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Flashcard 1378728152332

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#consideration #contract

Question

It is common textbook practice to contrast Stilk v Myrick with the not altogether dissimilar case of [ case ]. In the latter, it was not just two crew members who deserted; rather, there had been many desertions, leaving the ship's crew seriously depleted. The captain promised the remaining crew members £40 extra pay if they would complete the voyage. It was held that the promise was binding. It was dangerous to put to sea a ship so undermanned. The seamen were not obliged to do this under their contracts of service and were, therefore, free to enter into a fresh contract, which would include the extra remuneration, for the remaining part of the voyage.

Answer

Hartley v Ponsonby (1857) 7 E & B 872

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It is common textbook practice to contrast Stilk v Myrick with the not altogether dissimilar case of Hartley v Ponsonby (1857) 7 E & B 872. In the latter, it was not just two crew members who deserted; rather, there had been many desertions, leaving the ship's crew seriously depleted. The captain promised the remaining c

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Flashcard 1378729987340

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[ case ] FACTS: The captain of a ship promised his crew that, if they shared between them the work of two seamen who had deserted, the wages of the deserters would be shared out between them. HELD: The promise was not binding because the seamen gave no consideration: they were already contractually bound to do any extra work to complete the voyage.

Answer

Stilk v Myrick (1809) 2 Camp 317

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Stilk v Myrick (1809) 2 Camp 317 FACTS: The captain of a ship promised his crew that, if they shared between them the work of two seamen who had deserted, the wages of the deserters would be shared out between them. H

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Flashcard 1378731822348

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Question

Where an individual promises to resist a course of action which he never intended to pursue, no consideration will stem from the promise to forbear: [ case ].

Answer

Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd's Rep 98

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Where an individual promises to resist a course of action which he never intended to pursue, no consideration will stem from the promise to forbear: Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd's Rep 98.

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Flashcard 1378733657356

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Question

In [ case ], an uncle promised his nephew $5,000 if the nephew would refrain from 'drinking liquor, using tobacco, swearing and playing cards or billiards for money until he should become 21 years of age'. The nephew complied but the defendant, the uncle's executor, refused to make the payment. It was held that the promise was enforceable because the nephew had provided consideration by restricting his lawful freedom of action and there was no information as to how arduous that would have been for him.

Answer

Hamer v Sidway

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In Hamer v Sidway, an uncle promised his nephew $5,000 if the nephew would refrain from 'drinking liquor, using tobacco, swearing and playing cards or billiards for money until he should become 21 year

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Flashcard 1378735492364

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Question

In Hamer v Sidway, an uncle promised his nephew $5,000 if the nephew would refrain from 'drinking liquor, using tobacco, swearing and playing cards or billiards for money until he should become 21 years of age'. The nephew complied but the defendant, the uncle's executor, refused to make the payment. It was held that the promise was enforceable because the nephew had provided consideration by [...] and there was no information as to how arduous that would have been for him.

Answer

restricting his lawful freedom of action

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ards for money until he should become 21 years of age'. The nephew complied but the defendant, the uncle's executor, refused to make the payment. It was held that the promise was enforceable because the nephew had provided consideration by restricting his lawful freedom of action and there was no information as to how arduous that would have been for him.<body><html>

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Flashcard 1378736540940

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#certainties #equity #law

Question

Technical words are not required; ‘equity looks to the [...]’. The word ‘trust’ need not necessarily be used for a trust to be created.

In Re Kayford [1975] 1 All ER 604, Megarry J said (at page 607 A):

. . . it is well settled that a trust can be created without using the words ‘trust’ or ‘confidence’ or the like: the question is whether in substance a sufficient intention to create a trust has been manifested.

Answer

intent rather than the form

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Flashcard 1378737589516

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Question

Technical words are not required; ‘equity looks to the intent rather than the form’. The word ‘trust’ need not necessarily be used for a trust to be created.

In [ case ], Megarry J said (at page 607 A):

. . . it is well settled that a trust can be created without using the words ‘trust’ or ‘confidence’ or the like: the question is whether in substance a sufficient intention to create a trust has been manifested.

Answer

Re Kayford [1975] 1 All ER 604

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Technical words are not required; ‘equity looks to the intent rather than the form’. The word ‘trust’ need not necessarily be used for a trust to be created. In Re Kayford [1975] 1 All ER 604, Megarry J said (at page 607 A): . . . it is well settled that a trust can be created without using the words ‘trust’ or ‘confidence’ or the like: the question is whether i

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Flashcard 1378739424524

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Question

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 debtors of the company if not receiving their ordered goods. This will amount to [...]. 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

a trust of the moneys for the customers

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y 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

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Flashcard 1378740473100

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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 [...] 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

as much hers as his

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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 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 circu

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Flashcard 1378741521676

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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 [...], 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

half the money to be paid to her after his death

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tml>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 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 equiva

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Flashcard 1378742570252

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[ case ] The testatrix gave her residuary estate to Thomas Harrison ‘for his own use and benefit, as I have full confidence in him, that if I die without lawful issue he will . . . leave the bulk of my said residuary estate’ to specified persons. The use of the words ‘full confidence’ at that time would have been sufficient to create a trust. The court held the phrase ‘the bulk of my estate’ was not sufficiently certain for a trust, so Thomas Harrison took the property absolutely. A trust of an unidentified section of chattels (tangible property) will fail, whereas a trust of an unidentified section of intangible property, such as shares, is valid.

Answer

Palmer v Simmonds (1854) 2 Drew 221

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Palmer v Simmonds (1854) 2 Drew 221 The testatrix gave her residuary estate to Thomas Harrison ‘for his own use and benefit, as I have full confidence in him, that if I die without lawful issue he will . . . leave the b

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Flashcard 1378744405260

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Palmer v Simmonds (1854) 2 Drew 221 The testatrix gave her residuary estate to Thomas Harrison ‘for his own use and benefit, as I have full confidence in him, that if I die without lawful issue he will . . . leave the bulk of my said residuary estate’ to specified persons. The use of the words ‘full confidence’ at that time would have been sufficient to create a trust. The court held the phrase ‘the bulk of my estate’ was [...] for a trust, so Thomas Harrison took the property absolutely. A trust of an unidentified section of chattels (tangible property) will fail, whereas a trust of an unidentified section of intangible property, such as shares, is valid.

Answer

not sufficiently certain

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issue he will . . . leave the bulk of my said residuary estate’ to specified persons. The use of the words ‘full confidence’ at that time would have been sufficient to create a trust. The court held the phrase ‘the bulk of my estate’ was not sufficiently certain for a trust, so Thomas Harrison took the property absolutely. A trust of an unidentified section of chattels (tangible property) will fail, whereas a trust of an unidentified secti

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Flashcard 1378745453836

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Palmer v Simmonds (1854) 2 Drew 221 The testatrix gave her residuary estate to Thomas Harrison ‘for his own use and benefit, as I have full confidence in him, that if I die without lawful issue he will . . . leave the bulk of my said residuary estate’ to specified persons. The use of the words ‘full confidence’ at that time would have been sufficient to create a trust. The court held the phrase ‘the bulk of my estate’ was not sufficiently certain for a trust, so Thomas Harrison [...]. A trust of an unidentified section of chattels (tangible property) will fail, whereas a trust of an unidentified section of intangible property, such as shares, is valid.

Answer

took the property absolutely

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estate’ to specified persons. The use of the words ‘full confidence’ at that time would have been sufficient to create a trust. The court held the phrase ‘the bulk of my estate’ was not sufficiently certain for a trust, so Thomas Harrison took the property absolutely. A trust of an unidentified section of chattels (tangible property) will fail, whereas a trust of an unidentified section of intangible property, such as shares, is valid.</

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Flashcard 1378746502412

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In contrast, a trust of an unidentified section of intangible property is valid: In [ case ], who owned 950 of the 1000 issued shares of a private company, orally declared himself a trustee of 5 per cent of the issued shares. This 5 per cent amounted to 50 shares. This was held to be sufficiently certain even though no particular 50 shares had been identified as subject to the trust, so it was unclear which 900 were retained by Moss. Colin Rimer QC, the judge at first instance, thought it significant that the subject-matter of the trust was intangible, since tangible assets, although apparently similar, may have distinguishing characteristics, for example some bottles of wine might have deteriorated. Intangible property, however, is all the same, provided the shares are of the same class, so there is no need to identify which 50 shares are being held on trust. Whilst Dillon LJ in the Court of Appeal stated that all the shares were identical, he held that the inter vivos trust was valid because there would have been a valid testamentary trust if Moss had died, by will leaving 50 shares for X and the remaining 900 for Y. This analogy is, however, erroneous because such a testator has clearly divested themself of all beneficial ownership in the 950 shares in favour of X and Y between them absolutely entitled to the 950 shares, but Moss was claiming he had not yet divested himself of any identifiable beneficial interest in the shares, To do this he would have had to send his certificate for 950 shares to the company secretary to issue two certificates to Moss, one for 900 and one for 50 so that the latter could then be held on trust for Hunter.

Answer

Hunter v Moss

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In contrast, a trust of an unidentified section of intangible property is valid: In Hunter v Moss, who owned 950 of the 1000 issued shares of a private company, orally declared himself a trustee of 5 per cent of the issued shares. This 5 per cent amounted to 50 shares. This was h

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Flashcard 1378748337420

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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 bullion had been segregated. There was no trust for the others as [...]. No particular bullion had been segregated for them.

Answer

there was no identifiable property on which any trust could attach

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hasers 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. <body><html>

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Flashcard 1378749385996

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[ case ] In this case, a testator devised his houses in Southwold to trustees on trust for his widow for life and after her death in trust to convey to his daughter Maria one of the houses, whichever she [i.e. Maria] should choose, and to convey ‘all my other houses’ to his daughter Charlotte. Maria died in the testator’s lifetime and so could not choose any particular house. Consequently the trust in favour of Charlotte was void as it was uncertain what property the trust applied to.

Answer

Boyce v Boyce (1849) 16 Sim 476

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Boyce v Boyce (1849) 16 Sim 476 In this case, a testator devised his houses in Southwold to trustees on trust for his widow for life and after her death in trust to convey to his daughter Maria one of the houses, whi

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Flashcard 1378751221004

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In [ case ], the House of Lords relaxed the test for discretionary trusts, adopting the less strict test which applies to mere powers of appointment. Lord Wilberforce deliberately characterised the powers of trustees of a discretionary trust as ‘trust powers’ because the trustees were under a duty to exercise those powers, while the trustees were under no such duty in respect of mere powers of appointment. Trust powers and powers of appointment were both powers and so should be subject to the same test for certainty. Note; that in a discretionary trust deed the trustees often have a discretionary mere power of appointment (e.g. in favour of charity or another branch of the settlor’s family) that they may or may not exercise as they see fit from time to time, as well as their basic discretionary trust power that they must exercise to distribute income or capital to such beneficiaries as they choose, if they do not choose to exercise their mere power of appointment

Answer

McPhail v Doulton [1971] AC 424

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In McPhail v Doulton [1971] AC 424, the House of Lords relaxed the test for discretionary trusts, adopting the less strict test which applies to mere powers of appointment. Lord Wilberforce deliberately characterised

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Flashcard 1378753056012

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It is important to decide whether a particular gift is a discretionary trust or a gift subject to a condition precedent, as shown by Re Barlow’s WT [1979] 1 All ER 296 . Here the testatrix died owning a large collection of valuable pictures. Some of these were given to her executor to hold on trust for sale subject to a direction that ‘all or any member of my family and any friends of mine who wish to do so [may] purchase any of such pictures’ at the lower of probate value or 1970 catalogue price. This was held to be a [...], not a discretionary trust.

Answer

gift subject to a condition precedent

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hold on trust for sale subject to a direction that ‘all or any member of my family and any friends of mine who wish to do so [may] purchase any of such pictures’ at the lower of probate value or 1970 catalogue price. This was held to be a gift subject to a condition precedent, not a discretionary trust.<body><html>

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Flashcard 1378754104588

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The Diceyan view of parliamentary sovereignty rests on the notion that [...], so neither the manner in which legislation is passed, nor the substance of the law, should be reviewable by the courts.

Answer

Acts of Parliament are the highest form of law

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The Diceyan view of parliamentary sovereignty rests on the notion that Acts of Parliament are the highest form of law, so neither the manner in which legislation is passed, nor the substance of the law, should be reviewable by the courts.

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Flashcard 1378755153164

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[ case ] The Acts of Union between England and Scotland contained some fundamental provisions relating to the preservation of certain aspects of Scottish law and institutions, for example that alterations in private law must be 'for the evident utility of the subjects in Scotland' (article XVIII). This case involved a challenge to a European Community common fisheries policy measure because it gave access to Scottish waters. The complainant argued that this was a change in private law which was not for the 'evident utility' of Scots, as required by the Acts of Union. The court held that access to fisheries was not 'private law' and therefore the measure could not be challenged. However, Lord Keith did not rule out an argument of the kind put forward in situation where it might be more relevant on the facts. The arguments in both the above cases were quite inconclusive. Dicey certainly viewed the Acts of Union as having no higher legal status than any other Act and it is true to say that the UK Parliament has altered many of the principles contained in both the Scottish and Irish Acts of Union. Furthermore, the judicial remarks in McCormick and Gibson were obiter. No Scottish court has actually declared an Act of Parliament to be invalid on the basis that it is inconsistent with the Act of Union.

Answer

Gibson v Lord Advocate [1975] SLT 134

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Gibson v Lord Advocate [1975] SLT 134 The Acts of Union between England and Scotland contained some fundamental provisions relating to the preservation of certain aspects of Scottish law and institutions, for example that al

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Flashcard 1378756988172

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One of the most heated debates in recent years occurred during the passing of the Hunting Act 2004. This Act made the hunting of wild animals, and especially foxes, by dogs unlawful. At issue in [ case ] was the validity of the Hunting Act itself. The Act was passed without the consent of the House of Lords, using the accelerated procedure created by the Parliament Acts of 1911 and 1949.

Answer

R (on application of Jackson) v Attorney General [2005] UKHL 56

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One of the most heated debates in recent years occurred during the passing of the Hunting Act 2004. This Act made the hunting of wild animals, and especially foxes, by dogs unlawful. At issue in R (on application of Jackson) v Attorney General [2005] UKHL 56 was the validity of the Hunting Act itself. The Act was passed without the consent of the House of Lords, using the accelerated procedure created by the Parliament Acts of 1911 and 194

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Flashcard 1378758823180

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Equality before the Law This idea can be split into two aspects: that [...], and that everyone is subject to the ordinary courts of the land.

Answer

everyone is subject to the same law

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Equality before the Law This idea can be split into two aspects: that everyone is subject to the same law, and that everyone is subject to the ordinary courts of the land.

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Flashcard 1378759871756

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Equality before the Law This idea can be split into two aspects: that everyone is subject to the same law, and that [...].

Answer

everyone is subject to the ordinary courts of the land

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Equality before the Law This idea can be split into two aspects: that everyone is subject to the same law, and that everyone is subject to the ordinary courts of the land.

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Flashcard 1378760920332

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More recently, the Jobseekers (Back to Work Schemes) Act 2013 has also overridden the effect of the Court of Appeal's decision in [ case ]. This had required the Department of Work and Pensions to pay a rebate to claimants whose Jobseekers' Allowance had been withdrawn when they refused to take part in an unpaid back-to-work 'training scheme'

Answer

R (Reilly) v Secretary of State for Work and Pensions [2013] EWCA Civ 66

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More recently, the Jobseekers (Back to Work Schemes) Act 2013 has also overridden the effect of the Court of Appeal's decision in R (Reilly) v Secretary of State for Work and Pensions [2013] EWCA Civ 66. This had required the Department of Work and Pensions to pay a rebate to claimants whose Jobseekers' Allowance had been withdrawn when they refused to take part in an unpaid back-to-

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Flashcard 1378762755340

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More recently, the [ statute ] has also overridden the effect of the Court of Appeal's decision in R (Reilly) v Secretary of State for Work and Pensions [2013] EWCA Civ 66. This had required the Department of Work and Pensions to pay a rebate to claimants whose Jobseekers' Allowance had been withdrawn when they refused to take part in an unpaid back-to-work 'training scheme'

Answer

Jobseekers (Back to Work Schemes) Act 2013

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Flashcard 1378764590348

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The Freedom of Information Act 2000 created new rights of access to information and was intended to generate greater openness in government. It superseded the Code of Practice on Access to Government Information, which came into effect in 1994 (with a revised edition in 1997). It commits departments and public and governmental bodies to publish information, but does not confer an entitlement. The Freedom of Information Act covers a range of public authorities, including government departments, the National Assembly for Wales, the Northern Ireland Assembly, local government and National Health Service. An Information Commissioner, to whom the public has direct access, regulates the provisions in the Act. The Act permits people to apply for access to documents, or copies of documents, as well as the information itself. A very valuable insight into the role of the Information Commissioner and the statutory framework regulating the application of the Act can be gained from reading the leading case of R [ case ] relating to the request for disclosure of Prince Charles’s letters to ministers.

Answer

(Evans) v Attorney General [2015] UKSC 21

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ies of documents, as well as the information itself. A very valuable insight into the role of the Information Commissioner and the statutory framework regulating the application of the Act can be gained from reading the leading case of R (Evans) v Attorney General [2015] UKSC 21 relating to the request for disclosure of Prince Charles’s letters to ministers. <body><html>

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Flashcard 1378766425356

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The classic doctrine of individual ministerial responsibility required ministers to [...].

Answer

accept responsibility and, if necessary, resign for any errors and failures of their departments

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The classic doctrine of individual ministerial responsibility required ministers to accept responsibility and, if necessary, resign for any errors and failures of their departments.

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Standing committees in the House of Commons are not to be confused with select committees. They are of a temporary nature, being established to [...].

Answer

examine in detail a bill at the committee stage of its formal passage through Parliament

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Standing committees in the House of Commons are not to be confused with select committees. They are of a temporary nature, being established to examine in detail a bill at the committee stage of its formal passage through Parliament.

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There is now a very strong constitutional convention that the executive exercises the monarch's powers. This is sometimes phrased as [...].

Answer

the Queen acting on the advice of the Prime Minister

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There is now a very strong constitutional convention that the executive exercises the monarch's powers. This is sometimes phrased as the Queen acting on the advice of the Prime Minister.

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There is now a very strong constitutional convention that [...]. This is sometimes phrased as the Queen acting on the advice of the Prime Minister.

Answer

the executive exercises the monarch's powers

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There is now a very strong constitutional convention that the executive exercises the monarch's powers. This is sometimes phrased as the Queen acting on the advice of the Prime Minister.

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The term 'royal prerogative' refers to the [...], as distinct from those conferred and exercised under statute. In this context, the term 'the Crown' refers to the executive, not simply the monarch. This is because it is now highly unlikely that the royal prerogative will be exercised in any way other than by the Executive on behalf of the monarch.

Answer

common law powers of the ‘Crown’

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The term 'royal prerogative' refers to the common law powers of the ‘Crown’, as distinct from those conferred and exercised under statute. In this context, the term 'the Crown' refers to [...]. This is because it is now highly unlikely that the royal prerogative will be exercised in any way other than by the Executive on behalf of the monarch.

Answer

the executive, not simply the monarch

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The term 'royal prerogative' refers to the common law powers of the ‘Crown’, as distinct from those conferred and exercised under statute. In this context, the term 'the Crown' refers to the executive, not simply the monarch. This is because it is now highly unlikely that the royal prerogative will be exercised in any way other than by the Executive on behalf of the monarch.

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With regard to absolute powers, the courts established that:
(a) They were inseparable from the Crown: [ case ].
(b) Even though absolute in one sense, they were still limited by law in that 'the King hath no prerogative but that which the law of the land allows him': Case of Proclamations (1611) 12 Co Rep 74.

Answer

Case of King's Prerogative in Saltpetre (1607)

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With regard to absolute powers, the courts established that: (a) They were inseparable from the Crown: Case of King's Prerogative in Saltpetre (1607). (b) Even though absolute in one sense, they were still limited by law in that 'the King hath no prerogative but that which the law of the land allows him': Case of Proclamations (

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With regard to absolute powers, the courts established that:
(a) They were inseparable from the Crown: Case of King's Prerogative in Saltpetre (1607).
(b) Even though absolute in one sense, they were still limited by law in that 'the King hath no prerogative but that which the law of the land allows him': [ case ].

Answer

Case of Proclamations (1611) 12 Co Rep 74

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were inseparable from the Crown: Case of King's Prerogative in Saltpetre (1607). (b) Even though absolute in one sense, they were still limited by law in that 'the King hath no prerogative but that which the law of the land allows him': Case of Proclamations (1611) 12 Co Rep 74.<body><html>

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Answer

that which the law of the land allows him

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, the courts established that: (a) They were inseparable from the Crown: Case of King's Prerogative in Saltpetre (1607). (b) Even though absolute in one sense, they were still limited by law in that 'the King hath no prerogative but that which the law of the land allows him': Case of Proclamations (1611) 12 Co Rep 74.<body><html>

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the constitutional arrangements following the [ case ] clearly indicate that the Crown has no powers that cannot be taken away by Parliament and a number of cases (see below) have confirmed the superiority of statute over the prerogative.

Answer

Bill of Rights 1689

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the constitutional arrangements following the Bill of Rights 1689 clearly indicate that the Crown has no powers that cannot be taken away by Parliament and a number of cases (see below) have confirmed the superiority of statute over the prerogative.<

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the constitutional arrangements following the Bill of Rights 1689 clearly indicate that the Crown has no powers that [...] and a number of cases (see below) have confirmed the superiority of statute over the prerogative.

Answer

cannot be taken away by Parliament

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the constitutional arrangements following the Bill of Rights 1689 clearly indicate that the Crown has no powers that cannot be taken away by Parliament and a number of cases (see below) have confirmed the [...].

Answer

superiority of statute over the prerogative

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html>the constitutional arrangements following the Bill of Rights 1689 clearly indicate that the Crown has no powers that cannot be taken away by Parliament and a number of cases (see below) have confirmed the superiority of statute over the prerogative.<html>

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In the 17th century, the courts drew a distinction between 'absolute' and 'ordinary' powers of the monarch ([ case ]). The absolute powers were those that were almost entirely discretionary and largely unregulated by binding principle, such as the conduct of foreign policy or the pardoning of convicted criminals. The ordinary powers were exercised in accordance with established principle, practice and procedure, e.g. powers concerning the administration of justice.

Answer

Bate's Case (1606) 2 St Tr 371

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In the 17th century, the courts drew a distinction between 'absolute' and 'ordinary' powers of the monarch (Bate's Case (1606) 2 St Tr 371). The absolute powers were those that were almost entirely discretionary and largely unregulated by binding principle, such as the conduct of foreign policy or the pardoning of convic

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In the 17th century, the courts drew a distinction between 'absolute' and 'ordinary' powers of the monarch (Bate's Case (1606) 2 St Tr 371). The absolute powers were those that [...], such as the conduct of foreign policy or the pardoning of convicted criminals. The ordinary powers were exercised in accordance with established principle, practice and procedure, e.g. powers concerning the administration of justice.

Answer

were almost entirely discretionary and largely unregulated by binding principle

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In the 17th century, the courts drew a distinction between 'absolute' and 'ordinary' powers of the monarch (Bate's Case (1606) 2 St Tr 371). The absolute powers were those that were almost entirely discretionary and largely unregulated by binding principle, such as the conduct of foreign policy or the pardoning of convicted criminals. The ordinary powers were [...], e.g. powers concerning the administration of justice.

Answer

exercised in accordance with established principle, practice and procedure

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1606) 2 St Tr 371). The absolute powers were those that were almost entirely discretionary and largely unregulated by binding principle, such as the conduct of foreign policy or the pardoning of convicted criminals. The ordinary powers were exercised in accordance with established principle, practice and procedure, e.g. powers concerning the administration of justice.<body><html>

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The control of the armed forces has traditionally been seen as a matter that cannot be challenged in court: see [ case ].

Answer

Chandler v DPP [1964] AC 763

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The control of the armed forces has traditionally been seen as a matter that cannot be challenged in court: see Chandler v DPP [1964] AC 763.

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In [ case ], CND sought a declaration that U.N. Resolution 1441 did not authorise military action against Iraq. Simon Brown LJ gave the leading judgment and stated that it was: 'accept(ed) that the decision to take military action is beyond the court's purview'. Decisions that involve the 'defence of the realm' in the sense of declaring war or deploying armed forces are matters exclusively for the executive. In such situations, the consequences of executive action can only be judged politically and not legally through the courts.

Answer

R (on the application of Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002) EWHC 2759 QB

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In R (on the application of Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002) EWHC 2759 QB, CND sought a declaration that U.N. Resolution 1441 did not authorise military action against Iraq. Simon Brown LJ gave the leading judgment and stated that it was: 'accept(ed) that the

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In R (on the application of Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002) EWHC 2759 QB, CND sought a declaration that U.N. Resolution 1441 did not authorise military action against Iraq. Simon Brown LJ gave the leading judgment and stated that it was: '[...]'. Decisions that involve the 'defence of the realm' in the sense of declaring war or deploying armed forces are matters exclusively for the executive. In such situations, the consequences of executive action can only be judged politically and not legally through the courts.

Answer

accept(ed) that the decision to take military action is beyond the court's purview

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aign for Nuclear Disarmament) v Prime Minister of the UK (2002) EWHC 2759 QB, CND sought a declaration that U.N. Resolution 1441 did not authorise military action against Iraq. Simon Brown LJ gave the leading judgment and stated that it was: 'accept(ed) that the decision to take military action is beyond the court's purview'. Decisions that involve the 'defence of the realm' in the sense of declaring war or deploying armed forces are matters exclusively for the executive. In such situations, the consequenc

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In R (on the application of Campaign for Nuclear Disarmament) v Prime Minister of the UK (2002) EWHC 2759 QB, CND sought a declaration that U.N. Resolution 1441 did not authorise military action against Iraq. Simon Brown LJ gave the leading judgment and stated that it was: 'accept(ed) that the decision to take military action is beyond the court's purview'. Decisions that involve the 'defence of the realm' in the sense of declaring war or deploying armed forces are matters exclusively for the executive. In such situations, the consequences of executive action can only be judged [...].

Answer

politically and not legally through the courts

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court's purview'. Decisions that involve the 'defence of the realm' in the sense of declaring war or deploying armed forces are matters exclusively for the executive. In such situations, the consequences of executive action can only be judged politically and not legally through the courts.<body><html>

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In [ case ], Lord Reid stated: 'the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown …' (at 791).

Answer

Chandler v Director of Public Prosecutions [1964] AC 777

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In Chandler v Director of Public Prosecutions [1964] AC 777, Lord Reid stated: 'the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown …' (at 791).

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In Chandler v Director of Public Prosecutions [1964] AC 777, [...] stated: 'the disposition and armament of the armed forces are and for centuries have been within the exclusive discretion of the Crown …' (at 791).

Answer

Lord Reid

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In [ case ], installations owned by the oil company in Burma (then a British colony) had been destroyed during World War Two on the orders of the commander of the British forces, to prevent them falling into the hands of the Japanese. By a 3-2 majority the House of Lords held that compensation was payable to the company, there being no general rule that the prerogative could be exercised without compensation. Lord Reid stated: '[T]he prerogative certainly covers doing all those things in an emergency which are necessary for the conduct of war.'

Answer

Burmah Oil Company Ltd v Lord Advocate [1965] AC 75

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In Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, installations owned by the oil company in Burma (then a British colony) had been destroyed during World War Two on the orders of the commander of the British forces, to prevent them fa

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In Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, installations owned by the oil company in Burma (then a British colony) had been destroyed during World War Two on the orders of the commander of the British forces, to prevent them falling into the hands of the Japanese. By a 3-2 majority the House of Lords held that compensation was payable to the company, there being no general rule that the prerogative could be exercised without compensation. Lord Reid stated: '[T]he prerogative certainly covers doing all those things in an emergency which are [...].'

Answer

necessary for the conduct of war

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eld that compensation was payable to the company, there being no general rule that the prerogative could be exercised without compensation. Lord Reid stated: '[T]he prerogative certainly covers doing all those things in an emergency which are necessary for the conduct of war.'<body><html>

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The prerogative of mercy. The Home Secretary (on behalf of the Crown) may pardon offences of a public nature prosecuted by the Crown. This particular prerogative has been held by the courts to be non-justiciable in the past. However, new cases cast doubt on this view. In [ case ], the Court of Appeal held that the courts had no jurisdiction to inquire whether or not the Home Secretary had been negligent in the exercise of this prerogative. In De Freitas v Benny [1976] AC 239, Lord Diplock stated in the Privy Council (at 247): 'Mercy is not the subject of legal rights. It begins where legal rights end'. The decision in R v Secretary of State for the Home Department ex parte Bentley [1994] QB 349 has modified the position, however.

Answer

Hanratty v Lord Butler of Saffron Walden (1971) 115 SJ 386

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Secretary (on behalf of the Crown) may pardon offences of a public nature prosecuted by the Crown. This particular prerogative has been held by the courts to be non-justiciable in the past. However, new cases cast doubt on this view. In Hanratty v Lord Butler of Saffron Walden (1971) 115 SJ 386, the Court of Appeal held that the courts had no jurisdiction to inquire whether or not the Home Secretary had been negligent in the exercise of this prerogative. In De Freitas v Benn

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The prerogative of mercy. The Home Secretary (on behalf of the Crown) may pardon offences of a public nature prosecuted by the Crown. This particular prerogative has been held by the courts to be non-justiciable in the past. However, new cases cast doubt on this view. In Hanratty v Lord Butler of Saffron Walden (1971) 115 SJ 386, the Court of Appeal held that the courts had no jurisdiction to inquire whether or not [...]. In De Freitas v Benny [1976] AC 239, Lord Diplock stated in the Privy Council (at 247): 'Mercy is not the subject of legal rights. It begins where legal rights end'. The decision in R v Secretary of State for the Home Department ex parte Bentley [1994] QB 349 has modified the position, however.

Answer

the Home Secretary had been negligent in the exercise of this prerogative

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he courts to be non-justiciable in the past. However, new cases cast doubt on this view. In Hanratty v Lord Butler of Saffron Walden (1971) 115 SJ 386, the Court of Appeal held that the courts had no jurisdiction to inquire whether or not the Home Secretary had been negligent in the exercise of this prerogative. In De Freitas v Benny [1976] AC 239, Lord Diplock stated in the Privy Council (at 247): 'Mercy is not the subject of legal rights. It begins where legal rights end'. The decision in

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The prerogative of mercy. The Home Secretary (on behalf of the Crown) may pardon offences of a public nature prosecuted by the Crown. This particular prerogative has been held by the courts to be non-justiciable in the past. However, new cases cast doubt on this view. In Hanratty v Lord Butler of Saffron Walden (1971) 115 SJ 386, the Court of Appeal held that the courts had no jurisdiction to inquire whether or not the Home Secretary had been negligent in the exercise of this prerogative. In [ case ], Lord Diplock stated in the Privy Council (at 247): 'Mercy is not the subject of legal rights. It begins where legal rights end'. The decision in R v Secretary of State for the Home Department ex parte Bentley [1994] QB 349 has modified the position, however.

Answer

De Freitas v Benny [1976] AC 239

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this view. In Hanratty v Lord Butler of Saffron Walden (1971) 115 SJ 386, the Court of Appeal held that the courts had no jurisdiction to inquire whether or not the Home Secretary had been negligent in the exercise of this prerogative. In De Freitas v Benny [1976] AC 239, Lord Diplock stated in the Privy Council (at 247): 'Mercy is not the subject of legal rights. It begins where legal rights end'. The decision in R v Secretary of State for the Home D

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The grant and revocation of passports is an exercise of prerogative power. A passport was defined in [ case ] by Lord Alvestone CJ as:

'[A] document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries.'

As regards judicial review of a decision to refuse to issue a passport, see R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] 1 All ER 655.

Answer

R v Brailsford [1905] 2 KB 730

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The grant and revocation of passports is an exercise of prerogative power. A passport was defined in R v Brailsford [1905] 2 KB 730 by Lord Alvestone CJ as: '[A] document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented t

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The making and ratification of treaties. In effect this has been seen as a contract between states, which does not generally require the approval of Parliament: see [ case ].

Answer

Attorney General for Canada v Attorney General for Ontario [1937] AC 326

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The making and ratification of treaties. In effect this has been seen as a contract between states, which does not generally require the approval of Parliament: see Attorney General for Canada v Attorney General for Ontario [1937] AC 326.

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However, certain actions claimed to be carried out under the prerogative of 'defence of the realm' may be reviewable. The Supreme Court, in the conjoined appeals of [ case ], held by a majority that the doctrine of combat immunity should be construed narrowly. The claimants in this case, representing UK soldiers killed on active service in Iraq, were claiming, inter alia, that the Ministry of Defence had been negligent in the provision of equipment and training. The court recognised that actions and decisions taken by military commanders in relation to military engagements should not be subject to judicial challenge, because of the danger of 'judicialising warfare'. It did not accept, however, the Ministry's arguments that immunity should apply in relation to failings that were remote from the pressures and uncertainties of the battlefield.

Answer

Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41

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However, certain actions claimed to be carried out under the prerogative of 'defence of the realm' may be reviewable. The Supreme Court, in the conjoined appeals of Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, held by a majority that the doctrine of combat immunity should be construed narrowly. The claimants in this case, representing UK soldiers killed on active service in Iraq, were clai

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However, certain actions claimed to be carried out under the prerogative of 'defence of the realm' may be reviewable. The Supreme Court, in the conjoined appeals of Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41, held by a majority that the doctrine of combat immunity should be construed narrowly. The claimants in this case, representing UK soldiers killed on active service in Iraq, were claiming, inter alia, that the Ministry of Defence had been negligent in the provision of equipment and training. The court recognised that actions and decisions taken by military commanders in relation to military engagements should not be subject to judicial challenge, because of the danger of 'judicialising warfare'. It did not accept, however, the Ministry's arguments that immunity should apply in relation to [...].

Answer

failings that were remote from the pressures and uncertainties of the battlefield

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ry commanders in relation to military engagements should not be subject to judicial challenge, because of the danger of 'judicialising warfare'. It did not accept, however, the Ministry's arguments that immunity should apply in relation to failings that were remote from the pressures and uncertainties of the battlefield.<body><html>

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in the case of [ case ] the Court of Appeal confirmed that the UK's military intervention in Iraq had been a lawful exercise of the prerogative power held by the executive. The wider issue relating to the legality of the war in Iraq was therefore not relevant to the appellants' defence. (They had been prosecuted for conspiracy to cause criminal damage at a military air base).

Answer

R v Jones (Margaret) & Others, [2004] EWCA Crim 1981

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in the case of R v Jones (Margaret) & Others, [2004] EWCA Crim 1981 the Court of Appeal confirmed that the UK's military intervention in Iraq had been a lawful exercise of the prerogative power held by the executive. The wider issue relating to the le

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Parliament can legislate to modify, abolish, or simply put on a statutory footing any particular prerogative power. For example, the historical prerogative power to take and destroy private property in times of emergency has been modified by the [ statute ].

Answer

Civil Contingencies Act 2004

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ament can legislate to modify, abolish, or simply put on a statutory footing any particular prerogative power. For example, the historical prerogative power to take and destroy private property in times of emergency has been modified by the Civil Contingencies Act 2004.<body><html>

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Parliament can legislate to modify, abolish, or simply put on a statutory footing any particular prerogative power. For example, the historical prerogative power to [...] has been modified by the Civil Contingencies Act 2004.

Answer

take and destroy private property in times of emergency

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Parliament can legislate to modify, abolish, or simply put on a statutory footing any particular prerogative power. For example, the historical prerogative power to take and destroy private property in times of emergency has been modified by the Civil Contingencies Act 2004.

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The previous position in English law, as apparently confirmed by the House of Lords in Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692, was that [...]. The European Court of Justice in Factortame [1990] ECR I-2433, however, took a different view based on European Community law, and the House of Lords in M v Home Office seem to have approved of this approach.

Answer

injunctions were not available against the Crown

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The previous position in English law, as apparently confirmed by the House of Lords in Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692, was that injunctions were not available against the Crown. The European Court of Justice in Factortame [1990] ECR I-2433, however, took a different view based on European Community law, and the House of Lords in M v Home Office seem to have

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The previous position in English law, as apparently confirmed by the House of Lords in [ case ], was that injunctions were not available against the Crown. The European Court of Justice in Factortame [1990] ECR I-2433, however, took a different view based on European Community law, and the House of Lords in M v Home Office seem to have approved of this approach.

Answer

Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692

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This area of immunity was an important consideration in the decision of the House of Lords in [ case ], where the Home Office had given an undertaking to the court that an asylum seeker would not be deported before his case had been fully heard, but failed to honour its assurance. The House of Lords held that, in judicial review proceedings against ministers of the Crown acting in their official capacity, the court could grant interim injunctions against ministers. Furthermore, the court had jurisdiction to make a finding of contempt against them or their departments.

Answer

M v Home Office [1993] 3 All ER 537

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This area of immunity was an important consideration in the decision of the House of Lords in M v Home Office [1993] 3 All ER 537, where the Home Office had given an undertaking to the court that an asylum seeker would not be deported before his case had been fully heard, but failed to honour its assurance. The

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There are certain crown immunities from litigation. These include the fact that the Crown is not directly subject to the contempt jurisdiction and that the sovereign has personal immunity from [...].

Answer

prosecution or being sued for a wrongful act

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There are certain crown immunities from litigation. These include the fact that the Crown is not directly subject to the contempt jurisdiction and that the sovereign has personal immunity from prosecution or being sued for a wrongful act.

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In [ case ] it was held that Parliament may abolish or modify the prerogative by express words or by 'necessary inducement'.

Answer

De Morgan v Director of Social Welfare, [1982] 2 WLR 407

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In De Morgan v Director of Social Welfare, [1982] 2 WLR 407 it was held that Parliament may abolish or modify the prerogative by express words or by 'necessary inducement'.

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In De Morgan v Director of Social Welfare, [1982] 2 WLR 407 it was held that Parliament may [...] by express words or by 'necessary inducement'.

Answer

abolish or modify the prerogative

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In De Morgan v Director of Social Welfare, [1982] 2 WLR 407 it was held that Parliament may abolish or modify the prerogative by express words or by 'necessary inducement'.

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In De Morgan v Director of Social Welfare, [1982] 2 WLR 407 it was held that Parliament may abolish or modify the prerogative by [...].

Answer

express words or by 'necessary inducement'

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In De Morgan v Director of Social Welfare, [1982] 2 WLR 407 it was held that Parliament may abolish or modify the prerogative by express words or by 'necessary inducement'.

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In [ case ], De Keyser's Hotel was required for use by the War Office during the First World War. When negotiations over the amount of rent to be paid broke down, the Army Council took possession compulsorily, under the Defence of the Realm Regulations, which gave the right to full compensation. However, it was later argued by the Army Council that the seizure of property was alternatively authorised by the prerogative, under which there was no right to full compensation. The House of Lords held that the Defence of the Realm Regulations governing the assessment of compensation must be observed. It reasoned that, assuming the prerogative power in question did in fact exist, the Crown could not simply choose whether to act under that power or under statutory authority. Lord Atkinson summed up the position as follows:

'[W]hen a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance.'

Answer

Attorney-General v De Keyser's Hotel Ltd [1920] AC 508

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In Attorney-General v De Keyser's Hotel Ltd [1920] AC 508, De Keyser's Hotel was required for use by the War Office during the First World War. When negotiations over the amount of rent to be paid broke down, the Army Council took possession c

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There may be situations where statutory powers, while dealing with the same general area as the prerogative, do not expressly override it. In such instances, the controversial case of [ case ] suggests that the prerogative power may still apply, if exercised for the public good (and not to deprive individuals of protection conferred by statute).

Answer

R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1988] 1 All ER 556

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There may be situations where statutory powers, while dealing with the same general area as the prerogative, do not expressly override it. In such instances, the controversial case of R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1988] 1 All ER 556 suggests that the prerogative power may still apply, if exercised for the public good (and not to deprive individuals of protection conferred by statute).

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No new prerogatives can come into existence. In [ case ], the BBC claimed that the Crown had a monopoly of broadcasting, exercised through the BBC, which was therefore entitled to Crown exemption from income tax. This contention was unsuccessful in the Court of Appeal. Lord Diplock stated: 'It is 350 years and a civil war too late for the Queen's courts to broaden the prerogative.' Thus, any prerogative power must originate from the powers possessed by the monarch before the advent of the modern parliamentary system, effectively 1688. But one should be aware of the way in which the courts can interpret the precise scope or reach of prerogative powers. See, for example, R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1988] 1 All ER 556.

Answer

BBC v Johns [1965] Ch 32

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

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No new prerogatives can come into existence. In BBC v Johns [1965] Ch 32, the BBC claimed that the Crown had a monopoly of broadcasting, exercised through the BBC, which was therefore entitled to Crown exemption from income tax. This contention was unsuccessful in the Court of Appeal. Lord Diplock stated: 'It is 350 years and a civil war too late for the Queen's courts to broaden the prerogative.' Thus, any prerogative power must originate from [...], effectively 1688. But one should be aware of the way in which the courts can interpret the precise scope or reach of prerogative powers. See, for example, R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1988] 1 All ER 556.

Answer

the powers possessed by the monarch before the advent of the modern parliamentary system

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on from income tax. This contention was unsuccessful in the Court of Appeal. Lord Diplock stated: 'It is 350 years and a civil war too late for the Queen's courts to broaden the prerogative.' Thus, any prerogative power must originate from the powers possessed by the monarch before the advent of the modern parliamentary system, effectively 1688. But one should be aware of the way in which the courts can interpret the precise scope or reach of prerogative powers. See, for example, R v Secretary of State for

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No new prerogatives can come into existence. In BBC v Johns [1965] Ch 32, the BBC claimed that the Crown had a monopoly of broadcasting, exercised through the BBC, which was therefore entitled to Crown exemption from income tax. This contention was unsuccessful in the Court of Appeal. Lord Diplock stated: 'It is 350 years and a civil war too late for the Queen's courts to broaden the prerogative.' Thus, any prerogative power must originate from the powers possessed by the monarch before the advent of the modern parliamentary system, effectively 1688. But one should be aware of the way in which the courts can interpret the precise scope or reach of prerogative powers. See, for example, [ case ].

Answer

R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1988] 1 All ER 556

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owers possessed by the monarch before the advent of the modern parliamentary system, effectively 1688. But one should be aware of the way in which the courts can interpret the precise scope or reach of prerogative powers. See, for example, R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1988] 1 All ER 556.<body><html>

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[ case ], can be seen as an extension of the De Keyser principle. Here, the relationship between statutory and prerogative powers was again considered when a number of trade unions challenged a decision taken by the Home Secretary using prerogative power.

Answer

R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 All ER 244

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R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 All ER 244, can be seen as an extension of the De Keyser principle. Here, the relationship between statutory and prerogative powers was again considered when a number of trade unions challenged

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In [ case ], a British citizen residing in Spain, whose passport was about to expire, applied to the British Embassy in Madrid for a new one. The applicant was informed that a passport would not be issued, because a warrant for his arrest had been issued in the UK; it was the policy of the Secretary of State not to issue passports in such circumstances. The Court of Appeal accepted that the issuing of a passport is carried out under a prerogative power. However, following GCHQ, the court maintained that the reviewability in practice of the exercise of a prerogative power depended upon the subject matter of the prerogative in question. The Court of Appeal was not prepared to accept that the issuing of passports came under that form of prerogative power, involving foreign affairs, which was inherently non- justiciable. The Crown and the Royal Prerogative

Taylor LJ stated:

'The majority of their Lordships [in GCHQ] indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving Parliament … Clearly those matters … are not justiciable. But the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision, affecting the rights of individuals and their freedom to travel.'

Although the court found that the decision whether or not to issue the applicant with a passport was one that was susceptible in principle to judicial review, they ultimately held that the Secretary of State's policy was not unlawful because, having properly followed the policy and taken all relevant matters into consideration, he was entitled to come to the decision that he had.

Answer

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett, [1989] QB 811

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In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett, [1989] QB 811, a British citizen residing in Spain, whose passport was about to expire, applied to the British Embassy in Madrid for a new one. The applicant was informed that a passport would not be

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In [ case ], the Court of Appeal reviewed the legality of the rule prohibiting homosexuals from serving in the armed forces. (Notethat the ban is no longer applied since the decision of the European Court of Human Rights in Smith and Grady v UK (2000) 29 EHRR 493, where the court held that the ban violated the European Convention on Human Rights, art 8.)

Answer

R v Ministry of Defence, ex parte Smith [1996] QB 517

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In R v Ministry of Defence, ex parte Smith [1996] QB 517, the Court of Appeal reviewed the legality of the rule prohibiting homosexuals from serving in the armed forces. (Notethat the ban is no longer applied since the decision of the Europ

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In R v Ministry of Defence, ex parte Smith [1996] QB 517, the Court of Appeal reviewed the legality of the rule prohibiting homosexuals from serving in the armed forces. (Notethat the ban is no longer applied since the decision of the European Court of Human Rights in [ case ], where the court held that the ban violated the European Convention on Human Rights, art 8.)

Answer

Smith and Grady v UK (2000) 29 EHRR 493

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ex parte Smith [1996] QB 517, the Court of Appeal reviewed the legality of the rule prohibiting homosexuals from serving in the armed forces. (Notethat the ban is no longer applied since the decision of the European Court of Human Rights in Smith and Grady v UK (2000) 29 EHRR 493, where the court held that the ban violated the European Convention on Human Rights, art 8.)<body><html>

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In [ case ], the ratification of the Maastricht treaty by the UK government, an exercise of the treaty-making prerogative power, was challenged by a leading newspaper columnist. He argued, inter alia, that joining a common European Union security system was an unlawful surrender of the Crown's duty to protect the realm. It was further argued that under English common law, the Crown is incapable of abandoning or transferring any of its ancient prerogative powers without statutory enactment. The government argued that the matters raised by the applicant were not justiciable, as treaty-making powers rest with the Crown and their exercise cannot be challenged or questioned in the courts. The court was prepared to assume that, in respect of the government's exercise of prerogative powers in relation to the making of treaties, the courts could consider such matters. Unfortunately for the applicant, however, the court held that the Maastricht treaty did not involve a surrender or transfer of prerogative powers.

Answer

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg, [1994] QB 552

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In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg, [1994] QB 552, the ratification of the Maastricht treaty by the UK government, an exercise of the treaty-making prerogative power, was challenged by a leading newspaper columnist. He argued, inter

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The Court of Appeal appeared particularly bold in this formerly ‘forbidden’ area in the more recent case of [ case ]. The court issued a writ of habeas corpus requiring the government to seek the return of a Pakistani national detained without trial in Afghanistan by the United States following his capture by UK forces in Iraq. The decision did not amount to an instruction to the government to demand the detainee's return but reflected the court's conclusion that there were sufficient grounds for believing that the UK had the means of obtaining control over the detainee's custody.

Answer

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

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The Court of Appeal appeared particularly bold in this formerly ‘forbidden’ area in the more recent case of Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs [2012] UKSC 48. The court issued a writ of habeas corpus requiring the government to seek the return of a Pakistani national detained without trial in Afghanistan by the United States following his

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In [ case ] a similar question arose. This case concerned three detainees at Guantanamo Bay, who were British residents but, unlike Abbasi, were not British nationals. They also sought an order to compel the Foreign Office to make a formal request for their release. The Court of Appeal considered the appellants' rights under the European Convention on Human Rights (and those of their families), concluding that they had no arguable case, primarily as they were not entitled to diplomatic protection in the same way as nationals were. This confirmed the general approach taken in Abbasi, therefore.

Answer

R (on the application of Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs, [2006] EWCA Civ 1279

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In R (on the application of Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs, [2006] EWCA Civ 1279 a similar question arose. This case concerned three detainees at Guantanamo Bay, who were British residents but, unlike Abbasi, were not British nationals. They also sought an order to

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As an example, the courts have considered whether there is scope for judicial review of a refusal to render diplomatic assistance to a British subject suffering violation of a fundamental right as the result of the conduct of authorities of a foreign state. In [ case ] the mother of a British citizen detained in Guantanamo Bay brought proceedings to compel the Foreign and Commonwealth Office (FCO) to make representations on her son's behalf to the United States government. The Court of Appeal recognised that Abbasi had a legitimate expectation of diplomatic assistance, but that the expectation was very limited and the discretion of the FCO very wide. On the facts, the FCO was seen to have done all that was required of it. However, the court stated that there was no reason in principle why an FCO decision (or inaction by the FCO) could not be reviewable in the future, if it could be shown that a decision or inaction was irrational or contrary to a legitimate expectation. However, the court was quite clear that they could not enter into the 'forbidden areas', which included decisions affecting higher foreign policy itself.

Answer

R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs, [2002] EWCA Civ 1598

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courts have considered whether there is scope for judicial review of a refusal to render diplomatic assistance to a British subject suffering violation of a fundamental right as the result of the conduct of authorities of a foreign state. In R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs, [2002] EWCA Civ 1598 the mother of a British citizen detained in Guantanamo Bay brought proceedings to compel the Foreign and Commonwealth Office (FCO) to make representations on her son's behalf to the Unit

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The prerogative of mercy was also addressed in [ case ] which related to the transfer to a British prison of Michael Shields, a football fan who was imprisoned in Bulgaria following an accusation of murder, and his request for a free pardon following the confession of another man.

Answer

R (Shields) v Secretary of State for Justice, [2008] EWHC 3102 (Admin)

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The prerogative of mercy was also addressed in R (Shields) v Secretary of State for Justice, [2008] EWHC 3102 (Admin) which related to the transfer to a British prison of Michael Shields, a football fan who was imprisoned in Bulgaria following an accusation of murder, and his request for a free pardon

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The court's approach in Bentley, in respect of the reviewability of the prerogative of mercy, was adopted in [ case ]. The claimant was a serving prisoner who had provided the police and prison authorities with valuable assistance. As a result, the Home Secretary awarded the claimant three years' remission from his sentence. The claimant's solicitors sought judicial review of this decision, arguing that in pre-sentence cases the length of remission was far greater than that granted to the claimant, who was a serving prisoner. The court agreed that the decision by the Secretary of State to recommend remission in the instant case was a matter amenable to judicial review. The courts regularly had to make decisions about reduction in sentence lengths. On the facts, however, the court held that the exercise of the Home Secretary's prerogative of mercy in this case was different from decisions taken by judges in pre-sentence cases and so the Home Secretary had not acted unlawfully.

Answer

R (on the application of B) v Secretary of State for the Home Department [2002] EWHC 587 (Admin)

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The court's approach in Bentley, in respect of the reviewability of the prerogative of mercy, was adopted in R (on the application of B) v Secretary of State for the Home Department [2002] EWHC 587 (Admin). The claimant was a serving prisoner who had provided the police and prison authorities with valuable assistance. As a result, the Home Secretary awarded the claimant three years' rem

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The idea was given more modern expression by Montesquieu during the 18th century. He believed that liberty would be best protected if there was a separation of powers into judicial, executive and legislative branches:

'When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ... again, there is no liberty if the power of judging is not separated from the legislative and the executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles, or of the people, were to exercise those three powers, that of enacting laws, that of executing public affairs and that of trying crimes or individual causes. Any society in which the safeguarding of rights is not assured, and the separation of powers is not observed, has no constitution.' Montesquieu, [...],(1689-1755)

Answer

De L’Esprit des Lois

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f enacting laws, that of executing public affairs and that of trying crimes or individual causes. Any society in which the safeguarding of rights is not assured, and the separation of powers is not observed, has no constitution.' Montesquieu, De L’Esprit des Lois,(1689-1755) <body><html>

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[ who ] stated:

‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.'

Answer

Lord Mustill

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Lord Mustill stated: ‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely

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Lord Mustill stated:

‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a [...]. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.'

Answer

legally unchallengeable right to make whatever laws it thinks right

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an>Lord Mustill stated: ‘It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.' &#

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Question

'It is essential, if a man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. ' [...]

Answer

The Universal Declaration of Human Rights 1948

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'It is essential, if a man is not to be compelled to have recourse, as a last result, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. ' The Universal Declaration of Human Rights 1948

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Leon Fuller's analysis differs from that of Raz. Fuller argues that law can and must possess [...] or it is not worthy of the title 'legal system'. Thus he is prepared to concede that a regime which merely commanded authority could be described as a governmental system, but would not qualify as a 'legal' system. A legal system must in his view serve the interests of the population and not simply those of the regime itself.

Answer

some form of 'internal morality'

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Leon Fuller's analysis differs from that of Raz. Fuller argues that law can and must possess some form of 'internal morality' or it is not worthy of the title 'legal system'. Thus he is prepared to concede that a regime which merely commanded authority could be described as a governmental system, but would not

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Leon Fuller's analysis differs from that of Raz. [ who ] argues that law can and must possess some form of 'internal morality' or it is not worthy of the title 'legal system'. Thus he is prepared to concede that a regime which merely commanded authority could be described as a governmental system, but would not qualify as a 'legal' system. A legal system must in his view serve the interests of the population and not simply those of the regime itself.

Answer

Fuller

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The formal view of the rule of law is that, for there to be government under the law, laws must adhere to certain procedural requirements. This view says nothing about the morality of the law, merely that it must be capable of guiding the behaviour of its subjects so that an individual can be certain of their actions and position within society in any given circumstances. This extends to an expectation of how the citizen will be treated by the state and other private citizens. In order to achieve this quality of certainty, law must be prospective and clear, and it should be adjudicated upon y an independent judiciary with access to the courts available to all citizens. [ who ] is a key advocate of the formalist conception of the rule of law.

Answer

Joseph Raz

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ed by the state and other private citizens. In order to achieve this quality of certainty, law must be prospective and clear, and it should be adjudicated upon y an independent judiciary with access to the courts available to all citizens. Joseph Raz is a key advocate of the formalist conception of the rule of law.<body><html>

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The formal view of the rule of law is that, for there to be government under the law, laws must adhere to certain [...]. This view says nothing about the morality of the law, merely that it must be capable of guiding the behaviour of its subjects so that an individual can be certain of their actions and position within society in any given circumstances. This extends to an expectation of how the citizen will be treated by the state and other private citizens. In order to achieve this quality of certainty, law must be prospective and clear, and it should be adjudicated upon y an independent judiciary with access to the courts available to all citizens. Joseph Raz is a key advocate of the formalist conception of the rule of law.

Answer

procedural requirements

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The formal view of the rule of law is that, for there to be government under the law, laws must adhere to certain procedural requirements. This view says nothing about the morality of the law, merely that it must be capable of guiding the behaviour of its subjects so that an individual can be certain of their actions an

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According to Dicey, sovereignty means that there are [...]. However, it is important to note that Dicey's theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly political limits on what Parliament could do.

Answer

no substantive limitations on the legislation that Parliament may enact

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According to Dicey, sovereignty means that there are no substantive limitations on the legislation that Parliament may enact. However, it is important to note that Dicey's theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly political li

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According to Dicey, sovereignty means that there are no substantive limitations on the legislation that Parliament may enact. However, it is important to note that Dicey's theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly [...].

Answer

political limits on what Parliament could do

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substantive limitations on the legislation that Parliament may enact. However, it is important to note that Dicey's theory is concerned purely with the absence of any legal limitations on Parliament. He acknowledged that there were clearly political limits on what Parliament could do.<body><html>

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According to Dicey, sovereignty means that there are no substantive limitations on the legislation that Parliament may enact. However, it is important to note that Dicey's theory is concerned purely with [...]. He acknowledged that there were clearly political limits on what Parliament could do.

Answer

the absence of any legal limitations on Parliament

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The orthodox theory also states that Parliament can legislate for territory beyond the jurisdiction of the UK, even if this produces a conflict with international law.

[ case ] : The captain of a Norwegian trawler was convicted of fishing in the Moray Firth contrary to the Herring Fisheries (Scotland) Act 1889. The court held that it was bound to apply the Act, even though it restricted fishing beyond the three-mile territorial limit recognised by international law.

Answer

Mortensen v Peters (1906) 14 SLT 227

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The orthodox theory also states that Parliament can legislate for territory beyond the jurisdiction of the UK, even if this produces a conflict with international law. Mortensen v Peters (1906) 14 SLT 227 : The captain of a Norwegian trawler was convicted of fishing in the Moray Firth contrary to the Herring Fisheries (Scotland) Act 1889. The court held that it was bound to apply the Act,

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It is also possible for Parliament to create statutes that conflict with public international law. In [ case ], a taxpayer challenged the validity of the Finance Act 1964. He argued that it conflicted with the Geneva Convention, a treaty to which the UK was a party, because part of the tax collected would go to the manufacture of nuclear weapons.

Ungoed-Thomas J said: 'What the statute itself enacts cannot be unlawful, because … it is the highest form of law known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a Parliamentary enactment… is illegal.'

Answer

Cheney v Conn [1968] 1 All ER 779

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It is also possible for Parliament to create statutes that conflict with public international law. In Cheney v Conn [1968] 1 All ER 779, a taxpayer challenged the validity of the Finance Act 1964. He argued that it conflicted with the Geneva Convention, a treaty to which the UK was a party, because part of the tax colle

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Parliament can also create legislation that changes aspects of the constitution. In [ case ], the validity of the Irish Church Act 1869 was challenged by a priest on the grounds that it disestablished his church in Ireland contrary to the Act of Union with Ireland (1800). This argument was rejected by the court, Cockburn CJ stating that:

'There is no judicial body in this country by which the validity of an Act of Parliament could be questioned. An Act of Legislature is superior in authority to any court of law. We have only to administer the law as we find it, and no court could pronounce judgment as to the validity of an Act of Parliament.'

Answer

Ex parte Canon Selwyn (1872) 36 JP 54

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Parliament can also create legislation that changes aspects of the constitution. In Ex parte Canon Selwyn (1872) 36 JP 54, the validity of the Irish Church Act 1869 was challenged by a priest on the grounds that it disestablished his church in Ireland contrary to the Act of Union with Ireland (1800). This

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In [ case ], Maugham LJ stated:

'The legislature cannot, according to our constitution, bind itself as to the force of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the Legislature.'

Answer

Ellen St Estates v Minister of Health [1934] 1 KB 590

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In Ellen St Estates v Minister of Health [1934] 1 KB 590, Maugham LJ stated: 'The legislature cannot, according to our constitution, bind itself as to the force of subsequent legislation, and it is impossible for Parliament to en

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In [ case ], a Scottish Nationalist raised an objection to the designation of the new monarch as Queen Elizabeth the Second. He argued that, as a matter of fact, the first Queen Elizabeth had been Queen of England but not of Scotland. The application was dismissed on other grounds but Lord Cooper stated, obiter:

'The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish Constitutional law ... Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty in seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.'

Answer

McCormick v Lord Advocate [1953] SC 396

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In McCormick v Lord Advocate [1953] SC 396, a Scottish Nationalist raised an objection to the designation of the new monarch as Queen Elizabeth the Second. He argued that, as a matter of fact, the first Queen Elizabeth had been

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The subjective element was discussed by the House of Lords in [ case ]. Here Twinsectra had loaned Yardley £1 million, paying it to his solicitor, Sims, who gave a written undertaking to Twinsectra’s solicitors that the money was to be used solely for acquiring property (immovables) for Yardley and for no other purpose. Sims transferred the money to Yardley’s other solicitor, Leach, who knew of Sims’ undertaking but yet used the money on Yardley’s instructions for other purposes. Leach knew that he was using the money for an unauthorised purpose, but thought that Sims was merely under a contractual obligation to Twinsectra not a Quistclose purpose trust obligation. The House of Lords held that the money was held on trust only to be used for acquiring property but (Lord Millett dissenting) appeared to hold that since Leach was not himself subjectively aware that what he was doing was something that the ordinary reasonable person would think was dishonest, he had rightfully had the case against him dismissed by the trial judge, whom the Court of Appeal had reversed, Lord Millett applied an objective test. Leach, a solicitor, had knowingly participated in arrangements which he knew to be an unauthorised use of the money in breach of Sims’ undertaking as a solicitor to Twinsectra’s solicitors. Leach was liable, regardless of whether or not he appreciated that the ordinary reasonable person would consider his knowing mishandling of the money (at the very least in breach of Sims’ contractual undertaking) as dishonest. The majority, whilst expressing approval for the Privy Council’s advice in Tan, appeared to have changed the test for dishonesty to the more subjective criminal test, so that not only must the defendant have done something that right- thinking people would consider dishonest, he must have been aware that they would so view his conduct. Lord Millett strongly dissented.

Answer

Twinsectra Ltd v Yardley & Others [2002] 2 AC 164

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The subjective element was discussed by the House of Lords in Twinsectra Ltd v Yardley & Others [2002] 2 AC 164. Here Twinsectra had loaned Yardley £1 million, paying it to his solicitor, Sims, who gave a written undertaking to Twinsectra’s solicitors that the money was to be used solely for ac

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There is a different rule for payments out of active running accounts – most typically current accounts. Here the rule in [ case ] applies. This rule states that the first payment in to the account will be the first payment out. The rule has been applied as between two trusts and between a trust and an innocent contributor, e.g. in Re Diplock.

Answer

Re Clayton’s Case (1816) 1 Mer 572

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There is a different rule for payments out of active running accounts – most typically current accounts. Here the rule in Re Clayton’s Case (1816) 1 Mer 572 applies. This rule states that the first payment in to the account will be the first payment out. The rule has been applied as between two trusts and between a trust and an innocent

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There is a different rule for payments out of active running accounts – most typically current accounts. Here the rule in Re Clayton’s Case (1816) 1 Mer 572 applies. This rule states that the first payment in to the account will be the first payment out. The rule has been applied as between two trusts and between a trust and an innocent contributor, e.g. in [ case ].

Answer

Re Diplock

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Re Clayton’s Case (1816) 1 Mer 572 applies. This rule states that the first payment in to the account will be the first payment out. The rule has been applied as between two trusts and between a trust and an innocent contributor, e.g. in Re Diplock. <body><html>

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Court of Appeal in [ case ] has reluctantly confirmed that the rule is still good law, although subject to any contrary intention which the courts are ready to find. The rationale for this, as explained by Dillon LJ, is that the rule has been enshrined in English law for so long that it can only be replaced by a House of Lords (presumably now a Supreme Court) judgment. The case concerned the collapse of the Barlow Clowes investment company in Gibraltar. Investors had paid into investment plans, but the money had been stolen and the company was left owing £115m with assets of far less than that. Some investors argued that the rules in Re Clayton’s Case should be applied. This would mean that the later investors would recover nearly all their money, and the earlier investors, nothing. Woolf LJ held: ‘The rule need only be applied when it is convenient to do so and when its application can be said to do broad justice having regard to the nature of the competing claims. It is not applied if this is the intention or presumed intention of the beneficiaries. The rule is sensibly not applied when the costs of applying it is likely to exhaust the fund available for the beneficiaries.’ On the facts of the case it was decided that the investment fund was regarded by the investors as a common pool, and that they should share rateably in what remained because they had experienced a common misfortune. Accordingly, the court ordered a rateable distribution among the claimants who were investors.

Answer

Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22

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Court of Appeal in Barlow Clowes International Ltd v Vaughan [1992] 4 All ER 22 has reluctantly confirmed that the rule is still good law, although subject to any contrary intention which the courts are ready to find. The rationale for this, as explained by Dillon

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Question

The most usual remedy at common law is a [...] against the recipient for the value of the property they have received.

Answer

personal claim

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The most usual remedy at common law is a personal claim against the recipient for the value of the property they have received.

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Historically, common law only provided an action for specific recovery of land not chattels, so only rarely has tracing at common law led to a proprietary claim. One example is the case of [ case ] (above), where the owner was himself able to recover his property by seizing it.

Answer

Taylor v Plumer

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Historically, common law only provided an action for specific recovery of land not chattels, so only rarely has tracing at common law led to a proprietary claim. One example is the case of Taylor v Plumer (above), where the owner was himself able to recover his property by seizing it.

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Only a person with [...] can use the common law rules, so a beneficiary under a trust cannot trace property and then claim it at law. However, they or their trustee can do this in equity.

Answer

legal title

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Only a person with legal title can use the common law rules, so a beneficiary under a trust cannot trace property and then claim it at law. However, they or their trustee can do this in equity.<

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Because these actions are personal and not proprietary, the defendant is still liable to repay the value of the property they received even if they no longer have it (or has mixed it with their own): [ cases (2) ].

Answer

Agip (Africa) Ltd v Jackson and Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548

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Because these actions are personal and not proprietary, the defendant is still liable to repay the value of the property they received even if they no longer have it (or has mixed it with their own): Agip (Africa) Ltd v Jackson and Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548.

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Extraordinary Expenditure
Lord Goff in [ case ] held

…the mere fact that the defendant has spent the money, in whole or in part, does not of itself render it inequitable that he should be called upon to repay, because the expenditure might in any event have been incurred by him in the ordinary course of things.

Answer

Lipkin Gorman v Karpnale

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Extraordinary Expenditure Lord Goff in Lipkin Gorman v Karpnale held …the mere fact that the defendant has spent the money, in whole or in part, does not of itself render it inequitable that he should be called upon to repay, because the

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In [ case ], the Court of Appeal held that the payment of debts cannot normally be relied on as a change of position, as the defendant had to pay them anyway.

Answer

Scottish Equitable plc v Derby [2001] 3 All ER 818

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In Scottish Equitable plc v Derby [2001] 3 All ER 818, the Court of Appeal held that the payment of debts cannot normally be relied on as a change of position, as the defendant had to pay them anyway.

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the availability of the defence does not depend upon the assets bought and subsequently consumed having any extraordinary characteristics in themselves. In [ case ], two backing musicians to Phil Collins were overpaid royalties from the sale of records. They used this money to supplement their everyday standard of living. Jonathan Parker J held the change of position defence could apply as although the assets acquired were of an everyday nature to the defendants, the amount they had acquired and the expense they had consequently incurred was extraordinary.

Answer

Philip Collins Ltd v Davis [2000] 3 All ER 808

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the availability of the defence does not depend upon the assets bought and subsequently consumed having any extraordinary characteristics in themselves. In Philip Collins Ltd v Davis [2000] 3 All ER 808, two backing musicians to Phil Collins were overpaid royalties from the sale of records. They used this money to supplement their everyday standard of living. Jonathan Parker J held t

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In [ case ] it was held that a defendant who changed their position in reliance on an anticipated receipt that is subsequently received can rely on the defence

Answer

Dextra Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50

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In Dextra Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 it was held that a defendant who changed their position in reliance on an anticipated receipt that is subsequently received can rely on the defence

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The Court of Appeal [ case ] held there to be two pre-requisites to tracing in equity:
1. A fiduciary relationship;
2. An equitable proprietary interest in the property being traced.

Answer

Re Diplock [1948] Ch 465

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The Court of Appeal Re Diplock [1948] Ch 465 held there to be two pre-requisites to tracing in equity: 1. A fiduciary relationship; 2. An equitable proprietary interest in the property being traced.</

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While stating that nothing should be said to inhibit the development of the defence, Lord Goff in [ case ] made it clear at 580 that:

the defence is not open to one who has changed his position in bad faith … the defence should not be open to a wrongdoer.

He gave as an example of bad faith a defendant who had paid away the money, with knowledge of the facts entitling the claimant to restitution.

Answer

Lipkin Gorman Karpnale

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While stating that nothing should be said to inhibit the development of the defence, Lord Goff in Lipkin Gorman Karpnale made it clear at 580 that: the defence is not open to one who has changed his position in bad faith … the defence should not be open to a wrongdoer. He gave as

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The remedy is not confined to claims between trustee and beneficiary, but to other fiduciaries, e.g. that of solicitor and client [ case ] and accountant and employer in Agip v Jackson (above).

Answer

Re Hallett’s Estate (1880) 13 ChD 696

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The remedy is not confined to claims between trustee and beneficiary, but to other fiduciaries, e.g. that of solicitor and client Re Hallett’s Estate (1880) 13 ChD 696 and accountant and employer in Agip v Jackson (above).

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The remedy is not confined to claims between trustee and beneficiary, but to other fiduciaries, e.g. that of solicitor and client Re Hallett’s Estate (1880) 13 ChD 696 and accountant and employer in [ case ] (above).

Answer

Agip v Jackson

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Similarly, in [ case ], Goulding J held that a person who paid money to another under a mistake of fact retained an equitable interest and the conscience of the payee was subjected to a fiduciary duty to respect that interest. The decision in Chase Manhattan was discussed in the House of Lords in Westdeutsche, where the judge’s reasoning was doubted in holding that the Israel-British Bank held the additional $2,000,000 on constructive trust when it knew of the mistake made by Chase Manhattan. Lord Browne-Wilkinson at p 715 said that mere receipt gave rise to no trust but the retention of the moneys after the receiving bank learned of the mistake ‘may well have given rise to a constructive trust’ which allowed a claim in equity, being, it seems, a personally liability to account as a constructive trustee under the knowing receipt head

Answer

Chase Manhattan Bank v Israel-British Bank (London) Ltd [1981] Ch 105

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Similarly, in Chase Manhattan Bank v Israel-British Bank (London) Ltd [1981] Ch 105, Goulding J held that a person who paid money to another under a mistake of fact retained an equitable interest and the conscience of the payee was subjected to a fiduciary duty to re

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Fiduciary relationships have been found very easily in circumstances where tracing is sought: Lord Templeman in [ case ] approved the Australian case of Black v Freedman (1910) 12 CLR 105, where it was said that a thief holds stolen money on trust for the true owner and that the true owner may therefore trace in equity into a mixed fund. Lord Browne-Wilkinson was of the same view in Westdeutsche [1996] AC 669 at 716.

Answer

Lipkin Gorman v Karpnale Ltd

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Fiduciary relationships have been found very easily in circumstances where tracing is sought: Lord Templeman in Lipkin Gorman v Karpnale Ltd approved the Australian case of Black v Freedman (1910) 12 CLR 105, where it was said that a thief holds stolen money on trust for the true owner and that the true owner may therefore

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Fiduciary relationships have been found very easily in circumstances where tracing is sought: Lord Templeman in Lipkin Gorman v Karpnale Ltd approved the Australian case of Black v Freedman (1910) 12 CLR 105, where it was said that a thief holds stolen money on trust for the true owner and that the true owner may therefore trace in equity into a mixed fund. Lord Browne-Wilkinson was of the same view in [ case ] at 716.

Answer

Westdeutsche [1996] AC 669

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ase of Black v Freedman (1910) 12 CLR 105, where it was said that a thief holds stolen money on trust for the true owner and that the true owner may therefore trace in equity into a mixed fund. Lord Browne-Wilkinson was of the same view in Westdeutsche [1996] AC 669 at 716.<body><html>

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In [ case ], the next of kin sued the executors and also the charities themselves for the return of the money. The action against the executors was compromised with the court’s approval, the executors agreeing to repay £15,000 of the £203,000 out of their own pockets. The next of kin sought to recover the balance from the charities concerned. The right to trace and make a proprietary claim in equity was considered at length by the Court of Appeal in Re Diplock, in case their decision on the availability of a personal claim (see later) was reversed by the House of Lords. However, the House of Lords affirmed their decision on the personal claim and did not consider it necessary to discuss the proprietary claim.

Answer

Re Diplock [1948] Ch 465

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In Re Diplock [1948] Ch 465, the next of kin sued the executors and also the charities themselves for the return of the money. The action against the executors was compromised with the court’s approval, the exec

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Similarly where trust money or property has been mixed with other funds, the beneficiaries have the right to a proportionate share of the property acquired with the mixed fund or an equitable charge (or lien) over the property mixture, to secure their claim. This was made clear by the House of Lords in [ case ] which rejected Re Hallett’s Estate (1880) 13 Ch D 696 as apparent authority for a claimant only having a charge over property of the defendant fiduciary that had been purchased with mixed money.

Answer

Foskett v McKeown [2001] 1 AC 102

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funds, the beneficiaries have the right to a proportionate share of the property acquired with the mixed fund or an equitable charge (or lien) over the property mixture, to secure their claim. This was made clear by the House of Lords in Foskett v McKeown [2001] 1 AC 102 which rejected Re Hallett’s Estate (1880) 13 Ch D 696 as apparent authority for a claimant only having a charge over property of the defendant fiduciary that had been purchased with mi

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In [ case ], Lord Millett said:

‘Where a trustee wrongfully uses trust money to provide part of the cost of acquiring an asset, the beneficiary is entitled at his option either to claim a proportionate share of the asset or to enforce a lien upon it to secure his personal claim against the trustee for the amount of the misapplied money.’

Answer

Foskett v McKeown

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In Foskett v McKeown, Lord Millett said: ‘Where a trustee wrongfully uses trust money to provide part of the cost of acquiring an asset, the beneficiary is entitled at his option either to clai

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The situation is different where an innocent volunteer spends the claimant’s money on an asset which he already owns.
In cases where no value is added to the asset, the claimant’s money is treated as dissipated and cannot be traced. In [ case ] the court gave the example of an innocent volunteer who spent trust money in altering his house to his personal needs without adding one penny to its value.
In cases where value is added to the asset, Lord Browne-Wilkinson said obiter in Foskett v McKeown that the trust would not be entitled to a proportion of the value of the asset but ‘at most a proprietary lien’ over the asset. Furthermore the innocent volunteer may have a defence to the claim if it would be inequitable to enforce it

Answer

Re Diplock

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n>The situation is different where an innocent volunteer spends the claimant’s money on an asset which he already owns. In cases where no value is added to the asset, the claimant’s money is treated as dissipated and cannot be traced. In Re Diplock the court gave the example of an innocent volunteer who spent trust money in altering his house to his personal needs without adding one penny to its value. In cases where value is

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The situation is different where an innocent volunteer spends the claimant’s money on an asset which he already owns.
In cases where no value is added to the asset, the claimant’s money is treated as dissipated and cannot be traced. In Re Diplock the court gave the example of an innocent volunteer who spent trust money in altering his house to his personal needs without adding one penny to its value.
In cases where value is added to the asset, Lord Browne-Wilkinson said obiter in [ case ] that the trust would not be entitled to a proportion of the value of the asset but ‘at most a proprietary lien’ over the asset. Furthermore the innocent volunteer may have a defence to the claim if it would be inequitable to enforce it

Answer

Foskett v McKeown

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the court gave the example of an innocent volunteer who spent trust money in altering his house to his personal needs without adding one penny to its value. In cases where value is added to the asset, Lord Browne-Wilkinson said obiter in Foskett v McKeown that the trust would not be entitled to a proportion of the value of the asset but ‘at most a proprietary lien’ over the asset. Furthermore the innocent volunteer may have a defence to t

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The Presumption in [ case ]: dissipated money is that of the trustee who rightfully used his own money

Answer

Re Hallett’s Estate

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The Presumption in Re Hallett’s Estate: dissipated money is that of the trustee who rightfully used his own money

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In [ case ],T mixed £3,000 of trust money with over £4,000 of his own. He then spent £2137 to buy some Oceana shares for himself when he was not entitled to do this unless and until he had restored the £3000 to the trust, so he could not claim entitlement to the shares. He dissipated the rest of the money in the account. Applying Re Hallett’s Estate as to the imposition of a charge over the fund, Joyce J held that the beneficiaries were entitled to a charge on the Oceana shares (which were worth more than their purchase price but less than the trust money paid into the account).

Answer

Re Oatway [1903] 2 Ch 356

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In Re Oatway [1903] 2 Ch 356,T mixed £3,000 of trust money with over £4,000 of his own. He then spent £2137 to buy some Oceana shares for himself when he was not entitled to do this unless and until he had resto

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In [ case ], however, the claimant (strictly speaking her personal representative) was not allowed a proportionate share of a house bought by the deceased female trustee, apparently inadvertently using some trust money in her account, before she died leaving enough in her residuary estate to cover the amount of the claim. Ungoed-Thomas J was kind to the elderly woman, seemingly regarding her as an ‘innocent’ trustee so that since she could have bought the house without recourse to the trust money, no proportionate share was permitted (though the judge admitted that he would have imposed a lien over the house to secure the money claim if requested). This approach seems fair for innocent volunteers who would have used their own money if they had realised that some of the money being used was trust money, but Mrs Tilley was trustee of her husband’s estate for herself for life remainder for her claimant daughter- and Mrs Tilley was a successful businesswoman

Answer

Re Tilley’s WT [1967] Ch 1179

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In Re Tilley’s WT [1967] Ch 1179, however, the claimant (strictly speaking her personal representative) was not allowed a proportionate share of a house bought by the deceased female trustee, apparently inadvertently

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The lowest intermediate balance rule – [ case ]: If the wrongdoer spends the claimant’s money and then pays in money of his own, this money is not deemed to be a repayment to the claimant.

Answer

Roscoe v Winder

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The lowest intermediate balance rule – Roscoe v Winder: If the wrongdoer spends the claimant’s money and then pays in money of his own, this money is not deemed to be a repayment to the claimant.

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It is noticeable that both Tilley and Turner were family disputes that were most unlikely to be appealed, so that, perhaps, the judges allowed themselves a little leeway on the merits of the case , feeling it inequitable to allow the claimant a proportionate share. In Shalson the assets of the claimant had been appropriated by a wrongdoer, who had ultimately dissipated large amounts of the mixed fund. In this sort of scenario it makes sense for the innocent party to be able to claim the wrongdoer used their own assets on these dissipations as far as possible. This dovetails with the general rule of evidence in [ case ] that evidential uncertainty created by wrongdoing will be resolved against the wrongdoer.

Answer

Armory v Delamirie (1722) 1 Stra 505

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amounts of the mixed fund. In this sort of scenario it makes sense for the innocent party to be able to claim the wrongdoer used their own assets on these dissipations as far as possible. This dovetails with the general rule of evidence in Armory v Delamirie (1722) 1 Stra 505 that evidential uncertainty created by wrongdoing will be resolved against the wrongdoer.<body><html>

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The rules described above for mixing between the claimant’s money and the wrongdoer’s own money do not apply where the claimant’s money is [...]. To discover which rules apply in such instances, it will first be necessary to ascertain whether the account is a deposit account or an active current account.

Answer

mixed with either another trust fund or the money of an innocent volunteer

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The rules described above for mixing between the claimant’s money and the wrongdoer’s own money do not apply where the claimant’s money is mixed with either another trust fund or the money of an innocent volunteer. To discover which rules apply in such instances, it will first be necessary to ascertain whether the account is a deposit account or an active current account. <

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A trustee has £2,000 of his own money in his deposit account. He puts in £3,000 of Trust B’s money and then £6,000 of Trust C’s money. He spends £6,000 on shares which are now worth £12,000. He then dissipates the remaining £5,000. Later he pays in £1,000.
First look at the situation between the trustee and the trust funds and apply Re Oatway as the later funds are dissipated. This means the £6,000 spent on shares will all be money from the two trusts rather than the trustee’s own money. Then look at the situation between the two trusts. They share rateably ([ case ]), so Trust B has 1/3 rd of the shares (now worth £4,000) and Trust C has 2/3 rd of the shares (now worth £8,000). The dissipated money includes £2,000 from the trustee’s money, £1,000 from Trust B and £2,000 from Trust C. This trust money cannot be replaced by the later payment in of £1,000 (Roscoe v Winder).

Answer

Re Diplock

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ds and apply Re Oatway as the later funds are dissipated. This means the £6,000 spent on shares will all be money from the two trusts rather than the trustee’s own money. Then look at the situation between the two trusts. They share rateably (Re Diplock), so Trust B has 1/3 rd of the shares (now worth £4,000) and Trust C has 2/3 rd of the shares (now worth £8,000). The dissipated money includes £2,000 from the trustee’s money, £1,000 f

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A trustee has £2,000 of his own money in his deposit account. He puts in £3,000 of Trust B’s money and then £6,000 of Trust C’s money. He spends £6,000 on shares which are now worth £12,000. He then dissipates the remaining £5,000. Later he pays in £1,000.
First look at the situation between the trustee and the trust funds and apply Re Oatway as the later funds are dissipated. This means the £6,000 spent on shares will all be money from the two trusts rather than the trustee’s own money. Then look at the situation between the two trusts. They share rateably (Re Diplock), so Trust B has 1/3 rd of the shares (now worth £4,000) and Trust C has 2/3 rd of the shares (now worth £8,000). The dissipated money includes £2,000 from the trustee’s money, £1,000 from Trust B and £2,000 from Trust C. This trust money cannot be replaced by the later payment in of £1,000 ([ case ]).

Answer

Roscoe v Winder

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4,000) and Trust C has 2/3 rd of the shares (now worth £8,000). The dissipated money includes £2,000 from the trustee’s money, £1,000 from Trust B and £2,000 from Trust C. This trust money cannot be replaced by the later payment in of £1,000 (Roscoe v Winder).<body><html>

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A trustee has £2,000 of his own money in his deposit account. He puts in £3,000 of Trust B’s money and then £6,000 of Trust C’s money. He spends £6,000 on shares which are now worth £12,000. He then dissipates the remaining £5,000. Later he pays in £1,000.
First look at the situation between the trustee and the trust funds and apply [ case ] as the later funds are dissipated. This means the £6,000 spent on shares will all be money from the two trusts rather than the trustee’s own money. Then look at the situation between the two trusts. They share rateably (Re Diplock), so Trust B has 1/3 rd of the shares (now worth £4,000) and Trust C has 2/3 rd of the shares (now worth £8,000). The dissipated money includes £2,000 from the trustee’s money, £1,000 from Trust B and £2,000 from Trust C. This trust money cannot be replaced by the later payment in of £1,000 (Roscoe v Winder).

Answer

Re Oatway

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y and then £6,000 of Trust C’s money. He spends £6,000 on shares which are now worth £12,000. He then dissipates the remaining £5,000. Later he pays in £1,000. First look at the situation between the trustee and the trust funds and apply Re Oatway as the later funds are dissipated. This means the £6,000 spent on shares will all be money from the two trusts rather than the trustee’s own money. Then look at the situation between the

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A trustee pays £3,000 of Trust X’s money into his current account which was previously empty. He then pays in £2,000 of his own money and then £5,000 of Trust Y’s money. He withdraws £2,000 and dissipates it. He then withdraws £3,000 and dissipates that money as well. There is £5,000 left in the account.
First look at the situation between the trustee and the trust funds. [ case ] will apply so the first payment out of £2,000 will be the trustee’s own money.
Then look at the situation between the two trust funds. It is a current account, so, according to Re Diplock, the rule in Clayton’s Case applies. The first payment in was from Trust X, so the first payment out of £3,000 is Trust X’s money. Trust Y can claim the £5,000 left in the bank account.

Answer

Re Hallett’s Estate

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then £5,000 of Trust Y’s money. He withdraws £2,000 and dissipates it. He then withdraws £3,000 and dissipates that money as well. There is £5,000 left in the account. First look at the situation between the trustee and the trust funds. Re Hallett’s Estate will apply so the first payment out of £2,000 will be the trustee’s own money. Then look at the situation between the two trust funds. It is a current account, so, according to Re D

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A trustee pays £3,000 of Trust X’s money into his current account which was previously empty. He then pays in £2,000 of his own money and then £5,000 of Trust Y’s money. He withdraws £2,000 and dissipates it. He then withdraws £3,000 and dissipates that money as well. There is £5,000 left in the account.
First look at the situation between the trustee and the trust funds. Re Hallett’s Estate will apply so the first payment out of £2,000 will be the trustee’s own money.
Then look at the situation between the two trust funds. It is a current account, so, according to [ case ], the rule in Clayton’s Case applies. The first payment in was from Trust X, so the first payment out of £3,000 is Trust X’s money. Trust Y can claim the £5,000 left in the bank account.

Answer

Re Diplock

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between the trustee and the trust funds. Re Hallett’s Estate will apply so the first payment out of £2,000 will be the trustee’s own money. Then look at the situation between the two trust funds. It is a current account, so, according to Re Diplock, the rule in Clayton’s Case applies. The first payment in was from Trust X, so the first payment out of £3,000 is Trust X’s money. Trust Y can claim the £5,000 left in the bank account.

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A trustee pays £3,000 of Trust X’s money into his current account which was previously empty. He then pays in £2,000 of his own money and then £5,000 of Trust Y’s money. He withdraws £2,000 and dissipates it. He then withdraws £3,000 and dissipates that money as well. There is £5,000 left in the account.
First look at the situation between the trustee and the trust funds. Re Hallett’s Estate will apply so the first payment out of £2,000 will be the trustee’s own money.
Then look at the situation between the two trust funds. It is a current account, so, according to Re Diplock, the rule in [ case ] applies. The first payment in was from Trust X, so the first payment out of £3,000 is Trust X’s money. Trust Y can claim the £5,000 left in the bank account.

Answer

Clayton’s Case

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the trust funds. Re Hallett’s Estate will apply so the first payment out of £2,000 will be the trustee’s own money. Then look at the situation between the two trust funds. It is a current account, so, according to Re Diplock, the rule in Clayton’s Case applies. The first payment in was from Trust X, so the first payment out of £3,000 is Trust X’s money. Trust Y can claim the £5,000 left in the bank account.<body><html>

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Note that, although the rule in [ case ] applies to a claim between two (or more) trusts and to a claim between a trust and an innocent contributor (Re Diplock and, obiter, in Re Hallett’s Estate), it does not apply as between beneficiaries and the trustee who has mixed trust funds with funds of his own (Re Hallett’s Estate).

Answer

Clayton’s Case

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Note that, although the rule in Clayton’s Case applies to a claim between two (or more) trusts and to a claim between a trust and an innocent contributor (Re Diplock and, obiter, in Re Hallett’s Estate), it does not apply as between beneficiaries and the trustee who has mixed trust funds with funds of his own ([ case ]).

Answer

Re Hallett’s Estate

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two (or more) trusts and to a claim between a trust and an innocent contributor (Re Diplock and, obiter, in Re Hallett’s Estate), it does not apply as between beneficiaries and the trustee who has mixed trust funds with funds of his own (Re Hallett’s Estate).<body><html>

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Note that, although the rule in Clayton’s Case applies to a claim between two (or more) trusts and to a claim between a trust and an innocent contributor ([ case ] and, obiter, in Re Hallett’s Estate), it does not apply as between beneficiaries and the trustee who has mixed trust funds with funds of his own (Re Hallett’s Estate).

Answer

Re Diplock

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Note that, although the rule in Clayton’s Case applies to a claim between two (or more) trusts and to a claim between a trust and an innocent contributor (Re Diplock and, obiter, in Re Hallett’s Estate), it does not apply as between beneficiaries and the trustee who has mixed trust funds with funds of his own (Re Hallett’s Estate).<

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More recently, in [ case ], Henderson J disapplied Clayton’s Case when distributing the assets of a fundraising website but nevertheless considered that case to be ‘probably still the default rule’ (para 49).

Answer

Charity Commission v Framjee [2014] EWHC 2507 (Ch)

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More recently, in Charity Commission v Framjee [2014] EWHC 2507 (Ch), Henderson J disapplied Clayton’s Case when distributing the assets of a fundraising website but nevertheless considered that case to be ‘probably still the default rule’ (para 49).</

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While at common law there will always be a restitutionary personal action against the recipient of the claimant’s property, this is not the case in equity. There will be no personal action against an innocent volunteer who dissipated trust property before he was aware that it was such ([ case ]; Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA Civ 195 at [76], [84]). A personal action will only arise against a recipient whose knowledge of the provenance of the property would make it unconscionable for him not to return it but deal with it as his own. Bank of Credit and Commerce International v Akindele [2001] Ch 437

Answer

Re Montagu’s Settlement [1987] 1Ch 264

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estitutionary personal action against the recipient of the claimant’s property, this is not the case in equity. There will be no personal action against an innocent volunteer who dissipated trust property before he was aware that it was such (Re Montagu’s Settlement [1987] 1Ch 264; Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA Civ 195 at [76], [84]). A personal action will only arise against a recipient whose knowledge of the provenance of

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While at common law there will always be a restitutionary personal action against the recipient of the claimant’s property, this is not the case in equity. There will be no personal action against an innocent volunteer who dissipated trust property before he was aware that it was such (Re Montagu’s Settlement [1987] 1Ch 264; Independent Trustee Services Ltd v GP Noble Trustees Ltd [2012] EWCA Civ 195 at [76], [84]). A personal action will only arise against a recipient whose knowledge of the provenance of the property would make it unconscionable for him not to return it but deal with it as his own. [ case ]

Answer

Bank of Credit and Commerce International v Akindele [2001] Ch 437

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Noble Trustees Ltd [2012] EWCA Civ 195 at [76], [84]). A personal action will only arise against a recipient whose knowledge of the provenance of the property would make it unconscionable for him not to return it but deal with it as his own. Bank of Credit and Commerce International v Akindele [2001] Ch 437<body><html>

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A proprietary claim may not be allowed if it is inequitable. In [ case ] the charity, a hospital, had spent the money improving its own pre-owned property. The next- of-kin’s interest in the property would have been a charge, enforceable by sale. The Court of Appeal did not allow this on the grounds that it would have been inequitable to force a sale.

Answer

Re Diplock’s Estate

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A proprietary claim may not be allowed if it is inequitable. In Re Diplock’s Estate the charity, a hospital, had spent the money improving its own pre-owned property. The next- of-kin’s interest in the property would have been a charge, enforceable by sale. The Court of

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The Court of Appeal in Re Diplock held that, where money is wrongly paid out in the administration of an estate, a personal action is available against those who received the money. This was affirmed by the House of Lords on appeal where the case became [ case ]. As a result, the next of kin were able to use the personal action to recover the balance of the Diplock money (£203,000 less £15,000 paid by the executors from their own pockets) from the charities even where proprietary claims were not possible. The Court of Appeal stated that this remedy is subject to two limitations:

The unpaid beneficiaries should firstly sue the personal representative who has acted wrongly, the beneficiaries’ personal claim against those overpaid, or wrongly paid, being limited to the amount which cannot be recovered from the personal representative.
The entitlement is to claim the principal sum only, not the interest on it. In Re Diplock, which was affirmed by Ministry of Health v Simpson, no defence was allowed to the personal claim.

However since then the House of Lords has developed the defence of change of position in Lipkin Gorman v Karpnale and it is generally accepted that this defence would be applicable to such a claim.

Answer

Ministry of Health v Simpson [1951] AC 251

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f Appeal in Re Diplock held that, where money is wrongly paid out in the administration of an estate, a personal action is available against those who received the money. This was affirmed by the House of Lords on appeal where the case became Ministry of Health v Simpson [1951] AC 251. As a result, the next of kin were able to use the personal action to recover the balance of the Diplock money (£203,000 less £15,000 paid by the executors from their own pockets) from

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Certain people are excluded from falling within the ambit of conspiracy: [ statute ].

An accused cannot conspire with a person who is his spouse at the time of the agreement.
An accused cannot conspire with a child under ten years old.
An accused cannot conspire with an intended victim of the crime.

Answer

CLA 1977, s 2(2)

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Certain people are excluded from falling within the ambit of conspiracy: CLA 1977, s 2(2). An accused cannot conspire with a person who is his spouse at the time of the agreement. An accused cannot conspire with a child under ten years old. An accused cannot conspire w

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Following [ case ], the defendant need not have settled all the details of the offence in question but must have gone beyond merely discussing the offence and actually agreed to commit it.

Answer

DPP v Nock [1978] AC 979

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Following DPP v Nock [1978] AC 979, the defendant need not have settled all the details of the offence in question but must have gone beyond merely discussing the offence and actually agreed to commit it.<

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Following DPP v Nock [1978] AC 979, the defendant need not have settled all the details of the offence in question but must have gone [...].

Answer

beyond merely discussing the offence and actually agreed to commit it

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statutory conspiracy contrary to the [ statute ]

Answer

Criminal Law Act 1977, s 1

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statutory conspiracy contrary to the Criminal Law Act 1977, s 1

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[ case ]
FACTS: D had joined in a conspiracy to plant a bomb, timed to explode on the roof of a hall at 1am when a disco would be at its height. He claimed that, unknown to his accomplices, he intended to give a warning enabling the hall to be cleared.
HELD: The Court of Appeal of Northern Ireland held per Lowry LJ:

'In regard to the offence of statutory conspiracy s 1(1) assumes the existence of an intention of the parties to carry out the agreement. But on the facts found here, this result [murder] would not have been in accordance with the intention of the appellant. Therefore he was not guilty of conspiracy to murder.'

Answer

R v McPhillips [1990] 6 BNIL (NICA)

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R v McPhillips [1990] 6 BNIL (NICA) FACTS: D had joined in a conspiracy to plant a bomb, timed to explode on the roof of a hall at 1am when a disco would be at its height. He claimed that, unknown to his accomplices, he in

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R v McPhillips [1990] 6 BNIL (NICA)
FACTS: D had joined in a conspiracy to plant a bomb, timed to explode on the roof of a hall at 1am when a disco would be at its height. He claimed that, unknown to his accomplices, he intended to give a warning enabling the hall to be cleared.
HELD: The Court of Appeal of Northern Ireland held per Lowry LJ:

'In regard to the offence of statutory conspiracy s 1(1) assumes the existence of an [...]. But on the facts found here, this result [murder] would not have been in accordance with the intention of the appellant. Therefore he was not guilty of conspiracy to murder.'

Answer

intention of the parties to carry out the agreement

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ccomplices, he intended to give a warning enabling the hall to be cleared. HELD: The Court of Appeal of Northern Ireland held per Lowry LJ: 'In regard to the offence of statutory conspiracy s 1(1) assumes the existence of an intention of the parties to carry out the agreement. But on the facts found here, this result [murder] would not have been in accordance with the intention of the appellant. Therefore he was not guilty of conspiracy to murder.' &#

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[ case ]
FACTS: This case involved a conspiracy to effect an escape from prison. The defendant, who was about to be released from prison agreed to supply a fellow prisoner with equipment to cut through the cell bars. He did not succeed in doing so as shortly after being released from prison he was injured in a car crash. Anderson admitted that he intended to supply the cutting equipment, but argued in his defence that he never intended the plan to be carried out and that he did not believe that it could succeed.
HELD: The House of Lords said that this was irrelevant, and they confirmed the conviction.
Lord Bridge said that Parliament could not have intended such a person to escape liability on the basis of lack of intent:

'I am clearly driven to reject any construction of the statutory language which would require the prosecution to prove an intention on the part of each conspirator that the criminal offence which will necessarily be committed by one or more of the conspirators if the agreed course of conduct is fully carried out should in fact be committed.'

However, the Court of Appeal has appeared to overlook Lord Bridge's dicta on several occasions, preferring to follow the wording from the statute. Anderson is not likely to be applied by in the future, because it is clearly wrong.

Answer

R v Anderson [1986] AC 27

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R v Anderson [1986] AC 27 FACTS: This case involved a conspiracy to effect an escape from prison. The defendant, who was about to be released from prison agreed to supply a fellow prisoner with equipment to cut t

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[ case ]
FACTS: A and W were charged with conspiracy to murder. W recruited A to find someone to kill C. The person that A found went to the police and subsequently recorded conversations with both A and W using a concealed tape recorder. A said that although there was an ostensible agreement to kill C, he was motivated by friendship for W and he did not intend to carry out the agreement and was keeping everything under his control.
HELD: The court held that A was not guilty of conspiracy without giving reasons.

Answer

R v Ashton [1992] Crim LR 667

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R v Ashton [1992] Crim LR 667 FACTS: A and W were charged with conspiracy to murder. W recruited A to find someone to kill C. The person that A found went to the police and subsequently recorded conversations with bo

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[ case ]
FACTS: D agreed to supply amphetamine but it may have been that he did not intend to carry out the agreement.
HELD: It was held that the judge had rightly directed the jury that D could not be convicted of conspiracy to supply amphetamine unless he intended to carry out the agreement to do so.

Answer

R v Edwards [1991] Crim LR 45

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R v Edwards [1991] Crim LR 45 FACTS: D agreed to supply amphetamine but it may have been that he did not intend to carry out the agreement. HELD: It was held that the judge had rightly directed the jury that D c

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[ case ]:

'We think it obvious that Lord Bridge cannot have been intending that the organiser of a crime who recruited others to carry it out would not himself be guilty of conspiracy unless it could be proved that he intended to play some active part himself thereafter. The nub of the offence of conspiracy consists of the agreement to do the unlawful act, and that may mean that you are doing it yourself actively or that you are agreeing that somebody else should do it actively. In either event, you are guilty of conspiracy.' (Per O'Connor LJ.)

Answer

R v Siracusa (1990) 90 Cr App R 340

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R v Siracusa (1990) 90 Cr App R 340: 'We think it obvious that Lord Bridge cannot have been intending that the organiser of a crime who recruited others to carry it out would not himself be guilty of conspira

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Although for the time being Anderson represents the law, it is thought unlikely that it would be followed by a future House of Lords. It is also worth noting that the Draft Criminal Code reasserts the traditional view of conspiracy in clause 48, which specifically requires proof that [...].

Answer

a person charged with conspiracy, and at least one other party to the agreement, must have intended the offence to be committed

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ts the law, it is thought unlikely that it would be followed by a future House of Lords. It is also worth noting that the Draft Criminal Code reasserts the traditional view of conspiracy in clause 48, which specifically requires proof that a person charged with conspiracy, and at least one other party to the agreement, must have intended the offence to be committed.<body><html>

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In any case where:

(a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence ([ statute ]); but
(b) if the facts of the case had been as he believed them to be, his intention would be so regarded. then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.' (CAA 1981, s 1(3)(b))

Answer

CAA 1981, s 1(3)(a)

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In any case where: (a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence (CAA 1981, s 1(3)(a)); but (b) if the facts of the case had been as he believed them to be, his intention would be so regarded. then, for the purposes of subsection (1) above, he shall be regarded as having

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In any case where:

(a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence (CAA 1981, s 1(3)(a)); but
(b) if the facts of the case had been as he believed them to be, his intention would be so regarded. then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.' ([ statute ])

Answer

CAA 1981, s 1(3)(b)

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1981, s 1(3)(a)); but (b) if the facts of the case had been as he believed them to be, his intention would be so regarded. then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.' (CAA 1981, s 1(3)(b))<body><html>

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The question of whether the actions of the accused are more than merely preparatory is one of fact to be decided by the jury, providing the judge is satisfied that the actions are capable of being more than merely preparatory: [ statute ].

Answer

CAA 1981, s 4(3)

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y>The question of whether the actions of the accused are more than merely preparatory is one of fact to be decided by the jury, providing the judge is satisfied that the actions are capable of being more than merely preparatory: CAA 1981, s 4(3).<body><html>

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[ case ] HELD: If the substantive offence has the mens rea of either intention or recklessness as to the actus reus, to convict of the attempted offence proof of intention is required.

Answer

R v Toole

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R v Toole HELD: If the substantive offence has the mens rea of either intention or recklessness as to the actus reus, to convict of the attempted offence proof of intention is required. </

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R v Toole HELD: If the substantive offence has the mens rea of [...] as to the actus reus, to convict of the attempted offence proof of intention is required.

Answer

either intention or recklessness

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R v Toole HELD: If the substantive offence has the mens rea of either intention or recklessness as to the actus reus, to convict of the attempted offence proof of intention is required.

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R v Toole HELD: If the substantive offence has the mens rea of either intention or recklessness as to the actus reus, to convict of the attempted offence proof of [...] is required.

Answer

intention

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R v Toole HELD: If the substantive offence has the mens rea of either intention or recklessness as to the actus reus, to convict of the attempted offence proof of intention is required.

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The accused must intend to bring about [...]. This can be illustrated by the case of R v Whybrow. Here, the charge was attempted murder and therefore it was necessary to prove that the defendant intended to kill, not merely to cause GBH.

Answer

the consequences required for the full offence

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The accused must intend to bring about the consequences required for the full offence. This can be illustrated by the case of R v Whybrow. Here, the charge was attempted murder and therefore it was necessary to prove that the defendant intended to kill, not merely to c

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The accused must intend to bring about the consequences required for the full offence. This can be illustrated by the case of [ case ]. Here, the charge was attempted murder and therefore it was necessary to prove that the defendant intended to kill, not merely to cause GBH.

Answer

R v Whybrow

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In [ case ], Lord Lane CJ stated:

'An attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper or the actual commission of the offence.'

Answer

R Gullefer

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In R Gullefer, Lord Lane CJ stated: 'An attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper or the actual commission of the offen

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In R Gullefer, Lord Lane CJ stated:

'An attempt begins when [...] or the actual commission of the offence.'

Answer

the merely preparatory acts come to an end and the defendant embarks on the crime proper

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In R Gullefer, Lord Lane CJ stated: 'An attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper or the actual commission of the offence.'

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Answer

Att-Gen's Ref (No 3 of 1992)

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a of the offence includes an element which does not relate to the actus reus? The mens rea for an attempt to commit this offence is then an intention to achieve that what is missing from the actus reus, plus the mens rea for the full offence. Att-Gen's Ref (No 3 of 1992)<body><html>

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But what if the mens rea of the offence includes an element which does not relate to the actus reus? The mens rea for an attempt to commit this offence is then an intention to [...], plus the mens rea for the full offence. Att-Gen's Ref (No 3 of 1992)

Answer

achieve that what is missing from the actus reus

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But what if the mens rea of the offence includes an element which does not relate to the actus reus? The mens rea for an attempt to commit this offence is then an intention to achieve that what is missing from the actus reus, plus the mens rea for the full offence. Att-Gen's Ref (No 3 of 1992)

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But what if the mens rea of the offence includes an element which does not relate to the actus reus? The mens rea for an attempt to commit this offence is then an intention to achieve that what is missing from the actus reus, plus the mens rea for the full offence. Att-Gen's Ref (No 3 of 1992)
FACTS: The respondents were in a moving car from which a lighted petrol bomb was thrown at an occupied car, beside a pavement on which persons were standing. The bomb passed over the car and hit a wall adjacent to the pavement. The wall was not damaged. They were charged with attempted aggravated arson contrary the Criminal Damage Act 1971, s 1(2). The mens rea for the full offence is: (a) intention or recklessness as to damaging property; and (b) intention or recklessness as to endangering life. The actus reus of this offence is damaging property. There is no need for life to be endangered (see Chapter 11). The trial judge ruled that there was no evidence on which the jury could find an intent to endanger life so the respondents were not liable.
HELD: The Court of Appeal held that for an attempt to commit aggravated arson (Criminal Damage Act 1971, s 1(2)), it was only necessary to prove an intent to [...], together with the other mens rea required for the offence. In the present case, what was missing to prevent a conviction for the completed offence was damage to the property. Therefore for an attempt it must be shown that D had an intention to damage propertyand the remaining state of mind required for the offence of aggravated arson – that is recklessness as to whether life was thereby endangered. It was said that another way of putting it is that the defendant had the state of mind for the full offence and he intended to do the physical element which was missing.

Answer

achieve what was missing from the full offence

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jury could find an intent to endanger life so the respondents were not liable. HELD: The Court of Appeal held that for an attempt to commit aggravated arson (Criminal Damage Act 1971, s 1(2)), it was only necessary to prove an intent to achieve what was missing from the full offence, together with the other mens rea required for the offence. In the present case, what was missing to prevent a conviction for the completed offence was damage to the property. Therefore

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A conditional intention counts as an intention. So where a defendant only intends to commit an offence subject to certain condition(s), the defendant will still have the sufficient mens rea for an attempt, [ case ]. An example of this type of intention is where D picks up a bag and looks through it but decides that there is nothing worth taking. He could be convicted of attempted theft as he has the intention to steal.

Answer

A-G's Ref (Nos 1 & 2 of 1979)

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l>A conditional intention counts as an intention. So where a defendant only intends to commit an offence subject to certain condition(s), the defendant will still have the sufficient mens rea for an attempt, A-G's Ref (Nos 1 & 2 of 1979). An example of this type of intention is where D picks up a bag and looks through it but decides that there is nothing worth taking. He could be convicted of attempted theft as he has

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[ case ] FACTS: D was arrested with a suitcase. He admitted that it contained illegal drugs. It turned out that the contents of the suitcase were not drugs. HELD: He was convicted of attempting to knowingly be concerned in dealing with a prohibited drug contrary to s1(1) Criminal Attempts Act. The conviction was upheld by the House of Lords and the case of Anderton v Ryan was overturned.

Answer

R v Shivpuri [1987] AC 1

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R v Shivpuri [1987] AC 1 FACTS: D was arrested with a suitcase. He admitted that it contained illegal drugs. It turned out that the contents of the suitcase were not drugs. HELD: He was convicted of attemptin

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The [ statute ] provides: 'Subject to the following provisions of this part of the Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

will necessarily amount to or involve the commission of any offence, or
would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.'

Answer

Criminal Law Act 1977 (CLA 1977)

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The Criminal Law Act 1977 (CLA 1977) provides: 'Subject to the following provisions of this part of the Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreem

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Voluntary intoxication
The key case in this area is [ case ]. In this case, the defendant was involved in a pub brawl in which he attacked the landlord and was charged with an assault occasioning actual bodily harm contrary to the Offences Against the Person Act 1861, s 47. The trial judge refused to direct the jury that the defendant's drunkenness may constitute a defence. The defendant was convicted and appealed to the Court of Appeal against his conviction. The Court of Appeal certified the following question for the House of Lords:

'Whether a defendant may properly be convicted of an assault notwithstanding that, by reason of his self-induced incapacity, he did not intend to do the act alleged to constitute the assault.'

The House of Lords held that voluntary intoxication could be a defence to a charge of specific intent, where the defendant's intoxication negated the mens rea required for the offence charged. However, voluntary intoxication would not be a defence to a charge of basic intent. Lord Elwyn-Jones said:

'If a man of his own volition takes a substance which causes him to cast off restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct by reducing himself by drugs and drink to that condition on my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. The drunkenness is in itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. Self-induced intoxication, however gross and even if it has produced a condition akin to automatism cannot excuse crimes of basic intent ...'

Answer

DPP v Majewski [1977] AC 443

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Voluntary intoxication The key case in this area is DPP v Majewski [1977] AC 443. In this case, the defendant was involved in a pub brawl in which he attacked the landlord and was charged with an assault occasioning actual bodily harm contrary to the Offences Agains

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Voluntary intoxication
The key case in this area is DPP v Majewski [1977] AC 443. In this case, the defendant was involved in a pub brawl in which he attacked the landlord and was charged with an assault occasioning actual bodily harm contrary to the Offences Against the Person Act 1861, s 47. The trial judge refused to direct the jury that the defendant's drunkenness may constitute a defence. The defendant was convicted and appealed to the Court of Appeal against his conviction. The Court of Appeal certified the following question for the House of Lords:

'Whether a defendant may properly be convicted of an assault notwithstanding that, by reason of his self-induced incapacity, he did not intend to do the act alleged to constitute the assault.'

The House of Lords held that voluntary intoxication could be a defence to a charge of [...], where the defendant's intoxication negated the mens rea required for the offence charged. However, voluntary intoxication would not be a defence to a charge of basic intent. Lord Elwyn-Jones said:

'If a man of his own volition takes a substance which causes him to cast off restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct by reducing himself by drugs and drink to that condition on my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. The drunkenness is in itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. Self-induced intoxication, however gross and even if it has produced a condition akin to automatism cannot excuse crimes of basic intent ...'

Answer

specific intent

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an assault notwithstanding that, by reason of his self-induced incapacity, he did not intend to do the act alleged to constitute the assault.' The House of Lords held that voluntary intoxication could be a defence to a charge of specific intent, where the defendant's intoxication negated the mens rea required for the offence charged. However, voluntary intoxication would not be a defence to a charge of basic intent. Lord Elwyn

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'Whether a defendant may properly be convicted of an assault notwithstanding that, by reason of his self-induced incapacity, he did not intend to do the act alleged to constitute the assault.'

The House of Lords held that [...] could be a defence to a charge of specific intent, where the defendant's intoxication negated the mens rea required for the offence charged. However, voluntary intoxication would not be a defence to a charge of basic intent. Lord Elwyn-Jones said:

'If a man of his own volition takes a substance which causes him to cast off restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct by reducing himself by drugs and drink to that condition on my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. The drunkenness is in itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. Self-induced intoxication, however gross and even if it has produced a condition akin to automatism cannot excuse crimes of basic intent ...'

Answer

voluntary intoxication

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'Whether a defendant may properly be convicted of an assault notwithstanding that, by reason of his self-induced incapacity, he did not intend to do the act alleged to constitute the assault.' The House of Lords held that voluntary intoxication could be a defence to a charge of specific intent, where the defendant's intoxication negated the mens rea required for the offence charged. However, voluntary intoxication would not be

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'Whether a defendant may properly be convicted of an assault notwithstanding that, by reason of his self-induced incapacity, he did not intend to do the act alleged to constitute the assault.'

'If a man of his own volition takes a substance which causes him to cast off restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct by reducing himself by drugs and drink to that condition on my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. The drunkenness is in itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. Self-induced intoxication, however gross and even if it has produced a condition akin to automatism cannot excuse crimes of basic intent ...'

Answer

basic intent

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eld that voluntary intoxication could be a defence to a charge of specific intent, where the defendant's intoxication negated the mens rea required for the offence charged. However, voluntary intoxication would not be a defence to a charge of basic intent. Lord Elwyn-Jones said: 'If a man of his own volition takes a substance which causes him to cast off restraints of reason and conscience, no wrong is done to him by h

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[ case ]
FACTS: R was a registered dental practitioner who was suspended from practice by the General Dental Council. While she was suspended, she carried out dentistry on a number of patients, one of whom complained to the police. She was subsequently charged with nine counts of assault occasioning actual bodily harm contrary to the OAPA 1961, s 47. At trial, the defence argued that there had been no assault or battery since V consented to the act. The prosecution argued that V's consent had been vitiated by R's failure to disclose that she was suspended. The trial judge's ruling was a remarkable (and brave!) departure from established authority. He ruled that a fundamental deception as to the attributes of the accused would vitiate consent. The case proceeded to trial. The accused was convicted and R appealed against her conviction. HELD: The Court of Appeal overruled the trial judge and held:

Only a deception as to the nature or quality of the act or the accused's identity would vitiate consent.
A deception as to the accused's attributes, status or qualifications would not vitiate consent.

Her conviction was quashed.

Answer

R v Richardson [1999] QB 444

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R v Richardson [1999] QB 444 FACTS: R was a registered dental practitioner who was suspended from practice by the General Dental Council. While she was suspended, she carried out dentistry on a number of patients, o

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For offences against the person, the consent of the victim may also preclude a crime. For sexual offences, lack of consent and a lack of belief in consent are clearly elements of the actus reus and mens rea of the crimes. In other offences against the person, it is not clear whether consent operates as a defence to the crime or whether the absence of consent is an element of the offence. The Law Lords in the important House of Lords case of [ case ] were divided on this. Lords Jauncey and Templeman said consent was a defence, while Lord Mustill said lack of consent was part of the offence. Lord Lowry spoke of it as a defence, but then cited the Law Commission's Draft Code, which treats the absence of consent as an element of the offence of common assault. For the purposes of this course it is being treated as a defence.

Answer

R v Brown [1994] AC 212

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ea of the crimes. In other offences against the person, it is not clear whether consent operates as a defence to the crime or whether the absence of consent is an element of the offence. The Law Lords in the important House of Lords case of R v Brown [1994] AC 212 were divided on this. Lords Jauncey and Templeman said consent was a defence, while Lord Mustill said lack of consent was part of the offence. Lord Lowry spoke of it as a defence, but

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The court reached a strange decision regarding a drunken belief in consent in the case of [ case ]. Here, the defendants were university students. After drinking at a student union bar they decamped to a flat belonging to one of their friends, the victim. Horseplay ensued during which the defendants lifted and dropped the victim over a balcony where he fell a distance of 10–12 feet, sustaining injuries.
The defendants were charged under the Offences Against the Person Act 1861, s 20. The defendants were convicted and appealed against their conviction. The Court of Appeal upheld their appeal and quashed their convictions on the basis that there had been misdirection by the trial judge. Their Lordships stated:

that if the jury were satisfied that V had in fact consented to the accidental infliction of injury, this would be a defence; and
that the jury should have been allowed to consider whether the defendant believed that V consented, even if the defendants wrongly believed that V consented due to their intoxication!

See also the case of R v Aitken [1992] 1WLR 1006, which came to a similar conclusion.

Answer

R v Richardson and Irwin [1999] 1 Cr App R 392

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The court reached a strange decision regarding a drunken belief in consent in the case of R v Richardson and Irwin [1999] 1 Cr App R 392. Here, the defendants were university students. After drinking at a student union bar they decamped to a flat belonging to one of their friends, the victim. Horseplay ensued during whic

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[ case ] HELD: The Court of Appeal said that in organised sport, criminal prosecution should be reserved for those situations where the conduct was sufficiently grave properly to be categorised as criminal. If what occurred went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, this would indicate that the conduct was not covered by the defence of consent. Whether conduct reached this level depended on all the circumstances, which included the type of sport, the level at which it was played, the nature of the act, the degree of force used, the extent of the risk of injury, and the state of mind of the defendant. In highly competitive sports, conduct outside the rules might be expected to occur in the heat of the moment; the fact that such conduct was penalised and even resulted in a warning or a sending off, did not necessarily mean that the threshold level required for it to be regarded as criminal had been reached. Here, V had sustained a serious leg injury as a result of a late tackle by D in a football match. The jury needed to consider whether the contact had been so obviously late and/or violent that it was not to be regarded as an instinctive reaction, error or misjudgement in the heat of the game.

Answer

R v Barnes [2005] WLR 910

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R v Barnes [2005] WLR 910 HELD: The Court of Appeal said that in organised sport, criminal prosecution should be reserved for [...] properly to be categorised as criminal. If what occurred went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, this would indicate that the conduct was not covered by the defence of consent. Whether conduct reached this level depended on all the circumstances, which included the type of sport, the level at which it was played, the nature of the act, the degree of force used, the extent of the risk of injury, and the state of mind of the defendant. In highly competitive sports, conduct outside the rules might be expected to occur in the heat of the moment; the fact that such conduct was penalised and even resulted in a warning or a sending off, did not necessarily mean that the threshold level required for it to be regarded as criminal had been reached. Here, V had sustained a serious leg injury as a result of a late tackle by D in a football match. The jury needed to consider whether the contact had been so obviously late and/or violent that it was not to be regarded as an instinctive reaction, error or misjudgement in the heat of the game.

Answer

those situations where the conduct was sufficiently grave

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R v Barnes [2005] WLR 910 HELD: The Court of Appeal said that in organised sport, criminal prosecution should be reserved for those situations where the conduct was sufficiently grave properly to be categorised as criminal. If what occurred went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, this would indicate that t

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[ case ] FACTS: B punched G and fractured his jaw in two places during a rugby match. He was charged under the OAPA 1861, s 20. HELD: The judge directed that the players are deemed to consent to force of 'a kind which could reasonably be expected to happen during a game'. The jury decided that consent had been given. The victim said he had been punched on previous occasions and had punched others. Mervyn Davies, a former Welsh International said that in the modern game punching is the rule not the exception!

Answer

R v Billinghurst [1978] Crim LR 553

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R v Billinghurst [1978] Crim LR 553 FACTS: B punched G and fractured his jaw in two places during a rugby match. He was charged under the OAPA 1861, s 20. HELD: The judge directed that the players are deemed to consent to

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The [ statute ] identifies three defences to which the section applies:

(a) the common law defence of self-defence; and
(aa) the common law defence of defence of property; and
(b) the defence provided by section 3(1) of the Criminal Law Act 1967 (c 58) ... (use of force in prevention of crime or making arrest).

Answer

CJIA 2008, s 76(2)

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The CJIA 2008, s 76(2) identifies three defences to which the section applies:

(a) the common law defence of self-defence; and
(aa) the common law defence of defence of property; and
(b) the defence provided by section [ statute ] ... (use of force in prevention of crime or making arrest).

Answer

3(1) of the Criminal Law Act 1967 (c 58)

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The CJIA 2008, s 76(2) identifies three defences to which the section applies: (a) the common law defence of self-defence; and (aa) the common law defence of defence of property; and (b) the defence provided by section 3(1) of the Criminal Law Act 1967 (c 58) ... (use of force in prevention of crime or making arrest). <html>

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The [ statute ] does not purport to set out in comprehensive form the whole of the law relating to these defences: it does not, for example, codify all the provisions of either the common law defence or the statutory defence under the Criminal Justice Act 1967 (which remains in force). However, academics such as Dennis J. Baker and Glanville Williams Textbook of Criminal Law (Sweet & Maxwell, 2015) have adopted the CJIA 2008, s 76 as the basis for the structure of the defences. A similar approach has been taken by judges reviewing the defence in the Court of Appeal: see for example R v Dawes, Hatter & Bower [2013] EWCA Crim 322. Therefore, it appears sensible to adopt the same approach and to use the CJIA 2008, s 76 to give an overview of the defences.

Answer

CJIA 2008, s 76

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The CJIA 2008, s 76 does not purport to set out in comprehensive form the whole of the law relating to these defences: it does not, for example, codify all the provisions of either the common law defence

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The CJIA 2008, s 76 does not purport to set out in comprehensive form the whole of the law relating to these defences: it does not, for example, codify all the provisions of either the common law defence or the statutory defence under the Criminal Justice Act 1967 (which remains in force). However, academics such as Dennis J. Baker and Glanville Williams Textbook of Criminal Law (Sweet & Maxwell, 2015) have adopted the CJIA 2008, s 76 as the basis for the structure of the defences. A similar approach has been taken by judges reviewing the defence in the Court of Appeal: see for example [ case ]. Therefore, it appears sensible to adopt the same approach and to use the CJIA 2008, s 76 to give an overview of the defences.

Answer

R v Dawes, Hatter & Bower [2013] EWCA Crim 322

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Textbook of Criminal Law (Sweet & Maxwell, 2015) have adopted the CJIA 2008, s 76 as the basis for the structure of the defences. A similar approach has been taken by judges reviewing the defence in the Court of Appeal: see for example R v Dawes, Hatter & Bower [2013] EWCA Crim 322. Therefore, it appears sensible to adopt the same approach and to use the CJIA 2008, s 76 to give an overview of the defences.<body><html>

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S[...] If D claims to have held a particular belief as regards the existence of any circumstances—

(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—
- (i) it was mistaken, or
- (ii) (if it was mistaken) the mistake was a reasonable one to have made.

Answer

76 (4)

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S76 (4) If D claims to have held a particular belief as regards the existence of any circumstances— (a) the reasonableness or otherwise of that belief is relevant to the question whether D

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For the most part, the CJIA 2008, s 76 was intended to clarify both the common law and the statutory defences. It initially made no discernable changes to the previous law but simply re- enacted the old common law principles in statutory form. However, the most recent amendments do seek to make a change to the law that applies where the defendant seeking to make use of any of these defences is a 'householder'. The [ statute ] states:

'This section, except so far as making different provision for householder cases, is intended to clarify the operation of the existing defences mentioned in subsection (2).'

Answer

CJIA 2008, s 76(9)

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simply re- enacted the old common law principles in statutory form. However, the most recent amendments do seek to make a change to the law that applies where the defendant seeking to make use of any of these defences is a 'householder'. The CJIA 2008, s 76(9) states: 'This section, except so far as making different provision for householder cases, is intended to clarify the operation of the existing defences mentioned in subsecti

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For the most part, the [ statute ] was intended to clarify both the common law and the statutory defences. It initially made no discernable changes to the previous law but simply re- enacted the old common law principles in statutory form. However, the most recent amendments do seek to make a change to the law that applies where the defendant seeking to make use of any of these defences is a 'householder'. The CJIA 2008, s 76(9) states:

'This section, except so far as making different provision for householder cases, is intended to clarify the operation of the existing defences mentioned in subsection (2).'

Answer

CJIA 2008, s 76

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For the most part, the CJIA 2008, s 76 was intended to clarify both the common law and the statutory defences. It initially made no discernable changes to the previous law but simply re- enacted the old common law principles

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Self-defence May be Used by an Antagonist
[ case ] FACTS: F was a tenant of W who had retained F's deposit on termination of the tenancy. F and others burst into the premises and removed some of W's property. Evidence suggested that while on the premises F could have been attacked by W. The judge told the jury:

'... if F went in as a trespasser, though, how can he possibly say that he was being unlawfully attacked when W rushed at him, and if he was not unlawfully attacked when W rushed at him, how can there be any room for any suggestion that he was merely defending himself by any blow that he might have struck subsequently? Well, it is a matter for you. You have got to try this case according to the evidence.'

HELD: His appeal against conviction for assault was allowed. It was held that this direction was, in effect, removing from the jury's consideration the issue of whether or not F was attacked by W, in such a way as to entitle him to use reasonable force to defend himself. Whether or not F was a trespasser did not entitle W to use excessive force to remove him. F would be entitled to rely on self-defence if W used excessive force in attempting to remove him, if that was what W was trying to do.

Answer

R v Forrester [1992] Crim LR 792 (CA)

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Self-defence May be Used by an Antagonist R v Forrester [1992] Crim LR 792 (CA) FACTS: F was a tenant of W who had retained F's deposit on termination of the tenancy. F and others burst into the premises and removed some of W's property. Evidence suggested that whil

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Non 'householder' Cases: the Level of Force Used Must be Reasonable
This is an objective test. The relevant provisions of the [ statute ] are:

(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question ...'
(6) In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.
(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case) —
- (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
- (b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
(8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).'

Again, this does not change the law from that set out in common law cases that predated the provisions and, indeed, some of those provisions are taken from the judgments referred to below.

Answer

CJIA 2008, s 76

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Non 'householder' Cases: the Level of Force Used Must be Reasonable This is an objective test. The relevant provisions of the CJIA 2008, s 76 are: (3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and sub

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Force Can be Used Against an Innocent Third Party
In [ case ], the Court of Appeal confirmed that the defendant could use force against an innocent third party to protect himself. In this case, D had moved in with a friend (Y), but Y's ex-boyfriend objected to the arrangement. He had come to the flat twice and threatened D. The police were called on both occasions, and warned the ex- boyfriend to stay away. On one previous occasion he had gained access to the flat and attempted to fight D. The ex-boyfriend came to the flat again and Y wanted to let him in. D urged her not to, and slapped her across the face when she would not listen to him. D claimed that he had used reasonable force to prevent the commission of a crime/act in self- defence, since, if the ex-boyfriend had entered the flat, there might have been an altercation between them. In response to a jury question, the judge stated that Y was not about to commit a crime, and the possibility that the ex-boyfriend might do so was not sufficient to justify D's actions in slapping her. D was convicted. He appealed, submitting that the judge had erred in directing that self-defence was not available to him. The appeal was dismissed. However, the court did confirm that this defence was capable of extending to the use of force against an innocent third party to prevent a crime being committed by someone else. The court felt that facts capable of giving rise to such a defence would only rarely be encountered and might include: a police constable bundling a passerby out of the way to get at a man he believed was about to shoot with a firearm or detonate an explosive device; a person seeking to give car keys to another to enable him to drive and X, believing that other to be unfit to drive through drink, knocked the keys out of the first person's hands and retained them.

Answer

R v Hichens [2011] 2 Cr. App. R. 26

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Force Can be Used Against an Innocent Third Party In R v Hichens [2011] 2 Cr. App. R. 26, the Court of Appeal confirmed that the defendant could use force against an innocent third party to protect himself. In this case, D had moved in with a friend (Y), but Y's ex-boyfrien

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S76(7)(b) ‘that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose’‘ is also taken from [ case ].

Answer

R v Palmer

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of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose’‘ is also taken from R v Palmer.<body><html>

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Duress is Only Available if there was No Evasive Action he could Reasonably Have Been Expected to Take
Where the defendant had an opportunity to avoid the consequences of the threat (e.g. by going to the police), the defence of duress is unlikely to succeed. However, a failure to take such an opportunity will not always prevent the defence from operating.
[ case ] FACTS: Two girls, called as witnesses for the prosecution, gave false evidence because they had been threatened with serious physical injury if they told the truth. They saw one of the gang in the gallery of the court. HELD: They were allowed the defence of duress to a charge of perjury. Lord Widgery said:

'It is clearly established that duress provides a defence ... if the will of the accused has been overborne by threats of death or serious injury so that the commission of the alleged offence was no longer the voluntary act of the accused. It is essential to the defence of duress that the threat must be a present threat, in the sense that it is effective to neutralise the will of the accused at the time ... a threat of future violence may be so remote as to be insufficient to overpower the will at the moment when the offence was committed ... In the present case the threats were likely to be no less compelling, because their execution could not be effected in the courtroom, if they could be carried out in the streets the same night.'

However he did also say, obiter:

'It was always open for the Crown to prove that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective. In deciding if such an opportunity arose, the jury should have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied on.'

Answer

R v Hudson & Taylor [1971] 2 All ER 244 (CA)

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nt had an opportunity to avoid the consequences of the threat (e.g. by going to the police), the defence of duress is unlikely to succeed. However, a failure to take such an opportunity will not always prevent the defence from operating. R v Hudson & Taylor [1971] 2 All ER 244 (CA) FACTS: Two girls, called as witnesses for the prosecution, gave false evidence because they had been threatened with serious physical injury if they told the truth. They saw one of the g

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The Defendant May Not Rely on Duress to which he has Voluntarily Laid Himself Open
Where the defendant exposes himself to the risk of being threatened, for example by voluntarily joining a violent gang, he will not usually be allowed to use the defence of duress. [ case ] FACTS: The accused joined a gang of robbers. He knew they used firearms. He participated in a robbery upon a sub-post office but claimed he had been forced to do so by one of the other robbers who had threatened to kill him if he did not carry through the plan. The accused was convicted of manslaughter and appealed. HELD:

'In our judgment, where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress … If a person could avoid the effects of duress by escaping from the threats without damage to himself, he must do so. It seemed to be part of the same argument to say that a man must not voluntarily put himself in a position where he was likely to be subjected to such compulsion.' (Per Lord Lane CJ)

However, the defence might succeed where the defendant could not have foreseen the possibility of violence being used.

Answer

R v Sharp [1987] QB 853 (CA)

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on Duress to which he has Voluntarily Laid Himself Open Where the defendant exposes himself to the risk of being threatened, for example by voluntarily joining a violent gang, he will not usually be allowed to use the defence of duress. R v Sharp [1987] QB 853 (CA) FACTS: The accused joined a gang of robbers. He knew they used firearms. He participated in a robbery upon a sub-post office but claimed he had been forced to do so by one of the other r

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[ case ]
FACTS: S had been in a gang of shoplifters/burglars who then carried out other offences and was charged with several offences of burglary. He wanted to leave the gang, but was threatened with violence to himself and his family and was compelled to carry on with the burglaries.
HELD: Mustill LJ, in the Court of Appeal, held:

'There are certain kinds of criminal enterprise the joining of which, in the absence of any knowledge of propensity to violence on the part of one member, would not lead another to suspect that a decision to think better of the whole affair might lead him into serious trouble. If trouble were to unexpectedly materialise the defence of duress might be available.'

So what the Court of Appeal were, in effect, saying in this case was that when a defendant joins a criminal enterprise and has no knowledge of their propensity for violence, but then he is threatened in order to get him to carry out other activities, the defence may be available to him.

Answer

R v Shepherd (1987) 86 Cr App R 47 (CA)

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R v Shepherd (1987) 86 Cr App R 47 (CA) FACTS: S had been in a gang of shoplifters/burglars who then carried out other offences and was charged with several offences of burglary. He wanted to leave the gang, but was threatened

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There have, however, been exceptions where a defence of necessity has been allowed, either under common law or through specific statutory provision:
(a) Mouse's Case [1608] 12 Co Rep 63.
(b) Criminal Damage Act 1971, s 5(2)(b) (see Chapter 11).
(c) Traffic Signs Regulations and General Directions 1994, SI 1994/1519, reg 33 – which provides the specific defence for emergency service drivers 'jumping' red lights denied in Buckoke v GLC (above).
(d) [ case ], where the court confined its decision to the very special circumstances of the case.
(e) In medical cases where what is done is considered to be in the best interests of the 'victim': Gillick v Wisbech and West Norfolk Area Health Authority [1986] AC 112 (HL), Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (HL).

Answer

Re A (Minors) Conjoined Twins: Medical Treatment [2000] 4 All ER 961 (CA)

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5(2)(b) (see Chapter 11). (c) Traffic Signs Regulations and General Directions 1994, SI 1994/1519, reg 33 – which provides the specific defence for emergency service drivers 'jumping' red lights denied in Buckoke v GLC (above). (d) Re A (Minors) Conjoined Twins: Medical Treatment [2000] 4 All ER 961 (CA), where the court confined its decision to the very special circumstances of the case. (e) In medical cases where what is done is considered to be in the best interests of the 'vict

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There have, however, been exceptions where a defence of necessity has been allowed, either under common law or through specific statutory provision:
(a) Mouse's Case [1608] 12 Co Rep 63.
(b) Criminal Damage Act 1971, s 5(2)(b) (see Chapter 11).
(c) Traffic Signs Regulations and General Directions 1994, SI 1994/1519, reg 33 – which provides the specific defence for emergency service drivers 'jumping' red lights denied in Buckoke v GLC (above).
(d) Re A (Minors) Conjoined Twins: Medical Treatment [2000] 4 All ER 961 (CA), where the court confined its decision to the very special circumstances of the case.
(e) In medical cases where what is done is considered to be in the best interests of the 'victim': [ case ], Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (HL).

Answer

Gillick v Wisbech and West Norfolk Area Health Authority [1986] AC 112 (HL)

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ed Twins: Medical Treatment [2000] 4 All ER 961 (CA), where the court confined its decision to the very special circumstances of the case. (e) In medical cases where what is done is considered to be in the best interests of the 'victim': Gillick v Wisbech and West Norfolk Area Health Authority [1986] AC 112 (HL), Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (HL).<body><html>

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[ case ]
FACTS: A-H, a Shiite Muslim from Southern Iraq, was a refugee living in Sudan, where he helped fellow refugees leave Sudan by forging passports and bribing officials. He had tried to leave Sudan himself on a number of occasions but had been unable to do so. His permit to stay in Sudan had expired and he feared that he would be deported to Iraq, where he would be executed. He and others boarded a flight from Sudan. Once in Egyptian airspace, they hijacked the aeroplane and demanded to go to London. The aeroplane landed at Stansted Airport. A-H was charged with hijacking and pleaded the defence of duress of circumstances. The trial judge refused to put the defence to the jury because A-H had not made the decision to hijack the aircraft out of a fear of 'immediate' death or serious personal harm. A-H was convicted.
HELD: The Court of Appeal quashed his conviction holding that: (1) duress of circumstances could be a defence to a charge of hijacking, although in such cases, the terror-induced innocent passengers would generally raise issues of proportionality in determining whether a reasonable man would have done what the hijacker did; (2) the defence was not limited to where the accused had committed a crime as a 'virtually spontaneous reaction' to a threat of death or serious harm as the trial judge had suggested; and (3) the defence was available where the threat of death or serious harm was 'imminent' even though it was not 'immediate'. The court held that the period of time between the perceived peril and the accused's act was a relevant factor for the jury to bear in mind when considering the proportionality of the accused's act but was not determinative. The jury had to ask themselves whether the threat was so imminent to the accused's act that it overbore his will. When considering this, the jury would also have to consider the number, identity, and status of those making the threat and the opportunities (if any) the accused had of avoiding the threat.

'If Anne Frank had stolen a car to escape from Amsterdam and been charged with theft, the tenets of English law would not, in our judgment, have denied her a defence of duress of circumstances, on the grounds that she should have waited for the Gestapo's knock on the door.' (Per Rose LJ.)

If the jury had been properly directed it is unlikely it would have allowed the defence. Dennis J Baker points out that these men landed safely in Cyprus and could have sought refuge there, but instead took women and children on a further flight to England. He questions their motives for doing so when there was no need for them to fly any further than Cyprus, especially as Cyprus is a safe country that has been a signatory to the Convention Relating to the Status of Refugees (Geneva, 28 July 1951) since 1963.

Answer

R v Abdul-Hussain [1999] Crim LR 570 (CA)

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R v Abdul-Hussain [1999] Crim LR 570 (CA) FACTS: A-H, a Shiite Muslim from Southern Iraq, was a refugee living in Sudan, where he helped fellow refugees leave Sudan by forging passports and bribing officials. He had tried to lea

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Beneficiaries may give to the trustee(s) a written direction to retire from the trust and/or a written direction to appoint by writing the person(s) specified in the written direction as trustee(s) ([ statute ])

Answer

TLATA 1996, s 19(2)

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Beneficiaries may give to the trustee(s) a written direction to retire from the trust and/or a written direction to appoint by writing the person(s) specified in the written direction as trustee(s) (TLATA 1996, s 19(2))

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By [ statute ], the trustees’ powers may be made subject to the consent of the beneficiaries (or other persons), if so stated by the settlor/testator in the instrument creating the trust. A purchaser of the land need only be concerned that the consents of any two of them have been obtained (TLATA 1996, s 10(1)). However, the trustees will be in breach of trust if they fail to obtain all consents required. Where the trust instrument requires the trustees to obtain the consent of a minor in the exercise of their powers, then the trustees must obtain the consent from those who have parental responsibility for that minor or from a guardian of the minor (TLATA 1996, s 10(3)).

Answer

TLATA 1996, s 8(2)

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By TLATA 1996, s 8(2), the trustees’ powers may be made [...], if so stated by the settlor/testator in the instrument creating the trust. A purchaser of the land need only be concerned that the consents of any two of them have been obtained (TLATA 1996, s 10(1)). However, the trustees will be in breach of trust if they fail to obtain all consents required. Where the trust instrument requires the trustees to obtain the consent of a minor in the exercise of their powers, then the trustees must obtain the consent from those who have parental responsibility for that minor or from a guardian of the minor (TLATA 1996, s 10(3)).

Answer

subject to the consent of the beneficiaries (or other persons)

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By TLATA 1996, s 8(2), the trustees’ powers may be made subject to the consent of the beneficiaries (or other persons), if so stated by the settlor/testator in the instrument creating the trust. A purchaser of the land need only be concerned that the consents of any two of them have been obtained (TLA

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By TLATA 1996, s 8(2), the trustees’ powers may be made subject to the consent of the beneficiaries (or other persons), if so stated by the settlor/testator in the instrument creating the trust. A purchaser of the land need only be concerned that the consents of any two of them have been obtained ([ statute ]). However, the trustees will be in breach of trust if they fail to obtain all consents required. Where the trust instrument requires the trustees to obtain the consent of a minor in the exercise of their powers, then the trustees must obtain the consent from those who have parental responsibility for that minor or from a guardian of the minor (TLATA 1996, s 10(3)).

Answer

TLATA 1996, s 10(1)

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ject to the consent of the beneficiaries (or other persons), if so stated by the settlor/testator in the instrument creating the trust. A purchaser of the land need only be concerned that the consents of any two of them have been obtained (TLATA 1996, s 10(1)). However, the trustees will be in breach of trust if they fail to obtain all consents required. Where the trust instrument requires the trustees to obtain the consent of a minor in t

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By TLATA 1996, s 8(2), the trustees’ powers may be made subject to the consent of the beneficiaries (or other persons), if so stated by the settlor/testator in the instrument creating the trust. A purchaser of the land need only be concerned that the consents of any two of them have been obtained (TLATA 1996, s 10(1)). However, the trustees will be in breach of trust if they fail to obtain all consents required. Where the trust instrument requires the trustees to obtain the consent of a minor in the exercise of their powers, then the trustees must obtain the consent from those who have parental responsibility for that minor or from a guardian of the minor ([ statute ]).

Answer

TLATA 1996, s 10(3)

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e trust instrument requires the trustees to obtain the consent of a minor in the exercise of their powers, then the trustees must obtain the consent from those who have parental responsibility for that minor or from a guardian of the minor (TLATA 1996, s 10(3)).<body><html>

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Question

Under [ statute ], the wide powers set out in ss 6 and 7 can be excluded or restricted by the settlor/testator in the document/will giving rise to the trust of land.

Answer

TLATA 1995, s 8

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Under TLATA 1995, s 8, the wide powers set out in ss 6 and 7 can be excluded or restricted by the settlor/testator in the document/will giving rise to the trust of land.

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Under TLATA 1995, s 8, the wide powers set out in ss 6 and 7 can be excluded or restricted by the settlor/testator in the [...].

Answer

document/will giving rise to the trust of land

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Under TLATA 1995, s 8, the wide powers set out in ss 6 and 7 can be excluded or restricted by the settlor/testator in the document/will giving rise to the trust of land.

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[ statute ] allows the trustees, where the beneficiaries are of full age and capacity and absolutely entitled to the land, to convey the land to these beneficiaries, even if the beneficiaries do not require the trustees to do so.

Answer

TLATA 1996, s 6(2)

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TLATA 1996, s 6(2) allows the trustees, where the beneficiaries are of full age and capacity and absolutely entitled to the land, to convey the land to these beneficiaries, even if the beneficiaries do n

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By [ statute ], all trustees of land may jointly, by power of attorney, delegate any of their functions as trustees to any beneficiary/beneficiaries of full age, who is/are beneficially entitled to an interest in possession in the land subject to the trust. This includes delegation of the power to sell the land. Beneficiaries to whom functions have been delegated are in the same position as trustees regarding their duties and liabilities in exercising their functions. However, only the trustees can give a valid receipt for the purchase money. This preserves their role in overreaching. The delegation may be for any period of time and must be made by all trustees. However the delegation may be revoked by any one or more trustees (TLATA 1996, s 9(3)).

Answer

TLATA 1996, s 9

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By TLATA 1996, s 9, all trustees of land may jointly, by power of attorney, delegate any of their functions as trustees to any beneficiary/beneficiaries of full age, who is/are beneficially entitled to

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By TLATA 1996, s 9, all trustees of land may jointly, by power of attorney, delegate any of their functions as trustees to any beneficiary/beneficiaries of full age, who is/are beneficially entitled to an interest in possession in the land subject to the trust. This includes delegation of the power to sell the land. Beneficiaries to whom functions have been delegated are in the same position as trustees regarding their duties and liabilities in exercising their functions. However, only the trustees can give a valid receipt for the purchase money. This preserves their role in overreaching. The delegation may be for any period of time and must be made by all trustees. However the delegation may be revoked by any one or more trustees ([ statute ]).

Answer

TLATA 1996, s 9(3)

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s can give a valid receipt for the purchase money. This preserves their role in overreaching. The delegation may be for any period of time and must be made by all trustees. However the delegation may be revoked by any one or more trustees (TLATA 1996, s 9(3)).<body><html>

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An easement will be implied by common intention where [...].

Answer

land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement sought

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An easement will be implied by common intention where land has been sold/leased to another for a particular purpose and that purpose cannot be fulfilled without the easement sought.

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[ case ]
Essentially, under this rule, where a person, A, owns a plot of land and decides to sell / lease some of this land to another, B, B will impliedly acquire as easements all those rights which A had previously exercised over the land they retain for the benefit of the land they have just sold / leased to B. Prior to the sale / lease, these rights were enjoyed by A as ‘quasi- easements’. They were not fully fledged easements, as a person cannot have an easement over their own land. But once there is a division of ownership and occupation of the land, any quasi-easements that exist at the time of the division can become fully fledged easements benefiting the land which has now become the dominant tenement, provided the requirements under this rule are met.

Answer

Wheeldon v Burrows (1879) 12 Ch D 31

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Wheeldon v Burrows (1879) 12 Ch D 31 Essentially, under this rule, where a person, A, owns a plot of land and decides to sell / lease some of this land to another, B, B will impliedly acquire as easements all those rights w

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[ statute ] was enacted as a word saving provision to ensure that conveyances of land did not have to list each of the various interests attaching to a piece of land. It consequently plays a very valuable role in allowing all rights attached to and benefiting a piece of land (eg the benefit of easements, profits, restrictive covenants etc) to pass automatically to a successor in title of that land without the laborious need to individually list each of those rights expressly within the deed of conveyance.

Answer

LPA 1925, s 62

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LPA 1925, s 62 was enacted as a word saving provision to ensure that conveyances of land did not have to list each of the various interests attaching to a piece of land. It consequently plays a very

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This requirement for prior diversity is something which distinguished implied acquisition by this method from that under the rule in Wheeldon v Burrows. It is clear that acquisition by the latter method requires the grantor to be the common owner and occupier of both the dominant and servient tenements prior to any conveyance (or indeed contract) relating to the dominant tenement. However, [ case ] (see the activity point below) held that no prior diversity of ownership of occupation is needed for s 62 if the right is continuous and apparent. Initially there was doubt as to whether Platt was correctly decided. It was cited as good law by the Court of Appeal in Alford v Hannaford [2011] EWCA Civ 1099 but the same court expressly left the point open in Campbell v Banks [2011] EWCA Civ 61. However in the most recent Court of Appeal decision on this issue Lewison LJ, in Wood v Waddington [2014] EWHC 1358, entertains no such doubts in applying Platt.

Answer

P&S Platt Ltd v Crouch

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s. It is clear that acquisition by the latter method requires the grantor to be the common owner and occupier of both the dominant and servient tenements prior to any conveyance (or indeed contract) relating to the dominant tenement. However, P&S Platt Ltd v Crouch (see the activity point below) held that no prior diversity of ownership of occupation is needed for s 62 if the right is continuous and apparent. Initially there was doubt as to whether

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This requirement for prior diversity is something which distinguished implied acquisition by this method from that under the rule in Wheeldon v Burrows. It is clear that acquisition by the latter method requires the grantor to be the common owner and occupier of both the dominant and servient tenements prior to any conveyance (or indeed contract) relating to the dominant tenement. However, P&S Platt Ltd v Crouch (see the activity point below) held that no prior diversity of ownership of occupation is needed for s 62 if the right is continuous and apparent. Initially there was doubt as to whether Platt was correctly decided. It was cited as good law by the Court of Appeal in Alford v Hannaford [2011] EWCA Civ 1099 but the same court expressly left the point open in Campbell v Banks [2011] EWCA Civ 61. However in the most recent Court of Appeal decision on this issue Lewison LJ, in [ case ], entertains no such doubts in applying Platt.

Answer

Wood v Waddington [2014] EWHC 1358

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od law by the Court of Appeal in Alford v Hannaford [2011] EWCA Civ 1099 but the same court expressly left the point open in Campbell v Banks [2011] EWCA Civ 61. However in the most recent Court of Appeal decision on this issue Lewison LJ, in Wood v Waddington [2014] EWHC 1358, entertains no such doubts in applying Platt.<body><html>

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It had traditionally been thought that implied acquisition by virtue of [ statute ] would only operate where there was diversity of ownership or occupation of the dominant and servient tenements prior to the conveyance. However, as you will see below, that appears to no longer be the case, at least where there is a continuous and apparent quasi-easement.

Answer

LPA 1925, s 62

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It had traditionally been thought that implied acquisition by virtue of LPA 1925, s 62 would only operate where there was diversity of ownership or occupation of the dominant and servient tenements prior to the conveyance. However, as you will see

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An equitable easement will arise in the following circumstances:
(a) Where the grantor of the easement has an equitable rather than a legal estate. The minimum requirement here is that the easement must be in writing and signed by the grantor: [ statute ]. This type of equitable easement is very rare.
(b) Where an easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s (1)(2) definition of a legal easement) the grant again needs to comply with LPA 1925, s 53(1)(a).
(c) Where the parties have failed to fulfil the formal requirements for the creation of a legal easement (for example, by not utilising a deed or by failing to register an expressly granted/reserved easement granted out of registered land). Where this has occurred it may be possible to see the failed attempt to grant an easement as an agreement (contract) to create it. Obviously, to be able to do so the failed attempt must fulfil the requirements for a valid contract as stipulated in LP(MP)A 1989, s 2. Where a valid contract exists and is one deemed capable of specific performance, the application of the maxim ‘equity sees as done that which ought to be done’, enables equity to see this failed attempt to create a legal easement as creating an equitable one instead.
(d) Where the parties have deliberately entered into a contract to grant a legal easement in the future. The contract must comply with the formalities in LP(MP)A 1989, s 2 and be one that is capable of specific performance. It is then the application of the maxim discussed above which allows an equitable easement to arise from this contract.
(e) Where the easement is implied in the acquisition of an equitable estate. As this is an implied easement there are no additional formalities to comply with; the easement must simply be implied into a document which creates an equitable estate.

Answer

LPA 1925, s 53(1)(a)

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itable easement will arise in the following circumstances: (a) Where the grantor of the easement has an equitable rather than a legal estate. The minimum requirement here is that the easement must be in writing and signed by the grantor: LPA 1925, s 53(1)(a). This type of equitable easement is very rare. (b) Where an easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s (1)(2) definition

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An equitable easement will arise in the following circumstances:
(a) Where the grantor of the easement has an equitable rather than a legal estate. The minimum requirement here is that the easement must be in writing and signed by the grantor: LPA 1925, s 53(1)(a). This type of equitable easement is very rare.
(b) Where an easement has been created for an uncertain duration (and therefore does not fall under the [ statute ] definition of a legal easement) the grant again needs to comply with LPA 1925, s 53(1)(a).
(c) Where the parties have failed to fulfil the formal requirements for the creation of a legal easement (for example, by not utilising a deed or by failing to register an expressly granted/reserved easement granted out of registered land). Where this has occurred it may be possible to see the failed attempt to grant an easement as an agreement (contract) to create it. Obviously, to be able to do so the failed attempt must fulfil the requirements for a valid contract as stipulated in LP(MP)A 1989, s 2. Where a valid contract exists and is one deemed capable of specific performance, the application of the maxim ‘equity sees as done that which ought to be done’, enables equity to see this failed attempt to create a legal easement as creating an equitable one instead.
(d) Where the parties have deliberately entered into a contract to grant a legal easement in the future. The contract must comply with the formalities in LP(MP)A 1989, s 2 and be one that is capable of specific performance. It is then the application of the maxim discussed above which allows an equitable easement to arise from this contract.
(e) Where the easement is implied in the acquisition of an equitable estate. As this is an implied easement there are no additional formalities to comply with; the easement must simply be implied into a document which creates an equitable estate.

Answer

LPA 1925, s (1)(2)

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s that the easement must be in writing and signed by the grantor: LPA 1925, s 53(1)(a). This type of equitable easement is very rare. (b) Where an easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s (1)(2) definition of a legal easement) the grant again needs to comply with LPA 1925, s 53(1)(a). (c) Where the parties have failed to fulfil the formal requirements for the creation of a

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An equitable easement will arise in the following circumstances:
(a) Where the grantor of the easement has an equitable rather than a legal estate. The minimum requirement here is that the easement must be in writing and signed by the grantor: LPA 1925, s 53(1)(a). This type of equitable easement is very rare.
(b) Where an easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s (1)(2) definition of a legal easement) the grant again needs to comply with [ statute ].
(c) Where the parties have failed to fulfil the formal requirements for the creation of a legal easement (for example, by not utilising a deed or by failing to register an expressly granted/reserved easement granted out of registered land). Where this has occurred it may be possible to see the failed attempt to grant an easement as an agreement (contract) to create it. Obviously, to be able to do so the failed attempt must fulfil the requirements for a valid contract as stipulated in LP(MP)A 1989, s 2. Where a valid contract exists and is one deemed capable of specific performance, the application of the maxim ‘equity sees as done that which ought to be done’, enables equity to see this failed attempt to create a legal easement as creating an equitable one instead.
(d) Where the parties have deliberately entered into a contract to grant a legal easement in the future. The contract must comply with the formalities in LP(MP)A 1989, s 2 and be one that is capable of specific performance. It is then the application of the maxim discussed above which allows an equitable easement to arise from this contract.
(e) Where the easement is implied in the acquisition of an equitable estate. As this is an implied easement there are no additional formalities to comply with; the easement must simply be implied into a document which creates an equitable estate.

Answer

LPA 1925, s 53(1)(a)

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This type of equitable easement is very rare. (b) Where an easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s (1)(2) definition of a legal easement) the grant again needs to comply with LPA 1925, s 53(1)(a). (c) Where the parties have failed to fulfil the formal requirements for the creation of a legal easement (for example, by not utilising a deed or by failing to register an express

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An equitable easement will arise in the following circumstances:
(a) Where the grantor of the easement has an equitable rather than a legal estate. The minimum requirement here is that the easement must be in writing and signed by the grantor: LPA 1925, s 53(1)(a). This type of equitable easement is very rare.
(b) Where an easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s (1)(2) definition of a legal easement) the grant again needs to comply with LPA 1925, s 53(1)(a).
(c) Where the parties have failed to fulfil the formal requirements for the creation of a legal easement (for example, by not utilising a deed or by failing to register an expressly granted/reserved easement granted out of registered land). Where this has occurred it may be possible to see the failed attempt to grant an easement as an agreement (contract) to create it. Obviously, to be able to do so the failed attempt must fulfil the requirements for a valid contract as stipulated in [ statute ]. Where a valid contract exists and is one deemed capable of specific performance, the application of the maxim ‘equity sees as done that which ought to be done’, enables equity to see this failed attempt to create a legal easement as creating an equitable one instead.
(d) Where the parties have deliberately entered into a contract to grant a legal easement in the future. The contract must comply with the formalities in LP(MP)A 1989, s 2 and be one that is capable of specific performance. It is then the application of the maxim discussed above which allows an equitable easement to arise from this contract.
(e) Where the easement is implied in the acquisition of an equitable estate. As this is an implied easement there are no additional formalities to comply with; the easement must simply be implied into a document which creates an equitable estate.

Answer

LP(MP)A 1989, s 2

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this has occurred it may be possible to see the failed attempt to grant an easement as an agreement (contract) to create it. Obviously, to be able to do so the failed attempt must fulfil the requirements for a valid contract as stipulated in LP(MP)A 1989, s 2. Where a valid contract exists and is one deemed capable of specific performance, the application of the maxim ‘equity sees as done that which ought to be done’, enables equity to see t

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Question

An equitable easement will arise in the following circumstances:
(a) Where the grantor of the easement has an equitable rather than a legal estate. The minimum requirement here is that the easement must be in writing and signed by the grantor: LPA 1925, s 53(1)(a). This type of equitable easement is very rare.
(b) Where an easement has been created for an uncertain duration (and therefore does not fall under the LPA 1925, s (1)(2) definition of a legal easement) the grant again needs to comply with LPA 1925, s 53(1)(a).
(c) Where the parties have failed to fulfil the formal requirements for the creation of a legal easement (for example, by not utilising a deed or by failing to register an expressly granted/reserved easement granted out of registered land). Where this has occurred it may be possible to see the failed attempt to grant an easement as an agreement (contract) to create it. Obviously, to be able to do so the failed attempt must fulfil the requirements for a valid contract as stipulated in LP(MP)A 1989, s 2. Where a valid contract exists and is one deemed capable of specific performance, the application of the maxim ‘equity sees as done that which ought to be done’, enables equity to see this failed attempt to create a legal easement as creating an equitable one instead.
(d) Where the parties have deliberately entered into a contract to grant a legal easement in the future. The contract must comply with the formalities in [ statute ] and be one that is capable of specific performance. It is then the application of the maxim discussed above which allows an equitable easement to arise from this contract.
(e) Where the easement is implied in the acquisition of an equitable estate. As this is an implied easement there are no additional formalities to comply with; the easement must simply be implied into a document which creates an equitable estate.

Answer

LP(MP)A 1989, s 2

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his failed attempt to create a legal easement as creating an equitable one instead. (d) Where the parties have deliberately entered into a contract to grant a legal easement in the future. The contract must comply with the formalities in LP(MP)A 1989, s 2 and be one that is capable of specific performance. It is then the application of the maxim discussed above which allows an equitable easement to arise from this contract. (e) Where

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Question

The only means by which it might be possible to hold that an unprotected equitable easement would bind a purchaser for valuable consideration would be if it were held to be an overriding interest under [ statute ].

Answer

LRA 2002, Sch 3 para 2

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/head>The only means by which it might be possible to hold that an unprotected equitable easement would bind a purchaser for valuable consideration would be if it were held to be an overriding interest under LRA 2002, Sch 3 para 2.<html>

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An equitable easement should be protected by a notice on the charges section of the register of the servient tenement ([ statute ]). The notice will be either an agreed one (LRA 2002, s 34) or a unilateral one (LRA 2002, s 35). The easement will then be binding on any subsequent owner of the servient tenement. If the notice is not entered, the equitable easement will not normally bind a purchaser for value of the servient tenement, but will still bind everyone else: for example, people who are given the land, or who inherit it (LRA 2002, s 29).

Answer

LRA 2002, s 32

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An equitable easement should be protected by a notice on the charges section of the register of the servient tenement (LRA 2002, s 32). The notice will be either an agreed one (LRA 2002, s 34) or a unilateral one (LRA 2002, s 35). The easement will then be binding on any subsequent owner of the serv

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An equitable easement should be protected by a notice on the charges section of the register of the servient tenement (LRA 2002, s 32). The notice will be either an agreed one ([ statute ]) or a unilateral one (LRA 2002, s 35). The easement will then be binding on any subsequent owner of the servient tenement. If the notice is not entered, the equitable easement will not normally bind a purchaser for value of the servient tenement, but will still bind everyone else: for example, people who are given the land, or who inherit it (LRA 2002, s 29).

Answer

LRA 2002, s 34

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An equitable easement should be protected by a notice on the charges section of the register of the servient tenement (LRA 2002, s 32). The notice will be either an agreed one (LRA 2002, s 34) or a unilateral one ([ statute ]). The easement will then be binding on any subsequent owner of the servient tenement. If the notice is not entered, the equitable easement will not normally bind a purchaser for value of the servient tenement, but will still bind everyone else: for example, people who are given the land, or who inherit it (LRA 2002, s 29).

Answer

LRA 2002, s 35

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ad>An equitable easement should be protected by a notice on the charges section of the register of the servient tenement (LRA 2002, s 32). The notice will be either an agreed one (LRA 2002, s 34) or a unilateral one (LRA 2002, s 35). The easement will then be binding on any subsequent owner of the servient tenement. If the notice is not entered, the equitable easement will not normally bind a purcha

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An equitable easement should be protected by a notice on the charges section of the register of the servient tenement (LRA 2002, s 32). The notice will be either an agreed one (LRA 2002, s 34) or a unilateral one (LRA 2002, s 35). The easement will then be binding on any subsequent owner of the servient tenement. If the notice is not entered, the equitable easement will not normally bind a purchaser for value of the servient tenement, but will still bind everyone else: for example, people who are given the land, or who inherit it ([ statute ]).

Answer

LRA 2002, s 29

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nt. If the notice is not entered, the equitable easement will not normally bind a purchaser for value of the servient tenement, but will still bind everyone else: for example, people who are given the land, or who inherit it (LRA 2002, s 29).<body><html>

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Equitable Easements Those created since 1 January 1926 are registrable as [...]. If so registered, they are binding on everyone who acquires the servient tenement (LPA 1925, s 198). If not so registered, then a purchaser of a legal estate for money /‘s worth will take the land free of the easement. Anyone else would still be bound by it (Land Charges Act 1972, s 4(6)). For those created before 1 January 1926, whether or not such easements are binding on a purchaser depends upon the doctrine of notice.

Answer

Class D(iii) land charges at the Central Land Charges Registry in Plymouth

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Equitable Easements Those created since 1 January 1926 are registrable as Class D(iii) land charges at the Central Land Charges Registry in Plymouth. If so registered, they are binding on everyone who acquires the servient tenement (LPA 1925, s 198). If not so registered, then a purchaser of a legal estate for money /‘s w

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Equitable Easements Those created since 1 January 1926 are registrable as Class D(iii) land charges at the Central Land Charges Registry in Plymouth. If so registered, they are binding on everyone who acquires the servient tenement ([ statute ]). If not so registered, then a purchaser of a legal estate for money /‘s worth will take the land free of the easement. Anyone else would still be bound by it (Land Charges Act 1972, s 4(6)). For those created before 1 January 1926, whether or not such easements are binding on a purchaser depends upon the doctrine of notice.

Answer

LPA 1925, s 198

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ble Easements Those created since 1 January 1926 are registrable as Class D(iii) land charges at the Central Land Charges Registry in Plymouth. If so registered, they are binding on everyone who acquires the servient tenement (LPA 1925, s 198). If not so registered, then a purchaser of a legal estate for money /‘s worth will take the land free of the easement. Anyone else would still be bound by it (Land Charges Act 1972,

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Equitable Easements Those created since 1 January 1926 are registrable as Class D(iii) land charges at the Central Land Charges Registry in Plymouth. If so registered, they are binding on everyone who acquires the servient tenement (LPA 1925, s 198). If not so registered, then a purchaser of a legal estate for money /‘s worth will take the land free of the easement. Anyone else would still be bound by it ([ statute ]). For those created before 1 January 1926, whether or not such easements are binding on a purchaser depends upon the doctrine of notice.

Answer

Land Charges Act 1972, s 4(6)

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are binding on everyone who acquires the servient tenement (LPA 1925, s 198). If not so registered, then a purchaser of a legal estate for money /‘s worth will take the land free of the easement. Anyone else would still be bound by it (Land Charges Act 1972, s 4(6)). For those created before 1 January 1926, whether or not such easements are binding on a purchaser depends upon the doctrine of notice.<body><html>

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the Court of Appeal in [ statute ] refused to find that a right to use a metal staircase constituted ‘actual occupation’, but explicitly chose not to offer any comment as to whether the exercise of other forms of easement could ever comprise ‘occupation’ for the purpose of an overriding interest under para 2.

Answer

Chaudhary v Yavuz [2011] EWCA Civ 1314

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the Court of Appeal in Chaudhary v Yavuz [2011] EWCA Civ 1314 refused to find that a right to use a metal staircase constituted ‘actual occupation’, but explicitly chose not to offer any comment as to whether the exercise of other forms of easeme

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It is possible to apply for an injunction in order to prevent the interference which the dominant tenement owner complains of. However, such an action is unlikely to be justified where the infringement is only trivial or temporary and would be oppressive to the servient tenement owner and can be adequately compensated by a money payment. For recent cases on these last points see [ case ], and Regan v Paul Properties Ltd [2007] Ch 135. These contrasting cases, both concerning applications for injunctions to demolish new buildings, highlight the discretionary nature of the remedy, thereby illustrating the point that each individual case must be treated on its own merits. The burden is on the defendant to show why damages should be awarded rather than an injunction.

Answer

Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] 1WLR 2148

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likely to be justified where the infringement is only trivial or temporary and would be oppressive to the servient tenement owner and can be adequately compensated by a money payment. For recent cases on these last points see Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] 1WLR 2148, and Regan v Paul Properties Ltd [2007] Ch 135. These contrasting cases, both concerning applications for injunctions to demolish new buildings, highlight the discretionary

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It is possible to apply for an injunction in order to prevent the interference which the dominant tenement owner complains of. However, such an action is unlikely to be justified where the infringement is only trivial or temporary and would be oppressive to the servient tenement owner and can be adequately compensated by a money payment. For recent cases on these last points see Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] 1WLR 2148, and [ case ]. These contrasting cases, both concerning applications for injunctions to demolish new buildings, highlight the discretionary nature of the remedy, thereby illustrating the point that each individual case must be treated on its own merits. The burden is on the defendant to show why damages should be awarded rather than an injunction.

Answer

Regan v Paul Properties Ltd [2007] Ch 135

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oppressive to the servient tenement owner and can be adequately compensated by a money payment. For recent cases on these last points see Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] 1WLR 2148, and Regan v Paul Properties Ltd [2007] Ch 135. These contrasting cases, both concerning applications for injunctions to demolish new buildings, highlight the discretionary nature of the remedy, thereby illustrating the

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