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

PER INCURIAM MICHAELMAS 2018

LAWTECH IN THE LEGAL ECOSYSTEM The new technological era of law

TALKING LEGAL TECH AND INNOVATION WITH SLAUGHTER AND MAY Technology in the life of a solicitor

MICHAELMAS 2018

President’s Welcome

Editor’s Message

PRESIDENT’S WELCOME

EDITOR’S MESSAGE

DEAR READERS, Welcome back to the Michaelmas edition of Per Inc! A huge word of thanks to our dedicated Per Inc editors – Tatiana, Edgar, Roystan and Meg – who worked tirelessly to put together this Michaelmas edition for our readers.

Gabriel Wang | President

In this edition, we have compiled a selection of interesting articles and topscoring Tripos scripts that will definitely help you start the term on the right foot. Per Incuriam magazine has grown from strength to strength over the years, and has become a go-to publication in Cambridge for excellent law academic essays and enriching articles. We are also proud to have started an online platform where students can go to get updates on current legal issues and topics. All of these are instrumental to our learning and encourage us to venture into new, unexplored areas of the law.

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DEAR READERS, To the new freshers, I would also like to extend a warm welcome to you on behalf of the Cambridge University Law Society (CULS). CULS is one of the oldest (founded 1901) and most active societies in Cambridge. There is something in it for everyone. We run a vast array of social and career events, speakers events, pro bono projects, mooting, editorial productions and more. Per Inc is an integral part of our society.

Welcome to the Michaelmas 2018 issue of Per Incuriam, the Cambridge University Law Society magazine!

Tatiana Kurschner | Editor-in-Chief

We would also like to thank you for your support for Per Incuriam. Moving ahead, we would like to continue growing the magazine for our readers for many more years to come. Wishing you a fruitful Michaelmas term!

Roystan Ang | Deputy Editor

Warm regards, Best wishes, Gabriel Wang President

Edgar Lee | Deputy Editor

On behalf of the Per Inc editorial team, I wish you all a wonderful start to the year and the best of luck with your academic pursuits. We are excited to welcome all of the newly-matriculated students to CULS and to Cambridge, and to warmly welcome back those returning for their second and third years. As October is a time for fresh beginnings in Cambridge, I am happy to announce that Per Incuriam is doing things a little differently this year – our team is working hard to curate a series of articles related to a central theme for each issue, shining a spotlight on different thought-provoking aspects of legal study and practice. The Michaelmas issue touches on the use of technology in the practice of law, an issue that is becoming increasingly important to both commercial law and the accessibility of the family and criminal law systems. Our law and technology feature includes an introductory overview of the lawtech ecosystem by Elizabeth Huang, which is certain to help develop your understanding of the scope of technology in the modern legal landscape and help you ace your commercial awareness interviews. This is followed by three features from different players in the field of legal tech – Cambridge graduate and startup founder Ludwig Bull, legal access startup LexSnap, and Magic Circle firm

Meg Gibson | 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.

Slaughter and May – which we hope will give you a richer understanding of the many ways in which technology is weaving its way into our legal landscape. As always, we have included an impressive series of tripos essays – many of which received starred firsts – to help you gain your footing in your new modules. For first years trying to find their way through the maze of the tripos, we have included one essay from each of the core subjects; for second and third years, we have included a mix of core and optional modules. We hope that you find these essays, and those previously published in Per Inc (accessible online), helpful in your studies. Finally, we encourage you to visit our online platform (accessible via the CULS website) for a collection of critical commentaries on legal developments written by undergraduate students here at Cambridge. The platform is currently onto its second year, and we look forward to its continued growth and success as a platform for students to read – and write – about legal issues reaching beyond the confines of our studies. Thank you to the CULS committee for its continued support of Per Incuriam, and to my fantastic Deputy Editors, Edgar, Meg, and Roystan, for the work they have put in to make this issue possible. We hope you enjoy the issue! All the best, Tatiana Kurschner Editor-in-Chief

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 ARTICLES

‘RUMBLE IN THE JUNGLE’: LAWTECH IN THE LEGAL ECOSYSTEM Elizabeth Huang

THE IMPACT OF CHANGING LEGAL SKILLS REQUIREMENTS ON LEGAL WORK AND TRAINING Ludwig Bull & Hannah Gilliland

LEXSNAP: NEW POCKET LAWYER POWERED BY AI LexSnap

TALKING LEGAL TECH AND INNOVATION WITH SLAUGHTER AND MAY Slaughter and May

6 10 12 14

ESSAYS

CIVIL LAW Aaron Gan

CRIMINAL LAW Amber Turner

CONSTITUTIONAL LAW Ernest Goh

INTELLECTUAL PROPERTY LAW Chris Taylor

EU LAW Jennifer Shelley

COMPARATIVE LAW Yen Jean Wee

LAW OF TORT tan ning-sang

CONTRACT LAW Ernest Goh

16 18 20 22 24 26 28 30 5

MICHAELMAS 2018

Articles

‘Rumble in the jungle’: Lawtech in the legal ecosystem

demonstrates a deeper understanding of how the legal industry works (avoiding the common pitfall of overusing buzzwords). The relationship between lawyers and clients is at the core of the legal industry. Before any relationship exists, the client must first find a suitable lawyer. Given the large number of lawyers available, each with their own specialities, the process of finding a lawyer is not always easy. Cue lawtech: companies like JustBeagle act as digital legal marketplaces, enabling users to compare law firms and leave reviews, much like they would on websites like TripAdvisor. The advantage to customers is that this saves time, while fixed fees pricing may lead to a ‘race to the bottom’ that will lower costs. The client-lawyer relationship itself is often also highly collaborative – clients may want to provide input on draft contracts, prospectuses, dispute resolution strategies etc. Many document management lawtech

FOR BOTH CLIENTS AND LAWYERS, LAWTECH CAN PROVIDE SIGNIFICANT ADVANTAGES.

‘RUMBLE IN THE JUNGLE’: LAWTECH IN THE LEGAL ECOSYSTEM

Elizabeth Huang “We are all connected in the great circle of life,” says Mufasa in The Lion King – not only is this a helpful piece of wisdom, it is also a golden clue in the law student’s hunt for that elusive beast, ‘commercial awareness’. Like the savannah, the legal industry can be thought of as an ecosystem comprised of various species (‘stakeholders’) who interact with each other in a range of complex ways (‘processes’). Those of you familiar with Christopher Soakes’ useful book All You Need to Know About The City will recognise this ecosystem metaphor in his descriptions of the financial markets. Disruptive legal technologies have implications for the whole ecosystem. If we want to understand lawtech’s holistic significance, we must first understand how the different components of the legal industry are interconnected.

This article will provide a helpful tour of the legal ecosystem, examining how stakeholder and process-based analyses can improve our understanding of the roles played by emergent lawtech. Lawtech refers to the use of technology within the legal industry, typically driven by the desire to improve efficiency or reduce costs. The industry, though new, is currently growing rapidly. In 2017, investment in UK lawtech start-ups reached £16m and some start-ups, such as Neota Logic and RAVN, have reached a mature stage, with annual revenues of £5m or more.1 Lawtech applications are many, ranging from case outcome prediction and software which can draft contractual documents to social justice litigation crowdfunding and chatbots which dispense free legal advice. Lawtech

offerings can be divided into several distinct categories: legal marketplaces to connect clients and lawyers, ‘law for good’, workflow management, contracts, compliance and analytics (see Legal Geek’s helpful ‘Startup Map’).2 This division emphasises a processbased analysis of the industry – identifying the relationships at its core provides a framework for understanding the different niches occupied by lawtech. The three relationships we will be exploring are: the relationships between lawyers and clients, among legal professionals, and between lawyers and courts. We will also consider a stakeholder-based analysis of lawtech developments to illuminate why different parties are interested in lawtech. Thinking about lawtech from these two different angles provides a well-rounded analysis that

products also provide means for clients to edit and comment, reducing time spent on tedious back-and-forth with lawyers. Lawtech can also be of use when the client-lawyer relationship comes to an end. LaywerTime, for example, is a web-based billing software which aims to streamline timekeeping and invoicing. This task is rendered faster and more accurate, ideal for lawyers who want to focus on more valuable tasks. For both clients and lawyers, lawtech can provide significant advantages. That said, it is often worth thinking about how such developments affect the balance of power between various stakeholders. The trend seems to be that lawtech is shifting power towards clients, as lawyers must make their work more collaborative, and present transparent time-breakdowns. All of this means greater scrutiny by clients, which places greater pressure on lawyers to justify their working methods and fees. Lawyers might be far more interested in supporting the development of lawtech that will benefit them, e.g. workflow automation, rather than supporting technologies that actively challenge their position in the legal ecosystem. Per Incuriam’s previous lawtech coverage has already discussed the ways in which lawtech might affect legal professionals.3

Typical examples of lawtech in this area include automatic document drafting, AIsupported document analysis, and end-toend transaction management (examples include Legatics and Luminance, start-ups supported by City power players Allen & Overy and Slaughter and May). Instead of repeating ourselves, we will explore how the process-based analytical approach might be helpful here. Although complex, much of the work done by lawyers can be broken down into individual tasks. At each of these stages, we can ask how lawtech might be used to reduce the time taken to complete them, improve the accuracy of the work and increase the reliability of the conclusions reached. This approach chimes with the extremely exciting concept of ‘legal design’: the idea that we should be focusing on the human user experience within legal systems “to understand where the crucial breakdowns in the system right now exist — and to make the creative leap to define what a better system might be.”4 Learning to think in this way opens up a vast number of possibilities to lawyers and is a powerful tool we can adopt in honing our commercial awareness. British courts are also profoundly alert to the necessity of modernising and integrating new technologies. On the practical side, courts recognise the problems posed by increasing delays and chronic under-resourcing. On the principled side, serious concerns have been voiced about the implications of austerity for access to justice, which in turn threatens the courts’ legitimacy. The courts are adopting lawtech by dealing with simple offences or disputes through automated decision-treebased judgments, switching to paperless trials through the Digital Case System, and implementing cloud-based services for the judiciary.5 More radical proposals also suggest the possibility of using lawtech to assist in judicial decision-making (Bloomberg’s Litigation Analytics is used by lawyers to predict how different judges will respond to the case). Modernisation could save the taxpayer up to £252 million a year, making such proposals popular with government too.6

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The government is motivated by its desire to preserve the status of the UK’s worldleading legal services sector, currently worth around £24bn. In the light of uncertainties generated by Brexit, the government is unsurprisingly keen to identify other avenues through which the UK legal industry can differentiate itself. The “unprecedented institutional interest in legal tech” highlights the macroeconomic importance of lawtech and explains governmental buy-in.8 This illustrates nicely that parties may be interested in the future of lawtech for several reasons. Without a crystal ball in hand, we cannot be sure what the true extent of lawtech’s impact on the legal industry will be. One thing, however, is clear: the proliferation of lawtech will have significant consequences for all stakeholders in the legal ecosystem and could dramatically streamline the processes that currently interlink them. One last question we might ask (and legal design thinking is crucial here), is how lawtech might not just change, but radically transform the legal industry. While current lawtech products tend to suggest improvements for existing processes, there remains the possibility of paradigm shifts that could reshape the legal ecosystem – could a stakeholder group go extinct (think about the possible impact of online courts or AI-driven justice)? Could some processes be totally automated or even removed? Would this change the way we engage in legal reasoning and think about the law itself? These are enormous questions to leave you with (the sorts which Richard Susskind touches on in his thoughtprovoking book Tomorrow’s Lawyers: An Introduction to Your Future), but ones which will hopefully provide enriching food for thought, as we attempt to grasp the big picture when it comes to lawtech in the legal ecosystem. 1

‘UK lawtech start-ups – who are the movers and

shakers?’ Thomson Reuters 2-20 Sept 2018. 2

‘Legal Geek Startup Map’ Legal Geek 20 Sept

2018. 3

See: ‘Artificial intelligence doesn’t mean the end

of lawyers – at least not yet’ Elizabeth Huang 20 Sept 2018.

The government is an important stakeholder in the legal ecosystem, as its strategic decision-making has ripple effects for the whole industry. In the UK, the government has been highly proactive. Recently, the Lord Chancellor announced a new industryled governmental panel to support the development and adoption of new legal technologies. The panel is intended to work in tandem with the government’s £20 million fund to facilitate partnerships between businesses and technology researchers.7

‘Legal Design WTF?’ Legal Geek 20 Sept 2018.

‘Modernisation of justice through technology and

innovation’ HM Courts and Tribunal Service 20 Sept 2018. 6

‘The rise of the online courtroom’ Raconteur 20

Sept 2018. 7

‘Lord Chancellor announces new panel to boost

Law Tech industry’ Ministry of Justice 20 Sept 2018. 8

‘UK Government Increases its Support for Legal

Tech’ Artificial Lawyer 20 Sept 2018.

A unique opportunity We’re looking for exceptional, entrepreneurial and ambitious individuals to join our growing team. If you are naturally curious, tend to think outside the box and are fun to work with, we want to meet you. To learn more about our Training Contracts, Open Days, Vacation Schemes and other opportunities, please visit our website: www.gibsondunn.com

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Laws, international markets, global institutions… all changing every day. So how do we, as an international law firm, create the agility of mind that enables us to guide some of the world’s most influential organisations into the future? By allowing bright people the freedom to grow. By training lawyers in a way that develops a closer understanding of clients through working on a wider range of transactions. By fostering an ethos of knowledge sharing, support and mutual development by promoting from within and leaving the clocks outside when it comes to billing. To learn more about how our key differences not only make a world of difference to our clients, but also to our lawyers and their careers, visit

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MICHAELMAS 2018

Articles

The impact of changing legal skills requirements on legal work and training

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(online - https://www.information-age.com/artificialintelligence-in-the-legal-industry-123473948/).

THE IMPACT OF CHANGING LEGAL SKILLS REQUIREMENTS ON LEGAL WORK AND TRAINING Ludwig Bull | Cambridge Graduate and CTO of CourtQuant Hannah Gilliland | Cambridge Graduate Technology is opening up a new legal skills sector which will disrupt and reshape the legal market over the coming decades. The article will examine the impact of this change on both legal work and legal training. Legal work will require a new approach to recruitment, while legal training will need a curriculum that is conducive to the creation of legal engineers. Due to the advent of smart systems and technology, legal skills requirements are changing, and previously coveted skills may no longer be necessary for legal work. For example, skills that are largely related to data-based tasks, such as the drafting of documents, are less likely to be viewed as valuable as technology develops. Instead, it has been suggested that soft skills, such as teamwork and team management, will become more highly prized, as will the combination of legal skills paired with technological proficiency. At present, most law firms outsource their technology internally or externally to software specialists, but this can leave law firms open to a lack of innovation. If law firms were instead to begin recruiting legal engineers who had a detailed understanding of both the law and technology, benefits from more organic innovation could be reaped. Thus, current recruitment practices will need to change. Instead of an overwhelming preference for academic knowledge, law firms may begin to prioritise hiring lawyers who demonstrate an ability to understand, and work with, technology.

IT IS IMPORTANT THAT FUTURE LAWYERS ARE EDUCATED AND AWARE OF THE DESIRED CHANGE IN LEGAL SKILLS REQUIREMENTS. The change in legal skills requirements will therefore also have an impact on training and law schools. There will be a need to create entrepreneurial future lawyers who have a more nuanced understanding of the legal tech marketplace, necessitating changes to law school curriculums. A movement towards integrating technology within the legal curriculum has already been seen in the US – for example, Berkeley Law offers over 20 technology courses a year. Legal training also appears to increasingly favour a more practical approach, with a shift towards clinical legal education within law schools (whereby the learning environment is made to resemble in some way the real world). This can be seen at Harvard Law School, where the Clinical Program offers both In-House Clinics and Externship Clinics to provide hands-on experience for their law students. The changing nature of legal skills and the need to create legal engineers means practical technology training will likely become more important for future curriculums. If UK

universities want to have a say in the future of the legal profession, they too need to ensure their students are equipped to deal with new legaltech problems. In ‘Tomorrow’s Lawyers’, Susskind writes that the future will bring less traditional lawyer roles, and rather new lawyer employers and roles will be created.1 In light of this, it is important that future lawyers are educated and aware of the desired change in legal skills requirements. Indeed, Alvin Lindsay, a partner at Hogan Lovells, recently noted that ‘it is so important – especially for younger lawyers – to actively track the advances in AI, use it to innovate, harness its power and avoid the fate of toll-collectors’.2 The reshaping of legal work and legal training means that in order to stay ahead in a competitive job market, future lawyers should ensure their technological skills develop alongside their legal skills. To conclude, the change in desired legal skills is having and will continue to have a large and increasing impact on legal work and training. To prepare for the change, law firms need to update recruitment practices to cultivate legal engineers, while law schools must ensure their training will effectively equip their students for the information age. 1

Susskind, R. An Introduction to your future.

Ismail, N. Artificial Intelligence in the legal industry:

Adoption and strategy Part 1

MICHAELMAS 2018

Articles

LexSnap: New Pocket Lawyer Powered by AI

appropriate professional support with one of our partner law firms, but which substantially reduces the consultation costs and time billed by a lawyer. Secondly, we licence our software to law firms, allowing them to place our tool on their own website and access a greater pool of clients. LexSnap was founded by Tetiana Bersheda, a Cambridge-educated Swiss lawyer currently living in London. While practicing law for over 10 years, it became clear to her that the profession is on the brink of serious transformation. Tetiana saw this as an incredible opportunity to lead the charge into a new era of legal

service provision. In the last decade, the legal profession has remained largely untouched by technological innovation – particularly the day-to-day reality of legal work. This industry is highly risk averse and there is a real sense of concern regarding technological innovation encroaching into people’s livelihoods. Tetiana’s experience, however, has led her to the realisation that innovation in legal services is something to be welcomed. Technology has a great potential to increase efficiency and to allow lawyers to focus their efforts on the work that really matters – namely legal argument and reasoning – rather than on repetitive

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tasks and paperwork. Exploitation of these benefits will require multidisciplinary skills and a good team composed of both lawyers and computer scientists. LexSnap’s offices are part of the LawTech Lab incubator launched by Barclays Notting Hill, London in summer 2018. LexSnap is offering internships to law students and always looking to hire young and dynamic lawyers aspiring to demystify law and provide legal services in a modern way. Check how it works on www.lexsnap. com. 1

Responsive justice: How citizens experience the

justice system, Citizens Advice, p. 9.

LEXSNAP: NEW POCKET LAWYER POWERED BY AI

LexSnap is a London-based legal tech start-up that aspires to provide affordable, jargon-free legal advice to users through its online automated platform across all areas of law and across jurisdictions. This is a hugely ambitious vision for the future. The company has by now developed a ‘Question and Answer Platform’, designed to deliver first aid legal advice to users in family law. This first achievement of LexSnap corresponds to a particularly strong need for increased access to family law counsel because of the area’s sheer ubiquity. More than 1-in-10 adults in England and Wales have been involved in a case in the family courts in some capacity. Furthermore, private family law cases, such as those concerning divorce and custody, were those most affected by the cuts to Legal Aid in 2012. According to the Office of National Statistics, there were 19 million families in the UK in 2017. If, on average, each family

is composed of two adults, this suggests that the potential customer base for LexSnap is at least 10% of 38 million, i.e. 3.8 million potential customers. The need for legal advice is universal and once LexSnap has established itself as a leader from within the UK, there is strong potential to expand on a global scale, with an initial focus on the US market. The potential for growth here is enormous: the size of the US legal market alone is estimated at over $USD 437 billion (Reuters, Legal Executive Institute). The LexSnap model is easily translated into other legal systems. Our innovative platform combines Natural Language Processing and AI with a legal knowledge database compiled by professional lawyers. The potential for this technology is enormous: it is capable of offering legal advice to users in any area of law and in any jurisdiction that our legal knowledge-base covers. The innovation that the business is centred around is

an automated matching tool through which laypeople are able to gain a basic understanding of their legal situation, irrespective of how they ask their question

TECHNOLOGY HAS A GREAT POTENTIAL TO INCREASE EFFICIENCY AND TO ALLOW LAWYERS TO FOCUS THEIR EFFORTS ON THE WORK THAT REALLY MATTERS or how they frame their issue. Such a tool can provide users with 24/7 access to legal information that they can trust, and could supply legal advice to an unlimited number of users. LexSnap exploits the technology in two ways: first, we provide users with legal advice through our own platform, providing a triage service that signposts users with complex legal issues towards

MICHAELMAS 2018

Articles

Talking legal tech and innovation with Slaughter and May

Our clients look to us to help them manage the legal risks associated with emerging technologies and the regulations which

EMERGING TECHNOLOGY IS HELPING US WIN INTERESTING AND COMPLEX WORK surround them, as strategic business advisers, so we need to be up to the task. For example, I helped write a joint paper with a data science consultancy on the responsible deployment of AI solutions in business – combining legal and technical perspectives, in order to give our clients the best practical advice on managing realworld risks which are associated with this sort of tech.

TALKING LEGAL TECH AND INNOVATION WITH SLAUGHTER AND MAY

We profiled a cross-section of Slaughter and May lawyers to get their take on how legal tech tools and innovation affects what they do day-to-day, giving different perspectives on the tools of the lawyer of the future and advising clients on emerging technology.

THE TRAINEE Victor Chu (Trinity Hall, 2013), Trainee It’s easy to see the ways in which legal tech is making my job easier. For example, reviewing large numbers of documents is vitally important to helping our clients understand the value and risks of a potential company acquisition, and is a common trainee task. Unfortunately, it can also be quite time-consuming! Thankfully we have Luminance, an AIpowered tool which helps us review documents in less time, but more accurately. The pattern-finding algorithms built into the platform quickly identify clusters of documents that have similar characteristics

(e.g. structure and clause wording), helping us to find and address the anomalies which may interest our clients. This frees up more of my time to get stuck into a complex research task or some bespoke contract drafting, allowing me to develop the skills I will need as a qualified lawyer. Luminance also cuts down on the mountains of dead rainforest which used to dominate document review processes! Helping a transaction run smoothly is a big part of my job, and crucial to the value Slaughter and May is able to offer our clients. Our Tiki-Toki software makes this simple, as we can provide our clients with a graphical interface to show in real time how their deal is going through the updates I make, and to help them plan for what is coming up next. Before starting my training contract, I expected the legal training to be of a high quality, but I was pleasantly surprised by the focus on legal tech training. Alongside tools such as proof-reading

Other examples include blockchain and smart contracts, which are currently big buzzwords in industries such as financial services and supply chain. Slaughter and May is part of the Accord Project, which is seeking to set legal as well as technical standards in this exciting new area. Our

involvement continues to help build our insight into the legal challenges this technology will throw up, while allowing us to give input on what the contract of the future will look like. I am witnessing first-hand how this focus on getting a head start on emerging technology is helping us win interesting and complex work, with clients coming to us for advice on how to make their specific blockchain-based solutions work in the local and global legal landscape.

THE INNOVATOR Jane Stewart (Pembroke, 1999), Head of Innovation The firm’s early investment in, and partnership with, Luminance has allowed us to help shape its functionality as a specialist tool for corporate lawyers, meaning it is tailor-made for enhancing the performance of our review teams and giving them back valuable hours. Our corporate teams are not alone in turning to AI solutions to improve the

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speed and accuracy of their reviews. Global investigations into alleged wrongdoing by banks and others can generate enormous quantities of documents to be processed by our dispute resolution teams, and intelligent software is key to being able to find any needles in a very large haystack. Electronic signing, which is becoming increasingly common, is another example of legal tech adding value for our clients. Quill and ink went out the window a while ago – our clients can now sign documents using their smartphone, tablet or computer (a feature that one of our clients recently found helpful when sailing on his boat!). At Slaughter and May, we certainly don’t expect to see these new technologies replace lawyers. Legal tech for us is a tool, used to augment the capability and output of our lawyers and to improve our efficiency and the experience of our teams in their work. This is an exciting time to be a junior lawyer, and there are lots of opportunities ahead to take advantage of emerging technologies and approaches.

software, which are becoming standard in the legal world, there really is a strong focus on equipping us to make efficient use of the innovative software which Slaughter and May is driving forward in the market. This leaves trainees free to carry out tasks which require more detailed or dynamic engagement. This training is combined with efforts to help us understand the legal tech that is transforming how we provide top-class legal services, developing our technical skills alongside our legal skills.

THE ASSOCIATE Harry Vanner (Queens’, 2010), Associate, Technology and IP Our client-focused approach means that we always need to be one step ahead of the curve, so that we can answer the questions our clients spring on us about the latest technology and the legal ramifications which may flow from it.

MICHAELMAS 2018

Essays

Civil Law

have acquired formal ownership (dominium) and is thus mere possessor.

CIVIL LAW ‘Explain when, how and why the possessory interdicts and the Actio Publiciana could be used to protect possession, and discuss their implications for the Roman distinction between possession and dominium.’ Aaron Gan This essay shall respectively explain when, how and why the possessory interdicts and the Actio Publiciana could be used to protect possession, before discussing the extent to which they blurred the distinction between possession and dominium. In general, these forms of protection of possession offered by the praetor conflated and converged the acquisition, rights and protection afforded by possession and dominium. As Buckland surmises, the principle underlying the possessory interdicts was that the possessor should not be evicted without legal cause. As the name suggests, the interdicts could be invoked when a holder of a res had interdictal or legal possession (possessio). First, possession had to be legally recognised as giving rise to protection, the requirements of which are corpus and animus (Paul). Corpus meant that the holder had physical control (detentio; possessio naturalis); animus requires either the holder to behave and treat the res as if he were the dominus (the Savigny-Paul narrow view) or the mere awareness or consciousness that he was in physical control of the res (the Jhering broad view). In reality, the Roman approach was rather casuistic and examples of possession that was protected by the interdicts include the bona fide and mala fide possessors, the pledge creditor (in pignus), the stakeholder (in depositum sequester), the emphyteuta, and the dominus in physical possession of the res. Second, the interdicts required the above elements of possession to be met for the better part of the year during the classical period and in total in the time of Justinian,

with respect to the opponent or potential dispossessor, in order to be afforded protection at law. This is with the possible exception of unde vi Armata (below). When these conditions were met, the possessory interdicts could be used to protect possession as follows. As to ‘how’, the praetor gave interdicts to both ‘retain’ and ‘recuperate’ possession, to use the Latin jargon. These will be explained in turn. In respect of retaining possession, the praetor gave the interdict utrubi for movables and uti possedetis for immovables; utrubi could also be used for recovery in the classical period. The way this worked was that when a dispossessor was seeking to physically evict the interdictally protected possessor from the res, whether land or movables, the praetor would state in the formula of utrubi and uti possedetis that the possessor was not to be removed from the res by force. This was, in effect, a restraining order to prevent a potential dispossessor from physically evicting a current possessor – an injunction in the modern world. In respect of recovering possession, the interdicts were unde vi and unde vi Armata. This worked when the interdictally protected possessor had already been physically removed from the property by the dispossessor, unde vi ordering the dispossessor to restore possession to the one he removed from the property. In the above cases, the interdictally protected possessor was the one who, with respect to his opponent, possessed for the greater part of the year or in total under Justinian. In the case of unde vi Armata, however, any (emphasis) possessor who was removed from the

property by ‘a band of armed men’ may recover possession against his dispossessor by the interdict. As to why the possessory interdicts were introduced to protect possession in the above manner, it is submitted that the praetor intervened with the interdicts to provide certainty and stability in the law of property. First, given that the question of ownership was far more cumbersome to determine, involving both the ad exhibendum to first produce the res and then the rei vindicatio by which the dominus had to positively prove title, the interdicts provided legal certainty in according possession in line with the relatively straightforward rules outlined above. As will be argued below, this also made the determination of the question of ownership more convenient. Second, the principle underlying the possessory interdicts was that no man should be evicted from the property without legal cause. Again, this provided a more certain and convenient way of enforcing property rights without the cumbersome process of having to prove dominium, thus stabilising the acquisition and retention of property in Rome. (Much of this is equally applicable to the Actio Publiciana). The Actio Publiciana could be used when the bona fide possessor was being evicted from the property by anyone except the true dominus, and anyone including the true dominus in the case of the possessor in bonis habere (sic: ‘bonitary’ owner). This would typically arise when res mancipi were conveyed by traditio instead of the formal ius civile modes, i.e. mancipatio or in iure cessio. The holder of the res would not

As to ‘how’, in 67 BC the praetor Publius introduced the Actio Publiciana and accompanying exceptio and replicatio. Importantly, being modelled after the actio rei vindicatio, this could be used to protect possession quite apart from the interdicts. The formula of the Actio Publiciana was based on a fiction that the relevant possessor had fulfilled the necessary time period for usucapion; if the other requirements for usucapio were met, the holder’s possession was protected as if he was the dominus. If the possessor was removed from the res by a third party (or the dominus in the case of the bonitary owner), he could straightforwardly bring the Actio Publiciana to recover possession. If, then, the dominus pleaded the exceptio iusti domini (the defence that he was the true dominus), the bonitary owner had the replicatio rei venditae et traditae (reply that the res was sold and delivered). If the true dominus sought to recover possession by the actio rei vindicatio, the bonitary owner had the exceptio rei venditae et traditae (Latin for defence that the res was sold and delivered), allowing him to resist the rei vindicatio of the dominus. It must be acknowledged that the bona fide possessor who acquired from the non-owner could not use the exceptio or replicatio successfully against the true dominus; and his own vindicatory action (Actio Publiciana) would be resisted by the exceptio iusti domini. (The Actio Publiciana could also be used for valid transactions other than emptio venditio, such as the exceptio rei donatae in the case of gifts.) In addition to the reasons given above, the Actio Publiciana was also introduced for pragmatic purposes. First, it allowed the growing commerce of an expanding Roman empire to flourish without the need for cumbersome formalities in the conveyances of res mancipi. Owing to the praetorian protections, the relevant possessors could engage in trade without having to be impeded by the prospect of later being evicted due to defect in title. Second, it pragmatically prevented a kind of fraud on part of the venditor, as acknowledged by Thomas and Buckland. It would have been grossly unjust if the true dominus who had conveyed by traditio pursuant to a valid contract of sale could later use his formal title to evict the possessor, and the praetor rightly corrected this in favour of protecting the possessor. The possessory interdicts and the Actio Publiciana potentially blurred the distinction between possession and dominium in the following three ways. In terms of acquisition of ownership, they

demonstrated that possession was crucial to the question of ownership. Put another way, dominium was now highly dependent on possession, and no longer an independent and stand-alone concept as before. As Thomas and Birks acknowledge, the possessory interdicts determined who was plaintiff and who was defendant in a later vindicatio claim. The possessor protected by interdict, in effect, had the right that the burden of proof was thrown on his opponent; and it was particularly difficult to positively prove good title in early Rome, especially so when there had been no formal mode of conveyance. Thence, when the true dominus had lost possession, his dominium over the res became inextricably linked to and even dependent on the antecedent question of

THE POSSESSORY INTERDICTS AND THE ACTIO PUBLICIANA POTENTIALLY BLURRED THE DISTINCTION BETWEEN POSSESSION AND DOMINIUM possession. Gaius recounts in this regard that, due to the sheer difficulty of proving good title, many an owner qua owner might choose not to pursue a rei vindicatio after having lost possession, blurring the distinction between dominium and possession. In the case of the Actio Publiciana, usucapio possession (possessio civilis) enabled interdictal possession to ripen into dominium after the relevant time period for usucapion had passed from fiction (in the formula) into reality. This again shows that the relationship between dominium and possession had become far more intricate than Ulpian’s maxim that ‘title has nothing in common with possession’, for possession here could ripen into title. Second, the rights exercisable by the possessor began to converge with the rights of the dominus. When we think of dominium, we think of it as the only real right (ius in rem) that one might have in a piece of property – to the exclusion of all the world. However, by the Actio Publiciana, the bona fide possessor (of which the possessor in bonis habere was a species) was now able to exclude all the world from the res, and, in the case of the bonitary owner, the ‘possessor’ in bonis habere was even able to exclude all the world including the true dominus. So powerful were the rights of the possessor in bonis habere that the Byzantines called this a kind of ‘bonitary ownership’. This has serious technical

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implications. On the one hand, the rights flowing from these categories of possession were now virtually indistinguishable from the rights flowing from dominium itself, viz. the ability to exclude the world. On the other hand, dominium could now be subject to possessory rights through the praetorian actions, far from the absolute and perfectly exclusionary nature of dominium prior to the Actio Publiciana. Similarly, the possessory interdicts may be seen as a subspecies of vindicatio. Whereas the actio rei vindicatio allowed the dominus to, inter alia, regain possession, so too did the possessory interdicts (unde vi), even to the exclusion of the dominus. Not only were the rights exercisable by possession and dominium converging, possession sometimes even ‘trumped’ dominium, calling into question the traditional distinction. Third and finally, in spite of the above conceptual changes brought by the possessory interdicts and Actio Publiciana, the one longstanding distinction between possession and dominium remained – namely that dominium was still, in the words of Buckland, the ultimate legal title beyond which there was no other. Taking the example of the rights of the bonitary owner against the true dominus flowing from the Actio Publiciana, even though the bonitary owner was effectively exercising the rights of the true dominus to the exclusion of all the world, the formal legal title, of which there was no other, still vested in the true dominus – for the bonitary owner only had a kind of interdictal or usucapio possession. It is this absolute and formal title, even if amounting to nothing in substance, that could never be taken away from the dominus, unless of course dominium was validly acquired by another. This essay has shown that the workings of the possessory interdicts and the Actio Publiciana had truly blurred the distinction between possession and dominium, to the point of challenging Ulpian’s maxim that ‘title has nothing in common with possession’. However, the one concept that always remained true to this distinction was that dominium was still the absolute and ultimate title, even if merely formal (Buckland).

MICHAELMAS 2018

Essays

Criminal Law

(Norrie) this is consistent with the objective standard used in duress.

CRIMINAL LAW

POTENTIAL REFORM

‘So long as there is this objective element in the standard by which a person’s reaction to duress by threats is to be judged, we find it hard to see how the person of reasonable firmness can be invested with the characteristic of a personality which lacks reasonable firmness.’ (Emery (1992)) In light of this quotation, discuss the use of objective standards in the defence of duress, and contrast it with the use of objective standards in other defences in criminal law. How, if at all, should this aspect of these

The objective standards used in duress and loss of control seem to be explained by the categorisation of those defences as excusatory. If D’s conduct is prima facie wrong, he should be required to show a high standard of justification for his actions, based on the fact more could not be expected of him as anyone would have acted as he did. For the Law Commission and Lady Hale to argue in favour of allowing an honest belief, in duress, then, seems to require less of D. Given the restriction of duress it is submitted such an extension can be supported, as there is no threat to innocent lives. Consider this: 1. D1 is threatened by C that if he does not steal from the shop he will kill D’s wife. D is partially deaf and unreasonably paranoid, and what C actually said was no threat at all, but

an enquiry to the health of D1’s wife. Scared for his wife’s life, D1 steals from the shop. 2) D2 has a fear of black men, as she believes they are violent. Thus, when V, a black man, approaches her to ask for directions, she fears for her life and hits him with her umbrella, breaking a bone. In these scenarios, D1 seems far less culpable than D2, but D1 would have no defence to a theft charge while D2 would escape conviction for a non-fatal offence against the person. Reform of duress to encompass honest beliefs would therefore be appropriate. The defences are reliant on objective standards, which is detrimental to Ds unable to reach those standards. For example, the defendant in Bowen had a low IQ and could not show reasonable firmness, but and because of this he could not use the defence of duress. In Elliott v C, the same was true when D could not

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have perceived the risk. The objective standard of recklessness has since been abandoned (G). Allowing a general defence of diminished responsibility or expanding insanity and making it a more appealing plea would offer refuge to these Ds, while protecting the objective standards in the other defences which are so necessary.

CONCLUSION Objectivity has been rejected as a concept in recklessness but not in the defence. This harms Ds incapable of reaching an objective standard and is therefore unfair. However, the objective standards in the defences should be kept to protect the integrity of those defences and instead alternatives for incapable Ds should be created.

defences be reformed? Amber Turner An objective standard of reasonableness is used at two points in the defence of duress: first, the defendant (D) must have a ‘reasonable’ belief in a threat of serious injury, death or rape (R v A) (Graham, confirmed in Hasan), and second, a sober person of ‘reasonable’ firmness must have been expected to react as D did. Even where the objective standard of reasonableness is used in self-defence, the standard is not truly objective. It will be argued that this imbalance can best be explained using the distinction between excusatory and justificatory defences, and that the best way to resolve the problems associated with an objective standard would not be to reform the defences themselves, but to make improvements elsewhere, particularly in the law on insanity and capacity, to ensure Ds are not held to standards which it is impossible for them to reach.

OBJECTIVE STANDARDS IN THE DEFENCES Duress As above, two objective standards are used in duress. The reasonable belief standard has been criticised by both the Law Commission and Lady Hale in Hasan, who would prefer that an honest belief in a threat be sufficient. The key reason

to support such a change may be that an honest belief is all that is required in self-defence (Gladstone Williams, s76 of the Criminal Justice and Immigration Act 2008). However, a different standard is inappropriate in duress given the likelihood that a victim of a crime committed by a D under duress will sometimes, if not often or principally, be innocent. Thus, greater justification for the crime is needed. This may also link to the exclusion of the defence from murder as a principal and an accessory (Wilson) and attempted murder (Howe). As the victim will usually be innocent, the courts are unwilling to allow any argument that the murder was justified. Justification is the wrong language, however, as duress is a defence of excuse. As Robinson argues, in an excuse case it is recognised that the conduct was wrong but acknowledged that D’s state of mind means he should be excused. Calls for duress to be extended to murder are perhaps only tenable while the restrictions of objective standards are imposed, thus we may see the extension and relaxation as alternative, competing reforms.

assessed in light of the circumstances as D believed them to be. Nor does that belief in circumstances need to be objectively reasonable, provided it is honestly held. Thus, the objective standards used in self-defence are significantly less stringent and more subjective than those in duress.

OBJECTIVITY HAS BEEN REJECTED AS A CONCEPT IN RECKLESSNESS BUT NOT IN THE DEFENCE. If force is objectively disproportionate, or grossly disproportionate in a householder case (s76), then it is automatically unreasonable, but this is the only time objectivity is solely decisive. The rationale for this is that the victim will be the source of an unjustified threat to D, so D is right in using force to defend himself. There is no issue of excuse or whether D is sufficiently excused; he is justified until and to the extent that he reaches a very high standard of disproportionate.

Self-defence

Loss of control

Whether force used by D in the defence of himself, his property or someone he feels responsible for is reasonable is principally an objective question, but it is

The partial defence to murder requires that D acted in a way which ‘normal’ standards of self-control and tolerance are compatible. As the defence is excusatory

MICHAELMAS 2018

Essays

Constitutional Law

of government but not Prince Charles’ advocacy correspondence. The public interest therefore favoured disclosure of the relevant documents. The remarks in Millar fly in the face of established case law to the effect that courts can indeed determine the operation or scope of a convention, as they must do if conventions are to be in any way helpful to the resolution of a substantive legal problem.

NORMATIVE DESIRABILITY

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. Ernest Goh The court’s strikingly broad comment here with regards the legal position of political conventions is very much suspect. This is certainly the case on descriptive grounds, with reference to what previous courts have done with conventions, but also normative grounds, with regards the constitutional value of the underlying principles that conventions embody.

DESCRIPTIVE ACCURACY The majority’s suggestion that the courts are “neither the parents nor the guardians of political conventions” is not on its own terms inaccurate or objectionable, from an orthodox perspective at least. It restates the position of the court in cases like Madzimbamuto v Lardner-Burke, wherein

the court was “not interested” in matters like conventions, but the legal powers of Parliament. Even if the Southern Rhodesia Act 1965 was unconstitutional in its failure to obtain consent from the Rhodesian Legislative Assembly, it was not unlawful. Similarly, in Patriation of Canada, the court went so far as to positively declare the Canadian government’s failure to obtain provincial consent unconstitutional, but emphasized that it could not for this reason hold that its request for patriation had been unlawful. To the extent that the majority in Millar is merely stating that the courts cannot directly enforce the substance of a convention, this is not inaccurate on orthodox grounds.

However, the majority goes much further than that. According to them, whilst the court can “recognise” the operation of political conventions in the context of deciding a legal question, it “cannot give legal rulings on tis operation or scope”. This is surely inaccurate. In AttorneyGeneral v Jonathan Cape, the court considered at length the applicability of ministerial responsibility en route to a prima facie determination that it would be a breach of confidentiality to publish the Crossman Diaries. In the same vein, tasked with a determination of the public interest pursuant to the Freedom of Information Act 2000, the Upper Tribunal in Evans v Information Commissioner considered the scope of the education convention, determining that it extended to affairs

The majority’s remarks in Miller are also normatively objectionable. It is argued that the courts should indeed make much more substantive use of conventions than suggested. It does not follow that because “those matters are determined

THE COURTS MUST GIVE LEGAL RULINGS ON THEIR OPERATION OR SCOPE. within the political world” the court should have no greater part than to “recognise the operation of political conventions”. First, it is argued that conventions should be relevant as facts to which other substantive legal rules apply. By implication, the courts must “give legal rulings on [their] operation or scope”; otherwise they cannot be of any assistance whatsoever. Barber refers to this as “indirect enforcement”, and points to the aforementioned cases of Jonathan Cape and Evans as evidence that conventions can be of aid to the application of other substantive legal rules, even if their substance itself is not enforceable. He argues that, given that courts indirectly enforce all sorts of things – dictionary definitions, encyclopaedic references, and even a set of hand-written rules taped onto a municipal lawn-mower – that it ought to be uncontroversial to similarly treat conventions. If conventions are to be used simply as facts to which legal doctrines relate, the fact that they exist primarily within the political world is not an argument – a great deal of matters do, too, yet are relevant to the courts for those purposes. Second, it is argued that conventions should be used in an even more substantive manner –they should be interpretative aids to the construction of statute and other rules. By necessity, this once again requires a lucid judicial understanding of the “scope and operation” of conventions. Allan is quite right to note that constitutional conventions enshrine underlying normative principles that the courts would be foolish

to disregard. From the internal perspective of legal theorist, he reasons, in contrast with the external perspective of political scientist, conventions are not so dissimilar from law. He rightly draws upon the analogy of Robinson, wherein the court took notice of the Belfast Agreement in order to resist a literalist reading of the Northern Ireland Act 1998, which would have frustrated the purpose of the Act. Crucially the Belfast Agreement too was a “[matter] determined within the political sphere”, yet the court was surely right to avoid a naïve construction of the Northern Ireland Act 1998 by recourse to its underlying purpose. Furthermore, Parliamentary debates and legislative histories are, pursuant to Pepper v Hart, relevant interpretative aids, notwithstanding that they are most definitely political matters in essence. Therefore, it is argued that conventions should possess the same force. For instance, if the UK Parliament were to breach the Sewel Convention, legislating in respect of a matter reserved to the Scottish Parliament within the Scotland Act 1998, it is argued that the court should declare such behaviour as unlawful, making use of the Sewel Convention as a relevant aid in the Scotland Act’s construction.

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the aftermath of the House of Lords Act 1999 – the government argues it remains; the Liberal-Democrats disagree. The Ministerial Code establishes that a minister who misleads Parliament should normally resign, but the line between artful nondisclosure and willful misinformation is fine, and ought to be a political matter.

CONCLUSION Thus, even though the courts ought not to directly enforce conventions, they certainly must – and should – rule upon their operation and scope, in order that conventions might be of any use at all by way of interpreative aid and the like.

Third, and most controversially, should the courts directly enforce constitutional conventions? In Miller, this would have entailed a requirement of consent from the assemblies of the devolved nations in order for the UK Parliament to trigger Article 50. Allan argues that courts already do directly enforce conventions, because there is no clear divide between recognition and enforcement. In Jonathan Cape, for example, the decision necessarily entailed judicial support for the convention of ministerial responsibility. However, it is argued that the courts should not directly enforce conventions, not for any constitutional reason, but the pragmatic reason that conventions lubricate the workings of the British constitution. One of the functions of a constitution, says Feldman, is a “knicker-elastic” function – conventions evolve in order to accommodate political changes. However, judicial enforcement necessarily entails a degree of codification, and so resists the organic evolution of conventions. Barber argues that the essentially flexible nature of the unwritten constitution averts constitutional crises because there is no clear winner or loser; the parties revert to a stable modus vivendi. One exception to the aforementioned, and in agreement with the court in Miller, is in respect of a non-justiciable conventions. The scope of the Salisbury Convention, for example, is disputed in

MICHAELMAS 2018

Essays

Intellectual Property Law

Other examples include the ‘sound of a cockcrow’ in Shield Mark and the smell of cut grass for tennis balls. The point in all of these cases is that graphic representation is a high threshold for many exotic marks to traverse.

LIMITED DIFFERENCE OF EMPLOYMENT

INTELLECTUAL PROPERTY LAW

In light of the above, it is necessary to consider what changes may come from the Trade Mark Directive. It is submitted that in fact, there will not likely be many. The first significant reason for this is that

‘The elimination of the requirement of graphic representation with the adoption of the new EU Trade Mark Directive (see Art. 3(b) of Directive (EU) 2015/2436) is unlikely to result in great changes in the practice of trade mark law. At most, a safety valve has been removed that prevented the registration of marks facing bigger obstacles to registration.’

THE NEW TRADE MARK DIRECTIVE WILL NOT LIKELY CHANGE A HUGE AMOUNT IN REMOVING THE NEED FOR GRAPHIC REPRESENTATION. recital 13 of the TMD express incorporates the Siekmann 7 criteria into the new directive. This means that many of the old cases relating to durability and clarity will remain entirely valid. The further reason relates to the whole

Discuss. Chris Taylor INTRODUCTION This essay seeks to examine the likely impact of the 2015 Trademark Directive on the practice of trade mark law. It is first necessary to explain what the directive does, and how it differs from the current approach. It is then useful to consider whether some of the controversial cases decided under the old law might be treated any differently from now. As will be demonstrated, the differences are not likely to be overly significant. There may also be justified concern over the loss of the ‘safety valve’.

THE DIRECTIVE TAs things currently stand in the UK, a trade mark means any sign capable of “being represented graphically” which is capable of distinguishing the goods of one undertaking from those of another (s1(1) TMA 1994). The current requirement that the sign be capable of “graphic” representation is due to be changed by the 2015 TMD, once the UK takes steps to transpose it. This directive requires a sign to simply be “capable of being registered on the register in a manner that

enables the competent authorities and the public to determine the clear and precise subject matter of protection afforded to the proprietor. This provision has been seen by some as signalling a new approach to registration that might assist certain traders in the EU. Of course, most word or picture signs are capable of “graphic” representation very easily. More problematic has been the registration of “exotic marks”.

EXOTIC MARKS There have been many ambitious attempts in the past by traders to register unusual signs as trademarks. Under the current law, they have only met with limited success. In the Siekmann case, for example, the applicant attempted to register the smell of cinnamon for its business. To try and ‘graphically represent’ this, the applicant gave a description (smell of…), the chemical formula in a diagram, and the IUPAC name for the active ingredient. However, none of these were sufficient to amount to a graphic representation of

the smell. Neither was a deposit of actual cinnamon. The court in Siekmann laid down several criteria that must be fulfilled before a mark is capable of graphic representation. These are that the sign is:

• • • • • • •

Clear Precise Self-Contained Easily Accessible Intelligible Objective Durable

Applying these criteria, courts and the EPO have found many applicants to be undeserving of success. Thus, in Eden SARL v OHIM, it was held that the ‘smell of ripe strawberries’ could not be registered. This was especially so as the there was no indication of the variety of strawberry in question, and the deposited picture did not help. Similarly, in Libertel, the colour orange could not be registered as there had been no Pantone specification supplied, and the sample colour provided was not ‘durable’ as it would fade.

purpose of the register in the first place. The registration requirement not only means that the scope of the holder’s proprietary right is clearly outlined, but also that any competitor or potential market entrant can search the register before undertaking action that may potentially infringe. The register has to be understandable to the general public, otherwise it cannot usefully allow trade marks to be known to those looking at the register. This fact is reflected in the new directive, in that the public must be able to determine the precise subject matter of protection. It is clear that many of the public will be unfamiliar with strawberry varieties or IUPAC names for cinnamon, and so such attempts at registration will still potentially fail.

THE PROBLEMS A real difficulty with the new directive is that it may not have even been necessary, but risks opening the door to more confusing exotic marks. The law on trade mark registration was already fairly accommodating to exotic marks in some instances. For example, in Shield Mark, the stave of music for the first nine notes of Für Elise was held to be a

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graphic representation that was registrable. Similarly, in Nokia and in Sony Ericson, the applicants were able to register ‘motion marks’ on the register for their phone companies. These were capable of graphic representation, and fulfilled the Siekmann 7 criteria, especially if presented in the form of a flip-book (though this was not apparently necessary). Thus, there are many instances where the current ‘graphic representation’ requirement has adequately allowed for exotic marks to be registered. The only real instances where the directive is going to be of notable utility is in relation to sound marks, which although may be presently registered in appropriate musical notation, cannot be registered in the form of sound files or recordings. Following the 2015 TMD, such recordings/files may well be registrable, and this will admittedly be a benefit to those who would not be able to identify the first notes of something like Für Elise simply from a musical stave.

CONCLUSION Ultimately, it must be concluded that the new Trade Mark directive will not likely change a huge amount in removing the need for graphic representation. In reality, many exotic marks are already being accommodated under the current law, and the express incorporation of the Siekmann 7 criteria into the recitals is likely to continue preventing more dubious marks from being registered. In light of this, the TMD will bring little practical benefit beyond the context of sound and maybe motion marks. Yet in doing so, there is justified cause for concern at the loss of the useful ‘safety valve’ that prevented registration of marks that face bigger obstacles to registration. It is not likely that a great many unworthy marks will now be registered because of this change. However, the TMD is likely to lead to a renewed attempt by traders to register exotic signs under the new law. This in turn may have negative consequences for the registry in terms of time, cost and resources, and as has been clear for many years in the patent context (see Lemley), these administrative difficulties can lead to real problems with the operation of the register and substantive law later down the line. In this light, there may be concern that the TMD brings too little in terms of benefit, at the expense of creating several new problems.

MICHAELMAS 2018

Essays

EU Law

EU LAW

THE QUALITY OF HAZELNUT SPREAD WAS SUCH A CONTENTIOUS ISSUE IN THE ELECTION.

There has long been suspicion that large companies selling popular products like Hazelnut Spread use inferior ingredients in products they sell in Central and Eastern Europe. As a result, customers living near the German border tend to do their shopping in German shops rather than local Czech shops and buy products such as Hazelnut Spread there. The quality of the products, and the fact that locals do not shop locally, became an election issue in the Czech Republic. The incoming Czech government therefore committed itself to implementing the following measures: (i) To ensure the quality of Hazelnut Spread, a new law (the ‘Czech law’) will be passedspecifying that each jar of Hazelnut Spread must contain a minimum of 15% hazelnuts, 8% cocoa powder, and 55% sugar. The hazelnuts must be sourced from Italy which is considered to produce the best quality hazelnuts in the EU. Jars of Hazelnut Spread must contain a statement that the contents of the jars comply with the Czech law. (ii) Shops selling Hazelnut Spread, which must comply with the Czech law, must put up signs saying that the Hazelnut Spread complies with the Czech law. (iii) To incentivise Czech citizens to shop in the local shops, the government will set up a loyalty card scheme whereby for every 100 Koruna spent in local shops, they will receive 1 Koruna to be spent in local shops. (iv) No advertising of Hazelnut Spread is allowed. Advise the incoming Czech government of the compatibility of these proposed measures with EU law. What action could the EU take against the Czech Republic if the measures do not comply with EU law? The Czech government also decides to lobby the EU to adopt harmonising legislation. What difficulties might the EU encounter if it follows this suggestion?

Jennifer Shelley Firstly, it should be noted that all draft technical standards on products should be notified to the Commission under Directive 1535/2015. Unless, the Czech government does this, the provisions will be unenforceable (CIA Security).

I) THE CZECH LAW The Czech law presents 3 obstacles to trade which may breach Article 34 of the Treaty on Functioning of the European Union. The requirement that the hazelnuts be sourced from Italy is a product requirement, which is directly discriminatory because it favours

hazlenuts from one Member State over all others (Buy Irish Campaign). It would therefore be classed as a distinctly applicable measure having equivalent effect under Art. 34 (Lütticke). This means that the Czech Republic (CR) would only be able to resort to the art. 36

TFEU derogations in order to justify the measure. CR might argue that public policy could justify it, perhaps in light of the fact that the quality of hazlenut spread was such a contentious issue in the election. However, given the court’s strict approach to public policy in cases such as Cullet Leclarc and that public policy cannot be equated with consumer protection (Ringelham), it seems unlikely. Furthermore, it seems very unlikely that CR could substantiate its claim that Italian Hazlenuts automatically equate with quality. Consequently, it would seem that this is a potential breach of art. 34 TFEU. Under art. 258 TFEU, the Commission can notify this to the Permanent Representative of CR and will give CR reasonable time to respond. If CR fails to comply after this, the Commission has discretion to bring the judicial phase of enforcement proceedings (Slaughtered Cows).

THE SPECIFIED CONTENTS OF HAZLENUT SPREAD Specifying the contents of the hazlenut spread is a product requirement falling under art. 34 TFEU as an indistinctly applicable measure having equivalent effect (applying Walter Rau v De Smedt). This is because the specified ingredients, whilst on their face applicable to all, may have a greater burden on those traders from other MSs who manufacture hazlenut spread lawfully in other MSs but to different requirements and will have to re-manufacture to sell in CR. Cassis de Dijon applies a presumption of equivalence that a product lawfully produced in any MS should be valid anywhere. Therefore, CR would need to rebut this presumption by proving a mandatory requirement (Cassis de Dijon). Perhaps CR might argue that the specified ingredients are necessary for consumer protection as in Mars GmbH or Clinique. This is unlikely to succeed as, whilst this is a legitimate aim, it is unlikely that there is any scientific evidence proving that this is necessary as is often required (Sandoz, Bier Purity). CR might argue that the election issue justifies the ingredients requirement. It could be argued that the preserving the quality of products is crucial for the national identity of CR. The court is receptive to mandatory requirements and the list is not exhaustive as established by

the voluminous caselaw (Oebel, Dynamic Medien). However, even if this is accepted as a legitimate aim, the court will subject this to a proportionality assessment, encompassing suitability and necessity (Humanplasma). `The ingredients list might meet the suitability criteria, although CR would need to somehow prove that this guarantees quality but it seems that an ingredients specification is too specific and far-reaching to be considered proportionate (Bier Purity, Humanplasma). Consequently, the Commission could bring enforcement proceedings in respect of this breach of art. 34 too.

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This might be a consumer-business practice falling under the UCPD. However, the government is promoting a scheme not banning a practice so it might instead fall under Keck as a certain selling arrangement. The previous analysis applies. This legislation is discriminatory because it is prioritising shopping at local shops (De Agostini) so it will be brought back under art. 34 as an distinctly applicable MEE. CR might argue that an art. 36 derogation can apply. However, given the difficulties mentioned earlier with public policy, this is likely a breach.

NO ADVERTISING

STATEMENT Since the statement affects the packaging of the product, this is likely to be an MEE under Art. 34 TFEU (Familiapress, Dynamic Medien) as if affects the product’s packaging. This could be a distinctly applicable measure as it allows the consumer to exert their discriminatory preferences as noted by the court in Buy Irish. However, it does not necessarily promote the Czech product to the detriment of other products. All products just need to comply with Czech law. It seems likely that the Commission v Ireland (Irish Leprechaun) case reasoning may apply here, where the court said that a requirement to state the designation of the product as from Ireland could not be justified, although it might be argued that this case can be distinguished. Therefore this would be an indistinctly applicable measure having equivalent effect. Can it be justified under the mandatory requirements (Cassis de Dijon)? The reasoning above applied. This may arguably be more proportionate as the court usually advocates labelling as an alternative (Fietje, Bier Purity). However, given that the Czech law is probably a breach of art. 34, the Czech law would need to be changed for this to apply.

SIGNS This is not a product requirement, it is not related to unfair business-consumer practices so this is likely to be a certain selling arrangement (Keck v Mithouard). This means that there is a presumption that the domestic legislation is lawful provided that it applies to all and is genuinely non-discriminatory. Prima facie, this applies to all shops in CR (Visnapu) and does not seem to be discriminatory. However, given that the Czech law as it currently stands is directly discriminatory, this is likely to have an effect on traders not importing hazlenuts from Italy so it may be that this brings the measure within art. 34 (De Agostini). Once again, it seems unlikely that the mandatory requirements can save the legislation so there will be a breach of art. 34.

This falls within the Unfair Commercial Practices Directive (Article 3). There is no indication that the advertising of hazlenut spread is contrary to requirements of professional diligence or likely to materially distort economic behaviour, misleading or aggressive (Art. 5). Therefore, the domestic legislation is unlawful.

HARMONISATION If the EU decides to harmonise, it may do so under Art. 114 TFEU but this is an area of shared competence (art. 3 TFEU). Therefore, they must comply with the principles in Art. 5 Treaty on European Union. The act must have a legal basis which is objectively linked to the aim of improving the functioning of the internal market (German v EP (Tobacco Advertising). They must also comply with subsidiarity (art. 5(3)) and proportionality (art. 5(4)). The act must be proven to be best achieved at EU level due to the scale and effects and not capable of being achieved by MS action alone. The Commission increasingly needs to undertake a detailed impact assessment report to prove this (Vodafone). Furthermore, the content should not exceed what is necessary under the Treaties, although this is subject to only manifest error review (R v MAFF, ex p. FEDESA). Consequently, the EU would have to prove that disparities between products justify intervention as they will lead to disruptions in the internal market.

INCENTIVISATION SCHEME

MICHAELMAS 2018

Essays

Comparative Law

COMPARATIVE LAW ‘German and French laws accept that parties owe each other duties before a contract is formed, whereas the principle of freedom of contract precludes such duties in English law.’ Discuss. Yen Jean Wee Cartwright & Hesselink have pointed out the ‘peculiarity’ of the precontractual phase in the sense that it is difficult to characterise and regulate, involving as it does – in all systems – a delicate balance between freedom of contract (or freedom not to contract) and obligations of good faith and fair dealing. The statement captures the broad initial divergences between the 3 systems but is also overly simplistic and reductionist, bearing out Freeden & Vincent (2013)’s observation that comparison “too often proceeds through exaggerated dichotomies and binaries”. This essay will first consider the apparently stark divergence in the area of breaking off precontractual negotiations, before illustrating how this divergence is qualified by practical convergence in many cases. It will then consider the divergence in duties of precontractual disclosure (where the differences are more substantial) but nonetheless the degree of convergence

that exists. Ultimately these differences reflect not just a choice between tortious and contractual means of imposing precontractual liability (Giliker) but also a more fundamental policy choice based on each system’s values and the weight of freedom of contract.

BREAKING OFF NEGOTIATIONS – DIVERGENCE, At first sight there is a stark divergence between English law, and French and German law. In Walford v. Miles Lord Ackner famously rejected any role for precontractual good faith, denouncing it as inherently unworkable and “repugnant” to the adversarial nature of commercial negotiations, and stating that there was no obligation to withdraw from negotiations only when there was good reason to do so. By contrast, German law recognises culpa in contrahendo as a head of delictual liability under 311 + 242 BGB and treats the precontractual phase as giving

rise to a legally protected relationship that imposes duties not to break off negotiations without giving a legitimate reason (Cartwright & Hesselink Cases 1 and 7). French law goes even further in treating unreasonable breaking off of negotiations as delictual fault under Article 1240 Code Civil, e.g. in Jahn c. Charry (misleading the other party into thinking a contract would be concluded) and Gerteis (sudden phone call termination without explanation constituted fault). As Giliker says, English law’s solution lies in contract, and prior to contract the negotiations do not attract special legal protection.

BREAKING OFF NEGOTIATIONS – CONVERGENCE However, despite these apparent differences, the outcomes arrived at in each system do sometimes converge. First, freedom of contract is not exclusively

English law’s concern – this is illustrated by Cartwright & Hesselink’s Case 7, where all systems did not allow a remedy in view of the uncertainty of the parties’ preliminary agreement and the importance of freedom of contract even in France and Germany. Moreover, Manoukian in French law and Markesinis Cases 29-30 in German law set a relatively high threshold for bad faith, requiring intention or particular severity. Secondly, France and Germany themselves differ in what these duties actually require of the parties in practice, illustrated by Cartwright & Hesselink’s Case 4 (architect): English law would not give a remedy despite the bad faith of one party, but even though both German law and French law accept duties of good faith, German law did not regard the duty as being breached merely by the knowledge of the architect’s one-client policy, whereas French law did. Thirdly, English law too offers some precontractual protections for a party’s reliance loss if the other part has induced an expectation on which the other relies – thus, in Cartwright & Hesselink Case 1, all three systems provided a remedy for the reliance loss. Thus, as Gilmore has observed, perhaps reliance is breaking down the conceptual boundary between precontract, tort, and contract – albeit in English law through more piecemeal doctrines like misrepresentation (Esso v. Mardon) and estoppel (Central London Housing). Indeed, it is significant that, as Beale observes, on the facts of Walford itself, perhaps France and Germany also would not have granted a remedy, given the lack of bad faith and the uncertainty of the ‘lockout’ agreement respectively.

DUTIES OF DISCLOSURE – DIVERGENCE & CONVERGENCE Here too there is an apparent divergence with English law imposing no general legal duty of precontractual disclosure (Smith v. Hughes, Cockburn CJ) and even allowing one party to take advantage of the known ignorance of the other (BCCI v. Ali, per Lord Hoffmann; The Harriette N). To grant a remedy, English law requires at least some misrepresentation, e.g. fraudulent misrepresentation made without an honest belief in its accuracy (Derry v. Peek). This is less to do directly with freedom of contract, but reflects a similar underlying preference for commercial autonomy. It is thus not freedom of contract itself that precludes such duties, but rather the underlying belief in the adversarial, zero-sum conception of contract negotiation.

WE SEE IN ALL SYSTEMS AN EMPHASIS ON PROTECTING RELIANCE AS A WAY OF BALANCING FREEDOM OF CONTRACT WITH DUTIES OF GOOD FAITH AND FAIR DEALING By contrast, France under Article 1137 has now developed a general and autonomous duty to disclose (Aubert de Vincelles (2017)), and in Pig Farm recognised that deliberate silence intended

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to mislead could constitute fraud, as well as Article 1112-1. Similarly in Germany the combination of 311 + 242 BGB imposes duties to disclose, albeit specific and thus more circumscribed than French law – e.g. on the facts of Doctors’ Practices, there was held to be no precontractual duty of disclosure since an “enlightened purchaser” would have found out the information himself (though in Daktari non-disclosure would constitute bad faith). This difference between the systems is seen in SeftonGreen’s Celimene v. Damien, where, in the absence of any representation, English law imposes no duties and grants no remedy whereas France and Germany would. However, the French position must nevertheless also be qualified since Article 1132 now requires that the party’s ignorance was legitimate, and this precluded liability in Anatole v. Bob, where the mistaken party was a specialist. It thus seems that despite France and Germany’s greater willingness to impose precontractual duties in the parties, the systems are all converging towards placing an emphasis on the concept of legitimate ignorance or legitimate reliance, the latter of which (as discussed earlier) is also prominent in liability for breaking off negotiations.

CONCLUSION AND COMPARATIVE REFLECTION In conclusion, a binary dichotomy between French and German law and English law in this regard is overstated. Although it is true that English law is generally reluctant to impose positive duties on the parties before a contract is concluded – which as both Giliker and Cartwright & Hesselink note precludes the development of a general tortious precontractual duty of care by extension of Hedley Byrne – German and French law too value freedom of contract, as can be seen in the fact that they both qualify and limit the duties they impose on parties in the precontractual phase even while prima facie accepting a general duty. In addition, as Giliker has argued, we see in all systems an emphasis on protecting reliance as a way of balancing freedom of contract with duties of good faith and fair dealing – albeit that in English law this reliance must be somehow induced by the other party to hold them accountable. It is thus not freedom of contract itself that is crucial, but the values that guide each system which themselves shape freedom of contract.

MICHAELMAS 2018

Essays

Law of Tort

this method is not preferred and rightfully rejected. The second approach is noting ‘policy reasons’ as done in Hill and X v Bedfordshire, also most recently in CN (on appeal to Supreme Court for the summer). The main policy reasons are: (1) litigation is a bad use of public spending and (2) encouragement of defensive practices. This was also the reasoning of the minority in Robinson. While, again, understandable – ultimately this reasoning should be rejected because there is no empirical evidence that such policy reasons amount to such fears. Indeed, the NHS is a ‘public service’ and is frequently held liable, but that it still manages to carry out its work to a suitable degree. Therefore, this approach is also right to be abolished.

LAW OF TORT ‘[T]here are certain circumstances in which public authorities, like private individuals and bodies, can come under a duty of care to prevent the

THE PUBLIC AUTHORITIES ARE ONLY LIABLE IN CASES OF OMISSIONS WHERE ANYONE ELSE WOULD BE.

occurrence of harm ... In the absence of such circumstances, however, public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body…’ (LORD REED in Robinson v Chief Constable of West Yorkshire Police (2018)) Comment on the law’s approach to the negligence liability of public authorities, in light of this statement. tan ning-sang Lord Reed’s quote from Robinson affirms the Diceyan approach that public authorities have the same level of liability as ordinary individuals. This essay will argue that Lord Reed’s approach is the best one to take within the English tort law system. To make this argument, I will first outline the various approaches to negligence liability of public authorities prior to Robinson; then, I will articulate the implications for such a view; finally, I will engage with scholarly debate on the issue.

ROBINSON PROVIDES CLARITY The primary reason to agree with Lord Reed’s majority approach in Robinson is that it is the simplest and clearest answer to what has been an extremely messy area of law. Prior to Robinson, there were three inconsistent ways of understanding public authority liability. The first way was to import public law ideas into private law courts, exhibited by Anns in introducing the notion of ‘justiciability’ and X v Bedfordshire in using the idea of ‘Wednesbury reasonableness’. While one can see the appeal and natural desire

The third and final approach is the majority approach in Robinson, the emphasis of the Diceyan orthodoxy that public authorities are to be treated like everyone else. This was the approach used in Stovin v Wise and Gorringe; it should be adopted because it is the simplest, clearest, and easiest to apply. This is in contrast to the public law approach that causes confusion about the extent to which, and which principles itself, that private law courts should include private law, and the ‘policy’ approach that is empirically vacant. But more than that, those two approaches position the courts with significant discretionary power on a very important political issue; this is

because the courts have to decide which and the extent to which public law is relevant to private law and which ‘policy reasons’ are more relevant: vindication of individual rights or public security? The Diceyan approach carries the same conclusion of no liable for public authorities in most omissions cases without any of the discretionary additives. This is preferable because it preserves the integrity of the political-legal divide in the broader British political-legal arrangement.

IMPLICATIONS OF THIS VIEW The implication of this view is that public authorities are only liable in cases of omissions where anyone else would be. There are several situations in which a person is held liable for omissions. First, if you are in control of a dangerous thing and it harms someone else (Dorset Yacht), there is liability. Also, if you prevent further help from coming, there is liability (Kent v Griffiths). Further, where you assume responsibility to take care of someone, there is liability (Swinney). Finally, if you actively make things worse (Capital & Counties), there is liability. What is important here is not the particular situations in which liability occurs, but rather that Lord Reed’s approach best explains the existing state of the case law. As such, Lord Reed’s approach is definitely preferred.

NORMATIVE REASONS AGAINST DO NOT FIT INTO BRITISH NORMS OF LEGAL OR POLITICAL BEHAVIOR The strongest argument against Lord Reed’s view is taken on by Tofaris and Steele, who argue convincingly that police should be held liable by virtue of their position as a public authority. Outlining that the main reasons against finding liability are the ‘why me’ arguments

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and personal responsibility/autonomy arguments, they say that ‘why me’ does not apply to the police because the police are there to protect civilians. Similarly, another scholar wrote of the state of taken the right for people to defend themselves and so should be held responsible for it. But the main problem with these arguments, as articulated by Nolan and McBride, is that it fails to understand that the British private law system cannot accept a differing evaluation scheme by virtue of the public authority’s status. It does not know how to discriminate ‘between’ public authority and private individual and is in no place to do so. The primacy of the individual responsibility doctrine is simply too strong to overcome the competing normative reason that an individual wrong should be vindicated. Perhaps in continental European countries where citizens are more required to actively protect one another in cases of omissions (Ashworth’s article on acts/omissions in criminal law), holding police liable in omissions makes sense – again because everyone else would also be liable. But given that such a ‘citizen duty’ ethos does not exist in the UK, it is inappropriate particularly in light of Brexit to try and impose such a way of thinking. As such, Lord Reed’s emphasis of the same status between citizen and public authority remains.

CONCLUSION Robinson’s majority judgment provides welcomed clarity to a previously disorganized and disheveled part of tort law by bringing clarity and simplicity. One can only hope that the Supreme Court in CN will uphold their views from Robinson and keep this clarity.

to import public law principles in cases relating to public authority, there are problems with this approach from both the public and private law side. On the public law side, the unwritten nature of the British Constitution means that it itself does not readily know how to distinguish or define ‘public’ authority from ‘private’ ones, particularly in light of the increasing amount of ‘public services’ that are contracted out to private parties. On the private law side, Nolan is right to point out that government liability in private law courts should be dealt with by rules of private law courts; public law reasoning should be done in judicial review. As such,

MICHAELMAS 2018

Essays

Contract Law

CONTRACT LAW a) In December 2017, Easy, Come, and Go, a law firm, hired Findlay, for £50,000, to produce a written report by March 2018 on Easy, Come and Go’s graduate recruitment strategy over the past ten years. In February 2018, Easy, Come, and Go told Findlay, ‘stop all work, we no longer need that report’. Findlay refused to stop and has now tendered the completed report and is claiming a fee of £50,000. Advise Findlay. And b) In December 2017, Easy, Come, and Go hired Gertrude, for £100,000, to produce a written advice by April 2018 on the possible creation by Easy, Come, and Go of a new foreign office in Xanadu (a foreign state). On 7 March 2018, Easy, Come, and Go told Gertrude, ‘yesterday’s terrorist atrocities in Xanadu render it impossible for us now to contemplate a move there; please stop work.’ Those atrocities had come as a complete surprise and were targeted at all law firms situated in Xanadu. By 1 March 2018, Gertrude had already

election is generally unfettered, it is subject to two exceptions. First, he cannot perform where continued performance would require the other party’s cooperation (Hounslow v Twickenham). Clearly this does not apply on the facts.

E’s statement on 7 March 2018 would be a repudiation by express words, but the better view is that the contract is frustrated.

Second, he cannot do so where he has no legitimate interest in continuing with performance to claim the price instead of terminating and claiming damages (White & Carter v McGregor). It is argued, though this is less clear, that this exception does not apply. A high bar must be crossed: it should be “wholly unreasonable” or even “perverse” (Isabella v Shagang) to do so; it is worth noting that the exception was not made out on the facts of White & Carter itself. If, for instance, the contractual price is above the market rate, F could say that he has a legitimate interest in performance – just as in White it was legitimate to exploit the price acceleration clause.

The above conclusion is not altered by the fact that G completes her advice by March 1; the contract says to “produce” written advice and surely this will be interpreted as meaning to render it to E, since E has no interest in the production otherwise. So her performance is not complete on 1 March.

Finally, because F does in fact tender the completed report – we assume in March 2018 or before – he satisfies the obligation placed on him and E is reciprocally obliged to pay the £50,000.

completed her advice, which Gertrude posted on 6 March and which was delivered to Easy, Come, and Go on 8 March. Gertrude seeks her fee of £100,000. Advise Gertrude. And c) In December 2017, Easy, Come, and Go hired Harold, for £70,000, to tour English and Welsh university campuses in April 2018 in order to promote Easy, Come and Go to students as a possible employer. On 1 May 2018, Easy, Come, and Go told Harold, ‘on 1 April you lied and told students at Fenland University that we always favour applicants if they have a parent, or parents, who are lawyers. That slur has become publicly known. This has nullified our recruitment efforts. WWe will not, therefore, pay you the £70,000 fee.’ Harold admits that he told this lie on the Fenland University campus, thinking in good faith that it would promote applications to Easy, Come, and Go from applicants with that type of parental background. Harold, having completed the April campus visits, seeks his fee of £70,000. Advise Harold.

Ernest Goh A: EFFECT OF EASY, COME, AND GO (E)’S STATEMENT TO FINDLAY (F) IN FEBRUARY 2018 This is quite straightforwardly a repudiation of the contract on E’s part by express words, similar to the express statement of intent to break off the marriage in Frost v Knight.

The consequence is that, at this point, F has a general election (Societes v Geys), notwithstanding that March 2018 has not arrived yet (Hochster v De La Tours), to decide whether to accept the repudiation and terminate or to reject the repudiation and continue with performance.

A: IS F ENTITLED TO TENDER THE REPORT AND CLAIM THE FEE? As it happens, F’s decision was in favour of the latter so that he could claim the price. So it falls to be considered if this is a permissible course of action. Whilst, as stated, the innocent party’s

B: G POSTS AND DELIVERS ADVICE

Nor is her performance completed on 6 March, because the postal rule applies to acceptances (Adams v Lindsell) and not to performances. So performance is only complete as of 8 March. However, the frustrating event automatically terminates the contract (Hirji v Cheong Yue). This is on whichever day the atrocities occur, but by the latest 7 March. So the contract is frustrated.

B: EFFECT OF FRUSTRATION The Law Reform (Frustrated Contracts) Act 1943 (LR(FC)A) applies.

B: IS THE CONTRACT FRUSTRATED? “Frustration occurs whenever the law recognises that, without default by either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.” (Davis v Fareham). This is patently a high threshold not to be easily crossed (The Eugenia). However, it is argued that the contract between E and Gertrude (G) has indeed been frustrated. The closest analogy is probably with “frustration of the purpose” cases. Now, Krell v Henry has with hindsight become exceptional, with Herne v Hutton instead followed, but in view of terrorist atrocities it does seem that the test of “radical difference” is satisfied, and if it is inconceivable that E will still establish a new foreign state in Xanadu (X) then the contract is of virtually no value to it – unlike in Herne where, even absent the coronation, the ability to enjoy the naval display was a benefit. Another indicator – though not conclusive – is the fact that the atrocities were a complete surprise; because of this, it is less likely (The Eugenia) that the parties deliberately decided not to provide for the eventuality in the contract. If this conclusion is wrong, however,

FRUSTRATION OCCURS WHENEVER THE LAW RECOGNISES THAT, WITHOUT DEFAULT BY EITHER PARTY, A CONTRACTUAL OBLIGATION HAS BECOME INCAPABLE OF BEING PERFORMED

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C: IS HAROLD IN BREACH OF THE CONTRACT? The first question is, in the first instance, if H is in breach of the contract. If he is not, then it should follow that he is entitled to the £70,000 fee. The obligation is to promote E to students as a possible employer. It is argued that H is clearly in breach of this. Either we could say that “promote” impliedly suggests the use only of true facts, not falsehood, and so in his admitted lie H is in breach, or we might say “promote” is an obligation referential to the end result, and since as a matter of fact the recruitment efforts have foundered as a result E is in breach. That E was in good faith does not alter this analysis; good faith has never been a defence to breach without more (McKendrick).

C: IS THE OBLIGATION AN ENTIRE OBLIGATION? If H is in breach, the question is whether he can claim the £70,000 subject to a deduction or nothing at all. The better view is that H can claim nothing. That obligations may be entire is not in dispute (Sumpter v Hedges, Cutter v Powell), so that their complete performance is a condition precedent to the reciprocal obligation to pay. Probably H would allege that he had substantially performed the contract (Dakin v Lee, Hoenig v Isaacs), but the “general ineffectiveness” of his actions towards the purpose of the contract (Bolton v Mahadeva), similar to the hapless fume-emitting heater on those facts – since the recruitment effects are wholly “nullified” – means this analysis must fail. So H cannot lawfully claim the £70,000.

First, by s 1(2), the £100 000 – a sum “payable” – ceases to be payable. However, G can recover – up to £100 000 – for expenses before frustration incurred in or for the purpose of performance if the court considers it just. This confers the court a wide discretion (Gamerco v ICM) to permit G to recover. Second, by s 1(3), G may argue that she has conferred a valuable benefit on E, and seek to recover a just sum. This raises a two stage test: first, the benefit must be quantified; second, a just sum below the extent of benefit is awarded (BP v Hunt). However the benefit is to be calculated by reference to the “end product” (BP v Hunt); as the advice is now valueless, similar to a building destroyed by fire (BP v Hunt), the benefit – and therefore the just sum – is zero.

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