Per Incuriam Easter 2018 by Per Incuriam, Cambridge University Law Society

PER INCURIAM EASTER 2018

DECOLONIZING LAW CURRICULUM British Colonialism and modern English law

ACCESSORY LIABILITY AND DISHONEST ASSISTANCE Christopher John Tan discusses the facts

EASTER 2018

President’s Welcome

Editor’s Message

PRESIDENT’S WELCOME

EDITOR’S MESSAGE

DEAR READERS, Welcome back! I hope you had a wonderful Easter vacation! I would like to take this opportunity to thank the outgoing committee for their hard work last year and introduce to you the new incoming committee: Rachel will be our new Vice President, Vishnu our Secretary and Will our Treasurer.

Gabriel Wang | President

Per Incuriam has become a staple for students, growing from strength to strength over the years. We are proud to have started a Blog last year where students can go to read articles on interesting and current legal issues. And of course, the main magazine has been consistently useful for students in their Tripos examinations and in their personal enrichment. All this would not have been possible without the great work of our current team of editors: Yukiko Kobayashi Lui, Editor-in-Chief for Per Incuriam, Tatiana and Rabin as Deputy Editors and also their team of hardworking writers. A big thank you to all for doing such a splendid job in making all of these possible!

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DEAR READERS, In this Easter edition of Per Inc, we have compiled a selection of interesting articles and top-scoring Tripos scripts that could hopefully provide some inspiration for the upcoming exams. It is definitely a comprehensive collection and a useful read for everyone. We would also like to thank you for your continuous support for Per Inc and the Law Society more generally over the years. Moving ahead, we would like to continue growing and improving this magazine and make it a useful and enjoyable reading experience for you. Last but not least, I would wish you a fruitful and productive Easter term in preparing for your exams! Do look out for more from Per Incuriam and Law Soc in the year to come! Best wishes, Gabriel Wang President

Welcome to the Easter 2018 issue of Per Incuriam! It has always seemed to me ironic that as soon as the sun resurfaces so too do our exams, but we hope that this issue of Per Inc will provide a little glimmer of metaphorical sunshine for you this Easter term.

Yukiko Kobayashi Lui | Editor-in-Chief

Rabin Kok | Deputy Editor

Featured in this term’s issue is Jefferi Hamzah Sendut’s article on the role of the ICJ. In hopeful words which enclose an apt message for our times, Hamzah Sendut outlines a vision of the ICJ as helmsman of a world public order premised on justice and fairness. His thoughts on the duties incumbent on international actors, both on the ICJ’s bench and in the political offices of the world, are a thought-provoking reflection on the special and crucial part lawyers have to play in 2018 and beyond. Our second article is by Jessica Ning Sang Tan on the epistemological aspects of decolonising the study of Law. Decolonisation is a burgeoning social, political, and academic movement which has found support in many different contexts around the world and we are delighted to provide a platform for Tan’s nuanced and edifying treatment of decolonisation in a legal setting.

I hope you will find her ideas, rich in their philosophical and political underpinnings, as challenging and interesting as I do. And of course, as always we have a range of Tripos essays to aid you in your revision. I hope you will find these exemplary essays helpful in the weeks to come. This has been an eventful academic year both in Cambridge and in the world, and that it is so soon coming to an end is as unbelievable as it is a welcome reprieve. On behalf of the team at Per Inc, I would like to wish you a successful exam season and a restful summer vacation. To those of us graduating this year, I offer an additional message: the world of work, be it in the City, the academy or anywhere else, is wide and full of opportunity. I wish all finalists luck as they embark on their respective journeys as new graduates. It has been a true pleasure to have edited this magazine these last two years and I sincerely hope that you have enjoyed reading Per Inc as much as I have enjoyed editing it. And with that comes my final sign-off as Editor… Happy reading! Yours, Yukiko Kobayashi Lui Editor-in-Chief

Tatiana Kurschner | Deputy Editor

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

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

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

Contents

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CONTENTS Global Excellence

—

Cleary Gottlieb is one of the leading international law firms, with 16 closely integrated offices located in major financial and political centres around the world. For more than 60 years, the firm has been pre-eminent in shaping the internationalisation of the legal profession.

ARTICLES

FROM STATE CONSENT TO PROACTIVE PROTECTION: WHAT IS THE INTERNATIONAL COURT OF JUSTICE FOR? Jefferi Hamzah Sendut | St John’s College

IMAGINING A DECOLONIZED LAW CURRICULUM Ning Sang Jessica Tan | Decolonize Law Working Group

6 10

ESSAYS

EQUITY Christopher John Tan | Homerton College

CONSTITUTIONAL LAW Julia Gibbon | St John’s College

CRIMINAL LAW Evie Taylor | Magdalene College

LABOUR LAW Gareth Goh | St Catharine’s College

INTERNATIONAL LAW Helen Taylor | Fitzwilliam College

EU LAW Jake Seal | Sidney Sussex College

LAND LAW Gareth Goh | St Catharine’s College

LAW OF TORT Mohib Nadeem | Sidney Sussex College

LEGAL HISTORY Azfer Ali Khan | Magdalene College

CONTRACT LAW Yenjean Wee | St John’s College

12 14 16 18 20 22 24 26 28 30

clearygottlieb.com 5

EASTER 2018

Articles

From State Consent to Proactive Protection: What is the International Court of Justice for?

FROM STATE CONSENT TO PROACTIVE PROTECTION: WHAT IS THE INTERNATIONAL COURT OF JUSTICE FOR? Jefferi Hamzah Sendut | St John’s College

As the ‘principal judicial organ’1 of the UN, the International Court of Justice (ICJ) adjudicates on disputes between States in contentious proceedings and provides advisory opinions on legal questions submitted by bodies competent to do so under the UN Charter2. This piece argues that on a conceptual level, the ICJ’s work in dealing with contentious cases can be seen as balancing respect for State consent with the necessity of an effective system of international law. It is further suggested that although the ICJ has appropriately balanced these competing principles in most cases, the Court should take a more robust approach to asserting treaty-based jurisdiction. Treaties are the clearest instance of States consciously shaping the content of international law, and can be potent tools for the realisation of the principles enshrined in the UN Charter. Their effectiveness should therefore be maximised by the ICJ as an integral part of the UN system, concretising the international community’s pursuit of the Charter’s aims.

BALANCING CONSENT AND EFFECTIVENESS The conflict which exists between the traditional positivist view of international law, and alternative ‘world public order’3 conceptions can be summed up in the following question: is international law merely a set of rules binding upon States because of their consent, or a system which draws its juridical force from its unique capacity to address ‘the social necessities of States organized as a community’4? Visions of international law oriented towards the maintenance of world public order attractively retain the normative force of natural law theory, but lack its main defect. Instead of being premised on the existence

of an unprovable objective morality, world public order conceptions see international rule of law as logically required by the international community’s observable inability to tolerably survive without it. In carrying out its functions, the ICJ plays a vital role in resolving this conflict. As Koskenniemi has argued in his seminal work ‘From Apology to Utopia’, the Court ‘moderate[s] a purely State-centric, voluntarist interpretation of international norms’5 through its reference to countervailing concepts such as ‘elementary considerations of humanity’6. The Court’s jurisprudence hence aims to give an account of international law balancing a respect for consensualism, which it sees as foundational to international law, with the need for law sufficiently potent to maintain world public order by regulating State behaviour. The ICJ’s moderating role influences not only its treatment of substantive legal rules and principles7, but also how it asserts jurisdiction in contentious proceedings8.

CONTENTIOUS CASES AT THE ICJ The ICJ may obtain jurisdiction to hear and decide a contentious case through (i) special agreements, (ii) declarations made under the ‘optional clause’ system, and (iii) compromissory clauses in treaties. State consent should be of greatest relevance where a case is brought by special agreement, and least relevant where compromissory clauses are concerned, with ‘optional clause’ declarations occupying an intermediate position. In practice, it will be seen that the Court’s procedure and jurisprudence largely accord with this gradation.

Special agreements States may agree of their own accord to submit a specific dispute to be resolved by the ICJ, and will do so through the conclusion of a special agreement between themselves. In these circumstances, the Court’s jurisdiction is founded upon the ‘real and contemporaneous’9 consent of the parties. The relevance of State consent where the Court is seized by special agreement may even extend to the determination of which judges hear a case. This was exemplified by the conduct of Canada and the USA in submitting the dispute to the ICJ which was the subject of the Gulf of Maine case10. They specified in their special agreement that the case was to be heard by a Chamber of the Court composed of a certain set of ICJ judges11. Had the condition not been fulfilled, the dispute would simply have been transferred to arbitration, a tactic seemingly granting the Parties great de facto leverage over the Chamber’s composition12. The ICJ’s adjudicative role where cases are submitted by special agreements is not dissimilar to that of an arbitral tribunal. Recourse to the Court instead of arbitration is still nevertheless appealing to States because they are guaranteed a geographically representative panel of expert judges, and monetary savings on arbitrator and administrative fees13. The optional clause system Under Article 36(2) of the ICJ Statute, States are able to make unilateral declarations setting out in advance that they consent to the compulsory jurisdiction of the Court over disputes with other States which have also made such declarations. In doing so, States are able to make reservations

From State Consent to Proactive Protection: What is the International Court of Justice for?

to their declarations, which define the precise nature of the disputes over which compulsory jurisdiction is consented to.

STATE CONSENT RETAINS A SIGNIFICANT DEGREE OF WEIGHT WITHIN THE OPTIONAL CLAUSE SYSTEM

The approach of the Court to reservations made to Article 36(2) declarations in the Fisheries Jurisdiction case14 is demonstrative of how State consent retains a significant degree of weight within the optional clause system. In that case, the ICJ rejected a Spanish argument that an interpretive presumption should operate whereby reservations are interpreted compatibly with the Court’s Statute, effectively resigning itself to the reality that reservations may be made by States ‘sometimes precisely because they feel vulnerable about the legality of their position or policy’15. Canada’s reservation was held to be effective, preventing the ICJ from asserting jurisdiction over the fisheries dispute. However, as Orakhelashvili points out, the reasoning in Fisheries Jurisdiction does not suggest a reservation stands where a State’s ‘intention thus established runs contrary to a superior instrument or principle’16; he argues that the case must be understood as turning on the finding that the Canadian reservation was not actually inconsistent with the ICJ’s Statute17. Were that the case, the appropriate course for the ICJ would have been to find the reservation invalid, a limit necessary to maintain the integrity of the optional clause system18. Such a limit is pertinent given the dangers inherent in certain types of reservations, particularly those excluding disputes arising in any manner from facts which existed prior to a given date, which risk ‘reduc[ing] the compulsory jurisdiction of the Court to vanishing point’19. Treaty-based jurisdiction Compromissory clauses in treaties are those which prescribe that the ICJ may assert jurisdiction over disputes between State Parties, typically pertaining to the interpretation or application of the treaty. It is submitted that in light of the importance of treaties as a mechanism for the progressive development of international law, the ICJ should place less emphasis on State consent, and more emphasis on ensuring the effectiveness of the treaty when determining the scope of its jurisdiction. The ICJ’s treatment of the Genocide Convention 1948 illustrates this

point. In the Reservations to the Convention on Genocide Advisory Opinion, the Court clarified that reservations to the Convention were permissible, so long as they were not contrary to its ‘object and purpose’20. The policy justification offered by the Court for its approach is defensible; it is desirable the Convention should encourage State participation in being amenable to certain reservations, while at the same time retaining the potency of its core obligations21. Less satisfactory was the ICJ’s judgement in DRC v Rwanda, where it held that a Rwandan reservation to the Convention’s compromissory clause prevented the Court asserting treaty-based jurisdiction. The Court’s conclusion was reached on the basis of a distinction between the substantive and procedural obligations imposed by the Convention, derogations from the latter category being broadly permitted22. The artificiality of the distinction was raised by Judge Koroma in his Dissenting Opinion23, as well as by Judges Higgins, Kooijmans, Elaraby, Owada and Simma in a Joint Separate Opinion24. Should the issue of jurisdiction based on ‘public order instrument[s]’25 again reach the ICJ’s docket in the future, the Court should take advantage of the lack of a formal doctrine of stare decisis in the international system to revise its approach as to the permissibility of comparable reservations. The sentiment of Milanović in relation to recent developments in international law addressing the crime of genocide is equally applicable here; changes to the Convention’s reservations regime ‘might not provide much deterrence, they may still provide at least some justice’26.

CONCLUSION This piece has attempted to show that while the ICJ’s jurisdiction should remain founded on the present or advance consent of States, the Court must take a wider set of factors into consideration so as to avoid a dereliction of its duty to safeguard world public order. The ICJ is much more than an arbitral tribunal which States may use when convenient. It is an indispensable part of the UN, and the Court’s role should be seen in the context of what the organisation was established to achieve: a peaceful, rulebased international order, which places human dignity at its centre.

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Legality of the Threat or Use of Nuclear Weapons,

Advisory Opinion, (1996) ICJ Reports 226, Declaration of Judge Bedjaoui, [43]. 5

Hernández, ‘A Reluctant Guardian: The

International Court of Justice and the Concept of ‘International Community’, (2013) 1 British Yearbook of International Law 13, endnote 7, citing to Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (Cambridge University Press reissue, Cambridge, 2005), 322. 6

Corfu Channel case, (1946) ICJ Reports 4, 22.

That is, how it reasons in its merits judgements.

For a discussion of peremptory norms as ‘public

order norms’ and how they can impact on ICJ jurisdiction, along with how they affect the ICJ’s respect for State consent, see Orakhelashvili, Peremptory Norms in International Law (OUP, 2008). 9

Thirlway in Evans (ed) International Law (3rd edn,

OUP 2010), 595. 10

Delimitation of the Maritime Boundary in the Gulf

of Maine Area, (1984) ICJ Reports 246. 11

Thirlway in Evans (ed) International Law (3rd edn,

OUP 2010), 590, footnote 6. 12

Ibid.

Malintoppi, ‘Methods of Dispute Dispute

Resolution in Inter-State Litigation: When States Go to Arbitration Rather Than Litigation’ (2006) The Law and Practice of International Courts and Tribunals 133, 141. 14

Fisheries Jurisdiction (Spain v. Canada), (1998) ICJ

Reports 432. 15

Ibid., [54].

Orakhelashvili, Peremptory Norms in International

Law (OUP 2008), 500. 17

Ibid.

Merrils, ‘The Optional Clause Revisited’ (1994) 1

British Yearbook of International Law 197, 218. 20

Reservations to the Convention on Genocide,

Advisory Opinion, (1951) ICJ Reports 15, 24. 21

Ibid.

Armed Activities on the Territory of the Congo

(New Application : 2002) (Democratic Republic of the Congo v. Rwanda), (2006) ICJ Reports 6, [67]. 23

Dissenting Opinion of Judge Koroma, [29].

Joint Separate Opinion of Judges Higgins,

Kooijmans, Elaraby, Owada, and Simma, [21]. 25

Orakhelashvili, Peremptory Norms in International

Law (OUP 2008), 514. 26

Milanovic, ‘State Responsibility for Genocide’,

(2006) 17 EJIL 553, 604.

Article 1, Statute of the International Court of

Justice. 2

Article 65(1), ibid.,

See e.g. McDougal and Feliciano, Law and

Minimum World Public Order (Yale University Press 1961).

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EASTER 2018

Articles

Imagining a Decolonized Law Curriculum

IMAGINING A DECOLONIZED LAW CURRICULUM Ning Sang Jessica Tan | Decolonize Law Working Group In the past year, there has been increased discussion on what it means to ‘Decolonize Cambridge’. A significant aspect of the decolonization movement is to critique the way that existing courses fail to sufficiently historicize the coursework in their imperial and colonial context. While there has been much discussion about decolonizing the humanities and social sciences, there has been little discussion about decolonizing Law. This article demonstrates why decolonizing law is important and how it might be done in the Constitutional Law Part IA Tripos Paper.

HISTORICIZING THE STUDY OF LAW AT CAMBRIDGE The Law Tripos at Cambridge highly values the study of legal history and the development of legal systems. This is evidenced by the number of papers offered in this area: Civil Law I & II, English Legal History, the half-paper on European Legal History, Comparative Law, EU Law, International Law and Conflicts of Law. However, each of these papers only look at European or, in the case of International and Conflicts of Law, highly Eurocentric notions of law and legal developments; there is no mention of any (pre-/post-)colonial or non-Eurocentric notions of law or legal development. This was not always the case. Past papers in the Squire Library reveal that the Tripos course included papers on Hindu Law in 1932-1950 and on Mohammaden law in 1933-1984 (name changed to Muslim law in 1976); the LLM-equivalent also offered a Commonwealth Constitutional Law paper in 1949-1963. These papers clearly show that the study of non-Western and colonial laws has historically been understood to be part of the study of English law. However, it is clear that Cambridge stopped offering these non-Western courses immediately following the political independence of the relevant colonies. Hindu Law stopped being offered in 1950 shortly after India

and Sri Lanka’s independence in 1947 and 1948 respectively; though Pakistan also gained independence in 1947, Cambridge continued offering Muslim law until 1984 to accommodate other colonies: Middle Eastern countries like Bahrain, Qatar, and UAE only gained independence in 1971 and Brunei gained independence in 1984. Similarly, the end of the Commonwealth Constitutional Law paper in 1963 generally corresponds with wave of decolonization in the 1960s. Following the end of colonialism, the Law Faculty replaced the non-Western and colonial law papers with Continental European ones. For Tripos, the Faculty introduced courses on Legal Values in Western Society and Introduction to French Law in the late 1970s and early 1980s; the French law course eventually became the current Comparative Law course. In the LLM-equivalent, both a Constitutional Laws of Developing Countries paper and an (exclusively European) History of Public Law and Government paper were introduced in 1972; however, the Developing Countries paper ended just two years later in 1974 whereas the European course stayed for a decade until 1982. In the early 1980s, a similar course called the History of European Private Law Since 1500 was introduced alongside many other courses relating to the European Community. That the Law Faculty completely replaced non-Western papers with European law papers when colonies obtained independence indicate that they viewed the academic value of such courses as predicated on their imperial and colonial connections with Britain. This implies that these systems of law, now non-Eurocentric after independence, were considered inferior and less worthy of study and reflection than European law. Indeed, the Cambridge Law Faculty has successfully erased all substantive recognition of colonial history from a curriculum that had included non-Western and colonial legal scholarship for decades.

By emphasizing Britain’s horizontal political connection to Europe rather than its vertical historical connection to Commonwealth countries, evidenced by Roman Law remaining an obligatory paper whereas no paper on (post-)colonial law exists, the Law Faculty is actively erasing the memory of colonialism from the construction of British legal consciousness and legal history. Cambridge’s failure to teach any course on non-Western laws, colonial legal history, and postcolonial/common law legal systems effectively means that it is removing itself from its history of having institutional knowledge in this area of law. This active erasure of institutional memory means that incoming students and academics are losing access to Cambridge’s historical expertise on this topic and the potential for future scholarship to develop new knowledge in this area is being severely limited. As this deficiency can only be addressed by actively decolonizing the study of law, this essay will turn to explore specific ways to decolonize the Constitutional Law paper.

government administrations of previous colonies have co-opted the British Colonial administration’s legal apparatus to continue with unjust practice.

THE FAILURE TO HISTORICIZE THESE STRUCTURES CAUSES STUDENTS TO HAVE AN UNACCEPTABLY DEFICIENT UNDERSTANDING OF ENGLISH AND INTERNATIONAL LAW SYSTEMS The failure to historicize these structures causes students to have an unacceptably deficient understanding of English and international law systems as they currently operate.

CRITICAL AWARENESS OF THE ROLE THAT COLONIAL CASES HAS IN DEVELOPING BRITISH LEGAL CONSCIOUSNESS A more critically reflexive way to decolonize law is to explicitly demonstrate the role that colonialism has had in developing English legal consciousness. Edward Said in Orientalism, and more broadly postcolonial studies, argues that histories of the Metropole and the colonies as intertwined such that the colonies inform the consciousness of the colonial state1. While this technique is more often employed in literature studies to critique political and social consciousness, a similar methodology of critical reflexive analysis can be employed

to analyze certain colonial cases in terms of the development of English constitutional consciousness. For example, the Privy Council’s endorsement of the “manner and form” conception of entrenchment in AttorneyGeneral for New South Wales v. Trethowan2 sits at the heart of British constitutional consciousness. This is evident within academic discussion of constitutional theory concerning Parliament’s ability to bind its successors. For example, Sir Ivor Jennings uses Trethowan as the primary case to demonstrate that “the ‘legal sovereign’ may impose legal limitations upon itself, because its power to change the law includes the power to change the law affecting itself”3. Similarly, R. F. V. Heuston relies on Trethowan to support his “new view” that distinguishes between rules which govern the composition and procedure versus the power of a sovereign legislature4. In contrast, in H. W. R. Wade’s article The Basis of Legal Sovereignty, he blithely discounts Trethowan as “no more than a decision on a particular provision of the Colonial Laws Validity Act, 1865 [that]… in no way raised any question of the validity of acts of a sovereign legislature, but was rather concerned with subordinate, or delegated, legislative power5.” Of course, Wade was proved wrong when Trethowan was endorsed without qualification at the highest level of court in the contemporary House of Lords case of Jackson6. That Lord Steyn used a colonial case from 70 years ago as precedent and justification to fundamentally alter how the courts understood parliamentary sovereignty, from the Diceyan conception to the “manner

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and form” conception, without reservation or qualification demonstrates the central role that the UK’s colonial past plays in contemporary legal development.

CONCLUSION AND RECOMMENDATIONS Beyond being a moral imperative, decolonizing law is therefore an intellectual imperative to teach law in a way that explicitly recognize that European and specifically British colonialism played a central role in the development of modern English law, the international common law system, and the broader international legal order. This essay has demonstrated why it is necessary to decolonize the study of English law at Cambridge and imagined a few ways that the Constitutional Law Tripos paper can be decolonized. Though it is well noted that the technical nature of law means that some papers lend themselves more to decolonization efforts than others, that should not stop us from imagining, together, what a fully decolonized study of law at Cambridge might entail.

Said, Edward W. “Introduction.” Orientalism,

Penguin Books, 1995. 2

[1932] AC 526.

Jennings, Sir Ivor. The Law and the Constitution

(5th edn), University of London Press Ltd., 1959, p152-154. 4

Heuston, R. F. V. Essays in Constitutional Law

(2nd edn), Steven & Sons, 1964, p14-15. 5

[1995] CLJ 172.

R (Jackson and others) v Attorney General [2005]

UKHL 56 at [81].

HISTORICIZING COLONIAL LEGAL STRUCTURES At the most basic level, the Constitutional Law paper offers no explanation for how the supremacy of the Privy Council over national courts of other states or the existence of an international common law network of jurisdictions came to be. Without properly historicizing the colonial legacy of these British constitutional structures, the course posits the Privy Council and common law tradition as neutral entities when they are clearly rooted in Britain’s physical, administrative, and legal occupation of colonies. Such amnesia leaves no room for students, particularly those of us from ex-colonies, to understand the legal mechanisms that legitimated Britain’s physical occupation of our land or to interrogate the content of those colonial laws that actively segregated and repressed our ancestors. There is also no scope to question the extent to which current

ESSAYS 2018

Essays

Equity

believe a better analogy to be the strict liability tort of unlawful interference with goods. Nevertheless, the need for a fault element is more consistent with the more flexible approach of equity in tempering the common law.

DISHONEST ASSISTANCE The final type of accessory liability is dishonest assistance. Dishonest assistance requires there to be a breach of fiduciary duty, actual assistance and dishonesty. The main area of contention comes in the definition for dishonesty.

THERE HAS LONG BEEN DEBATE ON WHAT COUNTS AS DISHONEST.

EQUITY ‘Equity’s treatment of third party accessories is riddled with inconsistencies. The courts waver between resort to analogies with trustees, or with fiduciaries, or with common law accessories, and seem to find it impossible to hold a firm line on the appropriate rationale for finding these people liable for anything.’ Discuss. Christopher John Tan | Homerton College INTRODUCTION In equity, third party liability is an area that is indeed often confused and confusing. However, there appears to be a relatively clear core set of principles. In this essay, I will consider the nature of accessory liability in equity generally before looking at examples from dishonest assistance and knowing receipt specifically.

THE NATURE OF ACCESSORY LIABILITY In Barnes v Addy, it was said that there are three sorts of accessory liability: trusteeship de son tort, knowing receipt and dishonest assistance. Trusteeship de son tort is relatively straightforward — an intermeddler will simply be treated as if he were a trustee. Accordingly, the full range of trustee duties may be applied. As with those liable for knowing receipt or dishonest assistance, it was said that they would be liable ‘as constructive trustees’

in Dubai Aluminium v Salaam. However, as acknowledged in Westdeutsche Landesbank v Islington LBC, this is rather misleading. Rather, what seems to happen is that liability of accessories is, in practice, closely linked to their actual level of fault.

KNOWING RECEIPT This is an area of law which Lord Nicholls says is confused as it is trying to be prophylactic and restitutionary at the same time. Birks would incorporate this into a unitary common law-equity theory of restitution, which perhaps could work given the successful (if somewhat unorthodox) uniting of the estoppels in Australia following Walton Stores. However, is this really true? In knowing receipt, there needs to be a primary breach of fiduciary duty, a proprietary based, ministerial receipt and knowledge. The main area of confusion is in what counts as knowledge. Per BCCI v Akindele, the requisite knowledge can

be constructive if one is suitably put on inquiry by the circumstances. Per Winnington v Armstrong, this could simply be not carrying out one’s normal due diligence procedure. However, constructive knowledge per the Baden Delvaux scale must be shown on the balance of probabilities, while there needs only be a possibility of such a breach where subjective knowledge is involved per Credit Agricole v Papadimitriou. This sensitively balances the need for fault, and is consistent with the rejection of Birks’ ‘swollen assets theory’ in Re Goldcorp. Of course, some say the appropriate analogy is to the common law action for money had and received — Lipkin Gorman v Karpnale. There is initial strict liability, but subsequent availability of defences like bona fide purchaser for value. However, in knowing receipt, if one has the requisite level of knowledge, one is not really bona fide at all — Papadimitriou, in that sense, the two do not diverge as much as initially thought, although Edelman and Mitchell

There has long been debate on what counts as dishonest. In SocGen v Baden Delvaux, it was said there is a five-fold scale to dishonesty, with subjective knowledge requiring either actual knowledge, Nelsonian knowledge or recklessness, while constructive knowledge referred to cases where one ought to have known certain facts or at least be put on inquiry. This scale was officially disclaimed in Royal Brunei Airlines v Tan by the Privy Council. However, the supposedly more straightforward test of ‘would the honest

and reasonable man think this to be dishonest?’ simply masks the underlying subjective-constructive debate. Indeed, Twinsectra v Yardley attempted to change this to a subjective-objective test. This is more suited to criminal liability and does not in fact stop ‘Robin Hood’ assistants. The issue was clarified in Barlow Clowes v Vaughn where the Privy Council elided the two standards, applying the Tan test while paying lip service to Twinsectra. This simply illustrates the tension in the law — is the law prophylactic or restitutionary? The need for dishonesty of some sort nevertheless strikes a fair balance of sorts. This is not about analogy to common law or fiduciaries or trusteeship, but simply what level of fault is needed to hold one liable ‘as constructive trustee’. If one were truly liable as a constructive trustee and thus required to disgorge any profits made jointly and severally with the primary wrongdoer per AG v Reid, then the law should be cautious in not overly-readily affixing such onerous liability. After all, what counts as assistance is slight — it did not include the wife of a money-launderer sitting with him in a car passively so as to give his cover story of being an antiques dealer credibility in Abu Saleh (No 3). However, it was a finely-balanced decision, and some like Dogged said it really ought to have been counted as assistance.

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Given that liability may stem from an initial wrong of the assistant that is relatively slight, it is right that a rigorous mental element is applied. This goes to the nature of trust relationships. Per Earl of Plymouth, it is an ‘act of great kindness’. Those who breach that particular trust and confidence, per West Riding & Bristol BC v Mothew, must be properly accountable, as must those who intentionally assist them, or, indeed receive such goods, more so than those responsible for eg procuring a breach of contract at common law per Lumley v Gye. In any case, there has been some modulation of the law’s harshness on accessories in the realm of remedies. Per Novoship, such accessories, in an account of profit claim, will only be liable for their ‘own’ profits. This is not strictly a question of causation, but helps ensure that a certain sense of proportionality is maintained. This is consistent with other areas of equity like AIB v Redler which looks at the wrong actually done, modifying the normal Re Dawson approach.

CONCLUSION Trusts are used far beyond the traditional range of family trusts, as observed by Underhill and Hayton. In looking to commercial and non-commercial transactions alike, does the law strike the right balance on accessory liability? The relatively strict approach can be justified even in the commercial context as default terms mutually accepted by the parties — Langbein. Returning to the paradigm case, the prophylactic and relatively harsh nature of remedies for wrongdoing fiduciaries and their accessories is simply a reflection of the vagaries of human nature, per Conaglen. Given the inherent agency problems in triangular relationships, it is understandable that the law takes a harsh stance against those who deny innocent, vulnerable beneficiaries the proper enjoyment of their property rights. Further, while the debate on fault is still not entirely settled, the law has struck a more nuanced balance in relation to remedies. This area of law cannot be understood via analogies but is Sui generis.

EASTER 2018

Essays

Constitutional Law

However, the Canadian Constitution case is evidence of the broader and more accommodating approach to assessing conventions in a legal context. In that case the Supreme Court did indeed rule on the operation and scope of the convention of consulting the provincial governments, legally recognising its existence and defining its boundaries but simply not taking the ultimate step of pronouncing transgression of those boundaries to be illegal.

CONSTITUTIONAL LAW “Judges … are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question … but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world.” (LORD NEUBERGER, LADY HALE, LORD MANCE, LORD KERR, LORD CLARKE, LORD WILSON, LORD SUMPTION and LORD HODGE in R (Miller) v Secretary of State for Exiting the European Union (2017)) Discuss. Julia Gibbon | St John’s College Lord Neuberger’s leading judgment in Miller stated very clearly that the court would not use the Sewel Convention as an aid to interpreting the European Communities Act 1972, regardless of the fact that it is now recognised in statutory form (s.28(8) Scotland Act 1998). It is necessary to understand this statement in that context, therefore, acknowledging the strong use of the Convention which the applicants were advocating. This excerpt taken in isolation does not reflect the constitutional reality of political conventions in general, since it is referring to a very particular use of them. This distinction turns on the definition of “legal rulings” which, in context, means enforcing or taking very considerable

guidance from a constitutional convention but in a more general sense admits of a less strong interpretation, as “decisions taking account of” and assessing (by necessity) the “operation or scope” of a convention (of which there are a number of examples). I will therefore discuss conventions by contrasting these two uses of them and conclude by noting the apparent direction of travel of conventions which may undermine the enforceable/ non-enforceable distinction altogether eventually. In the stricter sense of “legal rulings on [a convention’s] operation or scope” meaning ‘enforcing’ conventions, it is clear that no court has yet been prepared

to go that far, making an established political tradition an enforceable legal rule. Madzimbamuto v Lardner-Burke is a clear example of such a case where it was anathema to the court to consider adjudicating on a political rule. Similarly, Re Amendment of the Constitution of Canada provides a fascinating example of a court acknowledging, and even testing for the existence of a convention (using Jennings’ three stage test) and yet absolutely refusing to rule against the Canadian Government, despite finding they were in breach of the convention. In the strict sense intended by Lord Neuberger, political conventions cannot admit of “legal rulings”.

Indeed there are two other notable examples where a court has undertaken full investigations into existing conventions and acknowledged them as interpreive aids on legal questions, as Lord Neuberger acknowledges, which suggests that, within the broader interpretation of “legal rulings” courts will decide or ‘rule’ on a convention’s “operation or scope”, since that process is surely a necessary precursor to using the convention as an interpretive guide. In Jonathan Cape, the court used the convention of collective responsibility to assist in its decision on whether the tort of breach of confidentiality had been committed and it is difficult to see how this use of the convention can have been made without a prior assessment (a ‘ruling’ in the broad sense) of the convention’s operation and scope. The court decided that the convention’s weight was surpassed by the question of public interest, but Lord Widgery noted at the hearing for discharge of the defendants’ undertakings that the ruling did not amount to a refusal to enforce conventions in any circumstances. It is clear that a strong conception of a political rule was used by the court in that case and, in a broad sense, this surely amounts to a “ruling” on its “operation or scope” – it is simply the case that in Jonathan Cape the ruling or scope was insufficient to outweigh the other relevant factors. Similarly, in Evans in the Upper Tribunal the court gave a detailed judgment on the scope of the ‘education convention’, ultimately deciding that it was not in fact broad enough to cover the Prince of Wales’ advocacy correspondence. It is difficult to read this ratio as anything other than a ruling on the operation or scope of a convention, in the broad sense, even though the court did not go so far as to enforce it. The convention was a significant but ultimately not an overwhelming counterweight to the public interest questions at stake.

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may be heading in the direction of becoming more established and potentially ultimately legally enforceable. Jaconelli has suggested that the clear distinction between conventions and laws in terms of enforceability, as suggested by Lord Neuberger’s Miller judgment, may be undermined by increasing ‘crystallisation’ of conventions into laws. Indeed Barber has suggested that the Ministerial Code may be an example of this in practice. What were once uncodified rules of responsibility of Ministers to Parliament have been transformed into a Code now used by politicians as a framework for condemning the conduct of other politicians. Perhaps this will become an example of a convention eventually becoming legally enforceable.

LORD NEUBERGER’S STATEMENT THAT COURTS “CANNOT GIVE LEGAL RULINGS ON THE OPERATION OR SCOPE” OF A CONVENTION IS READILY EXPLICABLE WHEN INTERPRETED IN THE CONTEXT OF THE ARTICLE 50 DEBATE AS REFERRING TO THE LEGAL ENFORCABILITY OF CONVENTIONS

Lord Neuberger’s statement that courts “cannot give legal rulings on the operation or scope” of a convention is readily explicable when interpreted in the context of the Article 50 debate as referring to legal enforceability of conventions, of which there is no existing evidence in the case law. However, it is arguable that Lord Neuberger’s distinction between such “legal rulings” and “recognis[ing] the operation” of a convention with regard to a “legal question” can be collapsed by understanding the phrase “legal rulings” more broadly as judicial decisions as to the power and confines of a convention which, as I have argued above, is something the courts are clearly more than prepared to do. Given this, Barber and Jaconelli’s discussions of the potential direction of travel for constitutional conventions become a very real possibility.

It is interesting to note, in the context of this broader approach to constitutional conventions as influential factors in case law which, though not as yet ever enforced,

EASTER 2018

Essays

Criminal Law

CRIMINAL LAW ‘Given the Supreme Court’s endorsement of the concept of “conditional intent”, the judgment in Jogee and Ruddock [2016] has not in fact narrowed a secondary participant’s liability for murder.’

`It is notable that both the High Court of Australia in Miller and the Final Court of Appeal in Hong Kong in HKSAR v Chan Kam Shing have declined the follow the Supreme Court in Jogee, refuting the claim that PAL leads to over criminalisation and, in Miller, arguing that Jogee was a policy decision. There is a question as to whether it was right that the Supreme Court seems to have narrowed a secondary participant’s liability for murder, given policy concerns about gang violence (Powell and English). This is one of the charges levelled at

the Supreme Court by McBride, who believes that Jogee threw the ‘baby out with the bath water’, but, as Krebs states, the phenomenon of escalation of crimes should not furnish without more a charge of murder. Such policy concerns are not sufficient excuse to liable someone as a murderer with the mandatory life sentence. The Supreme Court in Jogee did, on one level, narrow the law, with policy questions will remaining about the justice of finding a secondary participant liable

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for manslaughter if they encouraged a dangerous and unlawful act in the Church sense. The possibility of finding conditional intent has left the law too wide, and moreover its parameters lack clear definition. Jogee and Ruddock was a step in the right direction, but more clarity is needed and it should not be that old PAL cases are now subsumed into an given new life by the possibility of finding conditional intent.

Discuss. Evie Taylor | Magdalene College The Supreme Court in Jogee and Ruddock, on a prima facie level, did narrow a secondary party’s liability for murder by undoing the ‘wrong turn’ taken in Chan Wing Siu and ruling that ordinary accessorial liability is now the only form of secondary liability in English law. However, the decision has been ‘tamed’ (Stark) by the endorsement of conditional intent which, if cases such as Johnson and Others are telling, means that the same secondary participants who were liable for parasitic accessorial liability will now be found guilty of murder due to possessing conditional intent. The extent of this problem remains to be seen, as the Supreme Court failed to clearly outline the boundaries for conditional intention. This essay will consider whether the law has been sufficiently narrowed, with conditional intent being a ‘red herring’ (Krebs) or whether, in practice, Jogee has changed little. A stark change brought about by the Supreme Court in Jogee is that secondary participants will no longer be liable for murder due to departure from common purpose, also known as parasitic accessorial liability. This was when D1 and D2 set out to commit crime A and, in the course of committing crime A, D2 foresaw the possibility that D1 might commit crime B. This meant that a person could be labelled a murderer, as in Reardon, when they had done nothing more than foreseen the mere possibility that another offence may be committed by the principal, yet they would be derivatively liable for the same offence. As Dyson has argued, killing off departure from common purpose in Jogee was undoubtedly a good thing; the Supreme Court did not believe that a secondary participant was morally or legally

culpable for a murder of which he had mere foresight. In a study conducted by Crewe, Liebling, Padfield and Virgo, it was found that many prisoners who had been convicted as murderers due to departure from common purpose did not understand why they had been labelled as such Labelling must be fair, and it is essential that the law limits the accordance of the term ‘murderer’ to those who are truly deserving of it. The current position post-Jogee is that ordinary accessorial liability is the only form of secondary liability. The actus reus is that D must aid, abet, counsel or procure P’s offence, and the mens rea is that D must intend to do the act which assists or encourages or procures P’s offence (aware of its capability to do so) and D must intend to assist or encourage P to do the type of offence (Bainbridge) of which D knows the essential elements. For procurement, D must actually intend for the offence to be committed (AG’s Reference (No 1 of 1975). The question, therefore, is whether this has narrowed the law, or whether conditional intent is a means by which secondary participants will still be found liable for murder. Although Simester has argued that conditional intent is in fact very difficult to prove, the court in Jogee made it clear that intention could be conditional, in the sense that if, for example, D gives P an knife intending for her to use it if necessary, this will suffice for intention and D will be liable for murder. As Stark has argued, if conditional intent is found ti will not be open to the defendant to argue that he should be liable for manslaughter instead. While Omerod and Laird have attempted to suggest that something less than

virtual certainty (Woollin) could amount to intention, this has been countered by Stark. lt seems that D must still have intention, but the fact that this can be conditional is problematic. This can be seen in Johnson, in which the Court of Appeal was quick to find that those who would have been charged with murder due to parasitic accessorial liability now are found to have conditional intent. In one sense, it could be argued that all that has been changed is the question that is put to the jury. On the other hand, it is now clear that those who used to be liable for murder may not be liable for any homicide offence at all.

STARK HAS LAMENTED THE GREAT CHASM WHICH EXISTS BETWEEN MURDER AND MANSLAUGHTER As both Simester and Sark have suggested, if D intends to assist or encourage P to commit actual bodily harm, And P in fact commits grievous bodily harm with intent, and V dies, D will not be liable. Stark has lamented the great chasm which exists between murder and manslaughter and murder and no homicide offence at all. However, this does seem like a fair result; in refutation of Simester’s ‘normative change of position’ defence for what was parasitic accessorial liability, which now shares remarkable similarities with conditional intent, it should not be that we label people as murderers simply because they intend to assist or encourage a less serious, or even non-violent, offence.

EASTER 2018

Essays

Labour Law

expected their ZHC workers to be available as and when they were needed – and this surely represents the essence of a mutuality of obligations.

LABOUR LAW

A RELATED CONCERN – CONTINUITY OF EMPLOYMENT

‘No single idea has caused more confusion in employment law than the concept of mutuality of obligation.’ Discuss. Gareth Goh | St Catharine’s College The concept of ‘mutuality of obligations’ is a vexed one, but ultimately one that is of crucial importance in labour law, due to the consequences that follow from whether we classify a claimant as either an employee or worker. In this context, I will take the phrase ‘confusion in employment law’ to mean an incoherent approach to dealing with the increasing rise of non-standard employment arrangements and as a corollary, a failure to provide adequate labour law rights for those that fall outside the traditional scope of employment. As against mutuality of obligations, the related concept of continuity of employment will be analysed for its also confusing effect, and ultimately a more purposive approach will be advocated to deal with this confusion.

THE ‘THE USE OF MUTUALITY OBLIGATIONS The term ‘mutuality of obligations’ has only arisen recently as the dominant common law test for identifying contracts of employment. Prior to this, tests of control (Ready Mixed Concrete), integration (Stevenson, Jordan and Harrison) and economic reality (Market Investigations) had all been used. But recent cases like Quashie, Carmichael and O’Kelly confirm that the focus for analysis is firmly on whether there is mutuality of obligations between the two parties. Freedland notes that the term manifests itself in two levels, the first being a mutual wage work bargain, with the second being mutual obligations to provide work and to accept it. Whilst only the former is required to claim protections as a statutory worker under s.230(3) ERA 1996, both are required if a claimant is to receive the full panoply of labour law protections.

EMPLOYERS OFFLOADING THEIR DUTIES The main reason why mutuality of obligations causes so many issues in labour law is because of efforts by employers to offload their responsibilities to their employees by manipulating the notion of mutuality and therefore effecting the employee/worker distinction. This is of crucial importance since the rights that accrue to a mere worker are much less significant than those that accrue to a standard employee (e.g. dismissal and redundancy protection). In this light, employers quite often use ‘boiler plate’ clauses in their contracts, or ‘no obligation’ or ‘substitution’ clauses to try and evade a finding of mutuality of obligations.

IT IS CLEAR THAT NEO-LIBERALISM IS NOT DESIRABLE IN PRINCIPLE IF WE ARE TO AFFORD ADEQUATE PROTECTION TO THOSE WHO ARE AS VULNERABLE AS ‘NORMAL’ EMLPOYEES Indeed, cases such as Tanton and Kalwak are examples of employers trying to manipulate the distinction through the use of substitution clauses. The upshot of this is that one could argue that we are moving away from the intellectual influence that could be said to underpin labour law – social and industrial pluralism, which espouses the idea that labour law should look beyond the formalities of the agreements reached in order to remedy the inherent unevenness in bargaining power between the employee and employer. However, as against this, it may be argued that the influence of social and industrial pluralism only really pervaded labour law

thinking until the 1980s, and from there neo-liberal ideas of freedom and flexibility took over. But it is clear that neo-liberalism is not desirable in principle if we are to afford adequate protection to those who are as vulnerable as ‘normal’ employees but are engaged in non-standard arrangements. It is this confusion that mutuality of obligation fails to address.

THE CONFUSION EXEMPLIFIED – THE GIG ECONOMY The confusion of the ‘mutuality of obligations’ term can perhaps be seen most clearly in the rise of platform workers. In the recent case of Aslam v Uber, it was argued by the employer that the drivers were employed only insofar as they ran their own mini-businesses, and therefore should not be entitled to any labour law protections. But the tribunal rejected this argument, noting that there were many factors that could be expected for selfemployed workers, for example the ability of Uber to deactivate drivers and the power to unilaterally vary the terms of the contract. What is particularly striking about this case is that there are aspects of the relationships that can be described as showing mutuality of obligation. For example, drivers are obliged to complete the journey once they accept it, Uber relies on having a pool of drivers available for its business model to run, and lastly, drivers are incentivised to work due to the positive feedback rating system.

Whilst the issues with mutuality of obligations are significant, it could be argued that it is not the concept that caused most confusion in labour law. Under s.210 ERA, employees are required to show continuity of employment for certain periods of time should they wish to have access to certain employment rights. But the idea of continuity has provided great confusion in the context of ZHC workers, as they have no prescribed schedules for work, and it is therefore difficult to find any requisite ‘continuity’ in their employment. The courts have tried to get around this problem by two distinct but related methods. The first is to imply an umbrella or global contract of employment to connect a series of what would otherwise only be a ‘spot’ contract during the period of engagement (Carmichael). So in the case of Pulse Healthcare, it was held that there was sufficient mutuality of obligations between the two parties to imply a global contract. The second method

used by the courts involves s.212(3)(b) ERA, which provides for an exception to the continuity rule where there has been a ‘temporary cessation of work’. So in Prater, this exception was used to find that there had been no breach in continuity. But the position for ZHC workers is more confusing. Indeed, Deakin and Adams argue that the courts are unlikely to find a ‘temporary’ cessation where the periods spent out of engagement are longer than the periods in employment (Ford). To add a further layer of confusion, where the periods in an out of work are inconsistent, the courts have resorted to taking a holistic approach in assessing whether there has been a temporary cessation or not (Flack v Kodak). Hence, it is certainly arguable that continuity is as confusing and stifling as mutuality of obligations.

ESCAPING THE CONFUSION The court’s insistence on adhering to the conceptual straitjacket of concepts like mutuality of obligation and continuity are damaging to the scope of labour law and its ability to protect vulnerable workers. It is suggested that a more purposive approach is necessary to escape the confusion.

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Davidov is a strong proponent of a purposive approach and has argued that the notion of the worker should be determined exclusively by reference to economic dependency, a method used in Germany and Canada. Similarly, Leighton and Wynn argue that there is no normative reason why a substitution clause should be allowed to defeat a finding of worker status. Encouragingly, it seems that the courts have been using a more purposive approach to guard against strong neo-liberal influences. So in cases like Protectacoat and Autoclenz, the courts have looked at the substance of the relationship between the parties, rather than the ‘legal niceties’ of the contract, in the words of Langstaff. Although the difference in the opinion of the ET and CoA in Quashie doubts the impact of this purpose approach (indeed Cabrelli also cautions against it), recent cases such as Uber, Pimlico Plumbers and Pulse Healthcare show that it is beginning to take hold of judicial reasoning. However, we are not quite there yet. The tribunal in Uber did not the possibility of the contract being defeated in such a way that it could have precluded worker status. As such, mutuality of obligations should form only one aspect of the court’s analysis, particularly when assessing quasi-dependent work relationships; economic dependency will also be important. It is in this light that the judgment in Uber and Citysprint should be applauded, and one can only hope that they signal a more significant departure from the legal straitjacket of mutuality of obligations. Ultimately, a purposive approach will not only counter against savvy employers trying to contract their way out of the burdens of labour law, but it will also militate against the fear of Mummery LJ in James v Greenwich of creating a two-tiered labour force. According to Supiot, the purpose of labour law should be to enhance labour value by innovation and flexibility. The concept of mutuality of obligations, and to some extent continuity of employment, operate against this by imposing formal and outdated requirements that add unnecessary confusion to the proper scope of labour law.

A similar point can also be made about zero hours contract workers. The 2015 Labour Force Survey found that 40% of ZHC workers had worked for the same employee for 2 years, whilst 25% had worked for the same employee for at least 5 years. But most significantly, 30% of employees

EASTER 2018

Essays

International Law

CUSTOMARY INTERNATIONAL LAW

INTERNATIONAL LAW ‘There is a culture in which it is possible to become a practising lawyer without having studied international law, and indeed to become a judge knowing no international law. Psychologically that disposes both counsel and judge to treat international law as some exotic branch of the law, to be avoided if at all possible, and to be looked upon as if it is unreal, of no

The relationship between custom and domestic law is less clear. The orthodox approach at least in the past, has seemed to be based on Lord Denning MR’s comments in Trendtex. In this case he outlined the transformation and incorporation approaches. The transformation approach provides that steps must be taken to “transform” custom into domestic law. The incorporation approach says that custom is automatically part of domestic law. This reflects a more monist model which sees international and domestic law operating on one place and was the approach that Denning said reflected the UK model – indeed this assertion would appear to be supported by the 18th century immunities case Triquet v Bath.

IN BOTH CASES THE COURTS SAID THAT IT IS FOR PARLIAMENT TO EXPAND UK LAW. The above would suggest that the UK courts should not ‘be more willing to give effect to international law’ as they already allow custom to automatically become part of it. Nevertheless, judgement on this issue should be reserved as there is cause to believe that the true position is

different. Cases such as Keyn and Jones [2006], which deal with international crimes, suggest a different approach. This is because in both cases the courts said that it is for Parliament to expand UK law. Thus in Jones which concerned the crime of aggression, Lord Bingham said that this could not automatically be considered part of domestic law as this would amount to the judges creating law. Notably these two cases both apply to international crimes however it is argued that the importance of the constitutional approach underlying these cases underlies all customary rules. This is supported by Lord Mance in Keyu where he said that he was ‘speaking generally’ when saying that custom may shape the common law when it is in line with the domestic constitution. Thus although in the Freedom and Justice Party v Foreign Office Lloyd Jones J said that when international immunities law is in question it is compelling to give effect to it, the better approach is to say that this is not a result of Denning’s transformation approach but because there is little constitutional objection to this. This is because immunities law deals with procedure (as Lord Hoffmann says in Jones) and so there is no interference with substantve law, as there would be with regards to international crimes. The above suggests that it is best, in line with Sales and Clements’ approach, to view custom as a source of the common

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law which is subject to the domestic constitution. The reason for the ascendency of the “transformation” theory is thus arguably because it is rarely tested given that, as O’Keefe notes, custom is often already provided for by statute. Turning back to Higgins’ quote it is clear to see that any accusation of lack of engagement in international law is not because of some kind of psychological reluctance but because international law is subject to the constitution. It is in this way that the monist/ dualist divide is flawed as neither can fully describe the English approach to custom. If we are, as the essay does, to take Collier’s approach that custom is merely a source of the common law this would suggest that the approach is more in line with monism. This, however, does not show the true picture as it overlooked the role of “constitutional filters” such as the separation of powers.

CONCLUSION The UK constitution is of primary importance and its separation of the functions of the state upholds key principles such as democracy. In this way, it is right that the courts have paid due respect to this idea. Higgins’ lack of regard for this therefore does constitute ‘an unfair description of some courts in the UK’ and the UK courts should not be levelled with the accusation that they have not been willing enough to give effect to international law.

practical application in the real world. Of course, this attitude is mostly to be found in those countries that embrace the dualist system. It is not an unfair description of some courts in the UK.’ (HIGGINS) Discuss. Should UK courts be more willing to give effect to international law? Helen Taylor | Fitzwilliam College Higgins’ statement is very questionable, indeed many of its claims do not match the reality of the courts’ approach with regards to the interaction of domestic and international law. The essay proceeds by looking at the UK’s approach to the incorporation of treaty law and customary international law. In doing so, it challenges the assertions made by Higgins, arguing that rather than treating ‘international law as some exotic branch of the law, to be avoided if at all possible’, the court applies domestic constitutional principles in engagement with international law. Moreover, the monist/dualist divide which Higgins hints at is a flawed model to employ when looking at the UK’s interaction with international law because

it overlooks the constitutional subtleties which inform the courts’ outlook.

TREATIES With regards to treaties, the standard approach with regards to incorporation into English law is demonstrated in the ITC case where the court held that treaties do not automatically become part of domestic law but rather have to be incorporated by Parliament. Thus the description of a psychological attitude which sees ‘international law as some exotic branch of the law’ does not seem apparent here. Instead the courts recognise that the role of incorporation of treaties is for Parliament. This attitude is clearly based on the

separation of powers which sees Parliament as the legislative body in the UK. Indeed, Higgins’ assertion that the judges try to avoid international law is further undermined by cases such as Brind which in fact show that the courts sometimes engage with unincorporated treaties as in Brind the court said that ambiguous legislation may be interpreted in line with unincorporated treaties! Thus, even though the standard approach to treaty law would fit a dualist system (i.e. one that sees international law and domestic law existing on separating planes), Higgins’ characteristic is unfounded and unfairly attributes judicial regard to – most notably – the separation of powers as reluctance to engage with international law.

EASTER 2018

Essays

EU Law

the EU in any way. Indeed, in the White Paper (March 2017) concerning the ‘Great Repeal Bill’, the CFR will not be transposed into UK law allegedly because of its merely clarificatory effect. At the time, as Barnard (2008) notes, the UK Government played a ‘smoke and mirrors’ exercise in suggesting that they had secured a real and tangible opt out to the Charter provisions.

EU LAW ‘The field of fundamental rights…arose from a constitutionally limp EU. The recognition of the protection of fundamental rights as a general principle of EU law was followed by institutional acknowledgement and progressive legislative recognition, to result eventually in full codification. Given its inextricable link with the process of deeper integration, it is not surprising that it is a field which is not only complex but also, at times, deeply contested’. (SPAVENTA, 2014) Discuss. Jake Seal | Sidney Sussex College It is indisputable that the field of fundamental rights arose from a ‘constitutionally limp EU.’ The field has proven so complex because it is an area in which both Member States and the EU have a vested interest in protecting, one that also can vary in the level of protection afforded amongst differing Member States. This essay will argue that there has been institutional acknowledgement and progressive legislative recognition in the area in the enactment of the Charter of Fundamental Rights (CFR) but that the EU has not fully risen to the challenge of ‘full codification’ until it accedes to the separate body of law embodied in the ECHR.

developed during the 1970s and 80s, with the addition of new Member States (MSs), the Constitution of the EU became stronger, the recognition of general principles of EU law coming in Stauder (1969) followed by Internationale Handelsgesselschaft (1970) in which the Court held that the general principles would be drawn from the traditions common to the constitutions of the Member States and further, from international human rights treaties as per Nold (1974). Thus, the Constitution of the EU became stronger, the Court emphasising that the fundamental principles had to be secured within the framework of the EU so as to not impact on the primacy of EU law.

Firstly, it is necessary to examine how the development of fundamental rights arose in order to assess how far the EU can be seen as ‘constitutionally limp’. In the early years, in cases such as Stork (1959), the ECJ refused to accept claims on the basis of fundamental rights by applicants because they feared it may affront the primacy of EU law. Nevertheless, as the integration project

Nevertheless, the weaker nature of EU fundamental rights was noted amongst the national courts with the German Constitutional Court in Solange I (1973) stating they reserved the right to exercise jurisdiction when they felt that EC law was not securing their own conception fundamental rights to the required standards. However, as the EC became

surer of itself and the CoJ began to protect fundamental rights to a greater degree, the Solange II litigation showed that MSs were beginning to accept that fundamental rights of the EU were reaching the required level of protection. Institutional acknowledgement of the importance of fundamental rights began at Maastricht in 1992, followed by progressive legislative recognition in the Charter of Fundamental Rights being ‘solemnly declared’ at Nice in 2000 (although it still did not have legally binding effects). One might argue that ‘full codification’ of fundamental rights came at Lisbon in 2009 and the CFR’s status as one of the primary sources is now secured in Art 6 TEU. However, the codification of EU FRs into the Charter proved controversial as MSs were wary of the encroachment into their natural autonomy in the form of ‘competence creep’. Thus, Poland and the UK negotiated Protocol 30 which was intended to codify the principle that the Charter was not intended to extend the competences of

However, in the post-Charter years there was some confusion as to how far the Charter was applicable to the Member States. The position of the EU was clear, in the Preamble to the Charter it is stated that one of the aims of the Charter is to create an ‘ever closer union’, thus suggesting the Charter is a proxy for the shared values that are supposedly inherent amongst the population of the EU. But problems stemmed from this ‘process of deeper integration’, not least because the CoJ began to interpret the scope of the Charter widely. Thus, in AMS (2011) the Court held that some of the provisions of the Charter could have horizontal direct effect, although they did not link this to the ‘rights’ and ‘principles’ distinction as laid out in AG Cruz Villalon’s Opinion. In Akerberg Fransson (2013) the Court held that, following the ERT line of caselaw, the Charter should apply whenever MSs were acting ‘within the scope of EU law’, a broader notion than merely ‘implementing’ as laid out in Art 51 CFR. This was contrary to AG Cruz Villalon’s Opinion who argued that the Court should decline jurisdiction, and if not, that the imposition of administrative and criminal penalties would be acceptable so long as they were not arbitrary. But as Hancox (2013) notes, in this broad notion of the scope of the Charter, this can have profound effects on the legitimacy of the vertical divisions of power within the EU.

THE COURT HELD THAT A NATIONAL CONSTITUTION PROVISION WHICH OFFERED THE SAME LEVEL OF PROTECTION AS THE CHARTER WAS PERMITTED, SO LONG AS IT DID NOT AFFECT THE ‘PRIMACY, UNITY AND AND EFFECTIVENESS OF EU LAW.’ Moreover, in a judgment handed down on the same day, in Melloni (2013), the Court held that a provision of the Spanish Constitution would have to be disapplied as it prohibited trials in absentia, whereas the

Charter permitted this. The Court held that a national constitutional provision which offered the same level of protection as the Charter was permitted, so long as it did not affect the ‘primacy, unity and effectiveness of EU law’. This suggests again that the CoJ is alive to the notion of an ‘ever closer union’, but this ‘deeper integration’ comes at the cost of substantial restrictions on national autonomy, especially given the fundamental status of the continental constitutions, as a matter of domestic law. Indeed, Grousset et al (2013) warned of the ‘federalising nature’ of the Charter, imposing a uniform structure of fundamental rights upon MSs. Grousset argues that the textual language of the Charter in Art 51 suggests that the Charter will only apply whilst ‘implementing’, now ‘within the scope’ of EU law. It might be thus said that in Hernandez (2014) the Court has reigned back somewhat from its wide net of ‘scope of EU law’ as tighter conditions have been laid out for ‘implementation’ and this was soon followed by Siragusa (2014) which suggests the Charter will only apply where there is a ‘certain degree of connection above and beyond being closely related to EU law’.

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Review Order (2015) case heard in the German Constitutional Court. Whilst the GCC should have declined jurisdiction under Melloni because the European Parliament had expressly legislated in the field of the European Arrest Warrant, the GCC considered themselves competent to review the case and held that they reserved the right to impose higher standards of protection in the sub-set of identity review concerning human dignity. Concluding, it has been argued that undoubtedly the field of fundamental rights arose from a constitutionally limp EU but the impetus given by successive institutional acknowledgements led to the eventual codification of the Charter at Lisbon. Nevertheless, as the most recent case law of the 2010s shows, this area remains fraught with difficulty, resting as it does not only on a moralistic basis whose extent may vary amongst Member States, but also on the boundaries of competence between the EU and MSs.

However, the caselaw of the CoJ is not consistent, and most recently in Delvigne (2016) the CoJ held that a French ban on prisoners voting fell within the scope of the Charter. Korzenov (2016) criticises the circular nature of the Court’s reasoning and suggests that the Charter should not have applied. This imposition of a uniform standard of Charter rights in a situation where it is at best ambiguous whether it applied should be avoided. Furthermore, as Vanessa Franssen (2014) argues in relation to the Melloni case, the imposition of secondary legislation concerning procedural rights is often enacted as the lowest possible common denominator amongs Mss. Following the Lisbon Treaty and the removal of the need for unanimity in voting, this will bind MSs that did not even vote for such laws. Melloni and Siragusa can also be criticised in the way that, as Dougan (2015) argues, this seems to move the permissive question of how far the Charter can intrude into MS constitutions under Art 53 to the proscriptive question of the Charter’s application under Art 51. Although the desire to uphold the primacy of EU law can be justified in the need to resolve a conflict under Art 53, the same cannot be said of Art 51 if the Charter does not apply in the first place. Finally, the deeper integration is still controversial and in recent times we have seen a semi-resurgence of the national courts. Thus, Anagnostaras (March 2017) warns of a ‘Solange III’ in the Identity

EASTER 2018

Essays

Land Law

A further issue regarding this ‘uplift’ effect, which Tee has persuasively criticised, is that, following the recent case of Wood v Waddington, absurd results are possible. Imagine such a factual scenario. A owns a large plot of land with a farmhouse and adjoining farm. A regularly uses his toilet in his farmhouse from his farm. If the farm is then transferred by legal disposition to a purchaser, can this right be ‘uplifted’ to a legal easement? Following Wood v Waddington, which confirmed the approach in Platt v Crouch, the answer would be ‘yes’, as there was ‘continuous and apparent use’ prior to disposition (assuming that s.62 is not expressly excluded). This is an absurd result which leaves the operation of s.62 in disarray, as its potential to imply unwanted and absurd easements (without the filer of requiring prior diversity of occupation) sees no potential bounds.

LAND LAW ‘The current rules permitting the creation of easements non-expressly--by implication or prescription--are grounded in neither principle nor policy, yet easements created in this way are capable of binding the servient land forever. Arguably, if parties desire to create an easement, they should be required to do so expressly, via a deed and registration.’ Discuss. Gareth Goh | St Catharine’s College The Law Commission in 2011 criticised the rules permitting the implied creation of easements and in response, suggested abolishing the common law modes of prescription and replacing them with a statutory test. A similar proposal was made regarding the implication of easements. It will be argued that a requirement of substantive registration is pragmatic and desirable, but only if there is necessary assimilation with freehold covenants as well, in the ultimate interests of clarity and legal certainty.

THE ISSUES OF PRESCRIPTIONver, The fundamental issue with prescription as a method of acquiring an easement is its fictional foundations. Traditionally, at common law, if an easement had been used for at least 20 years, it was presumed that it had been used since ‘time immemorial’ (1189). The issue with this presumption

was that it was too simple to rebut by the landowner. Thus, the doctrine of lost modern grant arose, against based on a fiction not only of grant before time immemorial, but that the grant had been ‘lost’. Such legal fictions are undesirable. In response to these issues, the Prescription Act 1832 was enacted, yet this has only created more difficulties and confusion. As Gale argues, it introduced more uncertainty than there previously was by not abolishing the common law rules and providing an alternative avenue where the requirements are practically the same, if not harder to satisfy since the easement must have been exercised 20 years prior to an application being made. The further provision of 40-year acquisition adds nothing to the first method and goes to illustrate its internal incoherence. Indeed, Holdsworth has described the Act as ‘defective’, and the Law Commission noted that it was one of the worst Acts ever drafted.

THE ISSUE OF IMPLIED EASEMENTS This analysis will be split into two sections, looking at the faults of s.62 LPA 1925 firstly, and secondly at the implication of easements through either necessity or common intention. S.62 LPA 1925 is controversial because it allowed mere personal licences that were enjoyed as the servient land prior to a legal conveyance to be ‘uplifted’ into a legal easement. This has potentially acute consequences if the parties are not aware of the ability of s.62 to do this (even if s.62 can be explicitly excluded in a conveyance). So in a case like Goldberg v Edwards, what was initially a gratuitous promise turned into a legal easement when a leasehold agreement was finalised, departing from the actual intention of the parties. This cannot be right.

What are we to make of the multitude of tests used for implied easements? The Law Commission argues that the use of so many methods (necessity, common intention and Wheeldon v Burrows) is bound to instil confusion in light of the distinction that is drawn between implied grants and reservations as well. Douglas has recently argued against any purported confusion, contending that all of these tests essentially amount to an investigation into the intention of the dominant landowner. He argues that it was explicitly recognised in Borman v Griffith that the test in Wheeldon turned on intention, and Douglas uses the case of Wheeler to show that, even where the requirements under Wheeldon have been satisfied, the courts

have not necessarily implied an easement. Similarly, Douglas argues that the test for necessity and grant and reservation is also based on intention (using dictum in Re Webb’s Lease to demonstrate this), and that the differing approaches to implied grants and reserveations that the Law Commission comment upon is accounted for by the evidential difficulty of showing an intention to impliedly reserve, as opposed to impliedly grant. If we are to accept Douglas’s argument, then the Law Commission’s rejection of these ‘multiple tests’ has less force.

A WAY FORWARD SUBSTANTIVE LEGISLATION? First and foremost, it would be pragmatic to abolish both the common law methods of prescription and the flawed Prescription Act 1832.

THERE ARE SOUND POLICY REASONS BEHIND ALLOWING EASEMENTS TO BE ACQUIRED BY PRESCRIPTION (EVEN IF THE METHODS OF CURRENTLY DOING SO ARE FLAWED) Secondly, Douglas argues that if we were to deprive s.62 of its ‘uplifting’ effects, this would also be to deprive it of any use, and therefore it should be repealed.

PER INCURIAM

Thirdly, even if we do accept Douglas’s argument that the courts are applying a unitary test of intention when trying to imply easements, this does not militate against reform. The fact that he has to work so hard to find a fundamental test underpinning implication of easements in principle shows that there remains a lot of prima facie confusion, and that a singular test, in line with Douglas’s findings, should be adopted.

But would a requirement of substantive registration for all easements be desirable? There are sound policy reasons behind allowing easements to be acquired by prescription (even if the methods of currently doing so are flawed). If a right has been exercised without violence, permission or secrecy for 20 years, and the dominant landowner has active knowledge of this, it would be harsh to straightforwardly prevent the use of this purported easement without justification – if it has been accepted that assurance by silence can be enough to constitute an estoppel claim (e.g. Matharu v Matharu), then surely use for 20 years should be sufficient ot establish an easement. With regards to implied easements, it is submitted that their ability to bind the servient land forever as an overriding interest under Schedule 3, pa.3 LRA 2002 does provide strong weight in favour of abolition. Furthermore, the ability of s.62 to ‘uplift’ licences to easements can have absurd consequences and can often derogate from the intention of the parties. When combined with Wheeldon, necessity and common intention, the potential for confusion is limitless (especially now that the distinction between Wheeldon and s.62 has diminished due to Wood v Waddington). In the interests of legal certainty, such a position is unsustainable. The suggestion to allow only registered easements to be enforceable is pragmatic and desirable, but it is important to prevent any potential overlap with the enforceability of freehold covenants, should the Law Commission’s suggestions be taken and a new propriety right of the ‘land obligation’ is introduced. In fact, in the interests of holistic and complete clarity, it is submitted that both suggestions should be adopted, therefore creating a system of easements and covenants (which necessarily overlap) whereby they can be easily discovered and not disadvantage potential, careless purchasers.

EASTER 2018

Essays

Law of Tort

there must be something “egregious” and a high degree of unreasonableness is required in order to break the causal chain. As Wright v Cambridge Medical Group itself suggests, a late diagnosis is not such an event as to break the causal chain, and is simply a reality in hospitals. Thus, we must continue on the presumption that the causal chain is not broken. However, K might have the partial defence of contributory negligence, as L might have herself been careless by crossing the road when she did (Law Reform (Contributory Negligence) Act 1945), as in London Passenger Transport v Upson and Fitzgerald v Lane. However, it is notable that, under Gough v Thorne, the age of the claimant is relevant in assessing the standard of care to be expected. L, 12, would however probably still be expected to take care of obvious dangers, like crossing the road safely. So, on the facts, contributory negligence could be made out, meaning that liability is apportioned as the judge thinks is fair (s1(1) LR(CN)A 1945).

LAW OF TORT Mohib Nadeem | Sidney Sussex College One Saturday morning Ken, an elderly man in the early stages of senile dementia, was driving his car along a high street when he lost concentration and began looking around at the shop windows. (His son had recently suggested to him he might no longer be safe to drive, but Ken did not remember the conversation after it took place.) At that moment Lauren, a 12 year old girl, stepped off the pavement without looking (because she was playing a virtual reality game on her mobile phone). Ken did not notice Lauren, his car struck her and she was flung into the air, knocking Matt, a window cleaner, off his ladder and onto the pavement. Ken was unhurt, but Lauren suffered a head injury in the collision and Matt broke his spine. Lauren was rushed to hospital, where a newly qualified, exhausted junior doctor Neil omitted to carry out a CT scan of her brain. Several hours passed before a second, more experienced, doctor carried out the scan, which diagnosed bleeding on the brain; this bleeding in turn caused Lauren to develop irreversible brain damage. There is a good chance the brain damage could have been prevented by an operation if the bleeding had been spotted sooner, though there is a slim chance that the operation to reduce bleeding on the brain might itself have caused brain damage. Lauren’s mother Olive gave up her lucrative job as an investment banker to care for Lauren, and is financially

considerably worse off as a result. Lauren died six months later. Matt’s spinal injury meant that he had to give up work as a window cleaner. Before the accident, he had worked for Phil and had been Phil’s most profitable employee. In fact, Phil was wholly dependent on Matt for the success of his window cleaning business, which went bust three months later. Advise the parties as to their rights and liabilities in tort.

LAUREN (L) V KEN (K) The first issue is whether L has a claim against K in negligence. This is a straightforward duty situation, as a driver owes pedestrians a duty of care (Nettleship v Weston), and must have them “in his contemplation” when driving as people he is to take reasonable care not to injure (Donoghue v Stevenson). The issue of breach is slightly more contentious. In Roberts v Ramsbottom, it was found that someone driving with awareness of an impairment to his ability to drive is negligent if he continues to do so (this part of the judgment is approved in Mansfield v Weetabix). However, K was unaware, even if told that he should not drive due to his dementia by his son, so perhaps Mansfield v Weetabix is applicable as the standard of care is that of a driver who is unaware of an underlying condition

impairing his ability to drive. However, it was unclear whether K knew of his condition—he had merely been told that he probably should abstain from driving. So, there might well have been a breach of the standard of care owed by a reasonable driver (Nettleship v Weston). Indeed, this could just have been an unacceptable lapse of concentration while driving.

THE ISSUE HERE IS WHETHER THE DOCTOR’S SUBSEQUENT NEGLIGENCE CONSTITUTED A NOVUS ACTUS INTERVENIENS.

Finally, the issue of damages comes in. Olive (O) would be able to recover for quitting her job, with the judge awarding those damages to L, who would then hold them on trust for O. Moreover, for the interim period of 6 months between the tort and death, any loss of amenity and pain and suffering would be recoverable (L probably had no earnings at 12 years old) under the Law Reform (Miscellaneous Provisions) Act 1934, with s1(1) allowing the action to survive under L’s estate, and the damage is not exempted under s1(2)(a)(i) or s1(2)(a)(ii). Under the Fatal Accidents Act 1976, O would recover for L’s death (s1A(1)(3)(i) or (ii)—legitimacy is irrelevant as the mother can always recover) under bereavement.

This would be £12,980 under s1A(3). Notably, since the injuries are indivisible, following Dingle v Associated Dairies, if Neil (N) is found to have been negligence, K could recover under s(11) of the Civil Liability (Contribution Act) 1978. Notably, any contributory negligence deduction would have to be made before an apportionment under s2(1) (Fitzgerald v Lane).

LVN The next issue is whether N was negligent in L’s brain damage claim. Firstly, duty is again straightforwardly made up as doctors owe patients a duty of care (i.e. Barnett v Chelsea and Kensington Hospital Management). The standard of care to be expected of N, a newly qualified doctor, is the same as that of the reasonable doctor in his profession (Wilsher v Essex AHA). This is because otherwise the standard of care which the patient can expect would be totally luck based (Lord Mustill). Thus, while the senior doctor did the scan and found the bleeding, N did not, so probably breached his duty. Causation is the next issue. This would have to be a loss of a chance claim, which the courts have been reluctant to allow (Hotson v East Berkshire HA), and L would have to show on the balance of probabilities that her brain damage was caused by N’s carelessness. This would be hard to prove, especially with the potential issue of surgery making it more difficult. However, we are told she lost a good chance of recovery and the operation would only have a “slim” chance of curtailing this. So, it may be found that N was negligent and caused L’s brain damage.

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Much the same applies as with K with regards to damages if negligence is found, and a recovery can be made under the CL(C)A 1978.

MATT(M) V K M might have a negligence claim against K. This would be based on his careless driving and M’s subsequent injury. A duty of care may be made out. However, M may not be a foreseeable claimant, as his injury was occasioned by L flying into him, which seems rather unforeseeable, depending on the circumstances (Maguire v Harland). However, if M was a foreseeable claimant, and K breached his duty to M, the damage is not too remote as it was reasonably foreseeable physical injury (Wagonmound (No 1), Hughes v LA) though outlier cases like Doughty v Turner and Tremain v Pike suggest that the precise sequence of events matters. M could, if not too remote, therefore recover for his lost income subject to tax removal (British Transport Board v Gourley).

PHILIP (P) V K The next issue is whether P could recover from K for his lost employee and damage to his business. P did not suffer any direct damage himself from K’s act, rather losing an employee and therefore profit. West Bromwich Albion FC v El-Safty suggests that this is pure economic loss and so there is no duty of care. While M was P’s employee whom a duty would have been owed, the same could not transfer to P, as such a duty of care was never assumed over P. Thus, P cannot recover from K in negligence.

Causation is another issue. It is clear that K is a but-for cause of L’s eventual death. However, the issue here is whether the doctor’s subsequent negligence constituted a novus actua interveniens. The Oropesa states that in order to break the chain of causation, something entirely “unwarrantable or unreasonable” must occur, “extraneous or extrinsic” to the initial tort (i.e. in Knightley v Johns). Here, it is unclear whether the doctor’s negligence passes this threshold. As stated in Wright v Cambridge Medical Group, mistakes in hospitals are relatively frequent, and so

EASTER 2018

Essays

Legal History

LEGAL HISTORY Where Maitland saw royal initiatives in deliberate opposition to the world of feudal courts, Milsom proposed royal acceptance of the feudal world and a series of attempts to make it function according to its own norms but which had the wholly unintended and accidental effect of destroying it.’ (MACQUEEN) Discuss.

RIGHT VS SEISIN This aspect has two main points: (a) the issue of whether the world was vertical or horizontal and (b) the degree of Roman law influence in English law at the time. (a) Vertical vs Horizontal Maitland argued that the concepts of heritability, right and seisin had all existed by the date of the Conquest (1066). Working from Bracton, he considered the right to be equivalent to Roman dominium and seisin to be equivalent to possessio. Thorne suggests this is further due to Maitland’s belief that land was inherently heritable since then. However, Thorne adduces evidence to show that land was not heritable until at least the 1200s. Milsom builds up on this view and suggests that this was because there was no ‘right’ of succession but merely an expectation on the part of the heir that he would be seised of the land through his lord. For

THE ROLE OF ROYAL AUTHORITY Having dealt with the conceptual question, I will move on to consider, firstly, the writs and secondly, Henry II himself in trying to ascertain how far and whether if royal institutions ‘destroyed’ the feudal jurisdiction. (a) The Real Actions

Azfer Ali Khan | Magdalene College The quote in question is from an article by MacQueen, who succinctly summarizes the contribution of commentators on early English land law. I will therefore discuss these views, which largely centre around Maitland’s assertion that royal institutions were an attack on feudal jurisdiction and Milsom’s suggestion that it was never meant to cut across the grain of Henry II’s own world. I conclude by suggesting that the position was likely somewhere in between, to be found within Ibbetson and Biancalana’s writing, and this is largely due to the nature of the sources Maitland and Milsom used.

with the infusion of Roman ideas whereas Maitland may have delved into them too much. The argument, I suggest, is that the main source of civil influence might well have been Henry II’s closest advisors, many of whom were learned in civil law. If that can be true, then at least arguably, we must prescribe Henry II a greater role in bringing about the end of the feudal jurisdiction than what Milsom suggests.

Milsom, seisin was a purely English idea, representing a relationship between two people, unlike possessio which was a relationship between a person and a thing. Central to Milsom’s analysis is the concept of a ‘feudal state in miniature’, first coined by F. Stenton, suggesting that each lordship/manor was very largely independent from Royal jurisdiction. However, recent academics have suggested otherwise. Firstly, it is not entirely certain whether Milsom’s use of the concept of the feudal state in miniature is wholly correct. This is because royal writs clearly existed by the time of Henry I, the evidence Stenton himself uses is largely from the exceptional time (the Anarchy under King Stephen, parts of north England which had little royal control) and it seems to be ahistorical since, compared to continental kingship, English kings were generally considered authoritative and seen as the guardians to prevent injustice. Secondly, Brown has criticized Milsom’s work as not representing what life was actually like, Hyam further suggests that Milsom’s view was that of an Angevin lawyer’s ideal. However. This criticism is not persuasive, since Milsom’s main sources are plea rolls and the book Glanvill, he was never trying to answer the question of what a layman’s life was like. Lastly, Milsom’s work has been criticized for failing to deal with how far Roman law may have impacted English and this in turn depends on both the nature of the writs and the existence of trained civil lawyers within Henry II’s personal circle. I shall discuss the latter aspect first, and then move on to the writs.

MILSOM DID NOT SUFFICIENTLY RECKON WITH THE INFUSION OF ROMAN IDEAS WHEREAS MAITLAND MAY HAVE DELVED INTO THEM TOO MUCH.

The writ of right patent was arguably introduced sometime in the 1150s. On the face of it, it is clearly directed against the lords to do right for a tenant. In so far, Milsom is arguably spot on, however, he goes further to argue that it was the warranty which obliged a lord to take no action against a sitting tenant and thereby, through tolt and pone, remove the case of the King’s court. This may not be right. As Hudson points out, warranty existed in the 1100s even for personal property. Biancalana further adds that the writ patent might have worked both ways until the 1150s – that by Henry II’s time, it is clear that is used upwards, as against lords only.

(b) Roman Law and its Influence Milsom largely fails to deal with aspects of Roman legal thinking on how it impacted the development of the law in England. Maitland suggested that the assize of novel disseisin was based on the actio spoilii, but Richardson and Sayles convincingly suggest that the actio spoilii was not understood enough by 1066 to have had an impact on the writ. Indeed, the right answer may lie with the interdict unde vi, and Sutherland convincingly points to the similarities: (a) recovery of possession, (b) chattels being put back, (c) being available against the current possessor. There are differences, like unde vi was available against heirs and that there was no jury in Roman law. To develop this point further, Cheney suggests that proprietas and possessio were already being used on ecclesiastical assets by the 12th Century, and Tate argues that English lawyers would not have answered questions in a legal vacuum: that it is more than likely to have been a borrowing of ideas if not wholesale adoption, from the civil law tradition. Therefore, we can safely conclude that Milsom did not sufficiently reckon

The assize of mort d’ancestor was formed on the basis of the assize of Northampton 1176, and it is clearly seen in the assize that the writ was meant to be used against the lords.

Milsom’s main argument stems from the assize of novel disseisin and the Case of the Countess Amice: Milsom said that the assize was only upwards looking, dealing with ‘seigniorial abuse’, and that it was intended to be asserted against lords only. He argues from the wording of the writ itself: (a) unjust and without judgement refuses to a lack of judgement on the part of the lord’s court, (b) seizing of chattel through distraint and (c) only a lord would have a bailiff. These suggestions are not entirely convincing. Unjustness and without judgement may simply be meant to exclude cases where a judgement is rendered, the chattels may be an aspect of the claim itself (like unde vi) and bailiff may just be allowed to make the process more efficient. Indeed, Glanvill’s three examples on novel disseisin suggest something along the lines of neighbouring disputes: raising a level of a mill pond etc. In 1152 a case was heard which alleged disseisin by one tenant against another tenant. Brand is therefore probably right in suggesting that novel disseisin was aimed at simple disorder, and was not meant to be purely vertical. Sutherland’s suggestion is also sound: that we have no convincing evidence that it was only a vertical remedy. Milsom’s concept of seisin as opposed to right is also not convincing. In 1132, Emma daughter of Grimsbald alleged both seisin and right, which suggests that to the mind of the common persons and indeed the lawyers, there were other reasons for imposing their obligations besides the warranty; and this must be correct from all the evidence I have discussed so far. Hudson attributes this to very strong social perceptions and customs and is arguably correct, but I suggest that legislative authority in the background may also be an important factor.

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(b) The Role of Henry II Hyam and Hudson both attribute to Henry II a high degree of legislative authority. As I have shown, his closest advisors were learned in civil law (especially Beckett). Biancalana’s view is also convincing: all legislative activity was a response to the belief that the King and the lords had to work together to ensure justice. This would therefore justify Royal interference and also limit it. This is perhaps especially true since the whole feudal system was still new, and both aspects (King/Lord) were working on a policy of compromise. Indeed, the Cartae Baronum of 1166 suggests the lords turned to the King for help when faced with a problem, and legislative interference was always present, for example the Staturium Regis on distraint before 1166. Therefore, the lord’s jurisdiction was never unfettered and it was always up to the King to ensure justice.

CONCLUSION Ultimately, with regards to the conceptual question, Ibbetson is arguably correct in suggesting that even at the time, there may have been competing conceptions of what right/seisin or property might have meant. With regards legislative intention, Biancalana’s nuanced view is appealing for it gives Henry II a degree of responsibility for consciously causing the collapse of the feudal structure. Ultimately, it was no grand plan, and this is largely evidenced in the fact that changes happened at different points in time, but the effect was that by 1290 and Quia Emptores the jurisdiction of the lords had nearly been abolished in favour of the Royal courts – and in consequence, the common law dawdled into existence.

EASTER 2018

Essays

Contract Law

of doing anything wrongful, was seen in Cheese v. Thomas. Birks and Chin thus argue that undue influence is not based on D’s wrongdoing at all, but rather on the nature of the relationship between D and C placing C in a position of acute vulnerability and justifying the courts’ intervention to set aside the ensuing transaction.

IF C’S LACK OF CONSENT IS TRULY THE BASIS FOR UNDUE INFLUENCE, THEN IT SHOULD – TAKEN TO ITS LOGICAL CONCLUSION – RENDER THE TRANSACTION VOID RATHER THAN VOIDABLE, WHICH IS NOT CURRENTLY THE POSITION.

CONTRACT LAW What is the basis of the doctrine of undue influence? Undue influence has frequently been seen as an ill-defined and amorphous doctrine, and the case law reveals a judicial reluctance to define its basis precisely – in Allcard v. Skinner, Lindley LJ remarked that “no court has ever attempted to define undue influence”; and in Etridge, Lord Clyde commented that undue influence is “more easily recognised than exhaustively analysed in the abstract”. This is perhaps understandable given the variety of means by which “influence” can be exercised and the multitude of forms it can take, as well as the indeterminate nature of the qualifier “undue”. This essay will argue that, while various theoretical bases have been suggested for the doctrine of undue influence – on the two ends of the spectrum, the claimant-sided explanation put forward by Birks and Chin on one hand, and the defendant-sided explanation argued for by Bigwood on the other hand – the basis of undue influence is ultimately to be found in the relationship between the parties as providing both the backdrop to the claimant (C)’s consent, explaining why it is not treated as legally effective and thus can render the transaction voidable, as well as the particular nature of the defendant (D)’s wrongdoing. It will therefore be argued that Chen-Wishart’s ‘relational’ analysis of undue influence is the most convincing synthesis of the various aspects of the doctrine.

Yenjean Wee | St John’s College DOCTRINE OF UNDUE INFLUENCE – PROTECTING C’S VULNERABILITY? The language used in the case law often seems to suggest that the basis of undue influence is C’s impaired consent in entering into the transaction. For example, in Etridge, Lord Nicholls stated that as a result of undue influence C’s consent could not be

“treated” as a genuine manifestation of her intention. Birks and Chin therefore argue that the purpose of the doctrine of undue influence is to protect claimants who are excessively dependent on the defendant and who are therefore in a particularly vulnerable position. They point to the case of Allcard v. Skinner, where the devotee was held to have been unduly influenced by the Mother Superior into giving up

her worldly possessions even though the Mother Superior could not be said to have acted reprehensibly in any way. Similarly, in Simpson v. Simpson, where an elderly man left his belongings to his third wife, the court said that it would be “embarrassing” to cast aspersions on the wife’s behaviour. A similar emphasis on the fact that, by making a finding of undue influence, the court was not accusing the defendant

Notwithstanding this analysis, the majority of academic opinion is not in favour of the purely C-sided rationale Birks and Chin propose. In particular, Birks and Chin’s argument can be criticised on the ground that it is premised on a very narrow conception of ‘wrongdoing’ – just because D did not engage in “wicked exploitation” (Bigwood’s phrase), Birks and Chin would deem undue influence to be only claimantsided. However, the incompleteness of their proposed explanation is reflected in the fact that it does not adequately explain the other ‘ingredients’ of undue influence established by the case law: not only must there be a relationship of trust and confidence (either based on one of the standard relationships earmarked in the case law, such as solicitor-client, or on the particular facts), there must also be a “suspicious transaction that calls for an explanation” (Etridge), which shifts the onus onto D to rebut the inference of undue influence by showing that C acted of her own free will. The latter two elements suggest a greater degree of culpability on D’s part than the Birks-Chin thesis can fully account for. Furthermore, if C’s lack of consent is truly the basis for undue influence, then it should – taken to its logical conclusion – render the transaction void rather than voidable, which is not currently the position.

A RIVAL BASIS FOR UNDUE INFLUENCE – PUNISHING D’S WRONGDOING In light of these criticisms, Bigwood proposes an alternative analysis based on which undue influence is rationalised as a

D-sided doctrine punishing D’s wrongdoing – understood in the broader sense of D’s failure to fulfil a fiduciary duty to practise self-denial imposed on him due to the fiduciary nature of his relationship with C, for “policy reasons”. Bigwood’s analysis helps to explain more fully why it is D who is ‘punished’ for the undue influence operating on C, by linking the role of the specific defendant and his failure to take steps to ensure that C was acting independently to his culpability in that context, and thereby more adequately accounting for the ‘corrective justice’ dimension of undue influence. However, Bigwood’s argument – as he acknowledges – finds little support in the case law, with Lord Scarman’s rejection of a ‘public policy’-based approach to undue influence in Natwest v. Morgan and the House of Lords’ subsequent omission to discuss any fiduciary-duty-related underpinning of undue influence in Etridge. Bigwood’s definition of ‘wrongdoing’ is thus perhaps also too narrow to provide a satisfactory theoretical basis for undue influence, although his later suggestion that D’s culpability to take steps to free C of undue influence – his “transactional neglect” – when D knows they are “bargaining under conditions that make exploitation possible” helps to explain the nature of D’s culpability. This is in line with the observations made by the court in Brocklehurst’s Estate, that D’s fault lies both in what he does do and what he fails to do in the context of his relationship with C.

PER INCURIAM

imbalanced against C. This argument should be treated with caution as the courts are not currently recognised as being able to review the substantive fairness of transactions; but to the extent that the obvious unfairness of the resulting transaction can provide useful evidence of the parties’ relationship and its possible ‘undue’ effect on the transaction, it can be endorsed. As Bigwood also acknowledges, it is the parties’ relationship and D’s failure to take the expected level of care in these circumstances to protect C that elevates his actions into a “higher order of wrongdoing altogether”.

CONCLUSION In conclusion, the basis of the doctrine of undue influence is difficult to define, but it must ultimately be seen as a combination of both concern to protect C’s vulnerability and ensure her free consent, and the need to punish and curb D’s wrongdoing, more broadly understood. It is the z between the parties that both marks it out for the law’s attention and makes otherwise innocuous acts “legally relevant” (Chen-Wishart), where such acts might not be captured by other doctrines like duress. Ultimately, the relational analysis thus supplies both the normative and descriptive bases of undue influence, explaining why D’s conduct is culpable in this context and accounting for the doctrine’s development in the case law.

A SYNTHESIS THE ‘RELATIONAL’ ANALYSIS Given that neither a purely C-sided nor D-sided basis for undue influence is satisfactory, it is here argued that ChenWishart’s ‘relational’ analysis, synthesising the two lines of reasoning, should be preferred, albeit with qualifications. Chen-Wishart argues that it is not a binary choice between the two and that both are necessary to explain undue influence – as the preceding analysis has sought to show. Rather, it is the relationship between the parties that both supplies the reason why C’s consent is more easily impaired, and the particular reason why D’s conduct in this relationship of trust and confidence – whether by active persuasion or by omitting to ensure C’s independence – is singled out as blameworthy: the close relationship between the parties places D under an enhanced duty to empower C to exercise her “specific transactional judgment” in the particular transaction. Chen-Wishart also argues that the substantive fairness of the decision plays a role here, using the example of Credit Lyonnais v. Burch to illustrate that the courts are more likely to find undue influence if the resulting transaction is inherently oppressive or

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Use your work experience to full effect. It doesn’t matter whether your work experience is in a legal or non-legal role. Put it in and tell us what you learned from it.

We have opportunities for all law and non-law students and graduates – from first year to final year and beyond. Applications open on 1 September 2017 for our winter vacation scheme, summer vacation schemes and our first year programme, Ahead with Ashurst. Applications open on the 1 october 2017 for September 2020 and March 2021 training contracts. closing dates vary and we recruit on a rolling basis. please visit our website for more information.

Begin now at www.ashurst.com/careers

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