Per Incuriam - Lent 2015 (Cambridge University Law Society) by Cambridge University Law Society - Per Incuriam Law Journal

PERI CAMBRIDGE UNIVERSITY LAW SOCIETY

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SPECIAL Ask-a-Judge Article Featuring The Rt Hon Baroness Hale, The Rt Hon Lady Justice Hallett and The Hon Mr Justice Leggatt

The Somersett case: an Â·imperial conflict-of-laws' Considering the Doctrine of Consideration - A Doctrine Without a Future?

Hogan Lovells

Careers in law

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inside 04 WELCOME LEITER FROM THE EDITOR AND VICE-EDITOR 06 WELCOME LEITER FROM THE PRESIDENT

Features 07 ASK-A-JUDGE The Rt Hon Baroness Hale, the Rt Hon Lady Justice Hallett and the Hon Mr Justice Leggat! answer studentsubmitted questions on a variety of topics - a very insightful and unique read!

16 THE BAR-SOME PERSONAL INSIGHTS Ms Melanie Hall QC shares her experiences from the early days of her career, to the lessons she has learnt over the span of her successful thirty [plus) years at the Bar.

News 18 THE SOMERSEIT CASE: AN 'IMPERIAL CONFLICT-OF-LAWS' Richard O"Keeffe, St Edmund"s College Richard examines the case of Somerset! v Stewart [1772] to compare the multi-jurisdictional conflicts that arose when interpreting slavery judgements.

22 CONSIDERING THE DOCTRINE OF CONSIDERATION -A DOCTRINE WITHOUT A FUTURE? J ian Wei Aw, Hughes Hall J ian critically argues that the doctrine of consideration should be subsumed under the "intention to create legal relations· doctrine.

Careers 25 MINl-PUPILLAGES101 Karl Anderson, Queen·s College; Harriet Wakeman, Downing College; Rebecca Williams, Chrisfs College Karl Anderson, Harriet Wakeman and Rebecca Williams share their experiences completing mini-pupillages and offer invaluable advice on how to secure these highly competitive.placements.

Tripos 29 CIVILLAW Emily Chan, Sidney Sussex College

32 ADMINISTRATIVE LAW Benjamin Mak Jia Ming, Gonville and Caius College

35 COMMERCIAL LAW Karl Anderson, Queen·s College

Per Incuriam wishes to thank Jonathan Sloane for exceptional design and Gary Livermore for his support.

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DENTONS

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Dear Members, Welcome to the Lent edition of Per Incuriam. This edition continues to celebrate the 30th anniversary of Per Incuriam, and has a significant focus on the UK judiciary and a career at the Bar. We are extremely pleased and honoured to include a special feature entitled "Ask-a-Judge': where students were invited, through social media, to submit questions to three distinguished judges: the Rt Hon Baroness Hale of Richmond from the Supreme Court, the Rt Hon Lady Justice Hallett from the Court of Appeal and the Hon Mr Justice Leggatt of the High Court. We extend our sincerest gratitude to them for taking time from their extremely busy schedules to formulate detailed, thought-provoking and inspirational answers to the students of our Faculty! We also have an insightful piece from Ms Melanie Hall QC, from Monckton Chambers, which highlights significant moments of her career spanning nearly 35 years at the Bar. We thank her immensely for sharing her story and the advice she offers budding barristers. It is an excellent piece which will be useful for any student looking to embark on a career at the Bar. Additionally, we have a useful career piece written by Harriet Wakeman (Mistress of the Moots), Karl Anderson (Master of the Moots) and Rebecca Williams (Social Secretary of CULS) discussing their experiences in obtaining and completing mini-pupillages at various Chambers. This article will be very useful for students looking to obtain work experience to gauge whether a career at the Bar is right for them. We also have two excellent student-written articles by Richard O'Keeffe and Jian Wei Aw. Richard has written a fascinating article on the imperial conflict oflaws during the 18th and 19th century, and carefully examines the case of Somersett v Stewart [ 1772] to compare the multi-jurisdictional conflicts that arose when interpreting slavery judgments. Jian has submitted a critical piece arguing for the doctrine of consideration to be subsumed under the 'intention to create legal relations' doctrine, which will be useful for any Part IB student taking Contract Law. And, finally, we have included three tripos papers - Emily Chan's problem question for Civil Law, Benjamin Mak Jia Ming's essay for Administrative Law, and Karl Anderson's essay for Commercial law. A special thank you to Stephanie Taic who helped with the selection of some of the photos in this edition. As always, we welcome any comments you might have or suggestions for future articles. Please feel free to contact us at per-inc@camlawsoc.com. Best wishes for a productive Lent term! Nicole Samara Ng Yuen, MA (Editor)& Henry Moore (Vice-Editor) Nicole Samara Ng Yuen is a second year law student at Lucy Cavendish College and Henry Moore is a third year law student at Sidney Sussex College.

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~PIPER DLA Piper is a global law firm operating t hrough var ious separat e and distinct legal entities. Further details of t hese entities can be found at www.dlapiper.com CopyrightÂŠ 2012 DLA Piper. All rights reserved. [ AUGl2 [ 2402976

Dear Members, I hope you all had relaxing Christmas vacations and are having a productive first few weeks of term. The Per Incuriam team has been hard at work over the break putting together this new edition for you to enjoy. The theme of this Per Incuriam is the Bar - one of the most challenging but rewarding careers studying law has to offer. Cambridge has a great history of educating some of the greatest legal academics, Counsel and Judges of the past century. Through the Mooting opportunities offered by CULS, as well as this edition of Per Incuriam, we hope to provide as much information to aspiring barristers as they work their way towards a career at the Bar. This edition contains an exciting feature entitled 'Ask-a-Judge'. Notable judges including the Rt Hon Baroness Hale of Richmond, the Rt Hon Lady Justice Hallett and the Hon Mr Justice Leggatt have all answered the questions you submitted via social media, and provide unique insight into the experience and knowledge they have gained from many years at the Bar. This is my final 'Welcome Message' as President, and I would like to thank Nicole and Henry for the amazing work they have done this year with Per Incuriam. They have been a delight to work with and have made Per Incuriam the best it has ever been. I wish you all a calm and productive Lent term and look forward to seeing the exciting plans the new CULS committee has for you all next year! Best wishes, Christina

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Ask-a.Judge We are extremely grateful and honoured that the Rt Hon Baroness Hale of Richmond, the Rt Hon Lady Justice Hallett and the Hon Mr Justice Leggatt have taken the time to participate in this special feature which celebrates Per Incuriam's 30th anniversary. This article spotlights renowned judges who have contributed to the UK judiciary over the last thirty years, and allows students a unique opportunity to ask questions to these judges through social media. We hope this article will serve to inspire and motivate Cambridge law students to pursue their dreams and aspirations.

Rt Hon The Baroness Hale of Richmond Lady Hale is the United Kingdom's most

senior woman judge. She became the first, and sadly the only, woman 'Lord of Appeal in Ordinary' in 2004, after a varied career as an academic lawyer, law reformer and judge. She was educated at Richmond High School for Girls in

Yorkshire and Girton College, Cambridge. She taught Law at Manchester University for 18 years, specialising in family and social welfare law, and also practising for a while at the Manchester Bar. In 1984 she became the first woman to

serve on the Law Commission, a statutory body which promotes the reform of the law. There she led the work of the family law team, resulting (among others) in the Children Act 1989 and the Mental Capacity Act 2005. She was a founder member of the Human

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Fertilisation and Embryology Authority and chair of its Code of Practice Committee from 1990 to 1994, when she was appointed a Judge of the Family Division of the High Court. She was promoted to the Court ofAppeal of England and Wales in 1999 and in 2004 to the House of Lords. This was the top court for the whole United Kingdom, until the 'Law Lords' became the Justices of the newly established Supreme Court of the United Kingdom in 2009. She became Deputy President of the Court in 2013. She is author and co-author of a number of books, including The Family, Law and Society: Cases and Materials (6'h edition 2009) and Mental Health Law (S'h edition, 2010). She retains her

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links with the academic world as Chancellor of the University of Bristol and Visitor of Girton College. She also helped to establish the United Kingdom Association of Women Judges in 2004 and from 2010 to 2012 served as President of the International Association of Women Judges, a world wide body of both men and women judges committed to equality and human rights for all.

"Of all the cases you have presided over, which case has stuck with you and why?" - Joe Hudson, Second Year (Selwyn College) Pedantically confining myself to the cases I have presided over (as opposed

to taken part in judging), it must be the case of the Australian aboriginal boy, taken from his mother at birth and placed for adoption with an English couple living in Australia, who later moved back to England with their family. He was eventually traced by his Australian family, which was an unsettling experience for him. In his twenties, he was run over by a bus, leaving a partner and a young child, as well as his adoptive mother. They wanted him buried in England near his adoptive father. His Australian family wanted him returned to Australia for his bones to be scattered over their ancestral lands in accordance with their custom.

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The case had so many layers of meaning - the wrong done to the aboriginal people by taking so many of their children away from them, the wrong done to this mother by extracting her irrevocable consent to adoption only hours after the baby had been born, the wrong done to the little boy by placing him with an English family, open and loving though they were, the wrong done to them all by changing the law in such a way that the birth mother was allowed to ring up the family in England, without any warning to them or counselling about the profound culture shock which the young man would experience, and the politics around the whole issue of the "stolen generation" in Australia. I decided that he should be buried in England but I do wonder what I would have decided had I been an Australian judge and the family stayed in Australia. The factual context, the surrounding circumstances, and the scarcely articulated but very present 'small p' political pressures would have been very different.

expectations of yourself, but you keep on trying. On occasions, the responsibility of deciding a family's future can keep you awake at night. As a Court of Appeal judge, you are reviewing what the trial judge has done. This is nowhere near as stressful as doing it yourself, but there is the added dimension of trying to be fair to the trial judge, as well as to the parties and their counsel. As a Supreme Court judge, the facts and the fairness of the proceedings in the courts below are (generally speaking) taken for granted. The Court is concerned only with arguable points oflaw of general public importance. The decision will matter, not only to the parties in the case, but to many other people, businesses and institutions as well. So you are trying to get the law right, while resisting the temptation to make it up as you go along. Fortunately, you are not alone. There are always the other Justices to share the responsibility, however frustrating it may sometimes be if they do not share your own view of the matter.

practical and sensible scheme when I was at the Law Commission, but by the time it reached the statute book in the Family Law Act 1996 it had been so amended by government and Parliament as to become unworkable. So I am glad that it was never brought into force. But the reasons for changing the law are still just as strong - perhaps even stronger - today and so I live in hope that one day it will happen. "What is your most fondly remembered court room anecdote?" Kieran Chambers, Third Year (Sidney Sussex College) Listening to Mohammed Al-Fayed being cross-examined in the Court of Appeal in the Hamilton libel case. He never said 'yes'. His most frequent answer to any question, apart from blank denial, was 'it's a possibility'. Eventually, frustrated counsel asked whether something he had said was untrue, and he replied with a broad smile 'it's a possibility'. Perhaps only a lawyer would find that funny, but we all did.

"How has your view of your responsibilities as a judge changed throughout your career?" - Emily Chan, Second Year (Sidney Sussex College) I am not sure that my view has changed, but my responsibilities certainly have. As a trial judge, your main task is to discover the facts and then apply the established law (which in family cases usually involves a great deal of discretion) to the facts you have found. It is much more immediate than appellate work. You are trying to keep an open mind, to treat all the parties and witnesses fairly and courteously, to listen carefully and remain patient with the lawyers, and to reach the best decision you can on the material you have. Of course, you do not always live up to your own high

"Technicalities aside, if you could change one law what would it be and why?" - Jade Amanda Laporte, Second Year (Lucy Cavendish College) Just at the moment, I would like to change our equality law to make it clear that the diversity of the bench (along many different dimensions, including social and professional background as well as gender and ethnicity) is a relevant consideration in judicial appointments, especially to collegiate courts like ours. There is not much point in having five, seven or nine minds on the job if they all have the same experience of life and all think in the same way. But for many years my main unfulfilled law reform project has been for genuinely no-fault divorce. We produced what I still think was a

"If you could have lunch with a historical figure who was born before the 20th century, who would you choose and why?" - Jasper Wong, Third Year (Peterhouse College) That's very difficult, because there are so many, but I would love to ask Mary Wollstonecraft about her fight for women's rights and women's education in the second half of the 18th century and Emily Davies how much had changed when she was fighting to found Girton College in the second half of the 19th century. There is an excellent play called 'Bluestockings' which shows just how much she, the fellows and the students had to contend with. Getting them both together would be fascinating. I was immensely proud to go to the first Oxbridge women's college and

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hope that both the men and the women who go there now still feel the same. "Which of your undergraduate courses has been the most useful in your career?" - Christina Sweeney-

Baird, President of the CULS, Third Year (Magdalene College) They were all useful, because it's not so much the knowledge you acquire that matters, but the methods of thinking, the underlying principles and values of the law, the ability to read and to understand a decided case or a statutory provision, and the tools to discover the answers to things you don't know (and to check whether what you thought you knew was correct). You get those things from a combination of different courses, some of which may seem boring and irrelevant at the time, but all of which contribute to becoming a rounded and thoughtful lawyer. Having said that, the course which was then called 'Contract and Tort II' advanced law of obligations - did the most for me. One of our example areas was carriage of goods by sea, so many years later sitting in the Court of

Appeal I was able to reassure commercial counsel that I did know what a bill oflading was. "What do you miss most about being a student at university?" - Sachin

Parathalingam, Secretary of the CULS, Third Year (King's College) I miss the sense of endless possibility .. . so many different opportunities to enjoy and develop oneself at university and so much to look forward to in the future. Where else can you sing, dance, act, play sport, party, do politics, meet interesting people, indulge the most eccentric hobbies with others who feel the same, along with gaining the knowledge, the skills and the friends to see you through adult life? But even in Cambridge, it never crossed my mind that I would become any sort of judge, let alone a Lord of Appeal in Ordinary; I still don't quite know how that happened. "What one piece of advice would you offer students looking to enter the legal profession?" - Sandip Bhuckory,

Be the best you can at what you are doing now and stay flexible and enthusiastic about what to do next. You are entering a rapidly changing and uncertain world. The optimism which many in my generation felt that access to real justice would steadily expand for all who needed it, and that opportunities within the legal profession would steadily expand alongside it, has been severely dented by recent changes to legal aid, to court fees, and to the service which the courts can offer. Some sorts of law jobs are decreasing while the numbers of young and not so young people looking to enter the legal profession are still increasing. But there still are plenty of law jobs for able and enthusiastic new entrants. They are just not necessarily the same as the ones you thought of when you first thought of studying law. I still think that reading law at Cambridge gave me the best possible start in life and hope and believe that it will do the same for all of you.

Second Year (Girton College)

The Rt Hon Dame Heather Carol Hallett Lady Justice Hallett was educated at grammar schools in Hampshire and at St Hugh's College, Oxford. She was called to the Bar in 1972. In 1989 she became a QC and was appointed as a Recorder of the Crown Court. She became a Bencher of Inner Temple in 1993. She served as Leader of the South Eastern Circuit between 1995 and 1997 and as Director of Public Affairs for the Bar Council. She was the first woman to chair the Bar Council in 1998. Her practise was general common law with an emphasis on crime. She became a full-time judge of the QBD in 1999 and became a Presiding

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Judge of the Western Circuit shortly thereafter. She was promoted to the Court ofAppeal in 2005. She served on the Judicial Appointments Commission as an inaugural Commissioner and then as Vice Chairman for approximately 5 years. She was Treasurer of the Inner Temple for 2011. She has served as Chairman of the Magisterial Committee of the JSB and was, until July 2014, Chairman of the Judicial College. In 2011 she was appointed VicePresident of the Queen's Bench Division. In October 2013 she was appointed

Vice President of the Court ofAppeal, Crime Division. Lady Justice Hallett acted as Coroner at the inquest into the deaths of the 52 victims of the July 7'h London bombings. She is married to a fellow lawyer, Nigel Wilkinson QC and has 2 sons. "Of all the cases you have presided over, which case has stuck with you and why?" - Joe Hudson, Second Year (Selwyn College) The case that has stuck with me and I suspect will stick with me forever is the inquest into the deaths of the victims of the 717 London bombs. I acted as

Coroner but without a jury so I decided issues of fact and law and made recommendations. My role brought me into contact with the bereaved families and with many of the survivors and rescuers. In different ways they were all extraordinarily brave. Their stories were moving and inspiring. To come so close to suffering and courage on that kind of scale is an experience one can never forget. "How has your view of your responsibilities as a judge changed throughout your career?" - Emily Chan, Second Year (Sidney Sussex College) The role of the judge has changed dramatically over the last few years. I have lectured upon some of the changes both in and out of the courtroom. They include changes in the constitutional role of the judge, the

increase in judicial review, the increase in leadership and management responsibilities and changes in the way in which the judge is regarded by the public. "What is your most fondly remembered court room anecdote?" Kieran Chambers, Third Year (Sidney Sussex College) The anecdote attributed to F.E Smith QC later Earl Birkenhead as counsel addressing a difficult judge: Judge: "Mr Smith, I have listened to you for over an hour and I am still none the wiser". F.E Smith: "None the wiser, perhaps, my lord but you are certainly better informed".

choose and why?" - Jasper Wong, Third Year (Peterhouse College) Robert Dudley Earl of Leicester favourite of Queen Elizabeth 1. When I was Treasurer of the Inner Temple in 2011 we put on a play written by two leading defamation silks called "Murder Most Foul or Libel Most Vile" in which the two protagonists were both 16th century Inner Templars. In our work of fiction, the Earl of Leicester sued the Duke of Norfolk for spreading rumours that he killed his wife Amy Robsart in order to marry the Queen. At the end of the play we took a vote of the audience as to who should win. The result was indecisive. I want to know if Dudley did kill his wife.

"If you could have lunch with a historical figure who was born before the 20th century, who would you

"Which of your undergraduate courses has been the most useful in your career?" - Christina Sweeney-

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Baird, President of the CULS, Third Year (Magdalene College) I do not remember much about them at this distance, perhaps Contract Law. It is rational and logical and its principles apply to contracts of every description from the purchase of a carton of milk from the supermarket to the multimillion-pound commercial agreement. "What do you miss most about being a student at university?" -

Sachin Parathalingam, Secretary of the CULS, Third Year (King's College) Freedom and lack of responsibility. Once you graduate it all changes. "What one piece of advice would you offer students looking to enter the legal profession?" - Sandip Bhuckory, Second Year (Girton College) If you are bright enough, sensible and hard working - do not give up. There are far too many law students who want to join the profession and not

enough who pause to consider whether they are truly suited. That makes it a very competitive profession to try to join. But, if you are suited it is a great profession with a vast array of job opportunities in private practice, in business, in Government and elsewhere. I have never regretted for one second my decision to become a lawyer. I am stimulated intellectually, constantly challenged, and never bored. I also like the company of other lawyers.

The Hon Mr Justice George Leggatt Mr Justice Leggatt studied Philosophy at Cambridge and on a Harkness Fellowship at Harvard before converting to law and qualifYing as a barrister. He then spent two more years in the US - as a Bigelow Teaching Fellow at the University of Chicago Law School and working for a New York law firm - before joining Brick Court Chambers in London in 1985. He practised from there as a barrister, mainly in the field of commercial law, for over 25 years, becoming a QC in 1997. From 2002 he sat as a Recorder (i.e. part-time judge) in criminal cases for a few weeks each year. Mr Justice Leggatt was made a High Court Judge in 2012. He is assigned to the Queen's Bench Division, where the work is extraordinarily varied and includes sitting in serious criminal cases as well as a whole range of civil cases. He sits some of the time in the Commercial Court and in the Administrative Court. He has been designated to handle all cases involving the armed forces which include over 1000 claims brought by Iraqi civilians who have made allegations of unlawful imprisonment, mistreatment and in some cases unlawful killing against the British government arising out of the Iraq war.

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His wife, Stavia, was a consultant neurologist and now imports olive oil from Greece - where they have a second home and spend as much time as possible. They have a son who recently read English at Cambridge and a daughter who is currently studying Philosophy at the University of California at Berkeley. "Of all the cases you have presided over, which case has stuck with you and why?" - Joe Hudson, Second Year

unlawfully for most of that period because he was not handed over to the Afghan authorities within 96 hours of his capture. The Court of Appeal will be hearing the appeal from my decision in February and, whatever the outcome, I will be surprised if the case does not go on to the Supreme Court. "How has your view of your responsibilities as a judge changed throughout your career?" - Emily

(Selwyn College)

Chan, Second Year (Sidney Sussex College)

I have only been a full-time judge for two years but in this time I have already had the good fortune to preside over many varied and interesting cases, including four murder trials. One case that will stick with me because of its legal and public interest is Serdar Mohammed v MinistryofDefence [2014] EWHC 1369 (QB), in which I had to decide whether the UK has had any legal right to imprison people in Afghanistan. I held that there was such a right, but it did not permit detention for any longer than 96 hours. This meant that the claimant, a suspected insurgent who was detained by UK armed forces for 110 days, was imprisoned

To answer this question, I can only compare my view now of my responsibilities as a judge with what I expected the job to be like when I was appointed. In most ways my expectations have been amply fulfilled, and indeed exceeded. I enjoy enormously, as I expected that I would, the task of judging cases and the immense privilege of deciding what I believe is the right result rather than simply arguing the case for one side. I also find it stimulating when giving a judgment on a disputed point of law to feel that I am contributing, if only in a very small way, to the process of reasoning and decision which makes the common law.

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There are a few respects in which the job differs from my expectations when I started. The variety of the work is even greater than I had anticipated and all the more interesting for that. I have also found it generally much less stressful listening to evidence and argument and getting to ask questions of the advocates than it was being an advocate myself who had to present a case and answer any question that the judge might ask. On the other hand, although I of course realised that patience is a judicial virtue, I had not bargained on the extent to which as a judge your patience is sometimes tested. I have also found that it is hard to monitor your performance when you sit on the bench on your own with no one to point out what you are

doing wrong. I try as best I can to stand outside myself and imagine how the lawyers, and more importantly the litigants, may be perceiving me at any given time. "Technicalities aside, if you could change one law what would it be and why?" - Jade Amanda Laporte, Second Year (Lucy Cavendish College) As a judge, I can't answer express opinions on matters that are politically controversial, and the law that I am going to choose as in need of reform could be described as a technicality. But that is partly my complaint about the law of joint enterprise, particularly as it applies to murder. Suppose two people, A and B, decide to rob C; B knows that A is carrying a knife; B does not want or intend A to

use the knife, but realises there is a real possibility that in the course of the robbery A might use it to stab C with the intention of causing C really serious harm; this does indeed happen and C dies from the injury inflicted. A is guilty of murder. As the law stands, so too is B. That is so even though B neither did an act which caused C's death nor intended that C should die or suffer really serious harm - and therefore neither committed the actus reus nor had the mens rea generally required for murder. Not only is the law of joint enterprise difficult to explain to juries - especially when alternative scenarios which would lead to a verdict of manslaughter have to be explained as well - but it seems to me impossible to justify. I would change the law, if I

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could, to make B guilty of a lesser offence in the circumstances I have described.

"What is your most fondly remembered court room anecdote?" Kieran Chambers, Third Year (Sidney Sussex College) Many memorable episodes happen in court but one anecdote which students of contract law may appreciate involves a barrister called Leo Price QC, who led me in several cases when I was a junior barrister. He once opened an appeal in the House of Lords by explaining that, in order to establish a binding contract, three requirements must be satisfied: there must be an offer and acceptance; they must be supported by consideration; and there needs to be an intention to create legal relations. At that point the senior law lord interrupted him and said: "Mr Price, I think you may take it that we know the basic elements of a contracf' - to which he replied: "My Lord, that was the mistake I made in the Court ofAppear:

"If you could have lunch with a historical figure who was born before the 20th century, who would you choose and why?" - Jasper Wong, Third Year (Peterhouse College) Confining myself to legal figures, I would choose Lord Mansfield, Lord ChiefJustice from 1756 to 1788. Not only are his judgments still cited in commercial cases today, but he also made landmark decisions in the field of what would now be called human rights, such as Somersett's case in which he ruled that English law does not recognise the condition of slavery so that a person brought to England by an American as a slave was entitled to his liberty. I am sure that Lord Mansfield would also be very good company over lunch. Professor Gareth Jones, now retired from the Cambridge law faculty and himself very good

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company, has described him as "urbane, silver-tongued, energetic, cultivated and well read; a highly imaginative lawyer who looked to reason and was not over-awed by the legacy of the pasf: For anyone interested, there is an excellent recently published biography of Lord Mansfield "Justice in the Age of Reason" by Norman Poser. Some of you may also have seen the film "Belle': which came out this year and is based on the true story of a girl born as a slave whom Lord Mansfield and his wife brought up.

"Which of your undergraduate courses has been the most useful in your career?" - Christina SweeneyBaird, President of the CULS, Third Year (Magdalene College) As an undergraduate at Cambridge, I read Philosophy for all three years. Of all my excellent courses the only one which I would say has been useful in my legal career is Logic. My reasoning as a lawyer may not always be convincing, but I hope at least to have avoided logical fallacies. On one occasion as a barrister I attempted to put my study of Logic to more public use: when arguing a case in the House of Lords I cited a passage from a book by W.V. Quine, From a Logical Point of View, in order to demonstrate how my opponent's argument committed the fallacy of substituting one term for another co-extensive description in a referentially opaque context. Although the point was correct, my opponent had considerable fun with this point in his reply, and after that occasion I left my Philosophy books on the shelfl Of the subjects which I studied on the law conversion course, by far the most useful has been contract law. All economic activity depends on contracts, and it is a remarkable thing - on which I have been lucky enough to build a big part of my career - that a

large proportion of the world's commerce is regulated by the English law of contract (or that of other systems derived from it).

"What do you miss most about being a student at university?" - Sachin Parathalingam, Secretary of the CULS, Third Year (King's College) Enjoyable as it was being a student, I cannot say that there is anything I still miss about being a student at university. But if I ask myself what I remember with most fondness and appreciation about my time as an undergraduate at Cambridge, I would mention three things. First, the privilege of choosing each week what topic I wanted to write an essay on and then having my efforts picked apart by my supervisor, Ross Harrison (recently retired as Provost of King's) - an experience which felt like spending an hour in an intellectual spin-dryer. Second, having the chance to meet and spend so much time with so many stimulating people and to make friendships which are still important to me and I am sure will last for life. And third - which you may agree with, Sachin - the stunning beauty of living in King's College, particularly the view as you come in from the back gate over the Backs when the spring flowers are out.

"What one piece of advice would you offer students looking to enter the legal profession?" - Sandip Bhuckory, Second Year (Girton College) Be prepared to work harder (or perhaps in the case of a few of you I should say "even harder") than you did at Cambridge but never forget there are many other important things in life as well as law. Apart from anything else, remembering that will make you a better lawyer. â&#x20AC;˘

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The Bar - Some Personal Insights Melanie Hall QC [Monckton Chambers] Melanie Hall QC is a "tough opponent for anyone at the Bar, whatever their seniority." She has been described in the Bar directories as "a force to be reckoned with for the most sophisticated of VAT disputes" a "creative and independent thinker': a "razor sharp advocate" and a "sensational litigator''. Melanie has been an acknowledged leader in the field of VAT and other indirect taxes for many years, making frequent appearances in the European Court and the higher courts in the UK. Her landmark cases have shaped the structure and boundaries of VAT and other indirect taxes. In recent months she has defended the very existence of VAT on hot takeaway food; the Aggregates Levy and the Landfill Tax. MY 19 YEAR OLD SELF SAW MY future career at the Bar with a degree of clarity which I now see was quite staggering in its audacity. My ambition to be a leading criminal defence barrister was soon thwarted by the crushing realisation that I was hopelessly ill-suited to the criminal Bar. I made many mistakes in the early years of my career. The first was to assume that my enthusiasm for engaging in deep intellectual discourse about subtle legal concepts could be transferred from my law tutorials into the real world. I harboured images of myself arguing the very finest points of law in cases such as DPP v Majewski, pacing up and down the court room, imploring the judge to accept learned submissions I had salami-sliced with a degree of precision designed to impress my law tutor and fellow students. Fast-forward to the real world. In one of my first court cases, my client, who despite his protestations to the contrary, was a notorious local criminal. He was so well-known to the magistrates that they greeted him with rather disconcerting fondness as he emerged from the cells beneath the

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court. I had 15 minutes within which to make my bail application. My submissions that he was a hard working student who should be granted bail because he had no previous convictions and needed to visit his dying grandmother in Scotland, were met with scorn and derision, for reasons which I was to discover after the hearing. As I looked at the ranks of impatient barristers waiting to make their own applications before lunch, I made one of the few wise decisions of the day. I decided to keep the case law I had copied for the benefit of my opponent and the bench, firmly locked up in my brand new brief case, which was laden with the text books and learned articles on the right to bail. The application failed. My humiliation was complete when I spotted the latest edition of Archbold (every criminal practitioner's bible) in the corner of my client's cell. He knew full well that the prospects of securing bail were about as great as the prospects of his long dead grandmother rising from the Scottish grave she had occupied for many years. Our mutual incredulity as we sat in the rancid prison cell, which was to

become his new home, is still seared on my memory. "Why did you lie to me? I'm hereto help you?" was met with "Why did you believe me, I'm a crook?" I came to realise on the train back to chambers, as I agonised about the plight of my client, his child, his wife and my career, that I had just witnessed the opening and the closing chapter of my not so brilliant career as a criminal defence barrister. Back in the early 1980s, aspiring barristers did not have the privilege of mini-pupillages. Regarded by the unenlightened as little more than CV fodder, they provide a valuable opportunity to avoid making the mistakes I made. You may find the prospect of shipping law fascinating as a legal discipline but discover that the characters that tend to occupy that sector don't resonate with your own. The tax Bar, of which I am a member, has a rarefied climate of its own, which is difficult to articulate but easy to understand once you have experienced it for even a short time. A colleague of mine left the Bar because he discovered he did not enjoy conflict. Another found professional life at the family Bar too harrowing because it reminded her

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of her parents' own unhappy marriage. And it's not until you are trapped in a room with dozens of lever arch files with a disclosure exercise to complete that you can really discover whether you are cut out for litigation at the bottom of the food chain. Those who use minipupillages wisely ask searching questions, immerse themselves in the work, get to know members of chambers and perhaps most important of all, spend time with the junior members. In my experience, the juniors tend to be the most forthcoming about what life in chambers is "really like:' I'm afraid those of us at the more senior end have a natural tendency to give selfvalidating advice. Mini-pupillages are important because they will inform your choice of pupillage - Your only shot at getting a tenancy. By the time you are in pupillage you really don't want to discover that you've chosen the wrong discipline. I completed 6 pupillages, which is not to be recommended because with every passing pupillage your market credibility diminishes. Investing the time and energy to find the right fit for your own personal, intellectual and financial profile will reap valuable returns. That does not necessarily mean choosing to specialise at a very early stage, which may box you in. My advice is to keep your choices fairly high level. If you are interested in tax, choose a set of chambers with a broad spectrum of tax work. If European or Human Rights law interests you, then beware. Many claim to have profound expertise - few do. Choose a set of chambers that will provide you with a rich and varied diet. You should also ponder headline questions such as whether you would prefer to have a high turnover of court cases or would favour spending more time drafting and advising clients. Are you likely to enjoy getting to grips with

the evidential underbelly of a case with lots of witnesses, or are you more attracted to points of legal principle? And if you haven't got a clue, then choose chambers which will expose you to both. If the criminal Bar beckons, look for a mini-pupillage which will expose you to hearings and prison visits. It's not until you are immersed in a particular area of law that it's possible to find out whether you are any good at it and whether it suits your intellectual and professional temperament. After a stint at doing road traffic and landlord and tenant disputes in the County Courts, I spent 5 or so years at the construction Bar, representing contractors, architects, surveyors and the like. It kept me going for a while, but at the end of a day cross-examining a plumber, with an electrician and a brick layer next in line, I began to yearn for different challenges and moved to Monckton chambers. It is important to be flexible as a barrister, as market conditions and your own personal circumstances change. Since most skills are transferable, making even the most radical of changes (as I did) does not mean that you write off previous years of professional development. Far from it - I still deploy the cross examination skills I honed during my road traffic dispute days. I am very grateful for that experience. Effective cross examination of a driver as to whether the traffic lights were green or red at the critical time is no mean feat. It is as well for young barristers heading for the bright lights to remember that the simple cases are often the most challenging. Turning down cases in the early years because they are too menial or dull would not only breach the cab rank rule by which we are all bound, but would deprive you of an immensely valuable learning experience.

I have often said that if someone had told me as a student that one day I would be a tax silk, I would have laughed in their face. I stumbled into tax a little over 20 years ago when my senior clerk announced that HMRC wanted to instruct me to argue a case in the High Court. My response was that I didn't do tax, which was swiftly met with the reply "Well you do now': I had recently been appointed by the Attorney General to what was then known as the Supplementary Panel whose members were expected to be versatile and willing to represent the Government in all areas of law. I often wonder where I would have ended up at the Bar if I had not been offered that brief. The first case almost won itself, despite my input; as did the second. But as luck would have it, they both happened to be rather important cases. Embracing new challenges can yield surprising and rewarding results. Taking yourself out of your comfort zone can also improve you advocacy. The fear forces you to focus on the pivotal points and to abandon everything at the periphery- an approach which all judges appreciate. The Bar is the most glorious profession. Aside from being an intrinsic part of our democracy, one of its most attractive features is that it is an open and at times brutal market place. The adage that as a barrister you are only as good as your last case is so true. Life at the Bar is a constant competition. You compete to impress chambers to secure a pupillage and then a tenancy, to impress the clerks to secure a brief, to impress the QC to take you on as a junior, to impress the judge to win the case, to win again on appeal, to keep the client, to secure the next brief, and the next. It is not a profession for the faint hearted, though I continue to be thrilled and honoured to be a part of it. â&#x20AC;˘

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The Somersett case: an 'imperial conflict-of-laws' Richard O'Keeffe, St Edmund's College

THE 2013 FEATURE FILM BELLE tells the story of the illegitimate daughter of an African slave and an aristocratic British naval Captain John Lindsay. He brought her back to London where she was brought up at Kenwood House, under the care of Lindsay's uncle, the Lord Chief Justice of the day, and "father of English commercial law", Lord Mansfield. The film also features the infamous case of the slave ship, The Zang, whose master jettisoned sickly slaves in the course of a transatlantic voyage for the purpose of committing insurance fraud. As

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respectively culturally intriguing and heart-rending as those two aspects of Mansfield's life and judicial career are, the present article is concerned with another of his cases; that of Somersett v Stewart [1772] 98 ER 499. James Somersett was an African slave, bought by a British official in Boston, Massachusetts. Upon transportation to London, Somersett effected an escape, before being recaptured and incarcerated upon a ship bound for the plantations in Jamaica. The case was brought following a habeas corpus application

by an abolitionist group. Mansfield's ruling, properly set within its imperial political context, puts in perspective the ratios of contemporary slavery judgments and the ambiguous jurisdictional arrangements of"the imperial constitution': and how these affected tensions over imperial governance and moral perspectives on slavery in the trans-Atlantic Empire. It is these tensions which made the Somersett case an "imperial conflict-oflaws" case through and through. Somersett's master, Charles Stewart, received a letter following the ruling,

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reporting that Somersett's nephew had that it gave slaves only "a sort of fled his own master after hearing from limited liberty", which would be his uncle that Mansfield had "given rescinded on their return to the them their freedom': Judicially, colonies. Mansfield's ruling has been Mansfield's ruling was interpreted as viewed as "a masterpiece of decisive broadly as by the majority in the insubstantiality" or as "the Knight case [1778], as implying "full handwriting on the wall for imperial liberation in the United Kingdom", but slave interests" and at the least the de also as narrowly as Lord Stowell's jure end of slavery in England. In judgment in The Slave Grace (1_827), their focus on the abolitiqn_p~rratjye, 7""~;--~-~-:--;i-,路-. ~~~:-:_:.=-.~::.=--路._路--::. 7-=~~-1--==~2-.:=~- .f. --:-::_. _路:._--:-7:!.-_-::-::.::=-::-_:.:: ~-.;:

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historians have often overlooked the question of whether common-law could evolve in different directions across the Empire. George van Cleve's "imperial conflict-of-laws" approach to Somersett therefore shifted the historiographical paradigm on slavery law. 1 The surprising lack of a consistent co!1flict-of-laws jurisprudence in the

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1 An introduction to these debates, with particular attention paid to the Somersett case, can be gained through the work of legal historians in the States; the late William Cotter and Prof. James Oldham of Georgetown Law School who has written extensively on the development of the commonlaw in Mansfield's era. This article draws predominantly on the debate between Ruth Paley, Prof. Daniel Hulsebosch ofNYU, Law School and Prof. George van Cleve of Seattle University Law School in the Law and History Review, 24, 3, (Fall, 2006).

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eighteenth century means that historians still diverge over the workings of the imperial constitution. Lord Holt CJ's ruling in Smith v Gould ( 1706) distinguished sharply between Virginian and English law. However, when slaver-trader interests commissioned a formal opinion from two leading English jurists in 1729, the Yorke-Talbot opinion articulated a contrasting imperial legal universalism with regards to property, rejecting the distinction between colony and metropole. 2 This was prompted by the Privy Council's advisory position that "settled" territories would adopt English common-law, and those deemed "conquered" would be subject to Royal prerogative. Ambiguity existed even over this distinction. In 1765, William Blackstone referred to North America as a conquest rather than a settlement, "and so the common-law of England, has no allowance or authority there". Confusion over this point is illustrated by the arguments of Somersett's counsel, William Alleyne, in another case where he argued that Grenada was a settlement, and therefore subject to the common-law, "on a plan similar to that which issues from the common center, and pervades the whole system of our American settlement': It is then no surprise that in 1865, Parliament put forward an Act entitled "an Act to remove doubts as to the validity of Colonial laws': The slave trade was a particularly problematic commercial enterprise, as metropolitan and colonial laws on slavery were in substantive conflict. Certain rights of slave-masters, upheld in the colonies under chattel slavery,

had been denied to these masters in England for over a century. Somersett's eighteenth-century antecedents therefore consistently turned on the conflict-of-laws issue. In 1696, Lord Holt CJ attempted to rectify this inconsistency in a slavery case dealing with Barbadian law, which permitted chattel slavery, but which came into conflict with metropolitan liberties that made such a status impossible. He ruled that the state of the 'slavish servant' was permissible, implying certain limits on a master's dominion including protection against brutal punishment. Conversely, Lord Hardwicke in Pearne [ 17 49 ], protecting slave-trader economic interests, ruled that the law on slavery in the colonies was identical to that of England. This was in keeping with the legal universalism of the Yorke-Talbot opinion, and was the crucial decision in the tension over whether colonial and English law were identical or independent; the question of slavery became subsumed by this issue. In the case of Somersett, as Daniel Hulsebosch points out, "there was no imperial conflict-of-laws treatise to guide the lawyers and judges"; yet when we read accounts of the hearings, the crucial question is clear. In response to Alleyne's submission that "by the laws of Virginia this man is a slave; but I submit that the laws of Virginia extend to Virginia alone;' Mansfield stated that "there was a topic suggested by Mr Alleyne, I thought very material for the consideration of the court; and that is, whether the law of a foreign country is or is not to be

2 A 'metropole' is a parent state of a colony. 'Metropolitan law' therefore describes English statute and common-law, and 'colonial law' is that of the local colonial legislatures. 3 The manuscripts for the Somerset! Case survive in Lincoln's Inn Library where they are viewable with the generous help of their Deputy Librarian, Catherine McArdle: Ashurst Paper Books lOB, Dampier Manuscripts Collection, 2/6.

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adopted in this:' Counsel distinguished between "natural relations" and "municipal relations", arguing that Stewart's claim over Somersett was a municipal relation, and as such "ceases when he quits the country': Before Mansfield had the case stood over for judgment, he again averted to the distinction which Alleyne had made between local and natural relations, "which", he repeated, "I think very material." 3 However, the imperial political context of Mansfield's final judgment is quite as important as its legal antecedents. Some historians have made more of the nascent anti-slavery movement led by Granville Sharpe, whilst others focus on the implications of the ruling for ÂŁ700,000 worth of domestic property in slaves. 4 But the primary concern for the West Indian pro-slavery lobby was the ruling's implications for colonial slavery. It was comprised of professional lobbyists hired by local West Indian administrations, of London commodities traders, and of absentee landlords heavily invested in West Indian plantations. Similarly, just as the real interests of the slave-holders lay across the Atlantic, the real antislavery mobilisation was in the Thirteen Colonies. Before the last two decades of the century, the anti-slavery movement in England was a mere hopeful few relative to the campaign in the Northern states. Reference to that political crisis on the eve of the War of Independence is conspicuous by its absence in English abolition narratives, but the trans-Atlantic slave trade held real significance for revolutionary

4 Sharpe's memoirs provide a fascinating insight into the politics of abolition in that era: Prince Hoare, Memoirs of

Granville Sharp, Esq : composed from his own manuscripts, and other authentic documents in the possession of his family and of the African Institution, (H. Colburn: London, 1828).

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ideology. Influenced by Montesquieu and Adam Smith, the anti-slavery lobby saw an abolition bill debated in the Massachusetts General Court in 1767, and the issue was crucial to the debate over independence. Arthur Lee and Benjamin Franklin resented British moral arrogance over the issue, and it has been argued that this debate politicised the issue of slavery for the first time in America and Britain. Three years before the American war, issues of imperial governance would have been at the forefront of Mansfield's mind. His judgment sought to avoid upsetting this precarious imperial applecart. Mansfield's ruling contained two crucial elements, the first being: "where upon he was kept, to be sold abroad. So high an act of dominion must be recognised by the law of the country where it is used." In that he addressed the habeas corpus issue, the question of a master's right to forcibly deport, but his silence over emancipation per se deliberately allowed competing interests to take from it what they wanted. The second element is Mansfield's controversial positive-law holding; "the state of slavery is incapable of being introduced on any reasons, moral or political, but only by positive-law:' Van Cleve's astute thesis is that rooting slavery in positive-law avoided establishing a common-law prohibition of slavery, which would have threatened the institution in the colonies. It allowed Mansfield to distinguish between the metropole and the colonies, without being overtly

politically divisive. He avoided even the threshold of an overwhelming imperial constitutional problem, innovatively navigating around it. The positive-law holding also avoided a potential House of Lords ruling which might have exacerbated the growing colonial revolt. Van Cleve attributes Mansfield's holding to emancipationist impulses, but his motivation was as likely to be political as moral. Hulsebosch sees the ruling as a defence of English legal supremacy, and 'insulation' against reverse migration of odious practices and slave-traders' political influence. Ruth Paley argues that the very strength of van Cleve's analysis is its recognition that Mansfield had varying intentions for the varying contexts of the Empire. Indeed, Mansfield's concern was to maintain legal diversity in an ambiguous imperial constitution, which seemed the only means of stemming the political and moral upheavals of that era. Van Cleve's "imperial conflict-oflaws" analysis has been further vindicated by legal histories of slavery disputes between states in the lead up the American civil war. 5 The Somersett case demonstrates that viewing law in its political context is as important in legal history as it is for addressing contemporary constitutional questions. It also highlights the political role played by the judiciary in that era, as they sought to ameliorate conflicting interests and hold together a fragile imperial statusquo. â&#x20AC;˘

An introduction to these debates, with particular attention paid to the Somersett case, can be gained through the work of legal historians in the States; the late William Cotter and Prof James Oldham of Georgetown Law School who has written extensively on the development of the common-law in Mansfield's era. This article draws predominantly on the debate between Ruth Paley, Prof Daniel Hulsebosch of NYU, Law School and Prof George van Cleve of Seattle University Law School in the Law and History Review, 24, 3, (Fall, 2006). A 'metropole' is a parent state of a colony. 'Metropolitan law' therefore describes English statute and commonlaw, and 'colonial law' is that of the local colonial legislatures. The manuscripts for the Somersett Case survive in Lincoln's Inn Library where they are viewable with the generous help of their Deputy Librarian, Catherine McArdle: Ashurst Paper Books 1OB, Dampier Manuscripts Collection, 2/6. Sharpe's memoirs provide a fascinating insight into the politics of abolition in that era: Prince Hoare, Memoirs of Granville Sharp, Esq : composed from his own manuscripts, and other authentic documents in the possession of his family and of the African Institution, (H. Colburn: London, 1828). J. Dyer, 'After the Revolution: Somersett and the Antislavery Tradition in AngloAmerican Constitutional Development; The Journal of Politics, 71, 4, (Oct., 2009).

5 J. Dyer, 'After the Revolution: Somersett and the Antislavery Tradition in Anglo-American Constitutional Development', The Journal of Politics, 71, 4, (Oct., 2009).

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Considering the Doctrine of Consideration - A Doctrine Without a Future? Jian Wei Aw, Hughes Hall In the recent decision of Gay Choon Ing v Loh Sze Ti, the court of final appeal of a Commonwealth jurisdiction raised the possibility of reforming the age-old doctrine of consideration. This article argues that consideration should no longer escape reform - but instead of abolishing it completely as some have suggested, the better view is to subsume it under the doctrine of intention to create legal relations ("ILR").

Introduction The common definition of consideration was provided in Currie v Misa: ''A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other''. Put simply,

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consideration is the "price of the promise". While the precise origin of this doctrine is unclear, it is generally accepted that the modern purpose of the doctrine is to filter those promises which should not be enforced by the law.

Problems How well has this filter fared? Regrettably, it has proven to be suboptimal. Firstly, the doctrine of consideration necessitates a strict doctrine of privity and presents an absolute bar against third parties enforcing benefits conferred upon them under a contract. This gave rise to several problems, which were highlighted by the Law Commission. For instance, it thwarts the intention of the contractual parties where they both intend to give the third party a right to enforce the

contract. It also creates a lacuna in the law, because where a contract intended to benefit the third party is breached by one of the contractual parties, it is often the third party rather than the other contractual party who suffers the loss (such as the facts of Beswick v Beswick), yet the third party would have no remedy. Unsurprisingly, numerous common law exceptions were developed to mitigate this harshness. Even Parliament intervened, by enacting the Contracts (Rights of Third Parties) Act 1999, to provide a more comprehensive and statutory bypass of the privity doctrine. Evidently, the doctrine of consideration is a highly excessive filter. Second, Williams v Roffey exposed the inadequacy of the doctrine. In that case, the Court of Appeal held that the additional promise by the defendant to

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pay more was enforceable despite the absence of a corresponding increase in the claimant's obligations. The court found that consideration existed because the defendant derived a "practical benefit" from the claimant's timely performance of its original contractual obligations. Indeed, it is difficult to see how this is any different from the claimant's original obligation to constitute new consideration. Perhaps a hint of the truth can be found in Russell LJ's judgment, where he stated that "courts nowadays should be more ready to find [the existence of consideration] so as to reflect the intention of the parties". As the claimant would have been unable to fulfil its original obligations on time without the additional payment from the defendant, which would have led to dire consequences for the defendant, it is reasonable to suppose that the defendant was willing to be bound when it made the additional promise. In other words, it seems that the court in Williams was stretching the doctrine of consideration as far as is necessary to give effect to the intentions of the parties. This exposes the inefficacy of the doctrine in such cases, where an increased pact should be enforceable even without consideration. Furthermore, the doctrine of consideration has caused unfairness in situations where a creditor agrees to accept part of the debt as settlement for the entire debt. Since the debtor already has an obligation to pay that part of the debt, there is nothing additional that the debtor promises in return for the new promise by the creditor not to enforce the rest of the debt. Applying the doctrine of consideration, this would mean that there was no consideration on the debtor's part and hence, the creditor's promise would not be enforceable. This was the case in Foakes v Beer, where the creditor was allowed to

enforce the full debt against the debtor, contrary to the creditor's earlier promise to waive the rest of the debt upon the debtor's part payment. Yet why should the creditor be allowed to go back on his agreement? As Lord Blackburn pointed out in that case, businessmen generally "recognise and act on the ground that prompt payment of a part of their demand

Creditors who subsequently make ' the'deliberate decision to accept part payment to enjoy certain benefits should not be allowed to go new back word on ' ' their may be more beneficial to them than it would be to insist on their rights and enforce payment of the whole': Creditors who subsequently make the deliberate decision to accept part payment (which is essentially a lowering of the price they demand) to enjoy certain benefits should not be allowed to go back on their new word. Although Foakes might now be ameliorated by the principle of promissory estoppel, with the Court of Appeal in Collier v Wright indicating that debtors who had relied on the creditor's promise can potentially estop the creditor from pursuing the original amount, this possibility has not been completely clarified by the courts. In any event, the fact remains that the doctrine of consideration, by itself, is incapable of bringing about the just outcome.

The Way Forward The doctrine of consideration undoubtedly possesses serious flaws but should it be abolished? It is submitted that the doctrine should not be completely abolished. As Fuller rightly noted, the requirement

for consideration is a useful way of indicating the enforceability of a contract. In a similar vein, O'Sullivan and Hilliard point out that the doctrine provides clear rules that can be employed to ensure contracts work without recourse to litigation. These are compelling arguments - but they do not justify consideration being a requirement. These benefits of consideration can still be enjoyed by using it as one of the methods for ascertaining the formation of an enforceable contract. The better approach, which was suggested by the Law Revision Committee and recently supported by judges in other Commonwealth jurisdictions (Baragwanath Jin the New Zealand decision of Antons Trawling v Smith and V K Rajah JC in the Singaporean decision of Chwee Kin Keongv Digilandmall.com), is to subsume consideration under ILR, using it as a means by which ILR can be demonstrated (other means can include writing). As evident from the aforementioned cases, strict adherence to the requirement of consideration does not always bring about the desired outcome to cases, and the correct inquiry should be to ascertain whether the parties can be said to have had the intent to create legal relations, objectively assessed. In fact, English law is already inching towards this approach - ILR already exists as a fundamental contractual requirement (the lack of which means that there is no valid contract, even if there was consideration), Indeed, this proposed approach of using ILR as the conclusive requirement is not a novel one. German and Austrian contract laws, for instance, contain no consideration requirement, requiring instead a declaration of intent to be bound (Willenserkliirung). Arguably, the world at large is moving away from requiring consideration. It is absent from the

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Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts (it was even criticised in the latter). Moreover, Commonwealth jurisdictions are increasingly signing up to the United Nations Convention on Contracts for the International Sale of Goods, which also has no requirement for consideration. While concerns have been raised with regards this approach, they are not insurmountable. The primary criticism is that ILR is vague and difficult to prove. Indeed, the recent Supreme Court decision of Preston v President of the Methodist Conference , where Baroness Hale delivered a strong dissent from the majority's view that there was no ILR in the arrangement between a church minister and a church, seems to highlight this

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Other criti_cs argue that gratuztuous '' promises should not ' ' ve enforceable problem. However, this criticism ignores the fact that ILR already exists as a contractual requirement. Subsuming consideration under ILR adds no further difficulties to existing law. Other critics argue that gratuituous promises should not be enforceable. Yet this would endorse the harshness in Foakes, and disregards the possibility pointed out by Atiyah that the promisor may have expected some return in an indirect way. In any event, English law already enforces what are effectively gratuitous promises, since consideration need not be adequate and even one peppercorn can be good

consideration. As McGregor puts it, "From the moment that it was accepted that consideration need not be adequate, all chance of carving out a satisfactory division [between agreements which were bargains and agreements which were gratuitous] disappeared".

Conclusion McKendrick observes that it would be unlikely for English law to adopt the principle of consideration if it could start afresh. As Lord Wright rightly stated, "consideration cannot be regarded as the conclusive test of a deliberate mind to contract: whether there is such a mind must always be the decisive and overriding question." That ILR stands ready is cause for optimism. A reform of the law is eagerly awaited. â&#x20AC;˘

Mini-Pupillages 101 In this article we have three students, Karl Anderson (Master of the Moots, CULS ), Harriet Wakeman (Mistress of the Moots, CULS) and Rebecca Williams (Social Secretary, CULS), who share practical advice about choosing and applying to chambers, the application process, as well as their experiences in completing mini-pupillages at various different chambers. We hope this will be useful for all those interested in becoming barristers, and particularly those who will be submitting applications for mini-pupillages over the coming months. Good luck with all of the applications!

Karl Anderson, 3rd year law student, Queen's College Choosing the Right Chambers Applying for a mini-pupillage is very different to applying for a vacation scheme at a city law firm. In particular, different chambers can vary widely in their specialist areas of work. Consequently, it becomes all the more important to do your research and choose the right chambers to match

your academic and vocational interests. You should already have an idea of what area of law you would like to see in practice at the bar; be it commercial, criminal, family or something broader. Publications such as Chambers Student Guide and The Training Contract and Pupillage Handbook will then become invaluable in identifying

chambers that are experts in the areas of law that interest you. For example, I chose to apply to South Square because of its reputation for insolvency and restructuring work and Fountain Court for its broader commercial practice. Other examples include 4 New Square for professional negligence, Keating for construction law, 1 Hare Court for

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it is important that you research the chambers ' ' thoroughly so that you can sound convincing m listing your reasons ' ' for applying family law and llKBW for administrative and public law. After identifying the chambers that suit your interests, you should then consider other relevant factors such as: Is the chambers within commuting distance? Is a mini-pupillage at this chambers a prerequisite if I would like to apply for a pupillage there after graduation? Will the mini-pupillage be funded or unfunded/ assessed or unassessed? Ultimately, the guiding factor in choosing where to apply for a minipupillage is whether you might like to work for that chambers after being Called to the Bar. Mini-pupillages are a 'taster' of life as a barrister at a particular set, so the more you do, the easier it will be to choose where to apply for pupillage!

The Application Process Applications for mini-pupillages fall into two broad camps: you will either

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have to send a CV and covering letter; or you will have to complete the chambers' own application form. For either format, chambers will normally be looking for your motivation to pursue a career at the bar and your reasons for applying to their chambers in particular. For the latter, it is important that you research the chambers thoroughly so that you can sound convincing in listing your reasons for applying. Competition for mini-pupillage at the top chambers can be fierce, so it is imperative that you can persuade the barrister reading your application that you have given a lot of thought to your application. Go beyond describing your interest in their specialisms by researching the recent cases they have been involved with and any awards that the chambers has recently won. Also ensure that you can cogently list your reasons for wanting to become a barrister, both in a covering letter and in an application form.

The Inside Perspective My three most recent mini-pupillages were at 4 New Square, Fountain Court and Crown Office Chambers. Each was a completely different experience from

the last, which highlights the importance of doing a variety of 'minis' before applying for a 12 month pupillage. During my three days at 4 New Square I worked exclusively on one professional negligence case. I spent the whole time drafting an 8 page opinion on the likely level of damages if the claim succeeded. At the other end of the spectrum, I spent my first day at Fountain Court wholly in the commercial court and my second day in a mediation. Crown Office chambers was more of a middle ground, where I read a variety of papers from both small and large cases (although sadly my scheduled day in court fell through as no judge could be found to hear the case.) Although substantively different, for each mini-pupillage I found the barristers exceedingly friendly and helpful. A common characteristic seems to be the compulsion to take a mini-pupil for lunch in one of the Inns of Court! If you are considering a mini-pupillage at Fountain Court or Crown Office in particular, I cannot recommend them highly enough.

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Harriet Wakeman, 3rd year law student, Downing College Choosing the Right Chambers I based my choice in applying to minipupillages based on my academic interest in the areas oflaw the chambers specialise in, as well as their reputation. For example, I chose to apply to 11 Stone Buildings because of its fantastic reputation as a leading set of commercial and chancery barristers. I really enjoyed studying contract law and land law in second year so I thought it would fit my interests well. I also chose to apply to Wilberforce Chambers because of the vast areas of law they advise in. Whilst, they are mostly a commercial chancery set, they also have expertise in sports law, media law, IP and pensions, which would give me more diverse exposure.

The Application Process There are two main methods of applying to chambers: sending a cover letter and CV, or through an online application. In order to apply to 11 Stone Buildings, I had to send a covering letter outlining why I was interested in a career at the bar, as well as why I wanted to do a mini-pupillage at 11 Stone Buildings. I also had to send a copy of my CV. Whilst, with Wilberforce Chambers, I filled out an application form which covered my academic record, extra

curricular interests and asked questions about why I wanted to pursue a career at the bar.

I would definitely recommend a minipupillage with 11 Stone Buildings to anyone interested in a career as a commercial chancery barrister.

The Inside Perspective 11 Stone Buildings: Âˇ

Wilberforce Chambers:

I had a brilliant week at 11 Stone Buildings. I was able to experience a mix of things during my time there including a trip to the company winding up court and the chance to watch two days of a trial, as well as sit in on meetings with the barristers during court breaks. However, the highlight of my time at 11 Stone Buildings was being asked to help a barrister with a case. I was given a legal problem relating to contract law and asked to research it in Lincoln's Inn library. After compiling my thoughts on the matter I presented my views to the barrister on the case. This was great practice for the sort of work I would be required to do for clients if I were to become a barrister. It was an assessed mini-pupillage, so during my week I also had to write a piece of advice on a fictional legal dispute. This was both interesting and extremely challenging, since it involved areas of law which I had never studied before. My favourite thing about 11 Stone Buildings was the friendly atmosphere. From day one, I felt like I was part of the team and my views were respected.

My experience at Wilberforce Chambers was very different to 11 Stone Buildings, but equally enjoyable. Wilberforce has set weeks where it takes mini-pupils, so there were six other mini-pupils on my visit. This was a great opportunity to meet other law students with similar interests. The Wilberforce mini-pupillage was very well organised - at the beginning of the week we were given a timetable so that we knew who we would be sitting with and what we were doing for the duration of the mini-pupillage. This meant that we got the opportunity to meet lots of different members of chambers working in different areas of law. My highlights included discussing a very technical point oflaw in an ongoing property law case with a barrister after reading through all the deeds and case files; attending the Court of Appeal for the first time to watch a case and, of course, the evening drinks reception attended by most members of Chambers and all the mini-pupils!

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Rebecca Williams, 2nd year law student, Christ's College For any student thinking about going to the bar it '' is essential to complete ' ' mini-pupillages For any student thinking about going to the bar it is essential to complete mini-pupillages (also known as minis). They look impressive on your CV and give you priceless insight into life as a barrister. The majority of students complete them during second year, but many chambers accept applications from all years. I completed two over the summer of 2014, after completing my first year. As these were my first minis I started small by applying to chambers outside of London with the hope of securing some in London this year. Here is some guidance for first time mini pupillage hunters ...

C.hoosing the Right Chambers: Practice area: The main thing consider is whether the chambers practices, or are a specialist in, the area of law you wish to practice. I found the majority are now divided into either common law sets (family, civil, criminal) or corporate sets. If you have a strong preference for one area browse the internet to find the leading sets. The Legal 500 is a good place to start. Location: Barristers recommend doing mini-pupillages in the location that you wish to practice. I was unsure whether I wanted to work in London

As Cambridge students we naturally aim for '' the best, so set your' ' sights high

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so decided to get minis in other cities. Remember that the bar is not confined to London - Birmingham, Bristol and Nottingham all have strong sets of Chambers and they are generally less competitive. Prestige: As Cambridge students we naturally aim for the best, so set your sights high. Look at Chambers who have won awards, have QCs and Judges as tenants and have appeared in recent high profile cases. If there is a particular case you have been interested in, see who acted as Counsel and where they practice.

The Application Process: Rolling basis v deadline: Some chambers accept applications on a rolling basis, so you can apply anytime in the year or certain times throughout the year depending on when you want to work. Check the chamber's website and make a note of dates. Bigger chambers tend to accept application for all their spaces over a year at one time. These tend to close very early on so begin looking in the summer before applications open (i.e.: summer 2015 for 2016 placements). Application Form vs covering letter/CV: Some chambers, often the larger ones, have a standardised online application form. This may have questions such as why you were attracted to the firm or the option to attach a CV. Demonstrate that you have researched the chambers in order to impress. For other chambers you may have to send a covering letter and CV to the Mini-Pupillage Coordinator. Again,

tailor this to the Chambers. Also list the dates you are available - be as flexible as possible, booking any holidays after confirming minis.

What to Expect Do not expect a set timetable for the week - Clerks normally tell you what you will be doing the day before, or even in the morning. This may involve meeting Counsel at court, so if you are unfamiliar with the city check where these are. At common law chambers, expect to spent a lot of time at court, but not necessarily in court. For family law I spent most of the day in negotiations between counsel, where court orders were drafted for presentation before the judge. For criminal law expect a lot of sitting and waiting, I recommend buying a newspaper or bringing an electronic device. However the breaks are a great chance to talk to the barrister you are shadowing about the case and the legal profession as a whole. Most are very happy to answer all types of questions. If you want to see a certain type of case or be in a certain area ask the clerks and they will try to accommodate you. It is not wise to use of your time to have the same experiences all week. Finally, you will discover that a barrister's working hours are flexible, so don't be concerned if you are sent home at 3pm when a case finishes in court. From my experience the Chambers do not expect you to go back and sit in the office until 5pm; but do check this on your first day. â&#x20AC;˘

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Civil Law Emily Chan, Sidney Sussex College Hamish agrees to buy Alexander's house for 10, 000 sesterces. Advise the parties of their rights in the following situations: the house is burned down prior to the agreement; part of the price has now been paid. the house is burned down after the agreement, but before the conveyance to Hamish; no part of the price has been paid. the house is burned down due to the negligence ofAlexander after the agreement but before the conveyance to Hamish; the whole of the price has been paid. the house has dry rot. Part (i): The consensual contract of sale, emptio venditio, came into existence if there was agreement on the object of sale, and the price. With exception to the situation the parties had not decided to create the contract by writing (C.4.21.17), mere oral agreement, as in this example, would suffice. Justinian emphasises that 'consent of the parties is sufficient' for obligations arising from these consensual contracts (J.3.22.pr). However, the issue here is that because the house burned down prior to agreement, a contract for its sale may not have even arisen in the first place. Papinianus comments, in relation to purchase of land and buildings, that where the thing in consideration has been 'consumed by fire' at the time of agreement, it will be held to have not been contracted for (D.18.1.58). Paul is more specific and opines that, assuming both parties were ignorant at the time of agreement, if the 'greater part' of the house was burnt, the sale will be void; however, if 'only half or less' of the house was burnt, the contract will be valid (D.18.1.57.pr). In light of the consideration that the house Hamish and Alexander agreed on is not simply burnt, but rather has 'burned down', it is likely the former situation will hold true, and no valid contract arose in relation to sale of the house.

But even though no obligation for transfer of rights has arisen, Hamish has paid Alexander part of the price for the house. Hamish could not reclaim his money back by the actio empti because there was no contract from which the claim may be based. However, Hamish may be able to use the condictio indebiti for Alexander's unjust enrichment, which would allow him to recover the money given in pursuance of an obligation which did not actually exist. Part (ii): Because the house was intact at the time the agreement was made, a valid contract for sale of the house was created; the requirements for the parties to agree on the particular thing to be sold, Alexander's house, at a specified price, 10,000 sesterces, was satisfied. Gaius says that even though the money has not been paid, the contract arises as soon as the price is agreed upon (G.3.139). As the contract is distinct from transfer of rights to the thing itself, the fact that ownership has not passed through conveyance is immaterial. Therefore, the issue is who bears the risk of the house burning down. Paulus says that once the contract was 'perfect' i.e. there is agreement as to thing and price, and the contract is not subject to the fulfilment of any further

condition, the risk of the house was transferred to the buyer (D.18.6.8.pr). Zimmermann agrees that this is the prevailing view. More specifically though, it appears that Alexander had to demonstrate the standard of care a bonus paterfamilias would exercise with regard to his own property, absent a pact by the parties specifying otherwise (D.18.1.35.4). Thomas says that some even hold the vendor to the standard of custodia. In any case, though, it appears that the house was burned down by an Act of God which lies beyond both of these standards, meaning that Hamish will have to bear the consequences and pay the 10,000 sesterces. Alternatively, it should be noted that some academics, such as Haymann, have interpreted Paulus' text (D.18.6.8.pr) to hold that the buyer would not need to pay if the house was totally destroyed (only if it still exists in a damaged state), in which case Hamish would not be obliged to pay the sum. However, Zimmermann points out that the purchaser also received the benefit of anything good happening to the merx such as appreciation in price, and therefore it makes sense to hold him to this risk. Part (iii): In contrast to the previous scenario, the 'negligent' vendor Alexander did not meet the standard of care required

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of him in taking care of the house after the contract was formed, and before its conveyance to Hamish. Therefore, Hamish is able to recover the 10,000 sesterces he paid using the actio empti, as well as potentially consequential damages suffered from Alexander's negligence. Because he has paid the whole of the price of the house, Hamish is able to bring a claim under this action. Part (iv): The assumption will be made that the buyer, at the time of contracting, was unaware of the presence of the dry rot in the house. In the unlikely event that the dry rot is treated as a patent defect visible on reasonable inspection, Hamish will not have a claim, as Florentinus says that in this instance the seller will not be liable regardless of what he says to Hamish

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before the contract is formed (D.18.1.43.pr). Ulpian confirms this by discussing how the Edict, imposing liability for defects, does not apply where the defect or disease of a slave is apparent, as this protection exists to prevent the purchaser from being deceived (D.21.1.1.6). Zimmermann also explains that if the defect was obvious, it would be difficult to prove that it was present at the time of contracting, as opposed to forming after subsequent use. Second, Paul (on Sabinius) says that the vendor will be liable for those latent defects which are not apparent on reasonable inspection, of which he is aware but the buyer is unaware (D.19.1.4.pr). By breaching his duty, the vendor is subject to liability under the actio empti, and also under the actio doli for his fraudulent actions. Therefore, if the dry rot is a hidden

defect which Alexander, but not Hamish, is aware of, Paul submits that Alexander is liable 'to the amount of what [Hamish's] interest would have been' had Hamish known of the dry rot (D.19.1.4.pr). Third, if Alexander described the house to Hamish omitting the fact of the dry rot in the course of forming the contract, Marcianus holds that Alexander will be liable for this omission, notwithstanding the fact that he may be unaware of its presence (D.18.1.45). Discussing the opinions of a number of jurists, he says that the purchaser must be 'indemnified to the extent of his interest' if the Alexander was ignorant as to the defect, however if he was aware of the defect, he will additionally be 'liable for damages sustained by the purchaser [Hamish] on that account' (D.18.1.45).

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Fourth, Pomponius is similarly of the opinion that Alexander would be liable under the actio empti if he had specifically assured Hamish, in the course of concluding the sale, that the house was free from certain (or all) defects that warranted Hamish against the rot (D.19.1.6.4). Alternatively, where both Alexander and Hamish had not discussed, and were unaware of, the dry rot in the course of concluding the sale, Alexander would generally not be liable for the fact of any latent defects. The only potential course of relief in this scenario was the Edict of the Curile Aediles, which imposed limited liability on the seller for latent defects in the thing sold. The requirements laid down by the Aediles, discussed below, are set out by Ulpian in the Digest (D.21.1.1.1). This Edict originally applied in respect of slave

and cattle dealers in the marketplace, requiring sellers to make a public declaration of the known defects, and to undertake that it was free from any undeclared defects. Where the undeclared defects subsequently manifested themselves, the Aediles gave action against the seller, regardless of whether he knew of them or not. The actio redhibitoria was available to bring within six months if the defect was serious and destroyed or impaired the usefulness of the thing to the buyer. For less serious defects, the actio quanti minoris was available to bring within one year of purchase. Where the seller refused to give the necessary declaration that the thing was free from undisclosed defects, the buyer could still bring the former action within two months, and the latter within six months.

While the Edict's origins lay in open market sales, in the relevant Title of the Digest, the aedilician provisions apply to every kind of sale, and edictal remedies appear enforceable by the actio empti. In D.21.1.1.pr Ulpian (killed AD 224) cites Labeo (died AD 14) when saying that the Edict applies to sales of property, implying that this was effective during the classical period. While some argue that this text is interpolated, it is generally agreed that the development would have operated in Justinian's time. If Hamish makes use of these remedies, the most he would be able to get is the money he has paid; there was no question of consequential loss in the absence of fraud. Conversely, where Alexander was fraudulent and deceived Hamish, Julianus says that 'he will be obliged to make good all the loss the purchaser sustained' from the sale (D.19.1.13.pr), presumably through the actio doli. â&#x20AC;˘

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Administrative Law Benjamin Mak Jia Ming, Gonville and Caius College Tripos 2009 QI (a) 'The requirement in Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms that the determination of civil rights and obligations should be undertaken by an 'independent' decision-maker has had only a modest impact upon English administrative law. While English judges are to be applauded for their willingness on democratic grounds to downplay this requirement in relation to policy-making functions, they have fallen into error by too readily invoking the curative principle in order to legitimate fact-finding by executive bodies.' Discuss.

I argue that (1) the requirement in Article 6(1) has had a modest impact across the entire province of English administrative law, but (2) it has had a significant impact in changing how executive decision-making is justified and on specific areas of English administrative law. I further suggest that (3) the impact of the Article 6(1) requirement could grow in the future, and (4) the English judges should be applauded for their willingness on

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democratic grounds to downplay the Article 6(1) requirement in relation to policy-making functions, but suggest their methods may be counterproductive. Finally, I contend (5) that the nascent ground of judicial review for material error offact weakens the claim that English judges have fallen into error by too readily invoking the curative principle in order to legitimate fact-finding by executive bodies.

Modest impact overall

The Article 6(1) requirement has had a modest effect across English administrative law firstly because of general limits placed on its applicability. Just because a claim alleges violation of Convention rights does not engage Article 6(1). Instead, as Kay LJ underscored in R (King and others) v Secretary of State for Justice, its engagement depends on 'the nature of the proceedings'. Furthermore, in

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Tomlinson and others v Birmingham City Council, Lord Hope said that an entire class of'cases where the award of services or benefits in kind ... is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be me, do not engage article 6(1): The second reason the Article 6(1) requirement has had a modest effect across English administrative law is the wide range of specific areas where the English courts have held it not to be engaged. These include matters such as the Parole Board's revocation of a licence (R (Smith) v Parole Board (No 2)) and freezing orders made under statute to deny access to funds for terrorist suspects (Foreign Secretary v Maftah and another). Thirdly, the Article 6(1) requirement has had a modest effect across English administrative law because of the broad array of definite exclusions of Article 6(1) effected by the European Court of Human Rights (ECtHR). The areas demarcated as not engaging Article 6(1) include criminal injuries compensation (B v Netherlands) and deportation (Agee v UK). Indeed, the vast extent of the aforementioned restrictions has led Varuhas to argue in the July 2013 issue of the Cambridge Law Journal that 'Article 6( 1) demonstrates how ... a narrow focus on rights and the demands of a culture of justification can pull in opposite directions, rather than march hand-in-hand' (The Reformation of English Administrative Law? "Rights'; Rhetoric and Reality, p 378) Significance in modesty Despite the modest impact of the article 6(1) requirement across English administrative law, it has significantly changed how executive decisionmaking is justified in the UK.

With the introduction of article 6(1), executive decisionmaking must be justified not only with reference to common-law and statutory standards of procedural fairness, but also in line with the curative principle. Following Albert and Le Compte v Belgium, executive decisionmaking is justified only when an initial failure to comply with Article 6(1) can be reviewed by an independent and impartial tribunal of 'full jurisdiction'. Endicott (2011) encapsulates this well: 'What is essential for the rule of law is that a dispute should be resolved by an independent decision when that is what it takes to prevent arbitrary government: It is true that the meaning of'full jurisdiction' remains contested. In R (Wright) v Secretary of State for Health, Baroness Hale averred that it 'varies according to the nature of the decision being made.' Yet the enduring reference to 'full jurisdiction' indicates the primacy of the article 6(1) requirement in contemporary English administrative jurisprudence. Indeed, Forsyth (2001) rightly suggests that 'the curative principle will be an important, and helpful, way whereby the law of procedural justice can accommodate the European Convention without too much disruption: Furthermore, where article 6( 1) is found applicable, the doctrine of necessity in English administrative law is placed in doubt. This doctrine states that where the relevant adjudicator cannot be substituted because no other person is legally empowered to act, judicial review for bias is generally ruled out (Dimes v Grand Junction Canal). However, in Kingsley v UK, the ECtHR held that English administrative law breached article 6( 1) in failing to provide a remedy for the lack of impartiality with respect to the Gaming Board's dispensation of .

casino licences. Forsyth (2001) presciently warns that ' [t]ime has thus been called on the principle of necessity and the impact on the law of bias will be considerable.' Even as the Article 6( 1) requirement has often been excluded, it has also been expressly included in specific areas of administrative activity. Elliott (2010) points to 'a substantial clarification of the scope of Article 6' following Tomlinson. Here, Lord Hope stated that the article 6(1) requirement would apply where the 'award of services or benefits in kind is ... an individual right of which the applicant can consider himself the holder: This entrenches the established position of the ECtHR in English administrative law, as seen in cases which held article 6(1) as engaged for contributory sickness benefits (Feldbrugge v Netherlands) and state-funded noncontributory disability pensions ( Salesi v Italy).

Growing impact going forward Notwithstanding the many restrictions placed on when article 6(1) may apply, there remains space for its future growth. This is seen in the recent Supreme Court ruling in R (G) v X School Governors though article 6( 1) was not held to be engaged on the facts. In t the Oxford Journal of Legal Studies (Winter 2013), Sanders points out the surprising fact that the Supreme Court was willing to consider that article 6(1) 'could potentially apply in the workplace' (Does Article 6 of the European Convention on Human Rights Apply to Disciplinary Procedures in the Workplace?, p 801). Though the 2012 Court of Appeal judgment in Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust seems to throw a spanner in the works, Sanders suggests otherwise. She points to Darnell v UK, where the ECtHR did not oppose viewing

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workplace disciplinary proceedings as covered by Article 6( 1). Insofar as the ECtHR continues to expand, English administrative law may also be spurred to extend the present modest confines of the article 6( 1) requirement. Article 6(1) and democracy

Parliamentary sovereignty has more often been doubted than defeated. Insofar as it remains the foundation of the British constitution, judicial review must centre not on the merits of a particular decision, but its legality, difficult as it is to make the distinction in practice. Extending the article 6( 1) requirement widely across English administrative law undermines the essence of judicial review in its present form. It entails a wide swathe of administrative decisions falling on unelected independent judges, and not the shoulders of elected officials or those statutorily empowered to adjudicate them. Hence, I would approve Lord Hoffmann's claim in Runa Begum v Tower Hamlets LBC that extension of article 6( 1) should be viewed with careful regard to 'democratic accountability ... and the sovereignty of Parliament.' Yet the democratic motivation behind Runa Begum may not deliver entirely democratic outcomes. As Craig (2003) points out, it 'seems to introduce what is in effect a double rights-based hurdle into the regime of [Article 6(1)] taken as a whole'. Instead of merely having to demonstrate that one's 'civil rights and obligations' are involved per article 6( 1), the House of Lords added that one must show that it qualifies as a 'private right'. This goes beyond what Parliament intended in

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passing the HRA 1998 so Convention rights could be relied on before English courts. Hence, Runa Begum may be viewed as undermining democracy. Elliott (2011) counters that Runa Begum creates 'necessary complications' because Article 6( 1) now covers 'a broader penumbra' of rights that cannot 'legitimately be adjudicated upon by means of full adherence to the judicial model'. Since the judiciary was responsible for the expansion in rights covered under Article 6(1), this response is not entirely convincing if our concern is whether the judges upheld democracy in Runa Begum. Hence, Forsyth (2003) was right in 'wondering whether anything has been gained by imposing upon the existing law of procedural fairness these technical and uncertain arguments over the reach of Article 6(1).' Errors of fact

Tsfayo v UK is the high water mark for critics who argue that English judges have fallen into error by too readily invoking the curative principle in order to legitimate fact-finding by executive bodies. In Tsfayo, a housing benefit review board held the applicant had not shown 'good cause' for a delay in claiming benefits. She then applied to the ECtHR having being denied leave for judicial review. At [48], the ECtHR held that English administrative law breached the article 6( 1) requirement because 'the High Court ... did not have jurisdiction to rehear the evidence or substitute its own views as to the applicant's credibility'. Tsfayo v UK may be seen as the culmination of cases in the early 2000s

where English judges were wary of addressing questions of fact in judicial review. In Adan v Newham LBC [200 l], Brooke LJ said 'a court of supervisory jurisdiction does not, without more, have the power to substitute its own view of the primary facts for the view reasonably adopted by the body to whom the fact-finding power has been entrusted'. Similarly in Runa Begum [2003], Lord Millett stated that 'the court cannot substitute its own findings of fact for those of the decision-making authority if there was evidence to support them.' Yet this had begun to change by the time Tsfayo v UK was decided. In E v Home Secretary [2004], Carnwath LJ ruled that 'the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge' for judicial review. He further stated 4 conditions under which material errors of fact would be reviewable which have since been applied in the Court of Appeal case of Connolly & Havering LBC v Secretary of State for Communities & Local Government. The nascent emergence of material errors of fact means 'the curative reach of judicial review will be significantly wider' (Forsyth, 2007) than the ECtHR suggests in Tsfayo v UK. Hence, the decision in Tsfayo v UK appears to rest on a misunderstanding of English administrative law in the area of error of fact. If so, the view that English judges have fallen into error by too readily invoking the curative principle in order to legitimate fact-finding by executive bodies appears to be misguided. â&#x20AC;˘

Commercial Law Karl Anderson, Queen 's College Heydon (2012) offers a taxonomy of ways in which commercial law may develop. Is his taxonomy exhaustive? In what other ways may commercial law develop? What other constraints are there on the development of commercial law, such as in relation to sale of goods? Introduction: The continued development of commercial law is essential in a globalised free market economy. It is paramount that commercial parties be able to rely on updated normative rules to facilitate the variety of transactions

that they enter into. JD Heydon has recently recognised this, espousing a theory that emphasises commercial realities beyond the courtroom in developing commercial law1â&#x20AC;˘ He offers a seven part taxonomy of ways in which commercial law may develop;

1 JD Heydon, "How the Courts Develop Commercial Law by Looking Outside the Trial Record into the External World" [2012] L.M.C.L.Q. 30.

the categories are "partly overlapping and probably incomplete." 2 Although the taxonomy is useful in identifying key sources used to develop commercial law, in reality such law develops in a plethora of ways. Development is normally a response

12 Ibid p. 34.

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to lacunae in the law that manifest themselves after advances in technology and changes in business habits. However, such advances may also act to constrain the development of commercial law; increasingly sophisticated transactions and technologies threaten to strain the traditional analysis of market sales under the Sale of Goods Act 1979 (SGA).

Part I - Heydon's taxonomy is non-exhaustive: Central to Heydon's thesis is the distinction between adjudicative facts and legislative facts. The latter determine what a rule should be; consequently, appellate courts use them to shape the development of commercial law. Heydon is keen to avoid a "Begriffshimmel" in the commercial common law; axiomatic legal reasoning as a vehicle for commercial development is to be avoided. Instead, judges should use legislative facts to shape the development of commercial law. Heydon's taxonomy is structured around various sources of legislative fact. Nevertheless, Heydon does not purport to create an exclusive list. He states that the illustrations he uses for each of the seven categories "comprise only a small part of the whole range"; new legislative facts "can be noticed every day''3 and form part of his eighth "miscellaneous" category of such facts. In explaining this eighth category, Heydon argues that judges have relied on legislative facts that are within "common general knowledge" and cites Lord Hoffman's analysis in

Hamberg Houtimport BV v Agrosin Private Ltd 4 as an example of a decision based on 'common general knowledge' without it being explicitly evidenced. In short, the taxonomy is explicitly non-exclusive; whilst the multiplicity oflegislative facts is later considered potentially harmful if overused by judges, Heydon nevertheless acknowledges that they are crucial in developing commercial law.

Part II - How else can commercial law develop? Commercial law is inherently organic; it is constantly evolving to match commercial expectations. Because it is a "pragmatic and responsive subject"5, it is not surprising that commercial law can develop in ways that go beyond Heydon's taxonomy. Many developments are caused indirectly through the courts' facilitation of the demands of buyers and sellers. Indeed, commentators such as Duggan argue that the courts should act instrumentally and consider the economic costs and benefits of their decisions, with Barclays Bank Pie v O'Brien6 being the highwater mark of such an approach. Such diversity in the conceptualisation of commercial law development deserves analysis beyond the label of"legislative fact:' Since the codification of sale of goods law in 189}7, commercial law has developed through the expansion of ordinary notions of buying and selling. Goods and service markets have become more sophisticated, incentivising the development of a commercial code that deals with the

3 Ibid p. 35. 4 [2004] l AC 715. 5 Sealy and Hooley, "Commercial Law: Texts, Cases and Materials" (OUP 2009), p. 4. 5 A Duggan, "Commercial Law and the Limits of the Black Letter Approach" in S Worthington (ed.), Commercial Law and Commercial Practice (Oxford 2003).

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nuances of such markets. Goode observes that modern commercial law embodies "a wider perspective [of contracts], embracing equipment leasing, receivables financing, payment systems, personal property security"8 etc. Commercial law is a "tool for its users"9 and as such must develop in line with their preferences. This represents a very common way in which commercial law develops over time. Such development does not only occur at a 'macro' level; case law illustrates that commercial law is sensitive to lacunae that are only brought to a court's attention through litigation. In other words, courts have become "service providers in commercial disputes" 10â&#x20AC;˘ Freezing injunctions and Anton Piller orders are good examples oflitigant-led procedural development11 , with both becoming incredibly useful in subsequent disputes. Another way in which English commercial law develops, and which is not touched upon sufficiently by Heydon, is the effect of European and international law in shaping English rules. The UNIDROIT principles, for example, have influenced many contractual and commercial commentators, whose publications become legislative facts. Goode has written in favour of the harmonisation of commercial law across international transactions 12 â&#x20AC;˘ Although these writings have not changed the law per se, they provide a vehicle through which discussion of commercial law can be organised and demonstrate flaws in the current operation of English law that must be remedied in the future.

6 [1994] l AC 180. 7 Sale of Goods Act 1893. 8 R Goode, "The Codification of Commercial Law" (1998) 14 Mon LR 135. 9 Ibid. 10 R Goode, "Commercial Law in the Next Millennium" (S&M 1998),p.10.

11 Ibid. 12 R Goode, "Reflections on the Harmonisation of Commercial

Law" in Commercial and Consumer Law - National and International Dimensions (1993). 14 [1996] AC 669.

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International law is not the only source of rules outside the common law that influence our commercial codes. The role of equity in commercial law has been notorious for the past two centuries, but the rules and principles that it has developed have had a profound effect on the shaping of the common law of commercial transactions. Equity's importance in this field warrants a consideration of its own beyond Heydon's taxonomy. There is certainly a healthy dialogue concerning the proper function of equity in commercial disputes; such dialogue leads to greater scrutiny of the efficacy of current commercial rules. In Westdeutsche Landesbank Girozentrale v Islington LBC14 Lord BrowneWilkinson warned "against the wholesale importation into commercial law of equitable principles:' By contrast, Sir Peter Millett (later Lord Millett) defended the role of equity in commercial transactions 13â&#x20AC;˘ In his view, the fiduciary duty and the constructive trust are incredibly important contributions by equity to the law of commerce. Sir John Mummery has further argued that equity can beneficially import moral considerations into commercial law: "More extensive and imaginative development of the trust idea should be made to improve standards o~ conduct in commercial relationships:' 14 In short, commercial law develops through normative influences external to the common law. They need not be direct; it is enough that international and equitable rules challenge commercial lawyers to analyse and justify the current state of the law.

Greater scrutiny should lead to greater potential for benevolent development. A distinction should be made between the development of substantive principles and formal developments to the structure of the law. The former are arguably the more important; nevertheless, formal changes to the organisation of commercial law represent developments in a loose sense. Academics such as Goode and Schmitthoff argue for a codification of commercial law. Although a formal change, codification could lead to substantive benefits by making the law simpler to understand and highlighting its existing weaknesses. Ambiguities between statutes can be reduced and terminology can be brought up to date. Several amendments to the Sale of Goods Act 1979 have performed a separate function of introducing new rules where evolving commercial realities have rendered old rules unjust or obsolete. Finally, and perhaps most importantly, commercial law can develop as a response to problems caused by innovation and technological advance. The creation of computer programmes and intangible electronic files has forced commercial lawyers to reconsider the analysis of the contract for a sale of goods. Sir Iain Glidewell confronted the issue of whether a computer programme constituted a 'good' in St Albans City & DC v International Computers Ltd 15 and stated in obiter dicta that the programme itself was rationalised under a licence agreement. Lord Penrose in Beta Computers (Europe) Ltd v Adobe Systems (Europe) Ltd18

13 P Millett, "Equity's Place in the Law of Commerce" (1998) 114 LQR 2 14. 14 J Mummery, "Commercial Notions and Equitable Potions" in S Worthington (ed.), Commercial Law and Commercial Practice (Oxford 2003).

seemed to suggest that paying too much attention to the physical medium where the programme was stored was incorrect. Moreover, Green & Saidov have since argued that such transactions should be regarded as contracts of sale 16â&#x20AC;˘ Whilst a lack of conceptual clarity is never desirable in the law, these cases illustrate that technological advance can have a substantial impact on the way in which both commercial and intellectual property law develop.

Part Ill - What other constraints are there on the development of commercial law? Despite the many ways in which commercial law develops, there exist certain constraints that can prevent the crystallisation of clear rules. The best examples can be seen in relation to the sale of goods under the Sale of Goods Act 1979. Primarily, there exists a tension inherent in the SGA between effecting the intentions of contracting parties and providing legal rules that override these intentions. This balance is mostly struck well in the Act; for example through the interaction of sections 17 and 18. However, the Act applies to all contracts for the sale of goods, unless otherwise stated. This encompasses an enormous variety of contractual arrangements that make it hard to amend for the benefit of one type of party without harming the interests of another. Consumer protection warranted separate legislation, for instance. A second point relating to the SGA concerns technology. Technological advances inspire lateral thinking about commercial law and provide an impetus for change. The converse of

15 [1996] 4All ER481. 18 1996 SLT 604. 16 Green and Saidov, "Software as goods" [2007] JBL 161.

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this, however, is that issues remain unresolved because there is no clear cut answer. It might be argued that shoehorning intangible but highly valuable property into the analytical framework of a 19th century statute concerned with marketplace bargaining is unhelpful at best and anachronistic at worst. On the other hand, describing the purchase of a computer programme as anything other than a "sale" risks creating a: divergence between popular perception of how commercial law operates and how it actually operates (although this is somewhat symptomatic of commercial law generally - and itself represents another constraint on the development of the law). Finally, Goode draws attention to the problems that language can cause and

17 R Goode, "Commercial Law" (Penguin 2010) p. 22.

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how this can stifle legal development17 â&#x20AC;˘ He highlights the problem of overdefining words, in that they are necessarily defined with reference to more words, which may themselves require definition. Furthermore, it is "astonishingly hard to avoid ambiguity:' He cites Rule 1 of s 18 SGA 1979 as an example - does "deliverable state" refer to the actual state of the goods or the assumption made under the contract? It is clear that in an area of law where so much can hinge on the definition of words such as "property", "goods" and "deliverable", legal development will be made harder by ambiguity in phrasing.

facilitate and, where necessary, constrain the commercial activities of businesses and entrepreneurs:' 18 That this is true requires a body of law that is organic and malleable. Heydon offers a logical way of categorising the development of commercial law within the courts. His list is not exhaustive, and indeed there are too many additional factors affecting the Âˇdevelopment of commercial law to list in one article. What makes commercial law easy to develop can, paradoxically, also represent a constraint on the law. Flexibility can lead to loose principles; excessive definition can lead to ambiguity and technological pressures may cause doctrinal confusion. â&#x20AC;˘

Conclusion: Commercial law must constantly evolve to reflect the operation of the marketplace. Its function "is to

18 S Worthington, "Aligning Commercial Law and Commercial Practice" in S Worthington (ed.), Commercial Law and Commercial Practice (Oxford 2003).

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