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Annotation 1363227053324

#equity #law #secret-trust

By the Wills Act 1837, s 9 ‘no will shall be valid unless:

It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
It appears that the testator intended by his signature to give effect to the will: and
The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
Each witness either:
1. Attests and signs the will; or
2. Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

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Flashcard 1375511383308

Tags

#certainties #equity

Question

"She knows what she has to do" was too vague to demonstrate intention.

Answer

Kasperbauer v Griffiths

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Flashcard 1375512694028

Tags

#certainties #equity

Question

"Knowing his wishes" and "giving what is appropriate" were too vague to demonstrate intention.

Answer

Margulies v Margulies

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Flashcard 1375515577612

Tags

#crime #law #oapa

Question

The defendant must cause the victim to believe he can and will carry out the threat of force. [ case ]

Answer

R v Lamb [1967] 2 QB 981 (CA)

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The defendant must cause the victim to believe he can and will carry out the threat of force. R v Lamb [1967] 2 QB 981 (CA)

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FACTS: Two teenage boys were playing with a revolver. This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant pointed it at his friend and pulled the trigger. His friend was shot dead. HELD: No assault had taken place, since the victim at whom the gun was pointed did not fear the possible infliction of violence because he did not believe the gun, with which they were playing, would fire.

Answer

R v Lamb [1967] 2 QB 981 (CA)

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R v Lamb [1967] 2 QB 981 (CA) FACTS: Two teenage boys were playing with a revolver. This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant poin

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Flashcard 1375520296204

Tags

#crime #law #oapa

Question

R v Lamb [1967] 2 QB 981 (CA) FACTS: Two teenage boys were playing with a revolver. This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant pointed it at his friend and pulled the trigger. His friend was shot dead. HELD: No assault had taken place, since [...].

Answer

the victim at whom the gun was pointed did not fear the possible infliction of violence because he did not believe the gun, with which they were playing, would fire

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This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant pointed it at his friend and pulled the trigger. His friend was shot dead. HELD: No assault had taken place, since the victim at whom the gun was pointed did not fear the possible infliction of violence because he did not believe the gun, with which they were playing, would fire.<body><html>

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Flashcard 1375521344780

Tags

#crime #law #oapa

Question

For an assault, the victim must apprehend physical violence

Answer

R v Ireland

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re the apprehension is of immediate psychological harm, charges under other statutes, such as the Protection from Harassment Act 1997 (study of which is outside the remit of this course), may be more suitable. It is, therefore, clear that, for an assault, the victim must apprehend physical violence.<body><html>

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Flashcard 1375523179788

Tags

#crime #law #oapa

Question

It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the [ statute ]

Answer

Offences Against the Person Act 1861 (OAPA 1861), s 47

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It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the Offences Against the Person Act 1861 (OAPA 1861), s 47

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Flashcard 1375525014796

Tags

#crime #law #oapa

Question

It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the Offences Against the Person Act 1861 (OAPA 1861), s [...]

Answer

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d>It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the Offences Against the Person Act 1861 (OAPA 1861), s 47<html>

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Flashcard 1375527111948

Tags

#crime #law #oapa

Question

Words spoken can also negate an assault.

Answer

Tuberville v Savage (1669) 1 Mod Rep 3

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Words spoken can also negate an assault. In Tuberville v Savage (1669) 1 Mod Rep 3

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Flashcard 1375529471244

Tags

#crime #law #oapa

Question

The mens rea for assault is intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence.

Answer

R v Venna [1976] QB 421

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The Court of Appeal in R v Venna [1976] QB 421 held that the mens rea for assault is intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence.

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Flashcard 1375531306252

Tags

#crime #law #oapa

Question

The case of [ case ] confirmed the view that Cunningham recklessness (as now set out in R v G) must be established for any assault charge based upon recklessness.

Answer

R v Savage; Parmenter [1992] 1 AC 714 (HL)

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The case of R v Savage; Parmenter [1992] 1 AC 714 (HL) confirmed the view that Cunningham recklessness (as now set out in R v G) must be established for any assault charge based upon recklessness.

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Flashcard 1375533141260

Tags

#crime #law #oapa

Question

A battery can take place through a person's clothes

Answer

R v Thomas (1985) 81 Cr App R 331

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R v Thomas (1985) 81 Cr App R 331: '... there could be no dispute that if you touch a person’s clothes while he's wearing them that is equivalent to touching them.' (Per Ackner LJ.) </sp

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Flashcard 1375536024844

Tags

#crime #law #oapa

Question

A battery is 'the actual intended use of unlawful force to another person without his consent'

Answer

Fagan v MPC [1969] 1 QB 439

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A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439.

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Flashcard 1375539432716

Tags

#crime #law #oapa

Question

A battery is 'the [...] to another person without his consent': Fagan v MPC [1969] 1 QB 439.

Answer

actual intended use of unlawful force

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A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439.

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Flashcard 1375540481292

Tags

#crime #law #oapa

Question

A battery is 'the actual intended use of unlawful force [...] without his consent': Fagan v MPC [1969] 1 QB 439.

Answer

to another person

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A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439.

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Flashcard 1375541529868

Tags

#crime #law #oapa

Question

A battery is 'the actual intended use of unlawful force to another person [...]': Fagan v MPC [1969] 1 QB 439.

Answer

without his consent

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A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439.

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Flashcard 1375544413452

Tags

#crime #law #oapa

Question

The MR for battery includes the reckless application of force.

Answer

R v Ireland

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The House of Lords confirmed this definition in the case of Ireland and further confirmed that it includes the reckless application of force.

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Flashcard 1375546248460

Tags

#crime #law #oapa

Question

Force includes the merest touching.

Answer

Collins v Wilcock [1984] 3 All ER 374

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Force includes the merest touching. In Collins v Wilcock [1984] 3 All ER 374 Goff LJ stated: 'The fundamental principle, plain and incontestable, is that every person's body is inviolate … Any touching of anot

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Flashcard 1375548083468

Tags

#crime #law #oapa

Question

FACTS: K was 15. He splashed some acid on to his hand during a chemistry lesson and he asked for permission to go and wash his hand because it was sore. He took with him a boiling tube of concentrated acid. He poured some of the acid onto a piece of paper, but hearing footsteps outside, he panicked and poured the rest of the acid into the upturned nozzle of a hot air hand/face drier. The footsteps receded and he re-joined the chemistry lesson intending to return later to deal with the acid in the drier. Another pupil used the drier and the acid was ejected on to his face, causing scarring. HELD: Although he was acquitted because of a lack of mens rea, the Court of Appeal stated that this had satisfied the actus reus of battery.

Answer

DPP v K [1990] 1 WLR 1067

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DPP v K [1990] 1 WLR 1067 FACTS: K was 15. He splashed some acid on to his hand during a chemistry lesson and he asked for permission to go and wash his hand because it was sore. He took with him a boiling tube

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Flashcard 1375549918476

Tags

#crime #law #oapa

Question

The application of force need not be aggressive.

Answer

Faulkner v Talbot [1981] 3 All ER 468

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The application of force need not be aggressive. Faulkner v Talbot [1981] 3 All ER 468 HELD: A battery is an intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily

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Flashcard 1375551753484

Tags

#crime #law #oapa

Question

The force need not be applied directly. Most batteries are inflicted directly e.g. by the defendant hitting the victim with or without a weapon or throwing a missile at the victim. However, a battery can be indirect.

Answer

R v Martin (1881) 8 QBD 54

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>The force need not be applied directly. Most batteries are inflicted directly e.g. by the defendant hitting the victim with or without a weapon or throwing a missile at the victim. However, a battery can be indirect. R v Martin (1881) 8 QBD 54 FACTs: The defendant closed the exit doors of a theatre. As the people were about to leave, he turned off the lights and panic ensued. HELD: This was an indirect battery. The court

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Flashcard 1375554637068

Tags

#crime #law #oapa

Question

FACTs: The defendant closed the exit doors of a theatre. As the people were about to leave, he turned off the lights and panic ensued. HELD: This was an indirect battery. The court also gave the example of D digging a pit which V then falls into as being an indirect battery.

Answer

R v Martin (1881) 8 QBD 54

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R v Martin (1881) 8 QBD 54 FACTs: The defendant closed the exit doors of a theatre. As the people were about to leave, he turned off the lights and panic ensued. HELD: This was an indirect battery. The court also

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Flashcard 1375556472076

Tags

#crime #law #oapa

Question

For the purposes of OAPA 1861, s 47 "assault" has been interpreted to mean either assault or battery

Answer

DPP v Little [1992] QB 645 (DC)

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There must be an 'assault'. This has been interpreted to mean that there must be either an assault or battery (DPP v Little [1992] QB 645 (DC) and R v Ireland; Burstow [1998] AC 147). Both the actus reus and the mens rea of either an assault or battery must be established.

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Flashcard 1375558307084

Tags

#crime #law #oapa

Question

Assault Occasioning Actual Bodily Harm

Answer

OAPA 1861, s 47

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Assault Occasioning Actual Bodily Harm The OAPA 1861, s 47 provides: 'Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable … to be imprisoned for any term not exceeding fi

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Flashcard 1375560142092

Tags

#crime #law #oapa

Question

OAPA 1861, s 47

Answer

Assault Occasioning Actual Bodily Harm

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Flashcard 1375563025676

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#crime #law #oapa

Question

In [ case ], the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.

Answer

R v Miller [1954] 2 QB 282

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In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be se

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Flashcard 1375564860684

Tags

#crime #law #oapa

Question

In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include '[...] calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.

Answer

any hurt or injury

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Flashcard 1375565909260

Tags

#crime #law #oapa

Question

In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury [...]'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.

Answer

calculated to interfere with the health or comfort of the victim

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Flashcard 1375566957836

Tags

#crime #law #oapa

Question

In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but [...].

Answer

must be more than transient and trifling

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span>In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling.<body><html>

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Flashcard 1375568006412

Tags

#crime #law #oapa

Question

Actual bodily harm may include psychiatric injury

Answer

R v Chan-Fook [1994] 1 WLR 689

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In R v Chan-Fook [1994] 1 WLR 689 actual bodily harm was held to include psychiatric injury, although Hobhouse LJ emphasised: '… it does not include mere emotions such as fear or distress or panic nor does it include, as such, states of mind that are not themselve

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Flashcard 1375572200716

Tags

#crime #law #oapa

Question

A momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an injurious impairment of the victim's sensory functions.

Answer

T v DPP [2003] Crim LR 622

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In T v DPP [2003] Crim LR 622, a momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an injurious impairment of the victim's sensory functions.

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Flashcard 1375574035724

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#crime #law #oapa

Question

In T v DPP [2003] Crim LR 622, a momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an [...].

Answer

injurious impairment of the victim's sensory functions

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Flashcard 1375576657164

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#crime #law #oapa

Question

Cutting hair falls within the scope of ABH

Answer

DPP v Smith [2006] EWHC 94 (Admin)

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DPP v Smith [2006] EWHC 94 (Admin) FACTS: Here the defendant, Mr Smith, cut off his estranged girlfriend's ponytail and some further hair from the top of her head. It was argued on behalf of Mr Smith that this act did not

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Flashcard 1375578492172

Tags

#crime #law #oapa

Question

There is no additional MR requirement for Assault Occasioning ABH

Answer

R v Savage, R v Parmenter [1992] 1 AC 699

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In R v Savage, R v Parmenter 1992] 1 AC 699. Lord Ackner stated: 'Can a verdict of assault occasioning actual bodily harm be returned upon proof of an assault together with proof that actual bodily harm was occasione

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Flashcard 1375580327180

Tags

#crime #law #oapa

Question

Malicious Wounding or Inflicting Grievous Bodily Harm

Answer

The OAPA 1861, s 20

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Malicious Wounding or Inflicting Grievous Bodily Harm The OAPA 1861, s 20 provides: 'Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon

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Flashcard 1375582162188

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#crime #law #oapa

Question

The OAPA 1861, s 20

Answer

Malicious Wounding or Inflicting Grievous Bodily Harm

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Flashcard 1375583997196

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#crime #law #oapa

Question

To constitute a "wound" there need only be a break in the skin. The injury need not be serious so long as this criteria is met.

Answer

C (a minor) v Eisenhower [1984] QB 331

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In C (a minor) v Eisenhower [1984] QB 331 it was held that the rupture of blood vessels internally is not sufficient to constitute a wound. There must be a break in the continuity of both layers of the skin. Both the dermis and epidermis must be broken. It is important to realise that if there is proof of a wounding, the actual injury need not be severe; any breaking of the skin will suffi

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Flashcard 1375585832204

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#crime #law #oapa

Question

There may be an infliction of grievous bodily harm contrary to the OAPA 1861, s 20 without an assault being committed.

Answer

R v Wilson [1984] AC 242

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n>Infliction This word has proved difficult to determine in the past due to questions as to what was necessary to amount to an 'infliction', i.e. was an assault a pre-requisite? However following the case of R v Wilson [1984] AC 242, it was decided that there could be an infliction of grievous bodily harm contrary to the OAPA 1861, s 20 without an assault being committed. <body><html>

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Flashcard 1375587667212

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#crime #law #oapa

Question

Grevious Bodily Harm means "serious harm"

Answer

R v Saunders [1985] Crim LR 230

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In DPP v Smith [1961] AC 290, the House of Lords held that the words 'grievous bodily harm' simply mean 'really serious harm'. In Saunders [1985] Crim LR 230, it was decided that it would not be a misdirection to leave out the word 'really'; the words 'serious harm' would suffice.

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Flashcard 1375589502220

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#crime #law #oapa

Question

In [ case ], the Court of Appeal held that, in deciding whether or not the injuries sustained were 'grievous', the jury should consider the effect of the injuries on the victim, taking into account the victim's age and health. You can also look at the totality of the injuries. This case concerned a baby with endless cuts and bruises which on their own would not have been enough but taken together, could amount to serious harm

Answer

R v Bollom (2004) 2 Cr App R 6

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In R v Bollom (2004) 2 Cr App R 6, the Court of Appeal held that, in deciding whether or not the injuries sustained were 'grievous', the jury should consider the effect of the injuries on the victim, taking into accou

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Question

"Maliciously" means 'intentionally or recklessly'.

Answer

R v Savage; Parmenter [1992] 1 AC 699

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In R v Savage; Parmenter [1992] 1 AC 699, the House of Lords reaffirmed the interpretation of maliciously as laid down R v Mowatt [1968] 1QB 421: 'It is quite unnecessary that the accused should have foreseen that

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Question

Wounding or Causing Grievous Bodily Harm with Intent

Answer

OAPA 1861, s 18

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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some

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Question

OAPA 1861, s 18

Answer

Wounding or Causing Grievous Bodily Harm with Intent

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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall [...] by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

Answer

unlawfully and maliciously

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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall unlawfully and maliciously [...] wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

Answer

by any means whatsoever

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Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall unlawfully and maliciously by any means whatsoever [...], with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

Answer

wound or cause grievous bodily harm to any person

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Question

Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with [...] … shall be guilty of an offence …'

Answer

intent … to do some grievous bodily harm to any person

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head>Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides: 'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'<html>

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Question

Psychiatric injury may amount to GBH if sufficiently serious, but its cause and effect will need to be proved by expert evidence, as in all cases of alleged psychiatric injury

Answer

R v Ireland

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Psychiatric injury may amount to GBH (Ireland) if sufficiently serious, but its cause and effect will need to be proved by expert evidence, as in all cases of alleged psychiatric injury

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Question

MR for OAPA 1861, s 20

Answer

It is enough to intend or foresee (i.e. be reckless) some harm, however slight.

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The mens rea element is the key distinguishing feature between the OAPA 1861, ss 18 and 20. Under the OAPA 1861, s 20 it is enough to intend or foresee (i.e. be reckless) some harm, however slight. Whereas, for the OAPA 1961, s 18 the defendant must actually intend to cause harm which amounts in law t

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Question

MR for OAPA 1961, s 18

Answer

The defendant must actually intend to cause harm which amounts in law to grievous bodily harm. Recklessness is not enough.

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><head>The mens rea element is the key distinguishing feature between the OAPA 1861, ss 18 and 20. Under the OAPA 1861, s 20 it is enough to intend or foresee (i.e. be reckless) some harm, however slight. Whereas, for the OAPA 1961, s 18 the defendant must actually intend to cause harm which amounts in law to grievous bodily harm (serious harm). Recklessness is not enough. Note, where the actus reus is a wound, the men

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Question

The OAPA 1861, s 24 provides:

'Whosoever shall [...] administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer

unlawfully and maliciously

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The OAPA 1861, s 24 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be

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Question

The OAPA 1861, s 24 provides:

'Whosoever shall unlawfully and maliciously [...] any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer

administer to or cause to be administered to or taken by any other person

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Question

The OAPA 1861, s 24 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person [...], with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer

any poison or other destructive or noxious thing

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Question

The OAPA 1861, s 24 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with [...], shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer

intent to injure, aggrieve or annoy such person

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d><head>The OAPA 1861, s 24 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.' <html>

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Question

The OAPA 1861, s [...] provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

Answer

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In [ case ], the House of Lords stated that the OAPA 1861, s 23 (and, presumably, the OAPA 1861, s 24) creates three distinct offences: (a) administering to; (b) causing to be administered to; and (c) causing to be taken by any other person any poison or other destructive or noxious thing.

Answer

R v Kennedy [2007] UKHL 38

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In R v Kennedy [2007] UKHL 38, the House of Lords stated that the OAPA 1861, s 23 (and, presumably, the OAPA 1861, s 24) creates three distinct offences: (a) administering to; (b) causing to be administered to; an

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With intent to injure, aggrieve or annoy It will be sufficient for the prosecution to prove that the defendant intended to injure, aggrieve, or annoy, either by the effects of the administration itself, or by some ulterior motive.

Answer

R v Hill (1985) 81 Cr App R 206 (CA)

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h intent to injure, aggrieve or annoy It will be sufficient for the prosecution to prove that the defendant intended to injure, aggrieve, or annoy, either by the effects of the administration itself, or by some ulterior motive. In the case of R v Hill (1985) 81 Cr App R 206 (CA), Robert Goff LJ stated: 'We have no doubt that, in considering whether in any particular case the accused acted "with intent to injure", it is necessary to have r

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Question

A substance is noxious if it is hurtful, unwholesome or objectionable. This will depend on each case, and the jury should take into account all the circumstances including the nature of the substance and the quantity given.

Answer

R v Marcus [1981] 2 All ER 833

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Poison, destructive or noxious thing R v Marcus [1981] 2 All ER 833. FACTS: In this case 'poison, destructive or noxious thing' was broadly interpreted. It had been argued on behalf of the defendant that tablets she had administered were intrinsicall

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A substance is noxious if it is [...]. This will depend on each case, and the jury should take into account all the circumstances including the nature of the substance and the quantity given. (R v Marcus [1981] 2 All ER 833)

Answer

hurtful, unwholesome or objectionable

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A substance is noxious if it is hurtful, unwholesome or objectionable. This will depend on each case, and the jury should take into account all the circumstances including the nature of the substance and the quantity given. (R v Marcus [1981] 2 All ER 833

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Question

The OAPA 1861, s [...] provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer

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Question

The OAPA 1861, s 23 provides:

'Whosoever shall [...] administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer

unlawfully and maliciously

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Question

The OAPA 1861, s 23 provides:

'Whosoever shall unlawfully and maliciously [...] any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer

administer to or cause to be administered to or taken by any other person

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The OAPA 1861, s 23 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilt

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Question

The OAPA 1861, s 23 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person [...], so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer

any poison or other destructive or noxious thing

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Question

The OAPA 1861, s 23 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as [...], or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer

thereby to endanger the life of such person

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><head>The OAPA 1861, s 23 provides: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceedi

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Question

The OAPA 1861, s 23 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as [...], shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.'

Answer

thereby to inflict upon such person any grievous bodily harm

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: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for a term not exceeding ten years.' <body><html>

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Question

For the purpose of OAPA s. 23 a 'noxious thing' is 'any thing liable to injure in common use'.

Answer

R v Cato [1976] 1 All ER 260

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In R v Cato [1976] 1 All ER 260, the court considered whether heroin could be a noxious thing. Lord Widgery CJ stated: 'What is a noxious thing, and in particular is heroin a noxious thing? The authoritie

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Question

Spraying the noxious thing in V's face qualifies as 'administering' for the purposes of OAPA ss. 23 & 24.

Answer

R v Gillard (1988) 87 Cr App R 189

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n>Offence (a) is committed where D administers the noxious thing directly to V, as by injecting V with the noxious thing, holding a glass containing the noxious thing to V's lips, or (as in R v Gillard (1988) 87 Cr App R 189 ---- see below) spraying the noxious thing in V's face.<body><html>

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Question

Silence is capable of being an assault.

Answer

R v Ireland

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Wilson [1955] 1 All ER 744 Lord Goddard stated that the words 'get out the knives' would, on their own, be sufficient to constitute an assault. This opinion was merely obiter. The issue does appear to have been resolved in the decision on R v Ireland; Burstow [1998] AC 147. Technically, on this issue, the comments made by their Lordships were obiter since the defendants in these two cases had repeatedly made silent telephone calls

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Question

[ case ] suggested that a half-secret trust of land (so that the devisee could not retain the land for himself) was not enforceable without written evidence (although this case was decided before the validity of half-secret trusts was firmly established in Blackwell v Blackwell).

Answer

Re Baillie (1886) 2 TLR 660

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Re Baillie (1886) 2 TLR 660 suggested that a half-secret trust of land (so that the devisee could not retain the land for himself) was not enforceable without written evidence (although this case was decided befo

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Question

Re Baillie (1886) 2 TLR 660 suggested that a [...] (so that the devisee could not retain the land for himself) was not enforceable without written evidence (although this case was decided before the validity of half-secret trusts was firmly established in Blackwell v Blackwell).

Answer

half-secret trust of land

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Question

Equity, however, will not permit a trustee to use the requirements of the Wills Act fraudulently to keep the property, but will ensure that they hold it on trust

Answer

McCormick v Grogan (1869) LR 4 HL 82.

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It is clearly possible for an intended trustee fraudulently to keep the property, where there is nothing in the will to indicate that they hold on trust. Equity, however, will not permit them to use the requirements of the Wills Act to keep the property, but will ensure that they hold it on trust: McCormick v Grogan (1869) LR 4 HL 82.

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Question

The trust will fail if the secret trustee predeceases the testator or disclaims the gift. (In the case of an ordinary gift by will to a person who predeceases the testator, the gift normally lapses, i.e. fails.)

Answer

Obiter in 'Re Maddock [1902] 2 Ch 220' (Concerning Fully Secret Trusts)

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It was said obiter in the Court of Appeal in Re Maddock [1902] 2 Ch 220 (which concerned a fully secret trust) that the trust will fail if the secret trustee predeceases the testator or disclaims the gift. (In the case of an ordinary gift by will to a person who predeceases the testator, the gift normally lapses, i.e. fails.)

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Question

Where a trustee of a half-secret trust dies the trust still subsists because ‘[...]’, so the executor will carry out the trust if it is possible to prove the terms of the trust despite the trustee’s death.

Answer

equity will not allow a trust to fail for want of a trustee

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Where a trustee of a half-secret trust dies the trust still subsists because ‘equity will not allow a trust to fail for want of a trustee’, so the executor will carry out the trust if it is possible to prove the terms of the trust despite the trustee’s death.

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Question

Where a trustee of a half-secret trust dies the trust still subsists because ‘equity will not allow a trust to fail for want of a trustee’, so the executor will carry out the trust if [...].

Answer

it is possible to prove the terms of the trust despite the trustee’s death

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However, in [ case ] (which concerned a half-secret trust), it was said, also obiter, in the House of Lords that the trustee of a fully secret trust will not be allowed to defeat the testator’s purpose by renouncing the legacy. The latter view seems right in principle.

Answer

Blackwell v Blackwell

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However, in Blackwell v Blackwell (which concerned a half-secret trust), it was said, also obiter, in the House of Lords that the trustee of a fully secret trust will not be allowed to defeat the testator’s purpose by

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Question

Whenever the trust is communicated, it will fail if the will allows for future communication.

Answer

Re Bateman’s Will Trusts [1970] 1 WLR 1463

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In Re Bateman’s Will Trusts [1970] 1 WLR 1463, the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court

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Question

In [ case ], the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court held that the trust was invalid.

Answer

Re Bateman’s Will Trusts [1970] 1 WLR 1463

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In Re Bateman’s Will Trusts [1970] 1 WLR 1463, the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court held that the trust was [...].

Answer

invalid

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n’s Will Trusts [1970] 1 WLR 1463, the testator’s will stated that income was to be paid ‘to such persons and in such proportions as shall be stated by me in a sealed letter . . . addressed to my trustees’. The court held that the trust was invalid.<body><html>

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Question

In [ case ], property was left to two people to dispose of ‘as may be notified by me to them’ or either of them ‘during my lifetime’.
A sealed envelope containing the terms of the trust was given to one of the trustees before the will was executed. The Court of Appeal held that the trust failed because:

The will referred to a future communication, which was inconsistent with a communication already made, so the trust would fail for inconsistency with the will;
There was a reference to future communication, which was not permissible.

Answer

Re Keen [1937] Ch 236

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In Re Keen [1937] Ch 236, property was left to two people to dispose of ‘as may be notified by me to them’ or either of them ‘during my lifetime’. A sealed envelope containing the terms of the trust was gi

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Question

Danckwerts J held that the beneficiary under a half-secret trust could benefit on the basis that the beneficiary takes by virtue of arrangements made outside the terms of the will and so which should be unaffected by the Wills Act.

Answer

Re Young [1951] Ch 344

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If the secret beneficiary under either type of secret trust witnessed the will one would expect that they would not be allowed to obtain any benefit. In Re Young [1951] Ch 344, however, Danckwerts J held that the beneficiary under a half-secret trust could benefit on the basis that the beneficiary takes by virtue of arrangements made outside the terms of th

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Question

If the secret beneficiary under either type of secret trust witnessed the will one would expect that they would not be allowed to obtain any benefit. In Re Young [1951] Ch 344, however, Danckwerts J held that the beneficiary under a half-secret trust could benefit on the basis that the beneficiary takes by virtue of [...] and so which should be unaffected by the Wills Act.

Answer

arrangements made outside the terms of the will

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one would expect that they would not be allowed to obtain any benefit. In Re Young [1951] Ch 344, however, Danckwerts J held that the beneficiary under a half-secret trust could benefit on the basis that the beneficiary takes by virtue of arrangements made outside the terms of the will and so which should be unaffected by the Wills Act.<body><html>

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Question

In half-secret trusts, communication cannot take place after the will.

Answer

Re Keen

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In Re Keen (above), the court referred to obiter statements in the speeches in Blackwell v Blackwell and went on to hold that, in half-secret trusts, communication cannot take place after the will. Lord Wright MR said that this ‘would involve a power to change a testamentary disposition by an unexecuted codicil and would violate s 9 of the Wills Act’.

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Question

In Re Keen (above), the court referred to obiter statements in the speeches in Blackwell v Blackwell and went on to hold that, in half-secret trusts, communication cannot take place after the will. Lord Wright MR said that this ‘would involve a power to change a testamentary disposition by an unexecuted codicil and would [...]’.

Answer

violate s 9 of the Wills Act

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kwell v Blackwell and went on to hold that, in half-secret trusts, communication cannot take place after the will. Lord Wright MR said that this ‘would involve a power to change a testamentary disposition by an unexecuted codicil and would violate s 9 of the Wills Act’. <body><html>

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Question

A witness to a will cannot benefit under it.

Answer

The Wills Act 1837, s 15

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The Wills Act 1837, s 15 provides that a witness to a will cannot benefit under it. If a half- secret trustee were to witness the will, that should not defeat the trust as the will shows that he is a trustee and s 15 provides that any benefit to a witness is void. </sp

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Question

If a half- secret trustee were to witness the will, that should not defeat the trust as [...] and s 15 provides that any benefit to a witness is void.

Answer

the will shows that he is a trustee

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If a half- secret trustee were to witness the will, that should not defeat the trust as the will shows that he is a trustee and s 15 provides that any benefit to a witness is void.

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Question

Established the validity of half-secret trusts

Answer

Blackwell v Blackwell [1929] AC 318

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Hence the courts had to find some other justification for enforcing half-secret trusts. Their validity was not firmly established until the decision of the House of Lords in Blackwell v Blackwell [1929] AC 318. By codicil, £12,000 was left to five people to be applied ‘for the purposes indicated by me to them’. The terms of the trust were communicated before the codicil was executed. The Ho

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Question

If there is a clear intention to create a trust but the half-secret trust is not valid, there will be [...].

Answer

a resulting trust for the testator’s estate

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If there is a clear intention to create a trust but the half-secret trust is not valid, there will be a resulting trust for the testator’s estate.

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Question

Acceptance of the trust is necessary in order to bind the secret trustee. It can be express or inferred and silence may count as acquiescence:

Answer

Moss v Cooper (1861) 1 J & H 352

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Acceptance of the trust is necessary in order to bind the secret trustee. It can be express or inferred and silence may count as acquiescence: Moss v Cooper (1861) 1 J & H 352 per Wood V-C ‘Acquiescence either by words of consent or by silence’. What is vital is that the testator must reasonably believe that the trust has

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Question

Re Stead does not apply to half-secret trusts if the will permits communication to be made to only one of the intended half- secret trustees when such communication is effective if made before or at the time of executing the will:

Answer

Re Gardom [1914] 1 Ch 662 at 673

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dy>It does not apply to half-secret trusts if the will permits communication to be made to only one of the intended half- secret trustees when such communication is effective if made before or at the time of executing the will: Re Gardom [1914] 1 Ch 662 at 673.<body><html>

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Question

The deceased must have communicated details of the property subject to the trust:

Answer

Re Colin Cooper [1939] Ch 580

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The deceased must have communicated details of the property subject to the trust: Re Colin Cooper [1939] Ch 580. The testator left £5,000 to two people and communicated the terms of the trust to them. By a later codicil, he increased the sum to £10,000. The addition was not communicated to the

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Question

If the trust is to be enforced, its terms as well as its existence must be communicated inter vivos. If the trust is communicated but not its terms, the property is [...].

Answer

held on resulting trust for the deceased’s estate

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If the trust is to be enforced, its terms as well as its existence must be communicated inter vivos. If the trust is communicated but not its terms, the property is held on resulting trust for the deceased’s estate.

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If the trust is to be enforced, [...] must be communicated inter vivos. If the trust is communicated but not its terms, the property is held on resulting trust for the deceased’s estate.

Answer

its terms as well as its existence

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It seems there will be sufficient communication if the terms are given to the intended trustee, during the testator’s lifetime, enclosed in a sealed envelope, to be opened after the testator has died, provided the trustee is aware that the envelope contains the terms of the trust and he accepts it on that basis.

Answer

Re Keen [1937] Ch 236

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It seems there will be sufficient communication if the terms are given to the intended trustee, during the testator’s lifetime, enclosed in a sealed envelope, to be opened after the testator has died. It was considered in Re Keen [1937] Ch 236 that this would suffice, provided the trustee is aware that the envelope contains the terms of the trust and he accepts it on that basis; per Lord Wright MR, ‘a ship which sails under sealed orders, is sailing under orders though the exact terms are not ascertained by the captain until later’.

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It seems there will be sufficient communication if the terms are given to the intended trustee, during the testator’s lifetime, enclosed in a sealed envelope, to be opened after the testator has died. It was considered in Re Keen [1937] Ch 236 that this would suffice, provided [...]; per Lord Wright MR, ‘a ship which sails under sealed orders, is sailing under orders though the exact terms are not ascertained by the captain until later’.

Answer

the trustee is aware that the envelope contains the terms of the trust and he accepts it on that basis

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munication if the terms are given to the intended trustee, during the testator’s lifetime, enclosed in a sealed envelope, to be opened after the testator has died. It was considered in Re Keen [1937] Ch 236 that this would suffice, provided the trustee is aware that the envelope contains the terms of the trust and he accepts it on that basis; per Lord Wright MR, ‘a ship which sails under sealed orders, is sailing under orders though the exact terms are not ascertained by the captain until later’. <body></htm

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Question

If a trust is to be enforced against an apparent absolute legatee, then there must be communication of the fact of the trust (i.e. its existence)

Answer

Wallgrave v Tebbs

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If a trust is to be enforced against an apparent absolute legatee, then there must be communication of the fact of the trust (i.e. its existence) Wallgrave v Tebbs (above). If the fact of the trust is communicated inter vivos, the legatee cannot take beneficially as his conscience is bound.

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Question

If a trust is to be enforced against an apparent absolute legatee, then [...] Wallgrave v Tebbs (above). If the fact of the trust is communicated inter vivos, the legatee cannot take beneficially as his conscience is bound.

Answer

there must be communication of the fact of the trust (i.e. its existence)

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Question

If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust?

General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected);
Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after).

Answer

Re Stead [1900] 1 Ch 237

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Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust? General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected); Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after).

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Question

Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust?

General rule: [...];
Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after).

Answer

only those to whom communication is made are bound by the trust (since only their consciences are affected)

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Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust?

General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected);
Exception: if [...], all are bound if communication took place before the execution of the will (but not if it took place after).

Answer

the gift is to joint tenants, as opposed to tenants in common

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ates the trust to one of several trustees, but not to all of them, are they all bound by the trust? General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected); Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after). <body><html>

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Question

Re Stead [1900] 1 Ch 237 If the testator communicates the trust to one of several trustees, but not to all of them, are they all bound by the trust?

General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected);
Exception: if the gift is to joint tenants, as opposed to tenants in common, [...].

Answer

all are bound if communication took place before the execution of the will (but not if it took place after)

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em, are they all bound by the trust? General rule: only those to whom communication is made are bound by the trust (since only their consciences are affected); Exception: if the gift is to joint tenants, as opposed to tenants in common, all are bound if communication took place before the execution of the will (but not if it took place after). <body><html>

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Question

What must be communicated for a secret trust? (3)

Answer

Existence of the trust
Terms of the Trust
Property subject to the trust

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What must be communicated? Existence of the trust Terms of the Trust Property subject to the trust

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Question

With a fully secret trust, communication must take place before death, whether before or after the signing of the will (if any)

Answer

Wallgrave v Tebbs (1855) 2 K & J 313.

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With a fully secret trust, communication must take place before death, whether before or after the signing of the will (if any): Wallgrave v Tebbs (1855) 2 K & J 313.

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Question

The testator’s statement that his wife ‘knows what she has to do’ with the house was held to be too vague to create an enforceable legal obligation on the wife to hold the house on a secret trust.

Answer

Kasperbauer v Griffith

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In Kasperbauer v Griffith the testator’s statement that his wife ‘knows what she has to do’ with the house was held to be too vague to create an enforceable legal obligation on the wife to hold the house on a s

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Question

The onus is on the person claiming that a trust exists. The standard of proof for establishing the trust is the normal civil standard, namely proof on a balance of probabilities

Answer

Re Snowden [1979] Ch 528

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The onus is on the person claiming that a trust exists. The standard of proof for establishing the trust is the normal civil standard, namely proof on a balance of probabilities (Re Snowden [1979] Ch 528).

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Question

According to [ case ] the requirements for the trust to be enforced are:

An intention by the testator, or a person prepared to die intestate, to create a trust binding an inheritor of their property;
Communication of the trust to the intended trustee; and
Acceptance of the trust by the trustee.

The testator or intestate then relies on that acceptance by making a will, leaving a will unrevoked or not making a will at all.

Answer

Kasperbauer v Griffith [2000] WTLR 333

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According to Kasperbauer v Griffith [2000] WTLR 333 the requirements for the trust to be enforced are: An intention by the testator, or a person prepared to die intestate, to create a trust binding an inheritor of their property; Co

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Question

According to Kasperbauer v Griffith [2000] WTLR 333 the requirements for the trust to be enforced are: (3)

Answer

An intention by the testator, or a person prepared to die intestate, to create a trust binding an inheritor of their property;
Communication of the trust to the intended trustee; and
Acceptance of the trust by the trustee.

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Question

A father’s ambiguous statements about the claimant’s older brother ‘knowing his wishes’ and ‘giving what’s appropriate’ were held not to create a binding legal obligation.

Answer

Margulies v Margulies (1999-2000) 2 ITELR 641

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Similarly, in Margulies v Margulies (1999-2000) 2 ITELR 641, a father’s ambiguous statements about the claimant’s older brother ‘knowing his wishes’ and ‘giving what’s appropriate’ were held not to create a binding legal obligation. A further

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Question

By the [ statute ] ‘no will shall be valid unless:

It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
It appears that the testator intended by his signature to give effect to the will: and
The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
Each witness either:
1. Attests and signs the will; or
2. Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

Answer

Wills Act 1837, s 9

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By the Wills Act 1837, s 9 ‘no will shall be valid unless: It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and It appears that the testator intende

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Question

Sets out the requirements for a valid will

Answer

Wills Act 1837, s 9

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Question

Any gift/trust which is to take effect on death must normally comply with the formalities of the [ statute ]

Answer

Wills Act 1837, s 9

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Any gift/trust which is to take effect on death must normally comply with the formalities of the Wills Act 1837, s 9

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Question

Except where [...], to create a valid gift/trust to take effect on death, the Wills Act 1837, s 9 must be complied with.

Answer

a person dies intestate in reliance on their next of kin agreeing to hold what is inherited on trust for B

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Except where a person dies intestate in reliance on their next of kin agreeing to hold what is inherited on trust for B, to create a valid gift/trust to take effect on death, the Wills Act 1837, s 9 must be complied with.

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Question

[ case ], where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose as soon as the trusts were communicated and accepted, as the interest was created by agreement, not by the will. Accordingly, the beneficiary’s share did not lapse. This decision, as we have seen, is regarded as very dubious indeed because, until the testator’s death, the trust is incompletely constituted, the beneficiary only having a hope that the trust will take effect when the testator dies, hopefully solvent and not having changed his mind by leaving the property to someone else.

Answer

Re Gardner (No 2) [1923] 2 Ch 230

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Re Gardner (No 2) [1923] 2 Ch 230, where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’

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Question

Re Gardner (No 2) [1923] 2 Ch 230, where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose [...], as the interest was created by agreement, not by the will. Accordingly, the beneficiary’s share did not lapse. This decision, as we have seen, is regarded as very dubious indeed because, until the testator’s death, the trust is incompletely constituted, the beneficiary only having a hope that the trust will take effect when the testator dies, hopefully solvent and not having changed his mind by leaving the property to someone else.

Answer

as soon as the trusts were communicated and accepted

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>Re Gardner (No 2) [1923] 2 Ch 230, where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose as soon as the trusts were communicated and accepted, as the interest was created by agreement, not by the will. Accordingly, the beneficiary’s share did not lapse. This decision, as we have seen, is regarded as very dubious indeed beca

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Question

Re Gardner (No 2) [1923] 2 Ch 230, where the secret beneficiary predeceased the testator. The normal rule is that a gift under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose as soon as the trusts were communicated and accepted, as the interest was created by agreement, not by the will. Accordingly, [...]. This decision, as we have seen, is regarded as very dubious indeed because, until the testator’s death, the trust is incompletely constituted, the beneficiary only having a hope that the trust will take effect when the testator dies, hopefully solvent and not having changed his mind by leaving the property to someone else.

Answer

the beneficiary’s share did not lapse

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t under a will lapses (fails) if the beneficiary predeceases. The court held that the beneficiary’s interest arose as soon as the trusts were communicated and accepted, as the interest was created by agreement, not by the will. Accordingly, the beneficiary’s share did not lapse. This decision, as we have seen, is regarded as very dubious indeed because, until the testator’s death, the trust is incompletely constituted, the beneficiary only having a hope that

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Question

FACTS: The owner of a factory in financial difficulties had apparently said to D: 'There is nothing like a good fire for improving the financial circumstances of a business'. D took this as an instruction to set fire to the factory, which he did. HELD: His conviction for arson was quashed, the Court of Appeal holding that he was entitled to the CDA 1971, s 5(2)(a) defence.

Answer

R v Denton [1982] 1 All ER 65

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R v Denton [1982] 1 All ER 65 FACTS: The owner of a factory in financial difficulties had apparently said to D: 'There is nothing like a good fire for improving the financial circumstances of a business'. D took th

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Question

There are four requirements for the s5(2)(b) defence:

Answer

(a) The defendant must act to protect property.
(b) s5(2(b)(i) The accused must believe that the property was in immediate need of protection (subjective test).
(c) s5(2)(b)(ii) The accused must believe that the means of protection adopted are reasonable.
(d) The damage caused by the accused must be (objectively) capable of protecting the property.

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There are four requirements for the s5(2)(b) defence. (a) The defendant must act to protect property. (b) s5(2(b)(i) The accused must believe that the property was in immediate need of protection (subjective test). (c) s5(2)(b)(ii

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Question

Information does not fall within the definition of 'property' contained in the CDA 1971, s 10(1).

Answer

R v Whitely (1991) 93 Cr App R 25

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In R v Whitely (1991) 93 Cr App R 25, the court held that information does not fall within the definition of 'property' contained in the CDA 1971, s 10(1).

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Question

'[Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.'

Answer

Morphitis v Salmon [1990] Crim LR 48

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This approach was confirmed in Morphitis v Salmon [1990] Crim LR 48, where the court stated: '[Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.'

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Question

Mud spread on the walls of a police cell may constitute 'damage' within the CDA 1971, even though it could be easily removed.

Answer

Roe v Kingerlee [1986] Crim LR 735

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in Roe v Kingerlee [1986] Crim LR 735, that mud spread on the walls of a police cell may constitute 'damage' within the CDA 1971, even though it could be easily removed.

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Question

Damage need not be permanent

Answer

Hardman v Chief Constable of Avon

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In Hardman v Chief Constable of Avon, the court held that damage need not be permanent

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Question

In [ case ], the House of Lords, having overruled R v Caldwell and declared it to be wrongly decided, stated that to convict a person of reckless criminal damage the prosecution must prove that:

at the time of committing the actus reus, the accused was subjectively aware of a risk; and
in the circumstances known to him, it was objectively unreasonable for the accused to take that risk.

Answer

R v G [2003] UKHL 50

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Question

In R v G [2003] UKHL 50, the House of Lords, having overruled R v Caldwell and declared it to be wrongly decided, stated that to convict a person of reckless criminal damage the prosecution must prove that:

Answer

at the time of committing the actus reus, the accused was subjectively aware of a risk; and
in the circumstances known to him, it was objectively unreasonable for the accused to take that risk.

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In R v G [2003] UKHL 50, the House of Lords, having overruled R v Caldwell and declared it to be wrongly decided, stated that to convict a person of reckless criminal damage the prosecution must prove that: at the time of committing the actus reus, the accused was subjectively aware of a risk; and in the circumstances known to him, it was objectively unreasonable for the accused to take tha

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Question

Intention is to be given its ordinary meaning

Answer

R v Maloney [1985] 1 AC 905

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Intention is to be given its ordinary meaning, R v Maloney [1985] 1 AC 905, and therefore requires consideration of whether, at the time he carried out the actus reus, it was his aim or purpose to destroy or damage the property belonging to another</s

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Question

If the property is mortgaged it will also belong to the bank or mortgage company by virtue of [...]

Answer

CDA 1971 s10(2)(c)

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If the property is mortgaged it will also belong to the bank or mortgage company by virtue of s10(2)(c)

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Question

[...] Property shall be treated for the purposes of this Act as belonging to any person—
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it.

Answer

CDA 1971 s. 10(2)

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S10 (2) Property shall be treated for the purposes of this Act as belonging to any person— (a) having the custody or control of it; (b) having in it any proprietary right or interest (

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Question

CDA 1971 s. 10(2) Property shall be treated for the purposes of this Act as belonging to any person— (3)

Answer

(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it.

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CDA 1971 s. 10(2) Property shall be treated for the purposes of this Act as belonging to any person— (a) having the custody or control of it; (b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an i

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Question

The mens rea for criminal damage extends to the whole of the actus reus.

Answer

R v Smith [1974] 1 ALL ER 632

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It has been confirmed that the mens rea extends to the whole of the actus reus. In R v Smith [1974] 1 ALL ER 632, the Court of Appeal held that it is insufficient that D does an act that damages property intentionally. What must also be proved is that he knew, or

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It has been confirmed that the mens rea extends to the whole of the actus reus. In R v Smith [1974] 1 ALL ER 632, the Court of Appeal held that it is insufficient that D does an act that damages property intentionally. What must also be proved is that [...]. Smith, who lived in rented accommodation with his brother, had installed electrical wiring to connect a stereo system. He had also, with his brother's help and the landlord's permission, put down floorboards, wall panels and roofing material. After two years, Smith decided to vacate the flat and asked permission for his brother to remain: the landlord declined. After this, Smith smashed the wall panels, floorboards and roofing material, doing so he said to gain access to the wiring that he had fitted, in order to remove it.

Answer

he knew, or was reckless as to whether, the property belonged to another

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confirmed that the mens rea extends to the whole of the actus reus. In R v Smith [1974] 1 ALL ER 632, the Court of Appeal held that it is insufficient that D does an act that damages property intentionally. What must also be proved is that he knew, or was reckless as to whether, the property belonged to another. Smith, who lived in rented accommodation with his brother, had installed electrical wiring to connect a stereo system. He had also, with his brother's help and the landlord's permiss

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Question

The [ statute ] says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be honestly held.

Answer

CDA 1971, s 5(3)

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The CDA 1971, s 5(3) says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be honestly held.

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Question

The CDA 1971, s 5(3) says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be [...].

Answer

honestly held

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The CDA 1971, s 5(3) says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be honestly held.

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Question

The defence under CDA 1971 s 5(2)(a) applies even where the defendant was intoxicated

Answer

Jaggard v Dickinson [1980] Crim LR 717

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In Jaggard v Dickinson [1980] Crim LR 717 (QBD, the court confirmed that the test was subjective. Dickinson broke a window in the drunken belief that the house was that of a friend with whom she was staying. Applying the CDA

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Question

The [ statute ] operates where the defendant acts to protect his or another's property. The section relates only to the protection of property.

Answer

CDA 1971, s 5(2)(b)

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The CDA 1971, s 5(2)(b) operates where the defendant acts to protect his or another's property. The section relates only to the protection of property.

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Question

For the defence under CDA 1971 s. 5(2)(b) to succeed the defendant must act to protect property from immediate damage

Answer

Johnson v DPP [1994] Crim LR 673

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Johnson v DPP [1994] Crim LR 673 FACTS: Johnson, a squatter in a council house, damaged a door while attempting to fit locks in the house. Johnson was charged with criminal damage and raised the CDA 1971, s 5(2)(b) de

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Question

The CDA 1971, s 5(2)(b) defence to a charge of criminal damage only applies where the act is to protect property.

Answer

R v Baker & Wilkins [1997] Crim LR 497

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In R v Baker & Wilkins [1997] Crim LR 497, a mother could not raise the CDA 1971, s 5(2)(b) defence to a charge of criminal damage to a door that she had kicked open in order to rescue her child from a perceived threat by her

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Question

The [ statute ] preserves the availability of the general defences to criminal offences, e.g. prevention of crime, self-defence, and duress/necessity.

Answer

CDA 1971, s 5(5)

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The CDA 1971, s 5(5) preserves the availability of the general defences to criminal offences, e.g. prevention of crime, self-defence, and duress/necessity.

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Question

FACTS: In order to demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom in a deserted part of the block. He pressed the fire alarm, which did not work. He then called the fire brigade. HELD: The Court of Appeal, rejecting the defence under the CDA 1971, s 5(2)(b), introduced an objective element into the defence. The court held that it was not sufficient that the accused intended to prevent further damage to property (as statutory language suggests) but also required that the act be objectively capable of protecting the property from damage.

Answer

R v Hunt [1977] Crim LR 740

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R v Hunt [1977] Crim LR 740 FACTS: In order to demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom in a deserted part of the block. He pressed the fire alarm, which

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Question

The mens rea of aggravated criminal damage (CDA s. 1(2)) is: (2)

Answer

(a) intention or recklessness as to the damage or destruction of property; and
(b) intention or recklessness as to the endangerment of life by the damage or destruction.

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The mens rea of aggravated criminal damage (CDA s. 1(2)) is: (a) intention or recklessness as to the damage or destruction of property; and (b) intention or recklessness as to the endangerment of life by the damage or destruction.</spa

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Question

The [ statute ] provides:

'Any offence committed under this section by destroying or damaging property by fire shall be charged as arson.'

Answer

CDA 1971, s 1(3)

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The CDA 1971, s 1(3) provides: 'Any offence committed under this section by destroying or damaging property by fire shall be charged as arson.'

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Question

There must be a causal link between the damage to property and the danger to life for an aggravated CD claim to succeed.

Answer

R v Steer [1988] 1 AC 111 (HL)

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R v Steer [1988] 1 AC 111 (HL) FACTS: The defendant had fired three shots through a window. HELD: This did not constitute the offence under the CDA 1971, s 1(2) because the lives had been endangered by the bullets

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Question

The [ statute ] provides:

'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

to destroy or damage any property belong to some other person; or
to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.'

Answer

CDA 1971, s 3

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The CDA 1971, s 3 provides: 'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it— to dest

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Question

The CDA 1971, s 3 provides:

'A person who has [...] intending without lawful excuse to use it or cause or permit another to use it—

to destroy or damage any property belong to some other person; or
to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.'

Answer

anything in his custody or under his control

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The CDA 1971, s 3 provides: 'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it— to destroy or damage any property belong to some other person; or to destroy or damage his ow

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Question

The CDA 1971, s 3 provides:

'A person who has anything in his custody or under his control [...]—

to destroy or damage any property belong to some other person; or
to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.'

Answer

intending without lawful excuse to use it or cause or permit another to use it

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Question

The CDA 1971, s 3 provides:

'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

to destroy or damage any property belong to some other person; or
to destroy or damage his own or the user's property [...]; shall be guilty of an offence.'

Answer

in a way which he knows is likely to endanger the life of some other person

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is custody or under his control intending without lawful excuse to use it or cause or permit another to use it— to destroy or damage any property belong to some other person; or to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.' <body><html>

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Question

The [ statute ] provides:

'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,—

to destroy or damage property belonging to that other or a third person; or
to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.'

Answer

CDA 1971, s 2

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The CDA 1971, s 2 provides: 'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,— to destroy or damage pro

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Question

The CDA 1971, s 2 provides:

'A person who without lawful excuse [...], intending that that other would fear it would be carried out,—

to destroy or damage property belonging to that other or a third person; or
to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.'

Answer

makes to another a threat

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The CDA 1971, s 2 provides: 'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,— to destroy or damage property belonging to that other or a third person; or to destroy or damage his own pro

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Question

The CDA 1971, s 2 provides:

'A person who without lawful excuse makes to another a threat, [...],—

to destroy or damage property belonging to that other or a third person; or
to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.'

Answer

intending that that other would fear it would be carried out

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Question

The CDA 1971, s 2 provides:

'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,—

to destroy or damage property belonging to that other or a third person; or
to destroy or damage his own property [...]; shall be guilty of an offence.'

Answer

in a way which he knows is likely to endanger the life of that other or third person

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who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,— to destroy or damage property belonging to that other or a third person; or to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.' <body><html>

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Question

FACTS: The defendant raised money in a telethon for a charity. He deposited the monies into a separate bank account, but when asked for the proceeds by the charity organisers he made excuses not to hand the money over and obtained permission to pay it into his own bank account. He then handed cheques drawn on his own account to the organisers but these were not met. At the same time, he was withdrawing money from the account for his own use. HELD: The Court of Appeal held:

'[B]y virtue of section 5(3), the appellant was plainly under an obligation to retain, if not the actual notes and coins, at least their proceeds, that is to say the money credited in the bank account which he opened for the trust with the actual property. When he took the money credited to that account and moved it over to his own bank account, it was still the proceeds of the notes and coins donated which he proceeded to use for his own purposes, thereby appropriating them.'

Answer

R v Wain [1995] 2 Cr App R 660

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R v Wain [1995] 2 Cr App R 660 FACTS: The defendant raised money in a telethon for a charity. He deposited the monies into a separate bank account, but when asked for the proceeds by the charity organisers he made exc

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Question

An assault is [...].

Answer

an act of the defendant which directly and intentionally causes the claimant to apprehend a battery or physical contact

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An assault is an act of the defendant which directly and intentionally causes the claimant to apprehend a battery or physical contact.

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Question

A threat to harm in the future is unlikely to be an assault. In [...] the claimant was being transported to work during the miners' strike and was subjected to taunts and threats as he passed the picket line. He was in an adequately protected vehicle and therefore the threats were not an assault.

Answer

Thomas v NUM [1986] Ch 20

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A threat to harm in the future is unlikely to be an assault. In Thomas v NUM [1986] Ch 20 the claimant was being transported to work during the miners' strike and was subjected to taunts and threats as he passed the picket line. He was in an adequately protected vehicle and

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Question

A threat to harm in the future is unlikely to be an assault.

Answer

Thomas v NUM [1986] Ch 20

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Question

Liability can also arise where a defendant deliberately acts or makes a statement which is calculated to cause physical harm to the claimant and which does in fact achieve that result.

Answer

Wilkinson v Downton (1897) 66 LJQB 493

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It is well-recognised that a defendant can be responsible for deliberately inflicting harm on the claimant. In Wilkinson v Downton (1897) 66 LJQB 493 the defendant told the claimant, as a joke, that her husband had been badly injured in an accident. The claimant suffered nervous shock, for which the defendant was held liable. Thus l

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Question

It is well-recognised that a defendant can be responsible for deliberately inflicting harm on the claimant. In Wilkinson v Downton (1897) 66 LJQB 493 the defendant told the claimant, as a joke, that her husband had been badly injured in an accident. The claimant suffered nervous shock, for which the defendant was held liable. Thus liability can also arise where a defendant [...] and which does in fact achieve that result.

Answer

deliberately acts or makes a statement which is calculated to cause physical harm to the claimant

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) 66 LJQB 493 the defendant told the claimant, as a joke, that her husband had been badly injured in an accident. The claimant suffered nervous shock, for which the defendant was held liable. Thus liability can also arise where a defendant deliberately acts or makes a statement which is calculated to cause physical harm to the claimant and which does in fact achieve that result.<body><html>

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Question

Answer

does in fact achieve that result

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dent. The claimant suffered nervous shock, for which the defendant was held liable. Thus liability can also arise where a defendant deliberately acts or makes a statement which is calculated to cause physical harm to the claimant and which does in fact achieve that result.<body><html>

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Question

One of the areas where consent may negative a battery is in the field of medical treatment

Answer

Airedale NHS Trust v Bland [1993] 1 All ER 821, 881

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Areas where consent may negative a battery are in the field of medical treatment, Chatterton v Gerson [1981] l All ER 257, and sporting occasions. Lord Brown-Wilkinson reconfirmed this point in Airedale NHS Trust v Bland [1993] 1 All ER 821, 881: Any treatment given by a doctor to a patient which is invasive ... is unlawful unless done with the consent of the patient: it constitutes the crime of battery and the tor

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Question

If actual bodily harm was suffered then it is immaterial that there was consent.

Answer

R v Brown [1992] 2 All ER 552

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Whether it is possible to consent to a battery in areas outside medical treatment and lawful sport is open to question. The criminal case of R v Brown [1992] 2 All ER 552 held that if actual bodily harm was suffered then it is immaterial that there was consent.

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Question

Self-defence can be pleaded by a defendant if they have used reasonable force in self- protection or to protect another person, or property. What is reasonable force is a question of fact in each case.

Answer

Lane v Holloway [1968] 1 QB 379

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html>Self-defence can be pleaded by a defendant if they have used reasonable force in self- protection or to protect another person, or property. What is reasonable force is a question of fact in each case. See Lane v Holloway [1968] 1 QB 379. <html>

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Question

In order for there to be imprisonment it is necessary to show that the claimant's liberty has been restricted in all directions and that they are being confined or constrained within limits imposed by another. It is not sufficient for the claimant to show that they have been inconvenienced or restricted in one direction only.

Answer

Bird v Jones [1845] 7 QB 742

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been restricted in all directions and that they are being confined or constrained within limits imposed by another. It is not sufficient for the claimant to show that they have been inconvenienced or restricted in one direction only. In Bird v Jones [1845] 7 QB 742 the claimant was prevented from walking on part of a bridge. He was not falsely imprisoned as he was free to take an alternative route. If the claimant is being confined then they will

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Question

The claimant was prevented from walking on part of a bridge. He was not falsely imprisoned as he was free to take an alternative route. If the claimant is being confined then they will be imprisoned unless there is a reasonable means by which they can exit or gain their freedom. They are not expected to take dangerous or unusual methods of exit, e.g. jumping from a fifth storey window.

Answer

Bird v Jones [1845] 7 QB 742

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Question

The act must be a direct act by the defendant.

Answer

Sayers v Harlow Urban District Council [1958] WLR 623

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The act must be a direct act by the defendant. See Sayers v Harlow Urban District Council [1958] WLR 623.

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Question

There is also no need for any force; words can be enough such as ‘stay here, otherwise I’ll kill you.’

Answer

Davidson v Chief Constable of North Wales [1994] 2 All ER 597

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There is also no need for any force; words can be enough such as ‘stay here, otherwise I’ll kill you.’ See Davidson v Chief Constable of North Wales [1994] 2 All ER 597.

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Question

The defendant lunged at the claimant in a meeting and was forcibly restrained by those close to the claimant. In that case there was an assault since the threat was very much an immediate and pressing threat which might well have been carried out but for the timely intervention of others.

Answer

Stephens v Myers (1830) 4 C&P 349

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Contrast this with the case of Stephens v Myers (1830) 4 C&P 349 where the defendant lunged at the claimant in a meeting and was forcibly restrained by those close to the claimant. In that case there was an assault since the threat was very much an

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Question

There must be a direct act for there to be trespass to the person.

Answer

Reynolds v Clarke (1725) 93 ER 747

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In addition, there must be a direct act for there to be trespass to the person. This was explained in Reynolds v Clarke (1725) 93 ER 747 in the following way: If a man throws a log on the highway, and in that act it hits me I may maintain a trespass because it is

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Question

The least touching of another in anger is battery.

Answer

Cole v Turner (1704) 6 Mod 149

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In Cole v Turner (1704) 6 Mod 149 it was stressed that the least touching of another in anger is battery. In R v Cotesworth (1704) 6 Mod 172 spitting in a doctor's face was held to be a battery.</h

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Question

Spitting in a doctor's face was held to be a battery.

Answer

R v Cotesworth (1704) 6 Mod 172

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Question

Court of Appeal described battery as an intentional touching accompanied by hostility.

Answer

Wilson v Pringle [1986] 2 All ER 440

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In Wilson v Pringle [1986] 2 All ER 440 the Court of Appeal described battery as an intentional touching accompanied by hostility. In that case two schoolboys had been playing in the playground and one had been hurt. It was

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Question

False imprisonment is [...]. It is easiest to examine this tort by first establishing the element of imprisonment or restriction of liberty and then examining whether this is false, i.e. without lawful justification.

Answer

an act of the defendant that directly and intentionally causes the complete restriction of the claimant's liberty without lawful justification

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False imprisonment is an act of the defendant that directly and intentionally causes the complete restriction of the claimant's liberty without lawful justification. It is easiest to examine this tort by first establishing the element of imprisonment or restriction of liberty and then examining whether this is false, i.e. without lawful justifica

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Question

It is not necessary for there to be mental awareness by the claimant of their plight.

Answer

Meering v Grahame-White Aviation (1919) 122 LT 44

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It is not necessary for there to be mental awareness by the claimant of their plight. In Meering v Grahame-White Aviation (1919) 122 LT 44 the claimant was asked to go to his boss's office which he did. He waited there quite happily without realising that his colleagues

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Question

The confinement must be demonstrated to be without lawful justification. There may be justification if the imprisonment was because the claimant failed to comply with a contractual condition.

Answer

Robinson v Balmain New Ferry [1910] AC 295

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The confinement must be demonstrated to be without lawful justification. There may be justification if the imprisonment was because the claimant failed to comply with a contractual condition.

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Question

Where there is a wrongful continuation of an original lawful imprisonment, an action may be brought for false imprisonment

Answer

Roberts v Chief Constable of Cheshire [1999] 2 All ER 326

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Note: where there is a wrongful continuation of an original lawful imprisonment, an action may be brought for false imprisonment (see Roberts v Chief Constable of Cheshire [1999] 2 All ER 326).

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Question

Similarly, when a prisoner has been detained on the basis of an unlawful policy, this will constitute false imprisonment even if the prisoner could and would have been detained on the basis of an alternative lawful policy

Answer

R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12

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Similarly, when a prisoner has been detained on the basis of an unlawful policy, this will constitute false imprisonment even if the prisoner could and would have been detained on the basis of an alternative lawful policy: R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12. Note that damages will be nominal since no loss or damage has been suffered in these circ

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Question

Silence, which can cause psychiatric damage, may also amount to assault

Answer

R v Ireland [1997] 3 WLR 534

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Silence, which can cause psychiatric damage, may also amount to assault (See R v Ireland [1997] 3 WLR 534).

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Question

Battery may be defined as [...].

Answer

the direct and intentional application of force by the defendant to the claimant without lawful justification

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Battery may be defined as the direct and intentional application of force by the defendant to the claimant without lawful justification.

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Question

Any trespass to the person must be committed intentionally.

Answer

Letang v Cooper [1965] 1 QB 232

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13; [T]respass to the person does not lie if the injury to the claimant, although the direct consequence of the act of the defendant, was caused unintentionally and without fault on the defendant's part. The later case of Letang v Cooper [1965] 1 QB 232, followed this approach and restricted trespass to intentional acts.<body><html>

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Question

Again in [ case ] (see paragraph 2.4.4) a miner refused to continue working his nine-hour shift and demanded to be brought to the surface. The defendants refused and there was no false imprisonment. "…it is not false imprisonment to hold a man to conditions he accepted when he goes down the mine."

Answer

Herd v Weardale Steel

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Again in Herd v Weardale Steel (see paragraph 2.4.4) a miner refused to continue working his nine-hour shift and demanded to be brought to the surface. The defendants refused and there was no false imprisonment. &quot

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Question

Words alone might suffice for an assault

Answer

R v Wilson [1955] 1 All ER 744

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There has been some dispute as to whether words can amount to an assault. See R v Wilson [1955] 1 All ER 744 where it was argued that words alone might suffice for an assault, the logical argument being that if the essence of an assault is creating the apprehension of battery, then threatenin

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Question

Ex turpi causa has been argued in cases involving fights, but has usually failed due to disproportionate force being used by one party

Answer

Lane v Holloway

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Ex turpi causa has been argued in cases involving fights, but has usually failed due to disproportionate force being used by one party, e.g. Lane v Holloway (see paragraph 2.4.1). In Lane v Holloway [1968] 1 QB 379 an argument occurred between the plaintiff (aged 64) and the defendant (aged 23) outside the plaintiff’s house. The defendant’

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Question

The defence of contributory negligence is not available in the torts of assault and battery as a matter of law.

Answer

Co-operative Group (CWS) Ltd v Pritchard [2011] EWCA 329

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lt and battery, although its application was uncertain, particularly as there are authorities which deny that provocation can be a defence, see Barnes v Nayer, The Times, 19 December 1986. The situation has now been clarified in the case of Co-operative Group (CWS) Ltd v Pritchard [2011] EWCA 329. The Court of Appeal in this case made it clear that the defence of contributory negligence is not available in the torts of assault and battery as a matter of law. </bo

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Question

Later payments into the account would only be presumed to be repayments to the trust where the trustee shows such an intention and he gave the example of the trustee repaying money into a separate account opened for the trust.

Answer

Roscoe v Winder [1913] 1 Ch 62

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In Roscoe v Winder [1913] 1 Ch 62, the plaintiffs sold their business to Mr Wigham and it was agreed that he should collect in certain debts on their behalf. He did this and paid £450 into his account. He then withdre

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Question

The plaintiffs sold their business to Mr Wigham and it was agreed that he should collect in certain debts on their behalf. He did this and paid £450 into his account. He then withdrew money from the account leaving £26. Later, he died leaving £360 in the account. The court held that the plaintiffs’ proprietary claim over the account was limited to the lowest intermediate balance of £26. Sargant J said that later payments into the account would only be presumed to be repayments to the trust where the trustee shows such an intention and he gave the example of the trustee repaying money into a separate account opened for the trust.

Answer

Roscoe v Winder [1913] 1 Ch 62

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Flashcard 1375833033996

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Question

Following the principle in Roscoe v Winder, if the account is exhausted during the intermediate period, the beneficiaries cannot trace at all.

Answer

Bishopsgate Investment Management Ltd v Homan [1995] Ch 211

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If the account is exhausted during the intermediate period, the beneficiaries cannot trace at all. This was the conclusion of the Court of Appeal in Bishopsgate Investment Management Ltd v Homan [1995] Ch 211, which affirmed and applied Roscoe v Winder.

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Question

When the mixed fund is a deposit (savings) account, the general rule is that the two funds share the mixture in the account rateably:

Answer

Re Diplock’s Estate

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Deposit accounts The general rule is that the two funds share the mixture in the account rateably: Re Diplock’s Estate, applying Sinclair v Brougham [1914] AC 348. Payments out of the account will also be shared rateably. For example, if trust A’s contribution to the mixed fund w

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Question

Therefore it can be said that the FIFO rule should not be applied if: (3)

Answer

(i) It was contrary to the express or implied intentions of the claimants;
(ii) It was impractical; or
(iii) It would cause injustice.

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Therefore it can be said that the FIFO rule should not be applied if: (i) It was contrary to the express or implied intentions of the claimants; (ii) It was impractical; or (iii) It would cause injustice.

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Question

If the recipient dissipates the property (or its proceeds) in circumstances where they lack the requisite knowledge, their proprietary liability to return the property (or its proceeds) thereby ceases. Moreover, they cannot be made personally liable for those innocent actions.

Answer

Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA

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If the recipient dissipates the property (or its proceeds) in circumstances where they lack the requisite knowledge, their proprietary liability to return the property (or its proceeds) thereby ceases: Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA Civ 195 at [76],[84]. Moreover, they cannot be made personally liable for those innocent actions.

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Question

Knowledge, in this context, was divided into five types by Peter Gibson J in Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1983] BCLC 325, as follows: (5)

Answer

Actual knowledge;
Wilfully shutting one’s eyes to the obvious;
Wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make;
Knowledge of circumstances which would indicate the facts to an honest and reasonable man (but not a morally obtuse man); and
Knowledge of circumstances which would put an honest and reasonable man on inquiry.

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Knowledge, in this context, was divided into five types by Peter Gibson J in Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1983] BCLC 325, as follows: Actual knowledge; Wilfully shutting one’s eyes to the obvious; Wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; Knowledge of circumstanc

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Question

Knowledge, in this context, was divided into five types by Peter Gibson J in [ case ], as follows:

Actual knowledge;
Wilfully shutting one’s eyes to the obvious;
Wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make;
Knowledge of circumstances which would indicate the facts to an honest and reasonable man (but not a morally obtuse man); and
Knowledge of circumstances which would put an honest and reasonable man on inquiry.

Answer

Baden, Delvaux and Lecuit v Société Générale pour Favoriser le Développement du Commerce et de l’Industrie en France SA [1983] BCLC 325

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Question

According to the Baden case and [ case ], a person with knowledge in categories (ii) and (iii) ‘will be taken to have actual knowledge, while a person in categories (iv) or (v) has constructive notice only’

Answer

Agip (Africa) Ltd v Jackson [1990] Ch 265

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According to the Baden case and Agip (Africa) Ltd v Jackson [1990] Ch 265, a person with knowledge in categories (ii) and (iii) ‘will be taken to have actual knowledge, while a person in categories (iv) or (v) has constructive notice only’</bo

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Question

Under the [ statute ] ‘A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.’

Answer

Law of Property Act 1925, s 53(1)(b)

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Under the Law of Property Act 1925, s 53(1)(b) ‘A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will

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Question

Under the Law of Property Act 1925, s 53(1)(b) ‘A declaration of trust respecting any land or any interest therein must be [...].’

Answer

manifested and proved by some writing signed by some person who is able to declare such trust or by his will

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Question

Under the Law of Property Act 1925, s 53(1)(b) ‘A declaration of trust respecting [...] must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.’

Answer

any land or any interest therein

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Question

Section [...] applies to dispositions of subsisting equitable interests in land and pure personalty.

Answer

53(1)(c) LPA 1925

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Section 53(1)(c) applies to dispositions of subsisting equitable interests in land and pure personalty.

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Question

Section 53(1)(c) LPA 1925 applies to [...].

Answer

dispositions of subsisting equitable interests in land and pure personalty

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Section 53(1)(c) applies to dispositions of subsisting equitable interests in land and pure personalty.

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Question

Unlike s 53(1)(b), s 53(1)(c) requires [...]. The effect of non-compliance is that the purported disposition is void.

Answer

the disposition to be in writing (not merely evidenced in writing)

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Unlike s 53(1)(b), s 53(1)(c) requires the disposition to be in writing (not merely evidenced in writing). The effect of non-compliance is that the purported disposition is void.

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Question

If the sub-trust is a ‘bare’ trust, where B has no active duties, B would effectively ‘drop out’ of the picture and the original trustee would hold on trust directly for X

Answer

Grainge v Wilberforce (1889) 5 TLR 436 and Re Lashmar [1891] 1 Ch 258

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reating a sub-trust but the position on the application of s 53(1)(c) is uncertain. Section 53(1)(c) does not apply to the creation of new trusts (the relevant provision is s53(1)(b), which applies only if the trust relates to land); BUT, if the sub-trust is a ‘bare’ trust, where B has no active duties, B would effectively ‘drop out’ of the picture and the original trustee would hold on trust directly for X – Grainge v Wilberforce (1889) 5 TLR 436 and Re Lashmar [1891] 1 Ch 258.<body><html>

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Question

The words in each document are interpreted in their context, rather than according to previous cases – so the same words may not have the same effect.

Answer

Re Hamilton [1895] 2 Ch 370

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The words in each document are interpreted in their context, rather than according to previous cases – so the same words may not have the same effect. In Re Hamilton [1895] 2 Ch 370, Lindley LJ said: You must take the will which you have to construe and see what it means, and if you come to the conclusion that no trust was intended, you say so, althoug

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Question

In [ case ] the county court judge found an intention to create a trust where a man had told his cohabitant that the money in his bank account was as much hers as his and ordered half the money to be paid to her after his death, rather than pass to his wife. The Court of Appeal upheld this, Bridge LJ saying that the question was whether in the circumstances, Mr Constance had done something which was equivalent to declaring himself a trustee of the moneys in the account for himself and Mrs Paul in equal shares. Scarman LJ said that this was a borderline case because one could not pinpoint a specific moment of declaration but in all the circumstances the discussions on numerous occasions between Mr Constance and Mrs Paul constituted an express declaration of trust.

Answer

Paul v Constance [1977] 1 WLR 527

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In Paul v Constance [1977] 1 WLR 527 the county court judge found an intention to create a trust where a man had told his cohabitant that the money in his bank account was as much hers as his and ordered half the money t

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Question

A mail-order company fearful that it might go into liquidation may pay customers’ moneys into a separate bank account opened for the purpose of protecting them from merely being debtors of the company if not receiving their ordered goods. This will amount to a trust of the moneys for the customers. Of course, a customer on sending his cheque to such a company to buy goods could himself by covering letter require the company to hold the cheque money (as soon as cleared) on trust for himself.

Answer

Re Kayford [1975] 1 All ER 604

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Re Kayford [1975] 1 All ER 604 A mail-order company fearful that it might go into liquidation may pay customers’ moneys into a separate bank account opened for the purpose of protecting them from merely being debtor

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Question

A building contract provided that part of the contract price would be retained and held by the employer as trustee for the builder. The employer became insolvent. The builder claimed the retention money in priority to other creditors. It was held that there was no trust because no retention fund had been set up, so no identifiable assets had been impressed with a trust.

Answer

Mac-Jordan Construction Ltd v Brookmount Erostin Ltd [1992] BCLC 350 (CA)

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Mac-Jordan Construction Ltd v Brookmount Erostin Ltd [1992] BCLC 350 (CA). A building contract provided that part of the contract price would be retained and held by the employer as trustee for the builder. The employer became insolvent. The builder claime

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Question

Purchasers of bullion, who had paid for it but had not taken delivery, claimed rights to it on the insolvency of the company. Their claims were rejected, apart from a group whose bullion had been segregated. There was no trust for the others as there was no identifiable property on which any trust could attach. No particular bullion had been segregated for them.

Answer

Re Goldcorp Exchange Ltd [1995] AC 74

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Re Goldcorp Exchange Ltd [1995] AC 74 Purchasers of bullion, who had paid for it but had not taken delivery, claimed rights to it on the insolvency of the company. Their claims were rejected, apart from a group whose bulli

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Question

Where trust property is vested in the trustees, the trust is said to be ‘completely constituted’. It is then [...] (unless the trust specifically authorises revocation – which is rare). The beneficiaries have enforceable rights even though they may have given no consideration for the trust.

Answer

binding on the settlor, who cannot change their mind and revoke the trust

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Where trust property is vested in the trustees, the trust is said to be ‘completely constituted’. It is then binding on the settlor, who cannot change their mind and revoke the trust (unless the trust specifically authorises revocation – which is rare). The beneficiaries have enforceable rights even though they may have given no consideration for the trust.<

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Question

A deed is defined in the [ statute ] It must be:

Written;
Signed;
Witnessed by at least one independent witness;
Describe itself as a deed; and
Be delivered.

Answer

Property (Miscellaneous Provisions) Act 1989, s 1.

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A deed is defined in the Property (Miscellaneous Provisions) Act 1989, s 1. It must be: Written; Signed; Witnessed by at least one independent witness; Describe itself as a deed; and Be delivered.

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Question

A deed is defined in the Property (Miscellaneous Provisions) Act 1989, s 1. It must be: (5)

Answer

Written;
Signed;
Witnessed by at least one independent witness;
Describe itself as a deed; and
Be delivered.

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Question

Equitable Interests These are transferred by signed writing ([ statute ]).

Answer

LPA 1925, s 53(1)(c)

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Equitable Interests These are transferred by signed writing (LPA 1925, s 53(1)(c)).

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Question

Where a donor intends to make a gift during their lifetime but fails to vest the legal estate in the donee, the gift may still be perfected if legal title vests in the donee because they become personal representative to the donor (now deceased), provided the donor had a continuing intention to make the gift up until death.

Answer

Strong v Bird (1874) LR 18 Eq 315

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estate in the donee, the gift may still be perfected if legal title vests in the donee because they become personal representative to the donor (now deceased), provided the donor had a continuing intention to make the gift up until death. In Strong v Bird (1874) LR 18 Eq 315, Bird borrowed £1,100 from his stepmother who was living with him, paying £212 rent per quarter. The loan was to be repaid, over 11 quarters, by the stepmother deducting £100 per quarte

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Edited, memorised or added to reading queue

on 27-Jul-2016 (Wed)

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