Per Incuriam Winter Edition 2023

EXAM TIPS FROM TOP SCORERS

FIRST CLASS TRIPOS ESSAYS

President’s Foreword

Welcome to Per Incuriam, a magazine which I assume needs no introduction. It is with great pleasure that I introduce this year's Per Incuriam issues as the President of the Cambridge University Law Society for the term 2023-2024! I am eager to follow in the pioneering footsteps of Sophia Nie and her exceptional Executive Committee, comprising Mahera Sarkar, Kapri Belentepe, and Rohan Odedra, along with the talented and forward-thinking Main Committee. I extend my heartfelt gratitude to these remarkable individuals for their unwavering dedication and support throughout the past year and beyond.

On behalf of Pallavi Jhunjhunwala, our newly appointed VicePresident, Huang Rui Yang, Jean, our diligent treasurer, and Erin Bakhtiari, our diligent secretary, I extend warm thanks to all who have placed their trust in us to usher in yet another remarkable year at CULS. Further, I will like to extend a warm welcome to everyone in my Main Committee who will serve alongside me and my colleagues in making this year another excellent one for CULS!

We eagerly anticipate your participation in our upcoming events and opportunities!

Vivek Bilous CULS President 2023-2024

Editors’ Welcome

Per Incuriam is a very interesting name for a publication like ours. At first glance, it seems posh (as with all things Latin), but in truth, it means ‘lack of due regard to the law’. Perhaps, this goes to a deeper level, reflecting how there is no right or wrong in law. However, ‘lacking in due regard’ one might think the law is, there are always two sides to the coin Law is indeed philosophical

Nevertheless, we congratulate not only the individuals published herewith, but also everyone who finished their examinations last year We are pleased to continue the important duty of ensuring that the genius and voices of Cambridge’s brilliant minds are enshrined in this long-standing publication.

We hope you enjoy!

Luke Zhang

Natalie Tan

Natalie Seah Mahuum Nazir CULS Per Incuriam Subcommittee 2023-2024

Q: How do you make notes and do you have any advice to share on how to structure notes, especially for exams? Do you have any advice on how to approach further reading?

Codrin: As alluded to above I take notes in lectures straight into the lecture handouts, then condense these into PQ and essay notes. PQ notes are predominantly just authorities (ratios, statutes, etc.) structured by reference to the issues which could arise in a PQ. I make flowchart-like notes in more intricate areas of law, but usually I find that the most concise way of making PQ notes is just to list ratios or other authorities within a very comprehensive framework of headings or subheadings. In areas where the law is less clear-cut, I’ll have an argument prepared as to what I think the law is in my notes, which I can then easily use in a PQ (but even so, analysing all possibilities is usually a good idea). Making these notes as concise as possible, and the various headings and sub-headings easily accessible, is key for when exams start.

In terms of essay notes, I spend much of Easter term making these. They tend to be far less structured than PQ notes – I usually just summarise arguments from articles/further reading along with my own thoughts. I find that it is quite helpful to look at past exam questions in order to get an idea of what to focus on in terms of further reading.

Lindsay: My approach was to create my own document for each supervision from scratch which I filled with notes I made from listening to lectures and reading cases, textbooks and articles. I therefore did not have separate ‘lecture notes’ vs ‘textbook notes’ vs ‘article notes’.

Instead, I integrated information from each of these sources into a thematic document. I created separate ‘folders’ on my computer for each supervision and had a separate document of notes for each supervision. This benefitted me because each document was supervision specific and therefore was focussed. It was not as overwhelming to me as an allinclusive ‘master document’ of notes

which covered every single supervision. The drawback, however, is that if you want to find something in your notes which you recall making notes about, you have to remember which supervision it was taught in to know which notes document to open! A master document in contrast would simply allow you to type in the search box. Further, if you do not wish to have up to eight separate documents open on your laptop (one for each supervision) during an online exam, this approach may not be right for you!

In terms of the notes themselves, I used a lot of headings, sub-headings, colour and highlighting. Lecture hand-outs often provide for labels or sub-headings. For example, I always ensured case names were in blue font so they stood out, references to academics were purple.

Where a particular judgement or legislative provision was subject to debate or commentary, I highlighted criticisms or ‘cons’ in orange vs support or ‘pros’ in green. Tables certainly helped when comparing conflicting theories, attitudes, or concepts.

For exams specifically, I created ‘PQ prompt/summary sheets’ for each subject which consisted of flowcharts, series of questions and spider diagrams, case authorities for each proposition or the necessary ‘tests’.

As for further reading, my tip would be to save that for the vacation period. Even then, I would only recommend reading a handful. I found it was better to be strong in a few select normative or essay areas with academic commentary on this area that you actually understand or that is balanced by alternate schools of

thought some piece every topic, unintelligible to you.

Q: What advice or personal experience do you have on balancing your degree work with other commitments?

Codrin: I’ve always found that the best way to fit in extracurriculars (for me football, or rugby) or socialising is to have a clear plan of what I want to get done work-wise beforehand, and stick to it. But equally, I think having things to break up the day, and things to look forward to, help me be more productive when I am working. So my main advice for fitting in other commitments is just to be organised, and to use those other commitments as a source of motivation in the time that you do spend working.

Lindsay: I played representative University basketball and tennis socially at Newnham College. I would highly recommend maintaining non-law outlets in your life! Additionally, you can combine

your degree and these activities: for example, for away games with long bus trips, I brought my laptop to work.

Extra-curriculars like mooting and mock trial were something I really enjoyed and I competed in at least one per term. It can also serve as good revision of particular content, teach you things in advance, increase confidence for participating in supervisions and form invaluable supporting evidence in future applications. Your written preparation in advance of a moot should not take a disproportionate amount of time because my experience was that the moot will be won or lost less because of what is contained in a pre-prepared speech and more on how you respond to judicial intervention, your familiarisation with cases referenced, etc.

Q: Do you have any advice on how to approach online exams?

Codrin: With the new 3-hour format I think having concise and easily accessible notes will be essential. As for time management, I would have a time plan which sets out how long you are going to spend planning/writing each question, and how long you’ll spend at the start reading through the questions and choosing which ones to

do. In terms of planning, I tend to handwrite this and keep it quite brief – I find that spending time mentally breaking down the question is usually more important. Personally, I think I’ll try to fit in as much timed practice as possible in Easter term given the new 3hour format.

Lindsay: In terms of preparation, PQ summaries/visual flowcharts which I made were useful when forced to respond to a PQ rapidly. Regarding essays, I consulted past paper questions and grouped these into themes as often differently-worded questions still effectively asked a broadly similar thing. I developed ‘thesis statements’ per theme which I hoped could form either an overarching essay thesis or paragraph topic sentences.

Having thought of these in advance ensures that the points you make in essays are analytical rather than descriptive. These thesis statements can then be adapted depending on the precise wording of the question.

During the exam, have a timer for when you need to move on and stick to this strictly. Trust your gut re question selection and try not to look back on your question selection.

to separate the ends from the means is one posed by Kramer, where, a kidnapper sends a ransom note to the spouse of the person he has abducted requesting money in exchange for the abductee’s life. In this situation, though all principles of legality may have been followed in giving this command, it is difficult to assert that the application of these principles is rooted in the kidnapper’s acknowledgement of the spouse’s autonomy.

Kramer considers that it may be superficial to consider this an acknowledgement of autonomy when the command contains such a potent coercive force so as to subjugate the spouse’s will.

However, in this situation, the spouse is aware of what must be done to spare the abductee’s life and so still has the choice to act knowing that should she comply with the ransom note, the kidnapper will return the abductee rather than arbitrarily kill him anyways. Thus, the spouse still has a choice and although the choice has been severely restricted by coercion, arguably, there is still some weak level of dignity in the fact she is told exactly what will happen depending on her actions. Furthermore, just because the force of human dignity in this extremely coercive scenario is weak, does not mean that there is still no morality in the principles at all – she is still better off morally than if she had not been told what must be done to save her spouse’s life.

Managerial direction - would a ‘wicked’ ruler adhere to Fuller’s principles of legality?

Though Fuller concedes that many of the principles would be useful for ‘managerial direction’, he considers that the principles of generality and congruence are not essential to managerial direction but are to the rule of law. This is because a mere interest in efficacy means that a manager may find it efficient to depart from the general rules from time to time if it serves the interests of the company better than compliance with those rules. However, a positivist can rebut this moral interpretation of congruence by asserting either that (i) there can be purely prudential reasons to adopt the principle of congruence and (ii) that a benevolent government may seek to depart from the principle of congruence.

Simmonds argues that a ‘wicked’ government (which is a form of managerial direction as ‘wicked’ governments use the law to fulfil their own ends) will inevitably end up using extra-legal force against its citizens, for example, to suppress dissidence. Kramer disputes this assertion by arguing that a ‘wicked’ government

Law of Tort |

By Shivashankar Saravanan | Mark: 76

For many years, Alcyone ran a small business from the spacious garden of her home, making metal garden ornaments using a traditional firepit technique to smelt the metal, then traditional tools to hammer the ornaments into shape. She needed a couple of assistants to help make the tools, and always filled those roles by giving work experience to recentlyreleased young offenders, whom she mentored and helped to find full-time employment elsewhere.

The process of making the garden ornaments was smoky and noisy at times, but this had never bothered Alcyone’s neighbour Brizo, who was elderly and a little deaf, and who preferred to stay indoors. When Brizo died, his house was bought by Clio, at a reduced price that took into account its location next-door to Alcyone’s business Clio obtained planning permission to use the house for her massage business. Unfortunately, her clients were very demanding and found the noise from the hammering of metal ornaments intolerable. In addition, the buildup of smoke from Alcyone’s firepit had gradually stained Clio’s white towels and white bath-robes that hung on her washing line, rendering them unacceptable for massage clients. One night, the firepit, which Alcyone’s assistant Dinlas had forgotten to damp down at the end of their shift, was blown over in a fluke gust of wind. A burning ember rolled into Clio’s garden and burnt a wooden bird table that held great sentimental value to Clio. Clio subsequently developed chronic asthma, to which the smoke from Alcyone’s firepit probably contributed, as did the stress of the money she was losing because of the disruption to her massage business.

Alcyone might argue that Clio is coming to nuisance; it may be defence in this case since there is a change in Clio’s use of land(Coventry). Hence, it is contingent on the locality/character of neighbourhood; the fact that the house’s price was reduced taking into account Alcyone’s business, may suggest that the locality has accounted for her use of land and it may not be a nuisance. Nevertheless, though planning permission is typically not relevant at this stage(Coventry), the fact that Clio (the Claimant) got it instead of Alcyone, might be relevant to how Clio’s running of massage business might indeed be common and ordinary use of land as required in Tate.

Is Alcyone’s use of land common and ordinary, and done “conveniently” per Tate?: Ultimately, this is contingent on whether the locality has effectively subsumed Alycone’s use of land - which is possible since costs factored it in. Nevertheless, this may still not be done in a “convenient” manner; the neighbour principle as emphasised in Tate requires Alycone to act with as much consideration as possible, and this is arguably not done - as the process of making garden ornaments could potentially have been done at a time where Clio’s clients are not present.

Damage: If intangible nuisance is established following aforementioned considerations, can claim for interference with amenity and enjoyment of property (Dobson). Consequential loss of profit due to inability to use land for her business purpose(Hunter). Personal injury of chronic asthma not recoverable.

Causation: But for Alcyone’s intangible nuisance, would not have interference with use and enjoyment of land (Barnett).

Remedies: Injunction should prima facie be granted per Coventry; nonetheless, Court has discretion to award damages(SCA 1981, s50). In such a case, given Alcyone’s use of land may have been factored in, and the potential public interest of her activity - giving experience to young offenders - Courts may prefer to award damages instead.

Nonetheless, the planning permission given to Clio might suggestotherwise, making an injunction likely to allow Clio’s activity to pursue (assuming permission given due to public interest of masseuse).

Clio > Alcyone (Tangible Nuisance)

Clio could also sue for physical change (white towels and bath-robes), rendering her land less useful or valuable(Hunter).

Nonetheless, this is unlikely; the towels and white bath-robes have to be closely connected to the use of land(Hunter). Even if they are closely connected for massage purposes in use of land - then Clio’s use of land by hanging white objects may be hyper-sensitive. If the smoke would have stained other clothes as well, Clio can have full damages awarded; but if only white clothes, likely no nuisance(Robinson).

Clio > Alcyone (Rylands v Fletcher)

Unlikely that Rylands will succeed, as the “ember” in itself is not one that gives rise to an “exceptionally high risk of danger”(Transco); even if so, Alcyone’s use of land may not necessarily be “extraordinary and unusual” use of land. Furthermore, personal injury (chronic asthma) cannot be recovered(Transco). A negligence claim would be more apt.

Clio > Dinlas (Negligence)

DoC: Dinlas straightforwardly owes Clio a DoC not to cause her property damage or physical injury while running process of making metal ornaments.

Breach: Breach is likely; high likelihood of harm could arise from aburning item(Haley), with high severity should it catch onto others(Paris).

Causation: But for Dinlas’ negligence, wooden bird table would not have burnt(Barnett); Clio can claim market value for the table It is unclear if but for succeeds for her chronic asthma; if it does not, since there are different causal agents/mechanisms contributing to damage, there will be no liability(Wilsher).

Clio > Alycone(Vicarious)

During his shift, Alycone has control over Dinlas(Market Investigations); since she “needed” assistants, it is likely that Dinlas (offenders as a whole) are sufficiently integrated into her business before they find employment elsewhere. Dinlas’ operation of the firepit is within “field of activities” authorised by Alycone (Mahmoud), and is done in furtherance of her business and hence is closely connected(Morrison). Alycone can be vicariously liable for Dinlas’ negligence.

Alycone > Fatalismo(Intangible Nuisance)

Damage: Interference with amenity and enjoyment of ordinary use of property, as unable to use garden.

Assistants cannot sue as they do not have a right to the land affected(Hunter); Alcyone can sue Fatalismo as the creator of the nuisance(Hubbard).

Following Fearn, overlooking is a recognised right under intangible nuisance. The prolonged nature of it, and its extensive nature (20 cameras) suggests substantial interference with use ofAlcyone’s land, who is unable to work in her garden. Alcyone’s use of land is not abnormally sensitive due to “particular upset” for young offenders; anyone, including Alcyone, would encounter substantial interference with Fatalismo’s use of Erebus’ land(Robinson). Furthermore, the nature of Fatalismo’s conduct (protesting) may not indicate maliciousness(Hollywood) on its own, but his ignorance of her requests runs contrary to neighbourprinciple in Tate, and likely constitutes uncommon and unordinary use of land - hinting at nuisance.

Remedies: An injunction to remove the cameras(Coventry).

Alycone > Erebus(Intangible Nuisance)

It is unclear if Erebus will count as an occupier; given he is overseas, he may lack sufficient control(Wheat). Nevertheless, “did not see to it that house was secured” suggests he did retain some form of control; he could be liable if he continued the nuisance (Sedleigh-Denfield). It is unclear if Erebus was aware of such nuisance (unclear if he saw letters); but with presumed knowledge of existence of nuisance, he may be held liable for continuing it.

If Erebus was deemed as a mere landlord, he will not be liable as doing nothing to stop or discourage Fatalismo’s nuisance will not amount to participation (Coventry).

Rest of the analysis, and remedies same as above.

By Bernice Cheung | Mark: 74

‘There is no justification for bypassing the requirements for the creation of a legal obligation just because the promisee has acted to his or her detriment in reasonable reliance on the promise. Still less is there any justification for doing so where the subject matter of the promise is the disposition of an interest in land – a realm in which legal certainty is particularly important and the law insists on formality.’ (LORD LEGGATT in Guest v Guest) (2022)

Discuss, with reference to the doctrine of proprietary estoppel.

Lord Leggatt’s quote in Guest v Guest argues that there is no justification for bypassing the formality requirements in creating a proprietary estoppel (PE) just because the promisee has acted in reasonable reliance on the promise. This is especially since legal certainty is crucial in relation to the disposition of an interest in land. This essay disagrees with Lord Leggatt and argues that there are justifications. Firstly, I rebut the potential argument that supporters of Leggatt’s view may have, which is that lack of formalities in PE (coupled with Lord Briggs’s expectation-based remedy in Guest) risks subverting the rules of contract. Secondly, I argue that land law (and statutes) already recognises the

informal creation of trusts (and easements) which also concern the disposition of an interest in land. Thirdly, I argue PE is sui-generis and stems from unconscionability, which is inherently more complex and thus justifies bypassing formality requirements even if not analogous to other areas in land law.

Subverting rules of contract?

Supporters of Lord Leggatt’s view may argue that bypassing formality requirements in creating a PE risks subverting contractual rules. This issue is aggravated by the majority’s decision that the starting point of awarding damages in PE is the expectation measure, which

This argument about the law reflecting the child’s social reality needs to be reframed in the context of parental responsibility: here, the law is concerned not with allocating the status of ‘parent’ to a given individual, but conferring them the ‘right’ to influence the child’s development through the exercise of decision-making authority. Such power can be used by multiple people notwithstanding their biological connection to the child, which from a legal standpoint challenges the two-‘parent’ paradigm only semantically in that a person with PR cannot be recognised as a parent by law despite prima facie acting like one.

From a substantive perspective, however, parental responsibility as conceived by English law constitutes a considerable attack to the nuclear family model. Despite this, the extent of parental responsibility and its exercise are capable of being conditioned, thereby leading to a hierarchy of decision-makers within a child’s family—a form of principal and secondary parenting as conceived by Hedley J in MA v RS (Contact: Parenting Roles), with the legal parents retaining primacy. More controversially, the courts have used parental responsibility to perpetuate the heteronormative family in the context of sperm donors who have assisted with the conception of a lesbian couple’s child and consequently seek contact with them. The outcome in cases like Re D (Lesbian Mothers and Known Father) encourages the introduction of a male figure in the family unit on grounds of commitment to the expense of the security established by the same-sex couple whose status as the child’s carers is undermined by allowing a stranger to have decision-making capacity over their child (as pointed out in Re B (Role of Biological Father)). This need for a ‘male component of parenting’ (MA v RS) thus undermines any advances made by HFEA 2008 in the context of legal parenthood, as parental responsibility acts as a back door which undermines an already conservative conception of the two-parent same-sex family by reintroducing the bias for biology and the need of a father.

In conclusion, despite considerable social advances and technological developments to warrant a more flexible and socially honest approach to the recognition of modern family life by the courts, English family law is still guided by its vision of the nuclear heteronormative family in a way which creates for awkward family dynamics both in paper (with respect to parenthood) and in practice (with respect to the exercise of parental responsibility).

It is established that P’s invention falls within the scope of A’s patent claim as an equivalent. If P commences the campaign, it will be liable to a claim under s.60(1)(a), as a product, for the infringement of A’s exclusive right to make, dispose or offer to dispose of the product: the product is to be made (manufactured (United Wire)) and disposed off or at least offered for disposal - this includes approaching potential customers and therefore a marketing campaign will be caught (Gerber v Lectra). During the process P will also likely keep for the relevant purpose (McDonald v Graham).

P does not have any defences under the PA.

P’s counterclaim

However, P will likely counterclaim to have the patent revoked on various grounds; anyone can make such application (Cairnstones). The first ground P may challenge for revocation is on the ground that the patent was not patentable for lack of novelty, or potentially inventive step (s.72(1)(a) the invention may be revocable on the ground it was not patentable). The issue arises because of A’s use of the invention in her garden.

s.1(1)(a) requires the invention to be ‘new’, meaning it does not already form part of the state of the art, being all matter made available to the public, anywhere in the world, by whichever mode, at any time before the priority date (s.2(2)). The prior art includes prior product use, and is to be determined by the information that a person skilled in the art is able to derive from it, or will

(inevitably infer’ (Edwards Lifesciences)). The issue is whether A’s use in her garden amounts to anticipatory disclosure. This appears a harsh standard; Claydon v Mzuri suggests that an invention may be lack novelty by the possibility of prior public use, notwithstanding it was not actually observed, distinguished from Hozelock on the basis that the inventor in Hozelock would have removed his invention had he been aware of observers; A has not done so and it appears on the basis of Claydon there has been disclosure.

The dibber therefore forms part of the state of the art which would result in an infringement of the patent (Synthon) it being the exact same product. However, this is only to the extent that use makes available the necessary information for the invention (Merrell Dow). The disclosure is not anticipatory because the use does not provide sufficient information for the invention to be put into effect; whilst the low-level technicality of the C-shape means that element may be anticipatorily disclosed (based on dicta by Lord Walker, Synthon), no information is provided as to the composition/material of it, and this cannot be derived from observing mere use, however public (Merrell Dow; Asahi).

Inventive step

It is unlikely that a challenge on the basis of inventive step (s.3) will succeed; the invention must not be obvious to a person skilled in the art, having regard to any matter which forms part of the prior state of the art (as defined s.2(2)). The ‘prior art’ relevant here is the traditional dibber, and the journal articles; it is

By Mark Khoo | Mark: 74

ASPECTS OF OBLIGATIONS

Advise the parties as to any potential claims in the law of unjust enrichment in both of the following scenarios:

(i) Jeremy aspires to be a professional musician. His friend, Mark, wants to support Jeremy’s musical career and is 60% sure that Jeremy plays the saxophone. Mark therefore gifts to Jeremy a custom-made saxophone worth £5,000. In fact, Jeremy cannot play any instrument. One week after receiving Mark’s gift, Jeremy gives up on becoming a professional musician and takes a job as a commercial solicitor. Mark also discovers that Jeremy believes that the Earth is flat. Mark would never have made the gift had he known about this. and

(ii) Reema is a famous author. Seal Publishing enters into a contract with Reema to write two murder mystery novels for £1,000 per novel. Reema usually charges £1 million per novel, but agrees to the lower price as she is good friends with the editor at Seal Publishing. Reema sends Seal Publishing the completed manuscript for the first novel. She is midway through writing the second novel when Seal Publishing decides to stop publishing murder mystery novels because the market is saturated. Seal Publishing tells Reema that her contract is cancelled and refuses to pay her anything.

J has clearly been enriched by the objective value (Benedetti) of the saxophone, at the expense of M since there is a direct transfer between M and J (ITC). J may argue that he subjectively devalued the saxophone (such that he valued it at less than 5k) because he is unable to play it – but there is no objective manifestation of J’s subjective views (Benedetti).

The key issues are what the grounds upon which a claim in unjust enrichment (UE) can be based Firstly, M may argue that he had a tacit assumption that J could play the saxophone and that he had been caused by this mistake to make the gift to J. However, doubts may bar a claim in mistake if it suggests that the claimant was taking a risk that he might be wrong (DMG). But since he is 60% sure, the tacit assumption will constitute an operative mistake since he had made the gift being sure that it was ‘more likely that not’ the case that J could play the saxophone (Marine Trade, Jazztel). Secondly, it is said that M makes the gift out of a desire to support J’s musical career; it may be queried whether M’s mistake as to J’s playing ability had any causal relationship with the making of his gift: butfor causation may not be satisfied (Barclays Bank v Simms, Dextra Bank)

A second possible mistake which M may argue to have made relates to J’s belief that the Earth is flat. This appears a more likely ground of mistake to proceed with since causation is more easily established. However, while this might suffice for the common law doctrine of mistake, this would not constitute an

operative mistake in accordance with the equitable doctrine of mistake, which Judge Mackie QC in Pagel v Farman has argued applies to all gifts. This mistake would not ‘not relate to the ‘legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction’ (Pitt v Holt) and is therefore not sufficiently serious.

An alternative ground M could argue is failure of basis. M may argue that he had made the gift on the condition that J becomes a professional musician (such non-promissory conditions which relate to a state of affairs have been recognised: Barnes v Eastenders) – and since J has since given up this condition has failed. A number of issues arise. Firstly, it is not clear that M has shared this condition with J. The condition that J continues his path as a professional musician must have been communicated to J by M (Burgess v Rawnsley) and it is not enough this was merely M’s expectation in making the gift (Barnes v Barnes), or his motive (London Trocadero).

If, upon an objective evaluation of the basis of the gift (Giedo van der Garde), it is determined that there was indeed this shared condition, the condition must also totally fail (Fibrosa v Fairbairn). The basis for which the gift is made has to be analysed carefully here – if the gift was made on the basis that J use the saxophone to attempt to pursue a career as a profession musician, then M receives partial fulfilment of the basis and a claim in UE cannot be brought. But the courts may find that there were multiple basis on which the gift was made: firstly to help J pursue a career (which has not failed completely), and

That J eventually becomes a professional musician. If this interpretation is accepted, then it can be said that the second basis has failed totally: a transfer can have more than one basis and total failure of any one of those basis will give rise to a UE claim (Benzline Auto).

II.

SP is enriched by R’s service (services being objective benefits: Barnes v Eastenders) of writing two novels. What is the value of SP’s enrichment? The starting point is what the objective market value that a reasonable person in SP’s position would have had to pay for the service (Benedetti) – prima facie, given that R is said to usually charge 1 mil per novel, would be 2mil. However, the individual characteristics of SP will also be taken into account in considering whether the objective value of the service should be decreased (Benedetti).

Does the fact that SP’s editor being good friends with R constitute an individual characteristic which can lower the objective value of the enrichment? This is likely to be the case, since the personal characteristic of being friends with R has led to the variance between the general market value and the parties’ agreed value, and SP would always be able to buy the benefit of R’s writing services at a lower price than other buyers in the market (Lord Reed in Benedetti).

R will bring a UE claim on the ground of failure of basis: her enrichment of SP was conditional on SP’s S contractual counter-performance of payment, which SP has failed to do. A number of issues arise. Firstly, it is unlikely that the

contract between R and SP is construed as an ‘entire obligations’ contract (Sumpter v Hedges) such that payment is only due upon completion of both novels: this is because it seems clearly stated on the facts that each novel would cost 1k. Since R has earned her contract price in relation to the first novel, her only claim will ben action for the agreed sum (1k) under contract (Taylor Motability) and a UE claim is excluded. However, she fails to earn her contact price as regards the second novel because SP’s breach prevents her from completing performance. English law is unclear here, and a strict understanding of Lady Rose’s judgement in Barton v Morris would suggest that a UE claim would be unavailable; however, it is submitted that such a literal reading cannot be accepted because Lady Rose was not thinking of situations where the defendant’s breach prevented performance. It is therefore submitted that the High Court of Australia’s approach in Mann v Paterson is preferred: such a claimant would be able to sue in UE, despite also being able to sue in breach of contract. Gagelar J’s of the majority rejected the ‘artificial’ argument that allowing a UE claim would undermine contractual allocation of risk: contracting parties instead generally contact against the gamut of remedies available in law as well as in contract. This view is preferred on a principled basis as well: McFarlane and Stevens suggest that in these scenarios, part of the shared basis upon which a claimant performs the work is that the defendant would not preventing the claimant from completing said work. Where this has happened, there is a total failure of that condition.

Thus, a UE claim for failure of basis can be brought against SP. The claim is likely to be capped at the value of what is recoverable under contract (1k) because allowing a claim in excess of that would unjustly put the innocent party in a better position than she would have been if the contract had been fulfilled (Taylor v Motability), which could perversely incentivise parties to terminate a contract and sue in UE (Gagelar J in Mann).