Per Incuriam Michaelmas 2019

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

04|

Erica San

05|

06|

Rachelle Lam

10|

Tan Jing Min, Timothy Lee and Lena Riecke

12|

Trisha Shah

14|

Oscar Choo

18|

Michael Nguyen-Kim

20|

Annie Mackley

22|

Kelly Macpherson

24|

Philip Marriott

26|

Emily Ho

29|

Rachel Hughes

Aaron Gan

Dear Reader,

Per Incuriam Per Incuriam

Per Incuriam.

Per Incuriam

President 2019-2020

Per Incuriam Per Incuriam,

Per Incuriam

Per Incuriam

Editor-in-Chief

International arbitration and dispute resolution

Enforcement of arbitral awards and judgments across jurisdictions

Rule of law

Conclusion

[1]

[16] [17]

[2]

[3]

[18]

[4] [5]

[19] [20]

[6]

[21]

[7] [8] [9]

[22] [23] .

[10]

[24]

[11] [12] [25] [13]

[26]

[14]

[15]

What is decolonisation?

legal

Chan Kam Shing Jogee

Chagos

"We have no account of why the ‘buggery’ law was retained (in rewritten form). It was not rethought.

Inertia meant that it would continue in the first systematic codification of criminal law to be enacted in the British Empire. The spread of 377 to half the world was simply the copying of the new code. The intellectual incoherence of this history, as far as the issue of same-sex activity is concerned, is amazing."

But how is Decolonise Law useful?

usefulness

This article is adapted, in part, from an article by the Decolonise Law Working Group in Decolonise! Vol. 1: 2019.

[1]

[2]

[3]

[4] [5] [6]

[7]

How should we decolonise the law?

[8]

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

"How were praedial servitudes created? How was interference with a praedial servitude remedied?"* ius non tollendi

in

iter

rem,

actus

SERVITUDES

via aquae ductus

ius in re aliena,

PRAEDIAL SERVITUDES ius tollendi ius non tollendi

HOW WERE PRAEDIAL SERVITUDES CREATED?

oneris ferendi

ius tollendi and

"They created ius in re aliena, lesser property rights than ownership that were legally protected by the possessory interdicts."

Oneris ferendi 1. Express creation

2. Effluxion of time

nec vi, nec clam, nec precarium, usucapio praescriptio

longi temporis longissimi temporis

praescriptio.

Usucapio

mancipatio

cessio in iure

actio

lex Scribonia negatoria commercium  actio confessoria

Longi temporis praescriptio

actio negatoria vindicatio actio confessoria

res mancipi adiuctio Longissimi temporis praescriptio iter

uti possidetis civitas

quasi traditio plus patientia, ius tollendi

iter iter

INTERFERENCE WITH PRAEDIAL SERVITUDES aquae ductus

unde vi

*Law Tripos 2019, Constitutional Law, Question 7.

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

Critically evaluate that argument."*

Factortame

Factortame

Miller

Factortame

Factortame

Factortame

Factortame

Factortame

Thoburn

Miller Miller

Miller

Factortame

Miller HS2

"Even after Brexit, this

Thoburn

HS2

richer and more refined understanding of the broader common law

Thoburn

constitution will persist."

Miller

Thoburn Factortame

Miller

Factortame

*Law Tripos 2019, Criminal Law, Question 7.

"Sonja, 45, lives with her 55-year-old husband Frank and their 17-year-old son Derek. Ever since Derek was born, Frank has treated Sonja with great brutality and prohibited her from leaving the house without him. He has also told her that he will kill her and Derek if she ever tries to leave him. Sonja believes him. One morning Frank punches Sonja in the face with so much force that he breaks her nose. Derek jumps at Frank, pummelling him with his fists and shouting that he hates him. Frank shakes him off and, before he goes off to work, tells Sonja that he wants Derek out of his sight forever and that if Derek is still at home when he comes back in the evening he, Frank, will kill him.

Derek and Sonja decide that their only chance of finding safety from Frank is to kill him that evening. Sonja says that she has found an old tin of rat poison in the shed which she believes contains enough arsenic to kill Frank. Derek and Sonja spend the afternoon digging a big hole for Frank’s body in the back garden. Then Sonja cooks a heavily spiced curry, mixes the rat poison into it and leaves the food on the kitchen counter for Frank to eat when he comes home late at night. Their plan is that they will go to sleep early, with Derek hiding in the attic in case Frank searches for him, and that they will bury Frank together in the morning.

When Frank comes home close to midnight he eats the curry and collapses soon thereafter.

Derek, who has stayed awake, then drags Frank’s apparently lifeless body outside to the hole in the garden. While he is busy shovelling earth over Frank’s body, Derek suddenly hears Frank groan. Realising that Frank is still alive and afraid of what Frank would do to him and his mother were he to recover, Derek panics and hits Frank on the head with the shovel multiple times until Frank no longer groans. At the post mortem it is found that Frank had not ingested enough rat poison to kill a human being and that the sole physical causes of his death were the fractures and blood loss from the wounds inflicted with the shovel.

Consider the criminal liability of Sonja and of Derek."*

D → F (murder/homicide):

Cunningham

S → F (homicide):

S → F; s 23 OAPA: Jordan Cunningham Thabo Meli Thabo Meli Thabo Meli

"The fact that the death came about in an unexpected way is irrelevant; it does not change the fundamental nature of the offence

S → F; conspiracy to murder:

(English)."

Martin Gladstone Williams

D → F (battery): Devlin Jogee

Owino

English

*Law Tripos 2019, Equity, Question 8.

"Alex, a Cambridge pub owner, died leaving considerable cash reserves and a cellar containing one hundred cases of wine. By his will Alex left all his property to Yihan on the following trusts: (i) £50,000 for my niece Nina, to pay for her university tuition fees. (ii) A reasonable amount for my wife Brenda, so that she can continue to enjoy the annual cruises that we always took together. (iii) Ten cases of my finest wine for Diana; the rest of my cellar for Ellie. (iv) My pub is to be demolished and the land turned into a sports field. For 10 years it will be held for the use of Milton Industries Ltd Sports Club. Thereafter it will be held for such members of my family then living as Yihan may select, and in default of selection in equal shares. (v) The residue of my estate is to be distributed at Yihan’s discretion among the citizens of Cambridge, with preference being given to those who used to be regulars at my pub. If there is any doubt as to who is a citizen of Cambridge, the mayor can decide.

Only employees of Milton Industries Ltd may be members of the sports club. Nina, who is 21, has told Yihan that she would like to be paid the £50,000 but she has no intention of ever going to university.

Advise Yihan."*

Part (i)

Part (ii)

Knight v Knight Re Andrews Will Trusts

Re Golay’s Will Trusts Part (iii)

Re Osoba.

Re London Wine Shippers Saunders v Vautier

Part (v)

McPhail v Doulton; District

Re Oppenheim; Re

Auditor of West Yorkshire

Compton Re Last

"It thus seems that Re Denley may not have created a true exception to the rule in Re Endacott."

Part (iv)

McPhail

Re Endacott Everleigh in Tuck; Dundee Hospitals

McPhail v Doulton Re Denley

Re

Board v Walker

Baden’s Deed Trusts No 2

Re Denley Re Denley Lipinski

Re

Re Grant, Re Denley

Re Wright

Re Bowes

Re Denley Re Endacott.

Re Bowes

Re Gulbenkian’s Settlements

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

"‘The Court of Justice has long strived to strike a balance between national constitutional courts’ concerns regarding the protection of fundamental rights, on the one hand, and the principle of primacy of EU law, on the other.’

To what extent has the Court of Justice of the EU been successful in this endeavour?"*

Handelg COSTA Stork

Solange I Stauder Solange II Handelgesselschaft

Bosphorus

Nold Tridimas Kadi Handelg

Volker

Test-Achats

Siragusa

Hernandez

Solange I. Delvigne Melloni Wachauf

Akerberg

Solange III

ERT Van Colson

Spaventa

Akerberg

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

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

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

Tower Hamlets

Spectrum Investment

The current law Rosenburg v Cook

Swift 1st Malory 1 The LC's reforms

Buttler v Rice

Gold Harp Ajibade

Anfield

"There is now greater recognition that the LRA is dependent on the general law in terms of structure and notions such as RoT."

Swift 1st

Swift 1st

Ainsworth

Gold Harp

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

"For the first eleven months of 2017, Axel (a company) supplied grade A petrol to Box (a company) at the price, agreed on each delivery, of 80 pence per litre. Box then wished to place the relationship on a formal basis. Box offered in writing to Axel that: ‘(i) Axel will supply Box with all Box’s grade A petrol needs for the calendar year 2018, at 80 pence per litre, and (ii) the contract will continue for the year 2019 unless (iii) either party in 2018 gives at least two months’ notice that it wishes to terminate the contract. (iv) Any counter-proposals or contractual correspondence are to be made by hard-copy letter. (v) Any contractual variation must be formulated in hard-copy and signed by both parties.’

Axel responded by e-mail: ‘parts (i) and (ii) and (iv) and (v) of your written proposal are accepted; but, as for (iii), we suggest that the minimum notice period should be one month, and we will assume that this is agreed unless we hear soon from you.’ Box did not read Axel’s e-mail because Box had assumed (in view of (iv), above) that Axel would write in hard-copy form. Therefore, Box deleted all its e-mails without reading them.

Box continued to place monthly orders with Axel, for which Axel invoiced Box at the 80 pence rate. The agreement ran smoothly at that price during 2018 until, on Wednesday, 28 November 2018, Axel placed under the door of Box’s office a hand-written letter which read: ‘Axel cannot supply you with petrol in 2019 at 80 pence, only at 90 pence. Unless you agree to this reasonable increase by Friday 30 November, this note will serve as one month’s notice that our contract has been terminated.’

In fact Box’s offices were closed on 28 to 30 November because of a gas leak. Box did not respond to Axel until Monday 3 December, when Box wrote by hard-copy letter: ‘we refer you to part (iii) of our agreement: the minimum notice period is two months and not one month; and so our contract for 2019 will continue at the rate of 80 pence; and in the event that you refuse to supply, we will be seeking specific performance of your promise’. The market rate for grade A petrol from all other suppliers in 2019 is 95 pence.

Advise Box whether specific performance and/or damages are available."*

Gibson v Manchester

Manchester Diocesan v Commercial Nissan v Nissan

Manchester

Bank of Australiasia v Palmer

Nissan v Nissan Tekdata v Amphenol Smith v Hughes Entores Crest Nicholson v Akaria

"Therefore A’s email is

Hyde v Wrench

ineffective as acceptance in

Manchester Diocesan

any event, and even if effective as a counter-offer, B is not taken to have accepted."

Nissan v

Nissan

Holwell Securities v Hughes Wells v Devani Smith v Hughes Entores v Miles OT Africa v Vickers Felthouse v Bindley

Nissan v Nissan

Co-operative v Argyll Smith v Hughes

Hill v Parsons

Powell v Brent

Robinson v Harman Lauritzencool v Lady Quinn v Burch

Falcke v Gray

Monarch v Karlshamns; Galoo v Grahame

Sky v VIP

Hadley v Baxendale Frost v Knight Societe v Geys Yukong v Rendsburg

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

"Camchester United, a lower division football club, decided to appoint a ‘motivational coach’, to boost its players’ mental resilience. It hoped that this would increase its chance of being promoted to football’s premier league and thus enjoying the much greater profits that clubs derive from premier league membership. Ginny, Camchester’s director of training, browsed a website called Headsup.co.uk, which retained a list of all UK accredited motivational coaches and which contained the statement, ‘Our quality assurance - boost your players’ resilience and you WILL boost your balance sheet!. Draco was listed on the Headsup website as based in the Camchester area. Ginny phoned the Headsup phoneline and was assured that Draco was indeed an excellent motivational coach. In fact, Headsup had omitted to check carefully, so did not realise that Draco had convictions for violent offences and had lost his accreditation several years ago. Camchester United retained Draco as its freelance motivational coach.

Ron, a timid young player with Camchester United, was required to attend Draco’s consulting room for weekly motivational sessions. At the second session, Draco flew into a rage and slapped Ron’s face repeatedly. Then, in an experiment designed to test Ron’s mental resilience, Draco told Ron he was locking him in the consultation room and would return in an hour’s time to give him ‘more of the same’. Terrified, Ron did not realise that Draco had intentionally left the door unlocked, so he jumped from the second floor window.

He landed on Severus’s vintage Jaguar motor car, which Severus had parked on a double yellow line for several hours and which had no valid vehicle tax. Ron suffered minor injuries, but Severus’s car was very badly damaged. Severus paid for expensive repairs to the car, because it was of great sentimental value, even though the cost exceeded the value of the car. Draco is now in prison; the resulting bad publicity caused Camchester United’s investors to pull out and its profits to slump.

Advise the parties as to their rights and liabilities in tort."*

Draco (D) & battery Letang v.

Wainwright Cooper

v. HO

Read v. Coker Turberville v. Savage.

D & assault Re F

Wainwright v.

HO

Joyce v. O’Brian

"However, the requirement

Mitigation

for imminence is to illustrate the position of the claimant in being unable to avoid the threat."

The Liesbosch

D & false imprisonment

Pure economic loss JGE v. Portsmouth

Bird v. Jones R damaging car Spartan Steel v. Martin

R v.

Hedley Byrne v.

Bournewood,

Heller.

Robinson v.

New Ferry Co

NRAM v.

Vicarious liability?

Steel Page v. Smith; Smith v.

Leech Brain Various Claimants v. Barclays Bank,

C&E Commissioners v. Barclays Bank Hedley Byrne Hedley Byrne,

Ex turpi causa