Per Incuriam Winter Edition 2023

CAMBRIDGE UNIVERSITY LAW SOCIETY

WINTER 2023

EXAM TIPS FROM TOP SCORERS FIRST CLASS TRIPOS ESSAYS

President’s Foreword

Welcome to Per Incuriam, a magazine which I assume needs no introduction. It is with great pleasure that I introduce this year's Per Incuriam issues as the President of the Cambridge University Law Society for the term 2023-2024! I am eager to follow in the pioneering footsteps of Sophia Nie and her exceptional Executive Committee, comprising Mahera Sarkar, Kapri Belentepe, and Rohan Odedra, along with the talented and forward-thinking Main Committee. I extend my heartfelt gratitude to these remarkable individuals for their unwavering dedication and support throughout the past year and beyond.

On behalf of Pallavi Jhunjhunwala, our newly appointed VicePresident, Huang Rui Yang, Jean, our diligent treasurer, and Erin Bakhtiari, our diligent secretary, I extend warm thanks to all who have placed their trust in us to usher in yet another remarkable year at CULS. Further, I will like to extend a warm welcome to everyone in my Main Committee who will serve alongside me and my colleagues in making this year another excellent one for CULS! We eagerly anticipate your participation in our upcoming events and opportunities!

Vivek Bilous CULS President 2023-2024

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Editors’ Welcome

Per Incuriam is a very interesting name for a publication like ours. At first glance, it seems posh (as with all things Latin), but in truth, it means ‘lack of due regard to the law’. Perhaps, this goes to a deeper level, reflecting how there is no right or wrong in law. However, ‘lacking in due regard’ one might think the law is, there are always two sides to the coin. Law is indeed philosophical.

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Nevertheless, we congratulate not only the individuals published herewith, but also everyone who finished their examinations last year. We are pleased to continue the important duty of ensuring that the genius and voices of Cambridge’s brilliant minds are enshrined in this long-standing publication.

We hope you enjoy!

Luke Zhang Natalie Tan Natalie Seah Mahuum Nazir CULS Per Incuriam Subcommittee 2023-2024

Table of Contents

01.

President’s Foreward Vivek Bilous

02.

Editors’ Welcome The Per Incuriam Subcommittee

04.

Study Tips from Top Exam Scorers Codrin Moisoi & Lindsay McNeil

09.

Jurisprudence Essay Sara Joy

13.

Law of Tort Essay Shivashankar Saravanan

17.

Land Law Essay Bernice Cheung

20.

Family Law Essay Evi Brahimi

23.

Intellectual Property Essay Katie Armour

28.

Aspects of Obligations

Mark Khoo

Study Tips from Top Scorers We interviewed Codrin and Lindsay, both top scorers in the Easter 2023 Tripos Examinations, to find out about their tips on handling law schoolfrom preparing for supervisions to exam revision.

By: Codrin Moisoi (3rd year), Lindsay McNeil (graduate) Q: How do you prepare for supervisions?

Do you have any tips on getting the most out of supervisions?

Codrin: I usually spend most of my time preparing for supervisions focussing on lectures or lecture handouts. I start by taking my lecture notes directly into the lecture handout itself. Then I condense this into two sets of notes: PQ notes, and essay notes. PQ notes are basically just what the law is, essay notes are the more critical stuff.

This takes up most of my time before supervisions, because I find that I need to make sure I understand as much as possible from the lectures to be able to make good PQ or essay notes. Then I’ll read the relevant chapters in the textbook and add anything important to my PQ or essay notes. Finally, I’ll spend a small amount of time bullet pointing answers to the supervision questions. I find that I rarely have the time to read any articles in preparations for supervisions, but if I have an essay to write I’ll try to read a couple of the more relevant ones. I also don’t read cases unless I need a point clarifying and I can’t find the answer by rewatching the lectures or looking it up in a textbook. Overall, my main advice would be to focus on fully understanding what the law says. For me this means spending more time on lectures at the expense of making it through the reading list.

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Lindsay: In preparation for supervisions, I would watch a lecture on a particular topic within the overarching supervision topic and then read the textbook pages relevant to that topic as well as any cases or articles which pertained exclusively to that lecture’s content. For example, ‘the nature and function of mortgages’ was one topic and ‘the legal characteristics and creation of mortgages’ was another, both within the overarching supervision on ‘Mortgages’ for Land Law. In this way, I adopted a ‘topic-led’ approach to my learning rather than, for example, watching all lectures first, then reading all textbook pages, then going through the list of cases.

This thematic approach worked for me as it psychologically made the reading lists more manageable as I broke it down into topics and attacked sections of the case list, or sections of the article list, at a time. It meant that I could also thoroughly understand one topic before moving to the next rather than only having a surface-level understanding from lectures alone and then forgetting the content from that first lecture when you go back to the reading list and start reading content which pertains to lecture number one.

That said, I always ensured I watched all lectures before any supervision as a matter of priority. Where there were important cases, reading those was my next priority because I found cases were often discussed in supervisions and really understanding the judgement or noting down some important passages helped when it came to Problem Questions and distinguishing one case from another. Where the case was not seminal or where I was tight for time, I found casebooks were a more than adequate substitute for the full judgement – they highlighted the core sections and often provided commentary which could help for essays. Third in the list of priorities was articles UNLESS one of the supervision questions listed on the sheet explicitly asked you to consider article X. Take the supervision questions on the sheet as a reliable guide to what you prioritise during your supervision preparation- it will be the supervision sheet questions that ground your discussion!

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Where supervision questions consisted of a problem question, I noted my observations, the relevant issues, case law principles and my preliminary conclusions into dot points. The more time you give to these mini PQs, the more helpful your supervision discussion will be in aiding you to understand whether your reasoning is correct. I would recommend coming to supervisions with some individual, specific questions or points you need clarification on and raise these at the beginning of the supervision. I also would recommend that in order to get the most out of the supervision, speak to your supervision partners beforehand about how you all found the content as this may help you to answer each other’s questions in advance, supplement your notes and have a group plan about which supervision questions you particularly want the supervisor to cover. One hour goes by very quickly so the more efficient you can be, the better!

Q: How do you make notes and do you have any advice to share on how to structure notes, especially for exams? Do you have any advice on how to approach further reading?

Codrin: As alluded to above I take notes in lectures straight into the lecture handouts, then condense these into PQ and essay notes. PQ notes are predominantly just authorities (ratios, statutes, etc.) structured by reference to the issues which could arise in a PQ. I make flowchart-like notes in more intricate areas of law, but usually I find that the most concise way of making PQ notes is just to list ratios or other authorities within a very comprehensive framework of headings or subheadings.

In areas where the law is less clear-cut, I’ll have an argument prepared as to what I think the law is in my notes, which I can then easily use in a PQ (but even so, analysing all possibilities is usually a good idea). Making these notes as concise as possible, and the various headings and sub-headings easily accessible, is key for when exams start.

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In terms of essay notes, I spend much of Easter term making these. They tend to be far less structured than PQ notes – I usually just summarise arguments from articles/further reading along with my own thoughts. I find that it is quite helpful to look at past exam questions in order to get an idea of what to focus on in terms of further reading.

Lindsay: My approach was to create my own document for each supervision from scratch which I filled with notes I made from listening to lectures and reading cases, textbooks and articles. I therefore did not have separate ‘lecture notes’ vs ‘textbook notes’ vs ‘article notes’.

Instead, I integrated information from each of these sources into a thematic document. I created separate ‘folders’ on my computer for each supervision and had a separate document of notes for each supervision. This benefitted me because each document was supervision specific and therefore was focussed. It was not as overwhelming to me as an allinclusive ‘master document’ of notes

which covered every single supervision.

The drawback, however, is that if you want to find something in your notes which you recall making notes about, you have to remember which supervision it was taught in to know which notes document to open! A master document in contrast would simply allow you to type in the search box. Further, if you do not wish to have up to eight separate documents open on your laptop (one for each supervision) during an online exam, this approach may not be right for you!

thought rather than trying to have some piece of secondary literature on every topic, however tangential or unintelligible to you.

In terms of the notes themselves, I used a lot of headings, sub-headings, colour and highlighting. Lecture hand-outs often provide for labels or sub-headings. For example, I always ensured case names were in blue font so they stood out, references to academics were purple.

Where a particular judgement or legislative provision was subject to debate or commentary, I highlighted criticisms or ‘cons’ in orange vs support or ‘pros’ in green. Tables certainly helped when comparing conflicting theories, attitudes, or concepts.

For exams specifically, I created ‘PQ prompt/summary sheets’ for each subject which consisted of flowcharts, series of questions and spider diagrams, case authorities for each proposition or the necessary ‘tests’.

As for further reading, my tip would be to save that for the vacation period. Even then, I would only recommend reading a handful. I found it was better to be strong in a few select normative or essay areas with academic commentary on this area that you actually understand or that is balanced by alternate schools of

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Q: What advice or personal experience do you have on balancing your degree work with other commitments?

Codrin: I’ve always found that the best way to fit in extracurriculars (for me football, or rugby) or socialising is to have a clear plan of what I want to get done work-wise beforehand, and stick to it. But equally, I think having things to break up the day, and things to look forward to, help me be more productive when I am working. So my main advice for fitting in other commitments is just to be organised, and to use those other commitments as a source of motivation in the time that you do spend working.

Lindsay: I played representative University basketball and tennis socially at Newnham College. I would highly recommend maintaining non-law outlets in your life! Additionally, you can combine

your degree and these activities: for example, for away games with long bus trips, I brought my laptop to work.

Extra-curriculars like mooting and mock trial were something I really enjoyed and I competed in at least one per term. It can also serve as good revision of particular content, teach you things in advance, increase confidence for participating in supervisions and form invaluable supporting evidence in future applications. Your written preparation in advance of a moot should not take a disproportionate amount of time because my experience was that the moot will be won or lost less because of what is contained in a pre-prepared speech and more on how you respond to judicial intervention, your familiarisation with cases referenced, etc.

Q: Do you have any advice on how to approach online exams?

Codrin: With the new 3-hour format I think having concise and easily accessible notes will be essential. As for time management, I would have a time plan which sets out how long you are going to spend planning/writing each question, and how long you’ll spend at the start reading through the questions and choosing which ones to

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do. In terms of planning, I tend to handwrite this and keep it quite brief – I find that spending time mentally breaking down the question is usually more important. Personally, I think I’ll try to fit in as much timed practice as possible in Easter term given the new 3hour format.

Lindsay: In terms of preparation, PQ summaries/visual flowcharts which I made were useful when forced to respond to a PQ rapidly. Regarding essays, I consulted past paper questions and grouped these into themes as often differently-worded questions still effectively asked a broadly similar thing. I developed ‘thesis statements’ per theme which I hoped could form either an overarching essay thesis or paragraph topic sentences.

Having thought of these in advance ensures that the points you make in essays are analytical rather than descriptive. These thesis statements can then be adapted depending on the precise wording of the question.

During the exam, have a timer for when you need to move on and stick to this strictly. Trust your gut re question selection and try not to look back on your question selection.

Jurisprudence | By Sara Joy | Mark: 71

Fuller distinguished between the rule of law and managerial direction. Does Fuller’s appeal to that distinction help to establish that the principles of legality constitute a morality internal to law?

Fuller successfully uses his distinction between ‘the rule of law’ and ‘managerial direction’ to uphold the inner morality that his principles constitute. I will come to this conclusion by exploring Fuller’s methodology and whether it is intrinsically moral. Then, I will consider how the distinction illustrates both the moral value in observing the principles of legality but also how a ‘manager’ will have no incentive to adhere to Fuller’s precepts in the long term.

be sufficiently stable through time, (vii) be congruent in its actual administration and (viii) retroactive legislation must not be abused.

Fuller’s eight principles

Methodology

Fuller’s principles proscribe eight requirements, that law must: (i) consist of general rules, (ii) be as clear as possible, (iii) be publicised, (iv) not demand the impossible, (v) not be contradictory, (vi) be

Fuller adopts a purposive approach to jurisprudence whereby he considers that the purpose of the law is to subject human conduct to the guidance of rules.

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It is important to note that Fuller does not claim that following his eight principles will lead to substantively just outcomes.

Instead, he argues that in following the precepts, the formal constraints on legality constitute an ‘inner morality of law.’

This theory itself is not inherently moral and is subject to various interpretations of purpose. The non-moral instrumental interpretation holds that the principles serve to make the rules more effective as means of behavioural guidance in order to accomplish whatever ulterior ends the legislative have in making the law. In this way, the construction of the principles as mere principles of effectiveness is consistent with the separation thesis embedded in positivist thought. To rebut this non-moral interpretation of the principles of legality, one must show that (i) there is moral value in observing Fuller’s precepts and (ii) that a ‘wicked’ ruler has no incentive to adhere to Fuller’s precepts in the long term.

Rule of law – “bond of reciprocity” To demonstrate the inner morality in following the principles, Fuller recognises that the rule of law is made up of a ‘bond of reciprocity’ between lawgivers and subjects through which the parties form interconnected expectations.

Legal officials expect citizens to comply with legal requirements and in return, they are expected to judge citizens’ conduct by reference to standards promulgated to the citizens by the officials. Fuller argues it is this bond which distinguishes the rule of law from the positivist ‘managerial direction’ which views law as an instrument to give effect to the officials’ wishes.

Though Fuller is not clear on which moral doctrines underlie his conception of the rule of law, Fuller’s account of the ‘bond of reciprocity’ suggests that the principles give effect to the moral idea of human dignity.

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It assumes ordinary people can apply norms to their behaviour and use these as a guide in exercising their autonomy and conducting their own affairs.

For the purposes of this essay, we can consider that although Hart is not purely committed to the idea that all accounts of a legal system ought to be governed through managerial direction (otherwise his theory would amount to little more than an addition to Austin’s command theory), Hart does not believe that a valid legal system must display ‘reciprocity’ and considers managerial direction capable of creating valid law. Hart contends that this intrinsic moral value in using these principles can be defeated due to the compatibility of such principles with ‘great inequity’. For example, a scheme of legislation which permits the killing of all green-eyed babies may be valid so long as it conforms to the principles of legality. For Hart, compatibility with such injustice is enough to dismiss Fuller’s conception of the ‘inner morality of law’ as far removed from morality. However, this argument misunderstands Fuller’s theory which does not claim to lead to substantively just results. In conflating, the ‘unjust ends’ with the procedural means, Hart fails to acknowledge that in using the principles which are arguably rooted in moral notions of autonomy and dignity, the lawgiver plausibly acknowledges (whether he intends to or not) the rationality of an individual to plan his choices regardless of the ultimate outcome.

A situation where it becomes harder to separate the ends from the means is

to separate the ends from the means is one posed by Kramer, where, a kidnapper sends a ransom note to the spouse of the person he has abducted requesting money in exchange for the abductee’s life. In this situation, though all principles of legality may have been followed in giving this command, it is difficult to assert that the application of these principles is rooted in the kidnapper’s acknowledgement of the spouse’s autonomy.

Kramer considers that it may be superficial to consider this an acknowledgement of autonomy when the command contains such a potent coercive force so as to subjugate the spouse’s will.

However, in this situation, the spouse is aware of what must be done to spare the abductee’s life and so still has the choice to act knowing that should she comply with the ransom note, the kidnapper will return the abductee rather than arbitrarily kill him anyways. Thus, the spouse still has a choice and although the choice has been severely restricted by coercion, arguably, there is still some weak level of dignity in the fact she is told exactly what will happen depending on her actions. Furthermore, just because the force of human dignity in this extremely coercive scenario is weak, does not mean that there is still no morality in the principles at all – she is still better off morally than if she had not been told what must be done to save her spouse’s life.

Managerial direction - would a ‘wicked’ ruler adhere to Fuller’s principles of legality?

Though Fuller concedes that many of the principles would be useful for ‘managerial direction’, he considers that the principles of generality and congruence are not essential to managerial direction but are to the rule of law. This is because a mere interest in efficacy means that a manager may find it efficient to depart from the general rules from time to time if it serves the interests of the company better than compliance with those rules. However, a positivist can rebut this moral interpretation of congruence by asserting either that (i) there can be purely prudential reasons to adopt the principle of congruence and (ii) that a benevolent government may seek to depart from the principle of congruence.

Simmonds argues that a ‘wicked’ government (which is a form of managerial direction as ‘wicked’ governments use the law to fulfil their own ends) will inevitably end up using extra-legal force against its citizens, for example, to suppress dissidence. Kramer disputes this assertion by arguing that a ‘wicked’ government

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may have prudential reasons for abstaining from using extra-legal force, namely, because it may reduce people’s incentives to obey the law. Otherwise, subjects will be left with less to lose by breaking the law. Kramer illustrates this with the well-established fact that when Japanese prisoners of war were randomly killed by British prisoners of war, it was more difficult to get the remaining prisoners to obey camp rules.

However, this argument cannot hold up on the account that it seems that the ‘less to lose’ effect can be rendered redundant if the incentives to obey the law are maintained, for example by making the penalties for breaking the law more severe than extra-legal force or if extra-legal force is used to discourage dissidence (which it often is), making it clear to the general population that violence can be avoided if no visible signs of dissent or association with dissenters is shown. It is highly unlikely that even the most repressive of societies will frequently target this group of people who ‘keep their head down’ and so, it seems it would be prudent for ‘wicked’ leaders to violate the principle of congruence and assert extra-legal violence.

Vinx argues that the premise of Simmonds’ argument, his understanding of congruence as prohibiting ‘extra-legal’ violence is somewhat peculiar given that, Fuller seems to define congruence as where the law is appeal to, legal officials must act in conformity with general legal rules. This sense of internal congruence can be seen through Fuller’s discussion of mistaken interpretation and bribery.

However, it seems that Simmonds’ wider conception of congruence

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which raises the additional demand that the state never act in ways that lack proper legal warrant is entirely consistent with the reason that the law is morally binding (human dignity) so rather than being an unwarranted extension, is necessary to give full effect to the morally binding nature of the law.

Instead, it could be argued that Fuller’s assertions may rebutted on the basis that even benevolent governments may find it prudent to violate the principle of congruence, for example, in times of emergency. However, this is false. There is no requirement to have to act extralegally if proper legal mechanisms are put in place. The prerogative power is rooted in the common law and so recourse to this power is not extra-legal or in contravention of the law. Moreover, inserting an ‘emergency’ derogation clause (such as that in the Human Rights Act 1998) allows governments to act in emergencies but also gives the public sufficient notice that such legislation may be derogated against if sufficient thresholds are met to order their affairs and predict what the law will require of him.

Conclusion Fuller uses the distinction between the ‘rule of law’ and ‘managerial direction’ to successfully elucidate two arguments to support his conception of the principles embodying an inner morality of law.

Firstly, that the rule of law shows that the principles have intrinsic moral value in upholding human dignity and secondly that those committed to ‘managerial direction’ do not have an incentive to follow the principles.

Law of Tort | By Shivashankar Saravanan | Mark: 76 For many years, Alcyone ran a small business from the spacious garden of her home, making metal garden ornaments using a traditional firepit technique to smelt the metal, then traditional tools to hammer the ornaments into shape. She needed a couple of assistants to help make the tools, and always filled those roles by giving work experience to recentlyreleased young offenders, whom she mentored and helped to find full-time employment elsewhere.

The process of making the garden ornaments was smoky and noisy at times, but this had never bothered Alcyone’s neighbour Brizo, who was elderly and a little deaf, and who preferred to stay indoors. When Brizo died, his house was bought

by Clio, at a reduced price that took into account its location next-door to Alcyone’s business. Clio obtained planning permission to use the house for her massage business. Unfortunately, her clients were very demanding and found the noise from the hammering of metal ornaments intolerable. In addition, the buildup of smoke from Alcyone’s firepit had gradually stained Clio’s white towels and white bath-robes that hung on her washing line, rendering them unacceptable for massage clients. One night, the firepit, which Alcyone’s assistant Dinlas had forgotten to damp down at the end of their shift, was blown over in a fluke gust of wind. A burning ember rolled into Clio’s garden and burnt a wooden bird table that held great sentimental value to Clio. Clio subsequently developed chronic asthma, to which the smoke from Alcyone’s firepit probably contributed, as did the stress of the money she was losing because of the disruption to her massage business.

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On the other side of Alcyone’s property was a house owned by Erebus, an absentee landowner who lived abroad. Erebus did not see to it that the house was properly secured, and a performance artist calling himself Fatalismo was able to gain entry and squat in the house. Within weeks Fatalismo had affixed twenty CCTV cameras (with occasional red flashing lights) to the outside of the house, facing Alcyone’s garden. Fatalismo refused to tell Alcyone whether the CCTV cameras were working or not – he always responded to her that it did not matter, the cameras were ‘a piece of conceptual art making a protest about today’s surveillance culture’. Alycone found the presence of the cameras distressing and intrusive, adversely affecting her ability to concentrate on her work in the garden; and it was particularly upsetting for her former-young-offender assistants.

Unfortunately her requests to Fatalismo to take down the cameras were ignored, as were her letters to Erebus asking him to evict Fatalismo.

Advise the parties as to their rights and liabilities in tort

Clio > Alcyone (Intangible Nuisance) Clio enjoys exclusive possession of land(Hunter). She can sue Alcyone as the creator of the nuisance(Hubbard), since she makes the ornaments resulting in the smoke and noise. Causing smoke to pass onto Clio’s property is a recognised right under intangible nuisance(St Helen’s), as well as excessive noise(Church v Price).

Substantial Interference with use of Clio’s land per Tate?: The interference may not be “substantial”, as the process was only smoky and noisy “at times” - and hence possibly not of prolonged duration (Bramford). Nonetheless, it is possible that the timing may indicate “substantial” interference - as it specifically affected times where her clients were present.

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Is Clio’s use of land common and ordinary per Tate?: Clio’s use may not be common and ordinary; Brizo previously did not have any issues with Alcyone’s use of land, suggesting that the only reason why Clio suffered any damage to her land is due to her “abnormally sensitive” use(Robinson) by running a massage business.

Nevertheless, Brizo was elderly and deaf; it could be argued that the only reason why Brizo himself did not suffer any damage to his land may have been due to his own abnormal use. Though her clients were “very demanding”, Clio would likely have suffered damage to her use of land due to the smoky and noisy nature of Alcyone’s use; the hypersensitive use will simply mean she can claim full liability for any damage she suffers that any other person would have suffered.

Alcyone might argue that Clio is coming to nuisance; it may be defence in this case since there is a change in Clio’s use of land(Coventry). Hence, it is contingent on the locality/character of neighbourhood; the fact that the house’s price was reduced taking into account Alcyone’s business, may suggest that the locality has accounted for her use of land and it may not be a nuisance. Nevertheless, though planning permission is typically not relevant at this stage(Coventry), the fact that Clio (the Claimant) got it instead of Alcyone, might be relevant to how Clio’s running of massage business might indeed be common and ordinary use of land as required in Tate.

Remedies: Injunction should prima facie be granted per Coventry; nonetheless, Court has discretion to award damages(SCA 1981, s50). In such a case, given Alcyone’s use of land may have been factored in, and the potential public interest of her activity - giving experience to young offenders - Courts may prefer to award damages instead.

Nonetheless, the planning permission given to Clio might suggestotherwise, making an injunction likely to allow Clio’s activity to pursue (assuming permission given due to public interest of masseuse).

Clio > Alcyone (Tangible Nuisance)

Is Alcyone’s use of land common and ordinary, and done “conveniently” per Tate?: Ultimately, this is contingent on whether the locality has effectively subsumed Alycone’s use of land - which is possible since costs factored it in.

Nevertheless, this may still not be done in a “convenient” manner; the neighbour principle as emphasised in Tate requires Alycone to act with as much consideration as possible, and this is arguably not done - as the process of making garden ornaments could potentially have been done at a time where Clio’s clients are not present.

Damage: If intangible nuisance is established following aforementioned considerations, can claim for interference with amenity and enjoyment of property (Dobson). Consequential loss of profit due to inability to use land for her business purpose(Hunter). Personal injury of chronic asthma not recoverable.

Causation: But for Alcyone’s intangible nuisance, would not have interference with use and enjoyment of land (Barnett).

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Clio could also sue for physical change (white towels and bath-robes), rendering her land less useful or valuable(Hunter).

Nonetheless, this is unlikely; the towels and white bath-robes have to be closely connected to the use of land(Hunter).

Even if they are closely connected for massage purposes in use of land - then Clio’s use of land by hanging white objects may be hyper-sensitive. If the smoke would have stained other clothes as well, Clio can have full damages awarded; but if only white clothes, likely no nuisance(Robinson).

Clio > Alcyone (Rylands v Fletcher) Unlikely that Rylands will succeed, as the “ember” in itself is not one that gives rise to an “exceptionally high risk of danger”(Transco); even if so, Alcyone’s use of land may not necessarily be “extraordinary and unusual” use of land.

Furthermore, personal injury (chronic asthma) cannot be recovered(Transco). A negligence claim would be more apt.

Clio > Dinlas (Negligence) DoC: Dinlas straightforwardly owes Clio a DoC not to cause her property damage or physical injury while running process of making metal ornaments.

Breach: Breach is likely; high likelihood of harm could arise from aburning item(Haley), with high severity should it catch onto others(Paris).

Causation: But for Dinlas’ negligence, wooden bird table would not have burnt(Barnett); Clio can claim market value for the table. It is unclear if but for succeeds for her chronic asthma; if it does not, since there are different causal agents/mechanisms contributing to damage, there will be no liability(Wilsher).

Clio > Alycone(Vicarious) During his shift, Alycone has control over Dinlas(Market Investigations); since she “needed” assistants, it is likely that Dinlas (offenders as a whole) are sufficiently integrated into her business before they find employment elsewhere. Dinlas’ operation of the firepit is within “field of activities” authorised by Alycone (Mahmoud), and is done in furtherance of her business and hence is closely connected(Morrison). Alycone can be vicariously liable for Dinlas’ negligence.

Alycone > Fatalismo(Intangible Nuisance) Damage: Interference with amenity and enjoyment of ordinary use of property, as unable to use garden.

Assistants cannot sue as they do not have a right to the land affected(Hunter); Alcyone can sue Fatalismo as the creator of the nuisance(Hubbard).

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Following Fearn, overlooking is a recognised right under intangible nuisance. The prolonged nature of it, and its extensive nature (20 cameras) suggests substantial interference with use ofAlcyone’s land, who is unable to work in her garden. Alcyone’s use of land is not abnormally sensitive due to “particular upset” for young offenders; anyone, including Alcyone, would encounter substantial interference with Fatalismo’s use of Erebus’ land(Robinson). Furthermore, the nature of Fatalismo’s conduct (protesting) may not indicate maliciousness(Hollywood) on its own, but his ignorance of her requests runs contrary to neighbourprinciple in Tate, and likely constitutes uncommon and unordinary use of land - hinting at nuisance.

Remedies: An injunction to remove the cameras(Coventry).

Alycone > Erebus(Intangible Nuisance) It is unclear if Erebus will count as an occupier; given he is overseas, he may lack sufficient control(Wheat).

Nevertheless, “did not see to it that house was secured” suggests he did retain some form of control; he could be liable if he continued the nuisance (Sedleigh-Denfield). It is unclear if Erebus was aware of such nuisance (unclear if he saw letters); but with presumed knowledge of existence of nuisance, he may be held liable for continuing it.

If Erebus was deemed as a mere landlord, he will not be liable as doing nothing to stop or discourage Fatalismo’s nuisance will not amount to participation (Coventry).

Rest of the analysis, and remedies same as above.

Land Law | By Bernice Cheung | Mark: 74 ‘There is no justification for bypassing the requirements for the creation of a legal obligation just because the promisee has acted to his or her detriment in reasonable reliance on the promise. Still less is there any justification for doing so where the subject matter of the promise is the disposition of an interest in land – a realm in which legal certainty is particularly important and the law insists on formality.’ (LORD LEGGATT in Guest v Guest) (2022) Discuss, with reference to the doctrine of proprietary estoppel.

Lord Leggatt’s quote in Guest v Guest argues that there is no justification for bypassing the formality requirements in creating a proprietary estoppel (PE) just because the promisee has acted in reasonable reliance on the promise. This is especially since legal certainty is crucial in relation to the disposition of an interest in land. This essay disagrees with Lord Leggatt and argues that there are justifications. Firstly, I rebut the potential argument that supporters of Leggatt’s view may have, which is that lack of formalities in PE (coupled with Lord Briggs’s expectation-based remedy in Guest) risks subverting the rules of contract. Secondly, I argue that land law (and statutes) already recognises the

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informal creation of trusts (and easements) which also concern the disposition of an interest in land. Thirdly, I argue PE is sui-generis and stems from unconscionability, which is inherently more complex and thus justifies bypassing formality requirements even if not analogous to other areas in land law.

Subverting rules of contract?

Supporters of Lord Leggatt’s view may argue that bypassing formality requirements in creating a PE risks subverting contractual rules. This issue is aggravated by the majority’s decision that the starting point of awarding damages in PE is the expectation measure, which

some (eg Sloan) argue is akin to treating the case as if the requirements of a valid contract have been satisfied. Lack of formality leading to a non-contract is rooted in statute and the formality requirements needed for a contract is such that people are sufficiently warned and aware that they are entering into a binding contract with legal consequences (Fuller). This may lead supporters of this view to think that there is no justification for bypassing the requirements for the creation of a legal obligation, especially one related to disposition of an interest in land, where legal certainty is particularly important (as Lord Legatt argues).

However, Dixon rightfully argues that the majority in Guest was not attempting to go around a contractual principle. PE is a sui-generis claim, unlike anything in tort or contract and not about compensating harm or subverting contractual rules, but merely dealing with the unconscionability (see below). Viewing PE from this angle, the majority’s view is perhaps understandable. There are also other areas of land law that are not strictly based on formality.

Informal creation of trusts (and easements) Bypassing formality requirements in creating a PE is justifiable because courts recognise the informal creation of resulting and constructive trust, which also bypasses formality requirements.

Courts recognise the informal creation of resulting and constructive trusts without express formality rules, such as how acommon intention constructive trust can be formed from commonintention,

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detrimental reliance and unconscionability (Lloyds Bank v Rosset). In easements, LPA s62 turns an informal promise (such as a promise of a right of way) into a legal easementafter conveyance of a legal estate, prior diversity of occupation or apparent and continuous use (Platt v Crouch) and no contrary intention (Browning v Jack).

Whether PE is more or less problematic in relying on informal creation in relation to constructive trust depends, to some extent, on whether PE is detrimentbased or expectation-based. If PE is detriment-based, its lack of formality requirements could be justified alongside common intention constructive trust (CICT) on the ground of detriment. If a lack of formalities and implied creation of CICT is justified and expressly affirmed by Parliament (eg in LPA s53(2)), there is no reason PE cannot be justified on the same basis, especially as PE has so many similarities with CICT. Conversely, one may argue that the lack of formality in CICT is justified precisely because it was accepted by Parliament in LPAs53(2), whereas PE was not. This depends on whether PE is seen as a subspecies of constructive trusts, if so, bypassing formality requirements in PE is justifiable.

However, even if PE is not a subspecies of constructive trusts, the sui-generis nature of PE is still sufficient to justify bypassing formality requirements (see below). Further, Fuller’s evidentiary, cautionary and signalling functions of formality can be satisfied in PE claim, via an express assurance and common intention. Yet, this must be balanced in proportion to what the promisor promised and the facts and context of each specific case.

If PE is not sufficiently analogous to trusts (or easements), it can be argued that the uncertainty in awarding damages in PE makes the need for formality more prominent. I agree that these areas may not be directly analogous to PE, given the sui-generis nature of PE. Regardless, being able to bypass formality requirements in creating trusts (and easements) still shed light on how formality rules are not the be-all and end-all in land law. Both trusts and easements concern the disposition of an interest in land by a promise, yet lax formalities are allowed despite the need for legal certainty. Turning back to PE, it is precisely the sui-generis nature of PE that justifies the uncertainty in awarding remedies compared to other areas of land law.

Sui-generis nature of PE Dixon and Goymour both agree that PE is sui-generis and deserves to be treated as such. Both the majority and minority in Guest v Guest (and most, if not all, academics and judges) agree that PE stems from unconscionability, making it inherently more complex than trusts, for example, which stem from parties’ intentions or easements, which stem from effective use of land. Even Dixon acknowledges that working out what unconscionability means is a difficult task.

Looking at unconscionability in Gillett v Holt, CA held that unconscionability stemmed from the very fact of detrimental reliance by the claimant on the promise. Although the result in Gillett was correct, I concur with Dixon’s view that the lack of formality requirements is justifiable in Gillett because the claimant

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has relied to the detriment on an assurance that he can both have a right and that required formalities for its grant will not be required. This justifies PE bypassing formality requirements for the creation of a legal obligation. Looking at other PE cases, it is crucial to understand the precise meaning of unconscionability within PE. Dixon rightfully argues that the need for formality requirements in creating a legal obligation may be disregarded if unconscionability simply stems from the repudiation of an assurance that has been detrimentally relied upon.

Conversely, if unconscionability is restricted to situations when the landowner directly or implicitly offers the claimant a right that they may exercise without formality, PE can be the counterpart of the formality rule in land law rather than its enemy.

Nevertheless, on either understanding, bypassing formality requirements in creating a PE is still justifiable.

Conclusion I respectfully disagree with Lord Leggatt.

Bypassing formality requirements in PE is justifiable because (1) it does not subvert rules of contract, (2) land law (and statutes) already recognise the informal creation of trusts (and easements) which also concern the disposition of an interest in land, and (3) PE is sui-generis and stems from unconscionability, which is inherently more complex and hence can bypass formality requirements even if not analogous to other areas in land law.

Family Law | By Evi Brahimi | Mark: 74

‘English family law is based on the ideal of the nuclear, heteronormative family. In particular, laws concerning parenthood and parental responsibility reinforce the traditional two-parent paradigm, based on gendered family roles.’ Discuss.

The biparental heteronormative family has been the paradigm upon which English family law has developed throughout the years. The endorsement of this model of the social unit by the law sends out a number of implicit messages, which have been accepted as orthodoxy: that (1) a child can only ever have two parents, who are (2) male and female and (3) genetically related to him.

Whilst inroads have been made to this traditional view, this essay will argue that they have not fully ‘revolutionised’ English law to undermine the primacy accorded to the genetic, heterosexual, two-parent family. This will be done by considering the motivation behind the bias for genetics and the way it affects the acquisition of both legal parenthood and parental responsibility by individuals in the context of assisted reproduction, particularly where the intended family consists of a same-sex couple.

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The paramountcy of genetics in determining legal parenthood can be understood as stemming from a need for certainty on both bureaucratic and public policy grounds. Per Callus, it benefits a child for his legal parents to reflect the reality of his biological conception, and it also benefits the state to have a reliable framework which can allocate the rights and responsibilities inherent in legal parentage with ease and confidence. More importantly, it is emphasised that equating legal parentage to genetic parentage facilitates the child’s development of their identity (Freeman) by providing them with a clear and ‘honest’ picture of their origins. As such, the courts have largely adopted the view that in parentage disputes, the welfare principle demands for the child’s right to know of his genetic background to be prioritised and for transparency to prevail wherever possible (Ward LJ in Re H (A Minor)).

Bainham also notes that this approach respects the individual autonomy of the adults involved by giving them the right to at least a ‘reasonable opportunity to establish the truth’.

Whilst all of the above are valid considerations, it does not necessarily follow from them that only genetic parenthood must be legally recognised.

The effect of DNA testing in the context of natural reproduction is to rebut the presumptions established in favour of married and unmarried fathers, displacing legal parentage to a different individual and thereby dismissing the ‘first’ father’s contribution in all capacities as the de facto parent of the child. Second female parents and fathers under HFEA 2008 are placed in this vulnerable position from the outset of the child’s conception. Whilst no one denies that the social and genetic parent do not perform mutually exclusive roles and that the concept of parental responsibility allows the social parent to continue carrying out all the ‘meaningful’ functions of raising a child, this ignores the importance of the consequences that flow from legal parentage on its own. A social parent should be entitled to make provisions for their child’s inheritance or integrate them formally in their own genealogy; it is just as meaningful to them that their relationship with the child is treated as kinship rather than a lifelong caregiving responsibility. If, as Bainham notes, the true importance of parentage is not about the powers and duties of upbringing but the establishment of filiation and family membership, there is no reason why a child’s right to know should inherently favour membership in the genetic parent’s side to the exclusion of the social parent’s, with whom the child is much more likely to be familiar. On the contrary, it may be that the child wishes

to know of his genetic background without necessarily seeking to establish a familial relationship with the genetic parent (Fortin).

Moreover, in the context of assisted reproduction there are many situations where it was intended in advance that more than two individuals would act as parents to the child; in such cases, the argument pursuant to the child’s right to know is weak, as honesty was a foregone conclusion. What public interest is then served in these cases by excluding the social parent (or perhaps the third genetic parent) from the picture? The answer is clearly none. Rather, this is the consequence of strict adherence to the heterosexual parenting paradigm which has been the guiding principle upon which English family law was modelled (McCandless and Sheldon). This is evident in the way HFEA 2008 assigns lesbian parenthood—it is a process that “mimics rather than overcomes traditional norms and biology” (Diduck). In a situation therefore where the child’s best interests are already served, it seems only fair that the law should move to consider the other competing interests in a parentage dispute—namely, the individual rights of the parents to build a relationship with Once child you have overall theme, their and your be provided with you the can startlegal brainstorming content.

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This argument about the law reflecting the child’s social reality needs to be reframed in the context of parental responsibility: here, the law is concerned not with allocating the status of ‘parent’ to a given individual, but conferring them the ‘right’ to influence the child’s development through the exercise of decision-making authority. Such power can be used by multiple people notwithstanding their biological connection to the child, which from a legal standpoint challenges the two-‘parent’ paradigm only semantically in that a person with PR cannot be recognised as a parent by law despite prima facie acting like one.

From a substantive perspective, however, parental responsibility as conceived by English law constitutes a considerable attack to the nuclear family model. Despite this, the extent of parental responsibility and its exercise are capable of being conditioned, thereby leading to a hierarchy of decision-makers within a child’s family—a form of principal and secondary parenting as conceived by Hedley J in MA v RS (Contact: Parenting Roles), with the legal parents retaining primacy. More controversially, the courts have used parental responsibility to perpetuate the heteronormative family in the context of sperm donors who have assisted with the conception of a lesbian couple’s child and consequently seek contact with them.

The outcome in cases like Re D (Lesbian Mothers and Known Father) encourages the introduction of a male figure in the family unit on grounds of commitment to the expense of the security established by the same-sex couple whose status as the child’s carers is undermined by allowing a stranger to have decision-making capacity over their child (as pointed out in Re B (Role of Biological Father)). This need for a ‘male component of parenting’ (MA v RS) thus undermines any advances made by HFEA 2008 in the context of legal parenthood, as parental responsibility acts as a back door which undermines an already conservative conception of the two-parent same-sex family by reintroducing the bias for biology and the need of a father.

In conclusion, despite considerable social advances and technological developments to warrant a more flexible and socially honest approach to the recognition of modern family life by the courts, English family law is still guided by its vision of the nuclear heteronormative family in a way which creates for awkward family dynamics both in paper (with respect to parenthood) and in practice (with respect to the exercise of parental responsibility).

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Intellectual Property | By Katie Armour | Mark: 82.5

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(i) Petals Co (P) Infringement proceedings Amanda (A) will want to initiate infringement proceedings against P under s.60 of the Patents Act 1977 (‘PA’). It should be noted here that P is likely to counterclaim to challenge the validity of the patent, discussed below. A is challenging P’s dibbers as directly infringing her patent under s.60(1)(a) of the patent; first, it must be established that P’s dibbers fall within the scope of her patent claim.

P’s dibber varies from the precise claim, A’s being ‘C-shaped’ and P’s ‘Vshaped’ notches, as well as 12% and 10% zinc respectively. Therefore, as a matter of normal interpretation, P’s invention does not infringe; whilst the boundary is unclear, the authorities maintain this is an exercise of purposive interpretation (Icescape); the difference in shape means the case is likely closer to the facts of Icescape (pipe units in parallel

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not being the same as in units in series under normal interpretation) than Catnic. Following Actavis v Eli Lilly, P’s variant is likely to infringe on the basis that it varies from the invention in immaterial ways: applying the revised Improver questions, the variant does not appear to have a material effect on the way the invention works, and achieves substantially the same result; the notional addressee, being told the variant works, would consider it obvious that it does so.

The reader would certainly not understand A to confine the zinc composition as 12% as opposed to 10% (Catnic). The shape of the blade is more contentious; though it is submitted that the same will apply; unlike the rubber rob/helical spring example in Improver, the different shapes of the blade does not amount to a ‘different thing’ and is more arguably an ‘approximation’ which can work in the same way (Improver).

It is established that P’s invention falls within the scope of A’s patent claim as an equivalent. If P commences the campaign, it will be liable to a claim under s.60(1)(a), as a product, for the infringement of A’s exclusive right to make, dispose or offer to dispose of the product: the product is to be made (manufactured (United Wire)) and disposed off or at least offered for disposal - this includes approaching potential customers and therefore a marketing campaign will be caught (Gerber v Lectra). During the process P will also likely keep for the relevant purpose (McDonald v Graham).

P does not have any defences under the PA. P’s counterclaim However, P will likely counterclaim to have the patent revoked on various grounds; anyone can make such application (Cairnstones). The first ground P may challenge for revocation is on the ground that the patent was not patentable for lack of novelty, or potentially inventive step (s.72(1)(a) the invention may be revocable on the ground it was not patentable). The issue arises because of A’s use of the invention in her garden. s.1(1)(a) requires the invention to be ‘new’, meaning it does not already form part of the state of the art, being all matter made available to the public, anywhere in the world, by whichever mode, at any time before the priority date (s.2(2)). The prior art includes prior product use, and is to be determined by the information that a person skilled in the art is able to derive from it, or will

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(inevitably infer’ (Edwards Lifesciences)).

The issue is whether A’s use in her garden amounts to anticipatory disclosure. This appears a harsh standard; Claydon v Mzuri suggests that an invention may be lack novelty by the possibility of prior public use, notwithstanding it was not actually observed, distinguished from Hozelock on the basis that the inventor in Hozelock would have removed his invention had he been aware of observers; A has not done so and it appears on the basis of Claydon there has been disclosure.

The dibber therefore forms part of the state of the art which would result in an infringement of the patent (Synthon) it being the exact same product. However, this is only to the extent that use makes available the necessary information for the invention (Merrell Dow). The disclosure is not anticipatory because the use does not provide sufficient information for the invention to be put into effect; whilst the low-level technicality of the C-shape means that element may be anticipatorily disclosed (based on dicta by Lord Walker, Synthon), no information is provided as to the composition/material of it, and this cannot be derived from observing mere use, however public (Merrell Dow; Asahi).

Inventive step It is unlikely that a challenge on the basis of inventive step (s.3) will succeed; the invention must not be obvious to a person skilled in the art, having regard to any matter which forms part of the prior state of the art (as defined s.2(2)). The ‘prior art’ relevant here is the traditional dibber, and the journal articles; it is

submitted that the inventive step taken

by A – the C-shaped notches and use of zinc – are not steps obvious to the person skilled in the art (Pozzoli; Actavis). The notional person skilled in the art is the notional gardening equipment designer, to whom the antbased developments would not be obvious; we are told the flattening and shortening of the tip is ‘unheard of’. The journals are part of the state of the art, available for consultation by the public (s.130(1)), and it is further contentious whether the person skilled in the art, being the notional interpreter equipped with the common general knowledge of the field (gardening) would be expected to have scrutinised information about ants (John Manville Corp). Further, it is implied the issue with traditional dibbers is long-standing, meaning the absence of a solution before A suggests it is inventive (further implied in that B expects the patent to be ‘highly lucrative’) (Haberman). It is also suggested, ‘unheard of’, that the developments did not constitute an obvious avenue of research offering a ‘reasonable expectation of success’ (Conor v Angiotech). Entitlement Under s.72(1)(b), patent may be revoked on the ground it was granted to a person not entitled to it. On the basis of the analysis below on B’s entitlement to the invention, this ground will not succeed.

Sufficiency Further, arguably the specification claims do not sufficiently disclose the invention in a manner clear enough to enable performance by the person skilled in the art (s.14(3)); ‘a device’ and the picture provides no detail as to the material or dimensions of the invention. This is a ground for revocation P may raise (s.72(1)(c)).

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(ii) Bigbux (B) and Foolls Gold (F) Entitlement of F B may apply (s.7(1)) to recover ownership if it thinks it is entitled (s.37(1)) – this is also a ground for revocation (s.72(1)(b)).

For the relative challenges by B and F, and the assessment under s.39, it must be decided whether A or Elliott (E) is the inventor. The patent is to be granted to the inventor or joint inventors (s.7(2)(a)), being the actual deviser (s.7(3)). F will challenge the patent as being granted to the wrong person (s.72(1)(b)) – s.7(4) provides that except so far as the contrary is established, the person who applies for the patent shall be taken as the person entitled under s.7(2) (as the ‘inventor’) to be granted the patent.

However, this will fail as it can be established that A is the ‘inventor’ for the purposes of s.7. In identifying the ‘actual deviser’ of the invention (s.7(3)), the ‘heart’ of the invention is the change in structure and composition (Markem v Zipher) and it is A who is responsible for that concept, being a technical creative contribution.

The case can be distinguished from that of University of Southampton’s Application, in which the specific suggestion to alter an invention meant the suggester, rather than the creator, was held sole deviser. Here, E has not suggested specific alteration, only suggested A reads an article, and has not provided anything inventive to the patent claim, and constitutes merely a ‘nonenabling idea’ at most (Southampton). F is therefore unable to claim entitlement under s.39.

Entitlement of B It is unlikely B will be successful either; there is no ‘special obligation’ required for s39(1)(b), requiring some ‘special responsibility’ to further the interests of the employer (Staeng’s case). Nor will s.39(1) (a) apply: analogous to the employee in Harris’ Patent, A works merely to supervise research scientists, it is not part of her normal duties to provide solutions to oil drilling – from which inventive concepts might be passed over to seed dibbers – and the invention is not of a type that could have been expected to result from the carrying out of her normal duties (Greater Glasgow Health).

Therefore B is not entitled.

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By Mark Khoo | Mark: 74

ASPECTS OF OBLIGATIONS Advise the parties as to any potential claims in the law of unjust enrichment in both of the following scenarios: (i) Jeremy aspires to be a professional musician. His friend, Mark, wants to support Jeremy’s musical career and is 60% sure that Jeremy plays the saxophone. Mark therefore gifts to Jeremy a custom-made saxophone worth £5,000. In fact, Jeremy cannot play any instrument. One week after receiving Mark’s gift, Jeremy gives up on becoming a professional musician and takes a job as a commercial solicitor.

Mark also discovers that Jeremy believes that the Earth is flat. Mark would never have made the gift had he known about this. and (ii) Reema is a famous author. Seal Publishing enters into a contract with Reema to write two murder mystery novels for £1,000 per novel. Reema usually charges £1 million per novel, but agrees to the lower price as she is good friends with the editor at Seal Publishing. Reema sends Seal Publishing the completed manuscript for the first novel. She is midway through writing the second novel when Seal Publishing decides to stop publishing murder mystery novels because the market is saturated. Seal Publishing tells Reema that her contract is cancelled and refuses to pay her anything.

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I. J has clearly been enriched by the objective value (Benedetti) of the saxophone, at the expense of M since there is a direct transfer between M and J (ITC). J may argue that he subjectively devalued the saxophone (such that he valued it at less than 5k) because he is unable to play it – but there is no objective manifestation of J’s subjective views (Benedetti).

The key issues are what the grounds upon which a claim in unjust enrichment (UE) can be based. Firstly, M may argue that he had a tacit assumption that J could play the saxophone and that he had been caused by this mistake to make the gift to J. However, doubts may bar a claim in mistake if it suggests that the claimant was taking a risk that he might be wrong (DMG). But since he is 60% sure, the tacit assumption will constitute an operative mistake since he had made the gift being sure that it was ‘more likely that not’ the case that J could play the saxophone (Marine Trade, Jazztel).

Secondly, it is said that M makes the gift out of a desire to support J’s musical career; it may be queried whether M’s mistake as to J’s playing ability had any causal relationship with the making of his gift: butfor causation may not be satisfied (Barclays Bank v Simms, Dextra Bank) A second possible mistake which M may argue to have made relates to J’s belief that the Earth is flat. This appears a more likely ground of mistake to proceed with since causation is more easily established. However, while this might suffice for the common law doctrine of mistake, this would not constitute an

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operative mistake in accordance with the equitable doctrine of mistake, which Judge Mackie QC in Pagel v Farman has argued applies to all gifts. This mistake would not ‘not relate to the ‘legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction’ (Pitt v Holt) and is therefore not sufficiently serious.

An alternative ground M could argue is failure of basis. M may argue that he had made the gift on the condition that J becomes a professional musician (such non-promissory conditions which relate to a state of affairs have been recognised: Barnes v Eastenders) – and since J has since given up this condition has failed. A number of issues arise.

Firstly, it is not clear that M has shared this condition with J. The condition that J continues his path as a professional musician must have been communicated to J by M (Burgess v Rawnsley) and it is not enough this was merely M’s expectation in making the gift (Barnes v Barnes), or his motive (London Trocadero).

If, upon an objective evaluation of the basis of the gift (Giedo van der Garde), it is determined that there was indeed this shared condition, the condition must also totally fail (Fibrosa v Fairbairn). The basis for which the gift is made has to be analysed carefully here – if the gift was made on the basis that J use the saxophone to attempt to pursue a career as a profession musician, then M receives partial fulfilment of the basis and a claim in UE cannot be brought. But the courts may find that there were multiple basis on which the gift was made: firstly to help J pursue a career (which has not failed completely), and

That J eventually becomes a professional musician. If this interpretation is accepted, then it can be said that the second basis has failed totally: a transfer can have more than one basis and total failure of any one of those basis will give rise to a UE claim (Benzline Auto).

II. SP is enriched by R’s service (services being objective benefits: Barnes v Eastenders) of writing two novels. What is the value of SP’s enrichment? The starting point is what the objective market value that a reasonable person in SP’s position would have had to pay for the service (Benedetti) – prima facie, given that R is said to usually charge 1 mil per novel, would be 2mil. However, the individual characteristics of SP will also be taken into account in considering whether the objective value of the service should be decreased (Benedetti).

Does the fact that SP’s editor being good friends with R constitute an individual characteristic which can lower the objective value of the enrichment? This is likely to be the case, since the personal characteristic of being friends with R has led to the variance between the general market value and the parties’ agreed value, and SP would always be able to buy the benefit of R’s writing services at a lower price than other buyers in the market (Lord Reed in Benedetti).

R will bring a UE claim on the ground of failure of basis: her enrichment of SP was conditional on SP’s S contractual counter-performance of payment, which SP has failed to do. A number of issues arise. Firstly, it is unlikely that the

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contract between R and SP is construed as an ‘entire obligations’ contract (Sumpter v Hedges) such that payment is only due upon completion of both novels: this is because it seems clearly stated on the facts that each novel would cost 1k. Since R has earned her contract price in relation to the first novel, her only claim will ben action for the agreed sum (1k) under contract (Taylor Motability) and a UE claim is excluded.

However, she fails to earn her contact price as regards the second novel because SP’s breach prevents her from completing performance. English law is unclear here, and a strict understanding of Lady Rose’s judgement in Barton v Morris would suggest that a UE claim would be unavailable; however, it is submitted that such a literal reading cannot be accepted because Lady Rose was not thinking of situations where the defendant’s breach prevented performance. It is therefore submitted that the High Court of Australia’s approach in Mann v Paterson is preferred: such a claimant would be able to sue in UE, despite also being able to sue in breach of contract. Gagelar J’s of the majority rejected the ‘artificial’ argument that allowing a UE claim would undermine contractual allocation of risk: contracting parties instead generally contact against the gamut of remedies available in law as well as in contract. This view is preferred on a principled basis as well: McFarlane and Stevens suggest that in these scenarios, part of the shared basis upon which a claimant performs the work is that the defendant would not preventing the claimant from completing said work. Where this has happened, there is a total failure of that condition.

Thus, a UE claim for failure of basis can be brought against SP. The claim is likely to be capped at the value of what is recoverable under contract (1k) because allowing a claim in excess of that would unjustly put the innocent party in a better position than she would have been if the contract had been fulfilled (Taylor v Motability), which could perversely incentivise parties to terminate a contract and sue in UE (Gagelar J in Mann).

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