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
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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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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
PER INCURIAM
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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
11
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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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
PER INCURIAM
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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
PER INCURIAM
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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
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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
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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
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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