My Revision Notes: OCR A-level Law second edition: Exam Practice

Answers

Section 1 The Legal System

Page 24

8-mark questions

1 Explain the jurisdiction of the County Court in settling a civil dispute. (8 marks)

Your answer could include the following:

• The County Court can try most civil claims up to £100,000 in value.
• Reference to types of cases heard such as:
o negligence claims for personal injury or loss or damage to property,
o other tort-based claims such as nuisance or trespassing,
o repayment of debt,
o disputes involving a breach of contract,
o housing claims and landlord and tenant matters,
o bankruptcy and insolvency matters,
o possible reference to examples.
• The Small Claims Court is part of the County Court and deals with claims in the above matters of less than
£10,000 in value or £1000 in personal injury claims.

2 Explain the three-track system in the County Court. (8 marks)

Your answer could include the following:

If a court claim is defended, a judge must allocate it to an appropriate case management track for it to be dealt with
in the most just and cost-effective way. The tracks are:

• Small claims track – for cases of less than £10,000 (or £1000 in personal injury cases). The claim will be heard
by a District Judge in private and lawyers are not encouraged. The hearing will have a maximum time of 2–3
hours and there will be limited number of witnesses allowed.
• Fast track for cases of £10,000–£25,000 in value. There will be a strict timetable with a maximum of 30
weeks. If this timetable is not followed the claim can be thrown out. There will be a maximum of one day in
open court for a hearing, heard by a Circuit Judge and a limited number of witnesses allowed. The parties
can be legally represented by a lawyer.
• Multi track for cases of £25,000–£50,000 in value. Such a case is usually allocated to the County Court with a
before a Circuit Judge who will strictly manage it. If the case involves complicated points of law or evidence,
or it involves more than £50,000 in value, it can be passed up to the High Court
• Possible reference to examples of cases in each track

3 Describe the structure of civil appeals from the High Court in the legal system. (8 marks)

Your answer could include the following:

• If one of the parties is not satisfied with the decision of the trial judge about liability and/or the amount of
compensation awarded, they can appeal.
• An appeal usually consists of legal arguments as to why the original decision should be changed. There must
be legal grounds for an appeal.

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 • Appeals from the High Court are made to the Court of Appeal Civil Division. The case will be heard by a panel
of three judges.
• A further appeal against liability can be made to the Supreme Court, but only if permission is granted by the
Court of Appeal and there is a point of law of general public importance involved.
• Rarely, a ‘leapfrog’ appeal can be made directly from the High Court to the Supreme Court if there is an issue
of national importance involved, or there are important issues involved.
• Possible reference to examples

4 Explain the role and jurisdiction of employment tribunals. (8 marks)

Your answer could include the following:

• Role - Employment tribunals deal with workplace issues such as unfair dismissal, discrimination in the
workplace or redundancy. It is separate from and less formal than a civil court.
• The employee must firstly contact ACAS to see if there can be a resolution. Only if this is not possible can a
claim be issued and it must be started within three months.
• In a hearing there will be a tribunal panel made up of:
o a specialist employment judge,
o one person representing the employers, and
o one person representing employee’s side.
• Evidence will be taken on oath and there are specific rules about procedure and evidence.
• Parties can be legally represented or by trade union officials.
• Hearings are open to the public and are short as issues will have been previously identified and case papers
read.
• A written decision of the panel will made and compensation can be awarded.
• An appeal lies to an Employment Appeal Tribunal on a point of law. Further appeals can be made to the
Court of Appeal (Civil Division) and the Supreme Court, but only on a point of law.
• Possible reference to examples

5 Explain negotiation as a form of alternative dispute resolution. (8 marks)

Your answer could include the following:

• Anyone or any business in dispute with another person or business can negotiate to settle the dispute in the
easiest and least confrontational way possible with the aim of reaching an agreement or settlement. It is
usually the first stage in any dispute.
• It can be done by:
o talking face-to-face,
o by writing letters or emails,
o by phone or messaging,
o or any other possible method.
• Any agreement can be made verbally or, if necessary, put in writing.
• It can be done by the parties without cost, their representatives, their lawyers or any combination. If
negotiations are not successful and a court claim is made, it can continue up to any court hearing.
• Possible reference to examples

6 Explain the four main types of sentences available to adults in the criminal legal system. (8 marks)

Your answer could include the following:

• Whenever a defendant is found guilty of a criminal offence, the court must impose a sentence to punish the
wrongful behaviour. This is done by magistrates or a judge. Guidelines on the type of sentence must be
followed.
• The main types of sentences in criminal cases are:
o Custody for the most serious offences. This can be either:
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 ▪ a mandatory life sentence for murder,
▪ a discretionary life sentence for manslaughter,
▪ a fixed-term sentence such as 5 years, or
▪ a suspended sentence.
o A non-custodial sentence for less serious offences, which can be from a range including:
▪ Community orders,
▪ Drug treatment and testing,
▪ A prohibited activity Order,
▪ A curfew, and
▪ An exclusion order.
o A fine
o A discharge for the least serious offences. This can be either:
▪ a conditional discharge or
▪ an absolute discharge.

7 Explain what is meant by a case stated appeal from the Magistrates’ Court to the Queen’s Bench Divisional Court
(QBD). (8 marks)

Your answer could include the following:

• Appeals on a point of law to QBD, heard by 2 or 3 QBD judges

• Either prosecution or defence can appeal – that magistrates made a mistake about the law.
• Magistrates will state the case explaining facts and the decision.
• Legal arguments only, no witnesses.
• QBD can confirm, vary or reverse the original decision, or return the case back for the magistrates to apply
the correct law
• Possible reference to case examples

8 Explain the role of a barrister in the English legal system. (8 marks)

Your answer could include the following:

• Barristers are self-employed,

• they can specialise in certain areas of civil law or in criminal matters; in criminal cases they can act for
prosecution or defence,
• they are advocates with full rights of audience – to present a case in any court,
• they owe a duty of confidentiality to a client,
• they owe a duty to the court – not to mislead a court and make sure the court has all the relevant
information it needs, even if contrary to a client’s case,
• some barristers specialise in out of court matters,
• barristers can be contacted by solicitors through their chambers; the cab rank rule means they should take
on cases if within their area of expertise,
• Bar Direct applies in certain areas of law when a client can contact a barrister directly,
• Some barristers are employed with same rights of audience as self-employed.
• possible reference to examples

9 Describe how judicial independence is achieved through security of tenure. (8 marks)

Your answer could include the following:

• Superior level judges (High Court and above) cannot be dismissed by the government,
• Superior judges can only be dismissed by the monarch following a petition presented by both Houses of
Parliament,
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 • Inferior level judges have less security as they can be dismissed for incapacity or misbehaviour,
• s 3 of the Constitutional Reform Act 2005 guarantees judicial independence,
• government must not influence judicial decisions.
• possible reference to cases/examples

12-mark questions

1 Discuss the advantages of using the civil courts to resolve disputes. (12 marks)

Your answer could include the following:

• lawyers use precedent to advise a client if a case is worth pursuing;

• funding of lawyer’s fees is possible in certain claims;
• legally qualified judges apply rules of evidence and procedure to ensure fairness to both sides;
• Judges case manage the process;
• reasoned decisions based on law given;
• legally binding and enforceable decisions are made;
• a result is guaranteed with an enforceable remedy;
• there is an appeal system to higher level courts based on legal issues.
• possible reference to cases/examples

2 Discuss the disadvantages of using employment tribunals to resolve civil disputes. (12 marks)

Your answer could include the following:

• claims have to be issued quickly after action arises,

• need to involve ACAS before claim can be issued,
• funding not available,
• employee disadvantaged against an employer with financial resources,
• more formal than other forms of ADR,
• possible delays in setting hearing dates,
• appeals limited to issues of law,
• employee likely to require legal representation in an appeal.
• possible reference to cases/examples

3 Discuss the advantages of using negotiation as a way of dealing with a civil dispute. (12marks)

Your answer could include the following:

• parties can deal with it themselves,

• no need for lawyers,
• no cost involved,
• quick,
• informal,
• the parties are in control,
• avoids more formal action,
• relationships are preserved.
• possible reference to cases/examples

4 Discuss the advantages of using juries in the criminal legal system. (12 marks)

Your answer could include the following:

• public confidence,
• fairness,
• open justice,
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 • free from influence,
• Impartial,
• representative
• possible reference to cases/examples

5 Discuss the disadvantages of the judiciary in the English legal system. (12 marks)

Your answer could include the following:

• Superior level judges often elderly, white males – potentially out of touch,
• fewer women and minority judges, particularly at higher levels,
• judges selected from narrow field – requirement to be experienced lawyers,
• limited training in skills required,
• legal knowledge in relevant areas assumed,
• limited opportunities for progression
• Judges unable to answer popular criticism of their decisions,
• Government often unwilling to defend judiciary from criticism.
• possible reference to cases/examples

6 Discuss the disadvantages of privately funding a legal case in the English legal system. (12 marks)

Your answer could include the following:

In relation to privately funding a civil case,

• it can be expensive – own lawyer’s fees, court fees, obtaining evidence,

• the loser pays the winner’s costs,
• conditional fees (CFA) not available in every action,
• even if available, CFA funding may be expensive; lawyer’s success fees will reduce any damages awarded,
• opponent may have deep pockets
• possible court delays,
• no guarantee of winning or receiving compensation,
• possible reference to cases/examples

Section 2: Criminal Law

Page 76

1 ‘To say that the conduct is over and done with as soon as the defendant lays hands upon the property, or when he
first manifests an intention to deal with it as his, is contrary to common-sense and to the natural meaning of words.’

Explain how the decision in Hale (1978) widened the definition of ‘immediately before or at the time of’ under s 8
Theft Act 1968.

Your answer may include:

• s 8 Theft Act 1968 defines the offence of robbery
• the Actus Reus of robbery includes two conditions on the force used by the accused - immediately before or
at the time of the theft and in order to steal
• the defence argued that the theft was completed as soon as the jewellery was seized by the defendant as in
Corcoran v Anderton. Therefore, there is no robbery if force used after the seizure as it is not ‘in order to
steal’
• Hale decided that the appropriation and theft can be a continuing act so the defendant can be found guilty
of robbery
• Whether theft is complete is a matter for the jury in robbery cases such as in Lockley
• This approach is inconsistent with Atakpu and Abrahams, a theft case. so the decision in Hale may only apply
to robbery

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 • Conclusion

2 ‘The defence of the prevention of crime under s 3 Criminal Law Act 1967 is clear and unambiguous.’

Examine the truth behind this statement.

Your answer may include:

• Explanation of s 3 Criminal Law Act 1967 – defence for a person who uses force reasonable in the
circumstances to prevent crime or to lawfully arrest offenders.
• Explanation of the subjective and objective tests
• Discussion of clarity about:
o necessity of force
o effect of defendant’s mental state
o when does use of force become allowable
o is the force used proportionate
o Possible overlap with loss of control defence may lead to confusion
• Reference to decided cases
• Conclusion based on arguments made above

3 William has been threatened by his girlfriend, Delia, that unless he steals a very expensive painting from an art
gallery, she will pour paint over his neighbour’s car. She says that she will tell the neighbour it was William who did
it. The last time Delia threatened William, she persuaded her brother, who has a series of convictions for violence, to
punch William in the face. William reluctantly steals the painting but is arrested by the police while he tries to
escape.

Advise William on whether he could avoid criminal liability for the theft/burglary by pleading duress by threats.

Your answer may include

• Recognition that the question the does not require a discussion of theft or burglary; it only requires
discussion of duress by threats in the context of theft/burglary
• Explanation of common law defence of duress by threats. State the two-part Graham (1982) test which must
be satisfied:
• Was the defendant compelled to act because they reasonably believed they had a good reason to fear death
or serious injury?
• Application to the facts in the scenario:
o There must be either a threat of death or serious injury. There is no direct threat only an implied
threat from previous behaviour
o The threat must be convincing, so a person of reasonable firmness with the defendant’s
characteristics would have given in. Even if it can be argued there is a threat of serious psychological
injury, it is not enough
o The threat must be objectively reasonable and subjectively genuine – it is herethere can be a
combination of threats, as here, but a threat of death or serious injury must be present which it is
not
o The threat can include the defendant, a close family member of their immediate family or people for
whom the defendant would reasonably regard themselves as responsible which is arguably present
with the threat of criminal damage to a neighbour’s car
o There is a safe avenue of escape, as the threat is not imminent and could be reported to police so
the defence would not be successful. There is no imminent danger
• Conclusion – defence unlikely to be successful

Page 77

4 ‘The common law definition of insanity stating a defendant must act while under a “defect of reason from a
disease of the mind” has allowed too many defendants to escape justice.’

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Examine the truth of this statement and whether the interests of justice are served by this part of the M’Naghten
Rules for insanity.

Your answer may include:

• Outline of the law on the M’Naghten Rules for insanity
• Outline of the special verdict and possible court orders following that verdict
• Discussion of meaning of defect of reason from a disease of the mind
o Being deprived of the power to reason, not just failing to use it - this does not include
absentmindedness or being confused
o ‘Arising from a disease of the mind’ is a legal term and not a medical term which must be supported
by medical evidence
o This is a broad definition covering organic or functional, permanent or transient and intermittent
issues
o Must be caused by an internal factor existing at the time of the act
• Discussion of number of successful insanity pleas is very small – perhaps around 30 per year. Use of
examplars such as recent case of Keal [2022] EWCA Crim 341
• Many defendants suffer from a mental disorder – perhaps 25per cent of adults will suffer a mental disorder
at some time in their life
• The law lags behind psychiatric understanding of mental disorders and their treatment
• Justice is not evaded because of the special verdict and court orders following the verdict
• Conclusion based on arguments made

5 ‘The defence of duress by threat is “a concession to human frailty”.’

Examine the truth behind this statement.

Your answer may include

• Outline of the law on duress by threat
• Consideration of the principle that it can never be justifiable for a person to do wrong
• Arguments and discussion with examples about:
o whether there should there be degrees of ‘wrongness’? If so should jury trial and sentencing be
sufficient to deal with the effect of threats
o should this be different where the threat is to do serious harm to another, merely to avoid
some, lesser harm, harm to himself?
o it should not be for the individual to balance the doing of wrong against the avoidance of harm
to himself
o should threat be a motive for the wrongful act although motive is, on general principle,
irrelevant to whether a crime has been committed
o the criminal law is itself a system of threats of penalties, which would be undermined if
overridden by threats to the accused
o a person should not be punished for giving in to overwhelming pressure by threats
o should the law take into account that the self-preservation instinct is natural, and that it would
wrong to ignore this
o the role of the parole board and sentence appeals
• Conclusion

6 Charlie lives next door to Edith, aged 85. Edith has complained to his father about Charlie and his friends playing
football in the back garden. Annoyed, Charlie puts a letter through Edith’s door which says, ‘I’m coming to get you!’
Charlie doesn’t sign the letter. Edith is very upset about this. Edith decides to go to the police, but as she leaves her
house she slips on a banana skin that Charlie has deliberately left on her doorstep. Edith breaks her hip in the fall.
Edith’s twin sister, Jean who lives with Edith, reads the letter and is so frightened and shaken by it that she refuses to
leave the house and becomes severely depressed.

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Consider the criminal liability of Charlie leading from his actions of writing the letter and leaving the banana peel.

Answers may include:

In relation to the letter:
• Assault – Defendant’s conduct can be words, actions or even silence – here it is a threatening letter. Both
victims are ‘upset’ and ‘frightened’ so actus reus of putting victim in fear / causing them to apprehend
violence -may be achieved. Questions may arise around immediacy of a letter – key cases Constanza, Ireland,
Smith v Woking
• Assault Mens Rea – direct intent for Edith – aim and purpose was to frighten her. Transferred Malice for Jean
– MR can be transferred in this instance as AR remains same – Latimer& Pembliton. However, as Jean and
Edith ove together, subjective recklessness as to causing Jean to apprehend violence may be easier to
establish.
• Jean’s severe depression could amount to GBH if deemed serious, permanent or requiring extensive
treatment (ABH if not) as psychiatric illness is sufficient provide it is a medically recognisable illness.
• S18 MR may be difficult to establish – but possible using transferred malice above. Probably more likely to be
s20 were intent for some harm, or recklessness to the full degree will suffice.
In relation to the banana skin:
• Also probably GBH given age and vulnerability Bollom. Indirect cause is not an issue DPP v K. Slip could be a
causation issue – possible a Novus Actus Interveniens, but a slip is a reasonable foreseeable consequence as
are the ensuing injuries, so not likely to break the chain.
• Direct intent for full degree of harm may be difficult to establish as above – but given her age and
vulnerability oblique intent for serious harm is possible -Woollin. If not, s20 recklessness as above.

7 Denzel was furious as his neighbour, Victor, had blocked his drive. He banged on Victor’s door. Victor began to
open the door but when he saw who was there he tried to close it again, Denzel pushed the door hard, Victor fell
back and hit his head on a coat peg in the hallway. When the ambulance arrived, the crew dropped Victor on the
way to the vehicle. On arrival at hospital, Victor was misdiagnosed with mild concussion. The following day, he died
from brain damage. The effects of the concussion were more serious for him because he suffered from brittle bone
disease, which meant that his skull did not adequately protect his brain.

Consider the criminal liability of Denzel for the involuntary manslaughter of Victor (including whether there was a
break in the chain of causation).

Answers could include:

• Denzel could be liable for involuntary manslaughter, for example, unlawful act manslaughter.
• Actus reus: Denzel is likely to have caused a criminal act (indirect battery, for example) when he forces
Victor’s door (Franklin, Lowe).
• Actus reus: Denzel’s act is dangerous, in that a sober and reasonable person would realise that forcing
the door would subject Victor to the risk of physical harm, though not necessarily serious harm, whether
or not Denzel realised this (Church).
• Actus reus: Victor’s unlawful and dangerous act must cause (factually and legally) Victor’s death, and this
is so in this situation as he has died of his head injury as a result of falling backwards when Denzel forced
his door (Carey).
• There may be a novus actus interveniens in the form of thirdparty intervention when the ambulance
crew dropped Victor, although this is unlikely to break the chain (Pagett Smith).
• There may be a novus actus interveniens in the form of the misdiagnosis at the hospital; if this can be
seen as ‘palpably wrong’ then it could break the chain (Cheshire Jordan).
• There may be a novus actus interveniens in the form of the thin skull rule as Victor has ‘brittle bone
disease’, a specific medical condition that could break the chain (Blaue).
• The mens rea of unlawful act manslaughter is that of the unlawful act. If the unlawful act is battery, for
example, then Denzel must have intended to apply the unlawful force or was reckless as to applying the
force. It looks likely that if he didn’t intend to apply the force, he must surely have seen a risk of this
since Victor was right behind the door when it was forced open.

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8 Ronald dislikes Ken and has recently argued with him over some money that he claims that Ken owes to him. One
evening Ronald overpowers Ken when he is walking home. Ronald ties Ken’s hands and feet and pushes him into his
car. He drives him to Felixstowe docks. At the dockside he unties his feet and hands and throws him into the water.
Ronald shouts at him, ‘That will cool you off’ and drives off. Ken can swim but is unable to climb up the steep dock
wall and drowns some two hours after being thrown into the water. In court Ronald argues that he thought Ken
could swim and that he did not intend to kill him, but he admits that he had read a newspaper report a week earlier
which said that a child had drowned in Felixstowe docks because he was unable to climb up the dock wall.

Consider Ronald’s criminal liability for Ken’s death and assess the value of jury trial in determining his criminal
liability.

Ronald’s criminal liability for Ken’s death:

• This question centres around the mens reas. There is no doubt that the actus reus of a homicide has been
achieved; i.e. Ronald has caused the death of a human being – the focus is on the type of mens rea.
• The mens rea of murder is ‘malice aforethought’ which means intent to kill or cause serious harm. Smith.
• Intent splits into direct and oblique. Direct is defined a ‘hope, wish want, desire, aim or purpose’. Ronald
argues that he ‘doesn’t want to kill Ken’ so this will be difficult to prove. However, oblique intent requires
the outcome to be virtually certain and the defendant to foresee this. Woollin. Given the recent events at
the docks and Ronald’s admission that he knows of this, this level of mens reas is a distinct possibility.
Should the prosecution fail to prove this, the defendant may face unlawful and dangerous act manslaughter
– in that case the principles outlined above would apply.

The value of jury trial:

Your answer may include:
• Discussion of the jury system in general:
o Public confidence
o Open system of justice
o Privacy of decision-making process
o Random selection process
o Neutrality

• Discussion of the jury from Ronald’s point of view:

o Media and social media coverage might influence jurors as recent case of a death similar to that in
his case
o Jurors can be ‘nobbled’ or otherwise biased – has Ronald anything well known that might lead to
bias?
o No explanation of verdict so he does not know what evidence might have swayed a lengthy decision
o Failure to understand the case because of the complex nature of the law on oblique intent

9 Dion’s mother owns several expensive paintings. One of Dion’s friends, Edward has said they had tried to buy one
of the paintings but her mother has refused. Dion lies, saying the painting is hers, and sells it to Edward. Edward goes
to collect the painting, but her mother tells him Dion has lied.

Dion owes Tom £200. Tom sees Dion spending some of Edward’s money on a designer handbag in a boutique shop
in town. Tom demands the £200 back and snatches it from the cash desk, puts it in his pocket and walks away.

Outside, Tom notices a £50 note on the pavement. He picks it up. Further down the street, he hears an old lady
asking if anyone has seen a £50 note as she has lost one in the street. Tom walks past the old lady and heads home.

Consider the criminal liability of Dion and Tom for theft.

Your answer may include:

• Outline of Actus Reus and Mens Rea of theft under Theft Act 1968 Dion

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 • With respect to the painting, the discussion of appropriation (s3 Theft Act 1968) and the case of Pitham
and Hale
• Conclusion based on discussion

• With respect to spending some of Edward’s money, discussion of whether there is consent to the
appropriation and the relevant cases
• Conclusion based on discussion

• With respect to the £200, it is irrelevant whether Dion stole the money. Discussion of belonging to
another and relevant cases
• With respect to the £200 a discussion of dishonesty and the definition from Barton and Booth and9in
particular) the case of Robinson
• Conclusion based on discussion

• With respect to the £50 note, discussion of abandoned property. The case of Small. The effect of hearing
the old lady’s possible claim to the money as to subsequent dishonesty
• Conclusion based on discussion

10 Claire’s friend Fallon runs a busy restaurant. Claire knows that Fallon goes to the bank with the restaurant’s
takings each morning at 10:00. On Monday, Claire waits in an alleyway next to the bank in order to snatch the
takings from Fallon as she walks by. However, because it is raining Fallon uses a taxi which drops her outside the
bank’s door, well away from the alleyway. On Tuesday, Claire waits outside the bank’s door wearing a hat and
sunglasses to disguise herself. As Fallon reaches the door, Claire tries to grab the takings but Fallon pushes Claire
away and runs inside the bank. On Wednesday, Claire waits just inside the bank’s door for Fallon to arrive. However,
the police, suspecting Claire might try to steal the takings again, have told Fallon not to go to the bank that day.
Instead, the police send an undercover police officer in her place. Claire tries to snatches the takings but is instantly
arrested by two other undercover police officers inside the bank.

Consider the criminal liability of Claire for any attempted crimes.

Your answer may include:

• Outline of actus reus and mens rea of robbery
• Discussion of attempt under the criminal Attempts Act 1981
• Monday events; discussion of whether merely preparatory and cases such as Geddes; Campbell.
• Conclusion – no actus reus so need to discuss mens rea

• Tuesday events – application of more than merely preparatory. Does being pushed away show that?
Consideration of mens rea of attempt, here mens rea of robbery
• Conclusion based on discussion

• Wednesday – discussion of attempting the impossible (no money to snatch) – Criminal Attempts Act
1981 ss1(2) and 1(3) and the cases of Shivpuri; Jones
• Conclusion based on discussion

11 Shauna and her partner Luca live in a block of flats. One morning on his way to work Luca is walking through the
main entrance when Grace, a neighbour, stands in his way and says: ‘Where are you off to, gorgeous?’ Luca is
nervous as he knows Grace can be violent, and shoves her so hard that she falls, banging her head against the floor.
Luca runs off to work.
Later that day, when Luca returns home from work, he tells Shauna what had happened earlier with Grace. Angry
and upset, Shauna goes to Grace’s flat and kicks in her front door, shouting, ‘Where are you? I’m going to kill you!’
Grace gets a knife from the kitchen and holds it up as Shauna approaches. Shauna picks up a plant pot and throws it
at Grace. The plant pot hits Grace in the chest. Grace runs at Shauna and stabs her, killing her instantly.

Luca, who has followed Shauna, grabs Grace and restrains her until the police arrive.
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Consider whether the defences of self-defence and the prevention of crime will assist Luca or Grace if they were to
be charged with any crimes.

Your answer may include:

• Discussion of the defences of self-defence and of the prevention of crime; common law principle and
clarification in s 76 Criminal Justice and Immigration Act 2008 as to the test of reasonableness
• Luca: offence of battery or s47 OAPA; can defence be proactive attack? Discussion of cases such as A-G
Ref. No. 2 of 1983 (1984); Deana; Bird
• Is force proportionate – Cairns?
• Conclusion based on discussion

• Shauna: homicide related offences. Was the use of force necessary in the circumstances (was force
needed at all)? Was the force used reasonable in the circumstance?; can the defendant aggressor
succeed with the defence, Rashford?
• Conclusion based on discussion

Page 78

12 Dorothy runs a clothes shop on the high street. She has been diagnosed with Asperger’s syndrome. Her partner,
Sylvia, who is heavily in debt, due to her gambling addiction, has said that unless Dorothy gives her £5000 the next
day, she will destroy all of the stock of clothes in the shop. Dorothy takes the threat very seriously; she goes to the
bank further down the street and, using a gun, robs the bank. As she leaves the bank, a passing police officer tries to
stop Dorothy. She shoots the police officer dead. Peter is driving his car along the same high street as the bank when
he sees Dorothy come out of the bank, shoot dead the police officer and fire at other passersby. As Dorothy runs
across the road to her getaway car, Peter drives straight at her, knocking her over and killing her instantly.

Consider whether the defence of duress by threat will assist Dorothy and whether the defence of duress of
circumstance will assist Peter, if they were to be charged with any crimes.

Your answer may include

• Identify robbery for Dorothy, and one of the homicide offences for both Dorothy and Peter.
• Discussion of defence of duress by threat referring to relevant cases.
• Application of defence of duress by threat to Dorothy:
o duress is a common law defence to all crimes except murder, so it will not be available with
respect to the killing of the policeman
o with respect to the robbery, the threat must be convincing to a person of reasonable firmness
taking into account her recognised mental illness (Bowen)
• Conclusion based on discussion above

• Discussion of defence of duress of circumstances referring to relevant cases.

• Application of defence of duress of circumstances to Peter:
o it was done to avoid further shootings which could not otherwise be avoided, but was it more
was done than was reasonably necessary and not disproportionate?
o the danger must be convincing to a person of reasonable firmness
• Conclusion based on discussion above

13 Angela’s brother Bob and his friend Charlie were sailing. Bob fell in the water and died. Angela believes Charlie
could have saved Bob. Angela is depressed and her doctor has prescribed medication. The instructions state she
must take one pill a day and not drink alcohol. At Bob’s funeral, Angela is wearing a brooch he gave to her. She hears
Charlie say that Bob was a dangerous sailor who ‘had it coming’. Angela is upset and takes one of her prescribed
pills, washed down with a glass of sherry. An hour later, Charlie comes and hugs her. She runs off and falls, breaking
her brooch. Angela sees Charlie laugh. She grabs a sharp knife from the lunch table and stabs Charlie several times,
killing him.

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Advise whether Angela can avoid liability for murder by using the defences of loss of control or diminished
responsibility.

Example answer:

Loss of control is defined in s 54 of the Coroners and Justice Act 2009.

There is a three-stage test: the defendant must lose control, because of a qualifying trigger, and a person of their sex
and age, with a normal degree of tolerance, might have reacted in the same way in the same circumstances.
In R v Jewell (2014), Lady Justice Rafferty held: ‘Loss of control is considered by the authors of Smith and Hogan 13th
edition to mean the loss of an ability to act in accordance with considered judgment or a loss of normal powers of
reasoning.’ Clearly, when Angela stabs Charlie several times, she has lost her normal powers of reasoning.
Section 55 defines what is meant by ‘qualifying trigger’. It can be the defendant’s fear of serious violence from the
victim, though this is clearly not the case here – there is nothing to suggest Angela feared Charlie. Alternatively, the
trigger can be something done and/or said by the victim that constituted circumstances of an extremely grave
character and caused the defendant to have a justified sense of being wronged This is for the jury to determine,
having applied an objective test. This is known as the ‘anger trigger’. While it is clear that Angela is very angry about
Charlie’s behaviour, that behaviour can hardly be described as being of a ‘grave character’ and giving Angela a
‘justified sense of being wronged’, so it is likely this partial defence will fail at this point, particularly as the defence is
not available to those who act in a considered desire for revenge (s 54(4)).

The final element from s 54(1)(c) requires that a person of the defendant’s sex and age, with a normal degree of
tolerance and self restraint and in the circumstances of the defendant, might have reacted in the same or similar
way. This is a question for the jury to decide. Additional characteristics may be relevant when assessing the
circumstances of the defendant, although under s 54(3) circumstances that relate to the defendant’s general capacity
to exercise tolerance and self-restraint are to be disregarded. Therefore, again it is likely Angela will fail this test as a
person with normal tolerance and self-restraint would not stab someone to death in these circumstances, and
Angela’s depression and consumption of alcohol and drugs will not be taken into account.

Therefore, she may have more success with the partial defence of diminished responsibility. This comes from s 52 of
the Coroners and Justice Act 2009, which provides a four-stage test: whether the defendant was suffering from an
abnormality of mental functioning; if so, whether it had arisen from a recognised medical condition; if so, whether it
had substantially impaired their ability either to understand the nature of their conduct or to form a rational
judgement or to exercise self-control (or any combination); and thus provide an explanation for their behaviour.
Abnormality of mental functioning means a state of mind so different from that of ordinary human beings that the
‘reasonable person’ would term it abnormal. It covers the ability to exercise willpower or to control physical acts in
accordance with rational judgement. It is a question for a jury – R v Byrne (1960). Angela’s response to Charlie may
be regarded as an abnormality of mental functioning.

This must arise from a recognised medical condition. These can be found in the World Health Organization’s
International Classification of Diseases. However, R v Dowds (2012) states that just because a recognised medical
condition appears in the lists does not necessarily mean that it is capable of being relied upon to show an
abnormality of mental functioning. Depression will satisfy this, but Angela’s state due to the alcohol and prescription
drugs may not, as Dowds illustrates. The abnormality of mental functioning must have substantially impaired
Angela’s ability to: understand the nature of her conduct, or form a rational judgement, or exercise self-control.
Angela understood what she was doing, but perhaps her impairment was in the exercise of self-control. However,
that impairment must be substantial.

‘Do we think, looking at it broadly as common-sense people, there was a substantial impairment of his mental
responsibility in what he did? If the answer is “no”, there may be some impairment, but we do not think it was
substantial.’ (R v Golds (2014)). Abnormality of mental functioning must provide an explanation for Angela’s actions;
it must be more than a merely trivial factor. The defence will not succeed if Angela’s depression made no difference
to her behaviour, but the alcohol did. Given this, it is likely Angela will fail on both partial defences and will be
convicted of murder.

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14 Dave and his friend Ernie approach Farah, who is using a mobile phone to show directions. Dave puts his fingers
in his pocket to look like a gun and Ernie pulls the phone from Farah. Farah tries to hold on but Ernie knocks her to
the ground and runs off with the phone. Dave has a key to his neighbour’s flat and the next day he decides to sell his
neighbour’s television. Dave and Ernie go to the flat but once inside they discover that the television is missing. Ernie
is angry and drinks a bottle of vodka belonging to Dave’s neighbour.

Advise whether Dave and Ernie are guilty of robbery and burglary, including any defences they may raise.

• Outline of actus reus and mens rea of robbery and of burglary

• Discussion of robbery:
o Stealing; theft completed by Ernie (he runs off with phone). No theft by Dave even though it could
be argued he put Farah in fear of being subject to force
o immediately before or at the time of doing so, and in order to do so, he uses force on any person;
Ernie snatches phone - sufficient force? Discussion of cases
• Conclusion based on discussion above.

• Discussion of burglary:
o Dave; s9(1)(a) Theft Act 1968; has formed the intent at the time of entry. He has implied permission
to enter but no such permission for purpose of theft. (Jones and Smith). There is no need to prove
the ulterior offence, for example, theft, is actually committed. Conditional intent is sufficient so
absence of television is irrelevant
o Ernie; s9(1)(b) Theft Act 1968; Dave has implied permission to enter discuss whether that applies to
Ernie. He must either know they are trespassing or be subjectively reckless as to whether they are
doing so. If so, he has stolen the vodka.
• Conclusion based on discussion above.

15 ‘Reform for non-fatal offences is long overdue.’ Discuss the extent to which this statement is accurate.
Example answer:

The Offences Against the Person Act 1861 consolidated, but did not rationalise, the definitions of non-fatal offences
in this area. There was no attempt to set out a new and coherent set of offences leaving ambiguities in the
definitions.

The hierarchical order of seriousness of offence according to injury does not run in chronological order. The least
serious offence of ABH is charged under s 47, the next serious offence is charged under s 20, while the most serious is
charged under s 18.

The Criminal Justice Act 1988 does not provide a statutory definition of common assault. Judges have defined
common assault in far greater clarity than the other non-fatal offences. There remains confusion to the lay person
over the word ‘assault’. The public perception of an ‘assault’ is a physical attack and not, as it is under law, a threat.
The media use the word ‘assault’ as a generic term to simplify a news article and is a common misconception.

Words alone can constitute a technical assault. So, for example, a letter or an email can be sufficient. A silent
telephone call can be a technical assault because the courts have allowed a ‘fear of violence at some time, not
excluding the immediate future’, stretching the definition of ‘immediate’ to a significant degree.

There are conflicting cases over whether there must be hostility by the defendant to satisfy a battery. The normal
jostling or brushing past in everyday life does not amount to a battery; to move physical contact up to a criminal
offence there must require a degree of hostility. Therefore, potentially, low-level incidents are seen as lawful even
when the defendant’s intention or recklessness was to act unlawfully.

Regarding s 47, assault occasioning actual bodily harm, the Offences Against the Person Act does not provide a
statutory definition under this section and the language used is antiquated. The offence is historic and the literal
definition is more than the physical touching of a battery as there must be actual harm to the body but which falls
short of grievous. The lack of specific definition has led to confusion and the necessary introduction of common law
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and CPS guidelines. In ss 18 and 20, malicious wounding or inflicting grievous bodily harm, the Act does not provide a
statutory definition and the language used is antiquated. The Act appears to differentiate the method of carrying out
the offences under each section by using ‘inflict’ in s 20 and ‘cause’ in s18. Lord Hope stated in Burstow that for all
practical purposes there is no difference between the two words. If the words are synonymous, why didn’t the
legislators in 1861 use the same word? Lord Hope did qualify his opinion in Burstow by saying ‘inflict’ suggests
something unpleasant, while ‘cause’ may not do so.

In respect of sentencing, there is a huge jump from a maximum of six months’ imprisonment for common assault to
five years’ imprisonment for the next serious offence under s 47. Sections 47 and 20 carry the same maximum
sentence of five years, while ss 20 and 18 carry different sentences for the same level of injury – wounding/GBH: five
years’ and life imprisonment respectively. These are maximum sentences and reflect the severity of injury and MR, or
a combination of these two offences. The differences in severity of injury and MR, or a combination of these two
offences are not sufficiently differentiated.

There has been much suggestion for reform in this area over the years, most recently in the 2015 Law Commission
report Offences Against the Person. This modified the previous recommendations already suggested by the Home
Office’s Draft Bill in 1998 (based on previous Law Commission recommendations) to: give a more logical structure;
provide greater clarity in the offences’ interpretations; and ensure cases are tried in the most appropriate level of
court given the gravity and complexity of the circumstances.

The Law Commission recommended that the reform to assault and battery would provide two offences of physical
assault and threatened assault. The Law Commission referred to ss 18, 20 and 47 as ‘the injury offences’ and the
draft Bill organises the three offences from most serious to least serious:

• Clause 1: intentionally causing serious injury; maximum sentence of life imprisonment (in effect replacing s 18).

• Clause 2: recklessly causing serious injury; maximum sentence of seven years’ imprisonment (in effect replacing s
20).

• Clause 3: intentionally or recklessly causing injury; maximum sentence of five years’ imprisonment (in effect
replacing s 47).

This means wounding is specifically removed and categorised as either an injury or a serious injury; GBH is replaced
by ‘serious injury’; and the replacement for s 47 does not need an assault or battery to occur –any means of causing
an injury is acceptable.

So it is clear that the offences need reform, and indeed there have been many attempts to action this reform.
However, the proposals remain as such and, given that they attract little political currency, they are likely to remain
so in the current climate.

Section: 3 Law Making

Page 103

8-mark questions
1 Explain the extrinsic aids used in statutory interpretation.

Answers may include:

• Dictionaries of the time
• Hansard, through the rules from Pepper v Hart
• Law Commission reports or other law reform bodies’ publications
• Relevant case law
• Relevant Acts of Parliament
• Relevant international legal instruments
• Academic publications
• The Interpretation Act 1978

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2 Describe the stages of the parliamentary law-making process.

Answers may include:

Pre-legislative process – Green Paper, White Paper
Explain the stages in the House of Commons or the House of Lords:
• Bills may start in either House – except finance bills which start in the House of Commons
• First Reading (formality)
• Second Reading (discussion of the principles of the Bill, House vote)
• Committee Stage (detailed discussion in the whole House, proposed amendments voted on in Committee)
• Report Stage (Committee’s proposed amendments presented to the House, House votes on proposed
amendments)
• Third Reading (Final chance for House vote on the Bill).
The other House – bill is passed from House of Commons to House of Lords (or vice versa) for consideration and
amendments – it is then passed back to Commons for further amendments – and may then be returned to Lords -
can result in ‘ping-pong’.
Royal Assent (the final part of the parliamentary process – a formality – no longer physically signed by the monarch).

3 Explain the role of the House of Lords in the law-making process.

Legislation can begin in either the Commons or the Lords, but regardless of its starting point, must go through both
houses. The process is similar in both involving a number of readings, committee and report stages. However, the
House of Lords has a role in scrutinising the role of government in a way not necessarily available to the Commons
where government has a majority. So the role of the House of Lords is much more focused on detailed scrutiny.
Should it be unhappy with proposed legislation sent from the Commons, the Lords can make suggestions and
amendments which must in turn be approved by the Commons. So it is argued that while the Lords does provide a
check on the Commons and the Government power, it is only in a limited way.

4 Explain the process of passing an Act of Parliament starting in the House of Commons.
While a new law is making its way through the formal stages of becoming an Act of Parliament, it is known as a Bill.
Each stage should then be explained – starting with the Commons, moving on to the process and role of the Lords,
before finally dealing with the purpose and process of Royal Assent.

5 Explain the purpose of Orders in Council.

Orders in Council are pieces of secondary legislation made by the Privy Council in times of emergency.
They save Parliament time as they can be a quick response in emergency situations.
The Civil Contingencies Act 2004 gives the Privy Council power to make law in times of emergency
when Parliament is not sitting. Orders in Council are made by the Queen acting on the advice of the Privy Council
and are approved in person by the monarch.

6 Explain what is meant by ratio decidendi.

Ratio decidendi means ‘reason for the decision’ and is the part of the judgment which forms the precedent for
future cases.
It is the point of law which is binding on future similar cases and forms the basis of the system of precedent. For
example, that words can prevent an action from being an assault can be found in the ratio decidendi of Tuberville v
Savage (1669).

7 Explain the work of the Law Commission.

• The Law Commission can choose areas that it considers need updating, or areas can be referred to it by the
government via the Lord Chancellor.
• Its first step is to open a consultation, which sets out the current law and why it needs to be reformed. For
example, a consultation was launched in July 2017 regarding wills.
• The consultation invites responses from interested parties and will include the problems with current law,
suggestions for reform, questions for interested parties to consider, and examples of how the area of law
operates in other countries.

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 • After the consultation, the Law Commission will issue a report. This often contains a draft Bill that
Parliament could begin to put through the formal process of creating an Act.
• Codification means reviewing all the law on one topic and creating a complete code of law.
• When the Law Commission was first set up, its aim was to codify – i.e. rewrite – all of family law, contract
law, landlord and tenant laws and the law of evidence. However, the enormity of this task meant the idea
was shelved.
• In 1985, the Law Commission published a draft criminal code which included all of the main general
principles of criminal law. However, governments have never implemented it, and the Law Commission
stated in 2008 that in future it would concentrate on smaller areas, as there is more chance the government
will then adopt these.
• Consolidation means drawing all the existing provisions in an area of law together into one Act. It is different
to codification, as the law is not reviewed or changed; it is simply brought together.
• In July 2017, a new consultation was launched by the Law Commission to tidy up sentencing law – to
‘modernise the law, bring greater transparency and improve efficiency’.
• The repeal of an Act of Parliament means that the Act ceases to be law. Only Parliament can repeal an Act of
Parliament, but the Law Commission can advise Parliament about which Acts should be repealed. Its job is to
identify which Acts are no longer needed – such as the Statute of Marlborough 1267 passed during the reign
of Henry III!
• This is the area of the Law Commission’s work where it has seen most success: 19 Bills have been
enacted since 1965, which repeal more than 3000 Act

12-mark questions
1 Explain why stare decisis is so important. Use an example from civil or criminal law to illustrate one of your
suggested reasons.
• Stare decisis means ‘let the decision stand’ and form the fundamental principle of precedent, and simply
means that a decision in an early case will stand as guidance for all future cases.
• The decision made by the court is known as the ‘judgment’. This contains the decision and an explanation of
how it was reached.
• The hierarchical structure of the courts is important here as the decision stand to bind or guide all court of
equal or lower rank in the structure – hence the Supreme court decisions bind lower courts.
• Examples could include Donoghue v Stevenson and Caporo v Dickman or R v Roberts and R v Williams or any
other cases from either civil or criminal law which you can show have had a significant impact on the
development of the law in that area.

2 Discuss the advantages and disadvantages of the literal rule.

Answers may include:

Advantages of the Literal Rule:
• Gives clarity and therefore predictability
• Focusses the mind of Parliament, forcing them to be clear in their language
• Respects Parliamentary Sovereignty in that it gives effect to the precise words legislated
• Respects the Separation of Powers doctrine as the judges have minimal or no legislative function.
• Disadvantages of the Literal Rule:
• Can lead to absurd/unjust results
• Can undermine Parliament’s intentions rather than further them
• It demands unrealistic perfection from draftsmen and foresight from Parliament
• It is based on erroneous assumptions regarding meaning in language.

3 Discuss the continued relevance of parliamentary supremacy / sovereignty

• The doctrine of parliamentary supremacy centres around the principle that parliament is supreme; that
parliament is not subservient to any other body and that no parliament can bind any future parliament –
Cheney v Conn.

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 • This has been subject to much debate particularly in relation to the European Communities Act 1972. It was
argued that by aligning the UK to the EU, this Act contradicted the principle of Parliamentary supremacy, by
committing the UK to the EU and the powers of the European Parliament, Commission and Court. This was
illustrated by the Factortame cases.
• However, Brexit and the Miller cases have illustrated that Parliament is indeed supreme, cannot be bound by
its predecessors nor limited by government.
• This means similar arguments about the Human Rights Act and the Acts devolving power to the Scottish
Parliament, Welsh & Irish Assemblies contradicting parliamentary supremacy are as misplaced as those
around membership of the EU.

4 Discuss the advantages and disadvantages of creating law using Acts of Parliament.

Answers may include:

Advantages of Parliamentary law making:
• It is democratic – laws are made by our elected representatives
• There is a consultation stage – the pre-legislative process, which allows influences on Parliament
• The process in both Houses is lengthy – bills are generally the subject of much debate
• Bills must be approved by both the House of Commons and House of Lords
• Acts of Parliament can be wide ranging.
• Disadvantages of Parliamentary law making:
• Parliament does not have time to deal with all the reforms that are proposed
• The legislative process has many stages and can take several months
• The government controls the parliamentary timetable
• Little time is given to Private Members Bills, which can be voted down by government
• Acts of Parliament can be very long and complex for example the Data Protection Act 2018 has over 200
sections with an additional 20 schedules.

5 Following a serious fire, building regulations need to be updated. Suggest which type of delegated legislation
would be the most suitable form for the new rules and give reasons for your answer.
• Statutory instruments are also known as Ministerial Regulations. These are made by Government ministers
under powers conferred upon them by parliament.
• Over 3000 SIs are made each year. Parliament could not cope with this volume or complexity, which is best
left to the departments with expertise and responsibility in specific areas.
• For example, the Building Regulations 2010 are incredibly complex, made by the Department for
Communities and Local Government under the Building Act 1984.

6 Explain the importance of an independent judiciary and the methods by which this is achieved. (12 marks)

Your answer could include the following:

• Importance
o public confidence,
o acceptance of decisions,
o freedom from influence,
o making decisions affecting government
• Methods
o security of tenure of Superior level judges,
o s3 Constitutional Reform Act 2003 guarantee,
o immunity from being sued,
o independence from Legislature and Executive
o independent of parties in case
• Possible reference to cases/examples

7 Discuss the effectiveness of the controls on delegated legislation.

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 • The Parent Act is usually very effective, but Parliament is not foolproof when it comes to making new Acts.
• The Police and Criminal Evidence Act 1984 gives the Ministry of Justice powers to alter police powers.
• Affirmative Resolution Orders could not be used 3000 times a year, and so is very restricted to highly
controversial areas. An affirmative resolution is required before new or revised police Codes of Practice
under the Police and Criminal Evidence Act 1984 can come into force.
• Negative Resolution Orders - tt is difficult to spot the problem within the 40 days, given the huge volume of
SIs (3000 per year). Also, even if spotted, it means bad law has been in place for 40 days and so still applies
to those 40 days. For example the Paraffin (Maximum Retail Prices) (Revocation) Order 1979
• The Joint Scrutiny Committee again cannot possibly scrutinise all 3000 SIs each year, so problematic ones
must slip through the net for example the Code of Practice (Picketing) Order 2017 reportedly failed to
comply with proper legislative practice.
• Procedural ultra vires - while these controls are effective, they are only available once the piece of delegated
legislation has come into effect, and only then if an affected party seeks (and funds!) a judicial review. This
can be a very expensive process, e.g. the recent case regarding Jon Warboy’s parole – see R (DSD And Ors) v
The Parole Board and Ors (2018). Agricultural Training Board v Aylesbury Mushrooms Ltd (1972): the
Horticultural Society was obliged to ‘consult’ all interested parties before bringing in new regulations, but
did not consult the mushroom growers.
• Substantive ultra vires - R v Secretary of State for Health ex parte Pfizer Ltd (1999): the government lacked
the power to ban the prescription of Viagra on the NHS for cost reasons – the ban was void.
• Wednesbury unreasonableness - Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)

8 Discuss the advantages and disadvantages of judicial precedent.

Advantages include:
• Certainty – it allows the law to be predictable, which in turn promotes alternative dispute resolution (ADR) in
civil cases.
• Consistency – like cases are decided alike, promoting a sense of justice.
• Fairness – the certainty and consistency allow parties involved in cases to see how the decision was arrived
at, and that it is fair in the circumstances.
• Precision – the exact details of the law are known by all parties.
• Flexibility – bad precedents can be avoided using the Practice Statement, e.g. Young v Bristol Aeroplane Co.
Ltd (1944).
• Time-saving – the predictability makes ADR more likely, thus saving parties (and the courts) time and money.
• Details can be added to statutory provisions, such as R v Clinton (2012) clarifying the position on sexual
infidelity.
• The law can evolve to meet changing social attitudes, as it did by establishing an offence of rape within
marriage in R v R (1991).
Disadvantages include:
• Rigidity – binding decisions can restrict decisions made in the interests of individual justice.
• Complexity – judgments are long and difficult to read, and it is not always easy to identify the ratio decidendi
and obiter dicta.
• Illogical distinctions – some cases are distinguished on very minor or controversial points. This could be
argued in R v Brown (1993) and R v Wilson (1996); the defence of consent was allowed in Wilson but not in
Brown, arguably on the basis of sexuality.
• Slowness of growth – the development of precedent depends on accidents of litigation, i.e. waiting for a
similar case to come along in order to develop the law further.
• A bad precedent needs another case or an Act of Parliament to correct it, as in DPP v Smith (1961), and the
Criminal Justice Act 1967 which reset intention as a subjective test.
Conclusion – while there are significant disadvantages, the importance of precedent and the advantages above far
outweigh the disadvantages.

Section 4: The Law of Tort

Page 138

1 Previously a quiet lake overlooked by a few cottages, Linacre Lake has recently been developed by its new owner,
Wetlife Developments, to provide extensive leisure facilities, including swimming and powerboating. In
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consequence, a cottage owner, Ingrid, has experienced a large increase in noise, especially at weekends and during
frequent competition weeks. Additionally, damage to a diesel oil storage tank owned by Wetlife Developments
resulted in a leak which caused extensive contamination of Ingrid’s vegetable garden.
Advise whether Ingrid will be successful in claims of both private nuisance and Rylands v Fletcher against Wetlife
Developments.

Example answer:
In relation to the noise, Ingrid may have a claim in private nuisance.
Nuisance is defined by Winfield as ‘unreasonable interference with a person’s use/enjoyment of his land’ and as such
deals with the courts balancing the conflicting interests between neighbours.
The claimant must have ‘proprietary interest’ in the property, i.e. own or lease it. In Malone v Laskey (1907) the wife
of the licensee did not have a proprietary interest. Here we know Ingrid owns her cottage, so this element is satisfied.
Interference can amount to encroachment, damage or an assault on the senses and has typically taken the form of
noises and smells. In Kennaway v Thompson (1981) noisy motorboat racing amounted to a nuisance, as in this case.
Next the interference must be ‘unreasonable’ to give rise to a claim, i.e. an objective test. Issues that make an
interference unreasonable include locality – Sturges v Bridgman (1879), where the judge said, ‘what would be a
nuisance in Belgrave Square would not necessarily be so in Berdmonsey’. In this case we are told the area was ‘quiet’
so this increase in noise may be unreasonable – however, planning permission which changes the nature of the area
may negate this. The duration and frequency may make the noise unreasonable, as in the Kimbolton case (Crown
River Cruises Ltd v Kimbolton Fireworks (1996)). In the present case we are told the competitions are ‘frequent’. If the
claimant is unusually sensitive, this doesn’t make the interference unreasonable unless the activity would amount to
a nuisance to others – Robinson v Kilvert (1889). Finally, if the defendant acts with malice in the generation of the
nuisance, this will also make it unreasonable – Hollywood Silver Fox Farm v Emmett (1936).
Therefore, the noise in this case is likely to amount to an unreasonable interference with Ingrid’s use of her land.
The defences to nuisance include prescription, which requires the nuisance to have gone unchallenged for 20 years,
so clearly not relevant here as we are told the developments are recent; and planning permission. The latter has
developed to become a defence from an original position that stated the planning authority could not authorise
nuisance when taking into account the new purpose for which the land is used. Assuming Wetlife have obtained the
relevant permission, this could operate as a defence. The fact that the lake is being used for sports suggests it might
be of benefit to the community. However, this is no defence, but might mean an award of damages may be preferred
to an injunction to stop, as in Miller v Jackson (1977), relating to a cricket club.
Clearly, as above, the activities at Linacre will interfere with Ingrid’s enjoyment of her land and so the remedy she will
claim will be an injunction. This is a court order requiring the defendant to stop their nuisance behaviour. It is possible
in this case, which is very similar to the facts of Kennaway v Thompson, that a partial injunction may be granted, i.e.
not forbidding all activity on the lake, but limiting the occurrence of competitions, etc. that cause most of the
nuisance.

Page 139

2 Some swimmers were in the habit of swimming beneath the surface in an area of Linacre Lake clearly marked out
for powerboating only. While doing so, Jon surfaced into the path of a powerboat being driven by Kylie. In the
resulting collision, Jon suffered severe facial injuries while Kylie was knocked out of the boat and had her arm
severed by the propeller. Advise whether Jon and Kylie will be successful in claims of occupiers’ liability against the
owners of Linacre Lake.

• Kylie’s rights against Wetlife will be under occupiers’ liability. As a powerboat user on a lake marked out for
powerboating, we can assume that Kylie is a visitor rather than a trespasser and so it is the Occupiers’
Liability Act 1957 that would apply here.
• An occupier for the purposes of both Occupiers’ Liability Acts is a person with ‘control’ of the premises. In
Wheat v Lacon (1966), involving a guest at a B&B falling downstairs because of the lack of light bulb, both
the brewery that owned the building and the licensee were ‘occupiers’. As we are told that Wetlife own
Blackwater Lake, they are clearly in control of it and, therefore, are occupiers.
• Section 2(2) of the 1957 Act states that occupiers owe a duty to visitors to ensure the visitors will be
reasonably safe in using the premises for the purposes for which they are invited or permitted by the

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 occupier to be there. In The Calgarth (1927) it was stated that ‘when you invite a person in to use the stairs,
you do not expect him to slide down the bannister’.
• As Kylie is using the lake for the purpose for which it is intended, she is clearly owed this duty by Wetlife.
• To determine whether Wetlife breached this duty, we would need to know whether they had done all that
was reasonable in the circumstances to keep Kylie safe. We are told there were signs marking the area out
for powerboaters, but not whether anything further had been done to ensure powerboaters were kept
reasonably safe. The normal rules of breach of duty apply, so the courts will consider the objective test of
Blyth v Birmingham Water Works (1856) and whether Wetlife had acted as a reasonable provider of such a
facility would act. In addition, the court would consider the risk factors, for example the likelihood and
degree of harm, the vulnerability of the victim and whether the risk held any social importance.
• Furthermore, Kylie would need to establish that the breach, if there was one, caused her injuries. Clearly this
rests entirely on establishing whether Wetlife are held to have breached their duty of care to Kylie.
• Jon’s rights against Wetlife may be found under the Occupiers’ Liability Act 1984. As a swimmer on a lake
marked out for powerboating, we can assume that Jon is a non-visitor, i.e. a trespasser, rather than a visitor
and so it is the 1984 Act that would apply here.
• The duty, contained in s 1(4), is ‘to take such care as is reasonable in all the circumstances of the case to see
that he does not suffer injury on the premises by reason of the danger concerned’.
• There are control measures on this though. Section 1(3) states that:
• the defendant must be aware of the danger
• the defendant must know that the other is in the vicinity of the danger
• the risk is one against which the defendant may reasonably be expected to offer the other some protection.
• In Swain v Natui Ram Puri (1996), involving a child falling from a factory roof, the defendant had no idea that
children were habitually trespassing and there was no evidence that should have informed him that that was
the case, therefore as (a) and (b) are subjective tests, the defendant was not liable.
• In this case we are told that swimmers habitually use the area marked out for powerboating, so it is highly
likely that Wetlife knew of the danger and knew swimmers were to come into the vicinity of it.
• Breach of the duty is to do with the ‘state of the premises’ and the dangers it poses. In Keown v Coventry
Healthcare NHS Trust (2006) a fire escape being played on by children was a legal requirement and therefore
was not in breach of the duty owed. Furthermore, under s 1(5) the defendant can fulfil their duty by warning
the claimant of the danger. This is a lower standard than is required by the 1957 Act. So, by clearly marking
an area for powerboating only, it is possible that Wetlife have done everything a reasonable occupier would
need to do in respect of trespassers – although as we are told the swimmers are often under the surface,
there is a possibility the signs may not be in appropriate places.
• The Occupiers’ Liability Act 1984 only imposes a duty for death or personal injury, so should there be a
breach of the duty here, Jon’s facial injury is sufficient.

3 Anjit has hired a cement mixer and is mixing cement on his drive. The mixer has a sticker on it stating that goggles
must be worn because it can throw out small stones. Anjit’s neighbour, Bhavin, comes out of his house and leans on
the mixer to chat to Anjit. Anjit does not warn Bhavin that he should wear goggles or move away. Anjit decides to
show off by switching the mixer to a faster speed. The mixer throws out a stone which hits Bhavin in the face,
causing him serious injuries.
Advise whether Bhavin will be successful in a claim of negligence against Anjit.

Answers may include:

The basic elements of negligence:
• Duty of care between claimant and defendant – Donoghue v Stevenson, Caparo v Dickman
• Foresight of damage, proximity and whether it just and reasonable to impose a duty.
• Reason that Anjit owes a duty of care to Bilal. Assuming this is a novel situation an application of the Caparo
test will show:
o it was a reasonably foreseeable event – as evidenced by the existence of a warning
o there is proximity between Anjit and Bhavin in both the physical sense and in terms of Anjit’s
awareness of the potential risk
o it will be fair, just and reasonable to impose a duty in the wider interests of public safety and the
ease of taking precautions.

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 o Breach of duty – falling below the reasonable man test – Blyth v Birmingham Waterworks
o Foreseeability of harm, likelihood of harm, social utility.
o Reason that Anjit has breached his duty of care by:
o Falling below the standard of the reasonable gardener using a powerful mower
o This is evidenced by the fact that he was showing off and pushing the mower too fast.
o Damage caused to the claimant by the defendant.
o ‘But for’ test – Barnett
o Remoteness of damage – Wagon Mound (No 1)
o Break in the chain of causation – new intervening act.
o Reason that Anjit has caused Bhavin’s injuries and caused reasonably foreseeable harm by:
o Concluding that ‘but for’ Anjit’s actions, Bhavin would not have sustained his injuries
o Concluding that there were no intervening acts which might have broken the chain of causation.
o Reason that Bhavin’s damages may be reduced due to:
o Not wearing goggles (again knowing he should as he has a similar mower) may be considered
contributorily negligent and lead to a reduction in damages.
o Reason that Anjit may escape liability due to:
o Bhavin placing himself in known danger (since he has a similar mower) he might be argued to be violent.

4 Boris books a stay at the Karlov Hotel. He awakes in the middle of the night unable to sleep and decides to go to
the hotel gardens for a walk. A sign on the gate reads: ‘Gardens Closed at Night – No Entry To Guests During These
Hours’. Boris reads the sign but ignores it and goes in. The gardens are in darkness and Boris falls into a composting
trench and is badly injured.
Advise whether Boris will be successful in a claim in occupier’s liability against the Karlov Hotel.

Answers may include:

• Identify this as occupiers’ liability.
• The Hotel will be considered as premises and the owners will be considered as ‘occupiers’.
• This is governed by two Acts of Parliament – one covering lawful visitors (The Occupiers’ Liability Act 1957)
and one covering non-lawful visitors (trespassers) (The Occupiers’ Liability Act 1984).
• Under the 1957 Act a lawful visitor can be an invitee, a licensee, or someone with a contractual or legal right
to enter.
• A lawful visitor under the 1957 Act can become a trespasser when they go beyond their permission.
• Bhavin is a paying guest and that, as such, he has a licence (accept either express or implied) to be on the
premises. However, when he reads and ignores the notice on the door he becomes a trespasser.
• An occupier will only owe a duty under s.1(3) of the 1984 Act if:
• He is aware of the danger (or has reasonable grounds to believe it exists)
• He knows or has reasonable grounds to believe that C is in the vicinity of the danger; and
• The risk is one against which, in the circumstances of the case, he may reasonably be expected to offer some
protection.
• Hote Karlov will owe a duty of common humanity under the 84 Act if the three aspects of s.1(3) are satisfied:
(1) there is an obvious danger when a pool is empty and in darkness; (2) Hotel Karlov could anticipate
trespassers being in the vicinity of the danger if the door is unlocked; and (3) Hotel Karlov could
• easily have offered some protection by locking the door.
• s1(4) states duty is to ‘take such care as is reasonable in all the circumstances’ to prevent injury to
trespassers ‘by reason of the danger concerned’.
• The occupier is entitled to take into account the practicality of taking precautions (Tomlinson v Congleton
BC).
• An occupier is also entitled to expect that a trespasser will not engage in foolhardy pursuits (Donoghue v
Folkestone).
• An occupier may also limit the scope of his duty through the use of effective warnings under s1(5)
(Westwood v Post Office) or volenti under s.1(6) (Ratcliffe v McConnell).
• Under s.1(5) the warning must be sufficient to enable the trespasser to be safe – Roles v Nathan.
• Conclude that Karlov Hotel look likely to be liable under s.1(3) as they satisfy the three aspects but that the
warning notice acts as a full defence since it was capable of making Bhavin safe – Tomlinson v Congleton BC.

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 • If the warning notice were sufficient Bhavin may have any damages reduced as he has contributed to his
own injuries under the partial defence of contributory negligence (Sayers v Harlow) by ignoring the notice.

5 Gino purchased a house directly opposite Cath’s Café which operates a lunchtime service for lorry drivers so the
cafe is generally only busy in the daytime when Gino is at work. However, the cafe has recently changed its business
model to provide a 24-hour drive through service. This means that there is noise and pollution from the lorries, as
well as neon lights shining brightly throughout the night. As a result, Gino cannot sleep. His wife, Helena who works
from home, can no longer get a mobile phone signal because Cath’s Cafe have built an extension opposite her home
office window which blocks out the signal.
Advise whether Gino and Helena can make successful claims in private nuisance.

Answers may include:

• The tort of private nuisance – an unlawful, indirect interference with another person’s use or enjoyment of
land or rights over it.
• A potential defendant is an occupier of land Tetley v Chitty.
• For a claimant to sue he must be able to show an interest in the land affected by the nuisance Malone v
Laskey, Hunter v Canary Wharf – and that those lacking a proprietary interest cannot sue. Gino and Helena
are occupiers as they has a proprietary interest in the land affected – Hunter v Canary Wharf

The type of indirect interference giving rise to liability and unlawful actually means unreasonable:
• Noise or vibrations – Sturges v Bridgman
• Smoke and fumes – St Helens Smelting v Tipping
• Smell – Bliss v Hall
• Damage – St Helens Smelting v Tipping
• Hot air – Robinson v Kilvert.
• There is a difference between nuisance causing damage and one causing interference with comfort or the
enjoyment of land Halsey v Esso Petroleum.
• Since there is no physical damage, the claim will be based on interference with comfort and enjoyment of
land and this will involve establishing unreasonable use of land – St Helens Smelting Co v Tipping; Sturges v
Bridgman
• The interference is indirect and continuous despite only starting recently – Crown River Cruises Ltd v
Kimbolton Fireworks Ltd; Halsey v Esso
• The case has a similarity to Halsey v Esso and the change of practice may have created a level of
unreasonableness in the potential nuisance
• The elements that may be taken into account in determining whether the use of land is unreasonable:
• Locality – Sturges v Bridgman, Kennaway v Thompson, Laws v Florinplace
• Duration – Spicer v Smee, De Keyser’s Royal Hotel v Spicer Bros
• Sensitivity – Robinson v Kilvert, Network Rail.
• The occupier’s measured duty of care – Holbeck Hall Hotel v Scarborough BC.
• Gino will need to check that Cath’s Cafe do not have planning permission or statutory authority.
• Conclude that based on Halsey v Esso, Andy may well have an actionable nuisance.
• Helena’s problem is very similar to the facts of Hunter v Canary Wharf and it may be that the court would
take a different view about the value of mobile phone signals in people’s lives to that taken regarding TV
signals at the time.
• Remedies:
• Damages – Halsey
• Injunctions – Kennaway v Thompson
• Abatement.

6 Frost Racing owns a motor racing circuit. They have fuel tanks and a safety wall made up of used tyres. Linda owns
a neighbouring allotment where she grows organic vegetables. One night, during a terrible storm, the lid of the fuel
tank is blown off. Rainwater fills the tank which overflows, spreading fuel all over Linda’s allotment, destroying her
vegetables. A bolt of lightning strikes the tyre wall, setting them alight. The tyres burn rapidly and thick black smoke
covers Linda’s greenhouse with soot.
Advise whether Linda will be successful in a claim in Rylands v Fletcher against Frost Racing.
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Answers may include:
• A claimant must have an interest in the land to pursue a claim as in the case of nuisance Transco, Hunter v
Canary Wharf.
• A defendant needs to be either the accumulator or the occupier of the land accumulated on Read v Lyons.
• For a claim in Rylands v Fletcher, a claimant will have to show that:
o The thing was brought and accumulated on the defendant’s land – The Charing Cross Case, Giles v
Walker The oil has been brought onto Newtown Recycling’s land
o The thing escaping causes damage and note the position (at least) regarding fire under Stannard v Gore
o The thing will be likely to cause mischief if it escapes – Rylands v Fletcher, Hale v Jennings Bros although
the thing itself need not be inherently dangerous – Shiffman. Oil (especially used oil) is a thing which is
likely to cause mischief if it escapes
o There must be an escape but this can be either from land over which the defendant has control Read v
Lyons or from circumstances over which the defendant has control – Transco, British Celanese v Hunt,
Hale v Jennings. Oil escapes by running into Clarissa’s land when the water forces it out of the tank
o The thing escaping must cause damage
o The harm must be foreseeable – Cambridge Water v Eastern Counties Leather, Transco.
o Explain that the use of land must be non-natural:
o A potentially dangerous activity – Cambridge Water v Eastern Counties Leather
o Things stored in large quantities – Mason v Levy Autoparts, Musgrove v Pandelis
o A truly domestic use is a natural use. Storage of oil in such industrial quantities is likely to be considered
as non-natural use of land since Transco and the requirement of exceptional danger is fulfilled
o If the public derive a benefit from the use of land that is in question then the court may find the use to
be natural – British Celanese v Hunt. Although there is still a public benefit derived from the oil recycling
facility, this activity may be seen as bringing with it a potential level of danger to merit it as a non-natural
use overriding any public benefit derived Weller v Foot & Mouth Disease Research Unit.
o Damage to the soil is a foreseeable type of loss as a result of the oil tank losing its lid and the oil
escaping.

In respect of the damage to the greenhouse

• The tyres have been brought onto Frost’s land and accumulated there
• Burning rubber tyres are things likely to cause a mischief if they escape
• What actually escapes from Frosts land is the smoke from the tyres
• Discuss whether the use of land is non-natural – the recycling is in large quantities and so may be viewed as
non-natural; but there may be a public benefit derived from the use of the land as it may be a community
recycling facility which might be viewed as natural use of the land
• Credit any recognition/comparison with domestic recycling arrangements and its acceptance as natural use
of land
• The damage to the greenhouse (property on the land) is the kind of damage which can be claimed for
• Damage to the greenhouse is a foreseeable type of loss as a result of the type of thick black smoke
associated with burning rubber
• However, there are arguments on both sides relating to this type of ‘escape’. According to the case of
Stannard v Gore escaping smoke from a fire would not be counted as the thing itself escaping but other case
law supports the escape of things like fumes from chemicals and explosions from dynamite.

In relation to any potential defences to both:

• Volenti non fit injuria – Peters v Prince of Wales Theatre
• Common benefit – Dunne v North West Gas Board
• Act of God – Nicholls v Marsland
• Act of a stranger – Perry v Kendricks Transport
• Damage caused through claimant’s fault – Eastern & South African Telegraph v Cape Town Tramways.

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7 Leila owned a book shop in the centre of town. She had recently asked Pritamjit, the brother of a friend of hers, to
install some new shelves along one of the walls. Ninder was a customer in the book shop, and he wanted to look at a
book on the top row of the new shelves. Ninder stood on a small stool provided for the use of customers to reach
the book. Despite the fact that he could see that the top shelves were loose and coming away from the wall, he held
onto the top shelves to reach the book. The shelves collapsed and Ninder fell to the floor, suffering a broken arm.
Advise whether Ninder will be successful in a claim against Leila.

Answers could include:

In relation to Ninder:
• Explanation of the provisions of the Occupiers’ Liability Act 1957: premises, occupier, visitor and dangers due
to the state of the premises due to the state of the premises (loose shelves capable of falling on someone.
• The duty imposed by the 1957 Act on Leila to take such care as in all the circumstances of the case is
reasonable to see that customers, like Ninder, are visitors will be reasonably safe in using the shop for the
purposes for which they are invited or permitted to be there.
• The defence contained in s 2(4)(b) OLA 1957: work carried out by an independent contractor. Leila should
have checked that Pritamjit was a suitable contractor given that he was the brother of a friend.
• Leila should have known of the defect in the shelves, even though she was not a carpenter, given that Ninder
could see that the shelves were loose.
• The defence of contributory negligence as Ninder possibly partly contributed to the accident by attempting
to hold onto the shelf given that he can see that it was loose and therefore his own behaviour fell below that
of the reasonable person.
• If Leila does not have a defence then she is liable to pay compensatory damages to Ninder for his injuries,
but that the existence of a defence may reduce or eliminate her liability.
• Relevant cases Gwilliam v West Hertfordshire NHS, Haseldine v Daw, Woodward v Mayor of Hastings, Froom
v Butcher, Brannon v Airtours, Bolton v Stone, Paris v Stepney BC.

8 At the back of Leila’s book shop was a storeroom with a door out onto the next street. Customers frequently went
through the storeroom when they left the shop as it provided a convenient short cut. Leila was concerned because
some wiring had come loose in the storeroom. Leila therefore put up a notice on the door to the storeroom saying,
‘Strictly no admittance’. Maddie saw the notice, but she was late for an appointment with her bank and decided to
use the short cut anyway. Maddie brushed against the loose wiring and received a severe electric shock. She
suffered bad burns and her mobile phone was smashed when she fell to the floor.
Advise whether Maddie will be successful in a claim in Occupiers’ Liability against Leila.

In relation to Maddie:
• The duty under the Occupiers’ Liability Act 1984: occupier, premises, conditions necessary for a duty to arise
under s1(3) of the Act, to take such care as is reasonable in all the circumstances of the case to see that the
unlawful visitor does not suffer injury on the premises by reason of the danger concerned.
• The storeroom was premises and Maddie was an unlawful visitor given the presence of the sign.
• There was a danger due to the state of the premises loose wiring rather than Maddie’s own actions (walking
through the storeroom).
• The requirements of s1(3) are satisfied:
o Leila was aware of the danger she should have taken precautions if the danger was obvious – was the
sign adequate – could more have been done – locked the door for example?
o Leila knew others might come into the vicinity of the danger as she knew that customers frequently took
the shortcut
o Leila may reasonably be expected to offer another some protection (loose wiring capable of inflicting
serious Leila’s breach of the duty of care considering factors of likelihood of trespass, seriousness of the
injury risked, cost and practicality of precautions and how obvious the danger was.
o The defence of consent: s1(6) OLA 1984. Leila may have a defence of consent if Maddie voluntarily
assumed the risk of walking through the storeroom.
o If Leila does not have a defence then she is liable to pay compensatory damages to Maddie for her
injuries (but not for her smashed phone), but that the existence of a defence may eliminate her liability.
o Relevant cases Tomlinson v Congleton BC, Keown v Coventry NHS Trust, Donoghue v Folkestone
Properties, Platt v Liverpool City Council, Ratcliff v McConnell.
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9 Discuss the extent to which the rules of remoteness of damage achieve justice for claimants.

• In determining whether damage is too remote to be recovered, the court will consider whether the
damage is a foreseeable consequence of the breach. The type of damage must be foreseeable as in
Hughes v Lord Advocate (1962) where injury to the boy was a foreseeable consequence of leaving a
manhole exposed. However, the precise chain of events need not be foreseeable – The Wagon Mound
No. 1 (1961) (damage to property was foreseeable despite a complex chain of events involving welding
and floating refuse).
• Furthermore, in Smith v Leech Brain (1962) (a dormant cancer caused the death after a burn at work) it
was held that the extent of the damage need not be foreseeable as long as the type is.
• Whether or not these legal rules achieve justice is a subjective concept, with one party believing that
justice has been done and the other wholeheartedly disagreeing.
• In civil law, concepts such as the standard of care owed by a professional above that of an ordinary
person and the reasonable person foreseeability test help to achieve justice by attempting to examine
the facts with a degree of objectivity. However, The Wagon Mound Nos 1 and 2 illustrate that that
objectivity is only as good as the judges making the decision – these two cases, based on the same
events, yielded different outcomes.And the difference of opinion between Lord Denning and Sir Robert
Megarry VC serves only to illustrate how judges, even very senior ones, see their roles differently in the
application of the law in order to achieve justice.

10 Discuss the extent to which the Occupiers’ Liability Act 1984 is fair on occupiers.

• This Act imposes liability on occupiers with regard to persons other than ‘visitors’. This includes trespassers
(and burglars) and those who exceed their permission – see Revill v Newbery (1996). It was introduced to
provide a limited duty of care mainly towards trespassers. This was because previously in common law an
occupier owed such entrants no duty at all. The common law can be particularly harsh on application to child
trespassers – Addie v Dumbreck (1929), where children frequently played on colliery premises and near to
dangerous machinery. When one was injured, there was no liability since he was a trespasser. Due to the
increasing growth of more dangerous premises and taking into account the difficulties of making children
appreciate the dangers, the law was changed. In British Railways Board v Herrington (1972) a six-year-old
child was badly burned when straying onto an electrified railway line through vandalised fencing. The House
of Lords, using Practice Statement 1966, established the ‘common duty of humanity’, a limited duty owed
when the occupier is aware of the dangers, and of the likelihood of the trespass. The impracticalities of the
rule meant that the 1984 Act was passed.
• The 1984 Act provides compensation for injuries only. This means that damage to property is not covered,
trying to create a balance between protecting trespassers and also recognising that they are deserving of less
protection than are lawful visitors. Under s 1(3) an occupier will only owe a duty if:
‘(a) he is aware of the danger or has reasonable grounds to believe it exists;
(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger
concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful
authority for being in that vicinity or not);
and (c) the risk is one against which, in all the circumstances of the case, he may be expected to offer
the other some protection.’
• The court must take into account all of the circumstances when the injury occurred – Donoghue v Folkestone
Properties (2003), where the claimant was injured when he was trespassing on a slipway in a harbour and
dived into the sea. The injury happened late at night in the middle of winter. The court held that the occupier
did not owe a duty of care. A reasonable occupier would not expect such behaviour.
• An occupier is also not liable if they had no reason to suspect that there is the presence of a trespasser. In
Higgs v Foster (2004) a police officer investigating a crime entered the occupier’s premises for surveillance
and fell into an uncovered inspection pit behind some coaches, suffering severe injuries and causing him to
retire from the police force. The police officer was a trespasser and the occupier could not have anticipated
his presence, so there was no liability.
• An occupier is not liable for unknown dangers. In Rhind v Astbury Water Park (2004) the claimant ignored a
notice stating ‘Private Property. Strictly no Swimming Allowed’ and jumped into a lake. He was injured by
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 objects below the surface of the water. The occupier had no reason to know of the dangerous objects, so
there was no liability.
• Under s 1(4) the duty owed is to ‘take such care as is reasonable in all the circumstances’ to prevent injury to
the non-visitor. A standard of care in this context is an objective negligence standard. The greater the degree
of risk, the more precautions the occupier will have to take – Tomlinson v Congleton Borough Council (2003),
where the local authority owned a park including a lake. Warning signs were posted prohibiting swimming
and diving because the water was dangerous, but the council knew that these were ignored. The council
decided to make the lake inaccessible to the public but delayed start on this work because of a lack of funds.
The claimant, aged 18, dived into the lake, struck his head and suffered paralysis as a result of a severe spinal
injury. The House of Lords held that the danger was not due to the state of the premises, but to the
claimant’s behaviour and that was not the sort of risk that a defendant should have to guard against but one
that the trespasser chose to run.
• The same conclusion was reached in Keown v Coventry Healthcare NHS Trust (2006), where a child fell from a
fire escape he was playing on. The court held that it was not the state of the premises but what the child was
doing on them that was the cause of the harm, so there was no liability.
• It is also clear that if the occupier has taken precautions or fenced the premises, this is not proof that the
occupier knew or ought to have known of the existence of danger. In White v St Albans City and District
Council (1990) the claimant had taken an unauthorised shortcut over the council’s land. He fell from a narrow
bridge that had been fenced. The court did not feel that this was sufficient to make the council liable.
• Further, it is possible for the occupier to avoid liability by taking ‘such steps as are reasonable in all the
circumstances’ (s 1(5)).
• This can be achieved by use of effective warnings. However, it is unlikely that warnings will be effective in the
case of children, particularly young children – Westwood v The Post Office (1973), where a notice that ‘only
the authorised attendant is permitted to enter’ placed on the door of a motor room was held a sufficient
warning for an intelligent adult.
• Section 1(6) also preserves the defence of volenti (consent); the claimant must appreciate the nature and
degree of the risk, not merely be aware of its existence. In Ratliff v McConnell (1999) a warning notice at the
shallow end of a swimming pool read, ‘Shallow end’. The pool was always kept locked after hours, and the
claimant knew that entry was prohibited then. He was a trespasser and when he was injured diving into the
shallow end his claim failed. The court held that he was aware of the risk and had accepted it.
• Thus the law attempts to strike a balance between imposing onerous duties on occupiers and protecting
potentially vulnerable trespassers such as children.

11 Discuss the extent to which vicarious liability is fair on employers.

• Employers benefit from the labour of employees and so are morally responsible for their well-being.
Employers are more likely to be able to financially bear any loss and should be insured. Employees’ ability to
earn and take care of their families could be severely damaged. This is known as the Deep Pockets
argument.
• Encouraging employers to maintain high standards and deter poor employment practices will reduce the
burden on the state, e.g. NHS and welfare state.
• Employers can still face liability even if they have expressly prohibited the unsafe practice. An employer must
be consistent in ensuring the unsafe practice does not continue. But an employer cannot watch their entire
workforce all of the time and must trust their employees to carry out their work correctly.
• The employer may be liable even for mere carelessness on the employee’s part. Carelessness is carelessness
and should, where significant enough, be prevented and compensated if not. Where do you ‘draw the line’
of limitation? This could lead to near inconsequential acts giving rise to liability.
• Hence there are significant arguments about the fairness, but given the inequality between employer and
employee, the balance appears to be appropriate.

12 Discuss the importance of fault-based liability, in particular in relation to Rylands v Fletcher.

• Fault was first introduced into negligence law in Cambridge Water v Eastern Counties Leather (1994). Before
that case, fault was not always necessary for damages to be paid.
• Fault means that there is some wrongdoing by the defendant, it suggests a degree of decision making and is
a requirement in torts such as:
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 o negligence
o occupiers’ liability.
• However, it is not needed in torts such as:
o nuisance
o Rylands v Fletcher
o vicarious liability.
• In Rylands where the escape of non-naturally stored material onto adjoining property damaged or destroyed
that property it was unnecessary to prove whether that escape was the fault of the defendant.
• In these non-fault torts, the claimant does not need to show how and why the incident happened – simply
that it did, and then establish a causal link to the damage suffered.

13 Discuss the extent to which the Occupiers’ Liability Act 1957 is fair on occupiers.

14 Discuss the extent to which remedies in tort achieve justice for claimants.

15 Discuss the extent to which the defence of volenti non fit injuria is fair.

All of these questions based on fairness need to consider concepts of justice so a model framework can constructed
e.g.:
• Justice is the idea that the law is ‘fair’ in how it seeks to punish wrongs and protect rights. The idea comes
from John Rawls’ book, A Theory of Justice (1971), who put this rather metaphysical concept into words:
1. The social contract: social co-operation relies on a contract which people have made among themselves. The
principles of justice are to be viewed as the result of a binding contract among the members of society.
2. Greatest equal liberty: this includes basic freedoms such as speech.
3. Difference principle: social and economic inequalities are fair and just, but only if they work for the benefit
of the least advantaged in society.
• People have different interests and demands but will have some individual conception of ‘good’. However,
the specific content of ‘good’ may not be developed.
• In most legal disputes, one party will usually see that justice has been done, while the other may
wholeheartedly disagree. Whether or not the legal rules achieve justice is a subjective concept.

At this point the substantive area should be used to give examples.

Perhaps it is fair to conclude that most of the system is just and achieves just results most of the time – this is a state
of affairs to satisfy most utilitarians.

Section 5: The nature of law

Page 160

1 Discuss the historical origins of the rule of law.

2 Discuss the extent to which the rule of law continues to have value today.

3 Discuss how judges have interpreted the principles of the rule of law, with reference to recent case law.

• These questions should all be dealt with in the same way with a very similar structure throughout until the
conclusion.
• The rule of law is a symbolic idea, with no single definition but much significance. Lord Bingham, one of the
UK’s most senior judges, wrote a book on the subject that explores the concept in great depth.
• The Constitutional Reform Act 2005 makes reference to it in s 1, saying ‘[the] Act does not adversely affect
the existing constitutional principle of the Rule of Law’.
The rule of law is the guiding principle of the law and, in broad terms, it means:
o No person shall be sanctioned except in accordance with the law.
o All shall be equal before the law.
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 o There shall be fairness and clarity of the law.
The rule of law is therefore a safeguard against dictatorship:
o The government and its officials are accountable under the law.
o No single branch of government can exercise unlimited power.
o There are checks and balances, including an independent judiciary, to maintain these principles.
• The theories and theorists should then be dealt with which will deal with the historical origins including A.V.
Dicey’s Introduction to the Study of Law of the Constitution (1885).
• The practical illustrations should then be dealt which will illustrate the contemporary value including cases
as contemporary issues such as R v Rimmington, R v Goldstein, Sharma v Brown-Antoine. Controversial anti-
terrorism legislation, e.g. Anti-terrorism, Crime and Security Act 2001 and Immigration Act 1971, that gave
the Secretary of State power to deport terrorist suspects and detention without trial are examples of the use
of wide and arbitrary discretionary powers that need to be kept in check by the rule of law. A and others v
Secretary of State for the Home Department [2004], R v Mullen [2000]
• Conclude by asking does the Human Rights Act 1998 and the UK’s membership of the European Convention
on Human Rights reduce the need for the rule of law?

Law and morality

4 Explain the relationship between legal rules and moral principles. Discuss the extent to which law should be based
on moral principles.
&
5 ‘Law and morality cannot mix.’ Discuss the extent to which you agree with this statement.
&
6 ‘The law should enforce morality.’ Discuss the extent to which you agree with this statement.

These questions should all be dealt with in the same way with a very similar structure throughout until the
conclusion – then it is important to turn attention back to the specific wording of the question and actually give your
own personal opinion having weighed up the arguments throughout as follows:

Laws are rules and regulations that are objective and not necessarily fault-based, for example speeding. Morals are
subjective personal codes of values or beliefs that are based on levels of fault and determine what is right or wrong,
for example lying. In some situations it is possible for there to be an overlap of the two, such as murder, which is both
against the law and morally wrong. Devlin developed four key principles that were addressed to Parliament, to be
borne in mind when deciding which moral ‘offences’ should be prohibited by law and which should not. The first
principle is the individual freedom that is allowed should be consistent with the integrity of society. The second is that
the limits of such tolerance are not static, but law makers should be slow to change laws which protect morality. The
third principle is that privacy must be respected as far as possible and the fourth principle is that the law is concerned
with minimum rather than maximum standards of behaviour.
This means that society’s standards should be higher than the standards set down by law.

Laws and morals have many differences between them. Laws are made by formal institutions such as Parliament and
the courts, whereas society itself creates morals over time, meaning there is no formal creation. This means, when it
comes to changing laws and morals, the difference is that laws can be instantly made or revoked, whereas morals
will always take time to modify as they change with society’s attitudes.

There are also differences in the physicality of laws and morals. The existence of laws can be shown, whereas some
morals are very vague in definition as everyone in society has their own individual ideas. This, therefore, results in a
lack of general agreement on certain issues, such as abortion. The enforcement of laws and morals is again very
different, with laws having the more serious outcome. If laws are broken, the state will impose a restriction,
punishment or treatment on the person and they will go through a formal process to achieve justice for the injured
party.

Breaching moral standards, however, simply results in social disapproval. As society has no involvement in creating
and changing laws, their attitude to laws is irrelevant. However morals are important to society as they reflect the
values and beliefs of many people.

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It has been argued by many as to whether laws and morals should coincide with each other, when they are
completely different.
Natural law theory maintains that the law should be used to enforce moral values and St Thomas Aquinas stated that
this is a ‘dictate of right reason’.
Positivists, however, maintain that laws and morals should be kept separate and Jeremy Bentham called the natural
law theory ‘nonsense upon stilts’.
Professor H.L.A. Hart argued that ‘Laws should only intervene where immorality causes harm to the society or harm
to the individual concerned’. He believed that law and private morality should have a clear separation as law should
be based on logic and not morals. He also believed that, if morals became laws, it would take away an individual’s
right to freedom.

However, in the case of Shaw v DPP (1961), the judge in the House of Lords said, ‘Criminal Law should cover immoral
behaviour even if it does not harm other people’ and ‘there is such an offence as conspiracy to corrupt public morals’.
This is, therefore, an opposing opinion to Professor Hart.
Lord Devlin’s view on the topic was that laws can be used to preserve morality because it is so important to
communities and therefore enforcing morals through law will prevent disintegration.
Having a theoretical perspective is one thing, however the practical application of the law is quite another. There are
many cases where the decision has been based on law and many where it has been based on morals, and striving for
consistency would be at the cost of justice in many cases. An example of a case where the decision was based on law
is R v Wilson (1996). In this case a man used a hot knife to tattoo his wife, resulting in burns. However, he was found
not guilty of GBH as she consented to it. This can be contrasted with R v Brown (1993) where, as part of a
sadomasochistic orgy, the defendants inflicted consensual pain upon each other. Lord Templeman said, ‘pleasure
derived from the infliction of pain is an evil thing’. Another case based on morals is Knuller v DPP (1972), where the
defendant was found guilty of publishing homosexual prostitution adverts. And yet, in R v Human Fertilisation and
Embryology Authority, ex parte Blood (1997), the claimant was denied access to her dead husband’s sperm as he had
died before being able to give his consent – something it was argued she had a moral right to if not a legal one.
Similarly in Evans v UK (2007), foetuses had to be destroyed as the father would not consent to them being used by
their mother.

However, as with any issue, everyone will have an individual opinion on whether it is right to base a case decision on
moral beliefs or the strict application of the law. Whether law and morals should be kept separate or whether law
should be based on moral principles is highly emotive in practice.

7 Discuss the meaning of ‘justice’ and the extent to which English law succeeds in achieving justice.
&
8 ‘The aim of the law should be to achieve justice.’ Discuss the extent to which the law achieves this.
&
9 Discuss the extent to which legal rules have failed to achieve justice.

These questions should all be dealt with in the same way with a very similar structure throughout until the
conclusion – then it is important to turn attention back to the specific wording of the question and actually give your
own personal opinion having weighed up the arguments throughout as follows:

A somewhat metaphysical concept, justice in its broadest sense could beregarded as the idea that the law seeks to
punish wrongs and protect rights.
This in itself throws up many questions, such as what are ‘rights’ and how are ‘wrongs’ so determined?
In A Theory of Justice (1971), John Rawls described justice as a ‘social contract’, meaning the principles of justice are
to be viewed as the result of a binding contract among members of society, the breach of which attracts some form
of sanction.
Philosophers from as early as Aristotle’s time have attempted to pin down the meaning with some similarity between
them.
Aristotle felt justice was about distribution and proportionality. This is quite close to current ideas about social justice
and can been seen in many human rights issues. In Lindsay v Commissioners of Customs and Excise (2002) the
practice of Customs officials to confiscate cars as well as the goods being smuggled in them was held to be
disproportionate.
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Jeremy Bentham coined the idea of utilitarianism, a concept later developed by John Stuart Mill. This basically works
on the principle that the purpose of law is to achieve the greatest happiness for the greatest number of people. This
clearly indicates that the law’s purpose is to create a balance, but that the individual’s good may be sacrificed in
favour of the good of the whole. Examples of this are clear in policy decisions, such as R v Brown (1993), where the
good of society (i.e. not to be corrupted) outweighed the concerns of the individuals involved (i.e. to consent to
whatever activity they chose to).
Marx, however, argued that in a capitalist society all laws are unjust and that justice can only be achieved by
redistribution of wealth, perhaps leading to Rawls’s simple idea of a social contract.
From a narrower perspective, judges also vary in their perceptions of justice. Lord Denning felt it was his role to avoid
or change laws that he felt impaired justice, whereas Megarry VC in Tito v Waddell (No. 2) (1977) felt he could not
ignore the law even if he felt it delivered a ‘raw deal’ in a particular instance.
So it can be seen that whether the legal rules achieve justice or not is rather subjective. In any particular legal
dispute, one party will usually see that justice has been done, while the opposition may wholeheartedly disagree.
Nevertheless, there are some legal rules that even the most partisan observer could not deny strive to achieve justice
at least for the majority, if not the whole.
First, procedural law puts systems in place in an attempt to ensure justice. Examples of these include everyone being
entitled to put their case in court and the existence of financial assistance for this, which is evidence that the law
should be open to all, not just those that can afford it. The rules of evidence ensure the material presented in court is
reliable, for example confession evidence of a defendant intimidated by police will not be admissible – R v Miller
(1992). The right to trial by jury can ensure ‘justice’ being done in an individual case rather than a policy or
‘floodgates’ type of verdict – R v Ponting (1985).
Furthermore, there is substantive justice, i.e. that done by the application of legal rules themselves, for example in
criminal law the defences to justify the actions of the defendant, and the partial defences to murder ensuring the
defendant still shoulders some responsibility, but not complete.
Similarly, in civil law concepts such as ‘promissory estoppel’ and the standard of care owed by a professional rather
than an ordinary person are all examples of substantive law striving to achieve justice.
Thus, we are given a framework in which all should be equal before the law. Within this framework we resolve our
disputes by applying substantive laws developed over time, designed to produce the most ‘just’ results.
There are, however, significant numbers of ‘miscarriages of justice’ where these systems and safeguards have failed
in their aims and lives have been destroyed in the process.
Issues include the mandatory life term for murders, which allows no judicial flexibility to recognise different levels of
seriousness of offence – in R v Canning (2002) the trial judge described his sentence as ‘a classic example of injustice’.
Other examples of defendants wrongly convicted and executed (Timothy Evans) or imprisoned for extensive periods
are never far from the headlines (the Birmingham Six, the Guildford Four). That said, it is perhaps that these are so
tragic that they stick in our memory. They are, after all, a very tiny minority of the cases that pass through our
criminal and civil justice systems and so perhaps it is fair to conclude that most of the system is just and achieves just
results most of the time – a state of affairs that will satisfy most utilitarians.

10 Discuss the extent to which law is reflective of society.

&
11 Discuss the function of law in society.
&
12 Discuss the extent to which the law is successful in balancing conflicting interests.

These questions should all be dealt with in the same way with a very similar structure throughout until the
conclusion – then it is important to turn attention back to the specific wording of the question and actually give your
own personal opinion having weighed up the arguments throughout as follows:

The purpose of the law is to create a balance between the conflicting interests or rights of individuals and the state.
Rudolf von Jhering wrote The Struggle for Law (1872) in which he argued that law is a science to be utilized for the
further advancement of the moral and social interests of mankind. He saw law as a means of ordering a society in
which there are many competing interests. The law is the end result of a struggle between individuals and groups
each pursuing their own interests. It causes healthy legal change, however it seems the law often reflects the
interests of the dominant group.

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Roscoe Pound is associated with social engineering. He emphasised the importance of social relationships in the
development of law, stating that a lawmaker acts as a social engineer by attempting to solve problems in society
using law as a tool, thus creating a balance between the competing interests. Social interests include health and
safety and public order, while individual interests include privacy and domestic relations.
Pound believed that, where possible, the law should create a level playing field of these interests, meaning social
interests should be weighed against other social interests and individual interests against other individual interests as
a failure to do this will result in a bias in favour of social interest.
Conflict between individuals’ interests are generally dealt with by substantive laws, such as theft and the civil laws of
tort, contract and family, among many others.
Conflict between an individual’s interests and the state’s interests are generally dealt with by procedural laws, such
as the rule in the Terrorism Act 2006 that allows the police to hold a suspected terrorist for up to 14 days without
charge. Bail seeks to protect the right to liberty of suspects, but balances this against the need to ensure that victims
are not intimidated and that the criminal process is determined without inference.
Sentencing creates a balancing act between the needs of the defendant wanting mitigating factors to be considered
and the needs of the victim who wants justice by looking at aggravating factors. When the courts fail to achieve a
balance, both the defendant and the prosecution may want to lodge an appeal.
Eliza Manningham Buller, the former director of M15 delivered a Reith Lecture on the challenges faced by and the
importance of the security services investigating and preventing terrorist attacks while adhering to the rule of law
and the rights of the individual.
Generally, the law follows Jeremy Bentham’s principle of utilitarianism, the doctrine that a law is right in so far as it
promotes happiness, and that the greatest happiness of the greatest number should be the guiding principle of
conduct. However, there are times when the law upholds the right of the individual against the majority and this is
also vital to protect our key values, such as freedom of religious belief and freedom of speech.

Section 6: Human rights law

Page 190

1 Discuss the key protections and restrictions offered by Article 5 of the European Convention on Human Rights.

Your answer may include discussion including:

• Article 5 covers the right to liberty and security of person.

• Liberty means autonomy or independence from arrest or detention and is a fundamental right in a free and
democratic society
• Security of person means that an individual cannot have their liberty removed or restricted without just
cause
• An individual’s body, their physical or mental health, cannot be interfered with without just cause.
• A right to liberty under Article 5 is restricted:
o in cases where the law allows arrest – for example when suspected of committing an offence, or
detention after conviction
o a person must be informed as soon as possible that they are being or have been arrested, the
reason for the arrest in a language they understand.
o an arrested person must be brought to trial, bailed (with or without conditions) to appear at a
trial, or released within a reasonable period of time.
o an arrested person is entitled to a swift trial to decide their innocence or guilt. This includes any
appeals against conviction and/or sentence.
• If any of the rights under Article 5 are infringed, the arrested person is entitled to compensation.
• Explanation and illustration of the above by reference to cases such as:

o Stafford v UK

o HL v UK

o Austin v UK

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 o R (Roberts) v Commissioner of Police of the Metropolis

• Conclusion – are the restrictions justified?

2 Discuss the key protections and restrictions offered by Article 6 of the European Convention on Human Rights.

Your answer may include discussion including:

• Article 6 relates to criminal trials in any court or tribunal

• There are three parts to Article 6:

o Article 6(1) - everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.’

o Article 6(2) - ‘Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.’

o Article 6(3) includes the minimum rights allowed everyone who is charged with a criminal
offence:

▪ to be informed promptly of the nature and cause of the accusation against him
▪ to have adequate time and facilities for the preparation of his defence to defend himself in
person or through legal assistance of his own choosing
▪ to examine or have examined witnesses against him
▪ to have the free assistance of an interpreter if necessary.

• Restrictions – exclusion of press and public if:

▪ in the interests of morals and public order, or
▪ in the interests of national security, or
▪ in the interests of young person on trial,
▪ to protect the private life of the parties, or
▪ where publicity would prejudice the interests of justice
• Explanation and illustration of the above by reference to cases such as:

o Handyside v United Kingdom

o The Observer and the Guardian v United Kingdom

o Steel and Morris v United Kingdom

• Conclusion – are the restrictions justified?

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3 Discuss the key protections and restrictions offered by Article 8 of the European Convention on Human Rights.

Your answer may include discussion including:

• Article 8 relates to right to respect for family and private life, home and correspondence. It is a fundamental
right. Public bodies should promote this right to privacy.
• Article 8 covers rights within the home; Article 5 covers rights outside the home
• It covers:
o privacy - A citizen has the right to live their own life in a way that they choose to do so in private +
examples.
o family life + examples.
o home + examples.
o correspondence + examples
• the margin of appreciation
• Restrictions are allowable if there is a law required to:
o benefit national security, the public’s safety or the financial safety of the country, or
o prevent disorder or crime, or
o protect the health or morals of individuals, or
o protect the rights and freedoms of others.
• Explanation and illustration of the above by reference to cases such as:
o Douglas v Hello! Ltd (2001)
o Lustig-Prean and Beckett v UK (2000)
o Hatton v UK (2001)
o Laskey, Jaggard and Brown v United Kingdom (1997)
o R (AR) v Chief Constable of Greater Manchester Police (2018)
o R (Bridges) v South Wales Police (2019)
o Gaughran v UK (2020)
• Conclusion – are the restrictions justified?

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4 Discuss the key protections and restrictions offered by Article 10 of the European Convention on Human Rights.

Your answer may include discussion including:

• Article 10 relates to freedom of expression – either temporary or permanent. Covers freedom of opinion and
receive and give information and ideas without interference.
• Protection includes:
o being able to talk freely
o to publish newspaper or magazine articles, or by TV or radio or via the internet
o through exhibitions or theatre
• Restrictions - if there is a law preventing freedom of expression which is:
o needed for national security,
o to prevent disorder or crime,
o to protect the health or morals of individuals, or
o to protect a person’s reputation
o to protect confidential information
o to maintain the authority and neutrality of the judiciary
• Explanation and illustration of the above by reference to cases such as:
o Handyside v UK (1976)
o The Observer and the Guardian v UK (1991)
o Steel and Morris v UK (2005)
o R v Ponting (1985)
o R v Lemon and Gay News (1979)

• Conclusion – are the restrictions justified?

5 Discuss the key protections and restrictions offered by Article 11 of the European Convention on Human Rights.

Answers may include:

Discussion of key protections

• scope and nature of Article 11 - 3 rights:

o peaceful assembly - DPP v Jones (Margaret), Plattform ‘Ärzte für das Leben’ v Austria, Cisse v France,
Appleby v United Kingdom
o freedom of association -meaning of association - McFeeley v UK, Redfearn v UK
o the right to join trade unions - National Union of Belgian Police v Belgium, including the right not to join -
Young, James and Webster v UK

Restrictions

• Article 11 is a qualified right and therefore subject to limitation

• Article 11(2) restrictions: prescribed by law, necessary in a democratic society, legitimate aim:
o in the interests of national security or public safety
o for the prevention of disorder or crime
o for the protection of health or morals
• the importance of the concept of ‘proportionality’ in determining whether the right has been lawfully
restricted - R (Laporte) v Chief Constable of Gloucestershire
• the link between Article 11 and Article 10 and how protest is also seen as an aspect of freedom of expression
– Hashmann v Harrup, Steel v UK
• the doctrine of the margin of appreciation in relation to Article 11
• the link between democracy and the right to peaceful protest and association - restricted by Public Order Act
1980 powers to assist in policing demonstrations
• further restrictions in the Police, Crime, Sentencing and Courts Act 2022 such as extending police powers to
deal with public protest and creating a new statutory criminal offence of wilfully obstructing the highway
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 • Conclusion – are the restrictions justified?

6 Discuss the key provisions of the Human Rights Act 1998 and whether the criticisms are justified.

Answers could include discussion of:

Key provisions

• Act introduced by Labour Government to make ECHR rights directly available in UK courts (s1).
• s2 Courts must ‘take into account’ prior decisions of ECHR where relevant.
• s3 Interpretation of domestic (UK) legislation – the need for compatibility of legislation (both primary and
secondary) with the ECHR
• s4 Judges can make a declaration of incompatibility when it decides that a piece of legislation is incompatible
with a Convention right
• s6 It is unlawful for a ‘public authority’ to act in a manner which is incompatible with Convention rights
• s7 Limitations on who can bring a claim – individual who believes a public authority has breached a
Convention right
• s8 Remedies
• Discussion of cases illustrating contentious application of the Act, e.g. Bellinger v Bellinger (2003)
• Reference to theory of human rights law and included in ECHR - natural justice, universality, rule of law, due
process.

Discussion whether criticisms justified

Discussion may include:

• s2 ‘Take into account prior decision of ECtHR’. Conflicting approaches: R (Alconbury) v Secretary of State for
the Environment (2001), Kay v Lambeth (2006) – does not change the normal rules of precedent
• s3(1) Compliance – can UK Government avoid ECHR?
• Possible tension between judiciary and Parliament. Does HRA give judges potential to usurp sovereignty of
Parliament? Have judges made use of this power? strain on judges to interpret legislation to avoid
declarations of incompatibility.
• Contentious areas:
o Absolute nature of rights
o proposals to give the right to vote to prisoners
o difficulties of repatriating criminals due to Article 8; dubbed a ‘Criminals charter’ by the
press
o development of a law of privacy disliked by the press as limiting freedom of speech
o Counter-terrorism measures - indefinite detention powers in the Anti-Terrorism Crime and
Security Act 2001 A and Ors v Secretary of State for the Home Department (2005) -this led to
the passage of the Prevention of Terrorism Act 2005
• Proposals for a ‘British Bill of Rights’
• Possible repeal
o Repeal of the Act would see a reversion to appeals to Strasbourg
o Repeal could damage devolution arrangements in Scotland and Wales which are predicated
on ECHR.
o Also, Good Friday agreement in NI based on incorporation of ECHR
• Link made to human rights law theory – e.g. effect of repeal on perception of status of Human Rights in UK
• Adequacy of remedies
• Conclusion – are the restrictions justified?

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7 Sid is a singer at a music festival. He refuses to sing a particular song and following threats from the audience, he
walks off stage. The crowd become increasingly agitated, then rowdy. Joe, a police officer, on duty at the festival,
detains Sid for two hours for his own safety. Claude is a French citizen and is charged with a criminal offence. His trial
date is constantly delayed due to the Covid-19 virus and lockdowns, meaning the courts are not fully functioning. His
trial date eventually happens 18 months after he was arrested. At the beginning of the trial, the judge openly states
he doesn’t like the French and hopes the jury thinks the same.

Advise whether the treatment of Sid and Claude was lawful. Refer to Articles 5 and 6 of the Human Rights Act in your
answer.

Sid and Article 5

Discussion of relevant issues including:

• Outline of Article 5 and what is covered by it

• Outline of restrictions allowed by Article 5
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 5 by Joe?
• Advice to Sid including his remedy if there has been a breach

Claude and Article 6

Discussion of relevant issues including:

• Outline of Article 6 and what is covered by it

• Outline of restrictions allowed by Article 6
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 6?
• Advice to Claude including his remedy if there has been a breach

Discussion of other issues

Consideration of possible offence of breach of peace and police powers of arrest and detention.

8 Jade is homosexual and lives with her partner Claire. Jade goes for a job interview and her application form
contains this information. John, who interviews her, suggests that she is not appropriately dressed as she in wearing
jeans and a t-shirt. Later during the selection process, John rejects Jade outright because of her homosexuality
despite the fact she was the best qualified person interviewed. Alison runs a performance art dance troupe that
performs to audiences around the country. One of their dance routines contains some ‘highly sexually suggestive
dance moves’ according to one newspaper critic. Alison and her troupe are arrested by the police as a result.

Advise whether the treatment of Jade and Alison was lawful. Refer to Articles 8 and 10 of the Human Rights Act 1998
in your answer.

Jade and Article 8

Discussion of relevant issues including:

• Outline of Article 8 and what is covered by it

• Outline of restrictions allowed by Article 8
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 8 by John?
• Advice to Jade, including her remedy, if there is a breach

Alison and Article 10

Discussion of relevant issues including:

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 • Outline of Article 10 and what is covered by it
• Outline of restrictions allowed by Article 10
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 10 by Alison?
• Advice to Alison including her remedy if there is a breach

Discussion of other issues

Consideration of possible common law and statutory offences.

9 Bob runs a ‘far-right’ anti-immigration organisation. The sole purpose of the organisation is to stop immigration
into the UK and to deport any person who wasn’t born in the UK. He has published several leaflets and appeared on
various television and radio shows expressing his views. Following several complaints by members of the public
having read the pamphlets and heard his views on the radio, he has been arrested and detained for various alleged
race hate crimes. At his summary trial, Bob notices that the chair of the magistrates’ bench, Jackie, is a member of
his organisation. Jackie uses her influence as chair on the other magistrates to find Bob not guilty of any crime he
was accused of.

Advise whether the treatment of Bob was lawful. Refer to Articles 10 and 6 of the Human Rights Act 1998 in your
answer.

Bob and Article 10

Discussion of relevant issues including:

• Outline of Article 10 and what is covered by it

• Outline of restrictions allowed by Article 10
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 10 by Bob?
• Advice to Bob, including his remedy, if there is a breach

Bob and Article 6

Discussion of relevant issues including:

• Outline of Article 6 and what is covered by it

• Outline of restrictions allowed by Article 6
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 6?
• Advice to Bob, including his remedy, if there has been a breach

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10 Sebastian holds a meeting at his college once a month for students who support a particular political party who
are in opposition to the government. The college principal, who supports the government, has said that Sebastian
and his meeting cannot continue on college premises and, if he holds further meetings anywhere else, he will be
permanently excluded from college. Nevertheless, Sebastian continues to hold meetings, but at his parent’s house
instead of the college. In the meetings, he provides leaflets supporting his own beliefs and those of the political
party, both of which strongly criticise the government. Sebastian is expelled from college by the principal and other
colleges in his area refuse to enrol him as a result.

Advise whether the treatment of Sebastien was lawful. Refer to Articles 10 and 11 of the Human Rights Act 1998 in
your answer.

Sebastian and Article 10

Discussion of relevant issues including:

• Outline of Article 10 and what is covered by it

• Outline of restrictions allowed by Article 10
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 10 by Sebastian?
• Advice to Sebastian including his remedy if there is a breach

Sebastian and Article 11

Discussion of relevant issues including:

• Outline of Article 11 and what is covered by it

• Outline of restrictions allowed by Article 11
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 11 by Sebastian?
• Advice to Sebastian including his remedy if there is a breach

Discussion of other issues

Consideration of possible action for judicial review

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11 Charles is a prisoner at a high security prison and is known for his violent temper. One day, while he is being
moved from one prison to another, he uses extreme force to escape the van transporting him. A prison guard uses a
Taser to stop him, but this causes a cardiac arrest and Charles dies as a result. Kuttaz are a death-metal goth rock
band. Their lyrics are controversial in that they appear to promote self-harm and suicide. On several occasions fans
of the band have died of drug overdoses while at their concerts. At the next concert, the police stop fans from
entering the venue and from gathering outside. Advise whether the treatment of Charles and Kuttaz fans was lawful.

Refer to Articles 5 and 11 of the Human Rights Act 1998 in your answer.

Article 5

Discussion of relevant issues including:

• Outline of Article 5 and what is covered by it

• Outline of restrictions allowed by Article 5
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 5?
• Advice – who may possibly claim if there has been a breach and what remedy might be available?

Article 11

Discussion of relevant issues including:

• Outline of Article 11 and what is covered by it

• Outline of restrictions allowed by Article 11
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 11?
• Possible remedies available if there has been a breach

Other issues

Discussion of statutory police powers and breach of the peace

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12 Susan, a police officer, operates CCTV cameras that cover a city centre. One morning, one of the cameras picks up
a well-known local politician, Rita, who enters a building that contains an organisation for recovering drug-addicts.

Susan observes that the CCTV shows Rita enter the building at the same time for the next six weeks. The politician is
well known in the community for her anti-drug beliefs and is highly respected as a result in the community. Susan is
appalled at what she has seen and makes a copy of the CCTV footage and sends it to her brother Hugh, who runs an
internet blog site that exposes corruption in society. Hugh contacts Rita and says that he is going to upload a copy of
the CCTV recording during the next blog and would be making comment on the footage in connection with her anti-
drugs stance.

Advise Rita which rights and remedies Rita may have against the police and arising out of these incidents.

Rita and Article 8

Discussion of relevant issues including:

• Outline of Article 8 and what is covered by it

• Outline of restrictions allowed by Article 8
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 8?
• Advice to Rita including her remedy if there is a breach

Rita and Article 10

Discussion of relevant issues including:

• Outline of Article 10 and what is covered by it

• Outline of restrictions allowed by Article 10
• Discussion of relevant cases
• Conclusion – is there a possible breach of Article 10 by Hugh?
• Advice to Rita including her remedy if there is a possible breach

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Page 191

13 Belinda is a professional football player and plays for her national team. In January, she finds out that she is
pregnant, but because the team has qualified for the World Cup in June, she decides to have an abortion in order to
play. An online newspaper, GuffMail wants to publish the details. However, on the run up to the last World Cup,
where Belinda had had an abortion in order to play, the website had been prevented from publishing the details by
the courts. Belinda’s brother, Christian, is a lead member of a performance art dance troupe. Having heard of her
second abortion, he decides to turn her life into a piece of performance art. Here, together with his dance troupe,
they plan to expose the two abortions in their dance performances.

Advise Belinda what rights and remedies she may have against GuffMail and Christian arising out of these incidents.

Belinda and Article 8

Discussion of relevant issues including:

• Outline of Article 8 and what is covered by it

• Outline of restrictions allowed by Article 8
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 8 by GuffMail?
• Advice to Belinda including her remedy if there is a breach

Belinda and Article 10

Discussion of relevant issues including:

• Outline of Article 10 and what is covered by it

• Outline of restrictions allowed by Article 10
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 10 by Belinda?
• Advice to Belinda including her remedy against Christian

14 Melanie was the leader of an animal rights group that had decided to organise a march through the city centre.

The police were concerned about the march, as the group had deliberately caused criminal damage on some, but
not all, of their previous marches. Anne was an undercover police officer who infiltrated the group. She read all of
Melanie’s letters while staying at her house. One of the letters contained plans about entering a fast-food restaurant
and a department store to throw paint during an upcoming march. Anne took photos of the letters and gave them to
the local newspaper, the Daily Blag. The newspaper contacted Melanie saying it was going to print a story which
contained information about the plans.

Advise Melanie of her rights and remedies against the police and the Daily Blag arising from these incidents.

Melanie and Article 11

Discussion of relevant issues including:

• Outline of Article 11 and what is covered by it

• Outline of restrictions allowed by Article 110
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 11 by the police and Anne?
• Advice to Melanie including her remedy if there is a breach

Melanie and Article 10

Discussion of relevant issues including:

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 • Outline of Article 10 and what is covered by it
• Outline of restrictions allowed by Article 10
• Discussion of relevant cases
• Conclusion – is there been a possible breach of Article 10 by the Daily Blag?
• Advice to Melanie including her possible remedy against the Daily Blag

15 Yulia, who is from Russia, was arrested on suspicion of shoplifting and had her rights read to her by the arresting
officer. However, Yulia does not speak much English and did not understand what was happening. Yulia was put on
remand and her trial date was set for six months’ time. She was refused access to a solicitor for the first two weeks.

When the date arrived for her trial, the judge was ill, so the trial date was postponed for another six months. At
Yulia’s trial, she was sent to prison for two years.

Advise Yulia on whether her rights or liberties were breached on her arrest, while on remand or during the trial.

Yulia and Article 5

Discussion of relevant issues including:

• Outline of Article 5 and what is covered by it

• Outline of restrictions allowed by Article 5
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 5 by the police?
• Advice to Yulia including her remedy if there has been a breach

Yulia and Article 6

Discussion of relevant issues including:

• Outline of Article 6 and what is covered by it

• Outline of restrictions allowed by Article 6
• Discussion of relevant cases
• Conclusion – has there been a breach of Article 6?
• Advice to Yulia including her remedy if there has been a breach

Section 7: The law of contract

Page 227-228

1 Discuss the extent to which the theory of the law of contract allows a balance of interests between the contracting
parties.

Your answer may include:

• outline of the nature of contract law; the issue of voluntariness; the freedom to contract; the development
of rules and principles to formalise these voluntary arrangements
• protection of consumers and those in a weaker bargaining position going against freedom of contract
• discussion of areas where law balances interests such as:
• the postal rule
• privity of contract and third party rights and the Contract (Rights of Third Parties) Act 1999
• the development of the interpretation of innominate terms
• remedies where there is a frustrated contract
• economic duress
• the measure of damages
• the availability of equitable remedies
• consumer protection including Consumer Rights Act 2015 and the Unfair Contract Terms Act 1977
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 • conclusion based on discussion above

2 Adam is shopping online. He notices a pair of expensive headphones advertised on a well-known brand’s website
for £3.99. The headphones normally retail at £399.99. He clicks the image which adds a pair of headphones into his
‘shopping basket’. However, when he goes to pay for the headphones, at the ‘checkout’, the price jumps to £399.99.

Hope’s cat has gone missing. She puts an advert in the local newspaper offering a reward of £50 for information. A
person in the next street, Hannah, realises that Hope’s cat was hit and killed by a passing motorist and tells Hope.
However, Hope refuses to pay her the £50. Advise whether Adam or Hannah can insist that there was a valid
acceptance in each case.

Your answer may include:

With respect to Adam:

• Distinction between an offer and an invitation to treat with reference to decided cases
• Position of goods advertised on the internet
• Explanation of when offer made by Adam and when offer accepted by internet seller
• Conclusion based on discussion above

With respect to Hannah:

• Explanation of reward cases as an offer to the whole world with reference to decided cases
• Acceptance by conduct
• Offer requires information only, not recovery of cat
• Conclusion based on discussion above

3 The concept of invitation to treat is as important as ever in giving essential protection to those who sell goods.
Discuss the circumstances in which the courts have identified an invitation to treat.

Your answer may include:

• Outline of distinction between an offer and an invitation to treat

• Reasoning in Gibson v Manchester City Council
• Cases relating to advertisements
• Cases relating to goods in a shop window or on a shop shelf
• Cases relating to lots at an auction
• Cases relating to requests for information
• Conclusion based on discussion above

4 Belinda is shopping on U-Trade, an internet auction site. She wants to buy a DVD of an old film that she can’t easily
buy elsewhere when she comes across one advertised for sale by Charles for ‘£20.00 – Buy it Now or Best Offer’.
Belinda messages Charles and says she will give him £10.00 as a ‘Best Offer’. He rejects this, messaging her back
saying he would take £15.00. Belinda instantly pays Charles £15.00 through the website. However, later Charles says
he’s sold it to another person for the full amount.

Joe runs a convenience store and has advertised in the shop’s window: ‘For Sale: “Spice” 2 packs for £10’. Spice is a
synthetic drug which is banned in the UK. Advise Belinda and Joe if there is a valid offer in each case.

Your answer may include:

• Outline of what amounts to an offer, counter offer and rejection of offer and the need for communication

With respect to Belinda:

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 • Application and conclusion with reference to decided cases
o Advertisement an invitation to treat not an offer
o Belinda’s counter offer
o Charles rejection of her offer and new offer made by him
o Acceptance by conduct by paying making contract and ending offer

With respect to Joe:

• Application and conclusion with reference to decided cases:

o Goods in a shop window usually an invitation to treat

NB any agreement with respect to ‘Spice’ void for illegality and unenforceable in law.

5 Discuss the extent to which the postal rule in relation to acceptance does not reflect the modern commercial
world.

Your answer may include:

• Explanation by reference to decided cases of the postal rules

• Discussion of case law refining the rules to accommodate fax etc
• Discussion of legislative efforts in updating and clarifying acceptance in contracts made in more modern
ways including:
o Consumer Protection (Distance Selling) Regulations 2000
o Article 11 Electronic Commerce (EC Directive) Regulations 2002
o Consumer Rights Act 2015
• Conclusion based on discussion above.

6 Debbie lives on a busy street, next door to her elderly, house-bound neighbour, Ethel. Each Wednesday, Debbie
goes to the supermarket and picks up Ethel’s groceries.

Ethel’s daughter, Frances is so grateful, that when Ethel dies, she promises Debbie £100 for ‘all of her trouble’.

Debbie is concerned about the number of cars that are frequently parked outside her house in a ‘residents’only’
zone. She offers Billy, a traffic warden, £50 per week to ensure he makes more frequent visits to her street and
ensure that parking tickets are placed on illegally parked cars.

Advise Debbie and Billy whether they are able to claim their money.

Your answer may include:

• Outline of the law with respect to consideration

With respect to Debbie:

• Discussion and conclusion as to whether the consideration is sufficient

• Discussion and conclusion as to whether there is no consideration for the promise as the service only
amounts to past consideration

With respect to Billy:

• Discussion and conclusion as to whether there is no consideration as it is performing a pre-existing duty.

7 Discuss the extent to which consideration is necessary in the formation of a contract.

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Your answer may include:

• Consideration is necessary because the law of contract is concerned with bargains and not gifts
• Outline of the law with respect to consideration
• Discussion of cases appear to deviate from the rule in areas including:
o Adequacy of consideration
o Sufficiency of consideration
o Past consideration and added new consideration
o Pre-existing duties
o Part payment of debts
o Variation of existing contract terms
• Conclusion based on above discussion.

8 Kiara is selling her mobile phone. Will asks her which model she is selling. She says, ‘I think it’s a Model 6,but not
entirely sure.’ Will buys the phone but realises a week later that it is a Model 4 and only worth half of what he paid.

Chris is a talent agent and keen to sign a new and very popular pop group, The Cockroaches. Their current manager,
Brian agrees that Chris can take over the management of the group for £2 million. A contract is signed, but Brian fails
to tell Chris that the lead singer has left the group to pursue a solo career.

Advise Kiara and Chris whether they can claim their contracts are unenforceable because of misrepresentation.

Your answer may include:

• Outline of meaning of misrepresentation

• Explanation of types of misrepresentation
• Explanation of remedies for different types of misrepresentation
• Discussion application and conclusion referring to relevant cases with respect to Kiara:
o Kiara made the false statement but could argue her statement suggests it is one of opinion rather
than fact.
o It is irrelevant whether Will could establish the true model easily
o Was will induced to enter the contract by the statement if one of fact?
o NB application and conclusion must be from the point of view of Kiara defending Will’s claim
• Discussion application and conclusion referring to relevant cases with respect to Chris:
o Is there a false statement?
o Was it true when made but became false before the contract was entered?

9 Sid goes to a late night ‘drive-in’ cinema in a large open-air car park. At the entrance he pays for an admission
ticket. On the back of the ticket, it states the ‘car park owners will not be liable for any accident or damage caused
while in the car park’. During the movie, a spotlight collapses and crashes onto Sid’s car.

Glen parks his car in John’s car park. Both the owner and Glen know that the car park is used as a short cut by
hundreds of fans to get to a football stadium and very often cars are damaged as a result.

There is a huge sign at the entrance which states ‘Management accept no responsibility for damage caused to
vehicles while parked in this car park’. Glen doesn’t move his car and it is badly damaged by fans.

Advise Sid and Glen whether they can claim for their losses or whether there is a valid exclusion clause in both cases.

Your answer may include:

• Outline of the law relating to incorporation of exclusion clauses

• Outline of the law with respect to validity of an exclusion clause that is part of the contract
• Outline of the contra proferentem rule
• Outline of unfair contract terms blacklist and grey lists

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 • Discussion application and conclusion referring to relevant cases with respect to Sid:
o Was the notice brought to his attention?
o Is he a regular customer and knows of the term’s existence?
o General fairness under Consumer Rights act 2015 s62
• Discussion application and conclusion referring to relevant cases with respect to Glen
o Notice likely to have brought the fact that there are contract terms to his attention
o General fairness under Consumer Rights act 2015 s62

10 Discuss the extent to which the rules on exclusion clauses are in need for reform.

Your answer may include:

• Discussion with examples of the criticism that exclusion clauses and limitation clauses can be harsh on the
party subject to them, particularly where that party is of weaker bargaining strength. This might be reformed
by expanding judicial controls and allowing greater protection for individuals and smaller businesses under
the Unfair Contract Terms Act 1977 and other legislation.
• Discussion with examples of the criticism that the contra proferentem rule operates very strictly against the
party inserting the clause, unless they spell out precisely what the clause will cover. This might be reformed
by clear and specific guidelines as to what is and what is not acceptable, to allow businesses to legitimately
rely upon exclusion clauses and limitation clauses to protect their business.
• Discussion with examples of the criticism that terms of a contract must be available to the contracting
parties, but there is no insistence in law that the terms are read, leading to injustice. This might be reformed
by either the law stipulating that a contracting party is made aware of the terms by evidentially reading the
terms, or that a summary of the most divisive terms must be read to the parties.
• Discussion with examples of the criticism that where there is a large amount of correspondence before a
contract is formed, (the battle of the forms), there can be uncertainty as to which terms were incorporated.
This might be reformed by replacing the various common law tests, creating legislation to standardise
contract law to provide business efficacy as a rule of interpretation

11 Discuss whether the rules on misrepresentations are satisfactory or not.

Your answer may include:

• Definition of misrepresentation
• Analysis of case law on aspects of the definition commenting on effectiveness and clarity of the law:
o False statement
o Material Fact
o Made by a party to the contract
o Induces the other party to enter the contract
• Types of misrepresentation
o Innocent
o Negligent
o Fraudulent
• Remedies for the different types of misrepresentation
• Statutory amendments to the law
o Misrepresentation Act 1967
o Consumer Rights Act 2015
• Conclusion

12 Discuss whether the doctrine of consideration should continue to be considered a valid part of an

enforceable contract.

Your answer may include:

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 • Definition of consideration
• Consideration is necessary because the law of contract is concerned with bargains and not gifts
• Should an agreement to make a gift be enforceable?:

o Social and domestic situations

o Advertised ‘free gifts’

o Charitable pledges

• Discussion of cases that might suggest consideration is essential and those areas of law where it would be
better not have the requirement of consideration:

o Adequacy of consideration

o Sufficiency of consideration

o Past consideration and added new consideration

o Pre-existing duties

o Part payment of debts

o Variation of existing contract terms

• Conclusion based on above discussion

13 Discuss the extent to which an innocent party can truly rely on the doctrine of economic duress if they are forced
into a contract or forced to change a contract following threats of an economic nature.

Your answer may include:

• Outline of background to economic duress

• Operation of case law on economic duress focussing on availability of a remedy to an innocent party:
o Coercion of will: the courts will take into account whether the injured party protested, whether
there was an alternative route available, were they independently advised or whether they took
steps to avoid it
o Illegitimate pressure is required; coercion caused by pressure in itself is not enough; a hard-driven
bargain is exactly that, otherwise every toughly fought deal
o would be at risk of being made void
o Threats by a union to blacklist a ship may be economic duress; submission arising from the
realisation that there is no other practical choice open
o A threat to a small firm by a larger firm that they would breach a contract can be economic duress
o There may be no economic duress where a reasonable choice has been made
• As the effect of economic duress is to make the contract voidable, the remedy is the equitable remedy of
rescission with the following consequences:
o Unlike common law remedies, equitable remedies are not ‘as of right’ and instead are at the
discretion of the courts
o The claimant must not have affirmed the contract
o The claimant must claim promptly
o Both sides of the transaction must be able to be undone
• Conclusion based on discussion above.

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14 Debbie agrees to buy a new car for £15,000 from AutoCarZ, a car dealership. She must pay monthly over five
years. After a year, Debbie is made redundant and is unable to continue the monthly payments. AutoCarZ petitions
the court to order specific performance to force her to continue paying.

Sue knew that her sister, Jade, who runs a children’s nursery, was having difficulty finding workers to cover the
afternoon session, so she offers to help for two weeks until Jade can find someone more permanent. At the end of
the two weeks, Jade says she will pay Sue £500. However, a week later Jade says she was only joking and refuses to
pay Sue.

Advise Debbie and Sue as to the remedies in contract law available to them.

Your answer may include:

With respect to Debbie

• Explanation and application of the remedy of specific performance

o Specific performance compels the defendant to carry out their agreed obligations under the
contract.
o The court can order specific performance and/or damages, although orders for specific performance
are rare; the courts are reluctant to force defendants to carry out their obligations.
o However, damages might not compensate the injured party, if the goods have a distinctive
characteristic ( not applicable here)
o The court’s decision will depend on whether it would be fair to do so and whether it would mean
excessive hardship on the party
o Debbie owes money on some sort of deferred payment agreement. Specific performance would only
be the same as claiming for each unpaid instalment. The court will almost certainly reject AutoCarZ
petition as a simple money claim is an adequate remedy and specific performance would not be
enforceable any more simply.

With respect to Sue

• Explanation and application of the law with respect to intention to create legal relations
o Discussion as to whether this is a domestic or commercial relationship by reference to decided cases
• Explanation and application of the law with respect to consideration
o Discussion by reference to decided cases, as to whether the £500 is offered after the work is done
which would be past consideration or where there is a reasonable implication that a payment be
made, even though such has not been stated in the agreement.
• Remedy would be through a money claim, damages being either the £500 or a claim for quantum meruit

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