Offer

DEFINITIONo Expression of willingness to contract on specified terms without further negotiation so that it only requires

acceptance for a binding agreement to be formed (exhibited in Storer v. Manchester CC)o Intention to legally commito Intention that is binding upon acceptance

Only an offer is capable of immediate translation into a contract by the fact of acceptance Intention to be bound is assessed OBJECTIVELY HOW TO DETERMINE AN OFFER

o Assess whether communication is sufficiently specific with respect to main obligation(s) and price so as to be capable of immediate acceptance

o Assess whether statement made with intention that it will be binding upon acceptanceo Assess language used:

‘may be prepared to sell’ – NOT an offer (Gibson v. Manchester CC) ‘am prepared to sell’ – VALID offer (Storer v. Manchester CC) ‘first come, first served’ – ARGUABLY VALID OFFER relying on the U.S. case of Lefkowitz v. Great

Minneapolis Surplus Stores ‘first 100 replies with $X enclosed’ – ARGUABLY VALID OFFER relying on the U.S. case of Lefkowitz v. Great

Minneapolis Surplus Stores Firm Offer of NO effect unless supported by valuable consideration; offer to keep offer open can be withdrawn at

any time unless the option is purchased – Routledge v. Grant VENDING MACHINES/AUTOMATIC TICKET MACHINES : OFFER – once money is paid/put into the machine

(acceptance), the transaction is complete What is NOT an offer?

o Statement of minimum price – Harvey v. Faceyo Letter with heading ‘subject to contract’ makes offer not legally binding – Walford v. Miles

c/f ‘provisional agreement’ does not have the same effect – Branca v. Cobarroo Invitation to treat – Generally, (Newspaper) Ads, Brochures, Price Lists

Prima facie not an offero ADVERTISEMENT: prima facie an invitation to treat – Partridge v. Crittenden

EXCEPTION: Where advertisement is unilateral (promise to pay in exchange for an act); binding upon

performance of the stated act – Carlill v. Carbolic Smoke Ballo SHOP WINDOW: invitation to treat – Fisher v. Bello SHOP DISPLAYS/SHELVES: invitation to treat - Pharmaceutical Society of Great Britain v. Bootso WEBSITE: Arguably the electronic equivalent of shop displays, advertisements or catalogs = Invitations to treat

Offer comes from customer at the checkout stage where they follow the instructions to process the order

o REQUEST FOR TENDERS: invitation to treat Negotiating device used in commercial contracts NB: The tender would be the Offer EXCEPTION:

Request for bids/tenders which commit the person requesting tenders to be bound to accept the highest bid; the highest bid cannot be a referential bid – Harvela Investments v. Royal Trust. Co. of Canada

1

NB: If the highest bid is not seen as a result of the default/fault of the person inviting the bids, he is still bound by the highest bid (e.g. bid submitted on time but the relevant personnel did not see it was stuck in box ) – Blackpool v Blackpool BC

o AUCTIONS: invitation to treat Auction is invitation to treat; bidder makes the offer (not auctioneer) – Payne v. Cave It is when the hammer is struck that offer is accepted; Bid is the offer which auctioneer may accept or

reject – British Car Auctions v. Wright Notice that an auction will be held on a certain date is not an offer which then could be accepted by

turning up at the stated time. It is a statement of intention; no liability if auction not held or lots withdrawn – Harris v. Nickerson

Auction stated to be ‘without reserve’, still a statement of intention and there is no need to hold the auction; however, auctioneer is bound to sell to the highest bidder as ‘without reserve’ constitutes a unilateral offer – Barry v. Davies

‘Without reserve auction’: auctioneer MUST sell to the highest bona fide bidder NOT THE SELLER HIMSELF – Warlow v. Harrison

Communication of Offero Offer MUST be Communicated; ineffective unless and until it is communicated to the offeree o POSTAL RULE DOES NOT APPLY TO OFFERo No assent without knowledge – R v. Clarkeo Motives in accepting offer, irrelevant if he has knowledge of the offer – Williams v. Cawardine

Cross offers do NOT constitute an agreement – Tinn v Hoffman TERMINATION of Offer:o [Acceptance]o Revocation

Offer may be revoked at any time before acceptance – Byrne v. Van Tienhoven Must be communicated; revocation ineffective unless & until communicated to offeree

May be communicated by a reliable 3rd party – Dickinson v. Dodds Offer made to the whole world must be revoked by taking reasonable steps to inform the public, i.e.

must revoke in same manner as advertised (with the same notoriety), e.g. placing ad in the same newspaper – Shuey v. U.S.A. If offer was placed in shop window, taking it down is sufficient

Revocation of an offer takes place when the letter is RECEIVED Cannot revoke once performance has commenced – Errington v. Errington and Woods (if mortgage paid

off by son & his wife, father would give them house; offer withdrawn shortly before full debt paid - IRREVOCABLE); Daulia v. Four Millbank Nominees

o Lapse (Implied by law) LAPSE/PASSAGE OF TIME: at the end of a stipulated time-period OR after a reasonable time, where no

time specified – Ramsgate Victoria Hotel Co. v. Montefiore (attempt to accept offer to buy shares after 5months passed failed; offer lapsed)

FAILURE OF A CONDITION: Financings Ltd. v. Stimson – car badly damaged; offer lapsed since it was an implied term that car would remain in same condition as when offer made

DEATH: Of the offeror – if K of a personal nature or Offeree has no notice of the death:

If performance is independent of the offeror, then acceptance is valid unless revoked before accepted - Bradbury v. Morgan (estate was liable to pay debt guaranteed by the deceased)

Of the offeree2

o Rejection EXPRESS: Offeree rejected the offer IMPLIED: Counter-Offer>> Offeree varies terms or introduces a new term – Hyde v. Wrench

c/f Request for information ≠ Counter-offer; Generally an enquiry into flexibility of the offer terms; Offer therefore remains open – Stevenson v. Mclean

Qualifying cover later attached to a signed and completed application form may be a collateral K which does not affect the offer; completed form is unconditional acceptance – Society of Lloyds v. Twinn

NB: if offeree says I accept but…X….and otherwise I will not be able to accept then this is not an acceptance

Writing in blank spaces specifically left for that purpose is not acceptance but a counter offer; however if the person writes “approved” on it and they act upon the ‘contract’ it is binding – Brogden v. Metropolitan Rlwy

Battle of the forms – counter offer and implied rejection; but if counter offer accepted, then binding K – Butler Machine Tool v. Ex-Cell-O Corpn. Ltd.

Acceptance

DEFINITIONo Offeree’s unequivocal expression of intention and assent made in response to and which exactly matches the

offero Acceptance MUST be communicated – Powell v. Lee

VALID ACCEPTANCE = Fact of Acceptance + Communication of Acceptance No acceptance where prescribed method of acceptance not followed – Eliason v. Henshaw; Butler Machine Tool v.

Ex-Cell-O If no exclusive method prescribed, an equally expeditious or advantageous method may suffice – Manchester

Diocese v. Council of Education; Tinn v. Hoffman RULES:

o Acceptance must be in response to an offer; person accepting must know of the offer – R v. Clarke If person accepting offer subsequently becomes aware of the offer at the time acceptance is

communicated to offeror, then acceptance valid – Gibbons v. Proctor (reward offered for info given to Supt. Penn; offeree had no knowledge of offer at time he gave info but became aware at the time info communicated reached Supt.)

As long as there is knowledge, motive irrelevant – Williams v. Cawardineo Acceptance must be communicated to the offeror (or his agent) - Powell v. Lee

APPLIES TO TELEPHONE, TELEX, FAX RECEIPT RULE: Acceptance is communicated when & where received by offeror NOT when read -

Entores v. Miles Far East Where failure of communication is the offeror’s fault, he is liable; Messages at the risk of the recipient if

he fails to man telex/fax machine – Brinkibon v. Stahag Stahl Communication during business hours when offeree could reasonably expect offeror to be monitoring

machine and would expect communication to occur when fax received is ACTUAL COMMUNICATION – The Brimnes

Within ordinary business hours in The Brimnes was deemed where message received between 5:30 p.m. – 6:00 p.m.

3

EMAIL: s. 20 of the Electronic Transactions Act = Receipt rule (since sender will know if not sent) Where there is a designated e-mail address which was given then:

Acceptance communicated via the designated address is when the document reaches the server Where, address other than designated address used, acceptance communicated when it comes to

the attention of the offeror Where no dealings with email and e-mail used to accept – either of the above

INSTANCES WHERE ACTUAL COMMUNICATION IS NON-INSTANTANEOUS EVEN THOUGH INSTANTANEOUS METHOD USED

When received at night or out of business hours – Brinkibon v. Stahag Stahl Receipt deemed to occur on start of next working day – Mondial Shipping v. Astarte

Answering machine – no case, argue by analogy What would offeree expect? Communication when message played back – RECEIPT RULE

EXCEPTIONS Implied waiver of communication

Unilateral contracts - performance is sufficient no need to communicate one is attempting to perform – Carlill v. Carbolic Smoke Ball Co. Ltd.

NO waiver in Bi-lateral contracts – promise in exchange for a promise Silence does not amount to acceptance even where offeror is the one who imposed such a

condition – Felthouse v. Bindley POSTAL RULE: Acceptance takes place when and where the letter is posted; not when received –

Adams v. Lindsell ONLY APPLICABLE TO ACCEPTANCE!!!!! ONLY APPLIES TO LETTERS and TELEGRAMS (non-instantaneous means of communication) It must be reasonable to use post as means of communication – if offer by fax or telephone,

unless stipulated, post may not be reasonable Acceptance even where letter lost in post – Household Fire Insurance Co. Ltd. v. Grant Letter is posted when in possession of Post Office (letter handed to post man who only

delivers but not authorized to accept is not properly posted) – Re London & Northern Letter must be properly/correctly addressed – Korbetis; Holwell Securities v. Hughes Where ‘notice in writing’ is required by offeror it requires actual communication, POSTAL

RULE is excluded – Holwell Securities v. Hughes Retraction or Overtaking of Postal Rule:

NO ENGLISH LAW ON POINT By strict postal rule in English law, once posted acceptance communicated and contract

formed Countess of Dunmore v. Alexander suggests it is possible to do this (revoke acceptance

by quicker method after it is posted); HIGHLY DUBIOUS AUTHORITY

4

Consideration

HISTORICAL APPROACH TO DEFINITION o 16TH & 17TH C – motives for giving a promise

NB: When Denning revived promissory estoppel he opined consideration not necessary; this was however changed by WILLIAMS V ROFFEY.

o Reason why promise should be kept i.e. because of reciprocityo 18th C – merely a support for the fact that parties ICLR (per Mansfield)o Moral obligationo 19th C – it became one of the essential ingredients to uphold a K

NB: Consideration does away with legal formalities in some situations

DEFINITIONS o Generally, the bargaining element of a K; law of K only enforces reciprocal agreementso The price paid for a promise to one party or detriment suffered by another. Hence a promise for a promise Currie

v Misao Right, interest, profit or benefit accruing to one OR forbearance, detriment, loss or responsibility given, suffered

or undertaken by the other (Currie v Misa) = BENEFIT/DETRIMENT ANALYSIS => criticized; does not explain reciprocity of bargaining; fails to show distinction between legal benefit/detriment vs. factual benefit/detriment NB: Wlliams v Roffey revived this definition

o Price for which the promise of the other is bought (Pollock in Dunlop v Selfridge)=> Preferred definition = shows exchange or bargain

Kinds of consideration1. Executed consideration – a reward for an act i.e. entirely performed at the time the contract is entered into.2. Executory – a promise to do something in the future; promise for a promise3. Past – a promise of payment or some other benefit which comes AFTER the act

– promise is totally independent of the act; i.e. act is not because of the promise – lacks the bargaining element

Roscorla v Thomas – horse promised to be w/o vice AFTER the sale Re McArdle – improvements on building carried out; afterwards promise & written agreement to pay.

NO CONSIDERATION. THIS WAS PAST CONSIDERATION PAST consideration is NO consideration

EXCEPTION: o Pau On v Lau Yiu Long (3 Requirements)

1. Promisor requests service/act – Lampleigh v Braithwaite2. Circumstances imply/dictate that some payment of money or other benefit will be

recovered for service – Re Casey’s Patents3. Promise of payment/benefit must be legally recoverable/enforceable prior to agreement,

i.e. payment not for illegal acto Where requirements met, this brings together the PROMISE + ACT = ENFORCEABLE K & PAST

consideration will be good consideration (Pau On)

Rules

1. Must move from promisee – TWEDDLE V ATKINSON ; DUNLOP v. SELFRIDGE1. [only a party can sue=Privity of K]

5

Re McArdle

2. Consideration MUST be sufficient, but need NOT be adequate – CHAPPEL v. NESTLE1. Adequacy is for the parties to decide; not the Courts (caveat emptor) – BOLTON v. MADDEN2. Arguable, however, there must be some economic value (Treitel)3. SUFFICIENCY – Question of FACT

1. Promise by son to stop nagging father in exchange for father putting son in will, NO CONSIDERATION - WHITE V. BLUETT

c/f (USA CASE) Promise by uncle to pay nephew $5K on 21st bday if he refrained from drinking, swearing, etc. was enforceable; GOOD CONSIDERATION – HEYMER v. SIDWAY

2. Promise to forego legal proceedings may be good consideration – PITT V. PHH ASSET MGNMNT. LTD.

3. Sufficiency - What is offered as consideration must have some value in the eyes of the law CHAPPEL V NESTLE

o Even though wrappers were going to be thrown away, Nestle gained a benefit as this was a promotion; wrappers were not a mere condition (Lord Keith) but part of the consideration (Lord Reid)

o The contracting party can stipulate quite clearly for whatever consideration he chooses…a peppercorn does not cease to be good consideration if it is established that the promisee does not like peppercorns and throws them away (Lord Summerville)

Are casino/gaming chips good consideration?o NO – CHT Ltd. v. WARD

People do not game to win chips, but to win money Chips ARE NOT money’s worth but counters or symbols used for the

convenience of allo NO, only mere mechanism to facilitate gambling – LIPKIN GORMAN v.

KARKNELL Solicitor stole money from clients’ used it to gamble and lost Firm sued the Club for the money Club argued they gave chips in exchange for the money and this was

good consideration HELD: Gaming chips are not consideration but a mere mechanism to

facilitate gambling; money RECOVERABLE. Perhaps decision made in interest of fairness and justice as otherwise the Club would have been unjustly enriched.

o C/f CHAPPEL v. NESTLE Wrappers were a mechanism to facilitate marketing but were

nonetheless GOOD consideration4. INSUFFICIENT CONSIDERATION

1. Promise to perform an existing PUBLIC DUTY – COLLINS v. GODEFROY (promise to pay subpoenaed witness unenforceable – NO consideration; already under statutory/public duty

Exception:– o Going above & beyond public duty = GLASBROOK BROS v. GLAMORGAN CC –

mine owners & police case By assigning police to live on site, they acted above & beyond what they

thought was necessary to maintain law & order in the first place; police could recover money promised – GOOD CONSIDERATION.

6

o WARD v. BYHAM – promise by father of illegitimate child to pay mother $$ to keep child well looked after and “happy” was enforceable – GOOD consideration; mother acted above and beyond her public duty of simply maintaining, feeding and clothing child by keeping child happy (Where is the economic value???). UNPOPULAR VIEW GAVE BY DENNING – not about exceeding statutory duty but providing a benefit under the public duty

2. A promise to perform an EXISTING CONTRACTUAL DUTY STILK v. MYRICK

o Desertion of 2 sailors covered by the contract which stated that crew members had to cover for all emergencies; promise of extra pay UNENFORCEABLE – NO CONSIDERATION

EXCEPTIONS:o HARTLEY v. PONSONBY -if more than originally promised is performed then

there is GOOD consideration Crew of 36, 19 deserted; of 19 only 4 or 5 able sea men Circumstances had changed so drastically and become so dangerous

that original K had therefore come to an end and parties entered new contract which, on account of the perilous circumstances, was vastly different from previous K; promise to pay higher wages ENFORCEABLE – GOOD consideration

o THE ATLANTIC BARON – promisee provided additional benefit and/or incurred additional detriment

o WILLIAMS v. ROFFEY – promisor gains a factual benefit or obviates a disbenefit, GOOD consideration

Requirements – promise is binding & money recoverable where: K for goods/services in return for payment

o NB: Re Selectmove – Court refused to extend principle beyond Ks for goods/services

A has reason to believe B will not complete work on time A promises to pay B more to finish on time A secures a practical benefit or obviates a disbenefit Promise given without duress or fraud

o ATLAS v. KAFCO – driver for contracted haulers refused to move goods until agreement for more money entered into and signed – ECONOMIC DURESS

CRITICISM – ARTIFICIAL – South Caribbean Trading v. Trafigura Beheer3. Duty owed to 3rd party

SCOTSON v. PEGG o A agreed to deliver coal to B’s order; B ordered delivery to Co C promised to unload the coalo HELD: A could enforce C’s promise – A’s delivery of the coal was GOOD

consideration EURYMEDON

o Consignee requested stevedore to remove goods, although already contracted by carrier to do so. – GOOD consideration

7

4. Promise to pay a lesser sum PINNEL’S CASE – payment of a smaller sum will not discharge duty to pay higher

sum/full amt (even where creditor agrees!!!)o Applied in FOAKES v. BEER although Court opined that rule not consistent with

commercial realities EXCEPTIONS:

o Where original sum was unliquidated or disputed in good faitho Where AT THE CREDITOR’S REQUEST, payment is made:

At an earlier time At a different place By a different method

Is payment by negotiable instrument, e.g. cheques, a different method?

o NO – CUMBER v. WAYNE (18th C)o YES – SIBBERY v. TRIP (1846)o NO – GODDARD v. O’BRIEN (1882)o NO - D & C Builders Ltd. v. Rees (1965)

o Payment by 3rd party – HIRACHAND PUNACHAND v. TEMPLEo Composition agreement with creditors o Promissory Estoppel___________________________________________________________o Promise made by deed or in return for considerationo Payment accompanied by an additional benefit

3. Consideration cannot be of the past – can’t claim benefit for act completed (Re Mcardle)

PROMISSORY ESTOPPEL

DEFINITIONo Equitable concepto Where A promises not to enforce his legal right and B relies on this promise. In such a case, equity prevents

A from going back on promise where it would be unfair to do so ESTOPPEL = Promise + Reliance

o Provides an alternative explanation as to why a promise is binding, i.e. reliance

Based on Hughes v. Metropolitan Railway (time on a notice stopped running during negotiations) but established/revived OBITER in HIGH TREES (Landlord could only recover rent for post-war years when flats fully occupied)

Used to mitigate harshness of Rule in Pinnel’s case

REQUIREMENTS1. A contract2. A clear, unequivocal, (express or implied) promise or representation that a strict legal (i.e. contractual) right

will not be enforced3. Promisee in reliance on the promise alters his position

Not necessarily to his detriment, although there is an argument that detriment should be involved EMERY v. UCB CORPORATE SERVICES

8

Estoppel claim failed because Emery could not show that they had altered their position to their detriment or that they would have acted differently. (Emery was in too bad a financial standing and had no chance of recovery)

SEECHURN v. ACE INSURANCE In personal injury suit, solicitor threatened to sue for final payment but did nothing further

until limitation period passed. NO ESTOPPEL – no evidence that Seechurn acted to his detriment

4. It would be inequitable for the promisor to go back on his promise – The Post Changer

LIMITATIONSo It is a DEFENCE to a claim, NOT a cause of action (Shield, not a Sword) – COMBE v. COMBE

does not create a new cause of action – BAIRD TEXTILES v. MARKS and SPENCER NB:

Claimant can rely on promissory estoppel where it is not the main cause of action – HUGHES v. METROPOLITAN Rlwys

In CRABB v. ARUN DC, it was doubted whether distinction between PROMISSORY and PROPRIETARY estoppel was helpful. Consequently, promissory estoppel then could be used as a cause of action. This has not been followed despite the Australian case of WALTON’S STORES where it was used to create a new right of action.

o Defendant cannot rely on promissory estoppel if not acting equitable (“He who seeks equity must do equity” – CLEAN HANDS PRINCIPLE)

D & C BUILDERS v. REES – Defendant argued estoppel where Claimant brought action for remainder of money. NO ESTOPPEL – Rees did not act equitably in putting undue pressure on D & C to accept smaller sum

EFFECT of Promissory Estoppel TOOL METAL v. TUNGSTEN :

o EXTINCTINCTIVE – as regards existing obligations – HIGH TREES > DURING WAR – right to full rent extinguished

o SUSPENSORY – as regards future obligations - HIGH TREES > POST-WAR – right to full rent after war when full occupancy was revived (obligation was suspended then revived)

Waiver vs. Promissory Estoppel – discussed in Brikom Investments v.Carr; Rickards v. Oppenheim

Consider Promissory estoppel where issue arises re repayment (after looking at Consideration)

9

Intent to Create Legal Relations – judged objectively based on presumptions

You can have offer, consideration, and acceptance and don’t have valid K

Begs question – is it intention or Public policy. Presumption is that the parties did not intend to create legal relations.

PRESUMPTIONSo Social/Domestic Agreements – NO ITCLR

appears to be public policy Rebutted by:- clear reliance, certainty of terms, seriousness of promise (No express statement

will suffice) Balfour v. Balfour - NO ITCLR

o c/f Merritt v. Merritt – ITCLR; breakdown of relationship takes agreement outside domestic arrangements; when parties in amity different; when breakdown, they bargain keenly not relying on honourable understandings

Jones v. Padavatton – promise to pay fees and living allowances, ITCLR; NO ITCLR where daughter lived in a house where other rooms let

DETRIMENT: Parker v. Clarke – couple sold house as instructed by older couple in exchange for the promise to get older couple’s house after they died >>>ITCLR

MUTUALITY: Simpkins v. Pays – ITCLR >> pooling of funds for lottery and entering in one person’s name

BUSINESS ARRANGEMENT: Snelling v. Snelling

o Commercial Agreements – heavy presumption of ITCLR Difficult to displace based on purpose of such Ks and undesirability for ITCLR to be a further hurdle for party seeking

to enforce K Commercial K’s meant to be legally binding – EDWARDS v. SKYWAYS Advertising generally mere puff

Exceptions:o Carlil v. Carbolic Smoke Ball – deposit of $$ - ITCLRo Barman v. A.B.T.A. – notice of guarantee intended to be read and would be

reasonably read by customers as constituting a binding offer which customers would accept by booking with member tour operators.

Rebutted By: - Express words denying that the agreement is to have legal consequences/enforceable in

Courts – Rose and Frank v. Crompton Bros. Statement that it is ‘binding in honour only’ – Jones v. Vernon Pools Comfort Letters – Kleinwort Benson Ltd. v. Malaysia Mining Corp. Trade Union & Collective Bargaining Agreements – Ford v. AUFFN

NOTE: Where nature & context of parties’ dealings fall between a transaction and social agreement, the Claimant must discharge burden of proving commercial agreement. – SADDLER v. REYNOLDS

10

Intention - evidence n not substantive law

Direct Intention – Where D brings about a desired result, then he intends such a result (R v Mohan). He has intention where he has purpose and foresight of certainty.

Indirect Intention – Jury Question. Jury may infer a result is directly intended when: the result of D’s act is a virtually certain consequence of his actions, this will suffice as evidence which the jury can use to find intention; when D knows that it is a virtually certain consequence.

DPP v Smith – (natural and probable consequence) Intention can be formed instantly (man signalled to stop. Police jumped on car bonnet. D drove at high speed swinging car until officer thrown off and killed. He intended to cause GBH and held murder) – objective test – reasonable man

Subjective

Hyam v DPP – D lit mailbox fire to scare V – High degree of probability of death or GBH– intention

R v Moloney – wedding shotgun – If result was a natural consequence and the defendant foresaw the consequence as being natural then he intended the consequence. Nothing less than intention will suffice

o Was death/GBH the natural consequence

o Did D foresee one or other as a natural consequence of his act

o If so, CAN INFER intention

R v. Hancock & Shankland – Big brick over bridge – probability = foresight, the greater the probability of a consequence the more likely that it was foreseen, and more likely foreseen more likely it was intended.

R v Nedrick – Paraffin through letter box which was set afire – Jury MAY infer intention if D recognized that death or GBH would be a virtually certain consequence, but is not obliged to do so

R v Woollin – man throws baby – confirmed Nedrick test virtual certainty, can find intention need not go one step further to infer; substantial risk not enough

Matthews & Alleyne – court MUST find intention if death or GBH was a VCC; this direction Wrong

Recklessness

SUBJECTIVE

R v Cunningham (removed gas meter escaped into neighbour’s house who inhaled it) – Was there an obvious risk which D consciously took or unconsciously took? Objective test. Reasonable man.

Stevenson – a man is reckless where he carries out a deliberate act appreciating that there is a risk that damage (to property) may result from his act; risk must be obvious in all circumstances and unreasonable; risk must have entered his mind

11

OBJECTIVE

Caldwell and Lawrence – (Caldwell -D drunk set fire to hotel; Lawrence – caused death by dangerous driving); person is reckless where he does an act which creates an obvious risk that property destroyed or damaged and when does the act has not given any thought to risk or takes it even after recognizing

o Caldwell Lacuna – What if D gave thought to the risk but thought there would be no harm (Shimmen)

R v G – overruled Caldwell in light of lacuna

o Not blameworthy to do something involving risk…if one genuinely does not perceive the risk

Once obvious and serious risk is proved, D's only way out is to prove he considered the matter and there was no risk/negligible risk.

Transferred Malice If D with the mens rea of a crime does an act which causes actus reus of same crime he is guilty even though

result is unintended (R v Latimer - belt).

o Does not extend to foetus – A-G’s Reference No. 3

However if D with mens rea of a crime does an act which causes actus reus of another, he will not be liable under transferred malice (R v Pembliton – stone thrown at people breaks window)

Coincidence of Actus Reus & Mens Rea

D forms M/R but A/R not completed until later and at a time where he no longer necessarily satisfies M/R, he may still be convicted

o Thabo Meli – Ds hit V over head intending to kill him but only knocked him unconscious. Believing he was dead, and in an effort to fake an accident, they rolled him off a cliff. V died of exposure. HELD: impossible to divide up what was really one series of acts; Ds guilty of murder

o Church – D beat woman unconscious and in a panic thinking she was dead, threw her into a river. She died from drowning. HELD: Ds act from moment he first struck her to when he threw her in the river was a serious of acts to cause death

o Le Brun – D hit wife on chin intending serious harm and knocking her unconscious. While he was trying to drag body along the street to avoid detection, he accidentally lost his grip. Her head hit pavement, fracturing her skull and causing her death. HELD: time lag between first strike and Vs death did not stop it being a single sequence of events.

Participation

Who is a secondary party? Aid or abet the P offender before or at the time of the commission of the offence.

Actus reus - aid abet counsel or procure

Mens rea – as long as u intended to aid…..(national coal board v gamble)12

Joint Enterprise – participation of 2 or more persons in a crime, each assumes liability of the other – a common design

General – both liable for accidental or unforeseen (R v Baldessare)

Exception- major departure; only principal liable (Davies v DPP)

The threshold for the mens rea for 2ndary party is lowered (murder)

R v Powell; R v English- parties (2ndary) need to realize that death or GBH was possible

In R v English – if “weapon” fundamentally different then “scotch free”

Duress by threats – (Hudson v Taylor)

By threats To a person Immediacy

Withdrawal -

If spontaneous, communication not required – R v O’Flaherty

If planned, communication and acts reasonable to prevent crime – Rook

13

Injunctions

DEFINITIONo Equitable remedyo In personamo Order by the Court for a party to do something (Mandatory) or to refrain from doing a particular act

(Prohibitory) Prohibitory - compelled not to do (restraint of trade clauses) Mandatory – compels defendant to do what he is promised to do

o NOT GRANTED WHERE - Supervision, severe hardship, or defendant disadvantagedo Restrain breach of contract of employment Warner Bros v Nelson;o Lumley v Wagner

TYPES – based on time-span1. Perpetual – Order finally settles dispute2. Interlocutory/Interim – deals with the matter in the interim, there is still a matter to be heard in the end;

i.e. granted pending trial of substantive matter May be prohibitory, mandatory or quia timet (“because he fears” – injunction before D does

something) Usually remains in force until substantive trial of the matter; may be granted for shorter period

GENERAL GUIDELINESo Right sought must be known to law or equity

Cannot seek injunction because you dislike something – DAY v. BROWNRIGo Damages not adequate

Mandatory injunctions granted less frequently than prohibitory Mandatory injunction ≠ Specific performance

o Mandatory inj – may act as restorative remedy to have D undo a wrongful act or compel D to carry out positive obligations

o Specific performance granted where contractual obligations are at issue (Mandatory inj can be given but this is rare)

PRINCIPLES - American Cyanamid v. Ethicon 1975

o Pre Cyanamid – J.T. Stratford & Sons v. Lindley Strong prima facie case that your rights have been infringed Damages would be inadequate Balance of convenience favour the grant

Hence, prior to Cyanamid, Claimant had to show that it was more than likely that he would succeed at trial

Effectively, a ‘mini-trial’ which looked at merits of the case without hearing sufficient argument

Where injunction granted, D would generally not proceed to trial – FAST-TRACKING of matter. Claimants did this deliberately

14

o Current/Cyanamid REQUIREMENTS:

1. Serious Question to be tried instead of ‘strong prima facie case’; capable of serious argument

2. Case not frivolous or vexatious Balance of convenience

o Carried over from precious dispensationo If Balance of Convenience does not favour grant:

Preservation of status quo when all else fails the strength of each parties case must be

considered, if present consider special factors –r they aspects or departure?

Damages Inadequateo Carried over from b4

RATIONALE: Courts should not be embarking on massive fact-finding missions at such a stage

Post-Cyanamido Lord Diplock’s enunciation in Cyanamid have not done away with previous dispensation principles

entirelyo Cyanamid is guideline and “must never be used as a rule of thumb, let alone a straight-jacket” –

Cambridge Nutrition v. BBCo Ends of justice not served by laying down hard inflexible rules from which no departure can ever be

made – Jagdeo Singh v. State of Trinidad & Tobago Special factors which may take case outside Cyanamid Principles:

o This is the precise reason why Cyanamid did not lay down any hard and fast rules Fellowes & Son v. Fisher –

Lord Diplock refused injunction saying he did not feel bound by Cyanamid as there were escape routes from Cyanamid

Lord Brown commented that there was flexibility NB: Denning still preferred ‘strong prima facie case’ as he believed such matters

warranted expeditious treatmento ‘Special factors’:

Trade disputes – strong prima facie case; Cyanamid doesn’t apply Trial of action unlikely or delayed No arguable defence – Patel v. W.H. Smith Libel cases inapplicable – Bonnard v. Perryman Life saving treatment to a child – Re J (A minor) Claimant cannot give a worthwhile undertaking in damages Mandatory Interlocutory Injunctions - Mareva and APO

NB: If Cyanamid not applicable, relevant test is still ‘strong prima facie case’ as prior Cyanamid

15

ANTON PILLER ORDER

DEFINITIONo Named after ANTON PILLER KG v. MANUFACTURING PROCESSES LTD.o Known as a ‘Search Order’o It is NOT a search warranto Court order which mandates the defendant to permit the Claimant to enter his premises and effect a

search and seizure of evidenceo If Defendant does not comply, he is in contempt of Court and also, negative inferences will be drawn

against him at trialo Aim: to prevent destruction of incriminating evidenceo Described as an innovation which has proved its worth time and time again

Usually obtained ex parte, i.e. without notice, based solely off of affidavit evidence Draconian measure

REQUIREMENTSo NB: Cyanamid rules DO NOT apply o Claimant must show:1. Strong prima facie case2. Actual or potential damage of a very serious nature3. Clear evidence that defendant has incriminating evidence (documents, etc.)

o Claimant cannot be going on a ‘fishing expedition’4. There is a real possibility of them being destroyed before an application notice can be made

DRACONIAN EFFECTo ‘Strikes without warning’ – since no noticeo Violates audi alteram partem rule - based solely off of affidavit evidence brought by Claimanto Allows for exposure of sensitive information, e.g. sensitive or confidential information re the business,

its clients, suppliers, creditors, etc. (notably the Claimant may be a competitor)o May lead to destruction of business customo Effectively overrides the right of the citizen to an unprecedented extento Can lead to gross injustice to Defendant, esp. where Claimant abuses situation or Ordero Co-opts ‘innocent’ 3rd parties into complying with an Order issued out of proceedings to which they were

not parties – 3rd parties may hold the information or documents which are subject to the ordero Potentially violates the Defendant’s rights against self-incriminationo Any defence re self-incrimination is only applicable to the Defendant; third-parties may not be protected

SAFEGUARDSo ‘Strong prima facie case’ threshold which needs to be met by Claimanto Strict duty of full and frank disclosure of all relevant matters, even if prejudicial to Claimant

Order revoked if full & frank disclosure not made (Fourie v. Le Roux – although Mareva Case, still applicable)

o Execution of Order must not be oppressive – executed within business hours so Defendant can get legal advice, at the very least

o Woman must be present at search of private home where woman may be alone

16

o Experienced Attorney must be present and make comprehensive list of items takeno Defendant may opt not to deliver up evidence which is self-incriminating – Rank Film Distributors

NB: Not available to 3 rd parties o Framework of safeguards refined in Columbia Pictures Industries v. Robinson and Universal

Thermosensors v. Hibben

MAREVA INJUNCTION

DEFINITIONo Named after MAREVA COMPANIA NAVIERA SA v. INT’L BULKCARRIERS SA

However, not the first time Order granted. First granted in Nippon v. Karageorgiso Known as a ‘Freezing Injunction’o Interlocutory injunction ancillary to a substantive pecuniary claim for a debt or damageso Considered by Lord Denning as the greatest piece of judicial reform of his time (albeit he was doing the

reforming)o Aim: prevent the Defendant from dissipating assets or removing them from the jurisdiction before trial

so as to render judgment against him uselesso Usually obtained ex parte, i.e. without notice, based solely off of affidavit evidence

May be sought with APO Does NOT rest on Cyanamid principles

REQUIREMENTSo Good arguable caseo Full & frank disclosure of all material informationo Claimant must give particulars of his claimo Claimant must undertake in damages, giving security in suitable caseso Claimant must establish that there is a risk of the removal of the assets outside of the jurisdiction

DRACONIAN EFFECTo ‘Strikes without warning’ – since no noticeo Violates audi alteram partem rule - based solely off of affidavit evidence brought by Claimanto May lead to destruction of business custom as assets are frozen, Defendant unable then to fulfill

obligations to employees, creditors, etc.o Effectively overrides the right of the citizen to an unprecedented extento Co-opts ‘innocent’ 3rd parties into complying with an Order issued out of proceedings to which they were

not parties – 3rd parties (e.g. banks) usually hold the assets which are subject to the order Once served with a notice, 3rd party must not facilitate disposal of assets without a Court Order;

otherwise, it will be in contempt of Courto Recent expansion of jurisdictional reach

Originally involved a foreign national who had assets in England Today:

May extend to ALL of the Defendant’s assets (although, a limit is usually specified)o i.e. Worldwide freeze of Defendant’s assets

17

Derby & Co. Ltd. v. Weldon (No. 3 and No. 4) Republic of Haiti v. Duvalier

May be granted against locals with assets outside jurisdiction SAFEGUARDS

o ‘Good arguable case’ threshold which needs to be met by Claimanto Strict duty of full and frank disclosure of all relevant matters, even if prejudicial to Claimant

Order revoked if full & frank disclosure not made (Fourie v. Le Roux) o Applicant/Claimant has no action against 3rd party for negligence; but any expense incurred by 3rd party

to comply with Order must be met by the Applicant/Claimanto 3rd party may have a remedy/right of set-off that it would normally have had prior to injunctiono Execution of Order must not be oppressive

Must not interfere with convenience or freedom of action of a third-party Galaxia Maritime – Freezing order obtained for cargo on ship; Ship owner obtained

discharge of the Order as it would have interfered with the crew’s arrangements for Christmas

18

Specific Performance

DEFINITIONo Equitable Remedy- when c/l remedies not applyo Discretionary, but granted on settled principles

E.g. ought not to be granted in respect of personal property; unless item is peculiaro Subject to the maxims of equity

He who comes must come with clean hands Equity does not act in vain – Jones v. Lipman:

specific performance would not have been ordered if property was sold in ‘arms-length transaction’ to bona fide purchaser for value without notice (company other than that owned by the Defendant)

Courts are not in the business of supervising (corp insurance V argyll stores) Delay defeats equity Equity does not assist a volunteer

o Given in the context of a contractual agreemento Order of the Court requiring a party to perform his obligation under the contract specifically

Remedy in personam - Penn v. Lord Baltimoreo Generally, governing principles are not to be avoided by seeking an injunction in the alternative;

however, Courts have in fact ordered injunctions with the effect of specific performance and admitted to doing so – Warner Bros. v. Nelson; Sky Petroleum Ltd. v. VIP Petroleum Ltd.

DOCTRINE OF PART PERFORMANCE o If a party has sufficiently performed part of the contract (esp. sale or lease), in the absence of written

agreement for land contract, Court may still grant relief by specific performance – Sutton v. Sutton Sufficient part performance may then displace requirements of Statute of Frauds re Land

contracts, particularly, that they be in writingo If binding agreement and sufficient acts of part performance, relief granted – Wakeham v. McKenzie

Part performance may be sufficient in cases where: Claimant takes possession of premises Claimant carries out work on premises Claimant pays rent in advance Claimant pays down substantial amount as deposit

o Part performance – cant unless it’s a severable K – when significant work is done as it would be inequitable (design n build)

CONTRACTS FOR THE SALE OF LANDo COGENT v. GIBSON

Unique nature of land makes it amenable to specific performance Since purchaser can get specific performance against Vendor; MUTUALITY PRINCIPLE applies

and Vendor can therefore obtain specific performance against Purchaser (even though it is a contract to pay money)

o MUTUALITY PRINCIPLE Where S/P can be ordered in favour of one party, it will usually be available to the other

19

Where one party could not get S/P against the other, then other party should not get S/P – Flight v. Boland

CONTRACTS TO PAY MONEYo Not normally enforceable by specific performance – since damages would be adequate: Locabail

International Finance v. Agroexport Exceptions

1. Mutuality Principle (above)2. Contracts to pay money to a 3rd party ( since damages awarded to Claimant would only

be nominal) – Beswick v. Beswick3. Contracts for company to take up and pay debentures4. Contracts for payment of annuity or other periodic sums (e.g. rent)

o Specifically enforceable as it prevents Claimant from going to Court each time Defendant defaults on payment. Where S/P ordered, Defendant’s default is contempt of Court

CONTRACTS FOR PERSONAL SERVICESo Generally, not specifically enforceable:

Tantamount to slavery Requires supervision

o Rule cannot be avoided by seeking injunction However, Courts have granted injunctions which have had effect of S/P (and they have admitted

to doing so)1. Hill v. Parsons, which applied2. Lumley v. Wagner – SINGER COULD BE INJUNCTED FROM SINGING ELSEWHERE3. Warner Bros. v. Nelson – Court opined that the injunction although having effect of

specific performance was not tantamount to slavery as the actress could have worked elsewhere, such as in department store; just not act in another film

o RULES Court will not generally award S/P where contract would require constant supervision

1. Posner v. Scott-Lewis – a resident porter: ENFORCEABLE2. Ryan v. Mutual Tontine – a specific porter: NOT ENFORCEABLE

Equity does not act in vain – S/P not granted if it cannot be ensured that it would be carried out 1. Co-Op Insurance v. Argyll Stores

o NOTE: If A makes promise to B in return for personal services, if B has completed the obligations for

which S/P would not have been available by the time of judgment; B can obtain S/P against A If B has not completed by date of judgment, no S/P as A would not be able to get against B What is important is completion by date of judgment; not whether S/P could be obtained at

time of K – Price v. Strange Since equity is equality, ordering S/P for transfer of land because personal services rendered

may be far too much; however, there may be an award of damages in acknowledgment of the services – Jennings v. Rice

20

Trust of homes

Institutional form of trust imposed by law to grant a claimant an equitable remedy.

Truth conditions

Common intention to share of property Detrimental reliance

Lord Denning new model constructive trust (eves v eves) – remedial effect – lose predictive value

Lloyds bank v rossett – detrimental reliance =financial contributions

Ossley v hisscock – household duties – saving u from paying these thus contribute to mortgage joint acct(grant v edwards)

Stack v Dowden- look at whole course of dealings not only truth conditions – baroness haye – based on conduct what must have been the intention?

21

Tort

Negligence

To establish Negligence there must be

Duty of care – Donoghue v stevenson – Neighbour principle – you must take reasonable care to avoid acts or omissions which you can reasonably foresee would injure your neighbour. Neighbour is persons who are so closely and directly affected that I ought to have them in my contemplation as being affected when doing the acts or omissions.

o Current test in Jamaican law – Anns v Merton – 1) Is there sufficient relationship of proximity so that carelessness of D might cause damage to P so that prima facie duty arose? 2) Are there considerations which would limit the scope of the duty?

o Economic Loss – Usually not recoverable. However where there is:

Loss consequent to physical damage of property – Spartan Steel v Martin – Where plaintiffs suffered electricity loss as a result of negligence of D, this caused physical damage to factory furnaces and metal, they also lost profit on metal. HeldOnly the damages to furnaces, metal which had to be discarded and profit lost on discarded metal recoverable. Losses from factory being shut down for 15 hours not recoverable.

Negligent Misstatement – Headley Byrne v Heller – Requirements – 1. Advisor actually or inferentially knew that the advice was required for a purpose; 2. The adviser knew the advice would be communicated to the advisee; 3. It was known that the advice would be acted upon by the advisee without independent inquiry; 4. It was acted upon by the advisee to his detriment. Consider Caparo v Dickman where D had done audit for company being taken over, and P acted on the audit. Held: Not D's problem as D did the work for the company, not the P. P could've gotten independent audit.

Advice given in social occasions may have liability attached. Though it isnt ordinarily. (Chaudhry v Prabhakar)

Advisors may protect themselves by a disclaimer however this cant be applied where the notice is unreasonable (Smith v Eric Bush – Purchasing house surveyer)

Breach – Standard is the reasonable man test, usually man on the clapham bus, however this standard may be too low – Blyth v Birmingham waterworks – D had done what the reasonable person would've done.

o Bolam Test – Where D has repersented himself as having more than average skills, the test expects standards in accordance with a responsible body of opinion.

Novices must show same standard of care as a reasonable person with that skill. No allowance given for lack of experience.

Child D is expected to meet the standard of reasonable child of same age

Public authorities only liable for misfeasance and not for negligence for failure to act or to provide a service (under jamaican law)

o Res Ipsa Loquitor – Evidence speaks for itself – Raises prima facie inference of negligence > Reverses burden of proof requiring D to show that damage was not caused by his failure to take reasonable care.

Jamaica Omnibus v Hamilton – Where Bus door flew open around a corner and Passenger fell out. Held that door under control of company and they were negligent.

22

If part of car fails, then must show that it wasn't fault of D and he had taken all reasonable steps

Causation

o Causation in Fact – Claimant must prove on balance of probabilities that D's breach caused the harm. If there are multiple causes must prove that one particular breach caused the damage, doesnt have to be main cause, provided that it materially contributed. May be sufficient to prove that D's breach made risk of injury more probable (McGhee v National Coal Board)

o Causation in law – Where there are 2 successive causes of harm, the court may regard first event as cause of the harm.

Baker v Willoughby – C sufferred injuries to left leg as a result of D's negligence. Subsequently in the course of his employment C was victim of armed robbery where he got shot in the left leg and it had to be amputated. D argued liability extinguished by 2nd incident. Held Prior loss was in no way reduced by amputation of leg.

o Novus Actus interveniens – can be either act of nature; C's own conduct; or act of a 3rd party – Jobling v Associated Dairies – C's employer negligently caused a slip disk which reduced his earning capacity. Later it was found that C had a spinal disease which would gradually rendered him unable to work. Held that D only had to pay for damages up to when the spinal disease took over because it would've happened anyway.

Remoteness

o Previously in Re Polemis – Held that once some harm was foreseeable the D was liable for full extent of the harm.

o Current Test – Wagon Mound #1 test – Only the harm that was reasonably foreseeable is recoverable. Extent of damage need not be foreseeable though (Thin skull rule applies R v Blaue jehovah witness)

o Claimant has duty to mitigate.

23

Nuisance

What is it?

Continuous unlawful interference with the use or enjoyment of land (or right In land)

Private Nuisance – Physical injury to the land (flooding); Encroachment on N land (overhangs); Interference with enjoyment (smell, noise).

Requirements

Continuous – Over a period of time. A single act can however rarely amt to nuisance (Crown River Cruises v Kimbolton fireworks)

Unlawful/Unreasonable – C must prove D's conduct unreasonable, making it unlawful (sic utere tuo ut alienum non laedas – use own property as not to injure your neighbour's). Court will take factors into account when assessing reasonableness

o Locality – Sturges v Bridgeman – What is nuisance in belgravia may not be in berdmondsey

o Sensitivity – Robinson v Kilvert – Abnormally sensitive paper damaged by heat from adjoining premesis.

o Utility – Harrison v Southwark – Building work carried out at reasonable times of day is not nuisance. (if activity is useful for community as a whole may not be nuisance)

o Malice – Christie v Davey – Music lessons ruined by neighbour.

o State of D's land – Occupier must take steps to prevent/minimise dangers to adjoining land – Leakey v National Trust – D had mound of earth which was gradually eroding into P's property. Held D must take steps to prevent or minimise danger from natural hazards on his land.

Interference with the use/enjoyment of land or right over it. Halsey v Esso Petroleum – Held that doing work at 10am is fine. But at 10pm is not fine. Work disturbed neighbours sleep and caused damage to clothes from acid smut. *NB – Interference with TV reception by building is not an actionable nuisance, it isnt interference with enjoyment of land.

Who may sue – Persons with proprietary interest or exclusive possession (Dobson v thames water)

Who may be sued – Creator of nuisance, landlord – if he has knowledge of nuisance.

Defences – Prescription – 20 yrs, statutory authority

Remedies – Injunction, damages – amenity value, Cost of cure, Abatement

Titus v Duke – Tree in yard damaged C's car. C had warned D about tree. D refused to cut tree and told him to move car. Held D not liable, since respondent was occupier, could've taken steps to remedy.

Public Nuisance

An act which materially affects the reasonable comfort/convenience of her majesty's subjects. Eg: Unreasonable use and obstruction of highway. It is a crime and a tort. Must prove special damage over and above others AG v PYA Quarries – quarrying activities showered neighbourhood with stones and dust and vibrations. Was private nuisance affecting some residents, but not a public affecting all.

Remedies – Damages, Injunctions.

24

Charles v Charles – Police walking along road. Coconut fell from tree in D yard and struck policeman. Happened before, and D knew about it. Liable in nuisance and negligence.

What is it?

Continuous unlawful interference with the use or enjoyment of land (or right In land)

Types of private nuisance – Physical injury to the land (flooding)

Encroachment on N land (overhangs)

Interference with enjoyment (smell, noise)

Requirements

Continuous interference – a single act can amt to nuisance (crown river cruises v kim Bolton) fireworks

Unlawful interference – unreasonable use causes unlawful use – sensitivity of claimant (give n take), (Robinson v kilvert –steam damage paper crt says no)/(mckinnon industries v walker –orchids)

Duration and frequency

Locality

Malice – (Christie v Davey)

Interference with use prove physical damage or peaceful enjoyment (halsey v esso petroleum – noise and vibration)/(hunter v canary wharf – interference with tv reception )

Who may sue persons with proprietary interest or exclusive possession (Dobson v thames water)

Who may be sued creator of nuisance, landlord- knowledge of nuisance, come n continue nuisance.

Defences Prescription – 20 yrs, statutory auth

Remedies injunction, damages –amenity value, cost of cure, abatement

What kind of nuisance is applicable, whether liability arises, in not other torts? Negligence?

25

Public Nuisance AG v PYA Quarries

What is it? An act which materially affects the reasonable comfort/convenience of her majesty subjects. Eg. Unreasonable use and obstruction of highway. It’s a crime and a tort (prove special damage – over n above others)

Remedies damages, injunctions – can get for personal injuries

26

Rylands v Fletcher

Rylands v Fletcher

1. Defendant brought something onto his land;

2. D made non-natural use of his land

3. The thing was something likely to cause mischief if it escaped;

4. The thing escaped and caused damage

5. Now there is further requirement that the harm must have been foreseeable (Cambridge water v Eastern Counties leather – Held that though all requirements of Rylands v Fletcher were there, the harm was too remote)

Defences – contributory negligence, unforeseeable act of a stranger

Remedies – Damages for Physical harm to land itself and other property. No personal injury though (usually negligence)

Defences – Consent (Where claimant consents to the presence of source of danger, provided there is no negligence will be a defence.

oCommon Benefit – If danger was maintained for benefit of both C & D

oAct of a stranger – If stranger responsible not liable

oStatutory authority

oAct of God

D brings on his land for his own purposes something likely to do mischief It escapes Non- natural use Foreseeable harm

Cambridge water company- only foreseeable harm is recoverable

Transco PLc- courts took restrictive approach - claimant must have interest to sue

-dangerous or high risk thing

Defences – contributory negligence, unforeseeable act of a stranger

Remedies- no personal injury

How relevant? Tort of negligence (Donoghue v Stevenson)

FOR JAMAICAN LAWYERS:  Just an update – as it relates to electrocution – there is a case in Barbados – Phillips v Barbados Light & Power, which says that you CAN recover damages for personal injury in Rylands v Fletcher – FOLLOWING THE POLICY FOR SUCH RECOVERY IN AUSTRALIA.  Note, this is a Barbadian case.  Thus, you have the option of following the English jurisprudence or using the Barbadian case.

27

 

ENGLISH LAWYERS: STILL GO ALONG THE ROUTE OF NEGLIGENCE AS PERSONAL INJURY IS NOT RECOVERABLE IN ENGLISH LAW.

Rylands v. Fletcher vs. Private Nuisance o R v F and nuisance can be invoked indifferently – Read v. Lyonso Courts have refused to push the rule in R v F forward; stated clearly that R v F is a sub-species of

nuisance – Transcoo Current trend of eroding non-fault basis of liability in R v F which has been reinforced in recent time –

Cambridge Watero Similarities

Nuisance – liability where unreasonable interference with C’s proprietary interest in land; principle of ‘reasonable user’

R v F – ‘reasonable user’ similar to principle of natural use; in Transco Lord Bingham showed preference to ‘ordinary’ use

Foreseeability of damages important in R v F (Cambridge Water Co.) and private nuisance No recovery for personal injury in private nuisance (Malone v. Laskey) or R v F (Cambridge

Water)o Distinctions

LIABILITY R v F – founded upon escape of accumulation (therefore, generally excludes things

occurring naturally) Nuisance – liability may arise for things occurring naturally (Charles v. Charles)

TANGIBLE/INTANGIBILE R v F – accumulation of tangible matter likely to cause damage if it escapes and which

escapes Nuisance – can cover damage caused by escape of intangible escapes such as noise

(Rushmer v. Polsue) STANDING/LOCUS STANDII

R v F – once escape is established, anyone who suffers damage may claim irrespective of whether they are occupiers of adjoining land – British Celanese

Private Nuisance – founded upon proprietary interest – Molone v. Laskey

28

Co-Ownership

DEFINTIONo Simultaneous/concurrent ownership of land by 2 or more personso Simultaneous interest in the same lando Land subject to several and separate ownership in various forms

TYPESo Joint Tenancy

4 unities Time Title Interest Possession

Viewed as more perfect type of co-ownership because of Ius accrescendi Ius accrescendi IS

The right of Survisorship Odious in equity because of:

1. Lottery effect/uncertainty – survival of the fittest; no-one knows which JT will out live the other(s); EQUITY PREFERS CERTAINTY

2. Inequality – JT may get entire interest without having contributed anything at all or only a small portion; EQUITY IS EQUALITY

3. Unconscionable nature – JT is not allowed to do what he may with his ‘portion’ of the property; ius accrescendi thus acts without conscience or compassion as it relates to not just wishes of JT but also the needs of those who may depend on him

All owners viewed as a single legal entity Co-owners own ALL the land; no separate ownership All co-owners must act in concert

o Tenancy In Common Co-owners hold a separate but undivided share in the land Each co-owner can deal with their undivided share as they see fit Less perfect since only one Unity, unity of possession, and ius accrescendi does not apply On death of Tenant in Common, his undivided share devolves to his estate

In Jamaica, co-owners may be Joint Tenancy or Tenancy in Common at law (i.e. on Title)o c/f England – where only JT at law

Where conveyance/transfer without words of severance, JT at law –equity follows the law So, generally, where parties purchase as co-owners, JT is presumed

o SPECIAL CASE Commercial undertakings – right of survivorship incompatible with commercial undertakings so

really TIC (in equity) Co-owners for partnership (business or otherwise) – Lake v Craddock Purchasing for individual business purposes - Malayan Credit

29

SEVERANCEo Act of transforming joint tenancy into a tenancy in commono Severance must be inter vivos – Williams v. Hensmano Cannot sever legal title; can only operate in equityo METHODS:

Alienation - Williams v. Hensman JT acts on his potential share; potential share would be referable to number of parties If JT seeks to sell, Statute of Frauds must be met Other JT’s need not know

Mutual Agreement - Williams v. Hensman ALL JT’s must agree; not some Need not be in writing – Burgess v. Rawnsley

Mutual Conduct - Williams v. Hensman No hard and fast rule; depends on circumstances in respect of their conduct

o E.g. if they partitioned house or treated one side of house as belonging to one and the other side to the other

Homicide – common law forfeiture rules against unjust enrichmento NB: Notice IS NOT sufficient (LAWRENCE v. MAHFOOD); (GAMBLE v. HANKLE) - nothing short of a

registered transfer will suffice (Generally) Gamble v. Hankle – inter vivos deed of transfer did not conform to requirements under

Registration of Titles Act but was nevertheless a sufficient act showing alienation of interesto Severance creates a trust situation – Legal owners (on title as JT) hold on trust for themselves and

persons in equity (those who severed, etc. as the case may be)

FORCE OF SALEo Decision based on parties’ relationship in light of ALL circumstances, esp. where there is a trust

Starting point – Re Buchanan-Wollaston’s Conveyance - can the purpose of the trust still be carried out

All surrounding circumstances must be taken into account Whether in light of the moment and circumstances, it would be right and proper to

order sale Whether voice of person seeking force of sale should prevail

Re Evers Trust – purpose of trust was to provide a family home; NO SALE Re Holliday – purpose of trust was matrimonial home; SALE POSSIBLE; interests of the children

only taken into account insofar as they affected the equities in the matter as between the two beneficially entitled persons

However, it is suggested that the conflict is merely a matter of language – Cousins v. Dzosenso Court will consider:

Intention of creator of trust Purpose of trust Welfare of the children

30

Interest of any secured creditors – NB: Gov’t agencies such as Inland Revenue are considered preferential creditors; but NOT secured creditors, without more

o APPORTIONMENT OF PROCEEDS, WHERE SALE SUCCESSFUL Where financial contribution, resulting trust; otherwise constructive trust Presumed intention resulting trust arises as a result of contribution to purchase money

o Contribution – resulting trust as tenants in common referable to contribution – Dyer v. Dyer

o Presumption Rebuttable where: Declaration – Goodman v. Gallant

Absence of express declaration – Stack v. Dowden principles

31

Easements

DEFINITIONo A right to use a person’s land for the benefit of another piece of land (right in rem)

ESSENTIALSo Re Ellenborough Park

1. DT and ST2. Owned and occupied by separate persons (Diversity)

o Cannot have right over own land or right against oneself3. Right must accommodate or benefit the DT

o Right must not be a personal benefit to owner – Hill v. Tupper4. Capable of a Grant

-capable grantee/grantor – sound mind and age-sufficiently definite – footpath, etc. (No right to privacy (Brown v. Flower; Bernstien v. Skyways);

No right to a view (Aldred’s case); Right to general flow of air – Chasty v. Ackland)-analogous to existing easement – in nature of rights held to be easement Recognized easements

Right of way – Borman v. Griffiths Storage – Wright v. McAdam Passage of air through specific channel – Wong v. Beaumont Right to require ST owner to put up fencing – Crowe v. Wood Right to put sign on neighbour’s land – Moody v. Steggles Parking – London & Blenheim v. Ladbroke Right to use communal Gardens – Mulvary v. Jackson Right to use neighbour’s toilet – Miller v. EMCER Right to light – Colls v. Home & Colonial Stores

Right to light for business purposes is sufficient light for the premises for ordinary business use

Right to light of itself is insufficient to form easement S. 3 Prescription Act – 2oyrs enjoyment makes right indefeasible

-must not exclude servient tenement owner altogethero If Re Ellenborough not met, then there may be a licence

Creation of easementso Easements may be granted or reserved

Granted – sells DT Reserved – retains DT; sells ST

o Grant of an easement express grant by deed legal

Must be in writing Clear on the face of it that intended to be a deed Signed by person making deed in presence of witness who attests signature Delivered as a deed

express grant by K – equitable Not delivered as deed

32

But in writing > Statute of Frauds satisfied Signed by or on behalf of both parties and containing express terms of agreement

implied by necessity –legal easement Implied into deed Absolute necessity – Titchmarsh v. Royston

o Must be no evidence of alternate route – Menzies v. Breadalbaneo Not created simply because of public policy; but upon circumstances of the

situation - Nickerson v Barraclough implied by mutual intention – legal

implied into deed Courts give effect to what it believes intention of parties was

o Wong v Beaumont Trust implied grant (Wheeldon v Burrows) can be either as to document

Single owner DT sold Maturation of quasi-easement REQUIREMENTS:

o Continuous & apparento Necessary for the reasonable enjoyment of land soldo In use prior to and at time of sale for benefit of DT

Example: Borman v. Griffiths Also applicable where common owner sells DT and ST to X and Y at the same time

implied grant s.9 Conveyancing Act every Conveyance of land passes with it all liberties, privileges, easements, rights &

advantages appertaining to or reputed to appertain to the land or any part thereof REQUIREMENTS:

o DEED- does not apply to Ks >> Borman v. Griffiths For leases < 3yrs; written K

o S. 9 not expressly excludedo Right meets Ellenborough Parko DT and ST owned by same person; but occupied by different persons

o

prescriptive easements – legal without force without permission without secrecy BASIS: long user as of right TYPES: Common law – time immemorial = 1189; Lost Modern Grant (rebutted by

showing no-one could have possibly given grant); Prescription Act – 20yrso Reservation -legal

express – deed Must be in writing Clear on the face of it that intended to be a deed Signed by person making deed in presence of witness who attests signature

33

Delivered as a deed implied by necessity – absolute necessity

Implied into deed Absolute necessity – Titchmarsh v. Royston

o Must be no evidence of alternate route – Menzies v. Breadalbaneo Not created simply because of public policy; but upon circumstances of the

situation - Nickerson v Barraclough implied by mutual intention

implied into deed Courts give effect to what it believes intention of parties was

Wheeldon v. Burrows v S.9 o WB

continuous and apparent Necessary for reasonable enjoyment In use previously existed and at time of sale Owning the whole – transfer part Applies to contracts

o S9 Single owner; diverse occupation doesn’t require continuous does not apply to k far wider than wb

PROTECTIONo LEGAL EASEMENT – binding upon the worldo EQUITABLE EASEMENT – binding upon all except bona fide purchaser for value without notice

Increase in use of DT will not necessarily extinguish easemento as long as nature of the use does not vary, it will be within the initial grant

White v Grand Hotel Eastbourne – house changed to hotel; British Rlwys Board v. Glass – railway crossing used for crossing cattle then caravans were given

permission to use by the person entitled to easement – WITHIN GRANT, as aboveo If use is excessive, right can be challenged - Jelbert v Davis

34

Defences

Insane automatism (insanity) (M’Naughten rules)

- Defect of reason by disease of mind which renders the defendant to not appreciate the nature and quality of the act or even if he did, did not know it was wrong (legally)

- Defendant to prove own insanity- Disease of mind legal concept not medical- Rule which negatives the mens rea

Sane automatism

Complete loss of control due to an external cause and it is not self-induced

Denial of actus reus (R v Quick)

Intoxication (voluntary or involuntary)

Voluntary intoxication

Alcohol and dangerous drugs

Partial defence to crimes of specific intent e.g. murder (DPP v Majewski)

“Dutch courage” - public policy

Intoxication other than alcohol and dangerous drugs (R v Bailey)

Defence to crimes of specific and basic intent provided not reckless (Myquil)

Involuntary intoxication (spiking drinks)

Complete defence to all crimes (R v Kingston)

Self-defence

Proportionate and reasonable use of necessary force

(R v Williams) – D commit no offence if the force used was reasonable in the circumstances as he believed them to be

Duress

Limited not applied to murder or attempted murder

35

By threats (R v Hasan)

Threat to kill or do GBH

To self or person for whom one is responsible

Immediate;

Threat and offence near

By circumstances (analogous to necessity)

Threats from external source

Necessity – D committed crime in order to avoid an even greater evil (Re A (Children)

2 reasons for recognizing the defence

Unjust to punish D for something a reasonable person would have done in same circs

The law should encourage D to choose the lesser and avoid greater evil on public policy

Mistake

Ignorance of the law excuses no one

Mistakes of fact denies mens rea – bear

Mistakes as to the actus reus – Tolson (1889)

Honest reasonable belief – now bad law

Mistake should be honestly

Equitable remedies

Damages – monetary compensation for non-performance of contractual obligations

Available as of right

36

Specific performance

Substitution not possible eg fine art

Adequacy of damages / appropriateness of damages

SP not granted

Too difficult to supervise

No mutuality

Used to be thought of at the time of contracting

Price v Strange – time for considering mutuality is time of trial

Risk of hardship to defendant

Equity will not assist a volunteer

If claimant has not given consideration for promise eg. Contracts by deed

Delay defeats equity (laches)

Damages can be awarded in lieu of specific performance

37