Per Incuriam Summer Edition 2022

Dear Readers,

Welcome to the latest edition of Per Incuriam I hope you are all enjoying your well deserved summer break so far!

By way of introduction, my name is Sophia I’m a final year law student at Lucy Cavendish and I am the President of the Cambridge University Law Society 2022 23 I would also like to take this opportunity to introduce our Vice President Kapri Belentepe, Secretary Rohan Odedra and Treasurer Mahera Sarkar I would also like to extend my gratitude to the previous 2021 22 Executive and Main Committee for their hard work with CULS

I would also like to congratulate the Per Incuriam team of Editor in Chiefs Fred Halbhuber and Tom Williamson and Deputy Editors Joyce Leung and Kimberley Andrews for their fantastic work throughout the year with Per Incuriam, as well as all contributors They have worked incredibly hard throughout the year and dedicated themselves to provide students with excellent articles and essays

tI would also like to take this opportunity to welcome the new Per Incuriam team of Kimberley Andrews as Editor in Chief and Eleanor Hargrove, Natalie Tan and

President's FOREWORD

Claudia Chan as Deputy Editors With the combination of both teams’ dedication and hard work they have created this excellent summer edition which focuses on the theme of ‘Transition’ and also includes excellent exemplar essays for students to utilise

As Michaelmas term approaches, I am excited to share with you the upcoming events and initiatives that CULS’ committee has been working on during the summer All of our departments have been working hard to ensure that members have an exciting variety of events and initiatives to get involved with Our new Diversity & Inclusion department and established Non Law department are organising bespoke events and initiatives for our members Our Socials and Welfare departments have been planning Michaelmas term to be packed with many events The Foreign Affairs team have been preparing for our first in person exchange since the start of the pandemic and our Membership department are building on those beloved CULS membership discounts at our favourite places in Cambridge Our Careers department are organising our new commercial newsletter, as well as many career events for members

Our Speakers secretaries are planning a fantastic line up of insightful discussions Our Per Incuriam, Mooting, Alumni and Pro Bono departments have been innovating and organising great opportunities to get involved with this year CULS’ Law Ball Committee have been preparing to make CULS’ 121st Law Ball a night to remember and our Stash officers have been working to provide members with a line up of exciting stash This, and so much more, will all be revealed within our Michaelmas term card

I hope you all share my excitement and enjoyment of this edition of Per Incuriam To recent graduates, congratulations and we wish you the absolute best for the future; with our successful alumni department, we hope that you will still be involved with CULS and know that you are always welcome To current and incoming members to CULS, I cannot wait to see you at many events this year!

Best wishes, Sophia Nie CULS President 2022 23

Dear Readers,

To begin, we would like to congratulate all of our readers on their achievements throughout the previous academic year We also welcome our incoming students! We are delighted to have you here and we look forward to the great many things you will contribute to the faculty, Per Incuriam and CULS

We are pleased to continue the recent trend of the Per Incuriam Summer Edition This shortened version contains a mix of tripos essays covering a range of optional and core papers The theme for this edition is “Transition” It is a timely theme On a personal level, many of us are about to embark on a new phase of our academic career

As a nation, the passing of Queen Elizabeth II is an undeniably important moment in our history Globally, many are having to adapt to the current energy crisis and its impact on economies, the environment, and geopolitical tensions

Editor's WELCOME

Here, however, the theme of transition is explored through an insightful contribution from Fred Halbhuber The possible change to the nature of an obligation, from secondary to primary, for the responsible party is discussed in the context of an agreed damages clause Fred looks to recent case law to determine if such a transition would be a useful means to categorise price adjustment clauses

Looking to the year ahead, we have a few updates to share Due to increasing interest in having work featured, Per Inucriam will expand its pool of contributors We will, therefore, recruit our staff writers on a termly basis to provide more opportunities to contribute to the publication We hope to continue our transatlantic collaboration with Columbia Law School The belated first publication of the Transatlantic Journal will be released in Michaelmas Term We will also resume our series of interviews focusing on the various academic pursuits of recent Cambridge graduates

As this is my first issue as Editor in Chief, I would like to thank Sophia, the CULS President, for her generous support, as well as the current Co Deputy Editors

Natalie Tan, Eleanor Hargrove and Claudia Chan for their commitment to Per Incuriam over the summer break I also extend a special thanks to the out going members of the Per Incuriam Team: Fred Halbhuber, Tom Willliamson, and Joyce Leung I have much gratitude for their stellar contribution and guidance throughout the previous academic year I wish you all the very best in your upcoming endeavours

If you would like to contribute to Per Incuriam, please email us at per inc@culs org uk In addition to having your work published, we also reward some of our contributors with a small gift We are keen to read your ideas for articles, and our blog, so feel free to reach out with your pitch!

Wishing you all the best for the new academic year!

Kimberley Andrews Editor in Chief 2022 2023

President's Foreword

Sophia Nie

Editor's Welcome

Kimberley Andrews

Liquidated Damages and Price Adjustment Clauses: Post-Makdessi Refinement

Fred Halbhuber

Human Rights

Jonathan Teng

Criminal Procedure and Evidence

Lucy Barnard

Company Law

Joshua Dranesas

Constitutional Law Audrey Tan

Labour Law Alice Prince Tappe

Family Law Roshni Ranasinghe de Silva

Equity Law

Rachel Lane

Administrative Law

Jack Hollingworth

LIQUIDATED DAMAGES AND PRICE

ADJUSTMENT CLAUSES: POST MAKDESSI

REFINEMENT

Fred Halbhuber

Introduction

An agreed damages clause which obligates A to pay B an agreed sum upon breach is the “classic” example of a secondary obligation subject to the rule against penalties [1] But what if a clause instead purports to increase, upon A’s breach, the price A has to pay B for the purchase of a good or service? A’s obligation to pay the (now higher) price is, prima facie, a primary obligation, falling outside the scope of the penalty jurisdiction And yet, the end result achieved by the agreed damages clause and the latter price adjustment clause is identical This raises the difficult question whether price adjustment clauses fall within the penalty jurisdiction In addressing this question, this article analyses the approach taken by the Supreme Court in the seminal Cavendish Square Holding BV v Talal El Makdessi decision and

considers how this approach has been refined in subsequent case law It will be argued that the focus in recent case law on identifying the “original” agreement between two parties offers a useful means by which to categorise price adjustment clauses going forward

I Treatment of Price Adjustment Clauses in Makdessi

In the Supreme Court’s recent re examination of the penalty clause jurisdiction in Makdessi, Lords Neuberger and Sumption held that a clause which deprived Mr Makdessi of his rights to the final two payments owed to him was a substantive price adjustment clause falling outside the penalty jurisdiction[2] This was despite the fact that the price adjustment clause was

triggered by Mr Makdessi’s breach of his primary obligations On this analysis, the clause merely determined Cavendish’s primary obligation by setting out the conditions on which the price was payable[3]:

[T]he consideration due to one party may be variable according to one or more contingencies, including the contingency of his breach of the contract There is no reason in principle why a contract should not provide for a party to earn his remuneration, or part of it, by performing his obligations[4]

However, this analysis, which did not receive the unanimous support of the Court, is not free of criticism[5] As Conte points out, “ earning ” remuneration suggests a condition precedent to receiving a specified payment; this is distinct from having a right to a specified payment and having the amount of this payment reduced as a

Ias a consequence of a “contingency” such as breach[6]

If all price adjustment clauses that purport to lower the consideration payable [7] can be analysed as imposing a condition precedent to receiving the “full” (i e originally agreed) consideration, it is hard to see how a skilfully drafted clause could ever be subject to the penalty jurisdiction

Indeed, Lords Neuberger and Sumption recognised this difficulty when they admitted that “ price adjustment clauses are open to abuse”[8] The solution which their Lordships adopted is that the court must consider whether the price adjustment clause is in reality no more than a “disguised punishment”[9] A disguised punishment (or disguised penalty) is a clause which creates a primary obligation in form but a secondary obligation in substance A court is therefore not bound by the label used by the parties and may strike down a prima facie primary obligation if it deems it to be a disguised penalty

II. Post Makdessi Refinement

This approach has been applied[10] post Makdessi in Vivienne Westwood Ltd v Conduit Street Development Ltd[11] Vivienne Westwood concerned the status of a side letter under which the tenant was entitled to pay a lower rent than that specified in the lease on the condition that the full rent would become payable on any breach by the tenant[12] The defendant argued that the clause in the side letter merely defined the scope of the tenant’s primary obligation and

therefore fell outside the penalty jurisdiction[13] The court rejected this argument, agreeing instead with the claimant that payment of the lower rent was the primary obligation and that payment of the higher rent consequent on breach of any of the obligations in the side letter was a secondary obligation within the penalty jurisdiction[14]

Timothy Fancourt QC (sitting as a Deputy Judge) emphasised that the court had to uncover the “true bargain”[15] between the parties a recognition of the test of substance over form espoused by Lords Neuberger and Sumption and that what amounts to the primary obligation is always a “question of interpretation”[16] A number of factors led him to the conclusion that the “true bargain” was to pay the lesser sum

First, Fancourt QC emphasised the possibility that trivial breaches, “regardless of [their] particular impact”, may lead to the application of a higher rent[17] It was on this basis that he distinguished the judgement of Lords Neuberger and Sumption in Makdessi, which he regarded as dealing with “ very different facts” because the non competition obligation that was breached by Mr Makdessi was “centrally important” It is important, however, not to confuse the question of the scope of the penalty jurisdiction[18] with the question whether the clause is so “out of all proportion” with the party’s legitimate interest in

compliance[19] or so “extravagant” and “unconscionable”[20] as to constitute an unlawful penalty rather than a lawful liquidated damages clause That both a minor breach and a significant breach would result in the same damages payable under a clause usually goes to the latter question (i e , not to whether the clause contained a primary or secondary obligation)[21] Although not spelt out in so many words, the necessary implication of Fancourt QC’s analysis must therefore be that the parties cannot have intended the obligation to pay the higher rent to be a primary obligation if it could be triggered by such a minor breach Yet it is far from clear that this is the case

As Fancourt QC himself recognises, a primary obligation to pay an agreed sum may be “qualified by an agreement to accept a lesser payment, conditional on various matters including the due performance”[22]; failure to comply with any condition would be a breach and result in a higher payment, but would not be subject to the penalty jurisdiction That one party has provided a concession to another may make them all the more eager to ensure that the attached conditions are complied with, even if some of the conditions are minor It is suggested that the fact that the clause treats minor and serious breaches alike is a more relevant factor at the validity stage of the penalty clause analysis

Second, Fancourt QC emphasised the relevance of what the obligation was, in substance, at the outset[23] This point is not kept entirely distinct from the previous one, but it has significantly more merit Fancourt QC suggests that the fact that the parties originally

agreed one price and varied it with attached conditions is a good indication that the “true bargain” was the originally agreed price Although Fancourt QC does not offer any authority on this point, his conclusion is sound If a lower price were initially agreed, with breach of some attached condition raising the price, courts would have no trouble exercising the penalty jurisdiction By the same token, an agreement structured in such a way that it has, in substance, a low price at the outset even if a higher price is written on the lease should be treated no differently This was the position in Vivienne Westwood Although the lease itself set the higher rent, because the side letter with the agreed lower rent was dated the same day as the lease it was clear that it was the lower rent which was intended to be the true consideration at the outset; the parties did not intend that the higher rent ever be paid unless a condition in the side letter were breached In substance, therefore, the primary obligation of the tenant was to pay the lower rent in the side letter, with the high rent in the lease only coming into effect upon breach of that primary obligation As such, the higher rent was a secondary obligation subject to the rule against penalties As Fancourt QC recognised, “the conditional right analysis does not apply and the primary obligation is to pay at the lesser rate”[24] Fancourt QC was therefore correct to focus on which of the agreements represented the “original” agreement This analysis will be of significant assistance to future courts tasked with the difficult role of distinguishing secondary

obligations from conditional primary ones

III. Conclusion Price adjustment clauses only fall within the penalty jurisdiction if, in substance, they impose a secondary obligation The fact that the relevant breach could be both trivial and material is largely immaterial when deciding whether a price adjustment clause constitutes such a disguised penalty; this analysis is better reserved for the “legitimate interest” test However, identifying the original price serves as a valuable indicator of the parties’ intention: if, in substance, the parties’ “true bargain” is in fact a lower price to be increased upon breach, this is a good indication that the court is considering a secondary obligation within the penalty jurisdiction

1 Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67 [16] (Lords Neuberger and Sumption)

2 Although recognising the strong argument" that clause 5 1 contained a primary obligation rather than a secondary one, Lords Hodge, Clarke and Toulson kept an open mind and preferred to analyse it as a secondary obligation: Makdessi (n 1) [270]

3 This was supported by the fact that the price was payable by Cavendish [i]n consideration of the sale of the Sale Shares and the obligations of the Sellers herein (emphasis added): Makdessi (n 1) [74] (Lords Neuberger and Sumption)

4 ibid [73] (Lords Neuberger and Sumption)

5 See, for example, Fisher (n 2) 171: Clauses that alter certain primary obligations as a consequence of breaching other primary obligations show the primary/secondary distinction (apparently crucial to the applicability of the penalty rule) to be perilously thin

6 Carmine Conte, The Penalty Rule Revisited’ (2016) 132 LQR 382, 386

7 Or increase the consideration payable where the buying party is in breach

8 Makdessi (n 1) [77] (Lords Neuberger and Sumption)

9 ibid

Although not in so many words

11 Vivienne Westwood Ltd v Conduit Street Development Ltd [2017] EWHC 350 (Ch) [42]

12 ibid [H2]

13 The defendant referred to this as a “contingent right to a discount”: ibid [42] [43]

14 ibid

15 ibid [43]

16 ibid [48]

17 This echoes an argument made by Day who highlights the artificiality in Lord Neuberger and Lord Sumption s construction of the price adjustment clause in Makdessi by emphasising that [t]he same adjustment would thus always be made, regardless of any actual loss as a result of the seller s activities : William Day, ‘A Pyrrhic Victory for the Doctrine against Penalties: Makdessi v Cavendish Square Holding BV [2016] JBL 115

18 This is what Fancourt QC refers to as the “threshold” question However, the term threshold carries connotations associated with the test of validity used to assess whether a clause, which has already been established to fall within the penalty jurisdiction, is a penalty clause or a liquidated damages clause See, for example Lord Mance in Makdessi (n 1) who refers to the “level” at which the clause would constitute a penalty when discussing the penalty test, not the scope of the penalty jurisdiction ([208]), and Lord Hodge who refers to the highest level of damages that could possibly arise from the breach to decide whether it is out of proportion to the legitimate interest of the innocent party (Makdessi, [255]) It is therefore suggested that scope is a more appropriate label

19 Makdessi (n 1) [32] (Lords Neuberger and Lord Sumption)

20 ibid [31] (Lords Neuberger and Lord Sumption), affirming Lord Dunedin in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79

21 See Dunlop Pneumatic Tyre (n 20): there is a presumption ( but no more ) if the amount “ was payable in a number of events of varying gravity Indeed, this very logic is used at the second stage of the analysis in Vivienne Westwood itself, where the Timothy Fancourt QC found at [65] that one of the key factors tipping the clause in the territory of penalty clauses was the fact that “[t]he obligation to pay increased rent is a blunt instrument that, depending on when the Side Letter is terminated, may give rise to a very substantial and disproportionate financial detriment (emphasis added)

22 Vivienne Westwood (n 11) [47]

23 “[W]here the obligation is from the outset in substance an obligation to pay the lesser amount, the conditional right analysis does not apply and the primary obligation is to pay at the lesser rate : ibid [47]

24 ibid

TRIPOS ESSAY SELECTION GUIDLINES

We consider the following relevant factors when selecting which submissions to publish It is important to note, however, that this is not an exhaustive list of all relevant considerations We encourage readers to reach out to the Per Incuriam team if they have any questions or suggestions regarding our policy:

(1) The mark achieved on essay being submitted

We aim to publish the highest quality work to help current and future students prepare for their exams

(2) Whether the student has had an exam essay published in the past

We aim to ensure diversity of contributors, offer a wider range of styles and illustrate the different ways in which a first class mark can be achieved

(3) Whether we have recently and/or frequently published exam scripts in the paper in which the mark was achieved

We aim to publish sample answers in a wide range of papers to help current and future students in as many different papers as possible to prepare for their exams Although we are particularly keen on publishing essays from less popular papers, our ability to do so is dependent on receiving essay submissions for those papers

o Maestro agrees to these terms

(4) The type of question (essay question or problem question)

We aim to publish sample answers dealing with a wide range of question types within each paper to ensure that current and future students may better familiarise themselves with the range of questions that might arise in the exam

(5) The year in which the student sat the exam

We aim to publish recent work to ensure that the law discussed and cited remains current and does not confuse students

HUMAN RIGHTS

Mark: 90

Q.10. Discuss both of the following; (i)

Maestro a 17 year old citizen of the (fictional) country Phaedra responds to an advertisement by Fruiterers Co in a local newspaper seeking fruit pickers to spend the summer on a farm in the west of England Maestro responds to the advertisement and speaks with Olivia who identifies herself as the ‘CEO of Fruiterers Co and says she is based in the UK. Morgan states that Maestro is expected to work from 7am until 4pm, Monday to Friday and the work entails picking strawberries and, in inclement weather, working in the packing sheds. Maestro will live in accommodation on the farm and will be paid £100 per week, all of his travel requirements in particular, his work visa and travel will be arranged by Fruiterers Co Maestro agrees to these terms

When Maestro arrives in the UK, he is met at the airport by Andrew who drives him to a farm in the west of England. Once there, he is met by Olivia who asks him to hand over his passport ‘for safe keeping’. Olivia then takes Maestro to his accommodation which is a one bedroom shed at the back of the farm with a small toilet and kitchenette which he shares with four other workers

Maestro works at the farm from June to October 2021 He is often required to work 16 hour days, and rarely spends time picking strawberries Instead, he, together with the other men, is locked in a shed in which marijuana plants are being grown Maestro and the other men are required to look after the plants and pick and pack marijuana. Olivia employs two men who are armed with truncheons and tasers to guard the sheds Save for £200 received in

Maestro has received no payment for his work When Maestro asked for his passport so that he could travel home to Phaedra, Olivia told him he could go, but that he would have to repay the costs of his travel and food which was said to be £15,000. Maestro does not have that money When Maestro and several other men try to resist being locked in the shed, they are tasered by the guards and beaten with truncheons

On 12 October 2021, Maestro and the other men are surprised when the shed door is battered down by police. Maestro is arrested and charged with drug related offences Following his arrest and interview, the police identified Maestro as a potential victim of modern slavery and they submitted a National Referral Mechanism (NRM) referral to the Single Competent Authority

On 14 October 2021, the Single Competent Authority made a positive reasonable grounds decision in respect of Maestro

Jonathan Teng

IOn 12 January 2022, the Single Competent Authority made a negative conclusive grounds decision in relation to Maestro He now faces prosecution for a drug related offence and subsequent deportation.

And (ii)

Mel is an 18-year-old from Yorkshire She has been in a relationship with Carl, who is 30 years old, for several months and has been living with him. Mel has nowhere else to live Carl owns a local café and tells Mel that she will have to start working there in order to ‘ pay her way ’ . Mel agrees and begins working 12 hour days, 7 days a week She is dropped off at the café and collected by Carl each day. Mel receives no payment for her work. After several months, Mel asks if she can have a day off Carl refuses and when Mel asks why, he hits her hard across the face and tells her to ‘shut up ’

(i)

NRM

The police will refer M to the SCA if they consider M to be a potential victim of human trafficking (HT) The SCA must make a reasonable grounds determination within 5 days; the standard is “I suspect but cannot prove ” After a reasonable grounds decision, M will be offered a 45 day recovery period, during which the SCA needs to gather evidence to make a conclusive grounds determination on the balance of probabilities (R(MN)) Since the SCA took 3 months to reach a conclusive decision (more than 45 days as required),

M might bring judicial review under s 6(1) HRA (since the SCA is a public authority) for a breach of its Art 4 ECHR procedural obligation (Rantsev) to take reasonably expeditious measures to investigate (LE v Greece) However, the Guidance is merely procedural and is not the mechanism through which the UK fulfils its procedural obligations (Atamewan); the failure to follow guidance does not necessarily lead to a violation of Art 4 (SSHD v H)

On our facts, given that the delay was not incredibly significant, it is unlikely that there is a violation

Review of negative decision

Further, M may bring a claim for judicial review of the negative conclusive grounds decision on the basis that there was a flawed approach to the HT and modern slavery (MS) criteria (R(NS)) In claims of judicial review, the courts are obliged to take into account Strasbourg jurisprudence where necessary (s 2 HRA; Ullah)

The NRM adopts the Palermo Protocol definition of HT: acts, means, and purpose Since M is a child under the age of 18 years (Art 3(d) Palermo Protocol), only the ‘act’ and ‘ purpose ’ is required there is no ‘ means ’ requirement (Art 3(c)) On our facts, there is recruitment and transportation (Art 3(a)), clearly for the purpose of exploitation given the conditions and working hours (Art 3(a); Rantsev) Even if M was above 18 when he arrives, there is deception and possible abuse of vulnerability as the job did not correspond to what

was promised: the means requirement is satisfied Hence, M is likely a victim of HT

Moreover, M’s living conditions likely constitute servitude or forced or compulsory labour Servitude implies situations where one has coercive control over the provision of services of another, and is a particularly serious form of denial of freedom (Siliadin v France) On our facts, it seems likely that this criteria is made out because S lives at the place of work (Siliadin) and is compelled to work extremely long hours every day (the type and amount of work is taken into account: Van der Mussele v Belgium)]

Moreover, since there are armed guards and M is tasered and beaten (analogous to Chowdury v Grece), the situation might contribute to a perception that M s situation is permanent, hence compounding the case for a finding of MS and HT (CN and V v France)

On the above analysis, by coming to a negative decision, it is clear that there has been a flawed application of the trafficking criteria; M’s judicial review claim is likely to be successful

Leave to remain (LTR)

Following a positive determination, the Home Office should consider whether M should have LTR This could be conferred for compelling personal circumstances; if so, M would need to apply for leave by himself periods of leave are normally for less than 12 months and no more than 30 months Leave could also be granted to assist with police enquiries, which is possible given the drug offences; if so, the police would need to apply for leave on M’s behalf

I

If LTR is not granted, M could judicially review the decision on the ground that she will risk being re trafficked, contrary to Art 4 L must demonstrate a real risk of being re trafficked (Vilionis v Lithuania) by rebutting the strong presumption that Phaedra would abide by its ECHR obligations (Olga C v Latvia) While this is a high standard, following HD (Trafficked women) Nigeria, the absence of a supportive family and vulnerability would indicate an enhanced risk There are no indications of particular vulnerabilities, it is unclear if such a claim would succeed

Proceedings under Art 4

If M is not recognised as a victim and given appropriate assistance, M can bring proceedings to the ECtHR for a violation of Art 4 There is no need to distinguish HT from slavery, servitude or forced or compulsory labour (Rantsev; J v Austria) Per Siliadin, a State may be held responsible for its failure to effective protect victims of Art 4 violations by virtue of its positive and procedural obligations Per Rantsev, these obligations include ensuring the practical and effective protection of the rights of victims or potential victims of trafficking, which the UK would clearly be in breach of if M is not recognised as a victim Moreover, the UK might be under a positive obligation cooperate effectively with Phaedra in cross border trafficking cases (Rantsev) Hence, by failing to make a positive conclusive grounds decision, it is likely that there is a violation of Art 4

Defending against the prosecution

M might seek to defend his prosecution using s 45 MSA,

given that the drug offences are not encompassed under Sch 4 Here, given that M is under 18 (s 45(4)(a)), the relevant question is whether M’s act is a direct consequence of slavery or relevant exploitation (s 45(4)(b)); and if a reasonable person in the same situation as the person and having the person ’ s relevant characteristics would do that act (s 45(4)(c)) The question of slavery or exploitation is defined against Art 4 ECHR (s 1(2)) Forced or compulsory labour is defined as work or a service extracted under the menace of any penalty (Van der Mussele v Belgium) which is clearly made out given the above analysis As such, it is likely that M acts in a direct consequence of exploitation (s 45(4)(a)), and a reasonable person in M’s shoes would have acted similarly given that he was young and presumably felt coerced into the situation Thus, M likely can use the s 45 defence: once it is raised, it is up to the prosecution to refute it (MK)

Olivia, Andrew and Morgan O is guilty of an offence under s 1 MSA, as she holds M in servitude and knows that this is so (s 1(1)(a)), given that she is the head of the company and employs the armed guards Regard will be held to all the circumstances (s 1(3)), especially since M is a child and has increased vulnerability (s 1(4)(a)) It is irrelevant that M responds to the advertisement and could be taken to consent (s 1(5)) O is also likely to be guilty of an offence under s 2 MSA, assuming that she arranges M’s travel, and does so with

the view of exploitation (s 2(1)); M’s consent is similarly irrelevant (s 2(2))

A might be guilty of an offence under s 2, since he facilitates M’s travel (s 2(1)) However, it is unclear if he as a view to M being exploited; if he did know, then he will similarly be guilty under s 2 A similar analysis applies to Morgan, who might be guilty of an s 2 offence as he is the one who tells Maestro the terms of the employment, but there is insufficient information to conclude

If an offence under ss 1 2 is made out, then O, A and Morgan face up to life imprisonment Moreover, they may have their assets confiscated (s 7), and have to make reparation to the M (ss 8 10) They also may be forced for forfeit any vehicles (s 11), and can be subject to Slavery and Trafficking Prevention Orders

(ii)

If M makes a police report, the police should make a referral to the SCA as in (i) M can be a victim of human trafficking even though it was within the UK (SM v Croatia) Moreover, it is likely that there is forced or compulsory labour given the long hours and lack of pay (Van Der Mussele); the situation might even constitute servitude if M considers her situation to is permanent (CN and V v France), which is possible since she has nowhere else to live Hence, there should be a positive conclusive grounds decision If M is not recognised as a victim and given appropriate assistance and provision, M can bring proceedings for a violation of Art 4, similar to the process in (i) just that M is a UK citizen and there is no possibility of 14

Ideportation, and M is not accused of any crime

M might contemplate bringing a claim for the violation of the positive obligation to protect under Art 3 for the slap, but this is unlikely to meet the minimum threshold of severity (Gafgen)

C might be guilty of an offence under s 1 MSA, similarly to Olivia in part (i)

CRIMINAL PROCEDURE AND EVIDENCE

Mark: 74

Q.6.Is the current law on hearsay evidence too complicated to be fair?

Overall, the CJA provisions on hearsay are complicated, as demonstrated by the complex definition of hearsay, the numerous gateways (such as the preserved rules of common law in s 118) and the broad discretion involved in the ‘interests of justice’ test which potentially envelopes the previous admissibility rules This complexity decreases predictability and certainty which overall impacts fairness as defendants, lawyers, victims and judges are entitled to ‘know where they stand regarding the admissibility of evidence, rather than being dependent upon an individual judge’s discretion

Definition of hearsay

The definition of hearsay is unnecessarily complicated, however, this does not necessarily impact fairness, predominantly due to the intervention of the common law

Under s 114(1) CJA03, hearsay evidence is ‘ a statement not made in oral evidence in proceedings’ which is ‘evidence of any matter stated’ S 115(2) specifies that a statement is any representation of fact or opinion made by a person by whatever means, including a representation made in a sketch, photofit or other pictorial form This use of the phrase statement is thus somewhat misleading and appears to stretch a purely linguistic interpretation of the word ‘statement’, perhaps overcomplicating the definition of hearsay Admittedly, this point is perhaps a little pedantic

S 115(3) expanded on the phrase ‘evidence of any matter stated’, however, this provision had to be clarified by case law Due to the complexity of the CJA03’s definition of hearsay, Twist established three useful questions to ask to identify whether evidence is

hearsay; 1) identify what the fact/matter sought to be proved is; 2) Is there a statement of that matter in the communication; 3) Was it one of the purposes of the maker of statement that recipient should believe the matter or act upon it as true The fact that the common law had to intervene to clarify the definition of hearsay illustrates the CJA overcomplicated the definition However, after Twist and subsequent cases which give a similarly helpful step by step analysis (e g Lord Thomas in Midmore) the definition of hearsay is now relatively clear, meaning it is not too complicated to be fair; the unfairness has been mitigated by the common law

Gateways

The CJA’s numerous gateways for admissibility are unnecessarily complex and this paragraph will focus in particular on the evidence of unavailable witnesses and the preserved common law rules

Lucy Barnard

IFirstly, it could be argued that the very existence of multiple gateways complicates the law on hearsay as it contradicts the general inadmissibility rule Indeed, Brodin comments how ‘few are content with the state of the hearsay rule and its more than thirty exceptions’ This critical tone that Brodin adopts towards the number of exceptions is well founded as hearsay evidence is admissible in certain circumstances of unavailable witnesses (s 114(1)(a) and s 116), business documents (s 114(1)(a)), if both parties agree (s 114(1)(c)), if it is in the interests of justice for it to be admitted (s 114(1)(d)) or if any preserved rule of law makes it admissible (s 114(1)(b) and s 118) This final gateway is particularly problematic due to the sheer number of exceptions it preserves such as public information or res gestae (which is divided into 3 more specific situations) The CJA intended to tidy up the law on hearsay, yet the ‘ rag bag list’ (Wothern 2008) of preserved common law exceptions serve only to complicate the law The rules preserved by common law gateway should be reviewed so it can be assessed whether any of these exceptions fall into a broader category alongside other statutory exceptions This reorganisation could in fact involve the creation of a new gateway so such preserved rules can be exceptions in their own right instead of falling under the broad exception of ‘preserved common law rules’ which creates and unnecessary subdivision of provisions, generating unnecessary complexity This complexity compromises certainty and predictability of the law, thus impacting fairness

gThe complications involving s 114(1)(a) and s 116 also compromise fairness Under s 116(1)(c) the evidence of unavailable witnesses is admissible if the witness is dead, unfit to give evidence, outside the UK and it is not reasonably practicable for them to attend, the person cannot be found or, they won’t give evidence due to fear Brodin criticises the breadth of the definition of ‘unavailable witnesses’ Whilst the provisions in s 116(1)(c) are arguably clear, their clarity does not necessarily guarantee fairness as demonstrated by the UK’s clash with Strasbourg Al Khawaja [2009], held that there would be a violation of the defendant’s article 6 right where hearsay evidence constituted the sole or decisive evidence in cases however, the UK rejected this ‘sole or decisive test’ (Horncastle) This dialogue between the UK and Strasbourg culminated in an uneasy compromise whereby the ECtHR conceded the CJA was compatible with the ECHR so long as current safeguards are implemented effectively (Al Khawaja [2012]) and so long as greater scrutiny is undertaken the more central the hearsay evidence is to the case (Shabir and Riat) This back and forth dialogue between the UK and Strasbourg is not only confusing, but illustrates the potential unfairness of the hearsay rules, particularly those regarding unavailable witnesses Indeed, Redmayne argues that the concession by Strasbourg does not necessarily reflect the compatibility of the CJA and there were in fact other factors

tat play He writes how the ‘sole or decisive’ test was ‘watered down to avoid antagonising the UK at a time when there is much talk of the problems of the Human Rights’ Therefore, the numerous gateways to admissibility complicate the law on hearsay and, even where some provisions are clear (s 116(1)(c)), the relationship between the CJA03 and the ECHR is complicated, impacting fairness

Interests of justice gateway

The broad discretion provided by the ‘interests of justice gateway’ in s 114(1)(d), complicates the law on hearsay as it undermines previous gateways and the general inadmissibility rule The interests of justice’ is a broad, arbitrary and undefined concept which is open to numerous interpretations meaning there is a danger that trial judges may reach completely different decisions on the same evidence S 114(2) provides some factors which judges are obliged to consider (Z and Musone) when assessing the interests of justice such as the probative value of the statement, what other evidence has been given and how reliable the maker of the statement appears to be Notwithstanding this guidance, the court in Riat acknowledged the danger of this gateway, conceding there is a real risk that anything and everything can satisfy this exception This is supported by Spencer who argues that if this provision is a ‘safety valve’, then it has ‘leaked horrendously’ and must ‘leave judges wondering why the hoops are there at all ’ The potential of this rule to subsume the other gateways not only overcomplicates the rules on hearsay but risks predictability, certainty and fairness as the broad discretion afforded to the judge means the test may be 17

applied differently in each case

This gateway, combined with the other exceptions means Brodin’s comment that ‘Simplification (of hearsay) has not been achieved, as the reform combines traditional exceptions with open ended discretion’ is certainly justified

The current law on hearsay is certainly too complicated Whilst the complexity of the definition of hearsay has been somewhat remedied by common law, the numerous gateways still create significant complexity because of their organisation (preserved rules of common law), their uneasy compromise with Strasbourg and the fact that all of them appear to be undermined by the broad discretion afforded by the interests of justice test This complexity certainly impacts fairness as these provisions are difficult for lawyers to apply and their application is unpredictable Furthermore, the discretion in s 114(1)(d) means different judges may reach different outcomes, undermining fairness

COMPANY

Mark: 74

Q6. ‘The bar on shareholder recovery for reflective loss is an unjustified principle of company law It should be abolished Discuss

The reflective loss principle dictates that when the loss suffered by the shareholder is merely ‘reflective’ of the loss of the company, only the company can bring a claim in damages Taken at face value, this means that the shareholder is effectively barred from bringing a personal action The strictness of the rule has been criticised as being policy orientated more than substantive (Sin), justified by the underlying aim of ensuring that ‘losses are remedied in an orderly manner (Townsing v Jenton Overseas) This essay will argue, in light of the development of the case law and the (relatively) recent judgment in Marex v Sevilleja, that the restrictive aspect is justified by the courts favouring respect for separate legal personality and company ’ s autonomy rather than overall fairness considerations

The reflective loss principle is a consequence of the first limb of

of the rule in Foss v Harbottle (Hannigan), namely that the company and not the shareholder should be the plaintiff in respect of a wrong done by the company itself (as restated by Lord Reed in Marex) This is consistent with the principle that ‘the company ’ s claim, if it exists, will always trump that of the shareholders’ (Arden LJ in Day v Cook) There are cogent policy justifications for the application of the principle: it is indeed procedurally efficient to exclude all claims other than the company ’ s As Hannigan further notes, the bar on the ‘reflective loss principle’ also facilitates settlements as a wrongdoer may be wary of settling with the company if this implied remaining at the mercy of further shareholders’ claims With the majority rule dictating that a minority shareholder shall not be entitled to recover if the majority decides not to sue, the application of the RLP reflects the courts’ respect for

the principle of separate legal personality The case law had as a result adopted a strict approach in this respect with the Court of Appeal in Johnson v Gore finding that the principle would apply even if the company, ‘acting through its constitutional organ ’ (the board), declined to make good the loss (Lord Bingham) The sole exception was formulated in Giles v Rhind and applied in Perry v Day where the court allowed the claim to proceed if the company was disabled from bringing it due to financial difficulties caused by the wrongdoer

The pre Marex position was therefore restrictive in the sense that bar the Giles v Rhind exception a shareholder could only recover ‘ a separate and distinct loss’ (Prudential Assurance v Newman) As Joyce Lee notes, the test for ‘separate loss’ is itself very uncertain given that there may not be an exact correlation between the diminution in the value of the shares and the company ’ s loss Taking the example of public listed companies, the price of the shares

Joshua Dranesas

Imay not be proportionately affected, given that their valuation will take into account the likelihood of success of an action against the wrongdoer The policy concerns expressed by the court were likewise thin Whilst Lord Millett in Johnson v Gore justified the application of the RLP by reference to concerns about double recovery, the majority in Marex forcefully rejected it on the basis that the rule applies even when the risk of double recovery is extinguished (eg if the company ’ s claim had become time barred) Likewise, Mitchell points out that bluntly applying the principle by reason of double recovery would fail to account for other legal solutions such as permitting the wrongdoer to discharge all liabilities by compensating any of the victims and allowing the latter to seek their shares

The reinterpretation of the RLP in Marex, confirming Prudential and a strong adherence to Foss, however, fails to account for further convincing policy considerations Admittedly, the exercise is not an easy one compared to a ‘ghastly legal japanese knotweed’ (Tettenborn)

with Lord Reed himself acknowledging that the rule is ‘ one of the most important and difficult questions of law to have come before the Supreme Court for some time’ The majority’s adoption of a ‘bright line’, justified on the basis of legal certainty (Laing), has the detriment of confining the Giles v Rhind exception to the past As Lord Sales himself pointed out, it is ‘ wrong for a bright line rule to be introduced in the common law as a matter of policy to preclude what are otherwise valid causes of action at common law’ Echoing Mitchell’s argument

above, the ‘double recovery ’ and ‘concurrent claims’ could indeed be effectively dealt with through case management Watts offers an even more strict view, positing that if double liability is foreseeable by the wrongdoer, which is likely to be the case, ‘the law should not be unduly concerned’ Arguably, as Davies points out, the minority may not have sufficiently explained the extent of the rules preventing ‘double recovery ’ , justifying a preference for legal certainty

On a legalistic analysis, he further notes, the minority’s approach would undermine the principle that the shareholders’ equity is locked into the company and may only be returned to them by way of lawful distribution (eg lawful reduction of capital)

As Sin notes, a further issue in the restatement of Prudential is that neither the majority rule in Foss nor the principle of separate legal personality justifies the proposition that loss resulting from the diminution in share value should be irrecoverable where the shareholder is owed a separate legal duty As Koh notes, whilst the company ’ s autonomy and internal government arrangements would justify it being granted priority with the shareholder being deemed to have accepted the subordination of his interests to the company as a matter of policy (De Wulf) it appears unfounded to bar the shareholder from claiming when the company itself refuses to do so The defense of the RLP principle on the basis of the principle of non interference (Davies and Worthington, Lord Bingham in

Marex) should not be stretched to the extremes That the ‘ company should have the first bite of the proverbial cherry’ (Koh) should indeed not extend to an ‘all or nothing’ approach to recovery As Davies points out, the difference between the majority and the minority reflects a ‘ very modern’ dilemma about the extent that the courts should attribute to the autonomy of the company On the one hand, the minority approach is motivated by considerations of fairness and reasonableness applied on a case by case basis whilst the majority’s view reflects a ‘ more classical approach to company law derived from the analysis of the legal structure of the company Whilst the removal of non shareholder claimants from the scope of the rule is welcome in that it risked an alarming expansion of the exception (Laing), the rejection of Giles v Rhind was unnecessary to allow the appeal and reflects a willingness from the judges to clarify the law (Laing) at the expenses of policy As Lord Sales noted, the very concept of reflective loss is ’unhelpfully slippery’ and even ‘deceptive’ In this respect, no perfect conciliatory judgment can be reached as any decision would remain underpinned by a conflict between two principles orientated by different policy considerations The pragmatism of the minority’s solutions is commendable for its normative aspects (Sin) but the majority’s judgment has likewise the virtue of certainty As Lord Reid pointed out, the ‘unattractiveness of a defendant un meritoriously avoiding its liability’ could spark sympathy for the claimant but should not undermine the RLP It is suggested that the approach of the majority is sensible and consistent with the deferential approach in 20

respect of the autonomy of the company adopted regarding derivative proceedings Given the procedural barriers of the latter, it is however to be deplored that a minority shareholder’s only effective possibility of recovery will be through a s994 petition therefore at her own costs

CONSTITUTIONAL

Q7: ‘A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament ’ (LORD BROWNE WILKINSON)

Consider the nature and scope of this principle, evaluating its role as a guarantee of constitutional rights

Lord Browne Wilkinson’s quote from the judgment of Pierson elucidates the principle of legality, which is the common law equivalent of the interpretive protection offered by s3 of the Human Rights Act (HRA) 1998 This presumption of statutory interpretation the principle of legality allows for a provision of primary legislation to be interpreted narrowly so as to authorise the least restriction

possible to common law rights, consistent with the ordinary meaning of words and purpose of the statute (Simms) This essay will consider the nature of the principle of legality by evaluating how it has successfully protected common law constitutional rights, examine its scope by discussing theoretical and practical views of the protection offered by common law constitutional rights, and finally determine that while commendable, these protections still fall short of what is offered by the HRA

Nature of principle of legality: successful applications

The principle of legality has offered some strong protection under the common law, suggesting that the common law is able to recognise and protect rights, despite Hunt noting the difficulty of identifying the nature and extent of common law rights as they are developed i

ncrementally and in a piecemeal fashion given that they are part of the common law Per Laws LJ in Thoburn, “ in the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental” Such a right which has clearly been protected is the access to courts, seen through the cases of Witham and Leech

In Witham, the Lord Chancellor had amended the rules on court fees, essentially barring those from low income households from accessing the courts On judicial review, the House of Lords held that the access to the courts was a constitutional right which could only be abrogated by a piece of legislation specifically allowing the Lord Chancellor to do so, or if this power was found by necessarily implication of statutory language

As the legislation under which the Lord Chancellor purported to raise the fees did not do this, the decision to raise fees was hence unlawful

Audrey Tan

Mark: 72

I

A similar case is Leech, which concerned the interpretation of s47(1) of the Prison Act 1952 The House of Lords held that the rules enacted by the Home Secretary, which allowed prison governors to look through all correspondences, including correspondences between prisoners and their respective solicitors, was ultra vires as the rules breached the rule of law by impeding prisoners ’ constitutional right of access to courts In both cases, the courts applied the principle of legality by reading down general legislation provisions so as to uphold a substantive rule of law through which common law constitutional rights could be maintained (Young) What is especially noteworthy is that both Witham and Leech were decided prior to the enactment of the HRA Evidently, the courts have been protecting human and constitutional rights in their rulings far before the HRA came into force, suggesting that the principle of legality has been successful in this respect

Varuhas suggests that though the principle of legality is a development of the common law, it has been expanded following the UK’s joining of the ECHR, to protect not only constitutional rights but also constitutional “values” and “principles” An example of this is the preservation of the High Court’s supervisory jurisdiction (Privacy International) On this view, the principle of legality has only been strengthened over the years

Scope of principle of legality

Turning to an examination of the scope of the principle of legality, while it has been acknowledged that the principle has been expanded, it is

ultimately still primarily concerned with common law rights Gardbaum and Bowen argue that in theory, the principle of legality is limited in its scope due to Parliament having the final say (we will see that this is the case even with the HRA, but there are remedies there) In the common law, the doctrine of parliamentary sovereignty seems to form an absolute limit upon the constitutional resilience of common law rights, as common law rights occupy the same domestic constitutional space as parliamentary sovereignty

In practice, perhaps the scope of the principle of legality is wider and the relationship between parliamentary sovereignty and common law rights more nuanced, as it appears that judges are willing to stretch the interpretation beyond what is reasonable Lord Phillips, giving oral evidence to the Select Committee on Political and Constitutional Reform, suggested that in the event of “unconstitutional” legislation, courts would first resort to interpretive tools, even if this amounted to ascribing to the relevant provision “ an interpretation it [ ] couldn’t bear” This seemingly drastic step would be constitutionally justified by “throwing the gauntlet back to Parliament'' Arguably, this is what happened with Anisminic and Privacy International, as the ouster clauses in both cases did use clear statutory language, yet the courts, relying on statutory interpretation, found that the ouster clauses were

tat play He writes how the ‘sole insufficiently clear Still, it would be a stretch to say that the principle of legality offers unlimited scope of protection; the constitutional framework of the UK is such that parliamentary sovereignty is absolute Lord Neuberger has stated extra judicially that “it is clear that PS is absolute” Therefore, while wide (particularly after its expansion to include constitutional “values” and “principles” (Varuhas), there is still a limit on it Common law constitutional rights are only protected by the principle of legality insofar as parliamentary sovereignty allows

Shortcomings of the principle of legality

It should be pointed out that a shortcoming is the inability of the principle of legality to engage in dialogue with the legislature, should the judges find that the statute explicitly curbs a common law right In contrast, under s4 of the HRA, judges may issue a declaration of incompatibility (DoI) which demonstrates a “vindication of the human rights argument that was made” (Re Ewart) While legally unenforceable, they are so politically significant that Straw has compared them to “unexploded bombs”; most DoIs have been modified or are under consideration Therefore, the principle of legality is restricted in its protection of common law constitutional rights following a finding of a statute which explicitly adversely affects constitutional rights, especially compared to the HRA where s4 (coupled with s10) allows for protection of Convention rights following the finding that an act is incompatible with them 23

Conclusion

In conclusion, while the principle of legality does afford a wide range of protection, it is not as wide as that offered by s3 of the HRA, and is still limited by parliamentary sovereignty Further, it lacks the ability to engage in dialogue with the legislature unlike s4 of the HRA Consequently, due to these restrictions on its ability to guarantee constitutional rights, the principle of legality is a tool best used in conjunction with the protection offered by the HRA

LABOUR

Mark: 78

Q10: ‘Unfair dismissal law is all about making employers dismiss more efficiently.’ Discuss.

The law on unfair dismissal developed because of a corporatist agenda, recognising the importance of employment as an asset and a tool to diffuse disputes (Donovan Commission), thus it comes as no surprise that procedure was a key foundation of the law, aiming to create a more modern, smooth running workplace This essay will (1) discuss the importance of the underlying aim of efficient dismissal, (2) evaluate the effect of prioritising procedural efficiency, and (3) assess whether unfair dismissal law is really ‘all’ about efficient dismissal In doing so, this essay will argue that substantive justice has also been an aim of unfair dismissal law, however this is unfairly overshadowed by the elevated status given to efficient dismissal

dismissal

The importance of efficient dismissal as an aim of unfair dismissal law can be seen in the prioritisation of procedural fairness What constitutes procedural fairness in the realm of dismissal is set out in the ACAS Code of Practice, which does not form a set of rules, but must be considered by the ET where it is relevant (s 207 TULR(C)A 1992), particularly in the case of disciplinary dismissals (West Midland Co op v Tipton) Failing to follow the code can lead to a statutory uplift in compensation from the employer to employee (s 207A TULR(C)A), emphasising the important role of maintaining procedural fairness This is further emphasised in Polkey v Dayton, which states that if a procedural failing takes place, the dismissal will generally be unfair This is framed in the interests of the employee which it often is, as if an employee wins an unfair dismissal case it is usually on

procedural grounds (Earnshaw, Marchington and Goodman) However, the strong importance placed on procedure allows employers to quickly follow a fair procedure before dismissing the employee, thus disrupting the grounds for any claim, and efficiently moving the employee out of the system This promotes managerial prerogative, which aids in an efficient process of dismissal In this respect, the focus on efficiency benefits both the employer and the employee

The ‘ range of reasonable responses ’ (RORR) test also elucidates the underlying aim of efficiency S 98(4) ERA 1996 allows the tribunal to judge the reasonableness of an employer’s conduct based on a ‘band of reasonable responses ’ that employers might have taken (Iceland Frozen Foods v Jones) This contributes to efficiency as it shows a defence to managerial prerogative and allows for a wide margin of employer reasoning for dismissal Evans supports this by

Alice Prince Tappe

I A similar case is Leech, which concerned the interpretation of s47(1) of the Prison Act 1952 The House of Lords held that the rules enacted by the Home Secretary, which allowed prison governors to look through all correspondences, including summarising the argument in favour of RORR: that it ‘correctly limits’ the role of the tribunal and reflects the difficult and context specific circumstances in which employers make dismissal decisions, whereby there is not always one ‘fair’ outcome Therefore, this promotes efficiency in dismissal as employers have the freedom to act with flexibility based on the specific circumstances Moreover, this represents the important status of efficiency within the framework of unfair dismissal, as it is central to the primary test for reasonableness

Should efficiency be the primary aim?

It is worth considering whether unfair dismissal law should be ‘all about’ efficiency Firstly, although having an efficient procedure for dismissal is helpful for employers and employees, it may come at the expense of substantive justice The overwhelming result of the Polkey rule is that, apart from in exceptional circumstances, a dismissal will always be unfair if a fair procedure is not implemented by the employer This creates cause for concern as an inadequate employee who has been dismissed for a grave case of misconduct in the workplace can claim compensation for the dismissal entirely based on an employer’s procedural slip This is combatted in the compensation stage, where the tribunal can choose to adjust the level of compensation awarded, even up

to 100%, to avoid injustice for an employer, known as a Polkey reduction Despite this, overall, the quest for procedural fairness may come at the detriment of other important aims of unfair dismissal law, as substantive fairness occupies a lower level of importance than procedure

Moreover, whilst RORR gives employers discretion by promoting managerial prerogative, thus making the process more efficient for employers, it has been criticised since its inception, having ‘started life as a mistake’ and never recovering (Baker), due to its substantively dubious outcomes The most pertinent complaints about RORR include that it is a ‘judicial gloss’ and was not authorised by the statute (Baker) and that the test is ‘plainly disadvantageous to claimants’ as it ‘precludes claims for all but the most unreasonable and irrational abuses of the managerial prerogative’ (Evans) The final argument is most pertinent here, as Evans argues that the test subordinates the interests of the employees regarding their dignity and autonomy Renton also addresses how this is a result of the ‘judicial gloss’, stating that the test is ‘contrary to the plain words of the Act’, changing the tribunals consideration from an objective standard to a ‘subjective test, with only a minimum residual objective standard’ Therefore, whilst the RORR test promotes managerial prerogative and thus efficiency for employers in dismissal, it also allows for ‘ perverse ’ outcomes (Baker), and illuminates the negative

side of prioritising efficiency Furthermore, the interpretation of the five potentially fair reasons for dismissal in s 98 and s 108 leaves them relatively undefined, which is problematic as it furthers the managerial prerogative to a negative degree, giving employers the ability to rely on virtually any reason This is supported by Collins who describes how ‘the right against unfair dismissal was intended to place a check on managerial prerogative,’ however ‘the current interpretation of section 98(1) (2) has failed to impose any real restraint upon employers at this crucial stage’ This is due to the ‘broad scope ’ of the reasons, leaving the protection for employees against unfair dismissal ‘almost non existent in practice’ Therefore, whilst the primary aim of unfair dismissal legislation is, obviously, to protect employees against unfair dismissals, the promotion of efficiency has been detrimental to the strength of such protection

‘All’

It is worth whether there are any other aims of unfair dismissal legislation One that can be clearly identified is providing substantive justice for unfairly dismissed employees This can be seen in RORR, which seeks to accommodate a variety of substantive reasons for dismissal Unfortunately, as established in the criticisms of RORR, the prioritisation of procedural fairness in Polkey, and the ‘broad scope ’ (Collins) of the five reasons, the aim of substantive justice has suffered due to the elevated position of efficiency Therefore, whilst substantive justice may be an aim, in practice unfair dismissal legislation is essentially ‘all about making employers dismiss more

Iefficiently’

In conclusion, unfair dismissal law is overwhelmingly concerned with the facilitation of efficiency in dismissal by employers This is done at the expense of other aims, such as promoting substantive justice, thus it is accurate to state that it is ‘all about’ efficiency This prioritisation of efficiency has promoted managerial prerogative to the detriment of the rights of workers, as employers can choose almost any reason to dismiss within RORR and as long as a fair procedure is followed, a successful unfair dismissal claim is unlikely

FAMILY

Mark: 75

Q5. ‘Intention has become too important in determining legal parenthood Parenthood is not something that can be contracted in and out of ’

This essay will argue that, whilst English law has increasingly accepted intention based parenthood in some areas, intention is not too important in determining legal parenthood This essay will advance the view that parenthood should be something that can be contracted in and out of, provided adequate safeguards are in place, in order to better protect the interests of children as well as respect individual autonomy

Intentional Parenthood in English Law

Whilst English law has gradually recognised the position of intentional parents, it is still not the default basis for assigning parenthood, and therefore cannot be said to be too important in determining legal parenthood Genetics form the primary foundation for assigning legal parenthood

Mothers are legally regarded as the person who gives birth regardless of gender (McConnell), or whether her own gametes are used (s33 HFEA) Likewise, genetic fathers are treated as legal fathers unless a statutory exception under HFEA 2008 applies, or there is a formal change of parenthood However, the current system does not blindly cling to genetically determined parenthood Indeed, the HFEA 2008 indeed demonstrates a “perceptible swing ” (Barton and Douglas) towards intentional parenthood, with the law sometimes expressly ignoring genetics For example, sperm donors are specifically excluded from being legal parents (s41 HFEA) By recognising ‘parenting by doing’ rather than simply ‘parenting by being’ (Masson), the law has expanded to encompass a wider range of modern families, created through surrogacy or assisted

Roshni Ranasinghe de Silva 28

reproduction arrangements This makes sense, as the commissioning parents the first cause of the child” (Hill) and are thus undeniably important in the procreational relationship Such reasoning has been extended further in the Californian case of Johnson v Calvert, where the Court freed parenthood from biological imperatives entirely, by recognising that but for the commissioning parent’s acted on intention, the child would not exist, and therefore they should receive parenthood status

There are numerous ways in which intentional parenthood has manifested in English law Intention based parenthood has always been inherent in the nature of adoption, reflected in the adoption application procedure under s49 ACA 2002 Parental orders under s54 54A HFEA 2008 further enable the Court to depart from a default parental relationship by issuing a parental order in favour of a

I A similar case is Leech, which concerned the interpretation of s47(1) of the Prison Act 1952 The House of Lords held that the rules enacted by the Home Sparty, which may confer “lifelong legal status” (G v G)

The HFEA 2008 introduced ample room for intention based parenthood After all, genetic based parenthood “contradicts the spirit of donation” (Horsey) However, parenthood under HFEA is couched in legal hurdles, often focused on marital status between the intended parents If an unmarried lesbian couple conceive a child at home through a DIY treatment using a voluntary sperm donor, whilst their intention to be parents is delineable, this would not materialise under HFEA 2008, due to specific conditions such as the treatment being completed within a licensed clinic in the UK (s43(a) HFEA) Falling back on the common law means the sperm donor is regarded as the legal father, the woman who carried the baby is regarded as the legal mother, and the other woman is a complete legal stranger Such an outcome seems wholly undesirable

Similarly, in surrogacy contexts, intention is arguably not important enough Surrogates are forced to adopt a legal fiction, whereby they automatically gain legal parenthood over the child (s33 HFEA), and must assign this parenthood away through adoption or parental orders (s54 HFEA) Surrogacy, as Trimmings notes, disrupts the traditional orthodoxies on legal parenthood by separating three principal markets of motherhood: gestation, genetics and intention

The commissioning mother who has donated her own gametes to the surrogate is the weakest party in the arrangement She is not treated as legal parent by virtue of her egg donation alone (s47 HFEA) despite being a biological parent Of course, the surrogate may also be considered a ‘biological parent’ of sorts, as the child is developed in her womb, using her antibodies to survive Yet, the primary association of parenthood is to do with gestation, rather than intention

Should Parenthood Be a Contract?

Arguably, the statement is correct in saying parenthood is not, and should not, be something that can be contracted in and out of If intention becomes ‘too important’ in determining legal parenthood, this could lead to responsibility avoidance by parents For example, the father of a child conceived from a one night stand, who does not want to be a parent, may be able to get away with this based on his lack of intention Here, Probert’s suggested model of parenthood seems relevant She contends that, instead of intention, it is better to think about responsibility Intention alone is not enough to determine parenthood, and there should be action to go with it

In surrogacy contexts, there are inherent concerns about the exploitation of women if parenthood is deemed something akin to a contract

tArguably, such a view wrongly reduces surrogates as merely “ a womb for hire” (Scherpe) and enables the exploitation of women ’ s bodies by “ men who control the rules [and] the courts” (Tong) However, Horsey believes the current attitude surrounding surrogacy perpetuates “assumptions that surrogates are vulnerable…and somehow deserve protection” Such assumptions may be ill founded, with Brazier et al finding that only 4 5% surrogates refuse to hand over their behaviour, implying that the majority are comfortable with contractual arrangements Arguably, surrogacy should be treated in the same manner as other forms of assisted reproduction To fail to do so seems “overly paternalistic” (Horsey) and reduces a woman ’ s agency and ability to take control of her own body and enter into agreements with others

There are strong reasons to favour a model of intentional parenthood, which enables individuals to essentially ‘contract’ in and out of parenthood However, certain safeguards need to be implemented, such as stringently applying the current consent requirements for intention based parenthood (s54(6) HFEA; s52 ACA; s42(1) HFEA; s35 HFEA) An intention based model of parenthood would focus on the ‘function’ of a parent, freeing legal parenthood of biological considerations, the need for two people of different sexes, or the need for two people at all It would also show greater respect to individual autonomy Favouring intention would avoid the need for legal fictions which may lead to undesirable results such as sperm donors and surrogates gaining legal parenthood Such

Ioutcomes are undoubtedly unsatisfactory, requiring the intentional parents and surrogate mother or sperm donor father to engage in lengthy court proceedings simply to assign parenthood in the manner they originally envisaged, or else risk leaving the child stranded with a parent who never intended to raise it Considering that English law prioritises the welfare of the child (s1(1) CA 1989), such an outcome is surely undesirable It is not in the child’s best interests to have all these individuals litigating over parenthood, as it may result in the child growing up in the “functional equivalent of a broken home” (Hill) The situation instead could be easily be remedied by permitting a greater role for intention based parenthood

Overall, intention is of growing importance in assigning legal parenthood in English law It is not, however, ‘too important’ and arguably English law has room to go further in this regard Parenthood should indeed be something to be contracted in and out of, as this would better protect the welfare of the child and show greater respect to parental autonomy

Mark: 86

Q3

Howard is an experienced property developer whose expertise Kimberley trusts Kimberley has funds that she wishes to invest She and Howard enter into a joint venture arrangement for a period of two years They agree that in their first year Kimberley will contribute £750,000, that Howard will contribute £250,000, that he will supervise all the building work, and that all profits from the sale of the flats in any development project will be split equally between them.

Their first development project concerns a plot of land, Greenacre, which Howard says has excellent development potential They buy the land for £400,000, and spend a further £600,000 on the construction of flats The building work is completed over several months under Howard’s expert direction The two of them work well together, and they discuss extending their joint venture arrangement for a further year

or two When this first development is complete, they sell all the flats for £3 million, thus making a profit of £2 million in their first year together

However, Kimberley then discovers that Howard is also the owner of a neighbouring plot of land, Whiteacre, which has trebled in value from £1 million to £3 million as a result of the development of Greenacre If Kimberley had known this before entering into the joint venture agreement with Howard, she would have demanded a 75% share of the profits from the sale of the flats

Meanwhile, Howard discovers that just before he and Kimberley embarked on their development project, Kimberley had become the managing director and majority shareholder of a new building and construction firm called Babel Ltd Howard is furious because he employed Babel Ltd to do a lot of the building work for their joint venture

The work was done to an exceptionally high standard, but Howard thinks Kimberley should have been straightforward with him about her interest, and that they could then have negotiated a better deal with Babel Ltd

The other directors of Babel Ltd are also furious, as they consider that Babel Ltd, not Kimberley, should have

EQUITY been the joint venture partner with Howard Advise Howard, Kimberley and Babel Ltd

(1) Kimberly’s Claim: H’s breach:

K may argue H has breached a fiduciary duty owed to her First, a fiduciary relationship must be established A joint venture does not fit into any established category but instead requires a factual enquiry to determine whether H undertook to act on behalf of K in circumstances giving rise to trust and confidence (Mothew)

Whereas arms length commercial relationships are unlikely to suffice (Cullen Investment), a more personal relationship with aspects of dependency will (Murad) Here, H possesses an expertise upon which K depends, and takes responsibility for the management of the project, akin to the facts of Murad Moreover, their discussion to extend the venture suggests an

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open ended commitment to one another, with mutual benefit and an on going relationship (Al Nehayan, distinguished)

Consequently, H owes K fiduciary duties

K may argue H allowed his personal interest to conflict with the duty owed to K (Bray v Ford) by encouraging the development of Greenacre next to land he already owes Although the land may have been ‘excellent’, H breached his duty of undivided loyalty (Mothew), by allowing his interest to sway his actions and not disclosing to K his ownership of Whiteacre

Remedies: Rescission is not possible as the parties cannot be restored to their original positions, nor can a constructive trust be imposed over profits H made per FHR as they are not an identifiable ‘pot’ of assets Instead, K must seek personal relief Disgorgement of profits is possible (CMS Dolphin) Prima facie, this includes both his share of Greenacre’s £2 million profit, as well as the £2 million increase of Whiteacre’s value The burden is on H to prove these are profits for which he should not have to account (Murad) In respect of Greenacre’s £2 million profit, H will argue he should not have to disgorge this due to K’s own breach (discussed below), or he will claim an equitable allowance (Boardman v Phipps) Although equitable allowances are exceptional (Gray) and his failure of disclosure will not be looked upon favourably, H carried out all of

Greenacre’s development, although noticeably a similar argument failed in Murad As to the Whiteacre profit, it is unlikely that H can argue this is a profit for which he should not have to account for considering it is the product of his failure to disclose his interest Moreover, equitable compensation may be ordered for the loss K would not have suffered but for H’s breach (AIB) The relevant counterfactual is whether K would have acted as she did but for H’s breach (Swindle), which K argues she would not have done as she would have demanded a 75% share of the profit Consequently, K should be entitled to £250,000 of compensation, however, if she was awarded H’s share of the Greenacre profit, these remedies would be inconsistent (Tang Mit) and K is advised to elect for the profit If the profit was not awarded, she could claim this loss instead

2) Howard’s Claim:

K’s breach: H must demonstrate K owed him a fiduciary duty, again demanding a factual enquiry (Mothew) Whilst H had clearly undertaken responsibility for K, the reverse is not clear Thus, H would have to argue the relationship was such that it was less like a commercial arms length venture, but a personal and reciprocal one (Murad) This is problematic as K never undertook obligations upon which H relied, and their discussion as to extending the joint venture (suggesting a mutually beneficial relationship) occurred after K’s purported breach However, we will assume the courts would consider the overall

Ijoint venture to be one giving rise to trust and confidence so as toground a fiduciary relationship K has committed a breach through a duty/duty conflict As managing director of B, as well as a member of the joint venture, she has put herself in a position where her duty to one may conflict with her duty to another (Mothew), without the informed consent of either party (Clarke Boyce) This breaches her fiduciary duty to H

ADMINISTRATIVE

Mark: 72

Q7 'The introduction of the Judicial Review and Courts Bill spelled the end of ultra vires theories as viable explanations of judicial review These theories should now be abandoned in favour of more plausible accounts.' Discuss.

The suspended and prospective only quashing orders contained within the Judicial Review and Courts Bill, introducing section 29A to the Senior Courts Act, directly implicated theories of nullity through enabling the effects of an unlawful decision to be declared not to be void ab initio This hence leads to implications for the modified ultra vires theory, directly connected to an orthodox conception of nullity Suspended quashing orders may be justified on modified ultra vires grounds through the rule of law However, prospective only quashing orders entail a form of judicial legislation which cannot be grounded in ultra vires theory, entailing a movement

towards common law theories of judicial review

Modified Ultra Vires and the Nullity Theory

Young suggests that orthodox understandings of nullity, entailing the finding of an unlawful act as void ab initio, is connected to Elliott’s modified ultra vires theory, which premises administrative power as defined by Parliament, intentionally limited by the judiciary’s “rule of law based control” To

explain a measure being lawful until it is declared unlawful by a court, Forsyth builds upon Wade’s theory of legal relativity to indicate a distinction between the sein the factual existence of lawfulness, and the sollen the fact the law should not exist Judicial recognition of unlawfulness hence permits the assimilation of the sein and the sollen Adams further suggests that, under the rule

of law, an unlawful act should be presumed void ab initio, rebuttable due to exceptional circumstances which implicate the rule of law Nullity theory hence strongly reflects Elliott’s modified ultra vires theory, insofar as Parliament s intentions are upheld such that administrative actions outside of Parliamentary legislation are regarded as unlawful, subject to the court’s capacity to maintain elements of the sein and sollen distinction where the rule of law requires a solution other that voidness ab initio

Suspended Quashing Orders

Suspended quashing orders are permitted under s 29A(1)(a), and permit a court to recognise a measure as unlawful, whilst providing time for new lawful regulations to be introduced, within which the ostensibly ‘unlawful’ regulations will continue to take effect This responds to Lord Hope’s concerns in Ahmed (No 2) that quashing an order

Jack Hollingworth

Iwhich upheld the UK’s international obligations under a UNSC Resolution as void ab initio would entail violating the rule of law, and hence a quashing order of suspended effect should be permitted

Suspended quashing orders are readily reconcilable with the modified ultra vires approach under nullity In recognising the unlawfulness of a measure, the court recognises the distinction between the sein and the sollen; however, as Adams suggests, rule of law concerns such as the violation of international obligations can enable the court to adopt remedies other than voidness ab initio S 29A(1)(a) hence enhances the courts abilities to uphold its function under Elliott’s conception of ultra vires, since it can respond to the need to uphold both the rule of law and Parliamentary sovereignty in a nuanced way through manipulating the temporal effects of an unlawful measure Indeed, Graham suggests that the order in R (Liberty) that legislation incompatible with EU law “must amended within… 6 months” approximates a suspended quashing order, implying that before the Judicial Review and Courts Bill was introduced, its effects were seen as compatible with an ultra vires conception of judicial review Hence, s 29A(1) (a) merely encouraged judges to utilise the nuanced approach to the interactions of nullity and the rule of law expounded by Adams and Elliott

Prospective only Quashing Orders

By contrast, the prospective only quashing orders permitted under s 29A(1)(b) necessarily entail a

ultimately still primarily concerned with common law rights Gardbaum and Bowen argue that in theory, the principle of legality is limited in its scope due to Parliament hrejection of Elliott’s modified ultra vires theory, and Adams’ approach to nullity Hickman cogently argues that s 29A(1) (b) provides judges with a ‘ quasi legislative power ’ enabling them to “ re write the law retrospectively” by empowering an unlawfully acting administrative body to be regarded as acting lawfully This disrupts the distinction between the sein and sollen: following the court’s acknowledgement of their distinction, the sollen assimilates to the sein, rather than the sein assimilating to the sollen Hickman recognises this, entailing that by ceding legislative power to the courts”, Parliament is enacting a “change to the way judicial review currently works” Indeed, by providing courts with such a legislative power, s 29(A)(1)(b) entails that the common law identifies the boundaries of the lawfulness of administrative acts, enabling courts to declare actions as intra vires which Parliament stated to be ultra vires

Graham suggests that prospective quashing orders operated before the Judicial Review and Courts Bill, suggesting that no change to theories of nullity or the grounds of judicial review has occurred He cites Lord Hope in Cadder v Her Majesty’s Advocate, stating that the Court can “declare that a new understanding of the law will operate only prospectively” However, this overlooks the

clear distinction between temporally distinct interpretations of the law, and the necessity of temporal consistency under voidness ab initio within the modified ultra vires theory

Further, the interpretation issue in Cadder does not necessitate analysing the distinction between the sein and sollen; it is merely declaratory of the sein moving forwards, without assimilating the sein and sollen retrospectively like s 29A(1)(b) Hence, contrary to Graham’s suggestion, s 29A(1)(b) does change the law, and signifies a movement towards a common law theory of judicial review

Judicial Discretion under s 29A(8)

Finally, the lack of structuring of judicial discretion in awarding either order entails a movement towards a common law understanding of judicial review S 29A(8) lists various factors which a court “must have regard to ; however, it fails to provide any hierarchical structure within these interests, nor state to what extent they need to be accounted for, and can hence be given determinative or essentially nullified effect at judicial will Additionally, s 29A(8)(f) enables “ any other [subjectively perceived relevant] matter” to be taken into account Morgan perceives this as beneficially abating “the danger of [the listed factors] becoming an exhaustive catalogue”, but s 29A(8)(f) allows the essential subordination of the S 29A(8)(a) (e) factors to any factor which the court desires, due to the non hierarchical nature of the s 29A(8) interests This would allow the court to declars unlawful decisions to not be void ab initio in cases outside of those rule of law concerns described by34

ILord Hope in Ahmed as legitimising a suspended quashing order The discretion afforded to judges in selecting to choose one of the Judicial Review and Courts Bill remedies thus cannot be reconciled with Elliott’s modified ultra vires account, and Adams’ account of nullity, because non void ab initio orders can be justified by factors outwith the rule of law Thus, s 29A(8) is explicable only on the basis of a common law approach to judicial review, since the judiciary is free to declare those factors which enable retrospective legislation of lawfulness under s 29A(1)(b), and is removed from the modified ultra vires justification of suspended quashing orders as applications of the rule of law under S 29A(1)(a)

Conclusion

The Judicial Review and Courts Bill disrupts Elliott’s modified ultra vires account of judicial review, encompassing Adams’ approach to nullity Prospective only quashing orders enable courts to rewrite the boundaries of lawfulness contrary to Parliaments intentions Suspended quashing orders are reconcilable with nullity, through allowing voidness ab initio to not be implemented where the rule of law requires otherwise, but the unbridled judicial discretion contained in s 29(A)(8) degenerates into common law judicial review, and exacerbates the issues for ultra vires present in s 29A(1)(b)