![]() Negligence is the breach of an owed duty by means of an act or omission in the prevention of harm that results in damages. This essay seeks to discuss the objective standard of care imposed at the breach stage in general negligence and why the court generally imposes such. It will clearly analyse circumstances where the court was influenced to adopt the subjective standard; ultimately concluding that the approach taken by the court should be amended since it is often based on policy and principle for the benefit of the claimant; it can be said that as opposed to achieving corrective justice the court occasionally elevates the function of tort as a compensation mechanism. Breach occurs if the defendant does something or omits to do something a reasonable man would have done[1]. The court asks two questions when considering whether a breach occurred: theoretically in law, what should the standard of care be, and whether the defendant has fallen below that standard. As seen in Donoghue v Stevenson [1932][2], the standard of care is not a standard of perfection; per Lord Atkin’s statement, the key requirement is that of reasonableness. The reasonable man test was emphasised by Baron Anderson in Blyth v Birmingham Waterworks Co. [1856][3]. Many cases have sought to define the reasonable man over the years, they are ‘the man on the Clapham omnibus’[4], ‘the anthropomorphic conception of justice’[5] and ‘a traveller on the London underground’[6] After many definitions (and debates by feminists), it is agreed that the reasonable man is the hypothetical average person, this person is not all knowing, they occasionally take risks and make mistakes. Realistically, the objective standard is not one of perfection[7]. The test of objectivity begs the question of what the reasonable man would do in such circumstances. This ultimately means that the standard of care is not dependent on the defendant’s personal idiosyncrasies, characteristics, or capabilities[8]; the courts will rarely impose a lower standard. This is illustrated in Nettleship v Weston [1971][9] where a learner driver accompanied by a driving instructor brake too slowing causing the vehicle to collide with a lamp-post. The claimant, consequently suffered a broken knee and sued for damages. It was held that the learner driver owed the standard of a reasonably competent driver. It would be opined that the approach taken by the court is claimant-centred, Lord Justice Salmon stated that any driver normally owes the same standard to a passenger in their car as they do to the public, i.e. the public views anyone driving as a ‘reasonably competent driver’ regardless of their experience, thus, any person should be held at such. Behind the rulings of this case, policy decisions, such as insurance, was also considered. The courts typically impose the reasonable man test because Per Cane (p 49), the ‘objective standard of care is understood as the law’s attempt to strike a fair balance between the competing interests in freedom of action and personal security that we all share’. This approach moved away from the concept that there should be no liability without fault and adopted the question of whom the risk should fall on. This concept was taken to the extreme in Roberts v Ramsbottom [1980][10] regarding the defendant under disability due to suffering a stroke while driving and consequently knocked down a pedestrian. The defendant was liable because he had some degree of control. However, in Mansfield v Weetabix Ltd [1998][11] the defendant was not liable because despite him suffering a hypoglycaemic attack causing him to black out while driving and crashing into the claimant’s shop, he was not aware of his disability. This case is a prime example of the courts ‘modifying’ the objective standard to include certain subjective characteristics of the defendant. Considering this, circumstances the court would apply subjective elements to breach in general negligence are to be examined. Individuals’ expertise may be considered based on facts of each specific case. Occasionally, a person may not be judged as a ‘reasonable average person’ but rather that of a ‘reasonably competent hypnotist-entertainer’[12], a ‘reasonably competent jeweller’[13], a ‘reasonably competent amateur home do-it-yourself’[14] or even an expert. As seen previously[15] trainees are not held at a lower standard by the courts for their actions, it was emphasised in Wilsher v Essex AHA [1988][16] that the act not the actor would be judged. Whereas, professionals assume a test with a combination of objectivity and subjectivity, this is regarded as the ‘Bolam test’[17], it asks what the reasonable man would do as compared to a professional. This test does not necessarily a majority who would’ve acted in that manner but rather if the defendant can find at least one professional in their same field of expertise who would’ve also acted as such. This application of subjectivity is necessary because the courts need to establish whether the act was reasonable and logical.[18] It was decided that concerning the expert opinions a balance was necessary to prove undue deference. Subjectivity regarding children is resoundingly blatant as the courts are aware that children may not have the required capacity to acknowledge the dangers of certain actions or omissions. In the recent case of Orchard v Lee [2009][19], a young boy ran into a dinner lady and managed to injure her. The court compared the action of the child with other children of similar age and experience, concluding that his actions met the standard of a reasonably competent 13-year-old, instead of a reasonably competent ‘adult’. Mullins and Richards [1998] [20]also had a similar ruling, it was held that teenage girls sword fighting with a ruler is usual behaviour of a 15 year-old child. One of the cutting-edge defences used by defendants is that they did not know of the risk at the time of the incident. In Roe v Minister of Health [1954][21] claimants from 1947 became permanently paralysed after being given contaminated anaesthetic with a sterilising fluid for a minor operation. The hospital was unaware that the storage procedure of the anaesthetic had contaminated them and they continued storing it in that manner. In the case Lord Denning said that the doctor was unaware there could be undetectable cracks, … it was not negligent for him not to know it at that time, and that the court should not look at the 1947 accident with 1954 spectacles. Similarly, in Maguire v Harland & Wolff [2005], in the time of cancer when the defendants did not know much about mesothelioma, the same judgement was applied. The court recognised that it would be unfair to hold a defendant liable for something they were not aware of. These cases show a clear example that the objective standard was not achieved; it can be considered that the attempt of the court to distance themselves from the idea that no fault results in no liability was fatal, as this precedent took a spin and is now ‘no knowledge at time of fault equals no liability’. While the defendant would be relieved of liability for being unaware of certain factors at time of incident, a higher standard would be imposed if the claimant is known to have certain disabilities. Both Paris v Stephney BC [1951] [22]and Haley v LEB [1964] [23]the claims were in relation to blindness and they succeeded since defendants should have done something to prevent further injury, or injury towards them. As previously established mentally or physically disabled defendants would only be liable if they were aware of their condition and took the risk anyways. That is, a reasonably competent individual would not have acted in a certain way given their disabilities.[24] A defendant may or may not be liable for the claimant’s injuries due to intoxication. In Griffiths v Brown [1998] [25]a taxi driver was found to be not liable when he ran over a drunk passenger after they got out of the vehicle. Whereas in Brannan v Airtours plc [1999][26] the court decided that if the defendant is responsible for the claimant’s state or if there are elements of contributory negligence then they are liable. In this case Reps. Encouraged the claimant, who was on a package vacation in Greece, to consume a large quantity of alcohol. The claimant got up in a drunken state and walked on a table subsequently seriously injuring himself on a ceiling fan. One of the things the court look for is a link either geographically or relationship wise to determine whether the defendant could have influenced the claimant to consume so much alcohol as to impair their mental stability which results in damage or injury. The courts there examine the actions of the defendant to impose liability. In Watt v Herts County Council [1954] [27]a fireman was injured by equipment packed loosely in a fire truck during an emergency call. It was held that the standard of care expected is much lower if the defendant is responding to an emergency. During emergencies it is understood that the mental capacity of an individual may not be the most sound, the court takes these factors into consideration In sports, the standard is not just of a reasonably competent player but a player who is in compliance with the rules and regulations of the specific sport. In Condon v Basi [1985] [28]a foul during a game of football resulted in a broken leg. The claimant was able to sue because the defendant needed to exercise a degree of care towards other players. Regarding sports, the courts examine the actions of the defendant; this is because liability can not be imposed unless the player acted out of their bound. It can be opined that modern lawyers fail to comprehend what a principled account of the law would be like since the reliance on policies in tort has become ubiquitous. One of the major downfalls of the objective standard is the exclusion of the principled corrective justice. The purpose of corrective justice is to have a defendant compensate the claimant for the damages they caused due to their fault, it does not necessarily dictate that an individual should compensate another for all damages, even those not caused by them. In cases such as Nettleship v Weston where there is no genuine culpability on the part of the defendant, liability should not be imposed. This opens the door to arguments of unequitable outcomes in the law of tort. Considering the morality of the case, the learner driver was not at fault, however since this was a case regarding a car accident, the court identified that she would be liable due her being insured. One of the defences attempted to be introduced by the defendant was ‘volenti non fit injuria’ which means that injury is not done to a willing person. The court also shut down this argument since it was stated that an expressed or written contract was not implemented to support it. Despite these observations above, it can be noted that the approach taken by the court is pragmatic and comprehensive. In cases such as Nettleship which include roadside accidents, the courts ruled where the financial burden fell neither on the defendant nor the claimant, but rather the insurance company. Thus, introducing the implementation of policy as a measure of compensation, has ultimately achieved distributive justice, economic efficiency and social morality. In Griffiths v Brown the court also came to a policy decision as it would not have been reasonable for a taxi driver to determine how drunk each passenger was; this case prevented the metaphorical floodgates. However, Burrough J in Richardson v Mellish[29] had a much different opinion with regards to this, he stated that public policy is a very unruly horse, and when once you get astride it you never know where it will carry you. It is unclear why a specific test (Bolam test) inclusive of subjectivity was applied to professionals but not to trainees. It is upon the defendant (a professional) at fault to prove that if another professional was in the same situation, they would do the same; while there is no discount for a trainee. The question also arises as to why a trainee doctor or trainee driver is held to the standard of a reasonably competent driver or a reasonably competent doctor when they clearly lack the experience. While the introduction of subjectivity to the law of negligence has been beneficial to individuals in special circumstances such as children, those mentally or physically disabled and emergencies it is opined that the law should stretch as far to include trainees. It is believed that the law is incoherent with regards to the statement of the ‘act not the actor’[30] especially since the court moved away from the objectivity and introduced subjective elements of the actor, e.g age and mental or physical capacity. The approach taken by the courts is almost completely claimant-centred with dashes of morality, it uses subjectivity with strict limitations in hopes of achieving a means of compensation; this should be changed. [1] Hazell v British Transport Commission [1958] at 171. [2] Donoghue v Stevenson [1932] Lord Atkin at 580, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”. [3] Anderson B, Blyth v Birmingham Waterworks [1856] at 784. [4] Greer LJ, Hall v Brooklands Auto-Racing Club [1933] at 224 [5] Lord Radcliffe, Davis Contractors v Fareham Urban District Council [1956] at 728 [6] Lord Steyn, McFarlane v Tayside Health Board [1999] at 82 [7] Birch v Paulson [2012] [8] Glasgow Corporation v Muir [1943] at 457; Bradford-Smart v West Sussex County Council [2002] [9] Nettleship v Weston [1971] 2 QB 691 [10] Roberts v Ramsbottom [1980] [11] Mansfield v Weetabix Ltd [1998] [12] Gates v McKenna [1998] [13] Philips v Whiteley [1938] [14] Wells v Cooper [1958] [15] Ibid 9 [16] Wilsher v Essex AHA [1988] [17] Bolam v Friern Hospital Management Committee [1957] [18] Mulheron 2010, p613 [19] Orchard v Lee [2009] [20] Mullins v Richards [1998] [21] Roe v Minister of Health [1954] 2 WLR 915 Court of Appeal [22] Paris v Stephney BC [1951] [23] Haley v LEB [1964] [24] Ibid 10 & 11 [25] Griffiths v Brown [1998] [26] Brannan v Airtours plc [1999] [27] Watt v Herts County Council [1954] [28] Condon v Basi [1985] [29] Richardson v Mellish [1824] 2 Bing 229, 130 ER 294, 303. [30] Ibid 13
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![]() Proprietary estoppel is an equitable doctrine which essentially allows an informal arrangement to be enforced and proprietary rights to be acquired without complying with the formalities. Courts have an equitable jurisdiction to interfere with an owner’s strict legal rights in relation to land when it would be deemed ‘unconscionable’ for that individual to assert their strict legal rights. This essay seeks to critically discuss Lord Scott’s statement in Cobbe v Yeoman’s Row Management Ltd [2008] which states, “… proprietary estoppel cannot be prayed in aid in order to render enforceable an agreement that statute has declared to be void.”[1] It will clearly analyse proprietary estoppel with regards to Lord Scott’s statement, ultimately concluding to what extent the statement is true and the extent to which it is agreed. Proprietary estoppel can be categorised into three broad types of cases, mistake cases[2], expectation cases[3], and imperfect gift cases[4]. Taylor’s Fashions Ltd v Liverpool Victoria Trustees Ltd[5] established the modern approach to proprietary estoppel, this was approved in Habib Bank v Habib Bank AG Zurich [1981][6]and was applied in Lim Teng Huan v Ang Swee Chuan [1992][7]; for an individual to succeed in a proprietary estoppel claim there must be assurance by the owner, reliance by the claimant and a detriment to the claimant, which all leading to the question of whether it would be unconscionable for the defendant to take advantage of the mistake. Assurance can be active or passive, active assurance is expressed or displayed by the owner which leads to the claimant believing they have an interest in the property. Expressly ‘active’ agreements are applied in numerous cases, in Gillet v Holt [2000][8] where Gillet left school before completing college to work on Holt’s farm for over 40 years due to Holt assuring him that he would inherit the farm upon his death, due to faults in their relationship, Holt changed his will. The court estopped Holt from denying Gillet’s rights to the farm. Other cases which display this are Pascoe v Turner [1979][9], Griffiths v Williams (1977)[10], and Re Basham [1986][11]. Active assurance is seen in the late case of Inwards v Baker [1965][12] where a father encouraged his son to build a bungalow on the land. Passive assurance however is where the claimant is mistaken in their belief of gaining interest in land while the owner does nothing, this will amount to an estoppel as seen in Scottish and Newcastle Plc v Lancashire Mortgage Corp Ltd [2007] [13].One of the major issues which lead to failure of proprietary estoppel in Cobbe was that of passive assurance by the owner. In this case the claimant and a landowner had an informal agreement to which Cobbe obtained planning permission for the development of the owner’s land. Under the informal deal, the owner would later sell the land to Cobbe at a calculated amount so that he would profit on the increased value of the land as result of the planning permission being granted. The agreement was not binding, it was more of an ‘informal gentleman’s agreement’. After Cobbe obtained the planning permission, the landowner refused to proceed with the ‘promised’ transfer. The claimant then claimed the land by proprietary estoppel but the court refused to allow it. Lord Scott said that the claimant acted on a hope or a gamble, instead of an expectation or mistake to his rights; that assurance should be clear and unambiguous. His reasoning behind this is because it was a commercial agreement, both parties would have known that the proper formalities to enforce such was not sufficed by their negotiations. The assurance that the owner would act in a certain way would not necessarily be enough in a commercial context. However, where there is a genuine expectation in a commercial case, the claim would succeed. In Crabb v Arun DC [1976][14] claimant was assured that their council would build an easement to their land, so that the land can be divided and sold separately without leaving one part of the land landlocked. The council erected a fence with an opening for the assured easement to confirm their intentions. No formalities were met. The claimant relied to his detriment, leaving his land landlocked on the assurance to sell part of his land. The council later filled the gap and demanded £3000 for the easement to be erected. In this case the council was estopped from refusing to build easement because any sum that could have reasonably been demanded for the cost of construction was set-off against the detriment suffered by the claimant; the net cost being £0, with the Council being required to construct the easement. Consequently, where a proprietary estoppel claim is recognised, the court will evaluate the extent of the equity created and how best to satisfy it, even if it means enforcing an agreement declared void by statute. The judgement of Crabb was confirmed in Yaxley v Gotts & Anor [1999].[15]The difference between these two cases is the establishment of a definite assurance, whereas in Cobbe it was a hope or an expectation. Moving away from commercial examples of the success of assurance in proprietary estoppel, the courts are keener to permit agreements statutes declared void if it is by means of family or informal agreements. This is because the claimants who suffered loss may not have had the sufficient capacity to understand that certain formalities should have been put into place for their benefit. There is a predominance of agriculture related cases surrounding this topic. In Thorner v Major [2009] [16]the claimant worked without pay on their cousin’s farm for 40 years on the understanding that they would inherit the farm eventually. This case established that there was no need to have a mistake on the claimant, only that of a belief on the existence of the right. Essentially, the claimant should’ve believed that there is an interest in the land that the owner was committed to creating. Judgements in Thorner was then followed by Clarke v Corless [2010][17] and Gill v Woodall [2010][18] Comparing Thorner and Cobbe, one may notice that there is considerable contradiction between the two since Thorner appears to signify a departure from the restrictive approach to proprietary estoppel established by Cobbe. Nevertheless, in Thorner, Lord Scott didn’t clearly abandon the views he voiced in Cobbe and, indeed, made certain observations on the relationship between proprietary estoppel and 'the remedial constructive trust'. One of the major issues arisen is that of certainty. Lord Walker, Rodger and Neuberger all described the facts of the case as unusual due to the oblique nature of the representation. The issues relating to certainty raised was by Lloyd LJ was whether there was a promise by defendant or a mere statement of current testamentary intention, whether the promise was necessary and should the claimant believed the promise to be legally binding on the defendant. One of the main difficulties arising is that while one may feel sympathy for a trusting claimant in the family context, it would not be acceptable to provide the same remedy to an experienced property developer such as Cobbe. He simply would have known that it was not a legally binding commitment. After considering the cases of Cobbe and Thorner, one would raise the question as to why Cobbe failed but Thorner succeeded. While the temptations exist to rely on the labels of ‘commercial and ‘domestic’, they are not sufficient explanations. The factual limit between 'commercial' and 'domestic' cases is far from secure and requires an explanation, by reference to principle, of the precise features of the two sets of cases which are to be regarded as justifying differential treatment. The decision in Cobbe itself can be reconciled with Thorner on the basis that the promise in Cobbe was insufficiently certain in a different way, in that it was to enter into an agreement in relation to the sale of the disputed land on terms which remained to be agreed fully (and which could not be settled by the courts by reference to any past pattern of dealings between the parties). Cases which followed Thorner show that the strict approach in Cobbe is not always enforced.[19] Other factors of assurance are that it must relate to an interest in land or property[20], it must not be achieved by dishonesty[21] and that innocent misrepresentation is still assurance, however the innocence of the owner would be examined to assess equity[22]. In hopes that detrimental reliance is established by the court to render the owner’s conduct as unconscionable, the detriment must essentially result from reliance on the mistake or assumption[23] or expectation (informal and domestic only), however, assurance does not need to be the sole reason they act to their detriment.[24] To drastically change their position, a claimant should act to their detriment.[25] Cases such as Dillwyn v Llwelyn [26]and Voyce v Voyce [1991] [27]show detrimental reliance due to expenditure of money on building or to improve land. However, in Coombes v Smith [1986] [28]there was no proprietary estoppel because there was no real assurance, she was expected to live there till the child became 18, due to a non-financial detriment, it was more problematic to establish equity, while obiter in Maraj v Chand[29], a woman giving up her home to live with a man who promised her a home is detrimental reliance, thus her receiving proprietary rights. However, it depends on individual circumstances. For detrimental reliance to succeed the owner should have directly encouraged or acquiesced in what the claimant had done, however the owner does not necessarily have to know exactly what the claimant is doing in reliance general knowledge suffices. The last question asked before awarding proprietary rights due to all the factors being satisfied is that of unconscionability. The following seeks to settle the issues arising out of Lord Scott’s statement, whether proprietary estoppel can enforce an agreement that statute declares void. As seen in the cases analysed, the courts often use their discretion in the decision of awarding proprietary rights as remedies. This does not necessarily mean that they will all the time, they may also award licences, cash and sometimes even nothing. An often misconception is that proprietary rights are estoppels; proprietary estoppel gives rise to an equity[30], for this equity to be binding it would need to be protected by law using the accurate formalities. Under Registered land a s.32 Notice LRA 2002 would be applied or if the claimant is in actual occupation, an overriding interest under Schedule 3 paragraph 2 LRA 2002 would be applied. As seen in Baker v Baker [31]the claimant cannot be awarded more than what is expected, although sometimes it does.[32] The courts often use two approaches in deciding remedies, the expectation approach and the detriment approach. The expectation approach is more seen in business cases[33] and should have been seen in Cobbe if judgement was different, whereas, detriment approach is utilized in family cases. In Crabb it was noted that the claimant would not necessarily get what they expect. As established in Jennings v Rice[34], one of the leading cases on remedies, the expectation and detriment should be proportionate, thus, assuming the expectation is present, spending £10,000 on someone else’s property isn’t detrimental, while spending £10,000 of life savings on property is detrimental. Although the judgement in Cobbe is still currently followed in recent cases such as Micheal v Phillips [2017][35] and Achom and others v Lalic and others - [2014][36] there is a clear line which is drawn to separate where equity does not step in to enforce an agreement void by statute. The mere definition of proprietary estoppel, is it “allows an informal arrangement to be enforced and proprietary rights to be acquired without complying with the formalities”. It can be agreed that contrasting Cobbe and Thorner clearly displays this, where a commercial party (which is aware that the agreement is void at law due to experience and knowledge) act on an expectation or hope instead of direct assurance, equity does not favour them. Few may prejudice the unfairness for commercial parties who would have suffered detriment or financial loss however as seen in the case of Cobbe, while they did not get what they expected, they were awarded £150,000 due to quantum meruit. Concluding, Lord Scott’s judgement with regards to Cobbe is that of pragmatism. He acknowledged that holding individuals commercially experienced to the same standard as that in family disputes was not equitable. His statement is only agreed however only with regards to commercial parties attempting to abuse proprietary estoppel for agreements they knew void. [1] (Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55, [2008] 1 WLR 1752, para 29, per Lord Scott of Foscote.) [2] Dillwyn v Llwelyn [1862]- father offered son a farm in which he can build because he wanted the con close by, the land was not transferred to the son, regardless the son built a home which was encouraged by the father. Father died and relatives challenged the will, however due to the son’s expenditure and the father’s acquiescence, estoppel was established rewarding the son with equitable right to the land. [3] Where the claimant and owner acted in a way that the claimant had a reasonable right to suppose that he had acquired a right in the owner’s land [4] Owner assured claimant that a gift would be made but then tried to rely on lack of formalities to deny gift. [5] Taylor’s Fashions Ltd v Liverpool Victoria Trustees Ltd [1982] QB 133 [6] Habib Bank v Habib Bank AG Zurich [1981] 1 WLR 1265 [7] Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 1306 [8] Gillet v Holt [2000] 2 All ER 289 [9] Pascoe v Turner [1979] 1 WLR 431 [10] Griffiths v Williams (1977) 248 EG 947 [11] Re Basham [1986] 1 WLR 498 [12] Inwards v Baker [1965] 2 QB 29 [13] Scottish and Newcastle Plc v Lancashire Mortgage Corp Ltd [2007] EWCA Civ 684 [14] Crabb v Arun [1976] [15] Yaxley v Gotts & Anor [1999] EWCA Civ 3006 Court of Appeal [16] Thorner v Major [2009] [17] Clarke v Corless [2010] EWCA Civ 338 [18] Gill v Woodall [2010] EWCA Civ 1430 [19] Clarke v Corless [2010] EWCA Civ 338; Gill v Woodall [2010] EWCA Civ 1430 [20] Layton v Martin [1986] 2 FLR 227 [21] Murphy v Rayner [2011] EWHC 1 [22] Qayyum v Hameed [2009] EWCA Civ 352 [23] Attorney General of Hong Kong v Humphrey's Estate [1987] AC 114 [24] Evans v HSBC Trust [2005] WTLR 1289 [25] Suggitt v Suggitt [2012] EWCA Civ 1140 [26] Dillwyn v Llwelyn [27] Voyce v Voyce (1991) 62 P & CR 290 [28] Coombes v Smith [1986] [29] Maraj v Chand [30] Registered Land: s116 LRA 2002; Unregistered land and pre-LRA 2002 registered land, cases are applied. [31] Baker v Baker [32] Ibid. 14 [33] Ibid 10, 26 [34] Jennings v Rice [35] Micheal v Phillips [2017] EWHC 614 (QB) [36] Achom and others v Lalic and others - [2014] All ER (D) 73 ![]() “The conclusion which I would reach…..is that the wide distinction between the validity test for powers and that for trust powers is unfortunate and wrong, that the rule recently fastened upon the courts by Inland Revenue Commissioners v. Broadway Cottages Trust ought to be discarded, and that the test for the validity of trust powers ought to be similar to that accepted by this House in In re Gulbenkian's Settlements [1970] A.C. 508 for powers, namely, that the trust is valid if it can be said with certainty that any given individual is or is not a member of the class.” Lord Wilberforce in McPhail v Doulton [1971] A.C. 424 at 451 Express trust necessitates the coincidence of the three certainties listed in Knight v Knight[1], lack of such results in the trust being void ab initio. This essay seeks to critically discuss the statement made by Lord Wilberforce in McPhail v Doulton[2], clearly analysing the certainty of objects test for fixed trusts, discretionary (power) trusts and fiduciary trusts (powers of appointment); ultimately concluding that the any given postulant test which states that any given being ‘is or is not’ part of a class isn’t a sensible and pragmatic approach, thus as discussed, isn’t appropriate for power trusts. Per Knight v Knight[3], it was established that there must be a certainty of intention, a certainty of subject matter, and a certainty of objects. Certainty of objects is the most intricate and has undeniably caused the most legal wrangling and debates. At its core is the perception that the court should be able to ascertain the beneficiary(/ies) of the trust, thus, the beneficiary principle operates alongside the certainty of objects. Emphasising this, Lord Denning in Re Vandervell’s Trusts (No. 2) stated, “It is clear law that a trust (other than a charitable trust) must be for ascertainable beneficiaries.” Fixed trusts are constituted by a settlor for a pre-determined class of individuals where each is entitled to a set share, and executed by a trustee for benefit of the beneficiary(/ies). It is imperative that the court can ascertain who the beneficiaries of the trust are at the time of property distribution for there to be a valid fixed trust, this is known as a ‘complete list test’. Conceptual and evidential certainty as to beneficiaries was emphasised in IRC v Broadway Cottages[4]. Conceptual certainty is the ability to define the description of the class with certitude, if it is impossible to compile the ‘complete list test’ then the trust is void. Evidential certainty is the ability to prove that someone is a beneficiary, thus, even if the classification of the object is certain, once there is difficulty proving exactly who the beneficiaries should be, the trust would be void. The courts however have taken both a wide and narrow accommodating approach regarding this. In Re Tuck Settlement Trust[5], the court permitted a third party (Chief Rabbi) to arbitrate the will to ensure that Sir Adolph Tuck’s successors were of Jewish fate. While in Re Wynn[6] the court was reluctant to permit a clause allowing trustees to determine all uncertain elements of the trust. It was established that it was not a requirement for the beneficiaries to be ascertained (location of beneficiary or continued existence); a ‘Benjamin Order’ would permit the trustee to distribute property to the ascertainable beneficiaries while the trustee, however, must provide constructive notice, that is, publishing an advertisement in the London Gazette or another appropriate forum in hopes of locating the unascertainable beneficiaries; if that also fails, the money would go to the crown. There is no evidence that the size of the class is relevant for fixed trusts due to the application of the complete list test. The capriciousness of the settlor has never been questioned with regards to fixed trusts, nor has it ever invalidated a trust. The precedent set in IRC v Broadway Cottages [7]has operated well, allowing the court to endorse more equitable outcomes,[8] discretionary trusts however, have proven to be more contentious. In a discretionary trust, the settlor defines the class, while the trustee must choose who the beneficiaries are and how much property they would be entitled to. Originally the court echoed the approach of the ‘complete list test’ set out in IRC v Broadway Cottages[9] for discretionary trusts, where it was believed that ‘equity was equality’ authorizing the distribution of property equally; however, this was redeveloped under Lord Wilberforce in McPhail v Doulton[10]. In this case, a trust was created via deed for the benefit of employees and ex-employees of a corporation including their relatives and dependants. Applying the ‘complete list test’, it would not have been possible to list all the members of the class, thus, Lord Wilberforce ruled that the operative question was whether the court could’ve said with certainty that a person is or is not a member of the class, on that ground, it was satisfied. This was known as the ‘any given postulant test’ and refers to anyone who may be considered object. Consequently, the validity of the trust relied on whether ‘relatives’ and ‘dependants’ were certain objects. This case was appealed to the House of Lords where it was concluded that the trust was valid[11]. If the trust was not conceptually certain, it would be rendered void. In Re Baden Deed Trusts (No 2)[12] the court recognised that ‘relatives’ and ‘dependants’ were conceptually certain. The semantics of relatives was established as a ‘next of kin’ by Stamp LJ and ‘descendants from a common ancestor’ by Sachs and Megaw LJJ, subsequently, the normal meaning of ‘family’ as seen in Re Barlow Will Trusts[13] was considered as those related by blood; while a dependant is ‘anyone wholly or partly dependant on the means of another’ by Sachs LJ and ‘financially dependent’ by Stamp LJ. Sachs LJ also took into consideration that ‘someone under a moral obligation’ wouldn’t be conceptually certain, while first cousins’ would be. Additionally, Browne-Wilkinson J concluded in Re Barlow Will Trusts[14] that ‘friends’ was not sufficiently certain. While evidential certainty was satisfied by all three judges in Re Baden (No 2)[15], they utilised diverse tests to establish the conclusion. Sachs LJ’s reasoning was preferred, he concluded that the courts would never be defeated by evidential certainty and that the claimant must prove that they are in the class, if they couldn’t prove it, they weren’t in. He said that it was simply a question of fact based on the evidence as to whether a person fell within the class. Megaw LJ stated that it was only necessary to prove that a substantial number of objects fell within the class, and that the trust would be valid even though it could be proved if they were or were not in the class. Lastly, Stamp LJ concluded that evidential uncertainty would defeat the trust. Ascertainability of objects do not invalidate a discretionary trust, inability to ascertain an object simply means that they would not benefit from the trust. Unlike fixed trusts which apply to a smaller class of individuals, discretionary trusts apply to a much larger class, however, where the class is too large, it can be considered administratively unworkable and would thus render the trust void. In R v District Auditor, ex p West Yorkshire MCC[16], it was concluded that ‘the inhabitants of West Yorkshire’ which amounted to about 2.5million persons, invalidated the trust. Subsequently in Re Harding[17], the trust would have been void due to administrative unworkability, if it wasn’t for charitable purposes. Case law sets out multiple examples displaying administrative unworkability, as Lord Wilberforce suggested in McPhail v Doulton that ‘all the residents of Greater London’ is administratively unworkable. Additionally, in Re Hay’s Settlement Trust[18], it was established that a discretionary trust for anyone other than a few specified people would be administratively unworkable. While administrative unworkability exists, it is inconsistent with the intention of the settlor and should be rejected. There is no definite answer as to whether the size of the class would render the trust void. Capriciousness may render a trust void if the settler did not possess sensible intent in establishing the trust. Re Manisty’s Settlement[19] established that if the settlor creates a trust for residents in an area where he has no connection and no reason to benefit then it would be capricious, while in R v District Auditor, ex p West Yorkshire MCC[20], the trust was found to not be capricious because the council had a sensible reason for benefitting West Yorkshire. While it does play a role, no power trust has been made void due to capriciousness. Fiduciary powers or powers of appointment are held by trustees and other fiduciaries. Where powers are appointed, the donor defines the class, but there is no obligation on the donee to distribute to the objects. Re Gulbenkian’s Settlements[21] established that the test for fiduciary powers was the ‘any given postulant test’ as in discretionary trusts, where any given person was or was not part of the class. Conceptual certainty is relevant as applied to fiduciary powers, however there are strict and lenient approaches. In Re Gulbenkian’s Settlements[22], the object included those with whom a person had been residing, this was conceptually certain. While in Re Baden (No 2)[23], it needed a clear definition to be valid. Discretionary trusts and fiduciary powers uses the same test for evidential certainty. Ascertainability of objects do not invalidate a power, this is clearer for powers because there is no obligation on the donor to exercise power. A fiduciary power cannot be struck down for administrative unworkability due to the size of the class. Capriciousness can invalidate a fiduciary power, it would be considered capricious if there is no distinct connection with the donor. Essentially, fixed trusts and discretionary trusts should not have to apply the same test for certainty of objects. The ‘any given postulant test’ which states that any given person is or is not part of a class allows flexibility for the existence of a discretionary trust. Initially, it was believed that ‘equity was equality’, thus all the property on a discretionary trust was to be divided to all the members of the class in equal shares; principally, this may not always be equitable. The current test for a discretionary trust allows trustees to exercise their prudent discretion as to who benefits from the trust and how much they can receive. In some cases, allowing those who were closest to the settlor to benefit the most. It can be argued that true equity exists in a discretionary trust. Contrary, a fixed trust therefore has a more rigorous test for certainty of objects. While in a discretionary trust, the trust may be found void on the grounds of administrative unworkability, a fixed trust with the same objects as the discretionary trust may not be found administratively unworkable because a complete list of all the objects would be drawn up by the time of property distribution. This ultimately prevents the failure of a trust, due to lack of ascertainability and conceptual or evidential certainty of the beneficiaries. Due to resounding similarity between discretionary (power) trusts and fiduciary powers (powers of appointment) one can argue that the same test should be applied for both. Lord Wilberforce, regarded as ‘broken new ground’, stating that even him, a layman and a logician, would find it difficult to understand the difference between trust powers and powers. The essential test for these is already the same, ‘any given postulant test’, the only difference is the administrative unworkability of discretionary trusts. Ability to exercise powers to the world at a whole, other than the limited class would not make the powers void. Powers can be exercised by the donors to anyone they seem fit. Whether the class is large would not prevent the trustee from performing their duty, especially since there is no compulsory responsibility to even perform any duty. However, since a power of appointment is viewed as a gift rather than a trust, it is more flexible at law; it is opined that it should remain that way. Due to the distinction between a trust and a power, the same test for both cannot be applied. A trust is obligatory while a power is discretionary, trusts would require more rigid regulations and tests. To apply the same test for both strips the flexibility of powers, essentially putting regulations on a ‘gift’ that should not be there. One of the fundamental distinctions between a power and a power trust is the capriciousness of the settlor or donor. Similar with a gift, there must be an intention, in this case, for powers, there must be a sensible intent for the donor to benefit the objects. Trust powers and fiduciary powers should therefore have different tests. Lord Wilberforce’s view for power trusts is that it ought to be more like powers and he sought to discard the applicable test that was being used as discussed in IRC v Broadway Cottages. Many have followed the “is or is not’ test over the years for discretionary trusts and it has been applied or mentioned in multiple rulings; Twinsectra Ltd v Yardley (2002)[24] and more recently, Trustees of the Christian Brothers in Western Australia Inc v Attorney General of Western Australia (2007)[25]. It can be disputed that McPhail v Doulton[26], for discretionary trusts has resulted in more heat than light. It has developed nothing more than convoluted reasonings and can be viewed as the unnecessary result of over-explication and the expectation of potential theoretical complications that are more real than supposed; while the reasoning behind the complete list test for fixed trusts is easy to ascertain and defend. The drawn-out, high-level litigation that was generated by Mr Baden’s Deed Trusts[27] could be said to be the outcome of the rapidly increasing size of the fund which fuelled the enthusiasm of the executors to pursue the claim than the product of genuine jurisprudential difficulty arising from the issues in question. After a thorough examination of fixed trusts, discretionary trusts and power trust, it should be concluded that while equality is not equity, something is better than nothing; discretionary trusts and fixed trusts should have the same test applied. A settlor’s intent for choosing a class means that he would’ve wished to benefit everyone in the class. Allowing a trustee to now choose who to benefit, excluding some, may not have been the settlor’s intent. Additionally, applying the same test for power trusts and powers gives the trustee too much flexibility; permitting this allows a trustee to refuse to give the property to anyone in the class, or may open the door to perhaps give the property to themselves, given that the donor included them in the class. Of all the tests, the complete list test is the most certain, it allows the beneficiaries to know exactly what they are to benefit and should be re-applied to discretionary tests. [1] Knight v Knight [1840] Court of Chancery, 49 ER 58 3 Beav 148 (Court of Chancery). [2] McPhail v Doulton [1971] House of Lords, UKHL 1, AC 424 (House of Lords). [3] Knight v Knight [1840] Court of Chancery, 49 ER 58 3 Beav 148 (Court of Chancery). [4] Inland Revenue v Broadway Cottages: CA 26 Jul 1954 [5] Re Tuck’s Settlement Trusts: CA 1 Nov 1977 [6] Re Wynn [1952] [7] Ibid (4) [8] Ibid (5) [9] Ibid (4) [10] Ibid (2) [11] Re Baden’s Deed Trusts (No 2) [1972] [12] Ibid (11) [13] Re Barlow Will Trusts [1979] [14] Ibid (13) [15] Ibid (11) [16] R v District Auditor, ex p West Yorkshire MCC [1986] [17] Re Harding [18] Re Hay’s Settlement Trust [19] Re Manisty’s Settlement [20] Ibid (16) [21] Re Gulbenkian’s Settlements Trust [1970] AC 508 [22] Ibid (21) [23] Ibid (11) [24] Twinsectra Ltd v Yardley (2002) [25] Trustees of the Christian Brothers in Western Australia Inc v Attorney General of Western Australia (2007) [26] Ibid (2) [27] Ibid (11)
Why will the court rarely impose such duty and in what circumstances might such a duty be imposed?The tort of negligence, according to Percy H. Winfield’s lasting definition, is “the breach of a legal duty to take care by an inadvertent act or omission that injures another.” The law concerning negligence by the defendant for a breach due to omission, set out in Stovin v Wise [1996] & Smith v Littlewoods[1987] states that there is no universal duty to act in prevention of harm or injury to another, thus, if there is no duty, there can be no liability and therefore, no compensation for harm caused by failure of someone to do something.[1] Extensions of Donoghue v Stevenson [1932][2] interprets Lord Atkin’s statement for a duty of care arising due to acts or omissions to now suggest that he only meant omissions in situations where a pre-tortious relationship existed. While there may be arguments made against the exclusionary principle regarding pure omissions, the rule was strongly reiterated by the House of Lords in Sutradhar v National Environmental Research Council [2006][3]. Typically, courts infrequently impose a duty of care on defendants for an omission(nonfeasance). Lord Hoffman in Stovin v Wise [1996][4] identified political, moral and economic reasons why no duty should be owed. In political terms, Lord Hoffman said that it would be an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions and to impose upon him a duty to rescue or protect. The moral version applies the “Why me?” argument since a duty to prevent harm or assist another may apply to a large and indeterminate class of people, therefore, why should one be held liable over another? One of the policies courts consider is deterrence, in Lord Hoffman’s economic argument, he applied such. The efficient allocation of resources usually requires an activity should bear its own costs. The market can now appear distorted if it is able to impose its costs on people, making it appear cheaper than it really is; therefore, liability to pay compensation for loss caused, acts as a deterrent against increasing the cost of the activity to the community and thus reduces externalities. Courts often base their decisions on ‘floodgates principle’, this legal principle restricts or limits the right to make claims for damages due to a concern that permitting a claimant to recover in such situation may open the metaphorical ‘floodgates’ to countless claims; permitting certain cases, especially against a public body, can have inconsiderable consequences. Article 223-6 of the French Penal Code[5] makes it a criminal offence to not assist someone in danger (once it does not risk your own safety), this should also translate to a civil obligation and potential liability if breached. However, Lord Keith in Yuen Kun Yeu v Attorney General of Hong Kong [1988][6] stated that there is no duty to even go to the rescue of another who is about to injure themselves accidentally or even to shout to warn them. This does extend, that if someone does act, they have a duty to not make the situation worse as they will be held liable. Various countries have passed ‘Good Samaritan’ statutes which provide immunity from suits, while the UK has not. The Social Action, Responsibility and Heroism Act 2015 (SARAH)[7] does not provide immunity from lawsuits, but rather compels the court to consider whether the defendant fell below the standard of the reasonable or expected standard of care. Though a duty of care for omissions is rarely enforceable, there are some limited exceptional circumstances which impose a duty of care upon the defendant. These circumstances include: Control, Assumption of Responsibility, Creation or adoption of risk, and lastly, legal/statutory duties regarding public bodies. Adaptation of special relationships was established in the cases of Anns v Merton LBC [1978][8] and Caparo Industries PLC v Dickman [1990][9] which stated that there must be a sufficient proximity between the claimant and the defendant, not just geographical, but also in relationship. These are situations where the defendant should owe a duty to the claimant because they exercise a high degree of control over them, or have express responsibility over them. Other than the standard application to parents and children, teachers and students, drivers to passengers[10], doctor to patients[11] and many more pre-existing relationships, it also extends to situations where the defendants exercise control of persons harmed that they have an imposed positive duty to take steps to prevent such, either infliction by claimant or other persons to claimant. In Reeves v Commissioner of Police for the Metropolis [2000][12] a known suicidal prisoner committed suicide in police custody, police were found liable since they would’ve been obligated to ensure his safety due to his instability, whereas, in Kirkham v Chief Constable of Greater Manchester [1990][13] a similar claim of a prisoner committing suicide was brought but it was found that the police were not liable since a doctor verified that claimant was not mentally ill; thus the duty of care owed is to only take reasonable steps to assess whether prisoner posed a suicide risk and to act accordingly. This was later emphasized in Savage v South Essex Partnership NHS Trust [2008][14] where a positive duty was owed to a suicidal patient who was detained in a mental hospital, to keep them in that hospital. Positive obligations should arise if the defendant assumed responsibility for the claimant’s well-being. In Costello v Chief Constable of Northumbria Police [1999][15], a duty arose from an employment relationship, where it was established that Police officers assume a responsibility to ‘watch each other’s back’. Consequently, in Barret v Ministry of Defence [1995][16] a duty was owed due to their positive act prior to the omission. When the defendant assumed responsibility for him, they fell short of the reasonable standard expected, since they did not summon medical assistance and provided inadequate supervision. If the defendant-accidentally or intentionally- creates a dangerous situation, a positive duty to remediate danger may be imposed. Capital & Counties plc v Hampshire County Council [1997][17] established that the fire service as a public body owed a duty to not create danger and to not make the situation worse if positive actions are to be done. In Goldman v Hargrave [1967][18] a tree caught fire after being struck by lightning, defendant deciding to take no steps to extinguish it shows adoption of the risk of the fire spreading to the neighbor’s property, thus, a duty of care was owed. Concerning public bodies, a duty of care claim in tort cannot be brought by a matter of Policy decisions made by Government, but rather by operational decisions. It has been cited that the police do not owe a duty of care to an individual victim of crime, however, to the public.[19] Where there is sufficient foreseeability[20] and sufficient proximity[21] as stated in the Caparo test[22], the police would owe a duty of care. The only duty of care imposed on the fire brigade is not make the situation worse[23]. The ambulance service owes a duty of care once the 999 call is accepted, they must attend in a reasonable amount of time[24]. Concerning the armed forces, there is no duty of care owed in combat[25], whereas a duty can be owed in exercises outside of war[26]. There has been an expansion of the law with respects to other types of public bodies, these include child welfare and protection services or the education services of local authorities. The European Court of Human Rights has influenced the law of Tort, potential breaches of human rights are now considered alongside claims of negligence[27]. While there may be potential movement towards the use of breach as a control mechanism in negligence claims, the House of Lords rejected this idea in the leading child welfare case[28]. There is no general duty to prevent other people causing damage (3rd Parties). The exceptions which arise are: proximity between defendant and claimant[29], proximity between defendant and third party[30], creation of a source of danger[31] and failure to abate known danger[32]. While the law assumes a restrictive approach to imposing liability in relation to omissions, there are still numerous circumstances where bodies can be held liable for breach of an owed duty of care. It can be opined that the law regarding misfeasance may prompt individual to nonfeasance. Considering the moral obligation to act, the repercussions of acting and consequently causing harm may make a ‘Good Samaritan’ liable. Through the harsh operation of the law, persons without a legal obligation to act in the prevention of harm to another may not want to assume the risk of a ‘lawsuit’. [1] Stovin v Wise [1996]; Smith v Littlewoods [1987] [2] Donoghue v Stevenson [1932] [3] Sutradhar v National Environmental Research Council [2006] [4] abid [5] Article 223-6 French Penal Code [6] Yuen Kun Yeu v Attorney General of Hong Kong [1988] [7] The Social Action, Responsibility and Heroism Act 2015 (SARAH) [8] Anns v Merton LBC [1978] [9] Caparo Industries PLC v Dickman [1990] [10] Nettleship v Weston [11] Barnett v Chelsea & Kensington Hospital [12] Reeves v Commissioner of Police for the Metropolis [2000] [13] Kirkham v Chief Constable of Greater Manchester [1990] [14] Savage v South Essex Partnership NHS Trust [2008] [15] Costello v Chief Constable of Northumbria Police [1999] [16] Barret v Ministry of Defence [1995] [17] Capital & Counties plc v Hampshire County Council [1997] [18] Goldman v Hargrave [1967] [19] Hill v CC of West Yorkshire [1989] [20] Swinney v CC of Northumbria [1999] [21] Reeves v Metropolitan Police Commissioner [2000] [22] abid [23] Church of Jesus Christ of Latter Day Saints v West Yorkshire FCDA [24] Kent v Griffiths [2000] [25] Mulcahy v Ministry of Defence [1996] [26] Bici v Ministry of Defence [2004] [27] Osman v UK [1999]; Z v UK [2001] [28] JD v East Berkshire Community Health NHS Trust and others [2005] 2 WLR 993 [29] Selwood v Durham County Council & Ors [2012] [30] Home Office v Dorset Yacht [1970] [31] Haynes v Harwood [1936] [32] Everett v Comojo (UK) Ltd [2011] ‘… the law of fixtures is (and will always remain) a rough and ready mechanism by which competing claims of ownership over different things are settled. Behind a veneer of principle, the law lacks coherence and certainty and it is strongly arguable that it should not continue in its present form.’ [1]This essay seeks to examine the law of fixtures and chattels in England and Wales, as well as a clear analysis of whether current legislation lacks coherence and certainty; it will ultimately conclude that though statute may be minimal, common law remediates and ‘fills the gaps’ of the uncertainty of the law.
The law in England and Wales is composed of statutes (legislation passed in parliament) and common law (law interpreted by judges). Chattels are an item of personal property, other than freehold land, including tangible goods and leasehold items. A principle of land law, expressed in Latin, “Quic quid plantatur solo, solo cedit”, states that whatever is attached to the soil becomes a part of it. Thus, any chattels that are affixed to land, becomes part of the land and are known as fixtures. Regarding ownership, fixtures would be considered as part of real property and hence would belong to the land owner; while chattels are personal property and may belong to another. The distinction between fixtures and chattels is made by the physical degree of annexation to land. S.62(2) Law of Property Act[LPA] (1925)[2], states that a conveyance of land, having houses or any other building should include, and operate to convey with the land, houses, other buildings…fixtures…or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, or other buildings conveyed, or any of them or any part thereof. Multiple tests have been used to distinguish between fixtures and chattels, but a matter of precise analysis is used as a determining factor. Elitestone Ltd v Morris and Another established that the subjective intention of the parties will not affect the question of whether a chattel can become a fixture; however, where a chattel is physically attached to the land, will prime facie indicate that it is a fixture, Blackburn J. in Holland v. Hodgson[3], sums it up as; "Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry-stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels." According to the case of Holland v Hodgson, a less reversible and more permanently object affixed to land, is more likely to be defined as a fixture and becomes a part of the land. Wiltshear v Cottrell[4] and Walmsley v Milne[5] are authorities for this principle, where an object is fixed by the owner, though only affixed by bolts and screws, it is to be considered a part of the land, in all events where the object of setting up articles is to enhance the value of the premises to which it is annexed for the purposes to which those premises are applied. An object by object basis determines the test for the degree of annexation. Any object that rests merely on land due to their own weight was the key feature of the gravity test, in Hulme v Bingham[6], heavy machinery unattached to land was considered a chattel. This test was also used in Botham v TSB Bank PLC[7], it was held that appliances remaining in position by their own weight and are affixed electrically, would likely be a chattel. In Wansborough v Maton[8] and Rex v Otley[9] a wooden barn and a wooden mill were both held to not be part or parcel of real property. English law permits chattels to rest on land and not be a part of it; this includes sheds[10], bungalows[11] and house boats[12]. However, chattels found under the surface of the land belong to the landowner[13], unless they are items of treasure trove under the Treasure Act 1966. The owner of land has a right to sever any fixture whenever they wish, such item(s) will return to status of chattel. The vendor(seller) of the land can sever fixtures up until the contract of sale becomes binding. After the ownership of the land (and fixtures) transfers to the purchaser, the vendor cannot remove any fixtures. Additionally, regarding tenantship, if a tenant attaches their own personal property to land, it becomes a fixture and the property belongs to the owner(landlord); exceptions to this include ornamental and domestic fixtures[14], trade fixtures[15], and agricultural fixtures.[16] Michael Haley’s confusion in ‘The Law of Fixtures: An Unprincipled Metamorphosis?’ arises from the doubtfulness of the relationship between the degree and purpose of annexation tests, and secondly in practice the tests fail to answer everyday questions of lawyers and clients since there is no obvious superior legal rule that can be applied. After a clear and thorough analysis of the law, it can be stated that based on statute, the law of chattels and fixtures does hide behind a cover of principle. By interpretation, S.62 LPA 1925 simply states (in ‘layman terms’), that legal transferring of land which includes fixtures etc, by the Act, operates to convey such fixtures with the land. The law of fixtures vaguely exists in one section of one act. The haphazard development of law through cases inevitably leads to inconsistencies, not merely in terminology but also in substance. Elimination of this inconsistency by the implementation of precise statute concerning all areas of fixtures and chattels will ensure that buyers and owners are protected by the highest form of law, regardless of prior judges’ interpretation. Proper codification would make the law more accessible by providing a single clear agreed text. Sources of the general principles would rather be found in an Act of Parliament instead of a subsection in a statute, and thousands of cases. However, introduction of an Act of Parliament has many disadvantages. It can lead to confusion and new appeals; relearning current law and how to interpret it can be seen as wasting time and resources. It simply isn’t feasible to create a comprehensive statute, as it is impossible to include all the aspects of the law. Judges may also be threatened that the implementation of such can reduce the role of the courts and their ability to have flexibility within common law. One of the most substantial obstacles, despite however desirable it may be, would be to implement the Act itself; it would be very difficult to secure Parliamentary time to enact or amend a Bill specifically for fixtures, considering, that if the Bill is amended for fixtures, all other factors in S62(1)(2) LPA 1925 should also be included. One of the Pillars of the UK’s constitution is their flexibility; creating or amending legislation strips the court of their role and ultimately reduces the flexibility of the law. Rules established by Common Law, in addition to current statute provisions set out for fixtures and chattels are very much sufficient, and do not need amending nor being implemented as new law. Common Law plays a major role in the UK’s constitution, Michael Haley sought to undermine the position of the court by implying that the only ‘coherent and certain’ law is that of Parliament. [1] (M Haley, ‘The Law of Fixtures: An Unprincipled Metamorphosis?’ [1998] Conv 137, 144.) [2] S.62(2) Law of Property Act 1925 [3] Holland v Hodgson (1872) LR 7 CP 328 [4] Wiltshear v Cottrell (1853) 1 E & B 674 [5] Walmsley v Milne (1859) [6] Hulme v Bingham ([1943] KB 152 [7] Botham v TSB Bank (1996) 7 P & C R D 1 [8] Wansborough v Maton (1836) 4 Ad. & El. 884 [9] Rex v. Otley (1830) 1 B. & Ad. 161 [10] Webb v Frank Bevis Ltd. [1940] 1 ALL ER 247 [11] Elitestone Ltd v Morris and Another [1997] 1 WLR 687 [12] Chelsea Yacht & Boat Club v Pope [2000] EWCA Civ 425 [13] Waverley Borough Council v Fletcher [1995] 4 All ER 756 [14] Spyer v Phillipson [1931] 2 Ch 183 [15] Smith v City Petroleum [1940] 1 All ER 260 [16] s.10 Agricultural Holdings Act 1986. Should the law permit terminally ill patients to end their lives?![]() “Provided that a person has capacity then the principle of sanctity of life must yield to autonomous self-determination in respect of refusal of life-saving medical treatment. A competent person's refusal must be obeyed even if patently contrary to her own best interests (as objectively assessed) and even if it is plain that an adverse outcome may result...”[1] This essay seeks to examine the law on assisted suicide in England and Wales, as well as a clear analysis of the advantages and disadvantages of introducing legislation where terminally ill individuals are permitted to end their lives; it will ultimately conclude whether or not England and Wales should introduce legislation permitting assisted suicide for terminally ill individuals. Physician Assisted suicide and Euthanasia are two methods in which terminally ill patients can end their lives. Euthanasia is the painless killing of a patient suffering from an incurable and painful disease or an irreversible coma.[2] Euthanasia is regarded as manslaughter or murder and is punishable by law with a maximum penalty of up to life imprisonment.[3] Euthanasia can be seen as ‘mercy killing’. Physician assisted suicide is where a doctor provides lethal drugs to a terminally ill, mentally competent adult, making the choice of their own free will and after meeting with strict legal safeguard, can commit suicide.[4] Assisted suicide is illegal under the terms of the Suicide Act [1961] and is punishable by law with up to 14 years imprisonment.[5] Assisted suicide is seen as encouraging someone to kill themselves. The law in England and Wales is quite inconsistent in terms of Assisted Suicide. In 1961, the Suicide Act (SA [1961]) was passed, S. (1) SA [1961] states that suicide is not a crime,[6] however, a person can be criminally liable for complicity in another person’s suicide if they commit an act capable of encouraging or assisting the suicide or attempted suicide of another person, and their act was intended to encourage or assist suicide, or an attempt at suicide.[7] Inconsistency occurs because S. 2(1)-(1C) of the SA [1961] was substituted for S. (2A) (1.2.2010) by S. 59(2A) Coroners and Justice Act (CJA) 2009 (c. 25) where the law goes into detail that if the defendant arranges for a person to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and the person does that act, the defendant is also to be treated as having done it. Where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, for the purposes of CJA [2009] it is to be treated as so capable if the act would have been so capable had the facts been as defendant believed them to be at the time of the act or had subsequent events happened in the manner the defendant believed they would happen (or both). A reference in this Act to a person doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to the person doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide.[8] S. 10(1) (2) The CJA [2009] also states that “old offence” means an offence under S. 2(1) of the Suicide Act 1961 as that section had effect before the section 59 commencement date, or an attempt to commit such an offence; and “new offence” means an offence under S. 2(1) SA [1961] as that Act is amended by S. 59 CJA [2009]. Sub-paragraph (3) applies where— a person (“the defendant”) is charged in respect of the same conduct with both an old offence and a new offence, the only thing preventing the defendant from being found guilty of the new offence is the fact that it has not been proved beyond reasonable doubt that the offence was committed wholly after the section 59 commencement date, and the only thing preventing the defendant from being found guilty of the old offence is the fact that it has not been proved beyond reasonable doubt that the offence was committed wholly or partly before the section 59 commencement date.[9] In 2015, Lord Falconers Assisted Dying Bill [2014][10] came to naught due to a lack of time with the impending General Elections in May, 2015 and no progress was made on the Bill. It proposed to permit terminally ill, mentally competent adults to have an assisted death after being approved by two doctors; under the proposal, people with fewer than six months to live could have been prescribed a lethal dose of drugs, which they had to be able to take themselves. The bill was based on the Oregon Death with Dignity Act, which has permitted assisted dying in Oregon since 1997. [11] MP Rob Marris decided to introduce an Assisted Dying Bill [2015][12] based on the law that had been agreed by the House of Lords earlier that year. Unlike in the House of Lords, where regular debates had been held on assisted dying for many years, this was the first ever debate on an assisted dying law and the first vote on the principle since 1997. The Bill was defeated at its Second Reading in 2015 after four hours of debate because despite 118 MPs being in favour, 330 were against.[13] Opening the debate, Mr. Marris said the current law did not meet the needs of the terminally ill, families or the medical profession. He said there were too many "amateur suicides, and people going to Dignitas- to live with dignity, to die with dignity" and it was time for Parliament to debate the issue because "social attitudes have changed". He added that the bill would offer more protection for the living and more choice for the dying and that he was unsure what choice he would make if he was terminally ill, further stating that it would be comforting to know that the choice was available. The ethical argument states that individuals should have a freedom of choice as to how and when they die, and that they should do so with dignity. Life should only be prolonged for as long as the individual believes it is worth living; someone shouldn’t have to endure intolerable pain and if the quality of their life is severely diminished. Diane Pretty, a British woman suffering from motor neurone disease wished to end her life because of the pains and problems she had endured. She stated that she wanted to have a quick death without suffering, at home surrounded by my family. She attempted to change British law by going before the court and using the Human Rights Act 1998 to argue that the Director of Public Prosecutions should legalize assisted suicide. The House of Lords, turned down her case and so did the European Court of Human Rights when she appealed. She stated that she felt as though she had no rights after her appeal failed. She eventually died in May 2002 as her health deteriorated.[14] Another case that portrayed this same view was R (Nicklinson) V Ministry of Justice; R (On The Application of AM) V The Director of Public Prosecutions [2014].[15] The pragmatic argument states that since euthanasia and physician assisted suicide is allegedly currently occurring, society might as well legalize it and ensure that it is adequately regulated. A retired French teacher, Chantal Sebire had been diagnosed with esthesioneuroblastoma, a rare form of cancer in 2000. In February 2008 she made a public appeal to the French President, Nicolas Sarkozy, to permit her to die through euthanasia stating that, “One would not allow an animal to go through what I have endured.” However, on March 17th, 2008 she lost her case. March 19, 2008, she was found dead in her home. An autopsy conducted on March 21, 2008 concluded that she did not die of natural causes. Subsequent blood tests revealed a toxic concentration of the drug pentobarbital, a barbiturate that is not available in French pharmacies but is used elsewhere in the world for the purpose of physician assisted suicide.[16] Fiona Bruce, the MP for Congleton- opposing, said the bill was so completely lacking safeguards for the vulnerable that "if this weren't so serious it would be laughable". She concluded that we are here to protect the most vulnerable in our society, not to legislate to kill them. This bill is not merely flawed, it is legally and ethically totally unacceptable. [17] The Universal Declaration of Human Rights [1948][18] guarantees that all individuals have a right to life, liberty, and security of person. The United Nations’ Convention on the Rights of Persons with Disabilities promotes respect for the inherent dignity of persons with disabilities. The right to life is enshrined in Article 6 of the International Covenant on Civil and Political Rights [1976].[19] It can be said that once government and health care services begin killing their own citizens, a dangerous precedent has been set. The outcome can be identified as a ‘slippery slope’. Legalizing euthanasia and assisted suicide has a range of unforeseen consequences. Legalizing assisted suicide may discourage research into palliative treatments, consequently preventing cures for those with terminally illnesses. Exceedingly ill people, especially the elderly who are in a constant need of care may feel pressured to commit suicide since they may fall as though they are a burden to their family.[20] According to the International Code of Medical Ethics, “A physician shall always bear in mind the obligation to respect human life.” Legalizing assisted suicide therefore violates one of the most important medical ethics. A doctor’s duty is to preserve human life, thus, asking a doctor to do otherwise can in turn damage the ‘doctor-patient’ relationship. Patients may think that their doctor would rather ‘kill them off’ than take responsibility for a complex and challenging case. The repercussions of hastening death on a regular basis can lead to a lack of compassion towards elderly, incapacitated, or terminally ill individuals, also those with complex and challenging health needs can become sceptical towards their doctor’s efforts and intentions.[21] The mere argument of a right to die, simply implies, a duty to kill. The case of Tony Bland is where judges permitted euthanasia. He was caught in the Hillsborough disaster [1989] which caused him to enter a persistent vegetative state. After three years of life support, the hospital with consent of his parents applied for a declaration to discontinue all life sustaining treatment. The declaration was granted under the terms that withdrawal of treatment is seen as an omission, however since there was no duty to act, given that treatment was not in the best interest of the patient and there were no prospects of his health improving.[22] When confronted with the question of whether or not legislation should be granted for assisted suicide we acknowledge Dr Peter Saunders, campaign director of Care Not Killing, he welcomed the rejection of the legislation, saying the current law existed to protect those who were sick, elderly, depressed or disabled. He said that it protects those who have no voice against exploitation and coercion, it acts as a powerful deterrent to would-be abusers and does not need changing. Consequently, as a society, we must commit ourselves to caring better for patients at life's end. Authorizing doctors to assist suicide is a simple, but far more dangerous than a solution. Legalized assisted suicide has an inconsistent impact on incapacitated people, while everyone else receives suicide prevention, those with incapacities, certain ailments, and old individuals, will obtain a ‘fast pass’ because their lives are regarded as less valuable. Assisted suicide speaks of a fundamental reverence for life and the risk of hurling down a slippery slope toward a diminished respect for life. With legislation in the offing, life and dignity is far more important than death. “Judges are not elected. Therefore they should not make law.”Lord Acton said, “Power tends to corrupt. And absolute power corrupts absolutely.” According to the Doctrine of the Separation of Powers, Judges must not challenge the political authority of the Legislature to decide what new laws should be made. The Separation of Powers is a fundamental principle in which each distinct branch, Legislative, Executive and Judicial, can check and balance the other to prevent the concentration of power and guard against tyranny. Montesquieu (1748) said, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... there is no liberty if the powers of judging is not separated from the legislative and executive... there would be an end to everything, if the same man or the same body... were to exercise those three powers.”
In the United Kingdom, the Executive comprises of the Sovereign and the Government, including the Prime Minister and Cabinet Ministers. The role of the Executive branch is to formulate and implement the Policies. Government proposes a Policy which is passed to the Legislative Branch in the form of a Bill. The Crown or Sovereignty accepts and implements the Bill after it has been passed through the Legislative Branch by convention. The Legislature, Parliament, comprises of the Crown, the House of Commons and the House of Lords. The Legislative Branch creates the law. A Bill is a proposal for a new law or a proposal to amend an existing law, it is presented for debate in the House of Commons and the House of Lords. The Bill can start at either Houses but must pass through both with a majority acceptance vote. The Legislature can be said to have the most responsibility when it comes to making laws in England and Wales. When a Bill starts it goes through various stages before becoming an Act (Law). The first step is the First Reading, at this stage the Bill considered is read for the first time and is printed. It moves on to the Second Reading where Members of the House debate the Bill’s principle. The Bill is passed on to the Committee stage where Committee members study the Bill, clause by clause. At the Report Stage members of the House can make other amendments. It then passes on to the Third Reading where members debate and vote on the Bill, once there has been a majority vote, the Bill goes to the other House where it follows a similar process. Once the Bill has been accepted by both Houses with a majority vote it goes to the Executive where the Prime Minister accepts the Bill. The last stage is the Royal Assent, which is given by the Sovereign (Queen Elisabeth II) due to convention. The Judiciary comprises of the Judges in the Courts of law (High Court, Court of Appeal, and House of Lord now known as the Supreme Court since 1st October, 2009), those who hold Judicial Office in tribunals and the Lay Magistrates who staff the Magistrates’ Courts. Judges are selected by the Judicial Appointments Commission (JAC) since 3rd April, 2006 and Judicial appointments are made by the Crown, “Transfer of appointment functions to her Majesty”, listed in Schedule 14 to the Constitutional Reform Act 2005. The Judiciary’s role is to interpret and declare the laws created by the Legislature. Lord Diplock stated in the case Duport Steels V Sirs (1980), “It cannot be too strongly emphasized that the British Constitution, though largely unwritten, is firmly based on the Separation of Powers; Parliament makes the laws, the Judiciary interpret them.” Lord Esher stated in the case of Willis V Baddeley (1892) 2 QB 324, “There is no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable’’ The Judicial process was described as, ‘The determination of the law relative to the case, followed by the retrospective application of the law, and thus, the courts changing the law.’ The United Kingdom has an unwritten constitution, and as such, they have built their ‘constitution’ on mainly Common Law, Acts of Parliament and the European legislation. Common Law approves the argument that courts do in fact have a role in Law making; It is the part of the English law that is consequent from custom and Judicial Precedent rather than statutes. ‘Stare decisis’ is a key feature of the Common Law system; Stare decisis is the practice of following previous decisions of the Court of higher authority. Precedents are dependent on the court hierarchy as superior courts have the power to overrule decisions made by inferior courts. Thus every rule of law is subject to amendment, either by Judges or Parliament because as time progresses, Common Law evolves with it, along with many Legal Principles. Despite the Doctrine of Separation of Powers stating otherwise, Judges do ‘create’ new law. The 1966 Practise Statement 3 All ER 77 made by Lord Gardener, L.C., on behalf of himself and the Lords of Appeal in Ordinary permits the House of Lords to depart from their previous decisions (The Doctrine of Precedents/ Stare Decisis). Ronald Dworkin in the ‘Hart-Dowrkin Debate’ stated that judges have no discretion in law making, they are merely implementing it. He also stated that law was a seamless web of principles and judges have to follow these principles. However, since Lord Chancellor issued the practise statement, it helped create flexibility in cases. This gave the House of Lords power to alter the position of the existing law. S2(1) European Community Act 1972, S3 Human Rights Act (1998) Allowed Judges to make law rather than simply interpret as they were seen to be filling the ‘gaps’ of the ambiguous legislation. The Legislation made way for many cases where new law was made; Pepper v Hart (1993) overruled the House of Lords ruling in the Davis v Johnson (1979) that banned the use of Hansard in statutory interpretation, British Railways Board v Herrington (1972) overruling Addie v Dumbreck (1929) on the duty of care owed to a child trespasser, and R v Dica (2004) the Court of Appeal overruled R v Clarence (1888) and held that criminal liability could be imposed on a defendant for infecting another person with HIV. The judiciary has formulated various methods which they use to interpret vague statutory provisions. The Literal rule of interpretation states that the wording of the statute must be followed in a word by word basis; this gives judges no freedom of choice for them to actually change the law but only to enforce it. The statute must be enforced by the judges even though it may lead to an illogical decision. The case of Fisher v Bell is a demonstration of this rule. The strict application of the Literal rule may be altered by use of the Golden rule; judges may depart from the usual meaning of the words, in favour of an interpretation which avoids illogicality. The Mischief rule asks the judge to consider what the legislative purpose of the Act was - what was the ‘mischief’ the Act was trying to deal with. Any question of interpretation should be determined in such a way as not to hinder that purpose. The role of judges in law making is evident, and they do have a major part to play in the evolution and development of out of date law. However, Government should not be based in a single power as it can lead to dictatorship, oligarchy and disorder. Liberty exists not only for individual freedom and rights but also with boundaries in relation to law so that there would not be abuse of powers. The Doctrine of Separation of Powers states that a government should be set up so that man should not be required to do things which the law does not require him, nor should he be obliged to refrain from things allowable. This convention is important for the maintenance of checks and balances. Judges therefore, according to the Doctrine of Separation of Powers should not make law, as their role is to interpret and declare law created by Legislation. The Solicitors Regulation Authority (SRA) has newly verified plans to introduce the Solicitors Qualification Exam (SQE) from 2020. Consequently, the media is overflowing with articles broadcasting the approaching death of the Graduate Diploma in Law (GDL) and Legal Practice Course (LPC). Ultimately, students currently studying those courses are now confused or overwhelmed by this implementation and how it will affect their career.
If you are currently studying the LLB or a GDL, or looking to start one by 2020, the SRA has specified that you will have the option to sit the new SQE or qualify under the current rules. This is due to the SRA stating that there will be a lengthy transitional period. How do I qualify as a solicitor under the current rules? * Students must complete an LLB (or other degree + GDL) followed by an LPC and a two-year Period of Recognized Training with a law firm or other legal services provider. How will I qualify as a solicitor under the new rules? * The current SRA proposals indicate that students must complete any degree or equivalent, though not necessarily a law degree, and pass the SQE 1. This is followed by two years of work experience before sitting SQE 2. *In both cases, you must meet the character and suitability test for the profession What do SQE1 and SQE2 look like? These will be centralised assessments set by an independent body appointed by the SRA. The idea is that everyone should sit the same test, so the public can be sure that everyone has met the same standard. This means that law schools won’t set their own exams anymore. The current SQE 1 proposal is to combine six online tests covering material you currently study in your LLB, GDL and LPC:
In addition to this there will be a practical legal skills assessment, testing your legal research and writing skills. However, please note that the syllabus for SQE1 has not yet been confirmed by the SRA. SQE 2 is only taken only once you have passed all the SQE 1 exams. This will be a skills simulation test where you interview a client, undertake some advocacy and complete some more writing, research and drafting exercises along with some case analysis. Crucially, this will be after your qualifying work experience and not before. The SRA are indicating that your work experience could be made up from up to four placements lasting a minimum of 6 months each. This could include university law clinics and paralegal roles. You will also have to prove you have had the opportunity to develop the skills required of a solicitor during those placements, then demonstrate this by passing SQE 2. Some reasons to wait until 2020 to do the SQE
Reasons to qualify under the current system before 2020
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