reliance.

Since Leaf Ltd, through D will be bound by the purchase of the card and marbled paper, A has to deliver both the goods to Leaf Ltd. Since A has already sold the marbled paper, D is entitled to reject the entire goods including the card since there was a breach on part of A and this is not a severable contract. Hence, D can recover the £3000 that he had paid, assuming it is part payment (Dies) and bring an action for non-delivery (S.51 SGA) against A.

A, nevertheless has to establish that there was a causal link between the representation and her act. According to Lord Neuberger in Akai Holding, and confirmed by the English case of LNOC, reliance is presumed in the absence of dishonesty or irrationality.

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