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PER INCURIAM LENT 2019

ACADEMIA IN THE CITY Bridging the gap between legal theory and practice

LIFE IN ACADEMIA WITH ALBERTINA ALBORS-LLORENS A personal perspective

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LENT 2019

President’s Welcome

PRESIDENT’S WELCOME DEAR READERS, Welcome to the Lent edition of Per Incuriam. I hope you’ve had a great holiday, and are all geared up for the new year!

Gabriel Wang | President

This Lent edition of Per Inc is an engaging read, covering the topic of legal academia, with exclusive contributions from Cambridge academics. As always, it includes a wonderful selection of top-scoring Tripos essays to help you with your studies. Per Inc has always been CULS’s comprehensive supplement, designed to expose members to a broad range of interesting legal issues and top-scoring

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essays. I would like to say a huge thank you to Tatiana, Roystan, Meg and Edgar for their immense contribution in making this magazine a success this year. This will also be the last edition of Per Inc that I’ll be overseeing in my role as CULS President. I hope you enjoy this issue of Per Inc and the rest of the term ahead with CULS! Best wishes, Gabriel Wang President


Editor’s Message

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EDITOR’S MESSAGE DEAR READERS, Welcome to the Lent 2019 issue of Per Incuriam! On behalf of the Per Inc editorial team, I wish you all a wonderful new year and the best of luck with your work for the coming term.

Tatiana Kurschner | Editor-in-Chief

Roystan Ang | Deputy Editor

Edgar Lee | Deputy Editor

Continuing with our work from last term, we are excited to introduce the theme for this issue – legal academia. In contrast to training contracts at top commercial firms or pupillages with influential chambers, there is a lack of clarity for many undergraduates as to what a career in legal academia entails and how it might be attained. We hope that this issue will provide fresh insight into one of the most interesting legal career paths, assisting those of you who have decided to pursue a career in academia with that process and encouraging others to consider it as an option. Our Lent academia feature includes an article from Dr Albors-Llorens – a prominent voice in EU law – on life in academia, which provides insight into the work and main responsibilities of a Cambridge academic. This is followed by a contribution from Dr Jodi Gardner, St John’s Fellow, detailing her unique journey from private practice into academia. Finally, we are excited to include an essay from Daniel Lim, Partner at Kirkland & Ellis, which provides a unique perspective on the opportunities for academic work while practicing as a commercial solicitor.

As always, we have included an impressive series of tripos essays to help you sharpen your understanding of your papers as we approach exams. We have included a mix of essays covering some of the core modules for Parts IA, IB, and II, as well as some of the optional Part IB and II papers. We hope that you find these essays, and those previously published in Per Inc (accessible online), helpful in your studies. Finally, we encourage you to visit our online platform (accessible via the CULS website) for a collection of critical commentaries on legal developments written by undergraduate students here at Cambridge. The platform is currently onto its second year, and we look forward to its continued growth and success as a platform for students to read – and write – about legal issues reaching beyond the confines of our studies. Thank you to the CULS committee for its continued support of Per Incuriam, and to my fantastic Deputy Editors, Edgar, Meg, and Roystan, for the work they have put in to make this issue possible. We hope you enjoy the issue! All the best, Tatiana Kurschner Editor-in-Chief

Meg Gibson | Deputy Editor

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

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

We also welcome First Class Tripos essays. Please send them typed, and with their respective year, question number, and marks indicated, along with your name, College and alternate email address.

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Contents

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CONTENTS ARTICLES

LIFE IN ACADEMIA: A PERSONAL PERSPECTIVE Dr Albertina Albors-Llorens

FROM PRACTICE TO ACADEMIA Dr Jodi Gardner

ACADEMIA IN THE CITY: BRIDGING THE GAP BETWEEN LEGAL THEORY AND PRACTICE Daniel Lim

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ESSAYS

CONSTITUTIONAL LAW Amber Turner

LAND LAW Annie Mackley

CRIMINAL LAW Guillermo Íñiguez

JURISPRUDENCE Etsuko Lim

ADMINISTRATIVE LAW Jared Kang

COMPANY LAW Jennifer Shelley

EQUITY Maj Mohamed

FAMILY LAW Mei Xin Michelle Tan

14 16 18 20 22 24 26 28

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LENT 2019

Articles

Life in Academia: A Personal Perspective

LIFE IN ACADEMIA: A PERSONAL PERSPECTIVE Dr Albertina Albors-Llorens | University Reader in European Union Law and Fellow and Director of Studies in Law, St John’s College I knew that I wanted to teach from an early age. I have always enjoyed the challenge of breaking down information and ideas, working on them until I understand them, and giving them a structure than can

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be communicated to others. I was very fortunate that, following my undergraduate degree in Spain and my LLM in London, Magdalene College gave me a scholarship so that I could undertake a PhD degree here

in Cambridge. I still remember the sense of awe when I arrived at the Magdalene gates on a very cold January morning in 1991. That is how it all began, and I will always feel a profound gratitude for


Life in Academia: A Personal Perspective

everything that the College did for me. Those were challenging years because the legal training that I had received in Spain was very different from that imparted here in the UK. However, they were also some of the happiest years of my life and I received a great amount of support along the way. The Law Fellows at Magdalene were extremely kind, and I had two wonderful PhD supervisors, Clive Lewis and Eleanor Sharpston – the latter now an Advocate General at the CJEU. It was, at times, a solitary experience because then there were not many PhD students in Law – except in International Law – but it turned out to be a life-changing one. I became more and more convinced that I would love to pursue an academic career but at the time this seemed merely a dream. However, things worked out for me and I was able to take up first a Research Fellowship at Girton, and later on a University position. I am, to this day, acutely aware of the privilege that it represents to hold University and college offices in Cambridge.

SUCH A PRIVILEGE CARRIES, OF COURSE, DEMANDING RESPONSIBILITIES, BUT IN MY VIEW THEY ARE A SMALL PRICE TO PAY FOR THE OPPORTUNITIES THAT AN ACADEMIC CAREER AFFORDS. Traditionally, we say that academic life involves three main areas of work: research, teaching and administration. Research is the engine that propels the academic community and is vitally important not only in itself, but also because it informs and improves teaching at university level. Research in EU Law has always been very exciting because of the fast-paced, rapidly changing nature of this discipline, but the Brexit vote has brought about unprecedented and seismic changes in terms of the relationship between the UK and the EU. EU Competition Law and Remedies in EU Law are my two main areas of research. They are complex and technical, but hugely interesting, and the Brexit process is bound to have an impact on them. Whatever happens, we must not forget that EU Law is a legal order that remains crucially important not only for the Member States of the European Union, but also for the many countries around the world that have forged links with the EU or drawn inspiration from its legal system. In light of this, it is important that we do not give way to pessimism, but continue to research and follow the evolution of

this system with undiminished enthusiasm. Cambridge terms are short but very intense, particularly because Faculty and college obligations are combined. Therefore it is necessary to make sure that enough time is left for research during the vacations – or research periods, as they are now called. In this respect, periods of sabbatical leave are vital. I also enjoy greatly my role as one of the five editors of the Yearbook of European Law. In this capacity, I work with colleagues from other leading UK and European Universities and have the opportunity to read fascinating pieces of research in EU law submitted for publication by academics from all over the European Union and beyond. Teaching in Cambridge is a joy. We have some of the very best students in the world and the great fortune to be able to teach them in a supervision context as well as in lectures. I have been often asked whether I find it boring to “repeat” the same supervision ten times each supervision cycle, but the truth is that no supervision is the same as any other and I can honestly say that I have learnt a great deal from my students. I quickly realised when I came to Cambridge that this teaching and learning environment has no equal in terms of the advantages that it yields for students and academics alike. Preparing for lectures does take a lot of time. A lecturer is like an actor: you are only as good as your last performance and must never grow complacent. You only need to look at the faces of the students in the lecture theatre to realise whether they are still with you, or whether you have lost them on the way. There are always better ways to explain something and better ways to convey the depth of an argument without sacrificing clarity, and I feel that we must strive to find them. Supervising PhD students is another highlight of an academic career. I have been lucky with mine; their work and my conversations with them have been truly inspirational, and I have followed the progressions of their careers with interest and with great pride. Finally, administrative duties and “general contribution” are also important dimensions of University life. I would be disingenuous if I said that committee work or being a Chair of Examiners are always thrilling experiences, but the truth is that these jobs are very necessary for the University to function as well and for as long as it has done. In other Universities there are many more roles carried out by professional administrators, but here in Cambridge academics are heavily involved in departmental, University, and college governance and this offers a unique

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perspective on how these institutions work. It also provides a sense of belonging and a reminder that we are all deeply invested in the system. We are fortunate to have excellent support from very dedicated Faculty and college staff, but I cannot deny that meetings, Faculty positions, and reams of paperwork do take up a great deal of time. In this area of my work, I have most enjoyed the roles that involve student welfare, such as being a Tutor and a Director of Studies. They have required a very significant level of personal commitment, but have been exceptionally rewarding. If I were asked about the main challenges posed by an academic career, I would say that it is a much harder career choice than many people assume it to be, and that it requires a strong work ethic, motivation, humility, and self-discipline. It is often hard to juggle multiple demands on your time and make sure that your priorities are right, while also keeping abreast of new developments. However, I would also emphasise the advantages that it brings. First, there is the freedom that it affords. As an academic, you are not at the beck and call of others but are free to follow your own path and to develop your own ideas and I believe passionately that such freedom should always be preserved. Second, I value collegiality as a pivotal aspect of academic life. Despite the fact that we all work in our own specialised areas, we do not inhabit ivory towers and the sense of a shared effort is all-important. In this regard, I have always been struck by the tremendous generosity and support from many of my colleagues over the years and some of them have become close friends. Finally, it is always exciting to see former students making their way in the world, to hear from them regularly, and to meet them again in the most unexpected places – once in the middle of the Atacama Desert! Many of them, but by no means all of them, work in practice, and I especially like to hear that they are happy and fulfilled in what they are doing. Some of them have become outstanding academics like Stelios Tofaris, whom I taught early in my career. It is wonderful that today students and the Faculty can benefit from all that he has to offer. All in all, life in academia is not easy, but it has been a great journey. When I look outside my window onto the beautiful Second Court of St John’s, I feel that I have the best job in the world. I never take it for granted.

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LENT 2019

Articles

From Practice to Academia

FROM PRACTICE TO ACADEMIA Dr Jodi Gardner | Fellow of Law, St John’s College

One of the most amazing things about undertaking a law degree is just how many different careers and opportunities it can create. As Cambridge students, there are so many doors open for you all; the choices can sometimes be overwhelming. Even with my non-Oxbridge background, I have been lucky enough to enjoy many of these opportunities in the decade since I finished my undergraduate degrees in Law and Economics (majoring in International Political Economy) at Griffith University in Brisbane, Australia.

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After graduation, I worked for a year as a Judge’s Associate, shadowing the President of the Court of Appeal. This position gave me the opportunity to sit in on all the court cases and help with legal research and preparing judgements. During that year, I also undertook a Masters of Law at the Australian National University, specialising in Commercial and Government Law. Following the Associate position, I was admitted as a Solicitor while working in commercial litigation in a law firm in Brisbane. I really enjoyed the intellectual

engagement of this environment, and found that the work in top-tier firms can help to create strategically risk-averse and efficient lawyers. The partners who supervised my work were friendly, thoughtful, and encouraging. I had the opportunity to go to court with barristers, meet with clients, attend the land registry, and review many, many contracts. Whilst I enjoyed the perks of commercial litigation (good pay, nice offices, and excellent Christmas parties), I was not particularly passionate about representing big companies and banks against (generally) other big companies and


From Practice to Academia

banks. I was, however, passionate about the pro bono opportunities and cases I had run. I therefore decided for a change, and I wanted to use my legal skills in a way that more directly and positively impacted my community and assisted those who are vulnerable.

THE ENTIRE EXPERIENCE REALLY HIGHLIGHTED TO ME THE POWER OF LEGAL REPRESENTATION AND THE SIGNIFICANT IMPACT THAT POWER IMBALANCES CAN HAVE ON THE OUTCOME OF COURT PROCESSES. After this realization, I moved to a community legal centre which advocates for vulnerable parties in consumer and insurance matters. In this position, I did incredibly meaningful and intellectually challenging work, including representing victims of the 2010/2011 Brisbane floods which resulted in the deaths of 33 people and property damage of $2.38 billion. I helped people whose houses had been destroyed with their claims against insurance companies, many of which were unfairly (and often unlawfully) rejected. As part of this process, I attended Ombudsman hearings, court sessions, and even a Commission of Enquiry on the floods. Consumer-friendly legal provisions are only truly useful to the extent that people know about them and they can be enforced by the courts. Observing this inequality was a crucial turning point in my path to academia. It inspired me to look further into how power imbalances impact legal principles and what private law can do to help respond to these inequalities. I loved working at the community legal centre, so it was a bittersweet moment when I left to start my studies at the University of Oxford and pursue a career in academia. I commenced with the BCL at Magdalen College, taking Restitution, Evidence, Civil Procedure and Regulation, and then continued onto the MPhil. At the start of my second term at Oxford, I found out I was pregnant with my first child, which was quite a surprise. I sat my BCL exams at seven months pregnant, and commenced my MPhil with a one-week old baby – it was a truly hectic time. I survived this challenge and went on to have two more children during the DPhil at Corpus Christi College. Despite being fortunate enough to receive a generous scholarship, having children during my postgraduate studies was an

extreme financial pressure. To help with this, I undertook some teaching opportunities at Oxford, building on my previous teaching experience at several Australian universities. As soon as I taught in the small group system, I absolutely fell in love with it. In Australia, lectures are given to hundreds of students and tutorials are in groups of 20-30 students. In the Oxbridge system, I was able to get to know my students; academics were given the opportunity to tailor classes to focus on students’ strengths and help them overcome any weaknesses or concerns. I enjoyed this academic life so much that I ultimately decided I wanted to stay in the UK after my Oxford studies. In 2017, I applied for a position at St John’s College in Cambridge. I interviewed for the position while pregnant with my third daughter, and was delighted to be successful (and to find that St John’s takes a very accommodating approach to academics with young children). Academic life has many, many advantages. The teaching is wonderful – my students are friendly, smart and very engaged. They often think of new and interesting takes on the material considered and (probably slightly too frequently) ask questions to which I do not know the answers. The pastoral care aspect of the job is very rewarding, as you get to know the students as individuals beyond their academic life. Academia is also self-driven – it is a very autonomous work-life when compared with practice. Academics can choose what you work on and, to a certain extent, when. You teach the subjects you are interested in teaching, and research and write on the topics that excite you. There are however downsides to academia. Financially, it is definitely not as lucrative as private practice. My husband is the primary carer of our three kids and only works part-time, so there are many months where I miss my commercial litigation pay-cheques! It is, however, very much worth it to have a career that is meaningful and intellectually stimulating. The other challenge with academia is the difficulty of obtaining permanent positions – over time, it has become quite a bit harder for younger academics to find a tenured position. This creates an aspect of uncertainty, and might mean that you will need to move around a bit. There are also times where I miss the ‘real life’ aspects of legal practice – the law in theory is often so different to the law in practice, and I sometimes miss seeing how the principles we learn in class play out in the courtroom. However, in later stages of academic life, there are plenty of opportunities to engage in practice, whether through consulting, arbitration work, or door tenancies at Barristers’ Chambers.

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During term, academic life revolves largely around teaching responsibilities. For each contact hour with students, there are significant planning and marking responsibilities. Being based in a college, there are also frequent council and committee meetings during terms – some of which can take hours of preparation time reading difficult papers and minutes. If you are lucky enough to be a Director of Studies, you also have time-intensive pastoral care obligations during the term. This can be hard to predict, and often arise at the last minute. All of this means that it can be quite difficult to get much research or writing done, but it is always good to have something to plug away at during those (rare but valued) quiet periods. It is however never a good idea to agree to publication deadlines that fall during the university terms, they are often very difficult to meet. The vacation period is generally when academics focus on their research and writing, especially during the long summer break. This can involve flying around the world to present to draft papers at conferences, sitting in an office writing a chapter, or spending hours in a library, diving into rare manuscripts. Academics also need to keep up-to-date with legal developments, so the breaks are often a good opportunity to read through any new cases or legislation in detail. On the whole, I am very happy with my career transition and move to academia. It is an intellectually challenging and exceptionally rewarding profession. Like everything, academic life has its advantages and disadvantages. One thing I have noticed is that, unlike many other career options, there is no clear ‘path’ to academic work. You cannot do internships or vacation work to help prepare you for life in academia. There are, however, some clear helpful steps along the path. Students will need to obtain excellent grades in their undergraduate degree, and will need to have a desire to do further postgraduate studies. I am pleased to see Per Incuriam taking the initiative to help students gain a perspective on what is too often a neglected career opportunity for law graduates. I hope it will encourage a number of you to consider academia – if so, I wish you all the very best for an important and enjoyable career.

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LENT 2019

Articles

Academia in the City: Bridging the gap between legal theory and practice

ACADEMIA IN THE CITY: BRIDGING THE GAP BETWEEN LEGAL THEORY AND PRACTICE Daniel Lim |

Daniel Lim is a Partner in the London IP litigation practice of Kirkland & Ellis International LLP. He has an academic background in both law and science (majoring in biochemistry) and his practice is largely focused on complex high value life sciences patent litigation. Daniel frequently writes on legal and scientific topics and has been published widely in industry publications including Life Sciences Intellectual Property Review, Intellectual Property Magazine and Intellectual Asset Management. He has also spoken about cell and gene therapies at the European Society of Human Genetics and wrote and edited a website and news blog dedicated to CRISPR gene editing technology and patents for one of his former firms. Daniel is also the coauthor of the UK chapter for an upcoming AIPPI Law Series book on Antibody Patenting to be published by Wolters Kluwer.

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It is fair to say that the relationship between legal practitioners and academics, and the role of legal academic scholarship in the everyday practice of corporate law, differs significantly between different legal traditions, jurisdictions, and areas of practice. For example, the influence of distinguished legal academics on the development of the law in civil law jurisdictions has traditionally been greater than in common law jurisdictions like the UK, US and Australia, where the doctrine of stare decisis has led to an organic development of the law through practice and precedent. The life of a City corporate lawyer is many things, but it is almost invariably busy – a state of mind and being which does not necessarily lend itself to the quiet reflection and studied thought one typically associates with academic writing.

That is certainly not to say that legal academics are not busy (far from it!), but simply an observation that the respective daily demands on the time of practitioners and academics are different in nature, and the former is often at the mercy of deadlines imposed by courts, clients, and the markets. Having said that, in many areas of practice there exists a thriving intellectual community comprised of international groups of academics, in-house counsel, and private practitioners alike. Legal journals and textbooks are frequently edited by prominent practising solicitors and barristers, legal blogs dedicated variously to topics broad or obscure abound, and a myriad of conferences and associations act as fora for both academic and practical discussion of the foremost legal topics of the day.


Academia in the City: Bridging the gap between legal theory and practice

SPEAKING IN TERMS OF MY OWN AREA OF PRACTICE, I HAVE FOUND THERE TO BE A REAL SENSE OF COMMUNITY AND A TRADITION OF SCHOLARSHIP AMONGST PRACTITIONERS IN INTELLECTUAL PROPERTY. On reflection, this is perhaps unsurprising given the intangible and at times abstract nature of the rights we protect, the jurisprudential bases and policy-driven justifications for the existence of those largely statutory rights, and the varied academic backgrounds of those who practise in the area (including many with graduate and PhD level qualifications in technical fields). IP also benefits from current and former members of the judiciary in many jurisdictions who participate actively in the broader community and the academic discussion of the state of and developments in IP law, even as they continue to shape it. Amongst the many associations in the IP community (of which there are far too many to name), one in particular comes to mind as a prominent example of the intersection between legal scholarship and practice – the International Association for the Protection of Intellectual Property (AIPPI). AIPPI has over 9000 members from over 100 countries (including practitioners, judges and academics) and its stated objective is to “improve and promote the protection of intellectual property on both international and national bases” by working for the development, expansion and improvement of international and regional treaties and agreements and national laws relating to intellectual property. Through the activities of the various AIPPI Standing Committees (which are dedicated to broad on-going areas of study) and the Study Committees that are convened each year to discuss specific legal topics, AIPPI conducts studies of existing national laws and proposes measures to achieve harmonization of these laws on an international basis. In practice this takes the form of formal resolutions and reports issued on behalf of the organisation as a whole. Since its founding in 1897, AIPPI has published over 700 resolutions, which are available in English, French and German and sent to the World Intellectual Property

Organisation, World Trade Organisation and national IP offices around the world. These resolutions often hold significant influence and are commonly referenced in the course of trade negotiations and legislative discussions. By participating in the drafting of responses to the questionnaires disseminated to each national group, proposing amendments to the draft resolution prepared after the consideration of each group’s responses, and ultimately voting on the adoption of the final resolution at AIPPI’s annual World Congress, individual practitioners are able to contribute to the scholarship and thought leadership of the organisation as a whole. The staged, iterative process of the preparation of a formal resolution also offers ample opportunity for discussion and debate, both at a national and international level. Of course, in addition to participation in these broader national and international initiatives there is a regular diet of case notes, updates and articles which solicitors will generally be encouraged to write and publish, either on their firm’s website or blog, or in an industry or mainstream media publication. The benefits of actively contributing to legal scholarship and academia whilst practising as a solicitor are many and varied. For junior lawyers still learning their craft (or indeed even for more experienced practitioners looking to expand their practice into new areas) it offers an opportunity to dig deeply into and to develop new understanding and expertise on a particular topic or area of practice. The old adage that you learn most by teaching rings very true in this regard. Moreover, it is an excellent way to begin to build up a personal profile and to develop a specialism and professional identity – the key selling point of any lawyer. Having a body of legal commentary and academic work is a great credentialising asset, and functions as tangible evidence of one’s interest and expertise in a particular area for a prospective client or employer (especially where one can show a consistent track record of several articles over a period of time).

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developments in that specialist area, and to develop useful professional connections within that field. One concern I have heard expressed is whether, as a junior lawyer, it is difficult to be taken seriously and get published. In my experience, I have found that such self-doubt is more of a self-fulfilling prophecy than anything else. Age should not be, and is not, a barrier to entering the world of legal commentary, provided the writer has done their research and presented a logical, thoughtful and wellreasoned argument. There is also certainly a virtuous circle effect in play by which writing more (and well) will build one’s profile and lead to further opportunities for publication and comment, based on the strength of one’s content, rather than one’s age. In fact, in an age where content is king and there exist a wide array of media to generate and share content, there is unprecedented opportunity for younger solicitors to develop a profile and following via channels still relatively untapped by what is admittedly a fairly conservative profession. For example, in my experience, although many lawyers have a LinkedIn account, they are rarely used effectively, and very few have a presence on Twitter at all. This is despite the fact that legal academics and clients are often fairly active on these channels. One of the challenges for anyone starting their career (whether in the legal profession or otherwise) is to differentiate themselves from their peers to their employers and clients. As a trainee or junior solicitor there can sometimes be limited scope for choice or creativity in work assignments, despite the fact that the work you do in those formative professional years will play a significant part in shaping your legal career. Legal writing and speaking on a topic or specialism of one’s own choice offers a way to break that circuit and start to determine the direction of one’s own career. Accordingly, I would strongly encourage any young solicitor to actively seek out opportunities to engage in legal academic writing and speak on topics they find interesting, even if outside of their current practice group rotation.

For those who have already begun to develop a specialism, active participation in the broader legal and academic discourse is also an excellent way to continue to stay up to date with the latest

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LENT 2019

Essays

Constitutional Law

CONSTITUTIONAL LAW ‘How far, if at all, can Parliament limit or exclude judicial review? Does the answer depend on the true foundations of judicial review and, if so, why?’ Amber Turner Some had attempted to argue that Parliament was incapable of excluding judicial review as it is a ‘constitutional fundamental.’ This, however, does not sit easily with the fundamental principle of parliamentary sovereignty. Those who see the foundations of review in parliamentary intention (supporters of the ultra vires model) also argue that any other theory represents a challenge to sovereignty, but also that the common law model in particular would allow ouster clauses to be effective (Forsyth). If this view is accepter, then, perhaps the foundations of judicial review do influence the extent to which review can be excluded. This essay will argue that Parliament can, to an extent, limit judicial review, and that this is consistent with only some of the models of judicial review.

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FORSYTH’S VIEW Forsyth argued in his eminent defence of the ultra vires model of the foundations of judicial review that

THE JUDICIAL ABILITY TO IGNORE OUSTER CLAUSES CAME FROM THE ULTRA VIRES MODEL’S APPLICATION. He draws on a South African case which adopted the common law model, and by doing so accepted that a decision was not subject to judicial review as it had been made under powers granted by an Act which also designated the exercise of those powers immune from review. Forsyth argues that, had ultra vires been used, the decision could have been held to be ultra

vires the Act and therefore not caught by the ouster clause, as only decisions made under the Act were covered. This logic seems to have been applied in Anisminic where a ‘purported determination’ of the Foreign Compensation Commission was not immune from judicial review as an ordinary determination would have been because, as Lord Reid put it, ouster clauses cannot ‘protect a nullity.’ This view, then, holds that decisions which are mind intra vires may be protected from judicial review, but that any decision ultra vires is inherently reviewable. This gains support from the decision in Page which held all errors of law are reviewable.

CAN PARLIAMENT GO FURTHER? Forsyth suggests that under the common law model (which sees common law rules as forming the foundation of judicial review) promulgated by Craig and Oliver, ouster clauses may be effective even where a determination is only a purported


Constitutional Law

determination. This, however, is not clearly correct. There is a common law presumption in favour of the Rule of Law, in the light of which all legislation, including that containing ouster clauses, will be read (Simms, Pierson). Considering the particular weight given to the right of access to the courts by the judiciary, most recently shown in UNISON where Lord Reed noted access to justice was ‘inherent in the Rule of Law,’ it seems unlikely that a common law-informed reading of a statute would automatically consider an ouster clause conclusive. On the contrary, Craig sees the decision in Anisminic as demonstrating a presumption against ouster clauses. He also points out the lack of guarantee under the ultra vires model that ouster clauses will never be effective. In the recent case of Privacy International we witnessed the first successful ouster clause (as Legatt J pointed out in the Divisional Court the ‘express words’ which Anisminic had required be used to exclude review had until now not been found to have been used). It is submitted that neither the common law model nor the ultra vires model could have prevented the ouster clause contained in s67(8) of

the Regulation of Investigatory Powers Act 2000 being effective. First, the provision refers specifically to determinations of the tribunal as to jurisdiction being excluded, meaning the ultra vires theorists would have struggled to say the determination challenged was merely ‘purported.’ Second, given common law presumptions are just that (presumptions) they can be overridden and Young argues that the language used here was sufficiently explicit to override the presumption. Young also argues that the ouster clause being upheld is not necessarily a threat to the Rule of Law, because Anisminic is not authority that the exclusion of review will always be contrary to the Rule of Law. Indeed, she argues that the Rule of Law might sometimes require that ouster clauses be effective when this is on balance better for the public interest.

THE RULE OF LAW MODEL Allan argues that the foundations of review are in the Rule of Law. Parliament lacks the power to legislate contrary to the Rule of Law and because of this it can never authorise someone else to act contrary to it. Acts contrary to the Rule of Law are

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therefore always ultra vires. On his view, if a decision maker acted contrary to the Rule of Law, he would be ultra vires whatever Act had granted him the apparent power and thus the same Act could not protect his conduct from review. Therefore, when we consider Privacy International there is no reason to see the decision as contrary to the Rule of Law. Ouster clauses may be tolerated if the act protected never violated the Rule of Law to begin with.

CONCLUSION In light of Privacy International it must be accepted that judicial review can be excluded to a limited extent. Even if this is overturned, Anisminic remains good authority for the same point. Ultimately, the Rule of Law model comes closest to explaining this but there is no reason any of the models would preclude the same conclusion. Judicial review can be limitedly excluded but not, it seems, abolished, as this would protect all decisions, even those contrary to the Rule of Law (Lord Steyn in Jackson).

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LENT 2019

Essays

Land Law

LAND LAW ‘Where parties can reasonably be expected to regulate their relationship by a binding contract if they want to do so, equity should fear to tread. Not so where the relationship between the parties is such that they cannot be expected to have recourse to contracts.’ (LORD NEUBERGER OF ABBOTSBURY) Do you agree? How far, in your view, does this distinction go towards explaining differences in outcome between decided cases on proprietary estoppel?’ Annie Mackley This distinction goes a long way towards explaining differences in outcome between cases of proprietary estoppel, because where there is a failed contract, the courts are unlikely to find that there was a subsidiary promise that there would be an interest despite non-compliance with the relevant formalities. As such, it is true that ‘equity should fear to tread’ in such cases, though sometimes the courts seem to have forgotten this maxim. This essay will argue that 1) proprietary estoppel claims in failed contract cases show a reluctance to rescue people from failed transactions unless absolutely necessary, 2) much greater flexibility is seen in cases where parties can’t be expected to have recourse to contract, and 3) that this is explicable

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based on theories of unconscionability.

FAILED CONTRACTS The case most supportive of Lord Neuberger’s statement is Cobbe v Yeoman’s Row, in which it was explained that proprietary estoppel could not be used simply to remedy a failure to comply with the relevant formalities, but would only be used to remedy unconscionability (which has been the foundation of law in this area since Taylor Fashions v Liverpool Victoria). This is undoubtedly the correct approach to take – adopting Fuller’s concept of formalities as serving evidentiary, channelling and cautionary functions, it is clear that contracts serve a vital role in

providing certainty and conclusiveness to land transactions. Given that Carol Rose has suggested that land law has ‘a hard-edged signalling function’, the courts ought not to brush non-compliance under the carpet. Sometimes, however, the courts have been less than attentive to these concerns. For example, in Kinane v Alimamy Mackie-Conteh, a failure to observe the contractual rules on mortgage formation was straightforwardly rectified by means of proprietary estoppel. As Dixon rightly notes, this case demonstrates a laxity which does not fit with Lord Neuberger’s arguments and as such was probably wrongly decided. On the other hand,


Land Law

rescuing a failed contract was perfectly acceptable in Ghaazani v Rowshan where it was the only way to rectify unconscionability, and in Matchmove v Dowding where the parties had considered an oral contract immediately binding on them. In such cases equity is correct to intervene – formalities must not turn into a tool of tyranny which undermines the integrity of land law itself. These cases are entirely consistent with Dixon’s argument that equity ought to intervene where the parties have made a subsidiary promise that there will be an interest whether or not the relevant formalities have been complied with. Normally in contractual cases, the parties will have intended to rely on the contract and the contract alone (as in Cobbe and probably in Kinane). However, occasionally the parties have gone beyond the contract, creating a unconscionability which can only be remedied by resurrecting the contract (as in Ghazaani and Matchmove; also the preferred view of unconscionability taken in AG of Hong Kong v Humphreys Estates). Therefore these cases are readily explicable on the basis of Lord Neuberger’s statement.

NON-CONTRACTUAL CASES By contrast with the contractual cases,

MUCH MORE FLEXIBILITY IS DEMONSTRATED IN THOSE CASES WHICH DO NOT RELY ON CONTRACTUAL FORMALITIES, BOTH IN TERMS OF ACQUIRING AND INTEREST AND SATISFYING IT.

There are two main contexts in which parties cannot have been expected to resort to contract, which I would like to examine. Firstly, inheritance cases. Thorner v Major is often welcomed as a case which drew back from the more formalistic requirements of Cobbe, returning to the holistic approach seen earlier in Gillett v Holt (also an inheritance case). However this difference can be explained simply on the basis that inheritance cases typically do not rely on contract, whereas in commercial cases like Cobbe which require contracts, the parties are expected to regulate their own relationships more carefully. As such we have seen a great deal of flexibility in these cases, with heavy reliance on context and the intentions that can be ascertained from everyday dealings (e.g. the complex family relationships in Shirt v Shirt, and the fact-sensitive approach in Whittaker v Kinnear). Although Mee has argued that there is far too much flexibility here, again this is explicable on the grounds that the parties are more likely to have made Dixon’s subsidiary promise where they are not solely reliant on a particular formality which both parties know regulates their relationship. The second example is estoppel in the context of its relationship with constructive trusts; as explained by Thompson, estoppel requires a lower behavioural threshold (as seen in Arif v Anwar) and gives a more diverse range of remedies than a constructive trust, yet both are often used in similar situations (as in Yaxley v Gotts). This is perhaps down to the fact that in such circumstances the parties are not expected to rely on any formalities at all, let alone a contract. This also helps to explain what Gardner suggests is a fairly unstructured discretion in relation to satisfaction of estoppels under the expectation-detriment scale in Jennings v Rice. Where no set formalities are complied with, the court may award

PER INCURIAM

a diverse range of proprietary and nonproprietary remedies; however, where the courts are simply rescuing a failed contract, their discretion is limited firstly by Lord Neuberger’s fear of over-interference, and secondly by what the contract itself was trying to achieve.

A JUSTIFIABLE APPROACH? Lord Neuberger’s approach is fully justifiable. The role of land law is, as Lowe explains, very rarely to rescue people from failed bargains. However, it may legitimately tackle unconscionability, or else it risks people using formality requirements including contracts to perpetuate transactions which the law thinks are undesirable. Dixon’s view therefore based on subsidiary promises is a helpful way of defining unconscionability, and thus the circumstances in which it is legitimate for proprietary estoppel to intervene. As explained, in failed contract cases, there is unlikely to be such a subsidiary promise – the parties know that they must use a contract for certain transactions (e.g. under s 2 of the LPMPA 1989), and are unlikely to have made subsidiary promises beyond that. By contrast, when lesser or no formalities are required, it is more likely that such a subsidiary promise will be found. Thus, underlying Neuberger’s statement is a rather sophisticated notion of unconscionability while helps us to impose a structure on these cases. To conclude, Lord Neuberger’s statement is an accurate one, provided that we adopt a clear notion of unconscionability. Subject to minor blips like Kinane, estoppel cases can be generally divided into those where the parties would have been expected to contract and those where they could not, based on situations where we find subsidiary promises not to rely on formalities, which certainly shouldn’t be thrown away lightly.

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LENT 2019

Essays

Criminal Law

CRIMINAL LAW ‘The precise line between the law of voluntary intoxication and the law of insanity may be difficult to identify in some borderline cases.’ Discuss. Guillermo Íñiguez The relationship between the law of insanity and that of voluntary intoxication shows the unsatisfactory nature of both defences, which have become excessively overlapping. In this essay, it will be agreed with the statement, and it will be concluded that a fundamental reconception of the law of insanity is required, which, albeit not justifying crime committed while voluntarily intoxicated, recognizes that a more liberal (and realistic) approach is required in this area. The law of insanity is laid out in the M’Naughten Rules, themselves endorsed in Sullivan. A person is legally insane if, due to a “defect of reason” arising from a disease of the mind, she is unable to appreciate the nature and quality of her acts or that what she is doing is wrong. A finding of insanity will lead to a verdict of not guilty by reason of insanity, which will be followed by nonpenal coercive measures. The defence of insanity, however, is very narrowly interpreted: the “disease of the mind” has to arise due to an internal pathology, external sources (such as insulin in Quick or LSD in Lipmann) not sufficing. Furthermore, a person is legally sane as soon as she understands that her actions contravene the law, regardless of how distorted that understanding is (Windle). The law of voluntary intoxication, on the other hand, was laid out in Majewski. In crimes of basic intent, that is, those in which the MR does not extend beyond the AR, D will not be able to use her voluntary intoxication to raise reasonable doubts over her MR. It will be considered recklessness, and therefore sufficient to satisfy the MR. In specific intent crimes, however, this will not be the case: D will have had to form a MR, which can be claimed not to have been present due to intoxication. In crimes such as murder or theft, therefore, D will be able to rely on intoxication as a denial of MR. The blurred line between both defences

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is highlighted by Stark in Prior Fault. The defence of insanity, he argues, plays a key normative function in the criminal law, serving to distinguish those morally accountable for their actions and those who are not so. It is for that reason that it is difficult to appreciate why it is that narrowly interpreted and that clinical, leaving out defendants who could hardly be considered “sane” in the ordinary sense of the word. Lipmann and Coley both provide very good examples of the artificial distinction between voluntary intoxication and insanity. In both cases, D committed a crime while in a state of complete intoxication – the former having taken LSD and the believing V was a snake, and the latter having taken cannabis and believing he lived in a videogame. In both cases, the defence of insanity was not available, since their diseases had not arisen from an internal pathology but from an external drug. In both cases, therefore, they were held to have been voluntarily intoxicated and were thus convicted. One does not have to feel excessive sympathy towards intoxicated criminals to wonder whether the line between voluntary intoxication and insanity is too artificial or whether the law approaches the latter in the correct way. After all, if one deems the underlying reason for the defence of insanity to be the fact that some individuals are, due to their mental state, unaccountable for their actions, it is difficult to explain the convictions in Lipmann or Coley. It is to be doubted, as Stark argues. After all, the ordinary meaning of the word “sane” would hardly apply to such people. The excessively clinical interpretation if insanity, as it stands, means that it fails to capture many defendants who, although perhaps voluntarily intoxicated, can hardly be considered wholly accountable for their actions. Hennessey, in this sense, might

prove a more sympathetic example, as D was not only drunk, but also undergoing a delicate personal situation. The argument that, by expanding the law of insanity to incorporate such cases of voluntary

CAN A PERSON WHO BELIEVES HE IS FIGHTING OFF SNAKES OR STORMING THROUGH A VIDEOGAME REALLY BE CONSIDERED LEGALLY SANE, DESPITE THE FACT THAT HE IS VOLUNTARILY INTOXICATED? intoxication under “disease of the mind”, one would be tolerating, and even encouraging, intoxicated crime, does not stand. A verdict of not guilty by reason of insanity does not lead to a straight acquittal, but to non-penal coercive measures. What an expansion of the law to include the “borderline cases” the question makes reference to within insanity would achieve, however, would be twofold: fairer labelling, on the one hand, and a preferable normative basis. This, as has been argued, does not mean defending drugged crime: it means understanding that an 1843 conception of what constitutes a “disease of the mind” may be outdated, that human behaviour has changed and that only in the law, and not in reality, does a strict line between voluntary intoxication exist. Those borderline cases, such as Coley, Lipmann and Hennessey should be dealt with by a criminal law more sympathetic towards the complex nature of the human mind, and towards the fat that no one (not even the law) is infallible, and people do get drunk and commit crimes. Only if this is the case will the criminal law be satisfactory.


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LENT 2019

Essays

Jurisprudence

JURISPRUDENCE ‘No one is bound by principles that might have been accepted in the original position, because that position has never existed. So Rawls’ approach to justice is quite implausible.’ Discuss. Etsuko Lim

INTRODUCTION I first set out Rawls’ original position (OP). While it is true that the OP has never existed, that fact alone does not suggest that no one is bound by the principles that might have been accepted in that position, given the aspirational texture of the OP. however, I agree that Rawls’ approach to justice is implausible, but for other reasons, namely: his fetishisation of justice for the basic structure, and his naïve assumption of human altruism.

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RAWLS’ OP

THE NON-EXISTENCE OF THE OP

Rawls’ OP is a device of representation to enable us to reach a state of reflective equilibrium, so we arrive at a set of considered convictions about justice for the basic structure of a well-ordered society. The OP requires that individuals decide, on grounds of self-interest and rational choice, upon the principles of justice for their society but from behind a veil of ignorance where our specific conceptions of the good, individual identities, and distinctive traits are not known.

It is arguable that the OP has never existed, and so the principles that might have been accepted in that position are not binding. Sandel argues to this effect when he says that the veil of ignorance, central to the OP, falsely assumes that we have identities prior to our conceptions of the good, when our identities are constituted by social projects of our undertaking; moreover, the neglect of our personal attributes renders the OP inherently flawed, because our attributes define us, so choosing under the OP renders us “radically disembodied subjects”.


Jurisprudence

However, the fact that the original position has never existed does not lead us to conclude that no one is bound by the principles that would be accepted in that position. This is because of two reasons. One, it reflects Rawls’ precise methodology of arriving at a theory of justice; if not for the enlightening model of the OP, all we would be left with are relatively formal and unilluminating principles such as Hume’s circumstances of justice, or Hart’s idea that like cases should be treated alike. It could even be said that the very fact of the OP’s non-existence is what renders it instrumental in helping us reach a theoretical vantage point for us to reconsider our settled beliefs on justice. If, on the contrary, we operated from a position that we are accustomed to, we would well be left with relatively barren insights on justice. Second, the OP can be said to carry normative weight in that it instructs us as to how we should orient our society, given the profound inequalities in talents and abilities that do exist. The OP sheds light on how our concepts of justice would change if we had no idea about our relative social privileges. As such, if the purpose of the OP is to help us achieve a just basic structure, the principles arrived at under the OP should bind us, as a matter of normative principle. The irrelevance of the claim that the principles of justice under the OP are not binding because of the OP’s nonexistence is further demonstrated when we examine the principles Rawls suggests we would actually arrive at. The first principle is that all individuals are entitled to the most extensive scheme of equal basic liberties to the extent compatible with a similar scheme of equal liberties for everyone else. Notwithstanding objections to the liberties that Rawls specifically identifies, he justifies this principle on grounds that an extensive scheme of liberties facilitates our pursuit of the good life; this is a statement that is intelligible both from the viewpoint of the OP, and when considered in reality, with full cognisance of our distinctive identities. The second principle, the difference principle, is also intelligible on grounds of maximin – that the difference principle would guarantee us the “best worst” outcome if we were the least advantaged in society, because everyone else’s access to primary goods would only be increased to our benefit. Whether one is “bound” by principles accepted under the OP must be read in light of Rawls’ aims; it is true that there is no coercive force, legal or moral, binding upon us to accept these principles of justice. But if we are agreed with Rawls on our endeavour to develop a shared public conception of justice that underpins our institutions, that conception should be animated by considerations of the right

over the good, even if this is not a stance we would defer to when in knowledge of our unique privileges and social positions. That said, Finnis’ objection to Rawls’ approach carries some merit. Finnis agrees that principles accepted under the OP are fair, at least as between the agreed parties, because of the systematised ignorance imposed on individuals acting out of self-interest; but he points out that “if” is not synonymous with “only if”, and that Rawls has failed to prove why principles that discriminate between liberties are unreasonable or unjust, if they are not principles that would not be chosen under the OP. This is a fair objection, but simply proves that people may be bound by positions other than those that might be accepted under the OP, and not that the latter principles are to be rejected in virtue of the hypothetical nature of the OP.

FIXATION ON THE BASIC STRUCTURE Nonetheless, there are other independent flaws of Rawls’ approach to justice that render it implausible. His difference principle allows for talented individuals to respond to financial incentives, but Cohen points out the incoherence of such a ‘just’ society, where the weak are at the mercy of the talented; the latter have deliberately engineered an unjust choice by refusing to work for less income. Rawls’ riposte, that the justice of the basic structure (which is his only concern) does not preclude other non-distributional injustices. There are several problems with this. First, his approach to justice is implausible because it fails to recognise that equality/ justice requires the reforming of individual conduct. Rawls’ emphasis on the basic structure is due to the profound effects that the basic structure exerts on us, but this is also true of informal structures and patterns of individual choices. More problematically, Rawls’ basic structure is poorly defined; he includes not only legally coercive structures, but also indirectly coercive structures like that of the family.

THE BLURRED DISTINCTION BETWEEN LEGALLY/ FORMALLY AND INDIRECTLY COERCIVE STRUCTURE IGNORES THE FACT THAT SOCIAL STRUCTURES ARE INSTANTIATED AND CONSTITUTED BY INDIVIDUAL CHOICES, AND THEIR ATTENDANT SOCIAL ATTITUDES.

PER INCURIAM

Rawls’ theory of justice is hence implausible – not for the reasons raised by the quote in the question, but because it neglects the fact that justice is and should be responsive to individual choices and attitudes, not merely the justice of the basic structure.

ILLUSORY STABILITY OF WELL-ORDERED SOCIETY Rawls’ approach to justice is also implausible for another reason. Rawls seeks to justify the stability of his well-ordered society by claiming that individuals, out of self-interest, will seek to realise their free and equal nature by reflecting a sense of Kantian autonomy and making justice a supremely regulative force in their lives. Rawls’ approach is flawed in two ways, as he himself later concedes. First, it fails to account for responsible pluralism – that in a democratic society, reasonable people have reasonably diverse ways of pursuing conceptions of the good – so there will not be sufficient people who arrive at that conclusion in the same way to render the well-ordered society stable. Second, the desire to act justly is one of many secondorder desires we have, but Rawls simply asserts that it is one that individuals will regard as hierarchically superior – a strange assumption, given that Rawls agrees with the Humean idea that questions of justice only arise in cases of limited altruism. Hence, it is in its assumption of the unlimited altruism of humans that Rawls’ theory is quite implausible.

CONCLUSION The fact of the OP’s non-existence should lead us to embrace, rather than reject, the principles that might have been accepted under the OP as binding. This is because the very point of the OP is to prompt reconsideration of our moral convictions and to allow us to attain reflective equilibrium, so the question to be answered is how individuals should, rather than would, behave. It is in the subsequent stages of his approach to justice that Rawls falters. In accounting for his focus on the basic structure and the stability of the Rawlsian well-ordered society, considerations of how individuals would actually react are more important than when operating under the OP. It is on these grounds that Rawls’ approach is rendered quite implausible.

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LENT 2019

Essays

Administrative Law

ADMINISTRATIVE LAW ‘Courts have a duty to declare that unlawful administrative action is a nullity.’ (ADAMS) Do you agree? Jared Kang Adams (2017) argued, interestingly, and in a strand which seems contrary to the accepted orthodoxy that all unlawful administrative acts are ipso facto void ab initio without the need for any “declaration” (Ahmed v HM Treasury (No 2); Forsyth (2013)). To some degree I agree with his argument, however, there is an aspect of it with which I sit uncomfortably. It is this discomfort, and the difficulties with orthodoxy which compel me to place my agreement with Feldman (and to some degree, Nadhamuni). First, I will begin by outlining Adams’ argument. He proposes that instead of automatic voidness, that a finding of unlawfulness of an administrative act creates a duty on the court reviewing such administrative act to declare such act a nullity either from the beginning (i.e. ab initio) or only prospectively. This pragmatically serves to avoid the major problem of “unravelling”, which a finding of unlawfulness entails (as noted by Lord Steyn in Boddington). Adams argues that the reason prospective nullity is permissible is because administrative actors have the jurisdiction to interpret

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their own powers, albeit not conclusively. This ability to interpret one’s own powers, he argues, has a normative character as it can alter the rights and obligations of the people subject to such power. He draws an analogy with a Court of Appeal decision in which the Court plainly and erroneously misapplies a binding precedent of the Supreme Court. In such case, we do not think that the Court of Appeal’s decision is void ab initio. Instead, we conceive of the situation as being one where the Supreme Court has an obligation (if appealed) to correct the lower court’s decision. As we note with judicial cases, this correction is only prospective and so the same reasoning might apply to administrative acts. However, this is where I must lodge disagreement with Adams. I submit that the comparison between an administrative decision-maker (“DM”) and the Court of Appeal is flawed because the latter is of infinite jurisdiction. The fact that the DM might affect the rights and obligations of individuals when interpreting his own powers (incorrectly) cannot have the normative character Adams suggests.

To accept this would be to accept that unlawful determinations can have normative validity. While this may not be jarring in cases where a DM misinterprets his powers only to a minor degree (e.g. he thought that he could take into consideration a minor factor as permissible when it was actually impermissible), the logical endpoint of Adams’ submission is that even the most egregious of unlawful acts could possibly have a normatively valid character. That being said, this is merely my theoretical difficulty with his argument. If applied pragmatically, it is certain that the reviewing court would hold such egregiously unlawful acts void ab initio as is permissible in his view. However, this theoretical flaw in Adams’ view leads me to the second part of this essay, which is to consider my agreement with Feldman. The starting point of this part of the discussion is Feldman’s assertion that by equating all errors of law with errors of jurisdiction (as is the position stated in ex parte Page), the courts have deprived the notion of jurisdiction of any analytical coherence and utility. This certainly seems to be the case, and is the


Administrative Law

problem Adams seeks to resolve as well. Even Forsyth (2012), one of the strongest defenders of the current orthodoxy, noted that

THE UNEQUIVOCAL REJECTION OF THE LACK OF A DISTINCTION BETWEEN JURISDICTIONAL AND NON-JURISDICTION ERRORS OF LAW OUGHT TO BE “REVISITED”. On this basis, Feldman makes three main arguments: (a) that the law has paid too much lip service (notable in Boddington and Ahmed (No 2)) to the lack of distinction between errors in and out of jurisdiction; (b) that legal relationships are often far more complex than the simple proposition that something is void or not; and (c) that the rule of law (which is itself the basis for the principle of legality that forms the basis of the proposition that all unlawful administrative acts are void ab initio and therefore do not need to be “declared” a nullity as Adams suggests) consists of other principles such as the principle of legal certainty which can arguably offset the effects of the principle

of legality in its own right. For the first proposition, Feldman argues that the need to “declare” an unlawful administrative act void will arise if it breaches a mandatory rather than a directory requirement for the exercise of power. This is supported by old case law; e.g. Peachy Properties where Lord Denning MR said that the unlawfulness must be “so grave” before it can be cause the act to be void ab initio. Similar sentiments were made by Woolf LJ in Bugg v DPP and Lord Mance even noted in the post-Page case of DPP of the Virgin Islands v Penn that a distinction between mandatory and directory requirements might be valid, criticising the “modern tendency” not to “seek to identify or distinguish between mandatory and directory acts”. To support point (b), Feldman turns to Aylesbury Mushrooms which he argues demonstrates a complex differing legal relationship between the various parties — those consulted and those which were not. And on point (c), it is noted that Green J in British Academy of Songwriters notes that legal certainty is difficult to preserve in a system where all unlawful administrative acts are automatically void ab initio without a careful assessment as to the repercussions of “unravelling”, and a subsequent declaration if appropriate. Nadhamuni makes a similar argument in

PER INCURIAM

this regard, noting that the principle of legality should not invariably trump legal certainty without a close analysis of the factors at-play. On these bases, I submit that Feldman’s view is the preferable one and to some degree, imposes a “duty to declare” an unlawful administrative act a nullity if the considerations above call for such declaration (i.e. a mandatory requirement is breached and the principle of legal certainty weights in its favour). This is as opposed to the current orthodoxy where no declaration is even necessary. As a final note to conclude, I would like to reject Craig’s argument based on remedial discretion. Even though it might lead to similar or even the same outcomes as an application of Feldman’s approach, it is simply unprincipled and falls afoul with even the most basic tenet of Dicey’s rule of law — that rule should not be by discretion. As for the orthodoxy and Forsyth’s second actor theory, I must admit that I am unable to address them due to time constraints — however, I will notionally submit that while Forsyth’s solution is elegant, it is not itself sufficient as it turns on the need for a second actor. Often, there will be cases where a null and void act can cause practical chaos even without secondary actors acting in reliance of the first unlawful act.

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LENT 2019

Essays

Company Law

COMPANY LAW ‘The directors’ duty of care, skill and diligence has changed little over the past century, and fails to reflect the level of competence and responsibility that society has come to expect of corporate boards today. Neither the Companies Act 2006 nor modern case law adequately responds to this problem.’ Discuss. Jennifer Shelley The directors’ duty of care, skill and diligence has changed significantly over the past century, evolving from a laissez-faire attitude of the courts to more stringent requirements on boards, particularly with respect to non-executive directors. However, difficulty remains in applying both a subjective and objective test and the truly substantial effects of s. 174 remain to be seen. We are increasingly having to resort to alternative methods to uphold the duty of care owed by directors.

COMMON LAW DEVELOPMENT OF THE DUTY OF CARE Initially the common law took a very laissezfaire attitude to the duty of care, as can be seen in Re Cardiff Savings Bank, where it was perfectly acceptable for a 6-month

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old baby to be appointed to the board of directors and not attend board meetings. Although this is arguably an extreme case, the reticence of the court to formulate a substantive duty of care could be seen in Re City Fire Equitable Insurance where the court said that a director need not attend every board meeting where it is not reasonable for them to do so. However, there has been development in the common law approach, which can be seen in Re Barings Plc (No. 5). Here the court developed the duty of care by indicating that a director actually needs to know about the business in which the company is engaged and take more oversight of delegation. Further development came in Norman Theodore Goddard where counsel proposed that s. 214 of the Insolvency Act

1986 be incorporated in®to the common law duty of care. This was accepted by Lord Hoffmann in the case and in the subsequent judgment of Re D’Jan of London and we can see this implemented in s. 174 CA 2006. Consequently, it can be seen that the common law has developed and this development has led to statutory reform, contrary to the statement.

S. 174 CA 2006 S. 174 CA 2006 incorporates a subjective and objective standard. The director must exercise the skill, care and diligence that would be exercised by ‘a reasonably diligent person’ and this incorporates their own level of knowledge in s. 174(2)(b). Arhen noted


Company Law

that in developing the statutory duties there is a concern that development has been stifled. However, he also notes that This was confirmed in Gregson v HAE Trustees Ltd where the court confirmed that the statute codifies the existing common law position and so essentially it is up to the courts to develop it from there. Despite this, difficulties remain in identifying when the directors have fulfilled their duties,

THE STATUTE TAKES A VERY ‘BROAD BRUSH APPROACH’ WHICH INEVITABLY REQUIRES THE COURTS TO FILL IN THE GAPS. particularly because the court needs to apply an objective test determining what a ‘reasonable’ director might have done, which potentially involves considerations of commercial factors. Despite this, the courts have given s. 174 some substance. This can be seen in Westmid Parking Services Ltd where the court emphasised the collective responsibility of the board and emphasised that no director could simply delegate all of their duties. This can also be seen in Raithaitha v Baig where the directors had breached their s. 174 duties by failing to adequately supervise their delegates.

NON-EXECUTIVE DIRECTORS Arguably the greatest development has been seen with respect to non-executive directors, who have a duty to adequately supervise the executive directors on the board (City Equitable Life Assurance). In Lexi Holdings the court strongly emphasised that non-executive directors cannot let themselves be ‘bamboozled’ by other directors on the board. However, arguably the greatest development in the area of non-executive directors is in the Corporate Governance Code which provides more substantive duties for non-executive directors such as holding the other directors to account with respect to financial reports and remuneration. It also provides for the minimum number of non-executive directors to be on FTSE-350 boards and non FTSE350 boards. This demonstrates that nonstatutory and non-common law provisions can be more effective in setting standards for boards.

DIRECTOR’S DUTY IN PRACTICE As we have seen, the common law in conjunction with statute does provide for more supervision of delegation and collective responsibility, but it does not necessarily provide for what an individual director must do in the course of his duty.

PER INCURIAM

Re Pro4Sport held that a decision need not be reasonable. This perhaps indicates why the s. 174 duty has had little effect in practice. As Loughrey observes, following the financial crisis, it was remarkable that not a single successful claim for breach of director’s duties was brought, despite, as Moore notes, considerable consternation on the part of shareholders on the lack of care boards seemed to exhibit in pursuing riskier investments. The FCA, when investigating felt that there were no potential claims based on s. 174 to be made. Thus it can be seen that. S 174 is not having as great an impact as might be expected based on the development of the caselaw. Moore posits that the s. 174 duty could be seen as ‘symbolic’ of societal expectations of board. This in combination with the increased focus on directors disclosing their affairs, could be having more of an effect (Item Software v Fassihi). However, in order for this to be effective more normative content needs to be ascribed to the individual director’s duties. To conclude, the duty of care has developed to be more in line with societal expectations but still remains ineffective and ultimately it is other mechanisms such as the corporate governance code and disclosure which could be the way forward, provided that s. 174 is refined.

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LENT 2019

Essays

Equity

EQUITY When he died on 1 January 2018, Arle left a will making gifts of £10,000 each: (i) to encourage plain speaking by politicians and to encourage private moneys to be used to improve public services, particularly the National Health Service; (ii) to display paintings made by zoo animals; (iii) to Frederic, solely to provide for the education of the children of the poor employees of Brown Sauce Ltd; (iv) to the National Anti-Vacation Society, which exposes the dangers of vacations and rest and seeks the abolition of bank holidays in order to increase the gross national product; and (v) to the Wonkshire Home Productivity Council. The Council’s objects were to further the interests of, and advise, persons wishing to grow vegetables at home for human consumption, as a contribution to a ‘shrinking carbon footprint’. The Council was incorporated on 1 January 2010 but went into voluntary liquidation on 31 July 2015. Under an approved scheme, its funds were transferred to the UK Council for Home Productivity on 1 August 2015. Advise Arle’s executor, Edith, as to the validity of these gifts.

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Equity

Maj Mohamed Many of these gifts look like they may at first sight be to charities of charitable purposes. s2(1) CA 2011 confirms that these must have a charitable purpose (s3(1) CA 2011), provide benefit to a sufficient section of the public (S4(1)) and have purposes that are wholly and exclusively charitable (s1(1)(a)). If the gifts do not meet these requirements, they may nonetheless be valid as private gifts for a purpose which can be saved by Re Denley or gifts to UAs (held in a particular way).

THEY WOULD BE PREFERRED AS CHARITABLE GIFTS AS THIS BRINGS ADVANTAGES RELATING TO INHERITANCE TAX

GIFT 1 The first gift here is for plain-speaking politicians. This does not fit neatly under a particular charitable purpose, but may fall under s3(1)(e) advancement of citizenship, as it would be in the best interests of society. Thus, it may satisfy charitable purpose. The greater issue may be found under the public benefit test, which is elaborated on in the Charity Commission Public Benefit Guidance (‘PBG’). There will not be a problem of personal nexus here as PBGs confirm that reference to an occupation is fine, so long as this does not depend on a particular employer. Bowman v Secular Society confirmed that charity trusts cannot be for political purposes, such as party political purposes. However, this gift does not seem to be for a particular political party but for all politicians and therefore will not fall foul of the political purposes rule. Since there is a clear identifiable benefit (Part 3 PBG) from politicians speaking honesty and the whole country would potentially benefit (this is a sufficient section of the public – Part 5 PBG), this will be a valid charity trust. The second part may fall under numerous charitable purposes: s3(1)(d) advancement of saving lives, by improving the functioning of the NHS, s3(1)(l) by improving ambulance services or s3(1) (e) again by advancing citizenship by encouraging private moneys to go towards the NHS. There is clearly an identifiable

benefit from this, but there may be a problem that there is a countervailing detriment from this (National AntiVivisection Society, as confirmed by Part 4 PBG). This is because private money could be put to better use by going towards other purposes such as the fire service or to the homeless. But this may not be detriment as it is private money not public money, thus the alternative may simply be that the money sits in the pockets of the wealthy. This will thus be a valid charitable gift.

PER INCURIAM

purpose s3(1)(a) relief of poverty which has more generous rules about public benefit (confirmed by Annex A of the CC PBGs). Thus, the personal nexus would not be a problem (Dingle v Turner). Not would any issue of there being a class within a class as Williams v IRC is no longer to be a touchstone of validity, as confirmed by the PBGs. This could therefore be a valid charitable trust, if seem as for relief of poverty, made possible by the reference to ‘poor’ employees (Re Gwyam; Re Gardom).

PART 4

GIFT 2 This is to display paintings made by zoo animals. This is not for the welfare of the animals themselves so will not fall under s3(1)(k). But since it relates to art it will fall under s3(1)(f) advancement of arts and culture. The problem will lie under the public benefit test in the ‘benefit’ limb, since this will need to be proved after s4(2) CA 2011 removed any presumption. Part 5 PBG confirms that developing taste in art can be beneficial even though it is not capable of being measured, since it is recognisable nonetheless. However, Re Delius confirmed that the art must be worth appreciating. Re Pinion did not allow as art worthless junk that had been discarded, and it is possible that art made by zoo animals could be equally terrible. However, simply because it might be poor in terms of talent does not mean that it may not be worth appreciating – especially if trends in modern art are any indication. Thus, this will likely be a valid charitable trust, if a sufficient section of the public would be able to benefit by viewing it.

PART 3 This could fall under s3(1)9b) education. The key issue here is whether there is the availability of the opportunity to benefit for a sufficient section of the public, since ‘benefit’ is normally readily satisfied by education (Re Hopkins). Oppenheim v Tobacco ruled that harsh rules concerning personal nexus test do apply here (in contrast to s3(1)(a) poverty – Dingle) so this trust would likely not be a valid charity trust. However it would be valid as a noncharitable purpose trust as saved by Re Denley by showing indirect beneficiaries. Better yet, Re Clarke offers some indication offers some indication that there can be severability of purposes (backed up by Re Robinson) so that this gift could be construed simply for the children of poor employees. This would make the charitable

This gift does not fall easily within a charitable purpose, and would have a countervailing disbenefit to health from workers having less rest (thus fundamentally opposing the charitable purpose of s3(1)(d)). Thus it will not be charitable (s1(1)(a)). However, NAVS could be a UA if it meets the definition from Conservative v Burrell. The presumption would therefore be that this is a valid gift to the UA under contract holding theory – Re Recher, Re Grant and Hanchett-Stamford confirm this presumption. It is unlikely to be a purpose trust as would have to be saved under Denley since the construction of the gift suggests it is for the Society rather than specific purposes. Re Bucks and Re Horley Town confirm this gift would be held on bare trust for the members subject to contractual rights and undertakings, by the officers of the society.

PART 5 This is a gift for the charitable purpose of s3(1)(i) advancement of environmental protection, as the CC charitable purpose guidelines confirm reducing emissions fall under this. There has been a use of the funds for a different institution than specified, seemingly under s67 CA 2011 powers to apply funds cy-près. For this to have happened, there would have had to have been an initial failure. Upon closer inspection, there does not seem to have been any such failure. Under Re Finger the first suggestion is that there is failure, since it is incorporated, so a gift to a particular institution rather than for a general purpose, which would fail upon its insolvency in 2015. But Re Slatter confirms that the more central issue is whether the funds of the institution remain in existence; since they do on the facts, having been transferred to a similar institution, this will not be a case of initial failure, but will simply be a valid charitable gift as originally intended.

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LENT 2019

Essays

Family Law

FAMILY LAW ‘Despite criticisms as to its content and application, the best interests of the child is still the best basis on which to adjudicate family law disputes concerning children.’ Discuss. Mei Xin Michelle Tan When a family law dispute concerning children comes to the court, the paramountcy principle in s1 of the Children Act 1989 applies. This states that the child’s welfare shall be the paramount consideration. The main criticisms the best interests principle has received are that its content is indeterminate, and its application does not reflect reality. However, alternative solutions proposed to address these concerns fall short and do not provide sufficient protection to children. Thus, ultimately the best interests of the child is the best basis to cut through intractable disputes concerning children that come to the court. When a dispute concerning children comes to the court, this shows that the

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parties involved have such irreconcilable differences that they are unable to resolve, and so the court needs a clear and principled basis on which to adjudicate such disputes. The court thus decides on the basis of what is in the child’s best interests, using the s1(3) CA checklist (or s1(4) Adoption and Children Act 2002 checklist in adoption cases) as a guide to the factors that should be considered. These checklists are not exhaustive, and so the judge may bring in any other relevant considerations. Mnookin thus criticises the best interests principle as being fundamentally indeterminate. As human beings, judges cannot accurately predict the outcomes of all possible decisions to decide what would be in the child’s best interests. They might thus bring in

their own values or be swayed by societal perceptions of what is in the child’s best interest. This can be seen in cases dealing with medical decision making, where the court can override the wishes of the child and their parents to refuse treatment, and instead make an order to preserve the sanctity of life (Re E, Re M). This is also seen in older cases dealing with the adequacy of same-sex parenting, where the court held it would be in the child’s best interests to be raised by a “normal family” or “non-militant lesbians” (Re B). While these criticisms are valid, the alternative would be to introduce presumptions on what is in the child’s best interests. Already the law includes the presumption of involvement (s1(2A)


Family Law

CA), which can be rebutted if involvement would not further the child’s welfare. However, as Powell argues, the language of presumptions are dangerous, as what might be beneficial to most children might not be beneficial to the particular child in this case. The indeterminacy of the best interests principle, while being a flaw, is also one of the appeals. It allows judges the discretion to to make nuanced decisions regarding children to ensure a fair and just result each time. Indeed, we see judges moving away from the language of presumptions in case law, such as whether it is in a young child’s best interests to stay with their mother (Re S, Re A), or to not be separated from their siblings (C v C, B v B). Therefore, the content of the best interests principle should be fluid so as to allow decisions to be catered to the individual child in each case. Another critique of the best interests principle is that its application does not reflect reality. Reece has argued that in real life, when parents make day to day decisions, they are not always putting their child first, and for good reason. As Herring noted, children do not live in a vacuum, and so decisions made about them should take into account the broader context of the family. He thus suggests a relational model of welfare, where parents’ interests

are specifically acknowledged and weighed against children’s interest. At the moment, the best interests principle is used as a shroud to bring in parents’ interests, and so the court should be more transparent and openly recognise that parents do have legitimate interests in such disputes. While this is all valid, one must remember that when a case has reached the court for deciding, it is because it is so different from day-to-day decision making. The law should try to reflect reality as much as possible, but when a case involving children, who are the most vulnerable parties in these disputes, comes to the court, their needs and welfare have to be prioritised.

THE BEST INTERESTS PRINCIPLE ENSURES THAT THE CHILD IS PUT FIRST, AND THAT THEY WILL BE PROTECTED IN EVERY OUTCOME. Eekelaar acknowledges this, but puts forward a different theory, where the best solution should be the one which causes the least detriment to all parties involved. Children are still important and should

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still receive an overall benefit, but if there is an option where they would be slightly less advantaged while the parents receive significantly less disadvantage, then this should be the option chosen. While this is an attractive theory, it is difficult to apply in real life, as one cannot objectively quantify the benefit or detriment each party would receive in each possible outcome. It also does not solve the problem of what exactly is the content of the best interests principle, or how much each factor should weigh. Additionally, we should not be taking such a mathematical approach to law, and a discretionary and flexible principle is preferred to take into account the nuances of each case. In conclusion, while the content of the best interests principle may be indeterminate, this is also one of its advantages as it allows flexibility in decision making. And while its application might not reflect how decisions are made in real life, this is for good reason, as when a dispute has become so intractable, vulnerable individuals have to be protected. The best interests principle is clear, and provides sufficient discretion to resolve disputes in a just manner.

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