Property: Adverse possession

Adverse possession is the process by which a squatter who resides on a piece of land for the requisite period, as required by law, may become the owner of that land. As will be discussed below, this makes the process a rather controversial one, which has been said to conflict with the Human Rights Act 1998.

The requirements that must be satisfied for adverse possession to take place are three fold: Firstly, there must be factual possession. This is further subcategorised into 1) real possession (Powell v McFarlane said sporadic use didn’t suffice); 2) exclusive possession (Bucks CC v Moran said that using land as a garden undisturbed for 40 years was adverse possession); and 3) continuous possession for the full 12 years for unregistered or 10 years for registered. The next requirement is that there must be an evident intention to possess, also known as animus possidendi. Finally, the possession must be 'adverse', or in other words, inconsistent with the paper owner's title.

The rules for adverse possession differ depending on whether the land in question is registered or unregistered. These will be dealt with individually.

Unregistered land is governed by the Limitation Act 1980. The squatter must have 12 years continuous occupation as per s.15(1); once this time has passed, the paper owner’s title will be extinguished automatically, as per s.17. The occupation may be consecutive with multiple owners as per MCI v Thurlow, provided that there has been no gap in the occupation. Prior to the completion of the 12 year period, the squatter will have all the rights and powers of an owner enforceable against everyone except the paper owner (can sue for torts or against a third party trying to take possession). The squatter will take subject to any third party rights but will always gain a fee simple, irrespective of what the paper owner had, as per Leach v Jay.

Registered land is governed by s.96-98 Land Registration Act 2002. The squatter must have 10 years continuous occupation and may then apply to the Land Registry to take title of the estate. The Land Registry will contact the paper owner and inform them of the squatter’s application, to which the paper owner may accept, reject or ignore. Accepting or ignoring the request will make squatter the owner, extinguishing the previous owner’s title. Rejecting will ensure the squatter does not take title but the paper owner must reclaim the property within 2 years or else the squatter may reapply. There are 3 circumstances in which the squatter will take possession even where the paper owner rejects: firstly, estoppel; secondly, some other right to land; thirdly, reasonable mistake as to boundaries.

There may be difficulty justifying adverse possession of registered land because there is no need for investigation of title, however one may rely on the argument that it’s in the public interest that properties should not be left derelict. It also encourages individuals to take responsibility for their own land.

As mentioned above, the human rights issues with adverse possession have caused ongoing debate. Pye v Graham (2003) concerned a plot of land that was bought for the purposes of development but which was let to the squatter for an agreed period, so that he could use the land for grazing while the owner had no use for it. At the end of the agreed period, the squatter reapplied for permission to use the land but received no response and thus continued to use the land without the owner’s consent. When the owner eventually decided to use the plot and claimed it back from the squatter, the courts said that it had been ‘adversely possessed’. The House of Lords inferred an intention to possess from the squatter’s enjoyment of the land. The owner could not rely on the Human Rights Act because the legislation had not been enacted at the time the land changed hands, and it cannot act retrospectively. Neuberger J said that it’s difficult to justify a loss of a man’s land simply because he failed to remove a squatter within 12 years; however, despite this, Pye still lost his case.

The case then became Pye v UK (2005) in the European Court of Human Rights, where they ruled that it was a violation under the ECHR. One argument is that under Article 6 – the right to a fair trial, the fact that for unregistered land a man is not even told that his title is extinguished on completion of the 12 years, gives him no chance to object. This could however be deemed in the public interest as it saves time and money searching for property owners. The UK then appealed against the decision, arguing that there was a long limitation period, the law is well established and the owner could easily have avoided the issue by taking back the land. The Grand Chamber took the UK’s side and reversed the decision. They held that the law on adverse possession was better dealt with in a national court than an EU court. The law was long-standing and had not been eradicated by the LRA 2002; therefore the court was satisfied that the law did not need changing.

The case of Ofulue v Bossert confirmed Pye v UK. The applicants argued that the court should assess the effectiveness of adverse possession with every new case but the court disagreed and said it would need a very good reason to consider changing the law.

Ways in which adverse possession is beneficial: 1) Mistake – helps innocent parties who invest time and money in a piece of land which they believe is theirs. 2) Keeping land in use – ensures that land which is left by the owner does not become derelict. 3) Facilitating investigation of title.

Article - Murder or suicide?

Extremely interesting article! Worth a read.

EU Law: Cases for EU Citizenship

Citizenship was first introduced by the Maastricht Treaty (TEU) and demonstrated a shift from a purely economical community to a political union. Article 20 TFEU sets out the main elements of EU citizenship. Including the fact that EU citizenship is an addition to national citizenship, rather than a replacement. Article 21 TFEU states that citizens have the right to move and reside freely within the territory of the member states.

FAMILY LIFE

Baumbast concerned a German national who had lived and worked in the UK for 3 years with his Columbian wife and two children. When he left to work in Asia and Africa, the UK refused to renew his family’s residency permits. Requested a preliminary ruling as to whether there was a right of residence. Held that there was because Baumbast could rely on Article 21; he’d lawfully worked in the host member state for several years and his family had resided with him. Furthermore, neither he nor his family were a burden on the finances of the host member state. Baumbast established that there is a general right of residence under Article 21 but member states have the right to limit it. It also established that children who have begun their education in a host member state are entitled to stay and finish their education, and that the carer of that child is also allowed to reside.

Zambrano concerned a Columbian couple who were seeking asylum in the UK but were denied residence. They later had two children whilst in the UK and the question was whether they were entitled to stay, given that their children now had British nationality, despite the fact that neither parent was in employment. The court held that in order to protect the rights of the children who had become EU citizens, the parents must be entitled to work and reside.

McCarthy concerned a British-Irish lady, living in the UK unemployed but claiming state benefits. She wanted to exercise her right to move and reside with a dependent by allowing her Jamaican husband to live with her in the UK. The court ruled that her circumstances were ‘wholly internal’ as she had never before wanted to exercise her rights under EU law. She was not a worker and was already a burden on the host member state, therefore her husband was not granted residency.

McCarthy might be seen as similar to Zambrano, given that the parents in Z and the women in M were not working, and that denying residency in both instances must disrupt the right to family life. However the facts can be distinguished on the basis that children are hugely dependent on their parents and would theoretically have to move to follow their parents where’s McCarthy’s husband is not bound to follow her although it might be preferable in a marriage; also note that the children in Z had become UK nationals and thus to deny their parents the right to reside would mean the children’s citizenship rights under Article 21 would be breached.

Chen concerned a Chinese lady who opted to move to Ireland for the sole purpose of giving birth to her daughter Catherine, with a view to her daughter gaining EU citizenship. The UK rejected her residency permit but the CJEU said that they were bound to grant residency where the child was an EU national. The mother was not capable of being a dependent of her child but was definitely a carer, which without residency, that child would be deprived of.

Casa-Grande said that non-national children are entitled to educational grants the same as nationals of that member state. There can be no discrimination.

STUDENTS AND STUDYING

Grzelczyk concerned a French student studying in his 4^th year in Belgium. He applied for a minimum subsistence allowance (minimex) which he was initially granted but later denied on grounds that he was not a Belgian national. The courts said that if Grzelczyk had been a Belgian national under exactly the same conditions, the allowance would have been granted, therefore it was very obvious that the rejection was based on discrimination on grounds of nationality. The court noted that previously in Brown they had ruled that maintenance assistance for students fell outside of the scope of the Treaties; however developments in the law, particularly the introduction of Directive 2004/38 have given students additional rights. Grzelczyk was entitled to equal treatment under Article 18 TFEU. Legal principle: EU nationals pursuing study in another Member State are entitled to access to social security. Did not deal with maintenance loans.

Bidar concerned a French national who had resided and completed his secondary education in the UK before accepting a place at a London University. His application for maintenance grant was rejected on the basis that he had not completed the requisite 4 years residence, outside of education, in the UK. The court, although stating that it’s reasonable for member states to require a certain level of integration into society before providing any grants, and also that Article 24 of the Directive provides no obligation on member states to provide social assistance, accepted Bidar’s application. The general requirement was for the 4 years residence to be outside of education, however Bidar had still demonstrated a sufficiently long residence period in the UK and was not a burden on the finances of the host MS.

Forster confirmed Bidar and said that 5 years prior residency was proportionate and legitimate. In the case, a German woman went to reside and study in the Netherlands. She got herself a job whilst studying and because the Netherlands constituted her to be a ‘worker’, they ruled that she should be treated the same way as nationals with regards to the maintenance grant. She was awarded the grant but the authorities later discovered that Forster had not been employed for 5 months, losing her rights as a worker and therefore losing her right to the grant. They demanded that she pay back the money for the months she had not been employed. Forster claimed that she was integrated into society, relying on Bidar, but the Dutch national authorities said she must have resided for a minimum of 5 years. The CJEU held that 5 years was an acceptable time period.

Collins concerned an Irish-American citizen who moved to the UK in search of work as a social worker. He applied for the job seekers allowance but was refused on the basis that he was not a habitual resident of the UK. The CJEU held that it was unlawful to discriminate on grounds of nationality as all EU citizens are entitled to equal treatment when seeking work. Furthermore, the case established that it’s unlawful to deny a benefit that will facilitate access to the employment market.

D’Hoop concerned a Belgian national who completed her secondary education in France before attending a Belgian university. After her degree she applied for the ‘tide over allowance’ which is given to new graduates looking for their first employment, but was rejected on the grounds that she’d completed her secondary education in a different member state. On a preliminary reference, the court held that it was discriminatory to deny the allowance, based on Articles 12 and 18 of the EC Treaty.

Gravier said that vocational training (as mentioned in Art 7 Directive) means university.

Property: Mortgages and Undue Influence

Creation of mortgages

Legal unregistered land: LPA 1925 - Demise for a term of years absolute (conveyance for a set number of years) or charge by way of a legal mortgage.

Legal registered land: LRA 2002 – Charge by way of a legal mortgage.

Equitable: insufficient formality; e.g. deed.

IF THERE IS NO WRITING AT ALL THEN THE MORTGAGE CANNOT EVEN BE EQUITABLE.

MORTGAGE TRIGGERS FIRST REGISTRATION.

Mortgagor’s rights    

                     

Distinguish the equity of redemption from the equitable right to redeem. ‘Equity of redemption’ is the bundle of rights in relation to the land, including the right to redeem. The ‘equitable right to redeem’ is the right to claim one’s own land by fully paying off the money due. At law this was harsh and would only be permitted on one specific date; at equity this is allowed anytime before or after the redemption date.

There can be no clog or fetter on the right to redeem but it may be restricted, modified or postponed. In Byrne it was postponed for 40 years on freehold land which was acceptable.

Right to not be subject to unreasonable restraint of trade; as demonstrated in Esso Petroleum v Harper’s Garage where there was a solus agreement to only sell the lender’s products for 21 years. Was void but 5 years would be acceptable.

Any collateral advantages for the mortgagee must not be a clog or fetter. Bradley established that any advantages will cease when the mortgage is redeemed. Although Kreglinger was the exception, in which the agreement to sell animal skins only to the lender was deemed independent of the mortgage and therefore continued after redemption. Dabrah concluded that an unconscionable term would not apply – where a provision stated that the interest rate, upon default of payment, would rise from 7% to 57%!

Mortgagee’s rights      

                  

Possession – the right exists as soon as the mortgage is made as established in Four Maids v Dudley Marshall, and before the mortgagor defaults on payment, as per Schindler. For possession, the mortgagee will need a court order (unless the property is unoccupied or the mortgagor goes willingly). Norgan established that the court may adjourn proceedings to give the mortgagor a chance to pay.

Sale – the power for sale arises under s.101 LPA and is exercisable under s.103 LPA. The mortgagee must be able to prove that the mortgage was created by deed, that money is due and that the power to sell isn’t included by deed. Furthermore, there must be either: a 3 month default on payment, some other interest 2 months in arrears, or else a breach of another provision.

The mortgagee must sell in good faith, not to himself. Cuckmere established that he should attempt to sell for the best possible price.

Appoint a receiver – person who collects the debt money.

Foreclosure – harsh rule which extinguishes the right to redeem.

Undue influence  

          

May be ACTUAL or PRESUMED.

Was the mortgage to the claimant’s manifest disadvantage? The Aboody case concerned a woman who agreed to use her house as surety for her husband’s business loan, which gave the company a good chance at success. Was not to her manifest disadvantage at the time she signed. Pitt has now clarified that undue influence can still occur even where the agreement wasn’t to the claimant’s manifest disadvantage. It just helps their case if it was disadvantageous.

Did the lender ensure that the claimant knew the nature of the mortgage and received independent advice? In O’Brien, the bank manager had left instructions at the local branch, stating that the wife must be told the full extent of the liability and must be advised to seek independent advice, the clerk failed to do this. (The wife’s claim for UI failed because she was used to dealing with financial manners, but succeeded with a claim of misrepresentation).

RBS v Etridge – the lender has a duty to:

                                1) Communicate with the claimant

                                2) Ensure the claimant gets an independent solicitor

                                3) Provide the solicitor with the claimant’s financial information

                                4) Tell the solicitor of any concerns of undue influence

                                5) Ensure the solicitor explains the nature and implications

Land Law terms

Absolute Interest: An unconditional interest in land, e.g. a lease for A to 99 years.

Absolute title: The best class of title available in registered land.

Adverse possession: If a squatter takes possession of land, with the intention of excluding the true owner and the world at large, then the squatter acquires title to land by adverse possession after, usually, 12 years under the Limitation Act 1980.

Assent: Document transferring property of a deceased person from the estate to the beneficiary. S36 Administration of Estates Act 1925 requires an assent to be in writing. It does not have to be by deed – which is noteworthy, because usually any document transferring a legal estate has to be by deed.

Assignment: A document (which must be a deed) transferring the remainder of a lease from

Bankruptcy: If an individual in unable to pay his debts, he may eventually be made bankrupt by the court. The effect is to prevent him from owning property, borrowing money or obtaining credit.

Charge: A financial debt or liability affecting the property.

Chargee: The name given to someone who has the benefit of a charge over the property (e.g. a mortgage lender).

Chargor:  A company or person who grants a charge or right in security or in favour of some other person (e.g. a borrower).

Chattels: Items of personal property, such as furniture and moveable goods. This is more commonly referred to as “fixtures and fittings”.

Completion: Finalising the purchase or sale of a property. The completion date is the date when the bulk of the purchase price is paid, the buyer received the keys, and the deeds are handed over. 

Contract: A legally binding agreement. This is the agreement between the buyer and the seller which sets out the terms of what has been agreed, such as full description of the property and surrounding land included in the sale, the price agreed, the full names of the seller and buyer, and will incorporate the fixtures, fittings and contents questionnaire referred to above together with details of what happens if things go wrong to protect both the seller and the buyer.

Conveyance: The document that transfers the ownership of freehold land from a seller to a buyer. It is equivalent to a Transfer but is only used in unregistered land.

Conveyancing: This is the transfer of the legal title to land and property from one person’s name to another.

Co-ownership: The situation where two or more people own the same parcel of land. Nowadays, the phrase usually refers to a joint tenancy or a tenancy in common.  

Covenant: An agreement or promise contained in a deed or document by which one party binds himself to do or not to do something. Covenants can be positive or negative by the nature (e.g. a positive covenant would be to keep the garden in a neat and tidy condition and a negative covenant would be not to keep pigs or poultry on the land.

Covenantor: The party who gives a covenant, so carries the burden of the covenant.

Deed: A document that is legally binding (e.g. Transfer or TR1).

Deposit: A proportion of the purchase price, payable by a buyer at the time of exchange of contracts to buy land or buildings. It is paid to the seller’s lawyer. It acts as a part payment and also a guarantee that the buyer will actually complete the transaction. If the buyer unjustifiably refuses to complete then the seller can keep the deposit. The sum suggested by the Law Society at this stage of the transaction is 10% of the purchase price. If however, the buyer is borrowing 95% of the purchase price then only 5% would be payable.

Discharge of Mortgage: The repayment of a mortgage or the document that confirms that the borrower has paid off all the money due to the lender in respect of the loan. The form used to discharge a mortgage can be a DS1, END, ED or, in case of unregistered land, the original mortgage deed is sealed by the lender.

Easement: An easement can be a right of way over a piece of land or even a right to light or air.

Escrow: An example of an escrow is where the transfer that has already been signed by the customer (who may be either the buyer or seller) is sent to the other lawyer in readiness for completion. It is sent to them “as an escrow” to allow them to get the transfer signed by their client ahead of completion.

Exchange of Contracts: The point in a conveyancing transaction when the terms of the contract become legally binding. At exchange, the buyer becomes the equitable owner of the property. The buyer’s lawyer will speak to the seller’s lawyer on the telephone and agree that exchange has taken place. Once this is done the contract will be dated, the completion date inserted and both the buyer and the seller will be bound by law to the contract and the facts referred to in the contracts.

Fixtures, Fittings & Contents: This is a list of items at the property which are being removed by the seller or which remain as part of the sale. This ensures that there are no disputes between the buyer and the seller as to what is to be left in the property on the day of completion.

Freehold: This is one of two legal estates created by the Law of Property Act 1925. It continues for an indefinite period – for all practical purposes ownership forever.

Grantor: A person who grants an estate or interest in land.

Insolvency: A person or company becomes insolvent if they are unable to pay their debts as the debts fall due. It may lead to bankruptcy in the case of an individual, or to liquidation in the case of a company.

Joint Tenants: If land is owned by more than one person, the interests in the land are separated. The co-owners will hold the legal interest and if one party dies, it will pass to the survivor.

Land Registry: This is a government authority which registers the transfer of all property in England, Wales and Northern Ireland. Every transfer must be forwarded to the Land Registry after completion. Once the registration has been completed the Land registry will issue a Land Certificate or a Charge Certificate depending on whether there is a mortgage involved. If there is a mortgage this Charge Certificate will be sent to the lender for them to keep, but if there is no mortgage then the Land Certificate can be forwarded to the buyer for them to keep. 

Lease: This is one of two legal estates created by the Law of Property Act 1925. The lessor grants the lease to the Lessee for a specified period of time (e.g. weekly, 10 years, 999 years). The lessee is granted exclusive possession, subject to the terms of the lease.

Lessee: Tenant.

Lessor: Landlord.

Licence: There are different types of licences, but basically this is a consent or permission to enter land (e.g. a theatre ticket). Superficially, a licence may sometimes appear similar to a lease: the distinction between the two is of crucial importance because whereas lessess often qualify for statutory protection in the form of security of tenure and perhaps rent control, al licensee has no such protection.

Licensed Conveyancers: Those authorised by the Council of Licensed Conveyancers to practice conveyancing.

Lien: A right which one person may possess over the property of another to secure payment. For example, if a seller of land is not paid in full, he has a lien over the land in respect of amount due.

Mortgage: Security over land for a loan. If the loan is not repaid, in addition to suing under the covenant to repay, the mortgagee has various rights against the land that can be used to attempt to collect the money owed: e.g. the mortgagee may be able to take possession of the land and sell it.

Mortgagee: Lender under a mortgage, e.g. bank, building society.

Mortgagor: Borrower.

Puisne mortgage: A legal mortgage that is not protected by the deposit of title deeds with the mortgage. As the first mortgagee invariable requires deposit of the deeds as part of his security, a puisne mortgage is invariably a second or subsequent mortgage. In unregistered land, the puisne mortgage must be protected as a C(i) entry at the Land Charges registry.

Registered Land: Land where the title is recorded through registration at the land registry. Interests that may exist against registered land can be classified as registered interests, minor interest and overriding interests. Contrast unregistered land.

Registration: A method of protecting rights in the land by entering them in an official record. (1) In unregistered land, various rights (mostly equitable interests) need protection by registration against the name of the estate owner at the Land Charges Registry. (2) In registered land, the title to the freeholder or leasehold land is registered at the land registry; and interests in the land are protected by registration against the title number (although some interest are overriding and so do not need to be protected by registration.

Restrictive covenant: A promise by deed not to do a particular act, e.g. not to build an extension to a house without first obtaining the covenantee’s consent.

Solicitor: A lawyer regulated by the law society.

Sub-lease: A tenant can grant a sub-lease for a term that is shorter than the residue of his own leasehold interest.

Tenancy in Common: Equitable co-ownership, where the beneficial interest of the tenant can be left by will. There cannot be a tenancy in common-law; it can only exist in equity.

Tenancy: Lease. Often, the word tenancy is used to describe leases with very short terms.

Tenant: (1) Lessee. (2) A general term for someone who holds land, e.g. a joint tenant (who may, or course, hold a freehold or leasehold estate.

Title Deeds: These documents act as evidence that the person selling the property does own it and sets out any rights or obligations which have to be complied with. We need these documents to enable us to register the new ownership on their records.

Trust of Land: The principal method by which land is held on co-ownership situations since the Trusts of Land and Appointment of Trustees Act 1996. The legal estate in the land is held by trustees, who have the power to sell the land and power to retain the land. The equitable interest is held by the beneficiaries, who may be joint tenants or tenants in common, or have successive interests in the land. The trust of land is a replacement for the trust for sale.

Unregistered Land: Land where the title is not yet registered with the Land Registry.

Terms taken from http://www.oysterestates.co.uk/jargon-buster

Advice for CV writing

1) State your name in large characters at the top of the CV, preferably in bold although not in a font size disproportionately big! No need to scare potential employers!

2) Provide your current address (if, like me, you have two or more different addresses, then state them all and the dates which you will be present at each address) and up to date contact details including both telephone and email! If you are using an email address which may be deemed inappropriate (for example, im-so-wasted@hotmail.com), it will be necessary to create a more professional account!

3) Your education should always be stated, although whether you provide both GCSE and A-level results is personal choice. I always provide both because you never know what the employer will be looking for. As a general rule, all information throughout the CV should be laid out as 'newest first' so put your most recent education at the top.

4) Your work experience should fall into three different categories: paid employment, voluntary work, and experience which is relevant to your professional field. Obviously if you do not have any experience fitting into one of these categories then omit it, although it may highlight a gap in your skills. Remember, never lie about what you've done but ensure that you do show off all skills that you learnt during different roles, without babbling!

5) Other interests may be used to fill out a CV, although if you're already on 2 sides of A4 then you might want to miss this part out. Interests can include hobbies you have which relate to your chosen professional field (e.g. regularly reading a particular newspaper or being part of a debate team) or those which are unrelated but show your character (e.g. sports or travelling). Try to avoid hobbies which won't show you in the best light or which are entirely irrelevant, like clubbing! Always note any musical instruments that you play and any grades you may have achieved in them, as this shows dedication and commitment.

6) References do not need to be provided, although if you wish to, the ideal number is 2. I personally choose to state that references are available on request, but note who they are available from. E.g. 'References are available on request from Joe Bloggs, Senior Lecturer at X University.'

Other general information - as with education, all work experience should be listed from the most recent to the oldest; font size of 11 or 12 is best and a font style such as Arial or Times New Roman; never lie about anything from grades to job roles as these may be discovered by reference checks or become obvious in interview. It may be worth attaching a covering letter to some applications where a CV is not enough, so ensure that both CV and cover letter are tailored to the employor that you're hoping to empress!

EU Law: Gender equality in the work place

The notion of gender equality was introduced by the Treaty of Rome in 1957. The Treaty of Amsterdam quickly increased that power by introducing Article 19 TFEU on combating discrimination. The Charter of Fundamental Rights has also added additional protection for citizens.

Article 157 TFEU is currently the most influential provision governing gender equality, and stemmed from the Defrenne case, in which the French government were worried that they were at an economical disadvantage because their law was already enforcing equal pay for men and women, where other member states were not yet obliged to do so. Making Article 157 TFEU directly effective in all member states meant that not only were France back on par with the other member states, who now had to adhere to the EU provisions providing equal pay for men and women, but it also gave additional rights to women across Europe! Gender equality is now also governed by the Recast Directive 2006/54, the provisions of which largely previously existed in the form of 3 different equal treatment directives. Namely: equal pay, equal treatment and social security.

With regards discrimination in pay, Defrenne v Sabena demonstrated direct discrimination, whereas Jenkins demonstrated indirect discrimination. The Cadman case is worth noting although wasn’t a case of gender discrimination but of other discrimination in the work place. It established that paying longer-serving employees a higher wage than newer employees was discrimination where the difference in pay was not based on skills. Cadman set a precedent that all wages must be based on the skill set of the employee, as opposed to any other grounds such as gender or length of service.

The meaning of 'pay' has lead to some ambiguity as both direct and indirect forms of payment are now considered when evaluating any possible discrimination. Direct payment would be in the form of money. Indirect payment can include all the additional benefits provided by an employer in exchange for work. In Garland the court held that travel facilities constituted pay, thus when retired males were permitted to continue using their travel benefits but the women were not, it gave rise to discrimination. In Rinner-Kuhn the court established that sick pay constituted payment in kind. In Barber the court held that redundancy pay was also a form of payment, whether or not the person was voluntarily made redundant. In Gillespie the court said that maternity benefits were pay, although it’s important to note that there can be no comparator when the case involves pregnancy, for obvious reasons. In Bilka-Kaufhaus an occupational pension constituted payment.

The law on gender equality in the work place started off on equal pay for equal work, i.e. where the male and female were doing the exact same job but being paid differently. However, all legislation changes since the Treaty of Rome have extended this principle further, and now the EU is equally as concerned with ‘equal pay for work of equal value’. This means that the male and female do not need to be doing the same job but their contributions to their respective fields should be seen as equally weighted. Enderby, for example, concerned a pharmacist and a psychologist being paid different wages; the female counterpart claimed that she was being discriminated against as they were doing work of equal value. The court agreed that although the job tasks were different, they were doing equal value work. This may seem confusing because it’s so difficult to quantify the roles done in different professions and whether their contributions are ‘equal’, however, the NHS have adopted a system of ‘banding’ where this works surprisingly well. The employees of the NHS will be banded within their fields, depending on their level of expertise, so whilst some jobs (for example, a nursing assistant) may go in as a Band 1 and may only go up to a Band 4, others (for example, a surgeon) may go in at a Band 6 and go up to the highest level. One alternative case where the courts held it was legitimate to pay the male and female differently was Brunnhofer, in which two employees of a bank employed at the same time and in the same job category, fulfilled different roles and tasks. The male was paid more because his work involved more arduous tasks than his female counterpart. She claimed it was discrimination but the court disagreed.

The burden of proof always lies with the complainant to prove that she has been discriminated against. They must prove 1) they have been paid less, using a comparitor to prove this (e.g. female would use her male employee as the comparitor), and 2) they were doing work of equal value. It's worth noting that in Enderby the burden of proof shifted to the employer, which was an exception to the rule.

Criminal: Defenses to crime

Insanity must be distinguished from being ‘unfit to plead’ which is where the accused is incapable of understanding the charges during the trial. For insanity, the accused MUST BE FOUND INSANE AT THE TIME OF THE COMMISSION OF THE OFFENCE.

If insanity is successful, the verdict will be = NOT GUILTY BY REASON OF INSANITY

Applies to any offence which requires Mens Rea.

INSANITY IS CAUSED BY INTERNAL FACTORS e.g. Sullivan (kicked a man during an epileptic attack) or Burgess (sleepwalking). ANY EXTERNAL FACTORS = AUTOMATISM e.g. Quick (hypoglycaemia due to alcohol but no food).

M’Naghten Rules – arose from the M’Naghten case where D killed Prime Minister’s secretary. Every man is presumed sane until the contrary is proved.“It must be clearly proved that at the time of the committing he act the party accused was labouring under such a DEFECT OF REASON from DISEASE OF THE MIND as to not know the nature and quality of the act he was doing; or if he did know it, that HE DID NOT KNOW IT WAS WRONG.”

Defect of reason – Clarke (theft from a shop whilst suffering depression) Ackner J – “deprived of the power of reasoning”

Disease of the mind – a condition affecting D’s mental faculties. Can be temporary, permanent, curable or incurable. Kemp (arteriosclerosis caused black outs, in which D beat wife with a hammer).

Automatism means you’re not in control of bodily actions despite being sane.

Lord Denning in Bratty said “Done by the muscles without any control by the mind”                                                                         e.g. reflex actions (Hill v Baxter)

Requirements: 1) Total absence of voluntary control over actions;

2) Due to external factor;

3) Was not self-induced

Mistake is not a defence on its own but commonly overlaps with self-defence (i.e. mistaken as to the need to defend oneself, as in Beckford – police shot and killed suspect because he feared attack)

Mistake of fact can negate Mens Rea: Morgan (told friends to have sex with his wife; were convicted because jury said not a true mistake). Williams Gladstone (believed attacking mugger but was actually a member of the public stopping crime)

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Intoxication is only a defence where it causes D to lack Mens Rea (i.e. will still be guilty if Mens Rea is present).

Sheehan and Moore “drunken intent is still intent”

INVOLUNTARY INTOXICATION – not liable (exception: Kingston drugged and locked in a room with young boy, still had the Mens Rea of indecent assault so was guilty)

VOLUNTARY INTOXICATION – will be guilty of crimes of basis intent (satisfied by recklessness) but not specific intent (satisfied by an intention). DPP v Majewski – committed various assaults whilst drunk and claimed he hadn’t known what he was doing but was held guilty.

Public policy reasoning – a person who chooses to intoxicate himself should be criminally answerable. Richardson and Irwin asked ‘would D would have foreseen the risk if sober?’

Dutch courage – Always guilty. Gallagher got drunk to gain confidence to kill his wife.

Self Defence is governed by s.76 Criminal Justice and Immigration Act

Covers defence of ONESELF, OTHER PEOPLE, PROPERTY and when PREVENTING CRIME.

Must only use necessary and reasonable force.

Necessary – Requires either D being attacked or under threat of attack. Honest but not reasonable belief as he is judged on the facts as he believed them to be (unless voluntarily intoxicated – O’Grady). There used to be a duty to retreat but Bird (woman was slapped by man so threw her drink in retaliation but accidently threw the glass too) changed the law.

Reasonable – only a jury can decide by putting themselves in the circumstances as D believed them to be. Palmer (during an attack, D will not have time to “weigh things to a nicety” but he will have acted reasonably where he did what he HONESTLY AND INSTINCTIVELY BELIEVED WAS NECESSARY).But Owino said that the amount of force used will be judged objectively (in Martin, D shot at burglars) because D isn’t entitled to use as much force as he wants!

Consent

Consent to harm: Brown (sadomasochistic acts, didn’t matter if consenting) was against public policy but some acts can be consented to such as legal sports and tattooing e.g. Wilson (branded buttocks).

Can consent to horseplay even where it’s really rough e.g. Aitken (RAF officers on fire)

Informed consent: Dica (HIV unprotected sex)

Consenting victim makes a mistake: Tabassum (pretended to be a medical professional doing cancer scans by feeling women’s breasts.

True consent: submission is not consent or is the fact that the victim doesn’t retreat (Day – 10 year old girl didn’t resist adult man)

Duress is where D is forced to break the law due to threats towards him or a person close to him.

D will accept that he had both Actus Reus and Mens Rea of the crimes.

The defence of duress is available to all crimes except murder. REFORM: The Law Commission has advised allowing duress of murder because of the problems that occur when D intends a GBH but accidentally kills. Or where D intends to kill but commits a GBH and can then use duress.

Duress may be by THREATS or by CIRCUMSTANCES. The rules are the same for both.

Requirements laid down in Graham: The answer to the following questions must be YES:

1) Was the accused, or may he have been, compelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious injury would result to himself (or to someone close).

THREATS MUST HAVE BEEN OF DEATH OR SERIOUS INJURY (physical rather than psychological – Baker and Wilkins)

2) Would a sober person of reasonable firmness, sharing relevant characteristics of the accused, have responded as the accused did?

THIS WILL FAIL IF A SOBER PERSONAL OF REASONABLE FIRMNESS WOULD HAVE RESISTED. CHARACTERISTICS CAN BE AGE, SEX, DISABILITY ETC (drug addiction is self-induced so can’t be a characteristic – Flatt). BEING VULNERABLE DOESN’T COUNT – Horne.

The carrying out of any threats would have to be immediate or imminent. Hudson (two girls committed perjury (lied in court) because they were told they’d be cut up if they didn’t; duress succeeded because the man was in the court and could have carried out his threat later that day).

The threat must be the direct cause of the crime; Cole – moneylenders threatened unpleasant consequences if D did not pay the money so D robbed a bank; was not direct.

D cannot rely on duress if he exposed himself to the threats by joining a gang – Hasan.

Necessity will apply in circumstances which are so compelling, the defendant felt as though he ought to act in the way he did.

Will very rarely be allowed for murder cases. In Dudley and Stephens, members of a crew who had been starved of food and water for days decided to kill and eat the most vulnerable member of their crew. The defence of necessity was not allowed because the judge said that even if such a defence were permitted, who would be qualified to decide which life is more valuable than another.

HOWEVER, where fate has already ‘designated’ one individual for death, the defence of necessity may succeed.

Requirements: 1) The act must be needed to avoid inevitable and irreparable evil;

2) No more should be done than is reasonably necessary for the purpose to be achieved;

3) The evil inflicted must not be disproportionate to the evil avoided.

Re A satisfied all the requirements. Conjoined twins, one was capable of independent existence but the other was entirely dependent. Leaving them conjoined would result in the death of both babies, but separating them would mean ONE WOULD LIVE AND ONE WOULD DIE. The hospital sought advice from the court as the parents did not want the operation to go ahead. The hospital had conflicting duties; to save the stronger child’s life in carrying out the operation but also to prevent the weaker child’s death. Held that the operation would be lawful.

Criminal: Assault and Battery

The victim of an offence must be a person, not a corporation. The Draft Criminal Code (DCC) says: “a person who has been born and has an existence independent of his mother.”

Assault and Battery - Consolidated in s.39 Criminal Justice Act 1988; replaces the complex provisions in OAPA 1861.

Assault           “D intentionally or recklessly causes V to apprehend immediate and unlawful personal violence.” R v Ireland

                        Assault has been regarded as an attempted battery.

                               

                        Actus Reus

Immediacy: Ireland (silent phone calls), Constanza (stalked; court said she apprehended violence “at some time not excluding the immediate future”) and Smith (looking through V’s window to scare her while she’s in her night clothes; there can be no assault if V realises that D cannot carry out a battery e.g. other side of the glass).

Assault by words: Savage (words can negate actions – holding a sword but using language which makes clear that he won’t use it) and Constanza (words include writing, fax, email, tweet or text).

Mens Rea – intention or recklessness (Cunningham)

Battery          “D intentionally or recklessly inflicts unlawful personal violence upon V” Rolfe

                        Violence includes unlawful touching – Thomas (touching a person’s clothes whilst he is wearing them is equivalent to touching him). Supported by Art 8 ECHR Private life.

                        Lord Lane in Faulkner v Talbot – “...it need not be hostile or rude or aggressive” Result: HOSTILITY IS NOT AN INGREDIENT OF BATTERY.

                        Actus Reus

                        The victim does not need to be aware of the unlawful touching (e.g. asleep) and there does not need to have been an assault/fear of violence (e.g. hit from behind).

                       Omission: Santana-Bermudez (omitted to tell police officer about the syringe in his pocket before a search, the officer was stabbed by it; guilty).

                        Use of an instrument: Haystead (D punched woman who dropped baby), Murgatroyd (D set dog on V), Scott v Shephard (threw firework in a crowd which was then flung by a third party in an attempt to get it away from himself, no break in chain of causation).

                        Mens Rea – intention or recklessness (Cunningham)

The word ‘assault’ often refers to both an assault and a battery because there is no verb for battery; both come under the verb to be ‘assaulted’. Even the CRIMINAL JUSTICE ACT refers to them both as common assaults. DPP v Little blurred the distinction further.

Defence of consent - can an assault or battery be consented to?

Pringle confirmed Collins v Willcock that day to day touching can be consented to by implication.

A-G’s ref No.6 of 1980 said can’t consent to street fighting because it was against public policy.

Brown confirmed A-G’s ref; sadomasochistic acts amounting to a battery were against public policy.

TEST FOR CONSENT: 1) was there consent? 2) was the act one that could be consented to?

Effective consent - Capacity: Mental Capacity Act 2005

Informed consent: Konzani had unprotected sex, knowing he was carrying HIV. Court said “she cannot give an informed consent to something of which she is ignorant”. But Dica established that true consent can be given to a risk of infection which is known about.

Contract: Exclusion Clauses

Unfair Contract Terms Act 1977

L’Estrange v Graucob [1934] 2 KB 394 – it was held that despite the print of the contract being tiny and difficult to read, because it had been signed it was still enforceable and the exclusion clause that it contained still had to be incorporated. LJ Scrutton said that the question of ‘notice’ was irrelevant in such cases. Scrutton states that where the contract is in a train ticket or other unsigned documents, it must be shown that the party privy to that contract could reasonably have been aware of the terms and conditions. However, where a document has been signed, it is not necessary to prove that said party is aware of the terms, even if they include some form of fraud or misrepresentation.

The only exception to this strict rule is where the signature is the result of fraud or misrepresentation. Curtis v Chemical Cleaning and Dyeing Co Ltd [1951] 1 KB 805 is a case where the plaintiff took a dress to the dry cleaners. She was asked to sign a receipt on which there was a very wide exclusion clause. The plaintiff asked the assistant what this meant and was told that the dry cleaners would not be liable for any damage done to the beads or sequins on the dress – the plaintiff signed the contract. When the dress was later returned, it had a stain on it, and the dry cleaners used the exclusion clause to cover themselves but it was deemed by the court that the misrepresentation of the assistant had overridden whatever the clause said as those words were ultimately the reason the contract had been signed.

Non est factum – an argument that the party signing made a fundamental mistake about the nature of the document. This argument is rarely successful but it’s taken as conclusive evidence that when a party signs a document they are agreeing to the contract and all its terms.

In the case of contracts which are not signed, the courts have to examine what type of document it is contained in, as well as the reason for the clause, the steps that were taken to draw attention to it and its general nature. The following matters will be considered in turn:

-          Time: The party, who is affected by the clause, must have knowledge of said clause at the time the contact was entered into. OLLEY v MARLBOROUGH COURT HOTEL [1949]

-          Previous course of dealings: There may be an implied knowledge of the clause where there has been previous consistent course of conduct. KENDALL & SONS v LILLICO & SONS LTD [1969]

-          Unusual exclusions: Greater notice is required for unusual exclusion clauses. SPURLING v BRADSHAW [1956]

-          Reasonable Notice: What is reasonable as regards the ordinary adult individual, capable of reading English. PARKER v SOUTH EASTERN RAILWAY [1877]

-          Contractual document: The item in which said exclusion clauses are contained, must be regarded as a contractual document. CHAPELTON v BARRY UDC [1940]

Construction – once it has been decided that an exclusion clause exists within a contract, the courts must then decide whether that clause covers the breach that has occurred. The clause is being ‘constructed’ or ‘interpreted’ to determine its scope.

Contra proferentem rule – an exclusion clause that is ambiguous will be construed against the interests of the party who imposed that clause.

Difficulty is caused where the defendant seeks to exclude liability for negligence in the performance of a contract. Hollier v Rambler Motors [1972]. The plaintiff’s car was at the defendant’s premises when it was damaged by fire, caused by the defendant’s negligence. There was a clause in the contract which stated ‘The company is not responsible for damage caused by fire to customer’s cars on the premises.’ The court held that if the defendant’s wanted to exclude liability for his own negligence, then this should have been done explicitly. Customers would not ordinarily assume that the car company would cause such fires.

Fundamental Breach – some breaches in contract are so serious that no exclusion clause can cover them. 

This is the DOCTRINE OF FUNDAMENTAL BREACH. Two forms:

1. Fundamental TERMS - certain terms are so fundamental that there cannot be exclusion for breach of them. For example if the contract was for the sale of peas and beans were provided instead; or if coal was provided instead of potatoes. This deviation from the basic contractual obligation means that exclusion clauses should not be allowed to cover them as to do so would make a mockery of the concept. These are fundamental terms which must be adhered to.

2. Overall Effects – exclusion clauses cannot apply if the breach was serious enough to destroy the entire contract. Karsales v Wallis [1956] 2 All ER 866 was about the supply of a car which when inspected by the plaintiff was in good condition but when arrived had many faults and was in a non-driveable state and had to be towed. The defendant’s relied on a clause which said that the owner did not tell or imply the condition, warranty, roadworthiness, age etc. However the courts said that since the defendant’s performance was not one that could have been contemplated by the contract, there was a breach of a fundamental term and therefore exclusion clauses were not applicable. 

AV Dicey on Parliamentary Sovereignty

AV Dicey believed there are 3 basic rules that define Parliamentary Sovereignty in the UK. These were known by many as the Diceian definition. The first is that Parliament is competent to make or unmake any law it wishes. Thus its legislative competence is unlimited. Parliament frequently make laws, but when we speak of Parliament being able to ‘unmake’ laws, what we mean in essence, is that Parliament have the power and the ability to repeal any previous Act of Parliament, or to legislate against common law. Dicey’s second rule is that no person or body has the power or capability to override or set aside the legislation of Parliament. The Crown for instance, cannot suspend or execute laws without Parliament permission, as stated in the Bill of Rights 1689. And the courts cannot question the validity of an act that has been through the legislative process (passed through both Houses of Parliament) and received Royal assent. This is known as the “enrolled bill role”. Finally, no Parliament can be bound by a predecessor, or may bind a successor. This is an important aspect of Parliamentary Sovereignty because if Parliament is to remain sovereign then its absolute freedom should not be restricted by the decisions earlier Parliaments made.

Judicial Review

When an individual feels that they have suffered a grievance as the result of a decision or procedure followed out by a public body, they may qualify for Judicial Review. This is a process by which the courts scrutinise the decisions of government ministers, inferior courts, tribunals and other administrative bodies to ensure that they have not acted irrationally, illegally, or committed some procedural impropriety. 

CCSU v The Minister for the Civil Service HL [1984] 

Also known as the GCHQ case – held that the Royal Prerogative was subject to Judicial Review. Margret Thatcher’s government decided that employees of the GCHQ would not be allowed to join a trade union for national security reasons. After much protest the government did not change its mind and gave its employees the option between £1000 + their job, or dismissal. This decision was enforced by the Royal Prerogative, which the High Court of Justice deemed invalid due to the lack of consultation beforehand. The Court of Appeal decided that national security issues trumped any problems of propriety; also adding that it is the executive’s right to judge national security and not the right of the judiciary. The case then went to the House of Lords where it failed; they said that the Royal Prerogative was generally subject to judicial review – national security was one of the only exceptions. Previous law had stated that prerogative powers were not in any way subject to Judicial Review; the GCHQ case identified that the application of Judicial Review would be dependent on the nature of the government’s powers, not their source. Lord Fraser said that whilst the courts would not by default accept a government statement that there was a national security issue, it was a “matter of evidence” and the evidence here showed the government to be correct.

This case is highly important as it set out that although Royal Prerogative for national security reasons is considered outside the scope of the courts, most other uses of the Royal Prerogative are now judicially reviewable in some form.

In the CCSU case, Lord Diplock highlighted 3 bases for intervention:

1.      Illegality – “the decision maker must understand correctly the law that regulates his decision making power and must give effect to it.”

In determining the legality, the court must consider the area over which the power is given. Presumptions of statutory interpretation such as ‘a body has no power to act retrospectively’ and ‘a body has no power to restrict a person’s access to the courts.’ Determining the scope of a body’s power is far from being mechanical but involves the court in making value judgements; if any authority exercises power outside of this area, that action will be invalid. Alternatively, a statue might provide that power must be exercised by a particular person or by someone with specific qualifications. If power is exercised by another it may be an ULTRA VIRES act which is a nullity and the act may be considered illegal.

Allingham v The Minister of Agriculture and Fisheries HC [1948] – minister had statutory power to give instruction and direction regarding agricultural land. He was allowed to pass some of that power to a committee to make decisions; the committee then gave power to an executive officer who gave instructions to a farmer as to what he could grow on his land (only sugar). The farmer failed to comply with this instruction and the court held that only the minister or committee had the power under the statute to issue such a directive.

The courts must take into account (1) The nature of the power; (2) The character of the person. Obviously if the power is of a routine nature or simply part of procedure, the courts will be much more willing to allow the use of power by a sub-delegate than if there is a strong element of discretion involved. Judicial and legislative powers are not allowed to be subject to sub-delegation; however when a minister acts through his civil servants, there is no delegation.

2.      Irrationality – “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question… could have arrived at it.”

Unreasonableness: so unreasonable that no reasonable person would agree with it. For example ‘we will not employ anyone with red hair’. The leading case for this is Associated Provincial Picture Houses Ltd v Wednesbury Corp CA [1948] where a cinema said no children under 15 were allowed in the cinema on Sundays. The court said they could not overturn the decision simply because they disagreed with it – therefore the claim failed on the grounds that the rule was not ‘outrageous’.

Irrelevant Considerations: In the Padfield case, the minister had the power to refer complaints to the committee but decided not to on one occasion as he feared the complaint could be politically damaging for the government at the time. The court said this was an irrelevant consideration which constituted an unlawful decision.

Improper Purpose: if a public body exercises its statutory power for an improper purpose the courts can intervene. In the Padfield case the minister had discretion as to whether or not to take a complaint to the committee, however this discretion was not unlimited and it should have been used to promote the policy and objects of the enabling Act. In the Congrieve case the minister was given statutory power to revoke television licenses; he revoked them early to avoid increase, claiming he had unrestricted power – the court said he had acted ultra vires in using his power for improper purpose.

Failure to give reasons: Where the individual can provide no good reason, unreasonableness is usually inferred. Failure to give reasons may also constitute procedural impropriety.

Beyond Wednesbury unreasonableness: Use of the ECHR Article 13. A court, when deciding whether a decision was unreasonable, might consider whether it was proportionate. Lord Steyn said that although the convention calls for a more exacting standard of review, it remains that the judge is not the primary decision maker.

Proportionality: Recognised in the Alconbury case. Balance – whether the means justify the ends. “Balance…between the adverse effects…and the purpose which the authority is seeking to pursue.”

“Whether the legislative objective was sufficiently important to justify limiting a fundamental right.”

The court will consider the balance struck by the decision-maker, as well as whether or not it is reasonable or rational. Proportionality and the ‘Wednesbury unreasonableness’ did not always produce the same result.

3.      Procedural Impropriety – has the procedure been followed?

-Breach of Procedural Requirement: Express and Implied

EXPRESS PROCEDURAL REQUIREMENT: Two categories of express requirement are Mandatory and Directory. Mandatory refers to a requirement given by an authority; a prerogative order. Only if the breach is considered to be ‘mandatory’ procedural requirement will non-compliance affect the validity of the exercise of power. Breach of ‘directory’ procedural requirement will not affect validity. Lord Hailsham has criticised the rigid distinction between the two categories and said that the effects of the same breach may differ hugely in different circumstances. 3 criteria were proposed by Balcombe LJ, which must be considered when determining the effect of non-compliance:

(1) The importance of the relevant procedural requirement;

(2) The relation of that requirement to the general object intended to be secured by the Act;

(3) The relevant circumstances to the case.

IMPLIED PROCEDURAL REQUIREMENT: e.g. consultation; requirement to give reasons and; duty to follow a fair procedure. Usually linked to legitimate expectation arising out of a previous course of dealing between parties. E.g. In the CCSU case, members had previously been informed when terms and conditions changed in relation to their employment, and this gave rise to a legitimate expectation that they would be informed if the terms were to change again.