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P ER I NCURIAM

CAMBRIDGE UNIVERSITY LAW SOCIETY

MICHAELMAS 2019

The road ahead: legal hurdles in the "One Belt One Road" Initiative First Class Tripos Essays


TABLE OF CONTENTS 04|

PRESIDENT'S WELCOME Erica San

05|

EDITOR'S FOREWORD Aaron Gan

ARTICLES

06| 10|

THE ROAD AHEAD: LEGAL HURDLES IN THE "ONE BELT ONE ROAD INITIATIVE" Rachelle Lam

DECOLONISATION: WHAT IT IS AND IS NOT Tang Jing Min, Timothy Lee and Lena Riecke

ESSAYS

12|

CIVIL LAW I

18|

CRIMINAL LAW

22|

EUROPEAN UNION LAW

26|

LAW OF CONTRACT

Trisha Shah

Michael Nguyen-Kim

Kelly Macpherson

Emily Ho

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14|

CONSTITUTIONAL LAW

20|

EQUITY

24|

LAND LAW

29|

LAW OF TORT

Oscar Choo

Annie Mackley

Philip Marriott

Rachel Hughes

MICHAELMAS 2019


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

Keep in touch!

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.

Facebook: facebook.com/CULSperincuriam Contact: per-inc@culs.org.uk

Like our Facebook page for the latest legal developments and updates on Per Incuriam.

PRESIDENT'S WELCOME Dear Reader,

Welcome to Cambridge! I would like to begin with a massive thank you to our incoming Per Incuriam Editorial Team – Aaron, Niamh, Alec and Christine – who have put together an amazing edition of Per Incuriam for our readers. In this edition, we have compiled an impressive selection of interesting articles and high-scoring Tripos essays that is sure to be a useful read! Per Incuriam has grown from strength to strength over the years, and has become a go-to publication in Cambridge for excellent legal essays and enriching articles. We are also proud to have relaunched our online platform, where students can access updates on current legal issues and topics.

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04

Erica San | President

To the new freshers, I would like to extend a warm welcome to you on behalf of the Cambridge University Law Society (CULS). CULS is one of the oldest (founded 1901) and most active societies in Cambridge, running a vast array of social and career events, speakers events, Pro Bono projects, mooting, the Law Ball, the Lent Gala and many more. There is something in it for everyone. We would also like to thank you for your support of Per Incuriam. Moving ahead, we would like to continue growing the publication for our readers for many years to come. I hope you have an incredible Michaelmas Term! Best wishes, Erica San President 2019-2020

MICHAELMAS 2019


EDITOR'S FOREWORD

Dear Reader, A warm welcome back to all returning students, and to the first-years, welcome to Cambridge! By way of introduction, my name is Aaron, and along with Alec, Christine and Niamh, I am responsible for Per Incuriam. We are delighted to bring you the Michaelmas issue of Per Incuriam, the official publication of Cambridge University Law Society (CULS). As one of the largest student societies in the country, CULS has much to offer, and I encourage you to take the opportunity to try something new or get involved in activities that interest you. Speaking for Per Incuriam, we welcome articles throughout the year on any legal topic. Whether you are interested in academic or commercial issues, writing for us is a great opportunity for you to have your work published. We not only accept but also encourage submissions from first-years. Simply get in touch with your ideas or articles at per-inc@culs.org.uk.

Aaron Gan Editor-in-Chief

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There are two articles in this issue, both of which are written by current students. In the first, Rachelle Lam discusses three legal issues arising out of the Belt and Road Initiative, a major development in the global economy. I would recommend this article to any aspiring lawyer who is interested in the commercial world. In the second, Tan Jing Min, Timothy Lee and Lena Riecke demystify what it means to ‘decolonise the law’, and shed light on the recommendations of the Decolonise Law Working Group. The article provides interesting examples from a few different areas of law, and is a thought-provoking read. Per Incuriam continues to bring you high-quality essays from the Law Tripos. For first-year law students, we have published an essay on each of the four subjects studied in Part IA. These essays were written to a very high standard indeed. Notably, Oscar Choo critiques an argument propounded in support of Brexit, examining the relationship between

Niamh Davis Deputy Editor 05

Alec Thompson Deputy Editor

between EU law and the sovereignty of the UK Parliament. In Part IB, Emily Ho demonstrates a detailed application of the rules on offer and acceptance to a rather technical problem question; while Philip Marriott discusses the law of land registration and the Law Commission’s recent proposals. In Part II, Annie Mackley has written a discursive problem answer on the creation of express trusts; and Kelley Macpherson reflects upon the CJEU’s attempt to reconcile fundamental human rights with the primacy of EU law. We hope that you find these essays helpful in your learning.    On behalf of the editorial team, I wish you the best for the year ahead. Thank you for your kind support, and we hope that you enjoy the issue!  Yours, Aaron Gan Editor-in-Chief

Christine Carter Deputy Editor

MICHAELMAS 2019


THE ROAD AHEAD: LEGAL HURDLES IN THE "ONE BELT ONE ROAD" INITIATIVE RACHELLE LAM China’s “One Belt One Road” Initiative (‘OBORI’)

is

a

project

proposed

potentially arise.

venue. Its arbitrators come from more

by

diverse cultural backgrounds,[4] and so

Chinese President Xi Jinping in 2013,

International arbitration and dispute

their

aiming to promote international trade,

resolution

industry-specific customs will prove vital

infrastructure

financial

Disputing parties will be looking to

for the efficient settlement of disputes.

integration, and policy co-ordination

conduct arbitration due to its flexible,

Therefore,

across Asia and beyond. This will involve

cost-efficient, and confidential nature, as

competitive as internationally acclaimed

the

Road

well as the ability to exercise control

arbitration venues, both Hong Kong and

Modern

development,

development

Economic

the

order

laws

to

and

remain

Singapore must strive to maintain a

The diversity of legal systems among the

judiciary which is both impartial and

maritime trade routes linking China with

member nations of the OBORI means

independent,

Europe via Central Asia and the Middle

that it is crucial for parties to choose a

opportunities for foreign lawyers and

East, spanning 65 countries and two-

governing law that is transparent and

arbitrators to practise locally.[5]

thirds of the world’s population. The

consistently applied.

main

Road:

economic

the

local

over the appointment of arbitrators.[2]

Silk

and

Silk

in

in

and

Maritime

Belt

of

expertise

overland

objectives

of

the

and

provide

genuine

The Chinese government is well aware

initiative are to create new markets for

Hong Kong is a strong contender as an

of the need to foster a legal system

Chinese goods, secure the country’s

international arbitration forum, due to

which facilitates its emergence as one of

supply chain for natural resources, and

its unique position as a hub for legal

the world’s leading economies. China

stimulate

economic

the

services in Asia. It has a strong common

has shown itself to be receptive to

region.[1]

The

Asian

law tradition, international law firms

reforms which would result in the wider

will

with a dominant presence, and bilingual

application of common law principles

1,700

local lawyers,[3] under the “one country,

and procedures to dispute resolution.[6]

infrastructure projects, ranging from a

two

The

For example, members of the Supreme

network of gas and oil pipelines across

incremental

the

People’s Court and the UK Supreme

Central Asia, to a rail route connecting

common law and the fundamental

Court have met regularly to discuss

Zhejiang

principle of freedom of contract provide

potential legislative changes relating to

a

dispute

Infrastructure provide

growth

$100

billion

Investment

financing

province

in

Bank

services

with

to

London

via

Moscow. With over $900 billion worth of

systems”

framework.

development

predictable

yet

flexible

projects, the global scale of the initiative

framework

will inevitably entail a multitude of

commercial transactions.

cross-border

transactions

and

which

is

of

imperative

legal for

legal

resolution.

Furthermore,

in

numerous Chinese cities, pilot projects have been implemented to promote the transition

of

more

criminal

procedures

three significant legal issues that may

Centre is a rival dispute resolution

common law procedures, based on the

06

be

and

The Singapore International Arbitration

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to

civilian

disputes. This article aims to explore

similar

to

MICHAELMAS 2019


notion that the common law is more

compliance.[11] Since not all OBORI

enforced, and encouraging reciprocal

facilitative of trade and commerce, and

countries are members of the WTO (e.g.

enforcement of judgments among

better advances the rule of law.[7]

Iran, Belarus, Serbia, Turkmenistan, and

different jurisdictions along the Belt

Azerbaijan), it may be advisable for the

and Road.[16]

Although it may be advisable for China to

OBORI states to refer to the WTO dispute

develop its own dispute resolution

settlement structure as a model in order

Furthermore, it is interesting to note

framework for OBORI-related disputes in

to establish dispute resolution systems of

that Member States within the

the future, it is submitted that far-

their own.

European Union are subject to the

reaching legal reforms are still needed

Brussels I Regulation Recast (EU

before the Chinese legal system can

Enforcement of arbitral awards and

1215/2012).[17] Its purpose is to regulate

attract a certain level of confidence from

judgments across jurisdictions

civil jurisdiction within the EU, and in

foreign investors. In the meantime, Hong

Some developing OBORI countries may

particular to harmonise jurisdictional

Kong and Singapore can act as well-

not have a sufficiently robust legal,

rules and permit judgments of one

established arbitration fora for parties

regulatory or constitutional infrastructure,

Member State to be recognised and

embroiled in OBORI-related disputes.

or may be marred by political instability.

enforced in other Member States. It

In order to guarantee effective remedial

directly applies in all the EU Member

However, it is important to note that

relief for contracting parties, it is

States (except Denmark).

China and OBORI countries are no

necessary to ensure that court judgments

strangers to regional dispute settlement

and arbitral awards can be enforced with

The aforementioned agreements

mechanisms. China, Malaysia, Singapore,

relative ease across different jurisdictions.

provide good examples for OBORI

Russia, Pakistan and Sri Lanka (amongst

states to follow. It would be hugely

others) are all OBORI countries who are

Currently, litigants from other common

beneficial for the OBORI countries to

parties to the New York Convention.

law jurisdictions can request Hong Kong

conclude mutual enforcement treaties

Under the Convention, courts of

courts to honour judgments made by

in order to ensure rapid and

contracting states must give effect to

foreign courts, and vice versa.[12]

straightforward enforcement of arbitral

private agreements to arbitrate, and

Furthermore, in recognition of the

awards and judgments across borders.

an arbitration award issued in any

increasing business ties between Hong

This would create a more reliable legal

contracting state can be recognised and

Kong and China, in 2018 and 2019 the

infrastructure that supports

enforced in any other contracting state,

Hong Kong Department of Justice

international investments,[18] and

subject to certain defences.[8] In 2015, the

reached two reciprocal deals with

would enhance judicial and economic

Supreme People’s Court issued an

mainland China relating to the mutual

coordination.

opinion stating that it would promote the

enforcement of arbitral awards and

use of the New York Convention in the

judgments respectively. In regards to the

Rule of law

national justice system to recognise

former, the Hong Kong courts agreed to

Finally, a strong rule of law is essential

foreign arbitration awards by extending

enforce awards made pursuant to the

for the successful development of the

the principle of reciprocity.[9]

Arbitration Law of the People’s Republic

OBORI, as it provides market agents

of China, and the People’s Courts of the

with important and legitimate

Furthermore, an agreement was signed

Mainland agreed to enforce the awards

expectations that their investments

between China and the Association of

made pursuant to the Arbitration

would be protected in accordance with

Southeast Asian Nations (‘ASEAN’) in

Ordinance of Hong Kong.[13] In relation to

the law. In 2017-2018, China scored 0.50

2002, advocating alternative dispute

judgment enforcement, there is now a

(out of 1.00) in the World Justice

resolution (‘ADR’) in ASEAN trade

comprehensive mechanism for reciprocal

Project’s Rule of Law Index.[19] Among

disputes.[10] However, no special tribunal

recognition and enforcement of

the 126 jurisdictions studied by the

was formed to implement the agreement,

judgments in “civil and commercial”

World Justice Project in its 2019 report,

and there is no penalty for non-

matters between Hong Kong and the

China ranked 82nd.[20]

acceptance of ADR outcomes. In contrast,

Mainland.[14] However, the new

the World Trade Organisation (‘WTO’)

mechanism excludes matters in relation

An inherent challenge in the OBORI

dispute resolution mechanism provides a

to bankruptcy, estate, maritime and

stems from the different normative

more comprehensive paradigm, as it is

certain intellectual property rights. It is

approaches to the rule of law, which is

equipped with an appeal mechanism to

also notable that in 2018, China and

the result of the array of philosophical,

minimise erroneous judgments and is

Singapore signed a non-binding

cultural and political backgrounds of

empowered with a designated

Memorandum of Guidance on the

different countries. For example,

enforcement system. Under the WTO

recognition and enforcement of foreign

although elements of the rule of law

regime, the Dispute Settlement Body has

money judgments.[15] In a similar vein,

(such as access to justice, supremacy of

authority to establish dispute settlement

the Supreme People’s Court has

the law, and equality) are present in the

panels, monitor the implementation of

promulgated an opinion suggesting that

Chinese legal system, Chinese law

arbitral rulings, and authorise suspension

all foreign arbitral awards relating to the

generally places greater emphasis on

of concessions in the event of non-

OBORI should be recognised and

collective interests than the civil rights

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MICHAELMAS 2019


of the individual.[21]

systematic mistreatment, similar to the exploitation of migrant workers in Qatar in preparation for the World Cup.

An example where the rule of law may come into play is the

[24] The Chinese Ministry of Justice is amenable to improving

situation in which an investigation is conducted against a

the service standards and professional ethics in the foreign-

company for violation of competition rules. Although

related legal services field, for example by encouraging

authorities must be given sufficient scope to investigate such

business alliances between Chinese law firms and foreign

companies and grave penalties may be imposed on the

law firms,[25] which may help bring to the fore the

wrongdoer if necessary, it is also important to ensure that

protection of workers’ rights in infrastructural projects.

authorities do not abuse their power or take bribes. Here is

Additionally, OBORI states may also consider stipulating in

where there should be requirements on participating states

bilateral agreements that contracting parties should comply

to uphold a minimal level of the rule of law.[22] It has been

with their treaty obligations under the United Nations

suggested that China may consider promoting a

Charter and the International Covenant on Economic, Social

“transnational” rule of law, the central aim of which would be

and Cultural Rights.

to prevent arbitrary state power and to ensure compliance with bilateral agreements in all OBORI countries.[23]

Conclusion

The OBORI is still in its infancy and it is too early to pass Putting aside debates concerning differing conceptions of

judgment on its success or failure. Regardless, the surge in

the rule of law, all OBORI states should be expected to

complex cross-border transactions will give rise to a variety of

comply with their international obligations. In the area of

legal challenges. The development of comprehensive dispute

human rights, millions of workers will be employed to

settlement and cross-border judgment enforcement

construct high-value infrastructure as part of the OBORI.

mechanisms, which uphold the rule of law are crucial to “the

However, it is conceivable that workers may be subject to

world’s biggest project since putting man on the moon”.[26]

[1] SCMP Reporter, Explained: Belt and Road Initiative, South China Morning Post,

[16] Yu, Tommi. China’s ‘One Belt, One Road Initiative’: What’s in It for Law Firms

21 February 2019, https://www.scmp.com/week-

and Lawyers, 6 June 2017, https://academic.oup.com/cjcl/article/5/1/1/3861865.

asia/explained/article/2187162/explained-belt-and-road-initiative.

[17] Access to European Union Law, Regulation (EU) No 1215/2012 of the European

[2] Lai, Karry. Legal considerations for investors along the One Belt One Road, Asia

Parliament and of the Council of 12 December 2012 on jurisdiction and the

Law, 28 July 2017, https://www.asialaw.com/articles/legal-considerations-for-

recognition and enforcement of judgments in civil and commercial matters,

investors-along-the-one-belt-one-road/ARUPWSPS.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32012R1215.

[3] English and Chinese.

[18] Hague Conference on Private International Law, Overview of the Judgments

[4] SIAC Panel, Singapore International Arbitration Centre, 2017,

Project, https://www.hcch.net/en/projects/legislative-

http://www.siac.org.sg/our-arbitrators/siac-panel.

projects/judgments/overview-judgments.

[5] Benton, Gary. The Whispered Conversation: Hong Kong v Singapore, Kluwer

[19] World Justice Project, 2019, https://worldjusticeproject.org/our-work/wjp-rule-

Arbitration Blog, 2 January 2019,

law-index.

http://arbitrationblog.kluwerarbitration.com/2019/01/02/whispered-conversation-

[20] World Justice Project, 2019, https://worldjusticeproject.org/our-work/wjp-rule-

hong-kong-v-singapore/.

law-index.

[6] Rider, Barry. “The Personal Touch!” Company Lawyer, vol. 38, 2017.

[21] Li, Tao; Jiang, Zuoli. “Does China follow the West? A Perspective of State-

[7] Ibid.

Citizen Interaction in Foreign Trade Governance”, Baku State University Law

[8] New York Arbitration Convention, 2019, http://www.newyorkconvention.org/.

Review, vol. 2, no. 2, 2015, 177 at 192-195.

[9] Supreme People’s Court Monitor, Supreme People’s Court and “One Belt One

[22] Andersen, Henrik. “China’s “One Belt One Road” – Transnational and Multilevel

Road”, 14 July 2015,

Rule of Law Challenges from a European Perspective”, 17 September 2016.

https://supremepeoplescourtmonitor.com/2015/07/14/supreme-peoples-court-

[23] Arase, David. “China’s Two Silk Roads Initiative – What It Means for Southeast

and-one-belt-one-road/.

Asia”, Southeast Asian Affairs, 2015, 25 at 34.

[10] Lin, Wangwei; Xing, Lihong; Ye, Zhen; Long, Long. “Legal challenges in China’s

[24] UN General Assembly, Human Rights Council, Twenty-sixth session, Agenda

“One Belt and One Road” initiative”, Company Lawyer, vol. 40, 2019.

item 3, Promotion and protection of all human rights, civil, political, economic,

[11] Dispute Settlement Body, World Trade Organisation,

social and cultural rights, including the right to development. Report of the

https://www.wto.org/english/tratop_e/dispu_e/dispu_body_e.htm.

Special Rapporteur on the human rights of migrants, François Crépeau, Qatar,

[12] Enforcement of foreign judgments in civil and commercial matters in the

A/HRC/26/35/Add.1 of 23 April 2014.

Hong Kong Special Administrative Region, Department of Justice, 8 January

[25] Yu, Tommi. “China’s ‘One Belt, One Road Initiative’: What’s in it for Law Firms

2018,  https://www.doj.gov.hk/eng/public/foreign.html.

and Lawyers?” The Chinese Journal of Comparative Law, vol. 5, no. 1, 2017. MOJ and

[13] Arrangement Concerning Mutual Enforcement of Arbitral Awards Between

Others Call for Strengthening Foreign-Related Legal Services Industry, Hong Kong

the Mainland and the Hong Kong Special Administrative Region,

Lawyer, March 2017,  http://www.hk-lawyer.org/content/moj-and-others-call-

https://www.doj.gov.hk/eng/topical/pdf/mainlandmutual2e.pdf; Arrangement

strengthening-foreign-related-legal-services-industry.

Concerning Reciprocal Recognition and Enforcement of Arbitral Awards Between

[26] Woolston, Alan. Overcoming the legal challenges to “One Belt, One Road”,

the Hong Kong Special Administrative Region and the Macao Special

Global Railway Review, 15 January 2018,

Administrative Region, https://www.doj.gov.hk/eng/mainland/pdf/macaoe.pdf.

https://www.globalrailwayreview.com/article/65484/legal-challenges-one-belt-

[14] Arrangement on Reciprocal Recognition and Enforcement of Judgments in

one-road/.

Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region, https://www.doj.gov.hk/eng/public/pdf/2019/Doc6_481354e.pdf. [15] Singapore and Chinese judiciaries sign Memorandum of Guidance on

recognition and enforcement of money judgments in commercial cases, Allen & Gledhill, 30 October 2018, https://www.allenandgledhill.com/sg/publication/articles/7427/and-chinesejudiciaries-sign-memorandum-of-guidance-on-recognition-and-enforcement-ofmoney-judgments-in-commercial-cases.

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MICHAELMAS 2019


DECOLONISATION: WHAT IT IS AND IS NOT TAN JING MIN, TIMOTHY LEE AND LENA RIECKE ON BEHALF OF DECOLONISE LAW WORKING GROUP Decolonisation became a hot-button topic in Cambridge in 2017, when an open letter to the English Faculty was circulated, criticising its reading list for being too white and too male. In some circles it is a rallying cry; in others taboo. This article seeks to deconstruct the myth that surrounds decolonisation and scrutinise it as an academic term.

What is decolonisation?

Colonialism has also shaped the political, economic and legal balance of power in our world order. Perhaps the British

Students of International Law will be familiar with the

Empire’s most celebrated export, its legal order, has taken root

United Nations General Assembly Resolution 1514, which

in former colonies all over the world. Its legacy plays a

enshrined “the right [of colonial peoples] to self-

significant, but as of yet unexamined, role in our understanding

determination [… to] freely determine their economic, social

of the law. Today we look at precedents in other common law

and cultural development”.[1] Nonetheless, decolonisation

systems to support arguments in legal debates. For example, in

itself is a political process, namely the dismantlement of

Chan Kam Shing,[4] the Hong Kong Court of Final Appeal

colonial empires that flourished particularly in the late 19th

refused to adopt the UK Supreme Court’s decision in Jogee,[5]

century.[2]

which decided that the law had taken a wrong turn in lowering the mens rea requirement of parasitic criminal responsibility to

Decolonisation in contemporary international law is still

foresight. We study judgments from the Judicial Committee of

limited to this understanding. A recent example would be

the Privy Council, a body that presides over cases from present

the Chagos Advisory Opinion delivered earlier this year.[3]

and former British colonies.

In that case, the ICJ ruled that the process of decolonisation of Mauritius was not lawfully completed. The

Put simply, colonial legacy already features prominently in our

United Kingdom, a former colonial power, had detached

study of Law in its present shape and form. Decolonisation

the Chagos Archipelago at the time of Mauritius’

therefore means recognising that legal development is hardly

independence to serve as an American military base. This

ever apolitical, and identifying where and how domestic and

violated the territorial integrity of a former colony, a

international law has developed to reproduce power

principle based on their right to self-determination. The

asymmetries that hark back to the colonial era. Decolonial

ICJ’s landmark ruling was an important milestone in

perspectives also offer a critical lens through which we can look

furthering the legal footing of decolonisation beyond its

at the law. Such a decolonial perspective may not only apply to

original meaning.

international law, but also to less obvious subjects, including

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MICHAELMAS 2019


private law and criminal law.

colonisation. As Sanders puts it:

Group is pushing for a greater focus on decolonising law, and has three main

A couple of examples of how a

"We have no account of why the

objectives. The first objective is to

decolonial lens may be applied are

‘buggery’ law was retained (in

decolonize the law itself – the content, its

apposite. We might first consider land

rewritten form). It was not rethought.

sources, and how we are taught this

law in South Africa. Within this nation,

Inertia meant that it would continue

subject from a Eurocentric perspective.

black populations have historically

in the first systematic codification of

The second objective is to enhance the

been dispossessed by the apartheid and post-apartheid regime, particularly in terms of land ownership. That regime, which has monopolised the political and economic power in the white minority population, was itself the product of colonialism in South Africa. Land redistribution is therefore a key aspect of decolonisation in South Africa. One legal difficulty, it would seem, is Section 25(1) of the South African Constitution, which stipulates that “‘[n]o one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” An important legal question that arises is thus whether land redistribution can be properly effected within the existing constitutional framework. Examining this issue, Heinz Klug believes that it can, and advocates a ‘constitutionalist’ approach. He does so by giving a robust interpretation to Section 25(8), which stipulates that “[n]o provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past discrimination […]”.[6] Such scholarship is important in examining the interplay of law and decolonisation, as well as

criminal law to be enacted in the British Empire. The spread of 377 to half the world was simply the copying of the new code. The intellectual incoherence of this history, as far as the issue of same-sex activity is concerned, is amazing." [8]

It is thus clear that to decolonise the law is, in part, to decolonise our understanding of the law’s origins and underlying values, in order to better position ourselves to critique it. But how is Decolonise Law useful?

We repeatedly encounter questions such as the following: why bother, if decolonised law is unnecessary for a qualifying law degree? How is it relevant to the Tripos? How does it touch on my study of English legal doctrines? In these ways and others, people seem concerned about the usefulness of decolonising the law. To this, we first note that if a student simply wishes to memorise the relevant English cases for examination purposes, with little critical analysis of the law, they might well succeed in avoiding decolonisation entirely. But for students

learning environment within the Law Faculty. The working group believes in the importance of an intellectual environment where critical perspectives are encouraged, and in the importance of a Faculty that is a supportive space for academic activities going beyond, or challenging, the traditional curriculum. In order to facilitate this, the working group will be initiating reading groups and speaker events to start a dialogue about decolonial perspectives. The third objective is to increase diversity in academia — this includes institutional aspects of the Faculty and the University. Postcolonial scholarship cannot be conducted, supervised and taught without scholars with expertise in the area. Therefore, it is hoped that the Faculty will be able to gradually take on more academic staff who can contribute to postcolonial discourse and initiatives. This article is adapted, in part, from an article by the Decolonise Law Working Group in Decolonise! Vol. 1: 2019.

[1] UN General Assembly, Declaration on

the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, A/RES/1514(XV). [2] http://www.essential-

humanities.net/history-

who wish to think and write critically

supplementary/european-colonialism/.

the other.

about the law, submit essays or

[3] Legal Consequences of the

contribute to student journals, advance

Separation of the Chagos Archipelago

We can also consider the criminal law

arguments of principle and policy in

understanding how each can support

in other former British colonies. Historical analysis of provisions, such as the laws on homosexual acts, can prove revealing. In the adoption of the 1860 Indian Penal Code, Douglas Sanders notes that little thought was given to the adoption of Section 377, which criminalised sexual acts between homosexuals.[7] That provision was in turn copied or adapted in about 40 British colonies, most of which remain in force today, for reasons that might

moots, or adopt a critical approach to their dissertation, the issue of decolonisation is worth keeping in mind. And perhaps more importantly, where the

PER INCURIAM

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Opinion). [4] Hksar v Chan Kam Shing [2016]

HKCFA 87. [5] R v Jogee (Appellant) [2016] UKSC 8. [6] H. Klug, “Decolonisation,

fundamental interests and rights of

compensation and constitutionalism:

people such as the Chagossians are at

land, wealth and the sustainability of

stake, we would be remiss to pretend we can study the law in the abstract, without regard to the effect of the law’s operation on those within its power.

constitutionalism in post-apartheid South Africa” (2018) 34(3) South African Journal on Human Rights, 469. [7] D. Sanders, “377 and the Unnatural

Afterlife of British Colonialism in Asia” (2009) 4(1) Asian Journal of Comparative

How should we decolonise the law?

Law. [8] Ibid.

have little to do with the native cultural norms that prevailed prior to

from Mauritius in 1965 (Advisory

Presently, the Decolonise Law Working

MICHAELMAS 2019


*Law Tripos 2019, Civil Law I, Question 6.

CIVIL LAW I "How were praedial servitudes created? How was interference with a praedial servitude remedied?"* TRISHA SHAH ius non tollendi.

This essay will go through (1) what

ownership of the land, as Paul says, and

servitudes were, (2) what praedial

they were perpetual, unless terminated,

servitudes were, (3) how they were

since they ran with the land and not

Examples of rustic servitudes were (1)

created, and (4) how interference with

with the owner. They existed doubly in

iter – right to walk or go on foot over

them was remedied.

rem, since they benefitted both land

another’s property, (2) actus – right to

and owner.

drive a beast of burden on another’s

SERVITUDES

property, (3) via – right to go on foot or

Servitudes are difficult to define. Schulz

They allowed the dominus of the land to

attempts to expound on them to involve

drive a beast of burden, and (4) aquae

have greater enjoyment over his

a burden imposed on the use of a thing,

property in two ways: (1) for urban

ductus – right to channel water over

either land or property, by a private legal

servitudes, the dominus increased

act. Marcian’s explanation goes further

enjoyment over his own land by

to hold that they either attached to land

revoking the rights of his neighbour,

or property.

thus acting negatively, unless the neighbour enforced the equal and

By the time of Justinian, it was accepted

opposite servitude, or (2) for rustic

that if they attached to the land, they

servitudes, they increased enjoyment of

were praedial servitudes, and if they

the land by giving the dominus a

attached to the person, they were

positive right in another land. Urban

personal servitudes.

servitudes were thus tentatively more cumbersome than praedial.

PRAEDIAL SERVITUDES

another’s property. They created ius in re aliena, lesser property rights than ownership that were legally protected by the possessory interdicts. They allowed maximum use of land and prevented economic stagnation of land that did not have access to water, for example, since they allowed the land to channel water from another’s land. This helped facilitate neighbourly relations, as Jolowicz noted, and allowed complex relationships to be

This essay will focus solely on praedial

Examples of urban servitudes were

servitudes. These attached to the land,

(1) ius tollendi – right to build higher, (2)

and also benefitted the land. They were

ius non tollendi – right to not build

either urban or rustic praedial servitudes.

HOW WERE PRAEDIAL SERVITUDES

higher and enjoy more light, (3) right to

Urban praedial servitudes tentatively

a view, (4) oneris ferendi – right to have

CREATED?

regarded buildings, whereas rustic

the wall supported, to name a few. For

praedial servitudes concerned land. They existed simply because of the virtue of

PER INCURIAM

12

urban servitudes, they were equal and opposite servitudes, like ius tollendi and

formed.

There were two means of creating them: (1) express creation, and (2) effluxion of time. Before a servitude could be created by either express creation or

MICHAELMAS 2019


effluxion, it had to adhere to three rules: (1) it had to be economically beneficial to the

"They created ius in re aliena, lesser property rights than

land (Pomponius), (2) it had to be exercised

ownership that were legally protected by the possessory

reasonably (Celsus), and (3) it could not

interdicts."

impose an active duty on the dominus, as this could empty dominium of its absolute right. Oneris ferendi was the only exception. 1. Express creation

would run with the land and allow Flavius use of it. 2. Effluxion of time

There were six means of creating servitudes expressly. It was important that the existence of servitudes was made clear since they burdened the land of the servient tenement by the dominant tenement, and

This allowed creation of a servitude by continued use of the servitude nec vi, nec clam, nec precarium, for a certain

continuous amount of time. It could be

could make sale more difficult.

by (1) usucapio, (2) longi temporis

The choice of creation depended on the

praescriptio.

praescriptio, or (3) longissimi temporis

type of servitude. Rustic praedial servitudes were regarded as res mancipi in early law,

Usucapio was used to create rustic

and could thus only be transferred by the

praedial servitudes when they were

two formal methods of ownership: (1)

considered to be corporeal as they could

mancipatio, and (2) cessio in iure. The

be symbolised by the pavement.

former was cumbersome since it involved a

However, the lex Scribonia eventually

if it existed and brought the actio

formal procedure in the presence of five

prevented this by recognising officially

negatoria to deny the existence of it.

witnesses, each with commercium,

the belief that had arisen that servitudes

Anton could remedy it on two levels:

including transfer of ownership by grasping

were incorporeal and could not be

(1) actio confessoria, or (2) possessory

a bit of land and uttering of formal words

possessed.

interdicts.

also cumbersome, since it required a

Longi temporis praescriptio allowed

The actio negatoria, if exacted,

praetor’s presence.

continued use of a servitude for a “right”

amounted to a vindicatio that would

amount of time to ripen into the legal

restore the right back to Bruno. Here,

The other four means were the only means

protection of it. This was done on the

Anton could bring the actio confessoria

of creating urban servitudes, which were not

fiction that express means had been

to show that he had a right to walk or

considered res mancipi, but could also be

undertaken to create the servitude, and

drive a beast of burden over Bruno’s

used to create rustic servitudes. They

was merely an evidential presumption.

property. If the servitude was created by

and tapping bronze scales. The latter was

formal means, it would be easy to prove.

included adiuctio, whereby Aulus, the owner of a land, for example, would deduct

Longissimi temporis praescriptio was

If it could not be proven, Anton could

the servitude iter from the land when he

allowed by a rescript of Emperor

circumvent the burden of proving

sold it to Balbus, and this would allow the

Constantine to allow the right to a

existence by relying on possessory

servitude by use for forty years, even

interdicts.

continued right of walking over Aulus’ land by Flavius, the owner of the adjacent

without good faith. Justinian adopted this and made it ten years for servitudes if the

Here, if he could tell that Bruno was

owner of the servient tenement was in

about to bring his action, he could seek

the same province, and twenty years if he

from the praetor the uti possidetis in a

Flavius. Thirdly, there was quasi traditio plus

was in a different civitas, since it gave

formula to retain possession of the

patientia, whereby the fiction of physical

enough time to deny the servitude. There

servitude. This essentially amounted to a

had to be good faith at the beginning, so

restraining order in the modern times, or

Aulus could not wield a spear to force

an injunction, and prevented Bruno

Balbus to give him the iter, or form the

from bringing what amounted to an

iter by stealth, by using the path at night.

eviction in contemporary times to

This was no longer evidential.

Anton’s right.

and became the prime means of creation. It

INTERFERENCE WITH PRAEDIAL

Alternatively, if Bruno had already

involved making a stipulation on the

SERVITUDES

evicted from Anton his right, Anton

existence of the servitude and could attach

Suppose Anton had an aquae ductus

could seek an unde vi, for recovering

to the contract of sale so the servitude

over Bruno’s land, but Bruno was unsure

property. Second, there was creation of the servitude by will, whereby Aulus would leave the land to Balbus but give the servitude to

delivery of the ius tollendi servitude was created and this gave Flavius the right to use it without interference. It originated in Rome, but fell away due to the convenience of the last means of creation – pact and stipulation. This originated in the provinces

PER INCURIAM

13

possession of the servitude.

MICHAELMAS 2019


*Law Tripos 2019, Constitutional Law, Question 7.

CONSTITUTIONAL LAW "The following paraphrases a view that was advanced by some of those who argued, before and after the referendum on the UK’s membership of the European Union, in favour of Brexit: “It has always been impossible for the UK simultaneously to be a member of the EU and to have a sovereign Parliament. Leaving the EU will ensure that parliamentary sovereignty is restored.” Critically evaluate that argument."*

OSCAR CHOO This essay will argue that Wade’s

membership).

continuing view of sovereignty – that it is

underpinning this rule were to disintegrate, which was what Wade

“impossible” for the UK to be a member

First, Wade’s continuing view of

surmised happened in Factortame.

of the EU and have a sovereign

sovereignty holds that absolute and

There, the disapplication of the

Parliament – is problematic. This is

contingent entrenchment are beyond

Merchant Shipping Act for its

because (i) Wade’s rationalisation of

Parliament’s legislative reach. According

incompatibility with EU law (and thus,

Factortame is problematic and (ii) the

to Wade, the basis of Parliament’s

the ECA which gives it effect) signified a

theory lacks contemporary

authority rests upon a “political fact” or

shift in the courts’ allegiance away from

appropriateness. Although, as Elliott

what Hart refers to as “the rule of

enactments of Parliament to EU law. To

aptly points out, the Miller majority’s

recognition”. Although Parliament is

Wade’s mind, PS had not merely been

view implicitly offered support for

sovereign in the sense of being able to

suspended while the ECA was in effect;

Wade’s view, I argue that this is

make and unmake law, it does not

rather, it had been extinguished (at least

incorrect. Leaving the EU will not “ensure

follow that Parliament can change the

until another such revolution occurred,

that parliamentary sovereignty (PS) is

rule of recognition because the rule is

eg. Brexit).

restored”; instead, PS should be seen as

not a law. Such a change is beyond

a principle of the common law and will

Parliament’s legislative reach, and could

However, it is submitted that Wade’s

persist (even with or without EU

only occur if the political agreement

rationalisation of Factortame is

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14

MICHAELMAS 2019


problematic. First, as Bamforth rightly observes, the impetus for the Factortame decision came from the legislature, not a “judge-led revolution”. Lord Bridge himself noted in Factortame that the court was motivated by a desire to uphold the wishes of Parliament: it had joined the EU voluntarily, aware of the constraints that membership brought. On this view, it could be argued that Factortame had actually affirmed the ultimate sovereignty of a contemporary Parliament; it could simply repeal the ECA and restore the preFactortame position. There would be no

need for any judicial “extra-legal” determination to restore Parliament’s supremacy, as required within Wade’s framework. Second, as Goldsworthy asserts, Wade’s theory presupposes that just because Parliament could not have logically conferred sovereignty upon itself, the judiciary must have done so. Consequently, law-making authority in the UK is a house of cards propped up by judicial acquiescence alone. This, as Elliott notes, paints a very onedimensional picture of the constitution that does not accord with historical reality. When the UK joined the EU (with the resultant effect of EU law becoming effective domestically), all branches of government were involved and membership was supported by a referendum. Goldsworthy is thus right in hinting at something more comprehensive sustaining legislative authority beyond courts’ mere recognition of it. Allan goes further, arguing that the practice of obedience to statute is dependent on a continuing ability to read legislation as a contribution to democracy. In any case, regardless of what principles one thinks sustains Parliament’s legislative authority, it is clear that Wade’s empirical view is outdated and unsatisfactory. As Barber asserts, we are now in the “afterlife of sovereignty”. It remains to add that, as Elliott notes, Wade’s theory provides an exclusively historical explanation of PS, one which takes no account of what principled justification might exist for ascribing law-making power today. As such, the contemporary appropriateness of Wade’s theory has been doubted, with Allan going so far as to say that Wade had been “misled” by Salmond’s assertion that the source of legislative supremacy is “historical only, not legal”. As Elliott notes, Parliament today is a

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MICHAELMAS 2019


democratic institution, unlike in 1688 (the

body the final say about the content of

year of Wade’s political fact). Thus, it is

the law. However, as Allan notes, the

clear that Wade’s theory of PS (with the

problem with this is that the rule is just

As Laws reasoned in Thoburn, the ECA

implication that PS and EU membership

too easily circumvented to provide any

enjoys such special status because the

cannot co-exist) is false and inaccurate.

effective protection. As Dicey notes,

common law recognised it as a

Parliament could create a new

“constitutional statute”. That PS is a product

Nonetheless, proponents of this view

legislature that was limited then

of, and hence alterable by, the common law

(Wade) will be eager to highlight its

dissolve itself without providing any

is submitted to be the correct view. As Allan

renaissance in Miller. As Elliott has shown,

mechanism for its recall. Wade himself

would agree, legal positivism of the sort

the Miller majority’s reasoning implicitly

suggested another possible evasion:

encouraged by the view espoused in the

returned to, and offered support for,

altering the judicial oath so that new

question (and Wade’s view) will prove

Wade’s “technical legal revolution”. In

judges renounced sovereignty and

indeterminate in many circumstances

their words, EU law “is an independent

committed themselves to the

because there will be disagreements about

and overriding source of domestic law”

proposed restrictions on the legislature.

what the statute requires in particular

and EU treaties, legislation “are direct

As such, this view lacks normative

instances. As noted in Pierson, Parliament

sources of UK law”. By stating that EU law

force. If leaving the EU will restore PS

“legislates for a European liberal democracy

is “overriding”, the Miller majority is

(and if PS is a “political fact”), there are

founded on the principles and traditions of

implying that EU law invariably has

normative arguments opposing such a

the common law”. This seems to be

perspective.

overlooked by Wade.

How, then, should we reconcile PS with

Viewed thus, judicial enforcement of EU-

the primacy of EU law? If, according to

related limits on Parliament’s law-making

Lord Reed in Miller, the priority of EU

ability (like in Factortame) can be

over UK law exists because of the ECA,

understood as a judicial attempt to devise a

what are the implications for PS? As

legal theory of legislative authority. Even

Elliott notes, a possibility lies in Laws’

after Brexit, this richer and more refined

"Even after Brexit, this

Thoburn-based HS2-glossed

understanding of the broader common law

richer and more refined

“constitutional statutes” model. On this

constitution will persist.

view, PS is a dynamic, legal

priority over UK law, consistent with Wade’s rationalisation of Factortame regarding the new constitutional reality (that Parliament was no longer sovereign). Aside from the fact that this is hard to reconcile with the Supreme Court’s own analysis in HS2, it is

Magna Carta).

understanding of the

phenomenon whose scope is a

In conclusion, this essay has shown the

broader common law

function of the contemporary

downsides of the view (as Wade would

constitution. Thoburn characterised

propound) – that PS is a “political fact” and

the ECA as a “constitutional statute”

cannot co-exist with EU membership, from

immune from implied repeal such that

both a doctrinal and normative perspective.

later inconsistent (but not explicitly

Instead, PS should be understood as a

submitted that too much significance

inconsistent) legislation will cede

principle of the common law. The primacy

should not be placed on this point.

priority to the ECA (and thus EU law). In

of EU law was but one of the common law

Arguably, the Miller majority employed

doing so, Thoburn places some

principles delineating the limits of

such phrasing as a rhetorical device to

intellectual meat on the doctrinally

legislative authority.

stress how fundamental a change

skeletal Factortame decision. The

withdrawal from the EU would be, so as

Merchant Shipping Act, an ordinary

to bolster its reasoning that the

statute, did not attempt to explicitly

government could not use the

stop the ECA from giving effect to the

prerogative to trigger the withdrawal

relevant EU rights. Lord Neuberger’s

process under Art 50 TEU. Further, as

and Lord Mance’s analysis in HS2 goes

Elliott notes, Wade’s theory was explicitly

further, introducing the notion of

repudiated in Miller itself, with the

hierarchical constitutional statutes.

majority opining that they “would not

Thus, the “constitutional” status of the

accept that the so-called fundamental

ECA does not conclusively establish

rule of recognition underlying UK laws

that ECA (and EU law) prevails over

has been varied by the 1972 Act”. Taken

everything except an explicitly-

together, it is posited that the view that it

inconsistent Act of Parliament. Rather,

is “impossible” for EU membership and PS

the extent of EU law’s qualified

to co-exist is wrong.

primacy is delimited by other

constitution will persist."

measures, including other legislation Normatively, as Barber asserts, the

and common law principles, whose

principal justification for Wade’s theory is

fundamentality may prove more

that it reserves to the highest democratic

compelling than the ECA (perhaps eg.

PER INCURIAM

16

MICHAELMAS 2019


*Law Tripos 2019, Criminal Law, Question 7.

CRIMINAL LAW "Sonja, 45, lives with her 55-year-old husband Frank and their 17-year-old son Derek. Ever since Derek was born, Frank has treated Sonja with great brutality and prohibited her from leaving the house without him. He has also told her that he will kill her and Derek if she ever tries to leave him. Sonja believes him. One morning Frank punches Sonja in the face with so much force that he breaks her nose. Derek jumps at Frank, pummelling him with his fists and shouting that he hates him. Frank shakes him off and, before he goes off to work, tells Sonja that he wants Derek out of his sight forever and that if Derek is still at home when he comes back in the evening he, Frank, will kill him. Derek and Sonja decide that their only chance of finding safety from Frank is to kill him that evening. Sonja says that she has found an old tin of rat poison in the shed which she believes contains enough arsenic to kill Frank. Derek and Sonja spend the afternoon digging a big hole for Frank’s body in the back garden. Then Sonja cooks a heavily spiced curry, mixes the rat poison into it and leaves the food on the kitchen counter for Frank to eat when he comes home late at night. Their plan is that they will go to sleep early, with Derek hiding in the attic in case Frank searches for him, and that they will bury Frank together in the morning. When Frank comes home close to midnight he eats the curry and collapses soon thereafter. Derek, who has stayed awake, then drags Frank’s apparently lifeless body outside to the hole in the garden. While he is busy shovelling earth over Frank’s body, Derek suddenly hears Frank groan. Realising that Frank is still alive and afraid of what Frank would do to him and his mother were he to recover, Derek panics and hits Frank on the head with the shovel multiple times until Frank no longer groans. At the post mortem it is found that Frank had not ingested enough rat poison to kill a human being and that the sole physical causes of his death were the fractures and blood loss from the wounds inflicted with the shovel. Consider the criminal liability of Sonja and of Derek."*

MICHAEL NGUYEN-KIM PER INCURIAM

18

MICHAELMAS 2019


D → F (murder/homicide):

defence; there is no duty to retreat (s

murder, as the loss of control defence

D fulfils both the AR and MR of murder.

76(6A) CJIA). However, it can be taken

afforded to D does not transfer to her

By hitting him with the shovel, he causes

into account as a factor in determining

(s54(6) CJA 2009). It is unlikely that she

P’s death under the Queen’s peace

the reasonableness of D’s response,

herself could plead LoC as there is no

(Coke). He also intends to kill F, as his

and it is likely that a jury would hold

evidence that she did in fact lose

purpose is for him not to recover

that he should have, say, gone to the

control. She has the option of pleading

(Cunningham). In any case, GBH is a

police instead.

self-defence. However, she would also likely fail on the basis that her response

virtual certainty of hitting him with a shovel, so at the very least oblique intent

Hence, it is unlikely that a full acquittal

was disproportionate; she could also

is satisfied.

based on self-defence would be

have escaped or gone to the police,

available.

similar to the analysis given regarding D.

conviction to loss of control. That requires:

S → F (homicide):

Hence, it is likely that S would be guilty

a) an actual loss of control (s 54(1)(a) CJA

There are two avenues to examining S’

as an accomplice to murder. She would

2009), b) a qualifying trigger (s 54(1)(b))

liability; as a principal and as an

also be clearly guilty of attempted

and c) that a person of D’s sex and age

accessory.

murder; preparing the poison and

Derek may be able to downgrade his

feeding it to F is more than merely

with a normal degree of self-restraint in D’s circumstances might have acted in

S does not perform the AR of murder

the same way (s 54(1)(c)).

as the administration of the poison is

preparatory.

not the operating cause of P’s death

S → F; s 23 OAPA:

In panicking when F stirred, D might be

(Jordan). She does, however, have the

In cooking the poisoned curry, S is guilty

said to have lost self-control. He might

MR in that she intended F to die

under s23 of the OAPA. The curry is

also have a qualifying trigger owing to a

(Cunningham). One could potentially

clearly a noxious thing, and S is both

fear of serious violence from V (s 55(3)

use the complex single transaction

reckless as to its administration and

CJA). As F had said he would kill D if he

approach illustrated in Thabo Meli to

foresees a risk of bodily harm (because

were still at home, this is likely to be

inculpate her. However, unlike in Thabo

she knows it’s poisoned). F clearly suffers

satisfied. Finally, might a person in D’s

Meli, she herself did not deliver the

endangerment to his life (even if it is not

situation have acted in a similar way? This

blow that killed F, while the defendants

quite enough to kill him). The vexed

is ultimately a question for the jury but

in Thabo Meli did roll the victim’s body

question is whether S ‘causes’ the

one is inclined to say that this too is

off the cliff themselves.

poison to be administered; after all, F

satisfied.

eats it himself. The likely view is that F’s

If the loss of control defence is made out, D’s conviction is downgraded to manslaughter.

"The fact that the death came about in an unexpected way is irrelevant; it does not

However, D could also have a full acquittal if he successfully pleads selfdefence. The defence requires that there

change the fundamental nature of the offence (English)."

be an attack (Martin) that is honestly perceived (Gladstone Williams), and

ingestion is not a novus actus as it is not free, deliberate and informed (Kennedy No 2); he is not informed as to the fact that the curry contains poison. Hence, S is guilty. S → F; conspiracy to murder:

In agreeing to kill Frank, S and D have formed an agreement to a course of conduct that involves the commission of

which is responded to by proportionate

Regardless, S would definitely be liable

an offence (s 1(1) Criminal Liability Act

force (s 76(3) CJIA 2008). There is no

prima facie as an accessory. In

1977). They also both intend that all the

doubt an ‘attack’ on D as F says he is

poisoning F, she knocks him out,

elements of the murder will be carried

going to kill him. Even though the

making it easier for D to kill him. She

out (Saik). Hence, they have conspired.

physical attack has not yet commenced,

hence assists (s 8 Accessories and

D is entitled to act pre-emptively in

Abettors Act 1861). She also has MR as

D → F (battery):

response to a perceived threat (Devlin).

to all the elements of the principal

When D pummels F, he is prima facie

The question then becomes whether

offence (Jogee); intention to cause his

guilty of battery; he unlawfully inflicts

objectively reasonable force was used

death and knowledge that D intends

violence upon another, with

given D’s subjective interpretation of the

F’s death. The fact that the death came

intention/recklessness (Ireland).

facts (Owino). Although killing seems to

about in an unexpected way is

However, he has a defence as F has just

be a rather harsh response, F’s past

irrelevant; it does not change the

broken S’s nose; his response is hence a

brutality means that D’s perception of the

fundamental nature of the offence

defence of another (s 76 CJIA) and is

gravity of the threat is quite high. Further,

(English).

likely to be considered proportionate.

the fact that D had time to leave the house does not alter his right to self-

PER INCURIAM

19

S is initially liable as an accomplice to

MICHAELMAS 2019


*Law Tripos 2019, Equity, Question 8.

EQUITY "Alex, a Cambridge pub owner, died leaving considerable cash reserves and a cellar containing one hundred cases of wine. By his will Alex left all his property to Yihan on the following trusts: (i) £50,000 for my niece Nina, to pay for her university tuition fees. (ii) A reasonable amount for my wife Brenda, so that she can continue to enjoy the annual cruises that we always took together. (iii) Ten cases of my finest wine for Diana; the rest of my cellar for Ellie. (iv) My pub is to be demolished and the land turned into a sports field. For 10 years it will be held for the use of Milton Industries Ltd Sports Club. Thereafter it will be held for such members of my family then living as Yihan may select, and in default of selection in equal shares. (v) The residue of my estate is to be distributed at Yihan’s discretion among the citizens of Cambridge, with preference being given to those who used to be regulars at my pub. If there is any doubt as to who is a citizen of Cambridge, the mayor can decide. Only employees of Milton Industries Ltd may be members of the sports club. Nina, who is 21, has told Yihan that she would like to be paid the £50,000 but she has no intention of ever going to university. Advise Yihan."*

ANNIE MACKLEY Part (i)

demand that Y pays her the £50,000 and

This would likely be possible here, since

The gift on trust to N is valid

so terminate this trust.

the court could look at the evidence relating to B and A make a judgment

notwithstanding that she does not wish to go to university. This is not a purpose

Part (ii)

about the funds required to do so in

trust since N is an identifiable beneficiary

A potential issue with the validity of this

future. Therefore there would be

and as such the purpose may be

trust is the certainty of subject matter as

sufficient certainty of intention, objects

construed as merely a superadded

required in Knight v Knight. A ‘reasonable

and subject matter, so U holds that

statement of motive for making the gift

amount’ is not a fixed quantum. However,

amount on a valid trust for B.

on trust, as in Re Andrews Will Trusts and

Re Golay’s Will Trusts suggests that the

Re Osoba. As such, this is an absolute gift

court may be equipped to make

Part (iii)

to N. Since she has attained the age of

judgments about what constitutes a

Y does hold the cases of wine on a valid

majority and is of sound mind and

reasonable amount when they have

trust for D. Under Re London Wine

absolutely entitled to the £50,000, she

sufficient information to do so, rendering

Shippers, when there is a self-declaration

may use her Saunders v Vautier rights to

the subject matter sufficiently certain.

of trust over tangible goods, they have to

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MICHAELMAS 2019


It seems likely therefore that this fixed

be segregated from other goods in

or recreational trusts under s 5, this

order for there to be certainty of

interpretation would be very strained.

subject matter. However, because this

Lastly, this also cannot be saved as a

is a trust made under a will, there is

charitable purpose trust; while it might

sufficient certainty because Y can

fall under the advancement of amateur

simply go and select those cases and

sport (s 3(1)(g) of the Charities Act 2011)

that will make the subject matter

would not be for the public benefit

certain, so there is a valid trust here for

because the link between the use of the

of all family members (Re Gulbenkian’s

D.There is also then a valid trust for E;

facilities and the people allowed to use

Settlements). This will likely be more

the ‘rest of the cellar’ is sufficiently

them is inherently private because they

problematic; if ‘family’ is sufficiently

certain because when Y selects the

have to have been employees of a

conceptually certain, it may be

cases that go to D, it will be certain

particular company (Re Oppenheim; Re

evidentially very difficult to identify all

which cases of wine E will receive. This

Compton). Thus this trust fails.

members of A’s family which are living. It

is similar to Re Last where ‘the residue’

trust in default of appointment would fail.In default of appointment, A has purported to create a fixed trust for his family members. Because the entitlement is defined referentially, Y must be able to draw up a complete list

seems likely therefore that this fixed trust

of an estate was sufficiently certain

"It thus seems that Re

in default of appointment would fail.

because it would become obvious at

Denley may not have

Part (v)

the time the gift was to vest. The same logic applies here, so the rest of the cellar is held on trust for E. Part (iv)

The first part of this trust in relation to

created a true exception to the rule in Re Endacott."

Here A has purported to create a discretionary trust for the citizens of Cambridge with preference being given to regulars at A’s pub. There are two issues with certainty of objects.

the use of the sports field for the Milton

Y must then consider whether he holds

Sports Club is problematic because this

the land on valid trust for members of

Firstly, the trust may fail for administrative

looks like a trust for a purpose without

A’s family, which raises issues of

unworkability (McPhail v Doulton; District

identifiable beneficiaries which would

certainty of objects. If Y makes the

Auditor of West Yorkshire) because the

be void under Re Endacott. It does not

selection, this looks like a fiduciary

group of citizens of Cambridge is very

seem to fall under any of the

power of appointment, which, following

wide and it may be hard to derive any

exceptions to the beneficiary principle.

McPhail v Doulton, requires conceptual

sensible instructions for this. However this

Firstly, it could be argued that, as in Re

certainty over the meaning of ‘family’; Re

seems unlikely as A has expressed a

Denley, this trust is for the benefit of an

Baden’s Deed Trusts No 2 on the

preference for a narrower class which

ascertained or ascertainable class of

question of ‘relations’ suggests that this

makes it easier to understand his

beneficiaries (namely the employees of

is conceptually certain because ‘family’

the company) and that benefit is not to

could be defined as something like

be too indirect or intangible (as these

statutory next of kin, or descendants

facts are very similar to the facts in Re

from a common ancestor. That case

Denley itself). However, the continuing

leaves the relationships with evidential

McPhail because we cannot tell what

relevance of Re Denley is unclear; in Re

certainty unclear, as it could require

‘regulars’ means. The use of the opinion of

Lipinski and Re Grant, Re Denley was

sufficient evidence to tell that a person

the Mayor cannot cure this uncertainty

is or is not in the class (Stamp’s view),

since firstly it does not form part of the

merely that they are in the class (Sach’s

definition of the class of objects

view) or enough evidence to tell that a

(Everleigh in Tuck; Dundee Hospitals

sufficient number of people are within

Board v Walker) and hence might be

the class (Megaw’s view). Whichever is

considered to oust the jurisdiction of the

adopted, there is no evidence that this

court, and secondly because while he

would be problematic on the facts.

might be an expert on who is a citizen of

interpreted as being a case about a trust for persons rather than purposes (like in Re Bowes where a trust to plant trees on an estate was interpreted as a trust for the owners of the estate as beneficiaries). It thus seems that Re Denley may not have created a true

exception to the rule in Re Endacott. Furthermore, this cannot be interpreted as a Re Bowes-style persons trust because there is no evidence that A intended the ground actually to be held on trust for the company (which, as a limited company, has legal personality so it might hold property; this also means that the unincorporated associations analysis does not apply) so this

PER INCURIAM

21

intentions. Secondly, ‘regulars of my pub’ is not conceptually certain as required by

Cambridge, he brings no expertise to the In default of appointment, A has

issue of whether someone is a ‘regular’ so

purported to create a fixed trust for his

he cannot resolve the conceptual

family members. Because the

uncertainty that lies there. It might

entitlement is defined referentially, Y

however be argued that ‘citizens of

must be able to draw up a complete list

Cambridge’ is sufficiently certain, and

of all family members (Re Gulbenkian’s

that this could be severed from the

Settlements). This will likely be more

additional preference which fails for

problematic; if ‘family’ is sufficiently

uncertainty (as occurred in Re Wright).

conceptually certain, it may be

Thus this trust might succeed as a

evidentially very difficult to identify all

discretionary trust for citizens of

members of A’s family which are living.

Cambridge only.

MICHAELMAS 2019


*Law Tripos 2019, European Union Law, Question 3(a).

EUROPEAN UNION LAW "‘The Court of Justice has long strived to strike a balance between national constitutional courts’ concerns regarding the protection of fundamental rights, on the one hand, and the principle of primacy of EU law, on the other.’ To what extent has the Court of Justice of the EU been successful in this endeavour?"*

KELLEY MACPHERSON Despite its awareness of the concerns of

However, initially there were teething

as a primary source of EU law. This is

national and constitutional courts, the

problems. When Handelg. returned to

surely perfect evidence of the Union

CJEU has tended towards protecting the

the national court, the German

adhering to the wishes of national CCs.

primacy of EU law (laid down in COSTA).

Constitutional Court (CC) found the

While there was a purported opt-out by

Initially protection of FHR was rejected in

directive infringed the domestic principle

Poland and the UK, this has been called a

Stork, but as integration intensified, there

of proportionality; and subsequently, it

game of smoke and mirrors by Barnard,

was a concern that national FHR

reserved the right to exert jurisdiction

who indicates that the ‘opt-out’ was

standards would be undermined, and

where it felt EU protection of FHR fell

merely declaratory.

general principles were discovered by

below par (Solange I). However, as FHR

the Court in Stauder (and FHR was held

protection increased, Germany retracted

Despite some initial problems using

to be one of them). In

its concerns (Solange II).

proportionality to review Union compliance with the FHR (e.g. review of

Handelgesselschaft, it was confirmed

Biotech Directive and Schengen

that national constitutions can provide

Subsequently, at the Nice Summit (2000),

inspiration as a source of HR; and this was

the Charter for FHR was “solemnly

confirmed with respect to international

proclaimed” as a non-binding political

agreements in Nold (although Art 6 TEU

declaration. While it was referred to

restrictions like in Bosphorus), the

only mentions the ECHR). The statement

frequently by AGs, the first reference from

standard of scrutiny post-Charter is

by the Union was clear: FHR were to be

the Court came in 2006. The Charter was

higher (Tridimas), e.g. Ireland Digitial

protected within the political framework

emboldened after Lisbon in 2009,

Rights and Kadi: although note the

and objectives of the Union (Handelg.).

receiving equal legal status as the treaties

procedural due process point and the

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22

Implementing Convention found proportionate, as were post 9/11

MICHAELMAS 2019


emphasis this was given. However, Volker and Test-Achats

Siragusa, confirmed by Hernandez, that it was not sufficient

indicate that the Charter is now the fundamental means to

that a MS was acting in an area where the Union also had

test Union FHR compatibility. This full conception of FHR is

power. There had to be some degree of connection between

surely in line with the wishes of the German CC in Solange I.

the application of the Charter and the domestic obligations. But the Court is not consistent in the deferential approach,

But regrettably, EU review of FHR has become entangled

as shown by Delvigne. Melloni confirms the Court’s

with concerns about competence creep, undermining the

preference for the primacy of EU law, stating that EU law

primacy of EU law. Pre-Charter, Wachauf confirms that the

compliant with the Charter can only be set aside when it

scope of FHR review was confined to MS implementing or

contravenes a fundamental right enshrined in the national

derogating from EU law. This then became when the MS

constitutions. This reflects the warnings by some

were “within the scope of EU law” (ERT). Akerberg confirms

commentators of a Solange III in Germany.

that, post-Charter, the scope is the same as that set down in ERT, but the CJEU has construed this widely. There the MS

The Court has also reaffirmed the primacy of EU law, and the

was within the scope of EU law when undertaking criminal

autonomy of the EU legal order (Van Colson) in Op 2/13

proceedings for VAT fraud – despite the recommendation by

where it rejected accession to the ECHR in order to maintain

the AG that the Court should decline jurisdiction. This broad

the primacy of EU law. This has been widely criticised by

approach brings questions of vertical legitimacy. Davies

commentators, e.g. Barnard, who suggest it is characteristic

similarly argues that, while questions of implementation or

of the EU’s rejection of external control.

derogation may be difficult to delineate, these problems do not justify the seeming disinterest of the Court in providing a

It has also been challenged by MS who cite the EU as

constitutional rationale for its action. Spaventa suggests that

generating a double standard – willing to review their own or

FHR protection slots into the Court’s broader mandate of

MS’ compliance with the Charter, but rejecting any external

‘ever closer Union’, whereby measures really within national

supervision themselves. The Commission remains committed

competence are being reviewed for FHR.

to accession, however. But in the broader context of the Court’s repeated assertions of primacy across various spheres

Following the Akerberg line of case law, MS, especially the

of EU law, and the general perception of competence creep,

German CC, expressed concern that the Court had gone too

the Court’s favouring of primacy over the national CC’s

far. This led to a subsequently more restrictive approach in

concerns about protection of FHR remains unsurprising.

"But in the broader context of the Court’s repeated assertions of primacy across various spheres of EU law, and the general perception of competence creep, the Court’s favouring of primacy over the national CC’s concerns about protection of FHR remains unsurprising."

PER INCURIAM

23

MICHAELMAS 2019


*Law Tripos 2019, Land Law, Question 5(b).

LAND LAW "‘[L]and registration does not exist in a vacuum. It has never been intended that the LRA 2002 or the legislation it succeeded should provide a self-contained legal “code” for land registration. Land registration law developed from, and depends upon, the general law of property.’ (LAW COMMISSION, 2018) Do you agree? To what extent is this philosophy reflected in the Law Commission’s 2018 proposals for updating the Land Registration Act 2002?"*

PHILIP MARRIOTT It is indeed true the Land Registration Act

the Register does not match reality shows

can be understood as explaining the

(LRA) does not exist in a vacuum. Whilst it

this. It does also depend upon the CL. As

priority rules. RoT can be seen as saying

necessarily has to trump some general

already stated, Ruoff held the Register

which title is strongest and has

rules of property, it is often dependent on

should be a mirror of reality; it was not

immediate rights, which fits with the

them. Indeed, in its most basic form, a

meant to supplant the CL but to

notion of priority from ss28-9. It is also

Register is simply a reflection and report

accurately record its impact. Thus, the

here submitted that the rules on

of what the general law has created, as

notions of estates and interests still

encroachment can be understood in this

Ruoff’s mirror principle states. In terms of

persist in the LRA scheme; it is not trying

way. As Tower Hamlets states, the

the Law Commission’s (LC’s) proposed

to supplant such concepts.

presumption is that the tenant (T) is in AP

changes, we can see elements both of

for the landlord (L) and this can be seen

supplanting the Common Law (CL) whilst

We can also see other more obscure

as based on RoT as it recognises that, in

giving it greater priority than the current

traditional property law ideas in the LRA.

this sense, L’s title is above T’s. In contrast,

scheme does, suggesting the LC’s

As Goymour and Hickey argue, relativity

Spectrum Investment holds that AP is

sentiment is only partly manifested in

of title (RoT) is still relevant. They see RoT

against T, not L if by a third party, again

their proposals.

as defined in multiple ways. At its narrow

recognising that T’s immediate right to

level, it is still used to explain adverse

possession places them above L in this

The current law

possession (AP). Indeed, sch 6 para 9(1)

respect. Therefore, we can see the LRA is

It is clear the LRA is not a self contained

confirms the Rosenburg v Cook fee

not a complete code and is still

code. Sch 4’s power for alteration where

simple still exists. At a broader level, RoT

dependent on ideas of RoT form the CL.

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24

MICHAELMAS 2019


What is harder is subrogation. Whilst

a basis of title – arguably the strongest

equitable lease. Arguably, the Swift 1st

certainly within the LRA system,

but not the exclusive.

rejection of Malory 1 prevents this. Therefore, whilst the LC would disapply

Watterson has argued it does not work well. In the LRA scheme, a change of

The LC's reforms

the CL, they are doing so to correct it, not

priority ought to be registered.

As the quote suggests, the LC’s report

to make the LRA a self-contained code.

However, as Watterson argues,

recognises the importance of the

subrogation is an equitable doctrine

general law and, as McFarlane, Hopkins

Finally, it is regrettable the LC did not

and, per Buttler v Rice, only gives an

and Nield have argued, represents a

engage with the moral arguments about

equitable copy of the charge bank 1

departure from the highpoint of “title by

AP. As Dixon argued, the LRA

(B1) had. As such, the Register no

registration” of the 2002 reforms.

emasculated the doctrine yet the LC have not justified their objection to it. Further,

longer reflects reality (breaking the mirror principle) but there is no space

A clear example of this are the proposed

as Cobbe and Fox argue, it encourages

for alteration since B2 does not have a

changes to sch 4 and alteration.

“living outside the system” but not

legal right and so should not be on the

Prompted by Goymour, they have

registering title. The LRA’s rejection of the

Register. There is, therefore, no mistake

suggested a stronger statutory footing

CL idea of extinguishing title in favour of

(sch 4 para 2(1)(a)) or need to update

for the broad definition of mistake in

title by registration does suggest it is

the Register (para 2(1)(b)). As Watterson

cases such as Gold Harp (viewing the

trying to create its own code, at least in

argues, therefore, B2 should, after

deregistration itself as the mistake) and

this respect and it is regrettable the LC

taking priority, be treated as having a

Ajibade (viewing the consequences as a

mere equitable charge and will lose

mistake too) as they are currently only

priority accordingly to any subsequent

relatively weak precedents to support

right that triggers s29. However, cases

such an idea. This will allow alteration to

such as Anfield, as Watterson argues,

be ordered more commonly in ABC

suggest otherwise. This suggests the

scenarios (to use their labels) where C is

LRA scheme, whilst wanting to

also an innocent party but has title from

continue using the general law

B due to s26. However, the introduction

doctrine of subrogation also wants to

of a long stop of 10 years to prevent

modify it to recognise the principle of

challenges does still show the desire for

title by Registration and it is

certainty is present. Whilst Dixon

regrettable the LC did not address such

challenges the need for it given the lack

tension in their report.

is dependent on the

of examples where cases take that long,

general law in terms of

it still shows the LC have not let go of

did not address such concerns. Additionally, there is doubt as to the extent of sch 6 para 11(1) and whether it applies to the Limitation 1980 ss29 and 31. Whilst para 11 shows the LRA still uses the general law’s definition of AP, this further detail is still debatable.

"There is now greater recognition that the LRA

structure and notions

However, there are many places where

the idea of title by registration. It is,

the LRA has moved away from the CL.

however, worth noting this is not a

For instance, the principle of title by

limitation period and it will still be

Registration has led to the ‘statutory

possible to bring a sch 8 claim, showing

magic’ of ss51 and 58, the s29 priority

they are recognising the importance of

rules and the granting of owner’s

the general law and not existing in a

powers by s23 curing any defects in the

vacuum.

away from the high point of 2002’s focus

conclusivity of title can be seen as

Turning to their proposal to overturn the

greater recognition that the LRA is

underpinning all 3 promises the LRA

result of Swift 1st granting a property

makes: title, empowerment and priority

right to seek alteration. This is harder to

(per Watterson and Goymour). Further,

see which side of the line it is on. On the

as Dixon has argued, there is now less

one hand, this is the LRA overturning a

need to feel bound by the old

CL decision. However, Swift 1st is very

proprietary / non-proprietary

likely wrong. As Dixon has argued, it

granting of title in the general law. This

distinction. To use his example, there is nothing to stop us saying 20 year licences should be an overriding interest for sch 3. What stops us now is policy, not doctrine.

To conclude, it is clear the LC’s reform proposals, especially for sch 4, are a step on title by registration. There is now dependent on the general law in terms of structure and notions such as RoT. However, the LC missed opportunities, especially in sch 6, to clarify to what extent some parts of the LRA use the general law or are their own distinct code.

4 is discretionary. If it is a right to “seek” alteration, it still does not fit any of the criteria from Lord Wilberforce’s test in Ainsworth. It is not easily definable or

To conclude this section, it is therefore possible to see that, whilst the LRA does replace the general law in some areas, it is indeed not a vacuum and is still dependant on many ideas. As Goymour and Hickey have argued, it is

PER INCURIAM

cannot be a property right to alter as sch

such as RoT."

25

identifiable and, whilst it could be permanent, it should not bind third parties. It also defeats the point of sch 8. It is also here submitted that it cannot coexist with Gold Harp where deregistration, according to Goymour’s reading, meant there was still an

MICHAELMAS 2019


*Law Tripos 2019, Law of Contract, Question 2.

LAW OF CONTRACT "For the first eleven months of 2017, Axel (a company) supplied grade A petrol to Box (a company) at the price, agreed on each delivery, of 80 pence per litre. Box then wished to place the relationship on a formal basis. Box offered in writing to Axel that: ‘(i) Axel will supply Box with all Box’s grade A petrol needs for the calendar year 2018, at 80 pence per litre, and (ii) the contract will continue for the year 2019 unless (iii) either party in 2018 gives at least two months’ notice that it wishes to terminate the contract. (iv) Any counter-proposals or contractual correspondence are to be made by hard-copy letter. (v) Any contractual variation must be formulated in hard-copy and signed by both parties.’ Axel responded by e-mail: ‘parts (i) and (ii) and (iv) and (v) of your written proposal are accepted; but, as for (iii), we suggest that the minimum notice period should be one month, and we will assume that this is agreed unless we hear soon from you.’ Box did not read Axel’s e-mail because Box had assumed (in view of (iv), above) that Axel would write in hard-copy form. Therefore, Box deleted all its e-mails without reading them. Box continued to place monthly orders with Axel, for which Axel invoiced Box at the 80 pence rate. The agreement ran smoothly at that price during 2018 until, on Wednesday, 28 November 2018, Axel placed under the door of Box’s office a hand-written letter which read: ‘Axel cannot supply you with petrol in 2019 at 80 pence, only at 90 pence. Unless you agree to this reasonable increase by Friday 30 November, this note will serve as one month’s notice that our contract has been terminated.’ In fact Box’s offices were closed on 28 to 30 November because of a gas leak. Box did not respond to Axel until Monday 3 December, when Box wrote by hard-copy letter: ‘we refer you to part (iii) of our agreement: the minimum notice period is two months and not one month; and so our contract for 2019 will continue at the rate of 80 pence; and in the event that you refuse to supply, we will be seeking specific performance of your promise’. The market rate for grade A petrol from all other suppliers in 2019 is 95 pence. Advise Box whether specific performance and/or damages are available."*

EMILY HO PER INCURIAM

26

MICHAELMAS 2019


objective viewpoint of A, it was

The terms of the agreement between A

been formed because B stipulated in his

and B must first be determined. This is

offer for hard-copy letter as the

found on a sequential offer and

prescribed mode of acceptance, which

acceptance (Gibson v Manchester).

he is allowed to do (Manchester

Although prior to November 2017, A

Diocesan v Commercial); although A

and B have been entering contracts for

might argue that e-mail is no less

supply possibly orally, B’s decision to

prejudicial because it is not slower than

place the relationship on a formal basis

letter and companies do nowadays

should be construed as a new

seriously correspond by e-mail

agreement. As he wishes to place the

(Manchester), nevertheless B can argue

agreement in written form, the written

that it does prejudice it because it is

terms are the expression of the terms

running on the understanding that it

of their agreement, subject to the parol

need only pay attention to

evidence rule (Lord Morris, Bank of

correspondence by post. Therefore A’s

Australiasia v Palmer) that outside

email is ineffective as acceptance in any

evidence (e.g. their previous

event, and even if effective as a counter-

arrangements) cannot be adduced to

offer, B is not taken to have accepted.

supplying the petrol to B for Jan–Nov

As an alternative analysis, in the

by A, from B’s perspective (Nissan v

vary or contradict the terms of any written contract they enter into.

exchange of “forms”, there has been no

reasonable for it not to have realised that B was mistaken as to terms, then the agreement is established in accordance to A’s proposal (i.e. the second version), acceptance having been effected by Nissan v Nissan conduct. B is therefore

bound by the one month notice term and does not have a cause of action in contract against A. If any of the above arguments establishing that no agreement containing A’s part (iii) variation has been formed are accepted, the analysis proceeds: A’s conduct in subsequently 2018 constitutes acceptance by conduct Nissan); part (iv) only stipulated for

“counter-proposals or contractual

B’s first letter constitutes an offer,

sequential offer and acceptance with

because in A’s position, B is making a

the same terms (Tekdata v Amphenol).

correspondence”, not necessarily

A’s position would reasonably

Therefore, B cannot enforce parts (ii) and

that, on objective principles (Smith v

understand that B stands to be bound

(iii) against A to prevent A from

Hughes), an agreement has been formed,

by, in the event of A’s unequivocal

terminating the contract for 2019.

on B’s version of the terms (Entores). B

acceptance (Crest Nicholson v Akaria).

Neither specific performance nor

would therefore be able to enforce the

What is the significance of A’s

damages are available.

contract against A to continue the

proposal which an ordinary person in

acceptance. B can therefore establish

contract.

response? Given that it seeks to vary part (iii), it is not an acceptance but

If, contrary to the foregoing conclusions,

rather a counter-offer (Hyde v Wrench);

(a) the court finds that e-mail is no less

given the importance of a provision as

prejudicial than hard-copy letter

to notice of termination to the contract

(Manchester Diocesan) or that part (iv)

as a whole, it is untenable to construe

does not apply to prescribe the mode of

A’s e-mail as acceptance of the other

counter-offer; and/or that (b) B’s

effective as a counter-offer, B

parts, forming a binding agreement as

conduct in supplying for the next 11

to those parts but not to part (iii): if that

months of 2018 is acceptance of the

is not taken to have accepted."

were the case, the resulting agreement

counter-offer by conduct (Nissan v

would be void for uncertainty because

Nissan), then the agreement binding A

part (ii) provides for a condition for

and B is the second version of part (iii),

continuation into 2019 (“unless”) but

i.e. the minimum notice period is one

without the part (iii) agreement, the

month, prima facie.

suggests that B must have read the letter

(Wells v Devani CA, a conclusion which

B may argue that there was a unilateral

because B only read on 3 December,

is probably not disturbed by SC’s

mistake as to terms such that no

ruling). Therefore A’s response is a

contract has been concluded (Smith v

counter-offer. No agreement has been

Hughes): knowledge on A’s part as to B’s

formed (Entores v Miles): acceptance

erroneous belief as to the terms is

cannot be effected by silence

objective (OT Africa v Vickers), and

(Felthouse v Bindley), and their

because A emailed rather than gave a

subsequent conduct in supplying does

letter, and received no reply from B, A

not effect acceptance of A’s counter-

ought to have realised that B was

offer (contrast Nissan v Nissan),

mistaken as to the terms, and therefore

because B cannot reasonably be taken

that no agreement according to A’s

to have read the counter-offer (see

proposal has been formed on ordinary

below), from A’s perspective.

objective principles (Smith v Hughes).

personal services (see Hill v Parsons) does

In any event, no agreement can have

If, however, the court finds that from the

seem to have been a breakdown of

condition for continuation is missing

PER INCURIAM

27

"Therefore A’s email is ineffective as acceptance in any event, and even if

Alternatively, B can argue that even if A’s terms prevail, A has not given “one month” "notice", because “notice” (see Holwell Securities v Hughes), and so which is less than one month from 1 January 2019, A is not entitled to terminate without breaching the contract. If B has a cause of action against A, can he seek specific performance? This is only granted in exceptional circumstances if damages are not an adequate remedy (Co-operative v Argyll). The general rule against SP where it is a contract for not apply because (a) there does not

MICHAELMAS 2019


mutual confidence, and in any case, supply is not a very

Can B claim damages instead? This would be the expectation

“personal” service (Powell v Brent); and (b) A and B are

interest (Robinson v Harman), and would reflect the 5 pence

companies rather than individuals (Lauritzencool v Lady).

difference that B would have saved given A’s cheaper supply,

However, this is not a sale of land or of unique chattel (s.52(1),

if the contract had been continued. This loss is caused by A’s

Sale of Goods Act 1979; Falcke v Gray) as petrol is not in

breach (Quinn v Burch) because, on “ordinary” “common

uniquely scarce supply (Sky v VIP). Therefore SP would not be

sense” (Monarch v Karlshamns; Galoo v Grahame), the loss is

ordered. The court would be entitled to do so, however,

due to A terminating in breach of contract, on B’s part (iii)

because even if A’s letter on 28 November was considered a

provision. It is not too remote (Hadley v Baxendale), because

purported express renunciation (Frost v Knight), B has not

in the “usual course of things”, loss to B in seeking supply

exercised its election to accept or reject (Societe v Geys), and

elsewhere in the market is a naturally arising consequence of

in any case, its letter on 3 December shows rejection (cf.

breach.

Yukong v Rendsburg on merely being “upset”) so the

contract has not been terminated on that basis.

PER INCURIAM

28

MICHAELMAS 2019


*Law Tripos 2018, Law of Tort, Question 8.

LAW OF TORT "Camchester United, a lower division football club, decided to appoint a ‘motivational coach’, to boost its players’ mental resilience. It hoped that this would increase its chance of being promoted to football’s premier league and thus enjoying the much greater profits that clubs derive from premier league membership. Ginny, Camchester’s director of training, browsed a website called Headsup.co.uk, which retained a list of all UK accredited motivational coaches and which contained the statement, ‘Our quality assurance - boost your players’ resilience and you WILL boost your balance sheet!. Draco was listed on the Headsup website as based in the Camchester area. Ginny phoned the Headsup phoneline and was assured that Draco was indeed an excellent motivational coach. In fact, Headsup had omitted to check carefully, so did not realise that Draco had convictions for violent offences and had lost his accreditation several years ago. Camchester United retained Draco as its freelance motivational coach. Ron, a timid young player with Camchester United, was required to attend Draco’s consulting room for weekly motivational sessions. At the second session, Draco flew into a rage and slapped Ron’s face repeatedly. Then, in an experiment designed to test Ron’s mental resilience, Draco told Ron he was locking him in the consultation room and would return in an hour’s time to give him ‘more of the same’. Terrified, Ron did not realise that Draco had intentionally left the door unlocked, so he jumped from the second floor window. He landed on Severus’s vintage Jaguar motor car, which Severus had parked on a double yellow line for several hours and which had no valid vehicle tax. Ron suffered minor injuries, but Severus’s car was very badly damaged. Severus paid for expensive repairs to the car, because it was of great sentimental value, even though the cost exceeded the value of the car. Draco is now in prison; the resulting bad publicity caused Camchester United’s investors to pull out and its profits to slump. Advise the parties as to their rights and liabilities in tort."*

RACHEL HUGHES Draco (D) & battery

Despite flying into a rage, the contact is

telling R he was going to come back and

D would be liable for battery (Wainwright

still intentional. Following Letang v.

give him “more of the same”. Following

v. HO). He has made intentional unlawful

Cooper, this claim cannot be brought in

Read v. Coker, words may constitute

contact with Ron (R), and this could not

negligence. Thus D is guilty of battery.

assault, and there is no qualification of the threat, as in Turberville v. Savage.

be said to be part of the ordinary occurrences of everyday life, for which

D & assault

However, the question is whether the

there is no liability in battery (Re F).

D may have committed an assault in

assault satisfied the requirement of

PER INCURIAM

29

MICHAELMAS 2019


imminence (as laid out in Wainwright v.

their control over the doctor and their

tax. However, the crime being

HO). D has said he will return in an hour,

ability to pay. Here, D is acting for the

committed must be relatively severe in

and thus prima facie the assault is not

benefit of C as they hope increased

order for the defence to operate. S is not

imminent. However, the requirement for

mental resilience would lead to

seeking to profit from his own illegal act

imminence is to illustrate the position of

promotion and thus greater profits. C

(Joyce v. O’Brian), as it is not from

the claimant in being unable to avoid the

requires R to attend D’s sessions; they

having no tax that his car is damaged.

threat. Here, as D has stated that he is

are not voluntary. While C do not give D

While his car being on double-yellow

locking R in a room, R would not have a

instructions, his purpose is to improve

lines is a but-for cause of the damage,

way of avoiding the threat, and thus D

mental resilience, and thus arguably C

this is insufficient on its own to engage

would have committed assault.

have created the risk of torts arising

the defence. Therefore D (or R’s) liability

through D’s methods. Therefore, C

would stand.

"However, the requirement

would be vicariously liable for D’s torts, given that the torts arise during the

Mitigation

sessions and thus in the course of

S has a duty to mitigate his losses. By

the position of the claimant

employment, and D is sufficiently akin

paying for expensive repairs, he has not

in being unable to avoid the

to an employee despite appearing like

done so and thus the tortfeasor would

an independent contractor.

not be liable for the expensive repairs

for imminence is to illustrate

threat."

(The Liesbosch). If the relationship between D and C

D & false imprisonment

was not viewed as sufficiently “akin to

Pure economic loss

D could be liable for false imprisonment.

employment” (JGE v. Portsmouth), then D would be personally liable.

C suffers pure economic loss as a result

However, following Bird v. Jones, the imprisonment must be total. Here, the

of D’s torts and subsequent imprisonment. While pure economic

door is left unlocked and thus R is not

R damaging car

actually imprisoned. However, if D is

R damages Severus’ (S) car when he

negligence (Spartan Steel v. Martin),

waiting outside and would lock R in, then

jumps out of the window, thus S could have a claim for property damage in

Headsup (H) may owe C a duty through

he might be liable. This is because the ECtHR reversed the decision in R v.

negligence. This depends on whether

Bournewood, thus meaning that false

Ron’s act alone is viewed to have

imprisonment can be notional as well as actual, as long as restraint would be inevitable. The fact that R escaped the room via the second floor window does not absolve D from liability for false imprisonment if he were waiting outside the room. This is because any means of escape must be reasonable (Robinson v. New Ferry Co.), and jumping from the

second floor is not a reasonable escape route. Therefore, if D would restrain R if R left, D would be liable for false imprisonment.

liability continues as R has acted foreseeably in attempting to escape. If R’s act was wholly unreasonable, then it would constitute a novus actus and D would not be liable. On the facts, R does not check the door, which would have been a means of escape other than jumping out of the window. However, as above, it is possible that D would have been waiting outside, thus meaning that R would be less likely to take that route. Further, R was “terrified” as a result of D’s actions, and thus would be more likely to make a

Vicarious liability?

The question is whether Camchester (C) would be liable for D’s torts against R. D is retained as a “freelance motivational coach”. The situation seems akin to Various Claimants v. Barclays Bank,

where Barclays required potential employees to submit to health exams by a doctor. Despite the doctor appearing to be an independent contractor, the bank were held liable for his torts. Relevant factors were used to establish a relationship akin to employment, including the benefit to the bank,

PER INCURIAM

caused the damage, or whether D’s

30

spontaneous, unusual decision. While R is timid, on the “eggshell skull principle” (Page v. Smith; Smith v. Leech Brain), D must take R as he finds

him. Therefore, I would argue that R’s act is not so unreasonable as to absolve D of liability, and thus D would be liable for S’s property damage. Ex turpi causa

D (or R) may have the defence of

loss is not usually recoverable in

making a negligent misstatement, under the principle in Hedley Byrne v. Heller. For this duty to arise, H must

voluntarily assume responsibility to C, in a situation where it is reasonably foreseeable that C will rely on the statement and that it was reasonable for C to rely on it. Here, H have made a promise on their website of quality assurance, and have also assured Ginny (G) of D’s credentials. This is clearly a negligent misstatement. I would argue that it was reasonable for G to rely on the statement, as she called H up specifically, rather than merely relying on the website. This also means that it was reasonably foreseeable that G would rely on the statement (NRAM v. Steel). Further, there was no

requirement for H to assist G (as in C&E Commissioners v. Barclays Bank), and

no exclusion of responsibility as in Hedley Byrne – on the contrary, a

guarantee of quality. Therefore, under the principle in Hedley Byrne, H would be liable to G for the pure economic loss suffered as a result of the bad publicity arising from D’s torts.

illegality, as S’s car was parked on a double yellow line and had no valid

MICHAELMAS 2019


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Per Incuriam Michaelmas 2019  

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