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Flashcard 1349174562060

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#co-ownership #land #law

Question

remember that a minimum of two trustees is necessary to give a valid receipt and thus enable overreaching to operate: [Statute].

Answer

LPA 1925, s 27

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remember that a minimum of two trustees is necessary to give a valid receipt and thus enable overreaching to operate: LPA 1925, s 27.

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Flashcard 1366879767820

Tags

#freedom-of-person #human-rights #public

Question

The present provisions allow the police to detain a person for up to 48 hours on their own authority from the time of arrest (Terrorism Act 2000, s [...]).

Answer

41(3)

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The present provisions allow the police to detain a person for up to 48 hours on their own authority from the time of arrest (Terrorism Act 2000, s 41(3)).

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Flashcard 1366881340684

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#freedom-of-person #human-rights #public

Question

suspects are entitled to consult a solicitor in private at any time.

Answer

PACE 1984, s 58

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Under the PACE 1984, s 58, suspects are entitled to consult a solicitor in private at any time.

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Flashcard 1366883699980

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#freedom-of-person #human-rights #public

Question

Under the PACE 1984, s [...], suspects are entitled to consult a solicitor in private at any time.

Answer

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Under the PACE 1984, s 58, suspects are entitled to consult a solicitor in private at any time.

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Flashcard 1366885272844

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#hra #law #public

Question

under the Human Rights Act 1998, s 2(1) courts are only required to take into account Strasbourg's jurisprudence

Answer

R v Horncastle

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ts submitted that their convictions breached the ECHR, art 6(3)(d), which guarantees the right of an accused to cross-examine witnesses at a criminal trial, as well as the ECHR, art 6(1).The Supreme Court dismissed the appeal. It held that under the Human Rights Act 1998, s 2(1) it was only required to take into account Strasbourg's jurisprudence, and in this particular case it declined to follow the Chamber's decision in Al-Khawaja (see section 9.2.1 on the Human Rights Act 1998, s 2(1)). The Supreme Court held that the admis

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Flashcard 1366888942860

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Question

According to the convention of [...], the Prime Minister, Cabinet, and government are collectively responsible to the House of Commons for their conduct of national affairs and must resign if defeated in a ‘vote of no confidence'.

Answer

collective ministerial responsibility

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According to the convention of collective ministerial responsibility, the Prime Minister, Cabinet, and government are collectively responsible to the House of Commons for their conduct of national affairs and must resign if defeated in a ‘vote of no co

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Flashcard 1366892612876

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#constitution #law #public

Question

'The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision'

Answer

R on the application of A & Others v Secretary of State for the Home Department [2004] UKHL 56

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ive to account is that it is not sufficiently independent in the political sense. In accordance with the principle of separation of powers (see further in Chapter 4), the courts are reluctant to interfere with matters of government policy. 'The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision' (R on the application of A & Others v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68). So, when the issue at stake is more political in nature, the court

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Flashcard 1366897855756

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Question

In the UK, many commentators have warned of the potential dangers of such fusion, particularly given the strong degree of control exercised by the political parties over their MPs, through the whipping system, and the general tendency since 1945 for governing parties to enjoy significant parliamentary majorities in a 'first past the post' electoral system. [who] and from 1979–87, commenting on the relationship between these two bodies of state, coined the phrase 'elective dictatorship' in describing executive dominance over the legislature.

Answer

Lord Hailsham, Lord Chancellor from 1970–74

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of control exercised by the political parties over their MPs, through the whipping system, and the general tendency since 1945 for governing parties to enjoy significant parliamentary majorities in a 'first past the post' electoral system. Lord Hailsham, Lord Chancellor from 1970–74 and from 1979–87, commenting on the relationship between these two bodies of state, coined the phrase 'elective dictatorship' in describing executive dominance over the legislature.</s

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Flashcard 1366900215052

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Question

In the UK, many commentators have warned of the potential dangers of such fusion, particularly given the strong degree of control exercised by the political parties over their MPs, through the whipping system, and the general tendency since 1945 for governing parties to enjoy significant parliamentary majorities in a 'first past the post' electoral system. Lord Hailsham, Lord Chancellor from [...] and from 1979–87, commenting on the relationship between these two bodies of state, coined the phrase 'elective dictatorship' in describing executive dominance over the legislature.

Answer

1970–74

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l parties over their MPs, through the whipping system, and the general tendency since 1945 for governing parties to enjoy significant parliamentary majorities in a 'first past the post' electoral system. Lord Hailsham, Lord Chancellor from 1970–74 and from 1979–87, commenting on the relationship between these two bodies of state, coined the phrase 'elective dictatorship' in describing executive dominance over the legislature.</s

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Flashcard 1366902050060

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Question

Judicial influence on the development of law can be a strong one, therefore. However, it is very important to note that Parliament ultimately has the ability to override the effect of a judicial decision by passing legislation to nullify it. In [case] the court had upheld a claim for compensation against the Crown in respect of damage done by British forces during wartime. To nullify the effect of this decision, the War Damage Act 1965 was passed, with retrospective effect, to deny entitlement to compensation.

Answer

Burmah Oil Co Ltd v Lord Advocate, [1965] AC 75

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ial influence on the development of law can be a strong one, therefore. However, it is very important to note that Parliament ultimately has the ability to override the effect of a judicial decision by passing legislation to nullify it. In Burmah Oil Co Ltd v Lord Advocate, [1965] AC 75 the court had upheld a claim for compensation against the Crown in respect of damage done by British forces during wartime. To nullify the effect of this decision, the War Damage Act 1

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Flashcard 1366904409356

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Question

Judicial influence on the development of law can be a strong one, therefore. However, it is very important to note that Parliament ultimately has the ability to override the effect of a judicial decision by passing legislation to nullify it. In Burmah Oil Co Ltd v Lord Advocate, [1965] AC 75 the court had upheld a claim for compensation against the Crown in respect of damage done by British forces during wartime. To nullify the effect of this decision, the [statute] was passed, with retrospective effect, to deny entitlement to compensation.

Answer

War Damage Act 1965

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lation to nullify it. In Burmah Oil Co Ltd v Lord Advocate, [1965] AC 75 the court had upheld a claim for compensation against the Crown in respect of damage done by British forces during wartime. To nullify the effect of this decision, the War Damage Act 1965 was passed, with retrospective effect, to deny entitlement to compensation. <body><html>

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Flashcard 1366907292940

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Question

As a result of these many overlaps, several academic writers have been sceptical over whether the concept of separation of powers properly exists in the UK. See for example [who], who commented that: 'no writer of repute would claim that it [separation of powers] is a central feature of the modern British Constitution'.

Answer

Professor SA de Smith

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As a result of these many overlaps, several academic writers have been sceptical over whether the concept of separation of powers properly exists in the UK. See for example Professor SA de Smith, who commented that: 'no writer of repute would claim that it [separation of powers] is a central feature of the modern British Constitution'.

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Flashcard 1366910438668

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Question

In the case of [case] the court refused to support the plaintiff's argument that he had a right to privacy. In contrast to the cases discussed earlier (see section 4.3.1.1), where the courts were criticised for judicial law-making in areas of significant public importance, the court in "M" can be seen to have been more deferential and conscious of not encroaching on to what it saw as the legislature's territory.

Answer

Malone v Metropolitan Police Commissioner, [1979] CH 344

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In the case of Malone v Metropolitan Police Commissioner, [1979] CH 344 the court refused to support the plaintiff's argument that he had a right to privacy. In contrast to the cases discussed earlier (see section 4.3.1.1), where the courts were criticised

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Flashcard 1366913060108

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Question

'It is contrary to the general rule of law, not only in this country, but in every other, to make a person judge in his own case ... ' [who] (later first Lord of Appeal in Ordinary) 1866

Answer

Justice Blackburn

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'It is contrary to the general rule of law, not only in this country, but in every other, to make a person judge in his own case ... ' Justice Blackburn (later first Lord of Appeal in Ordinary) 1866

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Flashcard 1366915943692

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Question

R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714

Answer

The court considered the decision by the Director of the Serious Fraud Office to halt investigation into bribery allegations regarding arms contracts with the government of Saudi Arabia. This provoked an explicit threat made by Saudi representatives to the Prime Minister's Chief of Staff, leading to a suspension of the investigation. The Divisional Court concluded that the decision to halt the investigation represented asurrender to an external threat and therefore ran directly contrary to the constitutional principle of the rule of law. It therefore quashed the Director's decision. The House of Lords (see [2008] UKHL 60) subsequently reversed this judgment, however, concluding that the Director had been entitled to conclude that the public interest in pursuing an important investigation into alleged bribery was outweighed by the wider public interest in protecting national security.

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In R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714, the court considered the decision by the Director of the Serious Fraud Office to halt investigation into bribery allegations regarding arms contracts with the government of Saudi Arabi

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Flashcard 1366918302988

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Question

In R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] EWHC 714, the court considered the decision by the Director of the Serious Fraud Office to halt investigation into bribery allegations regarding arms contracts with the government of Saudi Arabia. This provoked an explicit threat made by Saudi representatives to the Prime Minister's Chief of Staff, leading to a suspension of the investigation. The Divisional Court concluded that the decision to halt the investigation represented asurrender to an external threat and therefore ran directly contrary to the constitutional principle of the rule of law. It therefore quashed the Director's decision. The House of Lords (see [2008] UKHL 60) subsequently reversed this judgment, however, concluding that the Director [...]

Answer

had been entitled to conclude that the public interest in pursuing an important investigation into alleged bribery was outweighed by the wider public interest in protecting national security.

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erefore ran directly contrary to the constitutional principle of the rule of law. It therefore quashed the Director's decision. The House of Lords (see [2008] UKHL 60) subsequently reversed this judgment, however, concluding that the Director had been entitled to conclude that the public interest in pursuing an important investigation into alleged bribery was outweighed by the wider public interest in protecting national security.<body><html>

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Flashcard 1366920137996

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Question

In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in the Constitutional Reform Act 2005, s [...]. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the context of a case.

Answer

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span>In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in the Constitutional Reform Act 2005, s 1. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the context of

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Flashcard 1366921710860

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Question

In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in the Constitutional Reform Act [...], s 1. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the context of a case.

Answer

2005

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>In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in the Constitutional Reform Act 2005, s 1. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the conte

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Flashcard 1366923283724

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Question

In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in the [statute] 2005, s 1. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the context of a case.

Answer

Constitutional Reform Act

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In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in the Constitutional Reform Act 2005, s 1. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the c

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Flashcard 1366925643020

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In the UK, the rule of law has arguably become a more significant and constitutionally important concept in recent years, as illustrated by direct reference to it as a 'constitutional principle' in the [statute]. Interestingly, there is no definition of what is meant by the 'rule of law' in the Act. Instead, the drafters left it to the judges to interpret what the term means in the context of a case.

Answer

Constitutional Reform Act 2005, s 1

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Flashcard 1366928526604

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The degree to which judicial culture has moved away from the more deferential past is illustrated by the tension that has arisen between the government and the judiciary (and to some extent within the judiciary) over the courts' scrutiny of issues of a more political and diplomatic nature. A further illuminating example of this can be seen in [case] in which the Supreme Court upheld the issue of a writ of habeas corpus on the UK government, requiring it to seek to procure the release of the claimant who had been held by US forces in the Bagram Airbase since 2004.

Answer

Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs, [2012] UKSC 48

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tension that has arisen between the government and the judiciary (and to some extent within the judiciary) over the courts' scrutiny of issues of a more political and diplomatic nature. A further illuminating example of this can be seen in Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs, [2012] UKSC 48 in which the Supreme Court upheld the issue of a writ of habeas corpus on the UK government, requiring it to seek to procure the release of the claimant who had been held by US forces

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Flashcard 1366932458764

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Question

The theory suggests that Parliament can pass legislation, however absurd, unjust or impractical. [who]'s often-quoted example (from 1882) was that Parliament could pass a law ordering the death of all blue-eyed babies.

Answer

Sir Leslie Stephen

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The theory suggests that Parliament can pass legislation, however absurd, unjust or impractical. Sir Leslie Stephen's often-quoted example (from 1882) was that Parliament could pass a law ordering the death of all blue-eyed babies.

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Flashcard 1366935342348

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Question

In R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, Lord Hoffmann stated, obiter, that the principle of parliamentary sovereignty means 'that Parliament can, if it chooses, [...]'.

Answer

legislate contrary to fundamental principles of human rights

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In R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, Lord Hoffmann stated, obiter, that the principle of parliamentary sovereignty means 'that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights'.

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Flashcard 1366936915212

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Question

In [case], Lord Hoffmann stated, obiter, that the principle of parliamentary sovereignty means 'that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights'.

Answer

R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115

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Flashcard 1366939274508

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Question

In R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, [who] stated, obiter, that the principle of parliamentary sovereignty means 'that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights'.

Answer

Lord Hoffmann

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Flashcard 1366942420236

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Question

[Cases (2)]. Both cases involved plaintiffs claiming compensation for property that had been compulsorily purchased from them. According to the defendants, the level of compensation was to be assessed in compliance with the Housing Act 1925. The plaintiffs refuted this, however. They argued that the assessment should be calculated according to the more generous terms of the Acquisition of Land Act 1919, which had expressly stipulated that its provisions were to prevail over any others passed or to be passed. The court held that it was bound to apply the terms of the later 1925 Act. If the plaintiff's claim had succeeded, the 1919 Act would effectively have become entrenched.

Answer

Vauxhall Estates v Liverpool Corporation [1932] and Ellen St Estates v Minister of Health [1934]

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Vauxhall Estates v Liverpool Corporation [1932] 1 KB 133 and Ellen St Estates v Minister of Health [1934] 1 KB 590. Both cases involved plaintiffs claiming compensation for property that had been compulsorily purchased from them. According to the defendants, the level of compensation was to be as

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Flashcard 1366945041676

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Question

In [case], a case concerning UK membership of the European Community, the issue of the limits on Parliamentary sovereignty was discussed again. Lord Denning highlighted the distinction between legal and political theory.

'We have all been brought up to believe that, in legal theory, one parliament cannot bind another and that no act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster 1931 ... Can anyone imagine that Parliament could or would reverse that statute? Take the Acts which have granted independence to the Dominions....Can anyone imagine that parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics.'

Answer

Blackburn v Attorney General [1971] 1 WLR

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In Blackburn v Attorney General [1971] 1 WLR, a case concerning UK membership of the European Community, the issue of the limits on Parliamentary sovereignty was discussed again. Lord Denning highlighted the distinction between le

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Flashcard 1366947663116

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For this reason, some later judges have doubted their views. [case] concerned an amendment to the Constitution of Canada by an Act of Parliament. Megarry VC clearly re-stated the orthodox view of sovereignty.

'I have grave doubts about the theory of the transfer of sovereignty as affecting the competence of parliament. In my view, it is a fundamental of the English constitution that parliament is supreme. As a matter of law the courts of England recognise parliament as being omnipotent in all save the power to destroy its own omnipotence. Under the authority of parliament the courts of a territory may be released from their legal duty to obey parliament, but that does not touch on the acceptance by the English courts of all that parliament does. Nor must validity in law be confused with practical enforceability.'

Answer

Manuel v Attorney General [1983] Ch 77

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For this reason, some later judges have doubted their views. Manuel v Attorney General [1983] Ch 77 concerned an amendment to the Constitution of Canada by an Act of Parliament. Megarry VC clearly re-stated the orthodox view of sovereignty. 'I have grave doubts about the t

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Flashcard 1366950546700

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Question

This issue came to the fore once more following the enactment of the [statute], which introduced a 'referendum lock', a statutory framework requiring a national referendum to be held before further amendments can be made to the founding Treaties of the European Union. This followed on from the coalition government's pledge to obtain popular approval for any further transfer of sovereignty or powers to EU institutions. The referendum lock provision in the Act seemed to extend this pledge beyond the last Parliament by creating a manner and form requirement, which arguably binds future governments.

Answer

European Union Act 2011

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This issue came to the fore once more following the enactment of the European Union Act 2011, which introduced a 'referendum lock', a statutory framework requiring a national referendum to be held before further amendments can be made to the founding Treaties of the European

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Flashcard 1366953954572

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Question

Lord Denning, in [case], described the effect of the ECA 1972 as follows:

'When we come to matters with a European element the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back ... Parliament has decreed that the Treaty is henceforward to be part of our Law. It is equal in force to any Statute.'

Answer

Bulmer v Bollinger [1974] 2 All ER 1226

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Lord Denning, in Bulmer v Bollinger [1974] 2 All ER 1226, described the effect of the ECA 1972 as follows: 'When we come to matters with a European element the Treaty is like an incoming tide. It flows into the estuaries and up t

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Flashcard 1366957624588

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Question

The ECA 1972, s [...] gives direct effect to Community law within the UK. It provides that: 'All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed, and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.'

Answer

2(1)

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The ECA 1972, s 2(1) gives direct effect to Community law within the UK. It provides that: 'All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under

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The ECA [year], s 2(1) gives direct effect to Community law within the UK. It provides that: 'All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed, and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.'

Answer

1972

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The [statute] gives direct effect to Community law within the UK. It provides that: 'All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed, and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.'

Answer

ECA 1972, s 2(1)

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The ECA 1972, s [...] provides that: '… any Act passed or to be passed shall be construed and have effect [subject to directly applicable Community Law].'

Answer

2(4)

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The ECA 1972, s 2(4) provides that: '… any Act passed or to be passed shall be construed and have effect [subject to directly applicable Community Law].'

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The [statute] provides that: '… any Act passed or to be passed shall be construed and have effect [subject to directly applicable Community Law].'

Answer

ECA 1972, s 2(4)

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The ECA 1972, s 2(4) provides that: '… any Act passed or to be passed shall be construed and have effect [subject to directly applicable Community Law].'

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Question

According to the ECA 1972, s [...], questions of law relating to the Community shall be determined according to the principles and decisions laid down by the European Court of Justice (ECJ).

Answer

3(1)

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According to the ECA 1972, s 3(1), questions of law relating to the Community shall be determined according to the principles and decisions laid down by the European Court of Justice (ECJ).

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According to the [statute], questions of law relating to the Community shall be determined according to the principles and decisions laid down by the European Court of Justice (ECJ).

Answer

ECA 1972, s 3(1)

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Subsequent cases have shown the courts willing to go further and to dis-apply sections within statutes that seem clearly to conflict with EU law, even without a reference to the ECJ. The most powerful example of this was the House of Lords' decision in [case]. This case involved the Employment Protection (Consolidation) Act 1978, a UK statute that required part-time workers to work for five years before they received redundancy and unfair dismissal compensation rights. (Full-time workers only had to complete two years). Part-time workers were largely female and thus the rules were considered indirectly discriminatory to women (contrary to the EU Treaty, art 141 giving women equal pay rights). The House of Lords granted a declaration to that effect. As a result, industrial tribunals in the UK subsequently ignored the wording of the Act and granted part-time workers compensation rights if they had completed two years employment. Thus the Act, although remaining on the statute book for some time before its eventual amendment to comply with the Lords' ruling, was a dead-letter as far as the five-year qualifying period for part-timers was concerned. The effect of this decision was more far reaching than Factortame, as part of the Employment Protection (Consolidation) Act 1978 was completely suspended for all, whereas in Factortame (No 2) the Merchant Shipping Act 1998 was only suspended for EU nationals.

Answer

R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1

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ases have shown the courts willing to go further and to dis-apply sections within statutes that seem clearly to conflict with EU law, even without a reference to the ECJ. The most powerful example of this was the House of Lords' decision in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1. This case involved the Employment Protection (Consolidation) Act 1978, a UK statute that required part-time workers to work for five years before they received redundancy and unfair

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Subsequent cases have shown the courts willing to go further and to dis-apply sections within statutes that seem clearly to conflict with EU law, even without a reference to the ECJ. The most powerful example of this was the House of Lords' decision in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1. This case involved the [statute], a UK statute that required part-time workers to work for five years before they received redundancy and unfair dismissal compensation rights. (Full-time workers only had to complete two years). Part-time workers were largely female and thus the rules were considered indirectly discriminatory to women (contrary to the EU Treaty, art 141 giving women equal pay rights). The House of Lords granted a declaration to that effect. As a result, industrial tribunals in the UK subsequently ignored the wording of the Act and granted part-time workers compensation rights if they had completed two years employment. Thus the Act, although remaining on the statute book for some time before its eventual amendment to comply with the Lords' ruling, was a dead-letter as far as the five-year qualifying period for part-timers was concerned. The effect of this decision was more far reaching than Factortame, as part of the Employment Protection (Consolidation) Act 1978 was completely suspended for all, whereas in Factortame (No 2) the Merchant Shipping Act 1998 was only suspended for EU nationals.

Answer

Employment Protection (Consolidation) Act 1978

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ct with EU law, even without a reference to the ECJ. The most powerful example of this was the House of Lords' decision in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1. This case involved the Employment Protection (Consolidation) Act 1978, a UK statute that required part-time workers to work for five years before they received redundancy and unfair dismissal compensation rights. (Full-time workers only had to complete

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Subsequent cases have shown the courts willing to go further and to dis-apply sections within statutes that seem clearly to conflict with EU law, even without a reference to the ECJ. The most powerful example of this was the House of Lords' decision in R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1. This case involved the Employment Protection (Consolidation) Act 1978, a UK statute that required part-time workers to work for five years before they received redundancy and unfair dismissal compensation rights. (Full-time workers only had to complete two years). Part-time workers were largely female and thus the rules were considered indirectly discriminatory to women (contrary to the EU Treaty, art [...] giving women equal pay rights). The House of Lords granted a declaration to that effect. As a result, industrial tribunals in the UK subsequently ignored the wording of the Act and granted part-time workers compensation rights if they had completed two years employment. Thus the Act, although remaining on the statute book for some time before its eventual amendment to comply with the Lords' ruling, was a dead-letter as far as the five-year qualifying period for part-timers was concerned. The effect of this decision was more far reaching than Factortame, as part of the Employment Protection (Consolidation) Act 1978 was completely suspended for all, whereas in Factortame (No 2) the Merchant Shipping Act 1998 was only suspended for EU nationals.

Answer

141

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dancy and unfair dismissal compensation rights. (Full-time workers only had to complete two years). Part-time workers were largely female and thus the rules were considered indirectly discriminatory to women (contrary to the EU Treaty, art 141 giving women equal pay rights). The House of Lords granted a declaration to that effect. As a result, industrial tribunals in the UK subsequently ignored the wording of the Act and gra

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The classic, and often quoted, definition of the prerogative was laid down by Dicey, who stated that the prerogative was:

'[T]he residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown … Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.' [who], Introduction to the Study of the Law of the Constitution (1885).

Answer

AV Dicey

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tionary or arbitrary authority, which at any given time is legally left in the hands of the Crown … Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative.' AV Dicey, Introduction to the Study of the Law of the Constitution (1885). <body><html>

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The Crown is not bound by statute except by express words or necessary implication.

Answer

Province of Bombay v Municipal Corporation of the City Bombay [1947] AC 58

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The Crown is not bound by statute except by express words or necessary implication. In Province of Bombay v Municipal Corporation of the City Bombay [1947] AC 58, the Privy Council reaffirmed and elaborated upon this principle. Lord du Parcq stated as follows: &#

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The Crown is not bound by statute except by express words or necessary implication. In [case], the Privy Council reaffirmed and elaborated upon this principle. Lord du Parcq stated as follows:

'If ... it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions.'

Emphasising the strictness of the test, Lord du Parcq further stated that the agreement of the Crown to be bound could be inferred where it was apparent from the terms of the statute that 'its beneficent purpose must be wholly frustrated unless the Crown were bound'.

Answer

Province of Bombay v Municipal Corporation of the City Bombay [1947] AC 58

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Time does not run against the Crown at common law. However, the [statute] expressly requires the Crown to observe any statutory time limitations.

Answer

Crown Proceedings Act 1947

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Time does not run against the Crown at common law. However, the Crown Proceedings Act 1947 expressly requires the Crown to observe any statutory time limitations.

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Time does not run against the Crown at common law. However, the Crown Proceedings Act 1947 expressly requires the Crown to [...].

Answer

observe any statutory time limitations

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Time does not run against the Crown at common law. However, the Crown Proceedings Act 1947 expressly requires the Crown to observe any statutory time limitations.

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[case], where the Home Secretary sought to argue that she had a residual common law right using prerogative powers to amend the rules applying to immigration controls, in this case those that governed work permits for those in skilled occupations. The Supreme Court, led in this instance by Lord Hope, rejected this argument on the basis that ever since the Immigration Act 1971, matters pertaining to immigration control, previously governed by prerogative power, had been subject to statutory control alone. Any notable change in the relevant rules therefore had to be approved firstly by Parliament.

Answer

R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33

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R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, where the Home Secretary sought to argue that she had a residual common law right using prerogative powers to amend the rules applying to immigration controls, in this case those tha

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The [...] principle applies where an Act of Parliament seeks to regulate a matter previously falling under the prerogative, but does not expressly abolish the prerogative. In this situation the statute will prevail.

Answer

De Keyser

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The De Keyser principle applies where an Act of Parliament seeks to regulate a matter previously falling under the prerogative, but does not expressly abolish the prerogative. In this situation the

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The De Keyser principle applies where an Act of Parliament seeks to regulate a matter previously falling under the prerogative, but does not expressly abolish the prerogative. In this situation [...].

Answer

the statute will prevail

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No new prerogatives can come into existence.

Answer

BBC v Johns [1965] Ch 32

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No new prerogatives can come into existence. In BBC v Johns [1965] Ch 32, the BBC claimed that the Crown had a monopoly of broadcasting, exercised through the BBC, which was therefore entitled to Crown exemption from income tax. This contention was unsucce

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The courts have long been able to rule upon whether a claimed prerogative power actually exists and, if so, on what the scope of that power actually is. In [case] (see Chapter 4), the Crown argued that a prerogative power existed to issue warrants for search and seizure of seditious material. However, the court ruled that such a prerogative did not exist and went on to declare that the search was unlawful because the warrant had no other legal basis either.

Answer

Entick v Carrington (1765) 19 St Tr 1029

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The courts have long been able to rule upon whether a claimed prerogative power actually exists and, if so, on what the scope of that power actually is. In Entick v Carrington (1765) 19 St Tr 1029 (see Chapter 4), the Crown argued that a prerogative power existed to issue warrants for search and seizure of seditious material. However, the court ruled that such a prerogative did

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An exemption clause is a contractual term that purports to [...].

Answer

limit or exclude a liability that would otherwise attach to one of the contracting parties

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An exemption clause is a contractual term that purports to limit or exclude a liability that would otherwise attach to one of the contracting parties.

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In [case], Lord Diplock defined an exemption clause as a clause 'which excludes or modifies an obligation, whether primary, general secondary or anticipatory secondary'.

Answer

Photo Productions v Securicor Transport [1980] AC 827

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In Photo Productions v Securicor Transport [1980] AC 827, Lord Diplock defined an exemption clause as a clause 'which excludes or modifies an obligation, whether primary, general secondary or anticipatory secondary'.</ht

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In Photo Productions v Securicor Transport [1980] AC 827, [who] defined an exemption clause as a clause 'which excludes or modifies an obligation, whether primary, general secondary or anticipatory secondary'.

Answer

Lord Diplock

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In Photo Productions v Securicor Transport [1980] AC 827, Lord Diplock defined an exemption clause as [...].

Answer

a clause 'which excludes or modifies an obligation, whether primary, general secondary or anticipatory secondary'

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How can an exemption clause be incorporated?

Answer

1. signature,
2. notice, or
3. a course of dealing.

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An exemption clause cannot be effective unless it is part of the contract. In other words, it must be incorporated into the contract. This can occur in one of three ways: signature, notice, or a course of dealing.

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L'Estrange v Graucob [1934] 2 KB 394

Answer

FACTS: E signed a printed contract of sale for an automatic vending machine without reading it. The machine proved unsatisfactory and E claimed damages for breach of the implied condition as to fitness for purpose under the Sale of Goods Act 1893 s 14(1). She was met with the defence that one of the printed terms of the sales agreement excluded the implied condition. HELD: The printed term excluded the implied condition under the Act. Since E had signed the contract, it was irrelevant that she had not read it, even though the sales agreement was in 'regrettably small print'.
As fate would have it, counsel for the sellers was one Denning. Shocked by the outcome of the case as well as by the way that the judgment was circulated in the trade, Lord Denning, as he was to become, took on the mantle of champion of the interests of consumers and other vulnerable parties. Thus it was that, for three decades after World War II, it was Denning's Court of Appeal that was in the vanguard of attempts to develop the law in ways that shielded a new class of consumer contractors against the abuse of standard form business practices – most notoriously perhaps by developing the doctrine of fundamental breach, see 11.3.2). As the Prologue explains, this created huge disruptions in the law of contract leading to statutory intervention and, eventually, to the bifurcation of the law so that business-to-consumer dealings were regulated separately from the main body of contract law.

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L'Estrange v Graucob [1934] 2 KB 394 FACTS: E signed a printed contract of sale for an automatic vending machine without reading it. The machine proved unsatisfactory and E claimed damages for breach of the implied conditio

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Question

When a document containing contractual terms is signed without there being any misrepresentation, the signing party is bound.

Answer

L'Estrange v Graucob [1934] 2 KB 394

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When a document containing contractual terms is signed without there being any misrepresentation, the signing party is bound.

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the rule that a party who signs a contract will be bound by their signature is subject to the proviso that there has been no fraud or misrepresentation. In [case], it was held that a party may be prevented from relying on incorporation of an exemption clause through signature of a document if he has orally misrepresented the meaning of the clause to the other party

Answer

Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805

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the rule that a party who signs a contract will be bound by their signature is subject to the proviso that there has been no fraud or misrepresentation. In Curtis v Chemical Cleaning and Dyeing Co [1951] 1 KB 805, it was held that a party may be prevented from relying on incorporation of an exemption clause through signature of a document if he has orally misrepresented the meaning of the clau

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A signature will not incorporate an exemption clause if the document signed does not have contractual effect

Answer

Grogan v Robin Meredith Plant Hire [1996] CLC 1127

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a signature will not incorporate an exemption clause if the document signed does not have contractual effect (see Grogan v Robin Meredith Plant Hire [1996] CLC 1127).

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In assessing the degree of notice which is acceptable, it is clear that the party relying on the exemption clause need not show that he actually brought it to the notice of the other party, but only that he took reasonable steps to do so.

Answer

Parker v South Eastern Railway Co (1876-77) LR 2 CPD 416

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In assessing the degree of notice which is acceptable, it is clear that the party relying on the exemption clause need not show that he actually brought it to the notice of the other party, but only that he took reasonable steps to do so.

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Parker v South Eastern Railway Co (1876-77) LR 2 CPD 416

Answer

FACTS: The plaintiff deposited a bag in the defendant's cloakroom. He paid two pence and was given a ticket, on the face of which was printed: 'See Back'. On the back of the ticket was a printed notice saying that the company would not be responsible for loss of any item whose value was more than £10. The plaintiff's bag, which was worth more than £10, was lost and he brought an action for damages against the company. The plaintiff had not read the notice on the back of the ticket. The company pleaded the exemption clause. The jury were directed to consider whether the plaintiff had read or was aware of the exemption clause. The jury answered both these in the negative and accordingly judgment was entered for the plaintiff. HELD by the Court of Appeal on appeal by the defendant: The jury had been misdirected. The notice was clear and the ticket was a common form of contractual document. The relevant question for the jury was whether the company had taken reasonable steps to bring it to the plaintiff's attention.

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Parker v South Eastern Railway Co (1876-77) LR 2 CPD 416 FACTS: The plaintiff deposited a bag in the defendant's cloakroom. He paid two pence and was given a ticket, on the face of which was printed: 'See Back'. On the back of the ticket was a

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Another interesting case is [case]. The in ticket in this case had, on its face, the words 'see back' and on the reverse side stated that it was issued subject to the standard conditions set out in a railway timetable. The plaintiff, who could not read, was bound by these conditions. Although the decision seems rather harsh, the principle that such a clause can be incorporated by reference is nevertheless a sound one.

Answer

Thompson v London, Midland & Scottish Railway [1930] 1 KB 41

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Another interesting case is Thompson v London, Midland & Scottish Railway [1930] 1 KB 41. The in ticket in this case had, on its face, the words 'see back' and on the reverse side stated that it was issued subject to the standard conditions set out in a railway timetable.

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Question

An exclusion clause can be incorporated by reference

Answer

Thompson v London, Midland & Scottish Railway [1930] 1 KB 41

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on the reverse side stated that it was issued subject to the standard conditions set out in a railway timetable. The plaintiff, who could not read, was bound by these conditions. Although the decision seems rather harsh, the principle that such a clause can be incorporated by reference is nevertheless a sound one.<body><html>

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It has been suggested that the decision may have been different if the company had been aware of the plaintiff's inability to read, as it would then have been clear that simply handing over the ticket did not amount to reasonable notice. This appears to have been given judicial support in [case] where the contract was written in German, and an exclusion clause was inserted without the knowledge of the other party. The party relying on the clause knew that the other could not read the language in which the clause was expressed. The Court of Appeal held that the clause in question had not been incorporated.

Answer

Harvey v Ventilatorenfabrik Oelde GmbH (1988) 8 Tr L 138

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een different if the company had been aware of the plaintiff's inability to read, as it would then have been clear that simply handing over the ticket did not amount to reasonable notice. This appears to have been given judicial support in Harvey v Ventilatorenfabrik Oelde GmbH (1988) 8 Tr L 138 where the contract was written in German, and an exclusion clause was inserted without the knowledge of the other party. The party relying on the clause knew that the other could not r

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It has been suggested that the decision may have been different if the company had been aware of the plaintiff's inability to read, as it would then have been clear that simply handing over the ticket did not amount to reasonable notice. This appears to have been given judicial support in Harvey v Ventilatorenfabrik Oelde GmbH (1988) 8 Tr L 138 where the contract was written in German, and an exclusion clause was inserted without the knowledge of the other party. The party relying on the clause knew that the other could not read the language in which the clause was expressed. The Court of Appeal held that [...].

Answer

the clause in question had not been incorporated

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itten in German, and an exclusion clause was inserted without the knowledge of the other party. The party relying on the clause knew that the other could not read the language in which the clause was expressed. The Court of Appeal held that the clause in question had not been incorporated.<body><html>

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Question

Where a document does not have clear words on the face of it directing attention to an exemption clause on the reverse, it is unlikely that such a clause will be incorporated

Answer

Henderson v Stevenson (1875) LR 2 Sc & Div 470

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if there are clauses on the document that have been rendered illegible, for example by a date stamp, it is unlikely that they will be deemed incorporated

Answer

Sugar v London, Midland & Scottish Railway [1941] 1 All ER 172

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Question

Where the clause is unusual or unexpected or is particularly onerous, a higher degree of notice will be required to incorporate it.

Answer

Thornton v Shoe Lane Parking [1971] 2 QB 163

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Question

in [case], Lord Denning MR, commenting on a clause that attempted to exclude the defendant's liability for personal injury, stated:

All l say is that it is so wide and so destructive of rights that the court should not rule any man bound by it unless it is drawn to his attention in the most explicit way. It is an instance for what I had in mind in Spurling v Bradshaw [1956] 1 WLR 461 when I stated that in order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it, or something equally startling.

Answer

Thornton v Shoe Lane Parking [1971] 2 QB 163

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in Thornton v Shoe Lane Parking [1971] 2 QB 163, Lord Denning MR, commenting on a clause that attempted to exclude the defendant's liability for personal injury, stated: All l say is that it is so wide and so destructive

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Where a clause has been brought to the notice of the other party during previous dealings, it may be implied into the current transaction to give effect to the presumed intentions of the parties, even though it has on this particular occasion been omitted. In order for this rule to operate, it must be shown that the course of dealing has been consistent over a period of time:

Answer

McCutcheon v David MacBrayne [1964] 1 WLR 125

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Question

In [case], three or four transactions over a period of five years was held to be insufficiently regular to establish a course of dealing.

Answer

Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71

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In Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71, three or four transactions over a period of five years was held to be insufficiently regular to establish a course of dealing.

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Question

In Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71, [...] transactions over a period of five years was held to be insufficiently regular to establish a course of dealing.

Answer

three or four

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In Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71, three or four transactions over a period of five years was held to be insufficiently regular to establish a course of dealing.

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Question

In Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71, three or four transactions over a period of [...] was held to be insufficiently regular to establish a course of dealing.

Answer

five years

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In Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71, three or four transactions over a period of five years was held to be insufficiently regular to establish a course of dealing.

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Question

In Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71, three or four transactions over a period of five years was held to be [...].

Answer

insufficiently regular to establish a course of dealing

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In Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71, three or four transactions over a period of five years was held to be insufficiently regular to establish a course of dealing.

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[case] where the House of Lords held (albeit obiter) that a clause had been incorporated by a course of dealing. The same sale note (containing the relevant term) had been used three or four times per month over a period of three years.

Answer

Harry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31

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Harry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 where the House of Lords held (albeit obiter) that a clause had been incorporated by a course of dealing. The same sale note (containing the relevant term) had been used three or four

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Harry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 where the House of Lords held (albeit obiter) that a clause had been incorporated by a course of dealing. The same sale note (containing the relevant term) had been used [...] over a period of three years.

Answer

three or four times per month

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ry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 where the House of Lords held (albeit obiter) that a clause had been incorporated by a course of dealing. The same sale note (containing the relevant term) had been used three or four times per month over a period of three years.<body><html>

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Answer

three years

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Sons Ltd [1969] 2 AC 31 where the House of Lords held (albeit obiter) that a clause had been incorporated by a course of dealing. The same sale note (containing the relevant term) had been used three or four times per month over a period of three years.<body><html>

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Question

Any clause (exemption or otherwise) will not amount to a binding term if it is communicated only after the contract is made

Answer

Olley v Marlborough Court Hotel [1949] 1 KB 532

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Question

Thornton v Shoe Lane Parking [1971] 2 QB 163

Answer

FACTS: The plaintiff drove his car to a multi-storey automatic car park that he had never used before. The machine issued the plaintiff with a ticket that stated that the ticket was issued 'subject to the conditions of issue as displayed on the premises'. The plaintiff drove into the car park without reading the words on the ticket or those displayed on a pillar opposite the ticket machine. When he returned, he was severely injured while attempting to put his belongings into his car. The defendant company claimed that the ticket was a contractual document and that it incorporated a condition exempting them, inter alia, from liability for injury to the customer occurring when the customer's motor vehicle was in the car park. HELD by the Court of Appeal: The plaintiff was not bound by the exemption clause because reasonable notice of it was not given either before or at the time of contracting.

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Thornton v Shoe Lane Parking [1971] 2 QB 163 FACTS: The plaintiff drove his car to a multi-storey automatic car park that he had never used before. The machine issued the plaintiff with a ticket that stated that the ticket was issu

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In [case], Lord Denning MR distinguished between situations where a ticket is purchased in a face-to-face transaction, (for example, at a ticket office), and situations where a ticket is purchased from a machine:

The offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made …

Answer

Thornton

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In Thornton, Lord Denning MR distinguished between situations where a ticket is purchased in a face-to-face transaction, (for example, at a ticket office), and situations where a ticket is purchase

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In Thornton, [who] distinguished between situations where a ticket is purchased in a face-to-face transaction, (for example, at a ticket office), and situations where a ticket is purchased from a machine:

The offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made …

Answer

Lord Denning MR

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Question

An exemption clause is not incorporated into the contract if the document in which it is contained is not one that could reasonably be expected to have contractual force

Answer

Chapelton v Barry Urban District Council [1940] 1 KB 532

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Question

It should be noted that the courts apply the contra proferentem rule with less rigour where the clause in question merely limits (rather than excludes) liability

Answer

Ailsa Craig Fishing Co Ltd v Malvern Fishing Co [1983] 1 WLR 964

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Question

Andrews Brothers (Bournemouth) Ltd v Singer & Co [1934] 1 KB 17

Answer

FACTS: The plaintiffs entered into an agreement with the defendants whereby they would be the sole dealer within a specified area for the sale of 'new Singer cars'. By virtue of this agreement, the plaintiffs contracted to purchase a certain number of cars. The written agreement contained a clause stipulating the following: 'all conditions, warranties and liabilities, implied by statute, common law or otherwise are excluded'. The plaintiffs ordered a car from the defendants. At the time of delivery, the car had already travelled some 550 miles and could therefore not be described as new. HELD: The court held that the clause only exempted liability for implied terms, whereas this was breach of an express term.

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Andrews Brothers (Bournemouth) Ltd v Singer & Co [1934] 1 KB 17 FACTS: The plaintiffs entered into an agreement with the defendants whereby they would be the sole dealer within a specified area for the sale of 'new Singer cars'. By virtue of this agr

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Andrews Brothers (Bournemouth) Ltd v Singer & Co [1934] 1 KB 17
FACTS: The plaintiffs entered into an agreement with the defendants whereby they would be the sole dealer within a specified area for the sale of 'new Singer cars'. By virtue of this agreement, the plaintiffs contracted to purchase a certain number of cars. The written agreement contained a clause stipulating the following: 'all conditions, warranties and liabilities, implied by statute, common law or otherwise are excluded'. The plaintiffs ordered a car from the defendants. At the time of delivery, the car had already travelled some 550 miles and could therefore not be described as new. HELD: The court held that [...].

Answer

the clause only exempted liability for implied terms, whereas this was breach of an express term

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by statute, common law or otherwise are excluded'. The plaintiffs ordered a car from the defendants. At the time of delivery, the car had already travelled some 550 miles and could therefore not be described as new. HELD: The court held that the clause only exempted liability for implied terms, whereas this was breach of an express term.<body><html>

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Question

Clear words must be used if a party is seeking to exclude liability resulting from its own negligence. The requirement is most obviously resolved where the word 'negligence' itself is used but it may be possible to use more general words, which are wide enough to cover liability for negligence. The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of [case]

Answer

Canada Steamship Lines v R [1952] AC 192.

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al words, which are wide enough to cover liability for negligence. The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of Canada Steamship Lines v R [1952] AC 192.<body><html>

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Answer

Lord Morton

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d but it may be possible to use more general words, which are wide enough to cover liability for negligence. The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of Canada Steamship Lines v R [1952] AC 192.<body><html>

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Question

The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of [case]. Lord Morton's guidelines can be summarised as follows:

Does the clause expressly mention 'negligence'? (Or a close synonym: Monarch Airlines v London Luton Airport [1997] CLC 698). If so, the court must give effect to the clause.
Are the words used ‘wide enough’? If there is no express reference to negligence in the clause, however, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence by the party seeking to rely on the clause (the 'proferens').
Are they too wide? If the words used are 'wide enough', the court must then consider whether, in the particular context, liability may be based on some ground other than the negligence of the proferens. However, that other ground must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it. If, on the facts of the case, the clause could cover a ground other than negligence, then the clause will be ineffective in excluding liability for negligence and will only be effective as against that alternative head of liability. See for example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WLR 1515 (breach of a statutory duty). Compare these cases with Alderslade v Hendon Laundry [1945] 1 KB 198, where there was no such alternative ground; the wide words in the clause could only conceivably have been intended to cover liability for negligence, and so the court had to give effect to the clause.

Answer

Canada Steamship Lines v R [1952] AC 192

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The duty of the court, in approaching the construction of clauses purporting to exclude liability for negligence, was summarised by Lord Morton in the Privy Council case of Canada Steamship Lines v R [1952] AC 192. Lord Morton's guidelines can be summarised as follows: Does the clause expressly mention 'negligence'? (Or a close synonym: Monarch Airlines v London Luton Airport [1997] CLC 698

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Question

Does the clause expressly mention 'negligence'? (Or a close synonym: [case]). If so, the court must give effect to the clause.

Answer

Monarch Airlines v London Luton Airport [1997] CLC 698

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Does the clause expressly mention 'negligence'? (Or a close synonym: Monarch Airlines v London Luton Airport [1997] CLC 698). If so, the court must give effect to the clause.

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Answer

White v John Warwick [1953] 1 WLR 1285

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If, on the facts of the case, the clause could cover a ground other than negligence, then the clause will be ineffective in excluding liability for negligence and will only be effective as against that alternative head of liability. See for example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WL

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If, on the facts of the case, the clause could cover a ground other than negligence, then the clause will be ineffective in excluding liability for negligence and will only be effective as against that alternative head of liability. See for example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and [case] (breach of a statutory duty). Compare these cases with Alderslade v Hendon Laundry [1945] 1 KB 198, where there was no such alternative ground; the wide words in the clause could only conceivably have been intended to cover liability for negligence, and so the court had to give effect to the clause.

Answer

EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WLR 1515

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luding liability for negligence and will only be effective as against that alternative head of liability. See for example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WLR 1515 (breach of a statutory duty). Compare these cases with Alderslade v Hendon Laundry [1945] 1 KB 198, where there was no such alternative ground; the wide words in the clause could only co

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Question

If, on the facts of the case, the clause could cover a ground other than negligence, then the clause will be ineffective in excluding liability for negligence and will only be effective as against that alternative head of liability. See for example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WLR 1515 (breach of a statutory duty). Compare these cases with [case], where there was no such alternative ground; the wide words in the clause could only conceivably have been intended to cover liability for negligence, and so the court had to give effect to the clause.

Answer

Alderslade v Hendon Laundry [1945] 1 KB 198

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or example: White v John Warwick [1953] 1 WLR 1285, where there was an alternative ground (breach of a strict contractual duty) and EE Caledonia Ltd v Orbit Valve Co plc [1994] 1 WLR 1515 (breach of a statutory duty). Compare these cases with Alderslade v Hendon Laundry [1945] 1 KB 198, where there was no such alternative ground; the wide words in the clause could only conceivably have been intended to cover liability for negligence, and so the court had to give effec

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Question

In general, UCTA regulates only exemption clauses.

Answer

UCTA 1977 s 13

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Question

An easement is [...].

Answer

a right enjoyed and exercised over the land of another (ius in alieno solo)

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An easement is a right enjoyed and exercised over the land of another (ius in alieno solo).

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Question

A positive easement is one which [...]. A classic example is a right of way which allows the holder of the easement to cross the land of another.

Answer

allows the holder of the easement to use the land of another in a particular way

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A positive easement is one which allows the holder of the easement to use the land of another in a particular way. A classic example is a right of way which allows the holder of the easement to cross the land of another.

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Question

A positive easement is one which allows the holder of the easement to use the land of another in a particular way. A classic example is a [...].

Answer

right of way which allows the holder of the easement to cross the land of another

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A negative easement is one which [...]. A classic example is a right to light. This allows the holder of the easement to restrict another from building on their own land if that will interfere with the access of light to the land owned by the holder of the easement.

Answer

simply entitles the holder of the easement to restrict the way in which another may use their own land

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A negative easement is one which simply entitles the holder of the easement to restrict the way in which another may use their own land. A classic example is a right to light. This allows the holder of the easement to restrict another from building on their own land if that will interfere with the access of light to t

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Question

A negative easement is one which simply entitles the holder of the easement to restrict the way in which another may use their own land. A classic example is [...].

Answer

a right to light. This allows the holder of the easement to restrict another from building on their own land if that will interfere with the access of light to the land owned by the holder of the easement

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Question

Quasi-easements

Answer

Unformed, nebulous rights exercised by a landowner over their own land, which could exist as a separate easement should the land over which the right is exercised change ownership, are called quasi-easements.

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Quasi-easements Unformed, nebulous rights exercised by a landowner over their own land, which could exist as a separate easement should the land over which the right is exercised change ownership, are c

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Question

Natural rights

Answer

Ownership of land carries with it certain natural rights. One of these is the right to support of land in its natural state. There is, however, no natural right of support to a building erected on the land. For this there must be a proper easement.

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Natural rights Ownership of land carries with it certain natural rights. One of these is the right to support of land in its natural state. There is, however, no natural right of support to a building

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Natural rights
Ownership of land carries with it certain natural rights. One of these is the right [...]. There is, however, no natural right of support to a building erected on the land. For this there must be a proper easement.

Answer

to support of land in its natural state

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Natural rights
Ownership of land carries with it certain natural rights. One of these is the right to support of land in its natural state. There is, however, [...]. For this there must be a proper easement.

Answer

no natural right of support to a building erected on the land

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Public rights

Answer

Can be similar to easements, but instead of being exercised by an individual person or body, the right, by its nature, is exercised by general members of the public. The best example is a public right of way.

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Public rights can be similar to easements, but instead of being exercised by an individual person or body, the right, by its nature, is exercised by general members of the public. The best example is

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Public rights can be similar to easements, but instead of being exercised by an individual person or body, the right, by its nature, is exercised by general members of the public. The best example is [...].

Answer

a public right of way

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A licence can authorise the use of land in the same way as an easement. A licence, however, cannot exist as an interest in the land. It confers a [...], which may or may not be accompanied by consideration. Some licences may be accompanied by an estoppel binding on a third party with notice. Such a licence may look remarkably like an equitable easement (see Ives Investments Ltd v High [1967] 2 QB 379

Answer

mere personal right

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A licence can authorise the use of land in the same way as an easement. A licence, however, cannot exist as an interest in the land. It confers a mere personal right, which may or may not be accompanied by consideration. Some licences may be accompanied by an estoppel binding on a third party with notice. Such a licence may look remark

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A licence can authorise the use of land in the same way as an easement. A licence, however, cannot exist as an interest in the land. It confers a mere personal right, which may or may not be accompanied by consideration. Some licences may be accompanied by [...]. Such a licence may look remarkably like an equitable easement (see Ives Investments Ltd v High [1967] 2 QB 379

Answer

an estoppel binding on a third party with notice

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use of land in the same way as an easement. A licence, however, cannot exist as an interest in the land. It confers a mere personal right, which may or may not be accompanied by consideration. Some licences may be accompanied by an estoppel binding on a third party with notice. Such a licence may look remarkably like an equitable easement (see Ives Investments Ltd v High [1967] 2 QB 379<body><html>

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A licence can authorise the use of land in the same way as an easement. A licence, however, cannot exist as an interest in the land. It confers a mere personal right, which may or may not be accompanied by consideration. Some licences may be accompanied by an estoppel binding on a third party with notice. Such a licence may look remarkably like an equitable easement (see [case])

Answer

Ives Investments Ltd v High [1967] 2 QB 379

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mere personal right, which may or may not be accompanied by consideration. Some licences may be accompanied by an estoppel binding on a third party with notice. Such a licence may look remarkably like an equitable easement (see Ives Investments Ltd v High [1967] 2 QB 379<body><html>

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Question

For a right to be capable of existing as an easement, it must satisfy certain requirements laid down by Evershed MR in the case of [case]:

There must be a dominant and a servient tenement;
The right must accommodate the dominant tenement;
There must be diversity of ownership of the dominant and servient tenements; and
The right must lie in grant.

Answer

In Re Ellenborough Park [1956] Ch 131

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For a right to be capable of existing as an easement, it must satisfy certain requirements laid down by Evershed MR in the case of In Re Ellenborough Park [1956] Ch 131: There must be a dominant and a servient tenement; The right must accommodate the dominant tenement; There must be diversity of ownership of the dominant and servient tenements; a

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Question

For a right to be capable of existing as an easement, it must satisfy certain requirements laid down by [who] in the case of In Re Ellenborough Park [1956] Ch 131:

There must be a dominant and a servient tenement;
The right must accommodate the dominant tenement;
There must be diversity of ownership of the dominant and servient tenements; and
The right must lie in grant.

Answer

Evershed MR

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What are the 4 Re Ellenborough Park criteria?

Answer

There must be a dominant and a servient tenement;
The right must accommodate the dominant tenement;
There must be diversity of ownership of the dominant and servient tenements; and
The right must lie in grant.

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Question

A Dominant and Servient Tenement Must Exist. Essentially, this means that there must be two identifiable pieces of land, one which benefits from the exercise of the right (the dominant tenement) and one which is burdened by its exercise (the servient tenement): [case].

Answer

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278

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xist Essentially, this means that there must be two identifiable pieces of land, one which benefits from the exercise of the right (the dominant tenement) and one which is burdened by its exercise (the servient tenement): London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278.<body><html>

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Question

An easement, unlike a profit, cannot exist in gross; it cannot be exercisable by the holder of the interest independently of any land that he may own: [case].

Answer

Hawkins v Rutter [1892] 1 QB 668

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An easement, unlike a profit, cannot exist in gross; it cannot be exercisable by the holder of the interest independently of any land that he may own: Hawkins v Rutter [1892] 1 QB 668.

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To be seen to accommodate the dominant tenement, it is also necessary to show that the dominant and servient tenements are sufficiently proximate to one another. Without such proximity, it may be difficult to prove that there is some benefit conferred upon the dominant tenement by the right being exercised over the servient tenement. As Byles J said in the case of [case]: ‘you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland’.

Answer

Bailey v Stephens (1862) 12 CB (NS) 91

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ly proximate to one another. Without such proximity, it may be difficult to prove that there is some benefit conferred upon the dominant tenement by the right being exercised over the servient tenement. As Byles J said in the case of Bailey v Stephens (1862) 12 CB (NS) 91: ‘you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland’.<body><html>

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To be seen to accommodate the dominant tenement, it is also necessary to show that the dominant and servient tenements are sufficiently proximate to one another. Without such proximity, it may be difficult to prove that there is some benefit conferred upon the dominant tenement by the right being exercised over the servient tenement. As [who] said in the case of Bailey v Stephens (1862) 12 CB (NS) 91: ‘you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland’.

Answer

Byles J

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t tenements are sufficiently proximate to one another. Without such proximity, it may be difficult to prove that there is some benefit conferred upon the dominant tenement by the right being exercised over the servient tenement. As Byles J said in the case of Bailey v Stephens (1862) 12 CB (NS) 91: ‘you cannot have a right of way over land in Kent appurtenant to an estate in Northumberland’.<body><html>

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Any rights that a person exercises over one part of his own land for the benefit of another part of their land are the natural incidents of ownership. Such rights are known as quasi-easements; they are capable of becoming easements on division of ownership: [case].

Answer

Roe v Siddons (1888) 22 QBD 224

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cises over one part of his own land for the benefit of another part of their land are the natural incidents of ownership. Such rights are known as quasi-easements; they are capable of becoming easements on division of ownership: Roe v Siddons (1888) 22 QBD 224.<body><html>

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there can be no easement of prospect ie giving the right to enjoy a scenic view: [case]

Answer

William Aldred’s Case (1610) 9 Co Rep 57b

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there can be no easement of prospect ie giving the right to enjoy a scenic view: William Aldred’s Case (1610) 9 Co Rep 57b

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neither can there be an easement to privacy or any easement to a flow of light through undefined channels: [case].

Answer

Harris v De Pinna (1886) 33 Ch D 238

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neither can there be an easement to privacy or any easement to a flow of light through undefined channels: Harris v De Pinna (1886) 33 Ch D 238.

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Question

Rights of way are capable of being the subject matter of easements

Answer

Borman v Griffith [1930] 1 Ch 493

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Rights of way are capable of being the subject matter of easements – Borman v Griffith [1930] 1 Ch 493

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Question

Rights of light are capable of being the subject matter of easements

Answer

Colls v Home & Colonial Stores Ltd [1904] AC 179

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Rights of light are capable of being the subject matter of easements – Colls v Home & Colonial Stores Ltd [1904] AC 179;

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Question

Rights to water in a defined channel are capable of being the subject matter of easements

Answer

Race v Ward (1855) 4 El & Bl 702

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Rights to water in a defined channel are capable of being the subject matter of easements – Race v Ward (1855) 4 El & Bl 702;

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Question

Rights to air in a defined channel are capable of being the subject matter of easements

Answer

Wong v Beaumont Property Trust Ltd [1965] 1 QB 173

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Rights to air in a defined channel are capable of being the subject matter of easements – Wong v Beaumont Property Trust Ltd [1965] 1 QB 173;

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Question

Rights to support are capable of being the subject matter of easements

Answer

Dalton v Angus & Co (1881) 6 App Cas 740

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Rights to support are capable of being the subject matter of easements – Dalton v Angus & Co (1881) 6 App Cas 740;

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Rights of drainage through a defined channel and other rights of ‘pipeline’, for example gas, electricity etc are capable of being the subject matter of easements

Answer

Atwood v Bovis Homes Ltd [2001] Ch 379

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Rights of drainage through a defined channel and other rights of ‘pipeline’, for example gas, electricity etc are capable of being the subject matter of easements – Atwood v Bovis Homes Ltd [2001] Ch 379;

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Question

Rights to pollute a river are capable of being the subject matter of easements

Answer

Scott-Whitehead v National Coal Board (1987) 53 P & CR 263

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Rights to pollute a river are capable of being the subject matter of easements – Scott-Whitehead v National Coal Board (1987) 53 P & CR 263;

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Question

Rights to cause a nuisance are capable of being the subject matter of easements

Answer

Sturges v Bridgman (1879) 11 Ch D 852

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Rights to cause a nuisance are capable of being the subject matter of easements – Sturges v Bridgman (1879) 11 Ch D 852

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Question

The list of recognised easements is not a closed one and must be allowed to expand to accommodate social and technological changes: [case]. The law therefore develops gradually by analogy with previous case law as it did, for example (as you will see below) when easements of parking developed incrementally from easements of storage in wake of the increasing importance of the motor car to modern life (and hence land use).

Answer

Dyce v Lady James Hay (1852) 1 Macq 305

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The list of recognised easements is not a closed one and must be allowed to expand to accommodate social and technological changes: Dyce v Lady James Hay (1852) 1 Macq 305. The law therefore develops gradually by analogy with previous case law as it did, for example (as you will see below) when easements of parking developed incrementally from easements

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The courts are reluctant to recognise new negative easements. In [case], a new type of easement, a right to protection from the weather, was claimed by analogy with an easement of support. Lord Denning MR rejected the claim on the basis that recognising new negative easements would unduly restrict the servient owner’s use and desirable development of their own land.

Answer

Phipps v Pears [1965] 1 QB 76

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The courts are reluctant to recognise new negative easements. In Phipps v Pears [1965] 1 QB 76, a new type of easement, a right to protection from the weather, was claimed by analogy with an easement of support. Lord Denning MR rejected the claim on the basis that recog

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Question

In [case], the easement claimed was the right to a TV signal. This was rejected as being a new type of negative easement that would restrict the development of the servient land. The court said that the appropriate way of restricting development on land would be by way of restrictive covenant (which cannot arise by prescription and are most unlikely to arise my implication and thus require the conscious agreement of the parties) or by claiming a recognised type of negative easement: a right of light or air.

Answer

Hunter v Canary Wharf Ltd [1997] AC 655

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In Hunter v Canary Wharf Ltd [1997] AC 655, the easement claimed was the right to a TV signal. This was rejected as being a new type of negative easement that would restrict the development of the servient land. The court said

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Question

Where the exercise of the right requires the servient tenement owner to spend money, the right cannot be an easement. Thus, in [case], it was held that a claim to the supply of hot water was not an easement.

Answer

Regis Property Co Ltd v Redman [1956] 2 QB 612

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Where the exercise of the right requires the servient tenement owner to spend money, the right cannot be an easement. Thus, in Regis Property Co Ltd v Redman [1956] 2 QB 612, it was held that a claim to the supply of hot water was not an easement.

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Question

Where the exercise of the right requires the servient tenement owner to spend money, the right cannot be an easement. Thus, in Regis Property Co Ltd v Redman [1956] 2 QB 612, it was held that a [...].

Answer

claim to the supply of hot water was not an easement

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In the case of [case], the right to the passage of water through pipes on the servient land was claimed as an easement. At first instance, the judge rejected this, as the water meter measuring the supply to both the dominant and servient tenements was on the servient land, and the servient owner was solely responsible for the payment of the bills. This positive obligation on the servient owner to pay for the water supply was held to be inconsistent with the concept of an easement. On appeal, the court upheld the easement. It drew a distinction: the right claimed was not a right to a water supply (which would involve compulsory expenditure by the servient owner), but a right to the passage of water through existing pipes. The servient owner was under an obligation not to physically interfere with the flow of water through the pipes but could not be compelled to pay for a supply of water in the first place. As a consequence he would not be liable if the water company withdrew the supply. Given, however, that the servient owner was unlikely to stop paying for water as he needed it for his land and because he was legally obliged to pay for any water that was supplied, the dominant owner was liable in quasi-contract to reimburse him for the water he did receive via the servient owner’s supply.

Answer

Rance v Elvin (1985) 50 P&CR 9

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In the case of Rance v Elvin (1985) 50 P&CR 9, the right to the passage of water through pipes on the servient land was claimed as an easement. At first instance, the judge rejected this, as the water meter measuring the supply to

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In the case of Rance v Elvin (1985) 50 P&CR 9, the right to the passage of water through pipes on the servient land was claimed as an easement. At first instance, the judge rejected this, as the water meter measuring the supply to both the dominant and servient tenements was on the servient land, and the servient owner was solely responsible for the payment of the bills. This positive obligation on the servient owner to pay for the water supply was held to be inconsistent with the concept of an easement. On appeal, the court upheld the easement. It drew a distinction: [...]. The servient owner was under an obligation not to physically interfere with the flow of water through the pipes but could not be compelled to pay for a supply of water in the first place. As a consequence he would not be liable if the water company withdrew the supply. Given, however, that the servient owner was unlikely to stop paying for water as he needed it for his land and because he was legally obliged to pay for any water that was supplied, the dominant owner was liable in quasi-contract to reimburse him for the water he did receive via the servient owner’s supply.

Answer

the right claimed was not a right to a water supply (which would involve compulsory expenditure by the servient owner), but a right to the passage of water through existing pipes

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responsible for the payment of the bills. This positive obligation on the servient owner to pay for the water supply was held to be inconsistent with the concept of an easement. On appeal, the court upheld the easement. It drew a distinction: the right claimed was not a right to a water supply (which would involve compulsory expenditure by the servient owner), but a right to the passage of water through existing pipes. The servient owner was under an obligation not to physically interfere with the flow of water through the pipes but could not be compelled to pay for a supply of water in the first pla

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Where an easement is found to exist, it is worth noting that a servient tenement owner is under no obligation to do any repairs or maintenance to enable the dominant tenement owner to enjoy the easement. However, they are obliged to allow the owner of the dominant tenement to enter the servient tenement to effect the necessary repairs: [case];

Answer

Jones v Pritchard [1908] 1 CH 630

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o obligation to do any repairs or maintenance to enable the dominant tenement owner to enjoy the easement. However, they are obliged to allow the owner of the dominant tenement to enter the servient tenement to effect the necessary repairs: Jones v Pritchard [1908] 1 CH 630;<body><html>

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In [case], the right to store articles in a cellar was held not to be an easement. At first instance, Brightman J said that such a right could not constitute an easement if the claim amounted to exclusive user of the servient tenement.

Answer

Grigsby v Melville [1972] 1 WLR 1355

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In Grigsby v Melville [1972] 1 WLR 1355, the right to store articles in a cellar was held not to be an easement. At first instance, Brightman J said that such a right could not constitute an easement if the claim amounted t

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In [case], a right to use a garden was claimed as an easement. The dominant owner claimed that the servient owner had interfered with this by creating a gravel driveway over part of the garden which the dominant owner tended as a flowerbed. The court agreed and awarded damages, but also held that the easement to use the garden did not prevent the servient owner from also being able to use the land. The creation of the driveway by the servient owner would not necessarily interfere with the right to use the whole of the garden for recreation and amenity, and therefore the dominant owner had no right to have the flowerbed restored.

Answer

Jackson v Mulvaney [2003] 1 WLR 360

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In Jackson v Mulvaney [2003] 1 WLR 360, a right to use a garden was claimed as an easement. The dominant owner claimed that the servient owner had interfered with this by creating a gravel driveway over pa

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There is clear authority that the right to park a car in one of several spaces can constitute an easement as long as the parking does not interfere with the servient tenement owner’s reasonable use of their land (see [case]).

Answer

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278

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span>There is clear authority that the right to park a car in one of several spaces can constitute an easement as long as the parking does not interfere with the servient tenement owner’s reasonable use of their land (see London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278).<body><html>

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In [case], a right to park in any one of four spaces was upheld as an easement. The dominant owner did not use the same space every day. As the servient owner could still use three spaces on the servient land, there was no interference with their reasonable use of their land.

Answer

Hair v Gillman (2000) 80 P & CR 108

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In Hair v Gillman (2000) 80 P & CR 108, a right to park in any one of four spaces was upheld as an easement. The dominant owner did not use the same space every day. As the servient owner could still use three spaces on

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However, problems arise where the parking is always in the same area. The right to park six vehicles from 8.30am to 6pm Monday to Friday failed as an easement, for it amounted to virtually the whole beneficial use of the land: [case].

Answer

Batchelor v Marlow [2003] 1 WLR 764

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y>However, problems arise where the parking is always in the same area. The right to park six vehicles from 8.30am to 6pm Monday to Friday failed as an easement, for it amounted to virtually the whole beneficial use of the land: Batchelor v Marlow [2003] 1 WLR 764.<body><html>

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However, problems arise where the parking is always in the same area. The right to park [...] vehicles from 8.30am to 6pm Monday to Friday failed as an easement, for it amounted to virtually the whole beneficial use of the land: Batchelor v Marlow [2003] 1 WLR 764.

Answer

six

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However, problems arise where the parking is always in the same area. The right to park six vehicles from 8.30am to 6pm Monday to Friday failed as an easement, for it amounted to virtually the whole beneficial use of the land: Batchelor v Marlow [2003] 1 WLR 764.

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However, problems arise where the parking is always in the same area. The right to park six vehicles from [time] failed as an easement, for it amounted to virtually the whole beneficial use of the land: Batchelor v Marlow [2003] 1 WLR 764.

Answer

8.30am to 6pm Monday to Friday

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On this basis, it can perhaps be argued that Batchelor was incorrectly decided. However, in [case], a High Court judge said that he was still bound by Batchelor, as it had not been overruled by Moncrieff.

Answer

Virdi v Chana [2008] EWHC 2901

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On this basis, it can perhaps be argued that Batchelor was incorrectly decided. However, in Virdi v Chana [2008] EWHC 2901, a High Court judge said that he was still bound by Batchelor, as it had not been overruled by Moncrieff.

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On this basis, it can perhaps be argued that Batchelor was incorrectly decided. However, in Virdi v Chana [2008] EWHC 2901, a High Court judge said that [...].

Answer

he was still bound by Batchelor, as it had not been overruled by Moncrieff

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Furthermore, in [case], the High Court once again confirmed that Batchelor v Marlow had not been overruled and remained binding upon it. The claimant’s right to use designated parking spaces was deemed to be by virtue of an easement rather than being part of the demise under their lease. HHJ David Cooke held that the freeholder had not been deprived of reasonable use of the spaces since he could still do anything on them, except to the extent that it would be inconsistent with an express right to park a car. So, for example, he could still pass freely over the spaces on foot or by vehicle, if there was no vehicle parked on them for the time being or by avoiding one that was. He could authorise others to do the same. He could likewise choose to repair or change the surface. He could lay pipes under the space or, in principle, build above it.

Answer

Kettel & Ors v Bloomfold Ltd [2012] EWHC 1422

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Furthermore, in Kettel & Ors v Bloomfold Ltd [2012] EWHC 1422, the High Court once again confirmed that Batchelor v Marlow had not been overruled and remained binding upon it. The claimant’s right to use designated parking spaces was deemed to b

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In [case], which concerned a claim of a ‘right’ to park a van, the right failed as an easement. The claimant had always moved the van when asked to do so by the servient tenement owner. He was, therefore, only exercising this ‘right’ so far as the servient tenement owner permitted.

Answer

Green v Ashco Horticultural Ltd [1966] 1 WLR 889

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In Green v Ashco Horticultural Ltd [1966] 1 WLR 889, which concerned a claim of a ‘right’ to park a van, the right failed as an easement. The claimant had always moved the van when asked to do so by the servient tenement owner. He was,

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Express Acquisition: This can occur by way of either an [...] or an express reservation.

Answer

express grant

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Express Acquisition: This can occur by way of either an express grant or an express reservation.

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Express Acquisition: This can occur by way of either an express grant or an [...].

Answer

express reservation

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Express Acquisition: This can occur by way of either an express grant or an express reservation.

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An easement will be implied out of necessity where it can be shown that its existence is essential in order that any use of the dominant tenement can be made. It is not enough that the right in question merely adds to the enjoyment of the dominant tenement. In practical terms, the only example is a right of way to a piece of land that would otherwise be landlocked. No easement of necessity will be inferred if there is some other means of access to that land, even if difficult and inconvenient, for example by water as in [case].

Answer

Manjang v Drammeh (1990) 61 P & CR 194

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y example is a right of way to a piece of land that would otherwise be landlocked. No easement of necessity will be inferred if there is some other means of access to that land, even if difficult and inconvenient, for example by water as in Manjang v Drammeh (1990) 61 P & CR 194. <body><html>

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Interestingly, in the case of [case], the Court of Appeal declared that it may be possible for a right of way exercised over the servient land to be implied out of necessity, even in circumstances where the landlocked dominant tenement was partly surrounded by land owned by a third party who may, in theory, provide an alternative means of access.

Answer

Adealon International Proprietary Ltd v Merton Borough Council [2007] 1 WLR 1604

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Interestingly, in the case of Adealon International Proprietary Ltd v Merton Borough Council [2007] 1 WLR 1604, the Court of Appeal declared that it may be possible for a right of way exercised over the servient land to be implied out of necessity, even in circumstances where the landlocked do

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What is certain is that an easement will not be implied out of necessity merely because it can be seen as highly advantageous to the dominant tenement, such as easements of drainage, sewerage and the supply of electricity ([case]). Notwithstanding their desirability, it cannot be alleged that without these easements the dominant tenement cannot be used at all.

Answer

Pryce v McGuinness [1966] QB 591

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What is certain is that an easement will not be implied out of necessity merely because it can be seen as highly advantageous to the dominant tenement, such as easements of drainage, sewerage and the supply of electricity (Pryce v McGuinness [1966] QB 591). Notwithstanding their desirability, it cannot be alleged that without these easements the dominant tenement cannot be used at all.<html>

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It is important to note that a general intention as to how the property should be used is not enough; the parties must intend for the property to be used in some definite and particular manner: [case].

Answer

Pwllbach Colliery Co Ltd v Woodman [1915] AC 634

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It is important to note that a general intention as to how the property should be used is not enough; the parties must intend for the property to be used in some definite and particular manner: Pwllbach Colliery Co Ltd v Woodman [1915] AC 634.

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Where a person wishes to rely upon an easement having been impliedly reserved by common intention, there will be a heavy burden of proof resting upon them to show that the specific easement was mutually intended. It may not be enough, for example, to show that the right in question had been openly exercised prior to the transaction into which it is claimed it has been impliedly acquired: see [case].

Answer

Re Webb’s Lease [1951] Ch 808

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w that the specific easement was mutually intended. It may not be enough, for example, to show that the right in question had been openly exercised prior to the transaction into which it is claimed it has been impliedly acquired: see Re Webb’s Lease [1951] Ch 808.<body><html>

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A common intention to reserve an easement will only be found if the facts are ‘not reasonably consistent with any explanation other than that of an implied reservation’: [case].

Answer

Peckham v Ellison (2000) 79 P & CR 276

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A common intention to reserve an easement will only be found if the facts are ‘not reasonably consistent with any explanation other than that of an implied reservation’: Peckham v Ellison (2000) 79 P & CR 276.

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For an interesting recent case regarding an implied easement to provide services (e.g. electricity and sewage, etc) where the common intention of the parties was that the land was purchased as a building plot (having been sold with outline planning permission for a single dwelling) see [case].

Answer

Donovan and another v Rana and another [2014] EWCA Civ 99

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to provide services (e.g. electricity and sewage, etc) where the common intention of the parties was that the land was purchased as a building plot (having been sold with outline planning permission for a single dwelling) see Donovan and another v Rana and another [2014] EWCA Civ 99.<body><html>

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The courts take an extremely strict stance on this issue, as recently confirmed in [case], where the Court of Appeal refused to extend a reservation relating to the renewal of existing gas pipes crossing the demised premises, to additionally include the laying of new pipes, on the basis that the grantor had two chances to include such a reservation in either the original lease or in a subsequent deed of variation.

Answer

Yeung v Potel [2014] EWCA Civ 481

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The courts take an extremely strict stance on this issue, as recently confirmed in Yeung v Potel [2014] EWCA Civ 481, where the Court of Appeal refused to extend a reservation relating to the renewal of existing gas pipes crossing the demised premises, to additionally include the laying of new pipe

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The rule in Wheeldon v Burrows can only operate on a sale or lease of part when, immediately prior to the sale / lease, there was a common owner and occupier of the whole (see [case], discussed further below).

Answer

Kent v Kavanagh [2007] Ch 1

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The rule in Wheeldon v Burrows can only operate on a sale or lease of part when, immediately prior to the sale / lease, there was a common owner and occupier of the whole (see Kent v Kavanagh [2007] Ch 1, discussed further below).

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Note that the rule can also operate in circumstances where the owner of a large plot of land decides to split the land in two and sell both plots contemporaneously. The new owners of each plot will acquire as easements any quasi-easements which had, prior to the sale, been exercised for the benefit of the land they have now purchased (see [case]).

Answer

Swansborough v Coventry (1832) 9 Bing 305 131 ER 629

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split the land in two and sell both plots contemporaneously. The new owners of each plot will acquire as easements any quasi-easements which had, prior to the sale, been exercised for the benefit of the land they have now purchased (see Swansborough v Coventry (1832) 9 Bing 305 131 ER 629).<body><html>

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To be deemed continuous, the right in question need not have been subject to incessant use, but there must be a sense of permanence which can come from showing regular use. To be apparent, the right must have been discoverable or detectable from careful inspection of the land by a person ordinarily conversant with the subject: [case]. For example, a worn pathway would provide evidence of a right of way. The rule has been described as one of common sense, honesty and decency (Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144).

Answer

Pyer v Carter (1857) 1 H&N 916

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se, but there must be a sense of permanence which can come from showing regular use. To be apparent, the right must have been discoverable or detectable from careful inspection of the land by a person ordinarily conversant with the subject: Pyer v Carter (1857) 1 H&N 916. For example, a worn pathway would provide evidence of a right of way. The rule has been described as one of common sense, honesty and decency (Sovmots Investments Ltd v Secretary of

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To be deemed continuous, the right in question need not have been subject to incessant use, but there must be a sense of permanence which can come from showing regular use. To be apparent, the right must have been discoverable or detectable from careful inspection of the land by a person ordinarily conversant with the subject: Pyer v Carter (1857) 1 H&N 916. For example, a worn pathway would provide evidence of a right of way. The rule has been described as one of common sense, honesty and decency ([case]).

Answer

Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144

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the land by a person ordinarily conversant with the subject: Pyer v Carter (1857) 1 H&N 916. For example, a worn pathway would provide evidence of a right of way. The rule has been described as one of common sense, honesty and decency (Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144). <body><html>

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This does not mean that a right being claimed as an easement under this method must have been in use at the exact time that the sale / lease of what is to become the dominant tenement took place. Rather, it must be shown that it had been exercised in the recent past and was expected to be exercised again in the near future. In the case of [case], the Court of Appeal made it clear that it must have been in use by the common owner, i.e. the person now selling / leasing the land to another. It would not be sufficient if the right had previously been used by a tenant of theirs, for example.

Answer

Kent v Kavanagh

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time that the sale / lease of what is to become the dominant tenement took place. Rather, it must be shown that it had been exercised in the recent past and was expected to be exercised again in the near future. In the case of Kent v Kavanagh, the Court of Appeal made it clear that it must have been in use by the common owner, i.e. the person now selling / leasing the land to another. It would not be sufficient if the righ

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It is important to note that implied acquisition under the rule in Wheeldon v Burrows can operate not only upon the actual sale of a freehold / grant of a lease but also upon an agreement to do either, i.e. a contract: see [case].

Answer

Borman v Griffith

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It is important to note that implied acquisition under the rule in Wheeldon v Burrows can operate not only upon the actual sale of a freehold / grant of a lease but also upon an agreement to do either, i.e. a contract: see Borman v Griffith.<html>

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Since the operation of the rule in Wheeldon v Burrows can be quite wide and lead to easements being created without the parties involved having given due regard to them, in practice the rule in Wheeldon v Burrows is commonly expressly excluded (LPA 1925, s [...]).

Answer

62(4)

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on of the rule in Wheeldon v Burrows can be quite wide and lead to easements being created without the parties involved having given due regard to them, in practice the rule in Wheeldon v Burrows is commonly expressly excluded (LPA 1925, s 62(4)).<body><html>

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Answer

LPA 1925, s 62(4)

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e the operation of the rule in Wheeldon v Burrows can be quite wide and lead to easements being created without the parties involved having given due regard to them, in practice the rule in Wheeldon v Burrows is commonly expressly excluded (LPA 1925, s 62(4)).<body><html>

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As with the operation of the rule under Wheeldon v Burrows, it is possible to exclude this method of acquisition expressly in the conveyance: LPA 1925, s [...].

Answer

62(4)

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As with the operation of the rule under Wheeldon v Burrows, it is possible to exclude this method of acquisition expressly in the conveyance: LPA 1925, s 62(4).

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As with the operation of the rule under Wheeldon v Burrows, it is possible to exclude this method of acquisition expressly in the conveyance: [statute].

Answer

LPA 1925, s 62(4)

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As with the operation of the rule under Wheeldon v Burrows, it is possible to exclude this method of acquisition expressly in the conveyance: LPA 1925, s 62(4).

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The comments made on s 62 in that case are obiter dicta, but the requirement for prior diversity was confirmed in the Court of Appeal decision of [case]. A conflicting decision was reached by the Court of Appeal in the case of Broomfield v Williams [1987] 1 Ch 602, where no prior diversity was deemed necessary. However, it was later explained as being an exception to the general rule that prior diversity is required; an exception that applies specifically to rights to light.

Answer

Payne v Inwood (1996) 74 P&CR 42

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The comments made on s 62 in that case are obiter dicta, but the requirement for prior diversity was confirmed in the Court of Appeal decision of Payne v Inwood (1996) 74 P&CR 42. A conflicting decision was reached by the Court of Appeal in the case of Broomfield v Williams [1987] 1 Ch 602, where no prior diversity was deemed necessary. However, it was later e

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The comments made on s 62 in that case are obiter dicta, but the requirement for prior diversity was confirmed in the Court of Appeal decision of Payne v Inwood (1996) 74 P&CR 42. A conflicting decision was reached by the Court of Appeal in the case of [case], where no prior diversity was deemed necessary. However, it was later explained as being an exception to the general rule that prior diversity is required; an exception that applies specifically to rights to light.

Answer

Broomfield v Williams [1987] 1 Ch 602

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in that case are obiter dicta, but the requirement for prior diversity was confirmed in the Court of Appeal decision of Payne v Inwood (1996) 74 P&CR 42. A conflicting decision was reached by the Court of Appeal in the case of Broomfield v Williams [1987] 1 Ch 602, where no prior diversity was deemed necessary. However, it was later explained as being an exception to the general rule that prior diversity is required; an exception that applies s

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International Tea Stores v Hobbs [1903] 2 Ch 165

Answer

A landlord gave permission to a tenant of a lodge forming part of the landlord’s premises, to use the main drive of the estate for access to the village. The tenant subsequently bought the freehold in the lodge and so acquired an easement of way.

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International Tea Stores v Hobbs [1903] 2 Ch 165 A landlord gave permission to a tenant of a lodge forming part of the landlord’s premises, to use the main drive of the estate for access to the village. The tenant subsequently bought t

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Claiming an easement through any one of the three methods of prescription outlined below requires, in each case, that the exercise of the right must have been ‘as of right’ i.e. nec vi; nec clam; nec precario (neither by force, by stealth, nor by permission). So, in [case], the defendant’s claim to a prescriptive easement of drainage failed because the use, while not surreptitious, was unknown to and unsuspected by the plaintiff.

Answer

Barney v BP Truckstops Ltd [1995] CLY 1854

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h any one of the three methods of prescription outlined below requires, in each case, that the exercise of the right must have been ‘as of right’ i.e. nec vi; nec clam; nec precario (neither by force, by stealth, nor by permission). So, in Barney v BP Truckstops Ltd [1995] CLY 1854, the defendant’s claim to a prescriptive easement of drainage failed because the use, while not surreptitious, was unknown to and unsuspected by the plaintiff.</body

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In [case], the court held that even unsolicited permission will be sufficient to prevent the use being ‘as of right’.

Answer

Odey v Baker [2007] 3 AER 542

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In Odey v Baker [2007] 3 AER 542, the court held that even unsolicited permission will be sufficient to prevent the use being ‘as of right’.

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Furthermore, in [case], the Court of Appeal held that a period of user as of right against a tenant gave rise to an easement if the owner of the freehold knew of the user at some stage and the owner of the freehold could have stopped the user but failed to do so.

Answer

Williams v Sandy Lane (Chester) Ltd [2006] EWCA 1738

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Furthermore, in Williams v Sandy Lane (Chester) Ltd [2006] EWCA 1738, the Court of Appeal held that a period of user as of right against a tenant gave rise to an easement if the owner of the freehold knew of the user at some stage and the owner of t

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Lost Modern Grant
This is a complete fiction introduced to avoid the difficulties which may arise under common law prescription. If continuous user for at least twenty years can be shown, there is a judicial presumption that at one stage there was a valid deed of grant of an easement which has since been lost. As the doctrine is a fiction, the court will not admit evidence to show that there never was a grant; it is also necessary first to apply common law prescription. The law on lost modern grant has recently been confirmed in the case of [case].

Answer

Orme v Lyons [2012] EWHC 3308

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n lost. As the doctrine is a fiction, the court will not admit evidence to show that there never was a grant; it is also necessary first to apply common law prescription. The law on lost modern grant has recently been confirmed in the case of Orme v Lyons [2012] EWHC 3308.<body><html>

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Lost Modern Grant
This is a complete fiction introduced to avoid the difficulties which may arise under common law prescription. If continuous user for at least twenty years can be shown, there is a judicial presumption that at one stage there was a valid deed of grant of an easement which has since been lost. As the doctrine is a fiction, the court will not [...]; it is also necessary first to apply common law prescription. The law on lost modern grant has recently been confirmed in the case of Orme v Lyons [2012] EWHC 3308.

Answer

admit evidence to show that there never was a grant

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scription. If continuous user for at least twenty years can be shown, there is a judicial presumption that at one stage there was a valid deed of grant of an easement which has since been lost. As the doctrine is a fiction, the court will not admit evidence to show that there never was a grant; it is also necessary first to apply common law prescription. The law on lost modern grant has recently been confirmed in the case of Orme v Lyons [2012] EWHC 3308.<body>

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[case]
Mrs Gardner relied upon 60 years’ user of a cartway from her stable through the yard of an adjoining inn. She paid 15 shillings per annum for the right. The House of Lords held that although the payment was not essential, it acknowledged that the alleged servient owner had the right to determine. The use was therefore by permission and not as of right.

Answer

Gardner v Hodgson’s Kingston Brewery [1903] AC 229

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Gardner v Hodgson’s Kingston Brewery [1903] AC 229 Mrs Gardner relied upon 60 years’ user of a cartway from her stable through the yard of an adjoining inn. She paid 15 shillings per annum for the right. The House of Lords held that alth

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The question is not ‘how much light has been taken away?’ but rather ‘how much light is left?’ In [case], the court said that the dominant tenement owner is entitled to such light ‘as will leave his premises adequately lit for all ordinary purposes for which they may reasonably be expected to be used’.

Answer

Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922

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The question is not ‘how much light has been taken away?’ but rather ‘how much light is left?’ In Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922, the court said that the dominant tenement owner is entitled to such light ‘as will leave his premises adequately lit for all ordinary purposes for which they may reasonably be expect

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The amount of light required depends upon the ordinary use; a greenhouse will need more light than a warehouse ([case]).

Answer

Allen v Greenwood [1980] Ch 119

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The amount of light required depends upon the ordinary use; a greenhouse will need more light than a warehouse (Allen v Greenwood [1980] Ch 119).

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Questions arise when the user of the dominant tenement changes, or the intensity of use of the easement changes, over time. The underlying principle is that the servient tenement should not be made subject to any significantly different or additional burden to that existing at the date of the express or implied creation of the easement. For example, in [case], a house had the benefit of a right of drainage. When the house was extended and changed into an institution housing 150 people, it was held that the user was excessive, and the dominant owner had to restrict the user to the extent the easement was used at the time of the grant.

Answer

Wood v Saunders (1875) LR 10 Ch App 582

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er time. The underlying principle is that the servient tenement should not be made subject to any significantly different or additional burden to that existing at the date of the express or implied creation of the easement. For example, in Wood v Saunders (1875) LR 10 Ch App 582, a house had the benefit of a right of drainage. When the house was extended and changed into an institution housing 150 people, it was held that the user was excessive, and the domin

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In [case], the dominant tenement had a right of access at all times and for all purposes over the servient land. When the dominant owner wanted to change the use of their land from agricultural use to a caravan park for 200 caravans, an injunction was granted. The proposed use of the easement was far more extensive than was reasonably contemplated by the parties at the time the grant was made.

Answer

Jelbert v Davis [1968] 1 WLR 589

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In Jelbert v Davis [1968] 1 WLR 589, the dominant tenement had a right of access at all times and for all purposes over the servient land. When the dominant owner wanted to change the use of their land from agricultural

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To be a legal easement, the right:
(a) Must have been created for a duration equivalent to one of the two legal estates in land, i.e. a term of years absolute or a fee simple absolute in possession, as required under [statute] (discussed in Chapter 4 of these study notes); and
(b) Must have been acquired by deed (whether in the grant of a freehold or in the grant of a lease or independently), as required under LPA 1925, s 52. (Remember, the requirements for a valid deed are laid down in LP(MP)A 1989, s 1, as discussed in earlier chapters of these study notes.)

Answer

LPA 1925, s 1(2)

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ad>To be a legal easement, the right: (a) Must have been created for a duration equivalent to one of the two legal estates in land, i.e. a term of years absolute or a fee simple absolute in possession, as required under LPA 1925, s 1(2) (discussed in Chapter 4 of these study notes); and (b) Must have been acquired by deed (whether in the grant of a freehold or in the grant of a lease or independently), as required

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To be a legal easement, the right:
(a) Must have been created for a duration equivalent to one of the two legal estates in land, i.e. a term of years absolute or a fee simple absolute in possession, as required under LPA 1925, s 1(2) (discussed in Chapter 4 of these study notes); and
(b) Must have been acquired by deed (whether in the grant of a freehold or in the grant of a lease or independently), as required under [statute]. (Remember, the requirements for a valid deed are laid down in LP(MP)A 1989, s 1, as discussed in earlier chapters of these study notes.)

Answer

LPA 1925, s 52

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in possession, as required under LPA 1925, s 1(2) (discussed in Chapter 4 of these study notes); and (b) Must have been acquired by deed (whether in the grant of a freehold or in the grant of a lease or independently), as required under LPA 1925, s 52. (Remember, the requirements for a valid deed are laid down in LP(MP)A 1989, s 1, as discussed in earlier chapters of these study notes.)<body><html>

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To be a legal easement, the right:
(a) Must have been created for a duration equivalent to one of the two legal estates in land, i.e. a term of years absolute or a fee simple absolute in possession, as required under LPA 1925, s 1(2) (discussed in Chapter 4 of these study notes); and
(b) Must have been acquired by deed (whether in the grant of a freehold or in the grant of a lease or independently), as required under LPA 1925, s 52. (Remember, the requirements for a valid deed are laid down in [statute], as discussed in earlier chapters of these study notes.)

Answer

LP(MP)A 1989, s 1

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these study notes); and (b) Must have been acquired by deed (whether in the grant of a freehold or in the grant of a lease or independently), as required under LPA 1925, s 52. (Remember, the requirements for a valid deed are laid down in LP(MP)A 1989, s 1, as discussed in earlier chapters of these study notes.)<body><html>

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In addition, where the easement is arising through express acquisition over a registered piece of land, that easement must be substantively registered to become legal: LRA 2002, s [...].

Answer

27(2)(d)

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In addition, where the easement is arising through express acquisition over a registered piece of land, that easement must be substantively registered to become legal: LRA 2002, s 27(2)(d).

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In addition, where the easement is arising through express acquisition over a registered piece of land, that easement must be substantively registered to become legal: [statute].

Answer

LRA 2002, s 27(2)(d)

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A conveyance of the dominant tenement to a successor in title will pass to that successor in title not only all buildings, fixtures etc that are on the land, but also the benefit of any easements appertaining to the land at the time of the conveyance: [statute].

Answer

LPA 1925, s 62

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e of the dominant tenement to a successor in title will pass to that successor in title not only all buildings, fixtures etc that are on the land, but also the benefit of any easements appertaining to the land at the time of the conveyance: LPA 1925, s 62.<body><html>

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Answer

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inant tenement to a successor in title will pass to that successor in title not only all buildings, fixtures etc that are on the land, but also the benefit of any easements appertaining to the land at the time of the conveyance: LPA 1925, s 62.<body><html>

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Legal easements acquired by express acquisition: Such an easement is a registrable disposition (LRA 2002, s [...]) and requires registration in order to exist as a legal easement (as discussed in para 10.5.1 above). Once it is registered, it will bind anyone who acquires the servient tenement, whether that person buys it, inherits it or receives it as a gift.

Answer

27(2)(d)

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Legal easements acquired by express acquisition: Such an easement is a registrable disposition (LRA 2002, s 27(2)(d)) and requires registration in order to exist as a legal easement (as discussed in para 10.5.1 above). Once it is registered, it will bind anyone who acquires the servient tenement, whet

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Legal easements acquired by express acquisition: Such an easement is a registrable disposition ([statute]) and requires registration in order to exist as a legal easement (as discussed in para 10.5.1 above). Once it is registered, it will bind anyone who acquires the servient tenement, whether that person buys it, inherits it or receives it as a gift.

Answer

LRA 2002, s 27(2)(d)

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Legal easements acquired by express acquisition: Such an easement is a registrable disposition (LRA 2002, s 27(2)(d)) and requires registration in order to exist as a legal easement (as discussed in para 10.5.1 above). Once it is registered, it will bind [...], whether that person buys it, inherits it or receives it as a gift.

Answer

anyone who acquires the servient tenement

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nts acquired by express acquisition: Such an easement is a registrable disposition (LRA 2002, s 27(2)(d)) and requires registration in order to exist as a legal easement (as discussed in para 10.5.1 above). Once it is registered, it will bind anyone who acquires the servient tenement, whether that person buys it, inherits it or receives it as a gift.<body><html>

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Legal easements acquired by express acquisition: Such an easement is a registrable disposition (LRA 2002, s 27(2)(d)) and requires registration in order to exist as a legal easement (as discussed in para 10.5.1 above). Once it is registered, it will bind anyone who acquires the servient tenement, whether that person [...].

Answer

buys it, inherits it or receives it as a gift

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strable disposition (LRA 2002, s 27(2)(d)) and requires registration in order to exist as a legal easement (as discussed in para 10.5.1 above). Once it is registered, it will bind anyone who acquires the servient tenement, whether that person buys it, inherits it or receives it as a gift.<body><html>

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In practice, this means that the owner of the dominant tenement must be registered as the owner of the easement. The registrar must then enter a notice on the charges section of the register of the servient tenement (LRA 2002, s [...]).

Answer

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In practice, this means that the owner of the dominant tenement must be registered as the owner of the easement. The registrar must then enter a notice on the charges section of the register of the servient tenement (LRA 2002, s 38).<body><html>

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Answer

LRA 2002, s 38

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/head>In practice, this means that the owner of the dominant tenement must be registered as the owner of the easement. The registrar must then enter a notice on the charges section of the register of the servient tenement (LRA 2002, s 38).<html>

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Note that in the case of an easement arising by operation of [statute], although some writers consider this to be a form of express grant, LRA 2002, s 27(7) specifically excludes such easements from the ambit of s 27(2)(d).

Answer

LPA 1925, s 62

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Note that in the case of an easement arising by operation of LPA 1925, s 62, although some writers consider this to be a form of express grant, LRA 2002, s 27(7) specifically excludes such easements from the ambit of s 27(2)(d).

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Note that in the case of an easement arising by operation of LPA 1925, s 62, although some writers consider this to be a form of express grant, LRA 2002, s 27(7) specifically excludes such easements from the ambit of s [...].

Answer

27(2)(d)

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ad>Note that in the case of an easement arising by operation of LPA 1925, s 62, although some writers consider this to be a form of express grant, LRA 2002, s 27(7) specifically excludes such easements from the ambit of s 27(2)(d).<html>

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Note that in the case of an easement arising by operation of LPA 1925, s 62, although some writers consider this to be a form of express grant, LRA 2002, s [...] specifically excludes such easements from the ambit of s 27(2)(d).

Answer

27(7)

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Question

Note that in the case of an easement arising by operation of LPA 1925, s 62, although some writers consider this to be a form of express grant, [statute] specifically excludes such easements from the ambit of s 27(2)(d).

Answer

LRA 2002, s 27(7)

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Question

Legal Easements Acquired by Implied Acquisition or by Prescription While these easements may not be evident in any documentation, they still have the ability to bind subsequent purchasers of the servient tenement. This is because such easements are ‘overriding interests’ (if one of the conditions in LRA 2002, [...] is satisfied) and thus will bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided:
(i) the easement is within the actual knowledge of the person to whom the disposition is being made; or
(ii) it is obvious on a reasonably careful inspection of the land over which the easement is exercisable; or
(iii) it has been exercised within a year before the date of the purchase.

Answer

Sch 3 para 3

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hile these easements may not be evident in any documentation, they still have the ability to bind subsequent purchasers of the servient tenement. This is because such easements are ‘overriding interests’ (if one of the conditions in LRA 2002, Sch 3 para 3 is satisfied) and thus will bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided: (i) the easement is within the act

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Question

Legal Easements Acquired by Implied Acquisition or by Prescription While these easements may not be evident in any documentation, they still have the ability to bind subsequent purchasers of the servient tenement. This is because such easements are ‘overriding interests’ (if one of the conditions in [statute] is satisfied) and thus will bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided:
(i) the easement is within the actual knowledge of the person to whom the disposition is being made; or
(ii) it is obvious on a reasonably careful inspection of the land over which the easement is exercisable; or
(iii) it has been exercised within a year before the date of the purchase.

Answer

LRA 2002, Sch 3 para 3

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cription While these easements may not be evident in any documentation, they still have the ability to bind subsequent purchasers of the servient tenement. This is because such easements are ‘overriding interests’ (if one of the conditions in LRA 2002, Sch 3 para 3 is satisfied) and thus will bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided: (i) the easement is within the act

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Question

Legal Easements Acquired by Implied Acquisition or by Prescription While these easements may not be evident in any documentation, they still have the ability to bind subsequent purchasers of the servient tenement. This is because such easements are ‘overriding interests’ (if one of the conditions in LRA 2002, Sch 3 para 3 is satisfied) and thus will bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided:
(i) the easement is within the [...] of the person to whom the disposition is being made; or
(ii) it is obvious on a reasonably careful inspection of the land over which the easement is exercisable; or
(iii) it has been exercised within a year before the date of the purchase.

Answer

actual knowledge

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erests’ (if one of the conditions in LRA 2002, Sch 3 para 3 is satisfied) and thus will bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided: (i) the easement is within the actual knowledge of the person to whom the disposition is being made; or (ii) it is obvious on a reasonably careful inspection of the land over which the easement is exercisable; or (iii) it ha

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Question

Legal Easements Acquired by Implied Acquisition or by Prescription While these easements may not be evident in any documentation, they still have the ability to bind subsequent purchasers of the servient tenement. This is because such easements are ‘overriding interests’ (if one of the conditions in LRA 2002, Sch 3 para 3 is satisfied) and thus will bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided:
(i) the easement is within the actual knowledge of the person to whom the disposition is being made; or
(ii) it is [...] of the land over which the easement is exercisable; or
(iii) it has been exercised within a year before the date of the purchase.

Answer

obvious on a reasonably careful inspection

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ind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided: (i) the easement is within the actual knowledge of the person to whom the disposition is being made; or (ii) it is obvious on a reasonably careful inspection of the land over which the easement is exercisable; or (iii) it has been exercised within a year before the date of the purchase.<body><html>

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Question

Legal Easements Acquired by Implied Acquisition or by Prescription While these easements may not be evident in any documentation, they still have the ability to bind subsequent purchasers of the servient tenement. This is because such easements are ‘overriding interests’ (if one of the conditions in LRA 2002, Sch 3 para 3 is satisfied) and thus will bind any subsequent owner of the servient tenement (irrespective of not appearing anywhere on the register), provided:
(i) the easement is within the actual knowledge of the person to whom the disposition is being made; or
(ii) it is obvious on a reasonably careful inspection of the land over which the easement is exercisable; or
(iii) it has been [...].

Answer

exercised within a year before the date of the purchase

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; (i) the easement is within the actual knowledge of the person to whom the disposition is being made; or (ii) it is obvious on a reasonably careful inspection of the land over which the easement is exercisable; or (iii) it has been exercised within a year before the date of the purchase.<body><html>

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Question

Legal easements, whether arising through express or implied methods of acquisition, or by prescription, are rights in rem and bind the whole world irrespective of notice ([case]).

Answer

Mercer v Liverpool, St Helen’s & South Lancashire Railway Co [1903] 1 KB 652, 662

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Legal easements, whether arising through express or implied methods of acquisition, or by prescription, are rights in rem and bind the whole world irrespective of notice (Mercer v Liverpool, St Helen’s & South Lancashire Railway Co [1903] 1 KB 652, 662).

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Question

At law, a deed is necessary for an express release of a legal easement, but equity may interfere if one party has been prejudiced by relying on a written or oral release; see [case].

Answer

Waterloo v Bacon (1866) LR 2 Eq 514

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tml>At law, a deed is necessary for an express release of a legal easement, but equity may interfere if one party has been prejudiced by relying on a written or oral release; see Waterloo v Bacon (1866) LR 2 Eq 514.<html>

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Question

Release is implied where the dominant tenement owner abandons his rights. This is a question of fact and mere non-user is generally insufficient, unless accompanied by some act adverse to the enjoyment of the right, evidencing an intention on the part of the dominant tenement owner to abandon the right; see [case].

Answer

Willams v Sandy Lane (Chester) Ltd [2007] 1 EGLR 10

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hts. This is a question of fact and mere non-user is generally insufficient, unless accompanied by some act adverse to the enjoyment of the right, evidencing an intention on the part of the dominant tenement owner to abandon the right; see Willams v Sandy Lane (Chester) Ltd [2007] 1 EGLR 10.<body><html>

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Question

Swan v Sinclair [1924] 1 Ch 254

Answer

A right of way that had not been used for over 50 years and had been blocked by fences and uneven ground, was held to be abandoned.

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Swan v Sinclair [1924] 1 Ch 254 A right of way that had not been used for over 50 years and had been blocked by fences and uneven ground, was held to be abandoned.

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Question

Benn v Hardinge (1992) 66 P & CR 246

Answer

A right of way not used for over 100 years because there were alternative access routes, was not abandoned and could be resurrected.

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Benn v Hardinge (1992) 66 P & CR 246 A right of way not used for over 100 years because there were alternative access routes, was not abandoned and could be resurrected.

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Question

Moore v Rawson (1824) 3 B & C 322

Answer

A plaintiff pulled down a cottage with windows and erected a stable with a windowless flank wall. Nineteen years later, he wished to open up a window, but it was held that the existing easement had been abandoned.

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A plaintiff pulled down a cottage with windows and erected a stable with a windowless flank wall. Nineteen years later, he wished to open up a window, but it was held that the existing easement had been abandoned.

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Question

Willams v Sandy Lane (Chester) Ltd

Answer

30 years’ non-use of a right of way coupled with developments which made it difficult to use the route, such as growth of vegetation, creation of an earth bank and fencing, did not make the way impassable and also did not evidence sufficient intention to abandon the way.

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Willams v Sandy Lane (Chester) Ltd 30 years’ non-use of a right of way coupled with developments which made it difficult to use the route, such as growth of vegetation, creation of an earth bank and fencing, did not make

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Article 1367620586764

cheat sheet - MySQL
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http://www.gegeek.com/documents/cheat%20sheets/MySQL%20QuickRef.pdf

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