MCT Study Notes

Property
Registration Required

(1) Transfer freehold;

(2) Legal lease more than 7 years;
(3) Legal lease effective in greater than three (3) months;
(4) Grant of mortgage (legal charge); and
(5) Legal easement – express grant.

Registration

(1) Within two (2) months of triggering event;

(2) Lodge cautions against first registration within 15 days; and
(3) Failure to register: legal title reverts to transferor on bare trust.

Lease Formalities

(1) Capacity
(2) Agreement:
(3) If less than 3 years: oral;
(4) If greater than 3 years:
a. Contract;
b. All terms;
c. Signed writing.

Assignment of Lease

(1) Must be by deed (deed of assignment);

(2) Must register if greater than 7 years left and land unregistered; and
(3) Must register to convey legal title if already registered.

Forfeiture

Landlord remedy for tenant in breach

Breach of Rent Covenant

(1) Waived if landlord accepts rent and was aware of breach

(2) Obtain court order
(3) If no lawful residents: landlord may peaceable re-enter
(4) No formal demand for rent need if more than 6 months overdue or lease removes
this requirement.

Breach of Non-Rent Covenant

(1) Give notice to tenant;

(2) Instruct tenant to fix and request compensation:
a. 3 months to remedy; or
b. 14 days if irremediable.

Deed Requirements
(1) Clear on face;
(2) Signed;
(3) Witnessed (2 if grantor uses agent); and
(4) Delivered.

Equitable only

(1) Life estate;

(2) Restrictive covenant; and
(3) Beneficial interest under a trust.

Unregistered Interest, which bind purchaser

(1) Legal lease – less than 7 years;

(2) Interest of party in actual occupation;
(3) Legal easements/profits;
(4) Prior to 2022: legal lease of less than 21 years.

Leasehold Estate

Three (3) essential characteristics:

(1) Certainty of term;
(2) Exclusive possession (if not, it is a licence);
(3) Rent (term of years absolute enough if no rent).

Exclusive possession

Is not a lease where occupancy based on:

(1) Friendship;
(2) Family relationship;
(3) Service as employee;
(4) As a lodger (e.g. daily linen change).

Lease Covenants

Covenant to repair
(1) Can’t require repair of whole property in one shot;
(2) Landlord liable to repair when notice given.

Fair wear and tear

May still be liable if something under covenant damaged

Implied covenant of habitability

Non-assignment
If qualified, no unreasonable withholding of consent. If commercial, listed grounds are
reasonable.

AHJ to obtain listed grounds

Must be granted by Deed

(1) Easements, rights, privileges;

(2) Rent charge;
(3) Charge by way of legal mortgage;
(4) Other charges; and
(5) Right of entry (by landlord).

Constructive notice: enforcing equitable interests

(1) 15 years to rest of title;

(2) inspection of the land;
(3) imputed notice between mortgagees and agents.

Freehold Estates

(1) Fee simple absolute;

(2) Determinable fee simple (e.g. “To A during…; To A until ….”);
(3) Fee simple on condition subsequent (e.g. “If X occurs, grantor can re-enter”); and
(4) Fee simple on condition precedent (e.g. “If X occurs, A takes”).

Transfer of Freehold Estate

Estate Contract (Equitable Interest)

(1) Pre-1989: oral (part performance); and

(2) Post-1989: condition:
(3) Writing
(4) All terms;
(5) Signed by both parties.

Deed: required for legal title to pass.

Lease Types

(1) Fixed term tenancy;

(2) Periodic tenancy:
(3) Notice to terminate = length of period;
(4) Yearly tenancy = 6 months notice;
(5) Dwelling = 4 week minimum;
(6) Tenancy at will;
(7) Tenancy at sufferance; and
(8) Tenancy by estoppel.

Trusts of Land

More than 1 person entitled to enjoy/posses land:

Legal title: trustees;
Equitable title: beneficiaries.

No duty to sell as with trusts for sale.

Maximum of 4 trustees hold legal title – may quit with simultaneous appointment of
new trustees or other trustee approval;
Beneficiaries acting unanimously may direct trustee to quit

Trusts for ale: can still create, but TLATA provides irreducible power to postpone
sale.
Beneficiary right to occupy land

Does purpose of trust include providing land for beneficiaries to occupy;

Is land available and suitbale for occupation?
Trustees may reasonably and unanimously exclude some, but not all beneficiaries
from land.

Licences

Bare Licence (no consideration provided);

Express licence: invitations;
Implied licence: e.g. right to walk up to someone’s front door;
Licence coupled with proprietary interest: e.g. profit a pendre, irreovacable while valid
property interest;
Contractual licence: e.g. admission ticket – remedy = damages;
Licence protected by constructive trust: e.g. where unconscionable (e.g. lower price
paid because property is subject to licence);
Licence protected by estoppel: need reasonable reliance or where unconscionable
for X to go back on assurance.

Resulting Trusts for land: contribution to purchase price

Constructive trusts for land: express common intention that property be shared
and detrimental reliance;
Inferred common intention: direct contribution to purchase price? Payment of
mortgage instalments?

Appointment of Trustees

Appoint by Deed: become joint tenants with existing trustees (separate transfer not
required);
At least two trustees needed to give valid receipt and allow for overreaching;
Trustee standards of care: “such care and skill as is reasonable in the circumstances
and seek best possible return and consult with beneficiaries”.

Easements

Four (4) requirements (Re Ellenborough Park)

Dominant and servient tenement;

Rights accommodate dominant tenement;
Diversity of ownership; and
Right must be capable of being granted by deed.

Should generally NOT: require expenditure by servient owner, amount to exclusive

possession of servient land, require constant persmission to be obtained from
servient owner.
Acquiring easements: PING (AHJ to check)
Quasi-easements: e.g. footpath to house: need more than mere convenience, but
need not be absolutely essential
Prescription: 20 (challengable) or 40 (absolute) years uninterrupted use as of right:
less than 1 year interuppiton won’t defeat
Right to light: 20 years; absolute and indeafesible – unless was enjoyed pursuant to
written consent;
Easement by statute: electric company pylons
Termination of easements:
Merger;
Release;
Change of character: substantial increase on burden of servient tenement.

Easements: Remedies
Abatement: no unreasonable force;
Damages;
Injunction

Profits a prendre for benefit of dominant tenement

4 profit appurtenant – must meet easement requirements 9otehrwise  profit in

gross).

Co-ownership

Joint tenancy: 4 unities

 Unity of time;
 Unity of title;
 Unity of interest; and
 Unity of possession.

Severing joint tenancy in equity

Written notice;
Act operating on own share (e.g. sale/disposal);
Mutual agreement (may be oral);
Mutual conduct (directing where shares are to go in a will);
Homicide.

Right of survivorship: on death of joint tenant, his share will go to other joint tenant

Mortgage/bankruptcy/lease may create situation where both joint tenant and tenant-
in-common.

Application for sale: co-owners in dispute or bankruptcy.

Court will consider:

Settlor intention;
Trust purpose;
Welfare of minors;
Secured creditor interests;
Interest/wishes ofmaority of beneficiaries.

Termination of co-ownership
Physical partition creating absolute ownership
Merger (sole ownership)
Conveyance to single purchaser.

Miscellaneous Topics

Found Items
True owner has 6 years to claim
Embedded/attached: belongs to land owner;
On surface: belongs to finder unless owner manifested control

Overreaching: P pays money to more than two (2) trustees, converts interest to
interest in money rather than land
Purchaser may withdraw after learning of a land charge if were unaware, claim
compensation if undiscovered when investigating rest of title
Notice to quit: ends periodic tenancy for lessee and all joint tennats (given by
landlord or other joint tenancy)
Covenants: Post-1996: tenants automatically released from lease covenant when
lease passes to successor (e.g. L1  L2 transfer, L2 breaches, L1 still liable unless
indemnity covenant between L1 and L2).
Landlord may hold sub-tenants directly liable for covenant breaches (assumed they
have constructive notice).

Adverse Possession

Factual possession and COAH: intention to possess, not intention to dispossess

necessarily;
Time periods: Registered land: 10 years, unregistered land: 12 years;
Registered owner will be notified when adverse possessor attempts registration – 65
days to object if fails to evict after objecting may reapply in 2 years
Charge holder also notified and have opportunity to object.
Tolling of period: e.g. with registered proprietor mental disability
If successful, adverse possessor shall generally subject to all proprietary rights which
burden the land.
CRIMINAL LAW

EU Law Considerations

 Right to Fair Trial: Art 6 ECHR;

 Right to Life: Art 2 ECHR;
 No ex post facto law: Art 7 ECHR

Offences Against the Person Act 1861 (OAPA)

 Section 47 Assault / Battery which causes actual harm (includes psychiatric

harm – if a clinically identifiable condition)
 Section 20 unlawfully and maliciously wound or inflict grievous bodily harm
(malice = intent/reckless)

Note:
 Wound = must break BOTH layers of skin
 GBH: substantial loss of blood, lengthy incapacity, permanent disability,
disfigurement, broken/displaced bones

Section 18: reserved for really serious life threatening harm)

(1) wounding with intent to cause GBH
(2) wounding with malicious intent to resist arrest;
(3) causing GBH with intent to cause GBH
(4) causing GBH with malicious intent to resist arrest etc
N.B. (Generally, s 20: harm was more consequential than intentional, s 18= more
serious intention crimes, punishable by life imprisonment).
These offences carry stricter penalties if racially or religiously motivated.

Inchoate Offences

Three (3) statutory offences replace common law incitement

(1) intentionally encouraging or assisting an offence;
(2) encouraging or assisting an offence believing it will be committed;
(3) encouraging or assisting offences believing one or more will be committed.

Defences
(1) Reasonable action (e.g. police investigation); and
(2) Reasonable belief (e.g. let speeding motorist pass).

Common law assault/battery

(1) Technical assault: apprehension of immediate unlawful harm -

(immediate/instantaneous) (e.g. words alone and silence
(2) Physical assault/battery: intent/reckless application of unlawful force (any
unlawful touching)
(3) Common assault = Technical assault plus physical assault.

Homicide

(1) Murder: mens rea: malice a force thought;

(2) Implied: intention to kill or cause GBH.

Voluntary manslaughter: diminished responsibility/loss of self-control;

Diminished responsibility: Abnormality of mental functioning which arose from
medical condition (depression, battered women syndrome, mental illness) and
substantially impaired D’s ability to:
(1) Understand nature of conduct;
(2) Form rational judgement;
(3) Exercise self-control.

Loss of self-control (need provocation):

(1) Loss of self-control; and
(2) Qualifying trigger: (sexual infidelity NOT qualifying but jury may consider in terms
of circumstances);
(3) Fear of serious violence against defendant or other person;
(4) Circumstances of an extremely grave character which caused D to have
justifiable sense of being seriously wronged; and
(5) Person like D might have acted similarly.

Involuntary manslaughter

Two (2) types of involuntary manslaughter:

(1) Reckless manslaughter; and
(2) Unlawful act manslaughter.

Reckless manslaughter
(1) D foresaw GBH as a probability but not virtual certainty: must at least forsee
serious harm.
Unlawful act manslaughter: (“constructive manslaughter”)
(2) Base crime + death caused – need not be foreseeable
(3) Crime must be dangerous.

Conspiracy

(1) Agree that course of conduct should be pursued, which if carried out:
(2) Necessarily amounts to commission of offence;
(3) Would do so but for the existence of facts rendering the commission of offence
impossible;
(4) Agreement: nothing need be done in furtherance;
(5) Course of conduct may include reservations: we will beat up policeman if he is at
the scene.

Theft

There are four (4) elements of theft:

(1) dishonestly;
(2) appropriate;
(3) property of another;
(4) intent to permanently deprive.
Note: It is not dishonest if have a right to deprive, would have consent, cannot
rediscover the true owner.

Dishonestly obtaining services: similar to theft but of services

Robbery
Theft and use of force/apprehension of force – charge fails if D believes he is entitled
to property.
Burglary (may become a trespasser when purpose becomes unlawful)
(1) enter/having entered as trespasser with intent to:
(2) commit criminal damage;
(3) steal, attempt to steal, attempt to inflict GBH.
Note: Aggravated = firearm, weapon or explosive firearm.
Need intent at time of entry.

Making off without payment

There are four (4) elements of making off without payment:

(1) Depart/disappear
(2) On the spot
(3) Without paying for goods/services/
(4) Dishonest/intent to avoid.

Attempt

There are two (2) elements to attempt:

Intent to commit offence;
More than merely preparatory.
Note: impossibility NOT a defence).

Accessory/Derivative (JV Liability)

A intentionally assists P
A knows assistance is for P to commit crime; and
A knows there is real possibility P might commit (encouraging or assisting).

Derivative Liability: must prove that at least the actus reus of the principal crime
occurred
Joint Venture Liability: A +B agree to commit X, B commits Y instead – may escape
liability by withdrawal = the more contribution, the more that will be rquied for
withdrawal.

Participation

Aiding, Abetting, Counseling, Procuring

Must have more than mere presence at crime scene
Counsel: advise or solicit usually pre-crime
Procure: to cause or “produce by endeavour” (e.g. procuring offence of drunk
driving: lacing drinks, knowing someon will shortly drive).

Other Property Offences

Note: If by fire = arson

Criminal Damage:
Destroy/damage – if difficult to clean, more likely to be damage;
Property belonging to another;
Without lawful excuse

Aggravated Criminal Damage

Destroy/damage
Any property;
Intending/reckless whether life would be endangered.

Fraud

Note: Possession of articles for use in fraud enough to prove general intention to use
articles for fraud.

False representation
Representation with:
Intent to make a gain;
Intent to expose other to risk of loss

Failing to disclose
Dishonest failure to disclose and legal duty to disclose:
Intent to make a gain; and
Intent to expose other to risk of loss

Abuse of position (very broad)

D in position where expected to safeguard another’s financial interest and
dishonestly abuses position with:
Intent to make a gain; and
Intent to expose others to risk of loss.

Handling Stolen Goods

Knowing/believing goods are stolen;
Dishonestly receive goods; or
Dishonestly undertake/assist in retention, removal, disposal for the benefit of another;
or
Arrange to do so.

Defences

Age
Less than ten: incapable of criminal liability;
Older than 10: capable and may not argue too young to have capacity.
Insanity
Defect of reason from disease of the mind:
Did not know nature and quality of act;
Did not know what they were doing was wrong.
Automatism: done by muscles without control of mind
Intoxication: involuntary and voluntary
Self-defence: reasonable force allowed to defend another’s property. It begins with
subjective tests: How would D have perceived situation. Amount of force always
tested objectively. D not expected in face of aggression “to weigh to a nicety the
exact amount of necessary action”.
Case: Court rejected that disproportionate force justified due to D’s paranoia
disorder.
Duress: inapplicable if voluntarily associate with others engaged in criminal activity.
Needs:
Immediacy;
Must not have had opportunity to escape thre;
If D ought to have seen the risk of duress defence fails;
NOT defence to murder or treason;
Need threat of death/serious injury to self, immediate family, someone close, or
someone D reasonably felt responsible for.
Necessity: has been used in medical situations: A forced sterilization of mental
patient (Re F [1990]):
Required to avoid inevitable and irreparable evil;
Evil inflicted not disproportional to evil avoided.
TORTS

Negligence

Duty of Care
Case of type to which negligence law is applicable;
Foreseeable that victim would be harmed?
Unforeseeable claimaint: Palsgraf v CIRR

Pyschiatric Harm
Note: Eggshell skull rule applies
Medically diagnosed
Result of sudden event or immediate aftermath.

Liability to spectatotrs/bystanders
Foreseeability = relationship to primary victim(2)?
Sufficiently close relationship of love and affection?
Proximity and sufficiently close in time and space?
Nervous shock in immediate aftermath.

Causation: But for

Material increase in risk is enough
Consecutive causes: If second act occurs and no additional repairs needed, first
tortfeasor may be 100% liable.
Novus actus and remoteness
Remoteness: reasonable foreseeability
Wagon Mound: not reasonably foreseeable
Reasonable foreseeability carved out by eggshell skull rule: applied to victim with bad
credit who had to pay abnormally hire fees.

Employer’s Liability for Omissions

Assumptions of responsibility?
Relationship of control?
Creation of danger?
Failure to remove source of danger?

Pure Economic Loss

Note: Hedley Byrne “special relationship”
Negligent misstatements
C relies on D’s skills/judgement;
D ought to reasonable have known of reliance;
Reasonable for D to rely
OR
Voluntary assumption of responsibility giving rise to duty of care in negligent
misstatement case.

Breach of Duty of Care

Reasonable person standard
Children: reasonable child of that age
Sports: may have duty to spectators – did they show reckless disregard?
Professionals: ordinary skilled professional.

Standard of Proof = Balance of probabilities

Res ipsa loquitur:

Accident would not normally occur in the absence of negligence
Cause was under defendants control
No explanation of cause.

Employer/Vicarious Liability

Common law employer liability

Non-delegable obligation to provide:
Competent workforce;
Adequate plant/equipment;
Safe workplace
Effective system of work.
Employer entitled to assume that employee can cope with normal job stress.

Employer’s Liability (Defective Equipment) Act 1969

Employer held liable if:
Injury in course of employment;
Equipment defect;
Wholly/partly fault of third party.

Vicarious Liability
Tort;
By employee;
In course of employment;
NOT independent contractor

Course of employment
Within scope even if improper methods used to complete task
Diversions/detours: a new independent journey?
Intentional/criminal acts usually NOT within scope (e.g. embezzlement using position
of authority: within scope)
Close connection test: torts so closely connected with employment that it is fair and
just to impose vicarious liability?

Produce Liability

Common law: flaw occurred while in D’s control

Strict liability: the consumer expectation test considers:
Manner and purpose of marketing/use of mark;
Reasonably expected product uses;
Time at which product supplied.

Property loss/damage less than £275 not covered under Consumer Protection Act
1987.
Defences
Defect due to compliance with EU law;
D never supplied product;
Supply was not for profit/not in course of business;
Defefct did not exist at time of supply
Stste of scientific/tech knowledge at the time;
Defect caused by subsequent product design.
Limitation: 3 years from damage/reasonable discovery (CPA: no pure economic loss,
no recovery for damage to product)
Occupier’s Liability
1957 Act (Visitors)
1984 Act (Non-visitors)
Visitors: implied or express permission to enter premises – includes firemen
Repeated trespass does NOT confer a licence (e.g. by children)
Standard: reasonable safety for visitor using premises for purposes for which he is
invivted:
Children: less careful than adults (allurement: a.k.a attractive nuisance for very young
children: occupier may assume adequate adult supervision)
Skilled visitor: expected to guargd against special risks
Warnings: may help discharge duty if adqueate
Independent contractor: occupier not liable for faulty work of elevator repairman
Business premises: CANNOT exclude negligence liability for death/personal injury

Occupier’s Liability (Non-visitors)

Aware/reasonable belief danger exists
Reasonable grounds to believe trespasser may be exposed
Circumstances such that occupier reasonably expected to offer protection
Note: may need to prevent children’s entry and also violeni defence (e.g. climbs
fence, drunk to get in swimming pool)

Defences

Contributory negligence: no general applicability to claims by children

(apportionment of damages: consider blameworthiness and causation.
Volenti: voluntary assumption of risk: deemed acceptance of D’s unreasonable
conduct – needs:
Agreement;
Voluntarily made
With full k knowledge of the risk.
Violenti has failed in drunk driving cases, but succeeded in durnk flying case (unlikely
to succeed in cases involving rescuers).
Illegality: ex turpi causa non oriter ecteo.

Intentional Torts

Battery: intent + direct + application of force + without consent

Assault: reasonable apprehension of direct/immediate application of force
False imprisonment: complete restraint of bodily movement + not expressly/impliedly
authorised by law
Note: NOT false imprisonment if reasonable means of escape (also “depriving
claimant of freedom of movement).
Victim need NOT be aware they are imprisoned.
Defences: lawful authority and necessity
e.g. crowd control in extreme/exceptional circumstances.

Nuisance and Rylands v Fletcher

There are 2 types of nuisance:

 Public; and
 Private.

Private nuisance: continuous, unlawful, indirect interference with the use and
enjoyment of land.
MUST show damage (e.g. fume damage to trees, loss of amenity/enjoyment)
Factors to consider
Locality and zoning/planning permission
Sensitivity of claimant (must not be hypersensitive)
Social utility (e.g. Miller v Jackson)
Defendant malice?
Positive duties, e.g. remove natural hazards.

Art 1 Protocol I ECHR: peaceful enjoyment of possessions.

Defences
Prescription: if nuisance has gone on more than 20 years
Statutory authority: e.g. construction of a refinery authorised by statute

Public Nuisance
Materialy affects reasonable comfort and convenience of life and cross-section of
public affected (a crime as well as a tort)

Standing for individuals: special dmage? (no property rights needed)

Covered damage:
Property damage;
Obstruction/damage of public highway;
Personal injury;
Economic loss (e.g. shop entrance blocked.

Rylands v Fletcher

Strict liability – non-natural land use and increased danger

D brings something likely to do mischief if it escapes onto land (even a water tank)
Actual escape
Damage of a foreseeable kind
NOTE: deliberate release of tear gas – did no “escape” – handle in trespass instead.

Defences
Consent of claimant or common benefit – flooding caused by rat gnawing into
community water tank – common benefit therefore no claim.
Third party act and defendant had no control.

Remedies and Compensation

Non-compensatory:
Contemptuous damages: less than nominal (e.g. one penny) (where court feels claim
should not have been brought)
Nominal damages: tort actionable per se (e.g. trespass) but no actual loss caused
(typically £2)
Exemplary/punitive damages: for deterrence:
Oppressive, arbitrary, unconstitutional actions by government;
Conduct calculated to make profit (defamation cases).
Compensatory:
Pecuniary: anticipate future loss, pay lump sum
Non-pecuniary: compensate for injury, pain, suffering, loss of amenity
Aggravated: unavailable in negligence, claimant’s position was made worse by D’s
malice/bad motivation.
Injunctions:
Quia timet: prevent “highly likely and imminent” future tort;
Interim/interlocutory: serious question+ balance of convenience favours granting
injunction.
Final injunctions: prohibitory, mandatory, etc
Damages in lieu of injunction: small injury, estimable in money, money is adequate,
oppressive to grant injunction.

Defamation

AHJ TO UPDATE
Constitutional Law

Five (5) main sources:

Common law;
Acts of Parliament;
EU Law (prevails over UK);
ECHR (prevails over UK);
Law and customs of Parliament.

Other Constitutional Conventions:

Appointments:
Monarch’s appointments to be based on PM’s advice
Minister’s are individually responsible to Parliament
Cabinet
Cabinet members do not voice dissent on government policy once decision is taken
(Courts CANNOT enforce constitutional conventions, but may give opinions as to
their existence or consider them in interpreting statutes.
PM: appointed from Commons, generally from majority party.

Hung Parliament
Three (3) constitutional conventions:
Incumbent PM: First chance at forming administration;
If unable, opposition leader appointed PM
Parties to negotiate without royal involvement.

Rule of Law
Recognised as constitutional principle in Consitiutional Reform Act
Law to prevail over wide discretionary prerogative power
Everyone to be equally subject to the rule of law

Parliament
House of Lords: life peers, hereditary peers (may disclaim title and seek commons
membership, senior bishops;
Must reject Bills seeking to extend life of Parliament for more than five years.
Salisbury Doctrine (AHJ to check)
Don’t reject bills on 2nd/3rd reading with Commons mandate

Royal Prerogative
Monarch cannot be held legally accountable;
Monarch must grant Royal Asset to all Bills passed by Parliament (constitutional
convention)
Privy Council: members must be MPs and part of a democratically elected
government
Legislature: Parliament automatically dissolves 17 working days before election 
PM may delay by 2 months (early election if (1) no confidence vote (may rescing
within 14 days) and (2) 2/3 Commons vote for early election.

Prerogative Powers
Appoint/dismiss Ministers
Dissolve Parliament
Royal Assent
Conduct foreign affairs/deploy troops;
May review use of power in court if justiciable ((1) illegality, (2) irrationality, (3)
procedural impropriety.
Main Function of House of Lords
Revision and scrutiny of Bills
(Salisbury doctrine = constitutional convention)

House of Commons
May declare disqualified member seat vacant
May expel member for any reason
Exclusive authority to initiate financial legislation
Activities: Question time, debates, select committees usually more than 15 MPs.

Enrolled Bill Rule

Once Bill becomes Act, court may not consider:
The way Bill was introduced
What happened before (during) after its passage
Whether Parliament was misled by fraud.

Miscellaneous Rules
Entrenchment: may require referendums, polls, 2/3 majority;
EU law: no unilateral acts which are “incompatible with the concept of European
Community.
ECT: National rules which serve as obstacle to granting interim relief under EU law
are invalid.

Parliamentary Sovereignty

Delegated legislation: give authority to executive via enabling Act

Devolution of legislative function: Westminster ALWAYS has power to legislate, even
with regard to devolved matters
Parliament may make/unmake any law, alter its own constitution
“Anything enacted by state cannot be unlawful”.

Executive

Prime Minister: outgoing PM tenders resignation to Monarch, successor asked to

form new government
Cabinet:
Advice ought to be UNANIMOUS
Handles major policy issues and arguments between departments
Standing committees: current matters of importance
Secretaries of State: may act in the name of the Crown
First Secretary: designated minister for transport, consumer protection, employment,
medicine, EU agricultural policy

Department of State:
Implement policies
Advise Ministers
Made up of civil servants

Prime Minister has statutory authority to manage the civil service – Royal Prerogative
removed.

Parliamentary Accountability
Ministers must answer to Parliament
Must protect civil servants who carried out explicit orders
Ministers may delegate statutory duties, but must accept accountability for the
conduct of those to whom delegate.

EU Law – Constitutional Points

Direct Effect:
Regulations: directly applicable in all Member States and binding
Decisions: binding on parties to whom address
Directives: generally not direct effect, but binding as to results be achieved, may not
of themselves impose obligations on individuals – BUT individuals may be able to
enforce if Directive grants rights to individuals OR where Directive incorrectly
transposed into law and individuals suffer harm.

Judicial Review (Administrative Court)

AHJ TO DEFINE PUBLIC BODY

Grounds: illegality, irrationality, procedural impropriety

Orders: quashing, mandatory, prohibitory, declarations
Is D a public body? (do duties, powers, sanctions affect the general population?)
Is D’s actions a public law matter?
Limitation period: within 3 months of the decision.

Standing

Does Claimant have sufficient interest int eh matter? (consider legal and factual
circumstances of whole case)
Is Claimant a representative organisation? Court may consider:
Reputation
Number of members affected
Reasonable to claim on members behalf.

Miscellaneous
95 Minister limit in Commons, independence of judiciary
Parliament may imprison those in contempt of Parliament.

Exclusion of Judicial Review

Decisions “shall be final” NOT excluded

Decisions “shall not be questioned”: can still attack if decision was made under
mistake of law
Decisions “shall not be subject to appeal or review in any Court”: can still attack if
unfairness/discrimination
Time limit clauses: as partial outster of judicial review: usually ok.

Judicial Review Grounds

1. Illegality: B includes (1) ultra vires, (2) improper purpose, (3) relevant/irrelevant
considerations, (4) lack of evidence and (5) failure to exercise discretionary power
Improper purpose: if mixed purposes, look to dominant or true purpose, even if some
secondary purposes are technically ultra vires.

2. Irrationality: Wendesbury unreasonableness

Proportionality: Is there a reasonable relationship between the objective and means
of achieving it
3. Procedural impropriety: Breach of the rules of natural justice and failure to comply
with statutory procedural requirements.

Natural justice
Not to be judge in one’s own cause
Fair hearing.

Bias: pecuniary/personal;
Fair hearing: unbiased tribunal right to notice of charges, right to be heard in
response, right to legal representation MANDATORY in any court/tribunal
Right to be given reason for decision: where fairness requires
Legitimate expectations: from consistent past practices: EVEN if no legal basis to
expect certain treatment.

Some relevant Human Rights Act issues:

HRA 1988: If Convention Rights involved, must consider EC & HR opinions;
Proportionality: consider benefits of doing something vis-à-vis Convention Rights
Interpret legislation in manner compatible with Convention as far as possible
HR proceedings limitation period: 1 year
Approach to damages award in HRA cases should be no less liberal than the
approach taken by the ECHR
Injunctions: Balance Art 8: Right to privacy) with Art 10 (free speech).

Public Order

Public Order Act 1986

Public processions: 6 days written notice to police
May impose conditions to:
Prevent serious public disorder
Serious criminal damage
Serious disruption of life to the community
May ban processions up to 3 months  obtain banning order from Home Secretary

NOTE: Art 11: right of peaceful association/assembly.

Public Order Act 1986 Offences

Riot
12 or more persons
use/threaten unlawful violence for common purpose
common purpose can be inferred from conduct
in private or public place
would cause reasonable person to fear for safety (who need not actually be present)

Violent Disorder
Same as riot but only 3 or more persons needed and no common purpose need
Affray: may be single person, must be more than words alone
(Also: no trespassor assemblies: greater than 20 people, no reaves, whether
trespassory or not: equal to or greater than 20 people).
Fear or provocation of violence
Threatening, abusive, insulting words or behaviour or
Distribute/display to another person any writing, sign, or other visible representation
which is threatening, abusive or insulting
May occur in private or public place but NOT in a dwelling
With intent to cause person to believe immediate unlawful violence will be used
against them or promote the unlawful use of violence.

(5) Intentional harassment, alarm or distress

Same as above, but causes another person harassment, alarm or distress (may also
be racially/religiously aggravated offence.

(6) Harassment, alarm or distress

Same as (5) but no intent needed
Guilty if:
Uses threatening, abusive or insulting words or behaviour or disorderly behaviour; or
Displays any writing, sign etc within the hearing or sight of a person likely to be
caused harassment, alarm or distress nearby.

Defences

No reason to believe within hearing/sight likely to be distressed OR was within

dwelling or duct reasonable (officers unable to be victims of this – should have
“tougher skin”).
CONTRACT

Acceptance

Mirror image rule:

A response to the offer/ made with the knowledge of the offer?
Was there a prescribed method of acceptance in the offer?
Counter-offer analysis: were the parties broadly in agreement?
Therefore may have valid agreement even with different terms and conditions.
If it does not state the prescribed method ofacceptance must be followed: who was
the method intended to benefit?  they may waive
Sience: generally not valid method of acceptance
Postal rule: acceptance when the letter is posted (dispatch rule) ONLY APPLIES TO
ACCEPTANCE – NOT REVOCATION
(may be excluded by clause or by context e.g. all prior communication by
phone/email)
Business hours: reasonable expectation that message will be read regardless of
whether party actually there or not.

Electronic Contracting
Website = invitation to treat
Order = the offer – communicated when received by machine
Email: unclear whether electronic contracting or postal acceptance should apply
Tenders: unless state otherwise free to accept/reject any tender, even if it is the
lowest.
Firm offers: agreement to keep offer open until certain time. Can revoke at any time
unless consideration was given  revocation may be accomplished when offeree
finds out about revocation from third party.
Unilateral agreements: implied waiver of need to communicate acceptance
Revocation after performance begins: is there an implied promise not to revoke:
Revocation must be given the same notoriety as the unilateral offer.

Agreement Issues

Certainty of Terms
No price: accepted understanding/menaing of the words in commercial practice?
Goods/service = reasonable price
Severability: is the clause meaningless
Void due to uncertainty  quantum merits may apply
Exceptional cases: quantum merit to recover expsnes in ancitpation of contract:
Reasonable to expect compensation;
Services of a kind normally given free of charge
Real benefit to D
Was D at fault
Unilateral mistake: other party must know of mistake
Mutual mistake: collateral matter  not fundamental mistake and agreement stands,
though voidable if fraudulent misrepresentation.
Fundamental mistake = void and many rescind
Mistaken identity: A  B (rogue)  C, void for fundamental mistake as to identity, A
may reover from C (must be written contract – in face-to-face deal, presumed A
intended to deal with B therefore contract only voidable and C would be protected as
BFPV without notice if applicable).
Rectification: Contract written down erroneously and correct to reflect common
continuing intentions of the parties.
Non-est factum: mistake as to nature of document signed  very narrow
Transaction fundamentally different in nature; and
Was not signed due to carelessness.

Enforceability
Must generally have agreement on essential terms for enforceability
Gratuitous vs bargained for promise
Gratuitous enforceable if contained in DEED, even with no consideration.
Duress: threats against business interests/financial well-being?
Illegitimate threat/pressure
Amounting to coercion of will that vitiates consent
Possible blackmail: lawful threat to achieve unlawful goal.
Causation: economic duress must be the reason the party agreed. Victim must avoid
affirmation protest at the time or shortly thereafter.

Consideration

Alteration promises: to pay more or accept less

Must be supported by consideration
Factual benefit to promisor? E.g. pay more so deadline met and avoid penalties to
third party? YES
Assess factual benefit SUBJECTIVELY
Avoiding late penalties;
Avoid hassle of finding new subcontractor;
Paying smaller sum in advance
Acceptance of chattel in lieu of payment in full satisfaction of debt (no consideration
 estoppel may still apply).

Third Party Rights/Privity

Third party beneficiary and no consideration:

Does contract expressly permit third party to enforce>
Benefit conferred on third party and parties intended that third party should be able to
enforce on proper construction of the contract? (also known as one of the purposes
of the bargain was to benefit the third party)
Third party must be: expressly identified by name, as a member of a class, or as
answering a particular description

Depriving Third Party of Benefit

Will need third party consent if:

Third party communicated assent to promisor;
Promisor aware that third party relied on term;
Promisor could reasonably expect third party reliance and third party actually relied
(also consider, A and B contract – was B merely third party’s agent?)
Collateral contract between third party and promisor:
E.g. P (paint_  Contractor  buy paint  D
D says paint quality suitable – may be collateral (P  D contract)

Unfair Terms in Consumer Contract Regulations 1989

Coverage: Terms not individually negotiated
Terms NOT:
Just “exemption clauses”
Commercial contracts;
“core terms” which are subject to matters of contract.
Consumer: natural person acting for purposes outside his trade
Unfair: contrary to good faith and significant imbalance in parties rights to consumers,
detriment EVEN if term individually negotiated
Regulations still apply if overall it appears to be standard from contract.

Other strict contractual liability

Applies if: (Standard Form Contracts)
Clause being used against a consumer
Contract between 2 business
On the other’s standard form contract
No material alterations to the standard form
If applied clause must be REASONABLE
NOTE: there is considerable overlap between the UCTA and UTCCR.

Terms
Parol evidence: may exclude via entire agreement clause

Sale of Goods Implied Terms

Seller has title
Goods match description
Satisfactory quality
Fitness for particular purpose
Samples are representative of quality

3 and (4) apply to sales in the course of business

Particular purpose: where B expressly/impliedly made it known to S what the
intended purpose of use was.

Exemption Clauses/Unfair Terms

Exemption clause NOT in signed contractual document?
Was reasonable notice given of the clause in a contractual document?
Exemption of negligence liability
Need express language or words wide enough to exempt negligence liability with no
ambiguity.

Breach

Innominate terms: breachable in numerous ways e.gg. seaworthiness

TEST: was P deprived of substantially the whole benefit of the contract.

Sale of Goods – minor breaches

P is a consumer  right to terminate
P NOT a consumer  no right to terminate
Treat as breach of warranty and award damages.

Anticipatory Repudiation
Terminate immediately and claim damages (NOTE: duty to mitigate loss)
Affirm and urge party to perform (or treat as offer to rescind and discharge).

Unfair Contract Terms Act 1997

Applies to exemption clauses covering business liability
COVERAGE:
No liability unless condition complied with (e.g. time limit
Exclusion of any right or remedy
Exclusion of rules of evidence/procedure
Negligence liability: CANNOT exclude death/personal injury
All other negligence: terms must be reasonable.

Remedies
Non-damages:
Debt claim: breach is non-payment
Restitution: prevent unjust enrichment
Recovery of money paid (total failure of consideration (McRae v Cth Disposals)
Quantum meruit
Specific performance
(NOTE: REMEMBER - damages inadequate, not personal service contract, no
prolonged court supervision).

Damages
Lost profit damages: supply greater than damage (e.g. car dealer/investory)
Cost of cure: consider Ruxley Electornics (swimming pool defect case)
Wasted expenditure damages: McRae

LIMITATIONS:
Remoteness (broken millshaft (Hadley v Baxendale)
Mitigation
Contributory Negligence
Damages for disappointment/distress – purpose of contract pleasure/stress relief?
Liquidated damages (VALID)
Penalty clause (INVALID)
Was the amount a genuine pre-estimate of the loss?
Penalty rule NOT normally applicable to forfeiture of a reasonable deposit.

Frustration

Frustrating event must NOT be caused by one of the parties

Impossibility
Illegality
Purpose of both parties not longer possible and contract becomes essentially
different
Subject matter of contract destroyed
Personal service contract and performer dies/becomes ill?
Further performance illegal?
Common purpose defeated by subsequent event e.g. King’s coronation case?

Law Reform (Frustrated Contracts ) Act 1943

Money paid or payable before the event is recoverable or not payable
Payees incurred expenses may be recoverable in court’s discretion
Performance prior to frustration recoverable if it conferred valuable benefit.

Tort of Deceit
Recover all direct loss regardless of foreseeability/remoteness (even loss of profit)

Innocent misrepresentation
Damages in lieu of rescission – at court discretion
Balance loss from upholding contract and loss rescission would cause to representor

Negligent misrepreation
Common law: normal grounds of negligence – need “Special relationship
Statutory damages
Is there a contract? AND
Misrepresented cannot prove reasonable and actual belief of truthfulness (Note: do
not need special relationship
Therefore recover ALL DIRECT LOSS regardless of foreseeability/remoteness.

Undue Influence
Equity rendering agreement voidable
Presumed undue influence: relationship of trust and confidence
Undue influence by third party: e.g. H induces wife to take loan: lender only affected
if:
H shown to be L’s Agent
L had actual constructive notice; (e.g. when W acts as surety for H’s debts)
MUST take reasonable steps to explain transaction- may rely on confirmation form
solicitor that advice was given.
BUSINESS LAW

There are five (5) types:

Sole trader
Simple partnership\LLP;
Private limited company; and
Public limited company.

Sole Trader

No formal registration/winding up
Carry on business as individual
Personal ownership of assets
Unlimited liability;
Business name must comply with Companies Act 2006.

Simple Partnership
Joint and several liability
Fiduciary duties
May be limited/unlimited (limited requires at least one fully liable partner)
No formalities of registration/winding up.

Simple/dormant partner: invests only;

Salaried partner: no rights obligations – essentially an employee
Partners by estoppel: “apparent authority” enough to bind partnership.

Duties in simple partnership: disclosure, duty to account, duty to not compete

Rights in simple partnership:
Share profit equally;
Indemnification for losses in ordinary course of business;
Right to manage organisation;
Right to inspect accounts; and
Right to veto new partners.

Limited Liability Partnership

Must register - -> Registrar of Companies
Must maintain register of members
Enjoys perpetual succession
Must file audited accounts and tax returns (with Registrar) – criminal offence to not
file annual returns
In incorporation document: identify designated members responsible for these things.

Additional points: LLP does not pay corporation tax (profits shared among members
and taxed as income tax).

Termination of LLP (i.e. only members lefts)

Apply to register: application may be made by majority members, or all members if
only 2 members in LLP;
Must notify all members/creditors/employees – any party may object in writing; and
Registrar may choose to terminate without application: reporting failures, no
members left.

Companies
Most resolutions can be passed as written, but resolutions to remove directors must
be at a general meeting
Private limited company: no more than 50 persons;
Public limited company: must have 2+ directors (at least one human;
Minimum share capital of £50,000;
Must have a company secretary: with either 3 years prior experience, a lawyer or
member of some professional body.
Not written resolutions for public companies.

Limited company benefits

Limited liability and perpetual succession
Corporate veil protection: unless fraud or company establish to cicrcumvent
contractual agreements;
Shareholder approval needed to dismiss directors.

Three (3) methods of Establishment

Royal Charter
Statute
Registration under Companies Act

Registration Procedure
Memorandum: NOT part of constitution publicly available, identify features of
company
Articles of Association: company constitution (if none provided – default rules apply)
Articles may be altered by special resolution (must be in good faith and for benefit of
company as a whole (Allen v Gold Reefs).
Certificate of incorporation: when issued, company is established
Re-registration: private  public by special resolution: all members must approve –
5% share capital/5% of members if not limited by shares or more than 50 members
can apply to terminate by special resolution in 28 days (as never can have the power
to remove the directors by ordinary resolution).

Directors
Executive directors: day-to-day
Non-executive direcgtors: attend meetings and participate on Board
Appointment: must be older than 16 years old and may appoint by ordinary resolution
Registration: maintain register and have available for inspection names, addresses,
dates of birth
Director pay: if provided for in the Constitution or approved by Members.

Directors Duties
Act within powers
Good faith
Independent judgement
Reasonable care, skill and diligence
No conflict rule
No accepting third party benefits
Disclose interest in proposed transactions.

Transaction when member approval is required

Director employment contract of more than 2 years
Loans to director
Substantial property transactions
Award of sum of £200 or more on loss of office.
Removal of directors
Death
Resignation
Company dissolved
Retirement
Disqualification
Shareholders vote (if director is shareholder, may vote against own removal;
21 days notice of meeting, 28 day special notice to secretary

NOTE: Shareholders have the right to take directors to call meeting with 5%
shareholding.

Director’s Disqualification

Indictable offence: promotion/management of a company;

Director in persistent default in reporting to Registrar
Company in liquidation and breach of duties/fraud
Director led company to insolvency and unfit to act in management capacity;
Director is an undischarged bankrupt.

Unfair Prejudice (Companies Act)

Affairs being conducted in manner likely to prejudice member interests
Secretary of State ha standing for these claims as well as Court has general
discretion to offer any relief deemed necessary
E.g. negligent management, directors pay selves excess salary in doing so
reduce/remove member dividends
Issuing shares to directors on more favourable terms, Shareholders had
understanding with directors to be put in management role and then directors refuse.
HUMAN RIGHTS LAW

ECHR
Not bound by precedent open to “dynamc interpretation”
May give autonomous meaning to legal terms which conflict with nation law
interpretations
ECHR “Proportionality”: Individual vs Community rights
Are state actions:
Effective (legitimate link between approach and objective)
Least intrusive possible method
Does it deprive the very essence of the right
Is it balanced

ECHR “margin of appreciation”

Amount of discretion given to States for qualified rights
Importance of right/interests?
Is there EU consensus

Some qualifications to ECHR applicability

Art 15: may derogate from Convention obligations in war or public emergency: no
more than strictly required.

Human Rights Act 1998

Can only bring caess against a public authority
Indirectly affects cases between private parties
Public authority includes hybrid public authority carrying out traditionally
governmental functions.

HRA “proportionality”
Objective sufficiently important to justify limiting right?
Measures to meet objective are connected to it
Measures to meet objective are no more than necessary

HRA “judicial deference”

Court may recognise tha public body is in best position to make decision 9has come
up often in terrorism context)
Ministers in charge of Bills must make Statement of compatibility with Human Rights
Act before Second Reading.

Right to Life/Freedom from Ill Treatment

Absolute right – but death penalty allowed
Burden of proof on Applicant unless dies in State Custody
Taking of life must be absolutely necessary:
In defence of person from unlawful violence
To effect lawful arrest/prevent esceape
Lawful actions to quell riot or insurrection.

Free from ill-treatment (Art 3)

(torture, inhuman/degrading treatment)
NO exception for war/emergency unlike Art 2.
Inhuman: deliberately cause severe mental/physical suffering
Degrading: gross humiliation, or drive one to act against will/conscience ( may
include severe discrimination)
CONSIDERATIONS
Duration/scope of treatement/punishment
Physical/mental health effects on victim
Sex, age, State of health of victim
Art 3 positive obligations: removal of person – real risk of torture etc in destination
country – e.g. CIA rendition violated Art 3 sending HIV patient where could not obtain
treatment.
Art 3 and UK law: exclude evidence gathered by torture.

Art 6: Right to Fair Trial

Civil and criminal cases
Independent/impartial tribunal/court
Within reasonable time
In public and fair
Note:
Social security claims – YES
Taxation, immigration, political matters, voting and certain public employment – NO.
Pubic hearing limitations: e.g. national security or best interests of the child
Right to adversarial trial: examination of witnesses
Presumption of innocence: free legal counsel when required by interests of justice,
free assistance of interpreter if needed.

Art 5: Right to Liberty

If person deprived of liberty, MUST be:

In accofdance with procedure prescribed by law
Not be arbitrary (no link between detention reason given)
Measures should be based on domestic law and not be vague, unclear or
unpredictable
Right to compensation when Art 5 violated.

NOTE: must PROMPTLY give reasons for detention, PROMPTLY bring before
judicial officer.

Permitted grounds for detention:

Reasonable suspicion that offence committed;
Disease, unsound mind: detain only as long as disorder lasts – periodic review
required
Immigration, deportation, extradition: no longer than is necessary.

NOTE: Permitted for police to contain peaceful demonstration to prevent violent

protestors from hijacking it. What did police believe reasonable?

Art 8: Right to Family/Private Life

A qualified right and can only be directly raised against public authorities
Often arises in context requiring the balancing of press vs privacy
4 protected interests:
family life;
private life;
home;
correspondence.
“correspondence” includes correspondence from those held in State Custody
Interference with Art 8: apply proportionality and margin of appreciation
Areas of Art 8 protection: family proceedings, removal from the State,
searches/surveillance (wide margin to crime/national security), personal information
e.g. medical records, sexual/reproductive rights (it has been found “proportionate” to
restrict some IVF rights) right to healthy environment.
Disproportionate: blanket disclosure if minor past convictions for certain employment
checks.

Art 9: Freedom of Religion

“though, conscience and belief”

Includes non-religious beliefs (e.g. pacifism, veganism)
TEST for covered beliefs:
Did belief attain cogency, seriousness, cohesion and importance
Restrictions on manifesting belief: MUST be prescribed law – clear, precise,
predictable legal basis and legitimate aim, necessary in a democratic society.

Italy: crucifixes allowed in classrooms – wide margin of appreciation but must be

indoctrination.

Right to manifest belief

Practice “intimately linked” to belief
Practice “necessary in order to manifest the belief
(distribution of leaflets to remove troops from North Ireland: NOT manifestation – not
necessarily linked to pacifism) (wearing head scarf to class manifestation of belief)
Compulsory slaughter of sacred cow with tuberculosis: legitimate aim.

Art 11: Freedom of Assembly and Association

Assembly, association, unions, political/religious/social/cultural purposes,
public/private meetings
Does NOT include the right to strike
Positive obligations: prevent violence from counter protests
Notification/authorisation requirements: state my need to give justification
Interference: same as Arts 8,9, 10
Banning police officer from joining political party: proportionate owing to concerns
regarding a politicized police force.

Art 10: Freedom of Expression

(Interference (as with Arts 8 and 9)
In accordance with law;
Legitimate aim (national security, health, etc)
Necessary in a democratic society
Political expression: high value therefore narrow margin of appreciation
Artistic expression: trend toward more narrow margin of appreciation
Hate speech: no Art 10 protection: undermines the values of the ECHR
Incitement to hatred: within Art 10 but State may be able to justify restricitons
Human Rights Act s12: Court has duty to have due regard to freedom of expression
Public Order: shouting “baby killers” at soldiers returning from Afghanistan was
“beyond legitimate protest”

Freedom of Assembly in the UK

Is there a “breach of the peace”
Must be imminent breach and matter of last resort (to restrict rights)
Public Order Act 1986: riot, violent disorder, affray, fear or provocation of violence,
harassment therefore establish offence then establish whether it is a proportionate
response to a legitimate aim.

Art 14: Freedom from discrimination

May NOT be argued as a free standing right – must attach to other – right must
attach to other right

Issue covered by Convention right

Distinction between applicant and similarly situated persons
On specified ground/characteristic/other status
Justifiable  objective and reasonable legitimate aim
Apply proportionality and margin of appreciation
Administrative convenience is NOT a legitimate aim
Less restrictive measures available?
Wide margin of appreciation regarding sexual orientation and adoption rights
Best interests of child standard and lack of EU consensus
Failure to investigate shooting of 2 Roma men shot in the back for “resisting arrest” –
violated Art 2 and 14 (procedural obligation to investigate)
EQUITY AND TRUSTS

Implied Trusts

A Resulting trusts (contribution to purchase price)

Failure to validly create a trust = automatic resulting trust

Property voluntarily transferred to another or purchased wholly or partly in the name
of another

Constructive trusts: based on the presumed intention of the parties often

accompanied by unconscionability
Breach of fiduciary duty
Unauthorised profit
Receipt of property belonging to another
Immoral receipt (e.g. by killing)
Family home

Statutory trusts: trust of land, owners hold as joint tenants on trust for themselves, or
when person dies intestate.

Charitable Trusts: Enforceable by Attorney-General

EXEMPT from rule against perpetuities and certainty of objects

Valid charitable trust requirements

Recognised charitable purpose
For the “public benefit”
Exclusively charitable purpose
Some statutory purposes from Charities Act: human rights, arts, animal welfare,
amateur sports, promote police/military etc

Three Certainties
Intnetion
Subjecct matter
Objects (beneficiaries)

Intention
Intention may be inferred from donors conduct
No certain intention: done takes absolutely as gift

Subject matter
Tangible property: have the goods in the warehouse been separated from the rest?
Intangible property: e.e. 50 shares in pool of 950 no need to separate 50 shares to
obtain trust protection
Additional subject matter: Donee to choose 1 of 4 houses, dies before election:
trustee had no authority to choose  trust failed.

Certainty of objects
Fixed trust: must be able to create full list of beneficiaries
Discretionary trust Re Gulbekian: “can it be said with certainty that nay given
individual is or is not a member of the class?”
Trustees have fiduciairy obligation to survey the range of possible beneficiaries
Administrative unworkability: e.e. A trust for 2.5 million people in count of West
Yorkshire.

Formalities
Inter vivos trust in property other than land:
Three certainties
Equity will not perfect an imperfect gift
Equity will not assist a volunteer

Inter vivos trust in land

In writing (not necessarily a deed);
Signed by settlor – NOT settlors agent.
Applies to freehold, leasehold, equitable interests.
Oral proof of trust is permissible if result otherwise would make the state an
instrument of fraud.

Charitable Trusts: Enforeceable by Attorney-General

EXEMPT from rule against perpetuities and certainty of objects
Valid charitable trusts requirements:
Recognised charitable purpose
For the “public benefit”
Exclusively charitable purpose

Some statutory purposes from Charities Act: human right, arts, animal welfare,
amateur sports, promote police/military etc.

Pemsel heads of charity

Relief of poverty
Advancement of education
Advancement of religion
Other purposes beneficial to the community.

NOT public benefit

Membership based on personal nexus with donor
Membership based on contract – e.g. employment contract

Religion: must involve “worship”

Irrelevant that only small amount of followers
(Impossible, impractical, illegal or inefficient to enforce

General charitable intention

Rest of will charitable in nature
Charity never existed
Gift to unincorporated associated

Precise/specific gift terms: NOT charitable intention

(Some preference for private class allowed: e.g. 75% to private class and 25%
minimum to UK born)

Non-charitable purpose trusts

Upkeep of monuments/graves
Upkeep of individual animals
The saying of private masses
Purpose trust MUST comply with the rule against perpetuities
Remoteness of vesting: trustee may “wait and see: if property will vest within 125
years (80 years prior to 2010)
Inalienability: can’t last longer than life in being and 21 years
Capriciousness: set aside trusts with capricious purpose e.g. money left to develop
40 letter alphabet not a valid purpose

Constructive Trusts
Breach of fiduciary duty  constructive trust
Constructive trust of family home: unconscionable that legal owner deny another
person some claim to ownership
Non-financial contribution can create interests based on the common intention of the
parties (intention must be to share the home not merely share lives)
Express common intention and detrimental reliance = constructive trust
Must be truly detrimental; not “mere demonstrations of love and affection”
Inferred common intention: contributions referable to the acquisition of the property –
look to “whole course of dealing” do NOT “ confine to acts of direct contributions.

Trustee
Trustee may be anyone with capacity to hold property
Adults of sound mind and corporations
Trusts of land always need 2 trustees

Resulting Trusts
Critical element: intention to benefit another person, NOT intention to create a trust
Automatic resulting trusts occur in spite of parties intentions:
Uncertainty of objects
Failure of a contingency
Failure to dispose of whole beneficial interest
Surplus of funds after purpose trust has completed its purpose
Money given for state purpose and purpose can no loner be carried out

Presumed resulting trust (rebuttable presumption)

Voluntary conveyance of property to another
Purchase of property in the name of another
Voluntary conveyance: trust not implied merely because property not expressed to
be for the use/benefit of grantee (LPA 1925 s60(3))

Secret Trusts

Valid Secret Trust

Intention to create 3 certainies
Communication of that intention
Acceptance of the trust obligation (communication may be oral/in writing) by agent at
any time prior to testator’s death

Fully Secret Trust

No evidence in will of its existence: appears to be outright gift – all secret trustees
must generally be told about T’s intentions

If fully secret trust fails:

Secret trustee had no knowledge: takes property for himselfsecret trustee knew of
trust but not the purpose: Legatee will hold property on resulting trust back to the
estate
Half Secret Trust
Will contain reference to trust; beneficiaries and terms remain secret
Hal-secret trust communication must take place at or before time the will is executed
If half-secret trust fails: Trustee CANNOT claim the property as his own
Implication of creating secret trusts outside the will: B who dies before T may still
benefit from the trust.

Retirement of Trustees
Court may direct removal: hostility/dishonesty may be enough
Retirement expressly allowed in instrument
Intended to replace the retiring trustee
At least 2 remaining trustees
Remaining trustees or person with power to appoint consents by deed to the
retirement
All beneficiaries collectively absolutely entitled to property may direct trustee to retire
in writing BUT:
Reasonable arrangements must have been made to protect any rights of trustee in
connection with trust:
At least 2 remaining trustees
Trustee will be replaced or remaining trustees consent by deed; and
Retiring trustee has made deed declaring retirement.

Remuneration of Trustees
If no express remuneration clause, trustee still entitled if:
Sui juris beneficiaries collectively consent;
Trustees in professional capacity: reasonable remuneration under s 29 TA
Expenses properly incurredin course of trustees duties
Inherent jurisdiction of the Court to remunerate trustees (exceptional circumstances)

Trustees Duties

Fiduciary Duties
Unauthorised profits
Bribes: AG HK v Reid
Self-dealing rule: voidable by beneficiaries;
Fair dealing rule: Trustee purchase NOT voidable if trustee acts honestly, full
disclosure and pays fair price
No compete rule

Duty of Investment
With trusts to benefit life tenants and remain ?:
Duty to invest property to generate income for life tenant
Duty to act even-handedly: balance the interests of different beneficiaries

Statutory Duty of Care

Trustee Act 200
Consider:
Any special knowledge trustee holds self out as having
Any special knowledge reasonable to expect of person acting in course of business
or profession

Duty to provide information

Trustee not required to disclose reasons for how discretion used

Court may intervene with evidence of bad faith/dishonesty;
Must make accounts available to beneficiaries for inspection
Entitlement to access “all trust documents” EXCEPT those which might reveal how
discretion was exercised.

Duty to distribute
Cannot locate beneficiaries: advertise, take out missing beneficiary insurance, pay
money into court etc

Power of maintenance and advancement

Apply all or part of income for “maintenance, education, benefit” as is reasonable in
the circumstance to the minor
Minors best interests are paramount; incidental benefit to parent or guardian is ok.
Advancement: appoint part of beneficiaries, entitlement to the capital of the trust
before it vests absolutely – “any use of money which will improve the material
position of the beneficiary”.
No more than HALF the beneficiary’s share in capital can be advanced.

Power of delegation
Special requirements for delegating “asset management funcitions:
Agreement in or evidenced by writing
Prepare written policy statement with guidance on how agent is to carry out role
Agreement contains terms ensuring agent ocmplies with policy statement

Trustees must have regard to “standard investment criteria”

Suitability
Diversification
When necessary, obtain “proper advice” from someone “reasonably believed to be
qualified”

Trustees must keep agent’s activities under review.

Trustes liable for agent’s default if failed to exercise duty of care in appointment.

Scope of Investment Powers

General power of investment: anything the absolute owner of the assets could do
Power to acquire freehold/leasehold land in the UK for any reason
Trustee must put aside person views e.g. “ethical investments”, unless expressly
imposed by trust or reflects strongly held view by Beneficiary.

Remedies for Breach of Trust

Personal actions against Trsutee

Failure to carry out duty
Act outside powers
Acts without required standard of care
No vicarious liability for trustee’s acts

Breaches may include:

Leaving one trustee in sole control of trust property;
Inaction while other trustees breach their duty

Defences
Exemption clauses
Consent and acquiescence
Judicial discretion: breaching trustee acted honestly/in good faith
Time barred: 6 years unless fraud

Trsutee vs Trustee
May seek contribution
Indemnification
Fraud by co-trustee
Breach for Trustee’s own benefit
Solicitor has exercised controlling influence on lay trustee
Fair, just and reasonable
Personal actions against third parties: consider bona fide purchaser for value,
change of position defence

Equitable personal claims

Intentional intermeddling with trust: trustee do some tort
Knowing receipt
Knowing assistance\intentions intermeddling = person who is NOT TRUSTEE acts
as if they are trustee and becomes liable for subsequent breaches as if they were
actual trustees.

Knowing Receipt
Receiving trust property (wrongly) – what of knowledge required:
Actual
Wilfully shutting one’s eyes to the obvious
Wilfully and recklessly failing to make enquires
Knowledge of circumstances, which would indicate the facts to an honest and
reasonable man
Knowledge of circumstances, which would put an honest and reasonable man on
enquiry.

Specific Performance
Is the obligation unique
Considerations:
Requires constant court supervision?  do not grant
Contract for personal services?  do not grant

Defences to specific performance:

Hardship: Patel v Ali
Mistake and misrepresentation
Conduct of claimant: “clean hands”
Delay/laches: unreasonable delya may defat equity.

Knowing assistance
Liability arises where party in breach is dishonest
Objective dishonesty: ordinary reasonable person
Subjective dishonesty: D and himself realised that by tose standards he was
dishonest

Tracing: Common Law

Property received under void contract or received without recipient giing valuable
consideration
Claimant must have legal title (trustees (YES) beneficiaries (No))
Property MUST be unmixed

Tracing: Equity
Also known as the action in Re Diplock
(in which charities wrongly received large payment under a will)
Need fidicuiary relationship (e.g. thief takes another property  constructive trust 
fiduciairy relationship) AND

An equitable interst
May trace into mixed funds
Presumption of honesty: misappropriating trustee presumed to have spent own
money first.

Equitable Remedies
 Specific Performance
 Injunctions
 Rescission
 Rectification
 Account

Injunctions

Prohibitive/mandatory/Quia timet

Interim prohibitive injunction:

Serious question to be tried
Damages inadequate
Balance of convenience requires grant of injunction

Searches orders NEED:

Strong prima facie case
Extremely serious potential harm
Clear evidence that information/items are in D’s possession;
Real possibility of destruction without order; and
Full and frank disclosure of all material matters of claimant.

Interim Mandatory Injunction

Need “high degree of assurance” that the grant of an injunction would be found to be
the correct decision when the case finally goes to court.

Free orders: when “just and convenient”

Super-injunctions: for very short periods where the level of secrecy necessary to
ensure the whole point of thee order is not destroyed.

Rectification
Amend document to reflect true intention of parties

Account
Fiduciary/agent to repay unauthorised profit/bribes/profits from breach of confidence.
See A-G v Blake [2000]: breach of contract dmaages insufficient here)

Rescission
Restore both to original position.
Barred when:
Innocent third party affect;
Delay;
Affirmation; and
Impossibility.
EU LAW

European Commission

Independent members (not answerable to own government)

Appointed for renewable 5 year terms
Parliament may remove whole commission via censure vote
Court of Justice can direct Commissioner to retire:
Failure to perform duties;
Serious misconduct
Power to bring actions against States/individuals breaching EU law.

Court of Justice
Preliminary rulings on EU law interpretation (Art 267)
Review legality of acts of institutions
NOT bound by own decisions
One judge from each Member State
8 Advocates – General Judicial panels: specialised court
hear certain classes of action at first instance.

Court of Justice: General Court

Jurisdiction:
Most direct actions (annulment actions, actions for failure to act, damages actions
May give preliminary rulings
May hear appeals from judicial panels

Sources of Law

Treaties: Treaty of Lisbon, TEU, TFEU and protocols annexed to Treaties

Secondary legislation: Regulation, Directives, Decisions

Regulations:
Detailed secondary legislation:
General application;
Binding in entirety
Directly applicable in all Member States.

Directives: binding only to result to be achieved.

Direct Effect
The eforceabiility by individuals of EU laws in Court
To be directly effective, Treaty article must be sufficiently clear, prescise and
unconditional
Vertical direct effect: Individual vs State;
Horizontal effect: Individual vs Individual

Directives: Only vertically enforceable against a public body

Body made responsible by State for providing public services
Under state control
With special powers for that purpose beyond those normally applicable between
individuals

Member State Liability

Will give rise to damages

\Failure to implement Directive resulting in loss:
result prescribed in Directive entails the grant of right to individuals
Possible to identify these rights from Directive
Causal link between Member States failure and loss suffered by individual
Adoption by Member State of Legislation which infringes Treaty:
Rule of law infringed intended to confer rights on individuals
Breach is sufficiently serious (Member State has “manifestly and gravely disregarded
the limits on its discretion?”)
Direct causal link between breach and damage

Procedure/remedies in National Courts

Principle of national procedural autonomy
Effectiveness: National procedural rules must not render the exercise of EU law
rights impossible or excessively difficult
Equivalence: National procedural rules and remedies in EU law actions must be no
less favourable than those applying to similar domestic law actions.

Direct Actions in the Court of Justice

Art 258-260, 263-265 TFEU
Art 258: Actions by Commission
Art 259: Actions by Member States
Art 260: Member States must comply with Court judgement (Commission may
recommend lump sum or penalty payment – no upper limit to permissible penalty.

Is Member State in compliance at date of judgement? Court may still impose sum if
breach was:
Serious;
Persisted for considerable time.

Direction to Refer
Is decision on the question necessary to enable the Court to give judgement?
If decision depends on the validity of an EU measure Court must refer.
National courts determine the relevance of the questions referred.
Previous rulings do NOT preclude a referral.

Preliminary Rulings (Art 267 TFEU)

The interpretation of Treaties
The validity andn interpretation of acts (of the institutions, bodies, officers or agencies
of the union)
Parties to action have NO right to a referral
Rulings are a mechanision for national courts, which are bound by ruling son validity
NOT within Art 267 jurisdiction
Application of EU law
Interpretation of national law
Compatibility of national law with EU law

Circumstances in which referral will be refused

No genuine dispute between the Parties
Hypothetical/irrelevant questions
National court fails to provide sufficient information

Obligation to Refer\Question of interpretation/validity before State Court

Against whose decisions there is no judicial remedy under national law (e.g. EU law
decision not subject to appeal – need not necessarily be highest court)
Do not need to refer if EU law interpretation so obvious that there cannot be
reasonable doubt as to tis meaning, or if EU law question not relevant.

Actions by Commission (Art 250)

Failure to fulfil obligation: Commission delivers reasoned opinion after State has
opportunity to submit observations
Reasoned opinion: describes grounds for Complaint and time limit for State to act
Time limit expires  commence proceedings in Court of Justice

Possible defences:
Force majeure: e.g failed to implement Directive because data centre was bombed –
may be a good defence
Political/economic difficulty: unlikely to be a good defence
Reciprocity: e.g. other Member States also non-compliant unlikely to be good
defence.

Actions by Member States (Art 259)

Less common than Art 258 cases:
Bring compliant to Commission
Commission request submissions from both Member States
Commission delivers reasoned opinion and seeks settlement (or may take over
proceedings)

Actions for failure to Act (Art 265

The duty must be sufficiently well defined (complements Art 263: illegal action and
illegal inaction)

Plea of Illegality (Art 277)

Any party may challenge acts of general application indirectly
No 2 month time limit
Identical grounds as with Art 263
Result: declaration of inapplicability

Actions for Annulment (Art 263)

Obtain judicial review of EU institution acts
Direct actions in Court of Justice
Actions by individuals: heard at first instance in General Court
Grounds on which challenge may be brought:
Lack of competence (ultra vires)
Infringement of essential procedural requirement (discrimination, proportionality,
fundamental human rights)
Infringement of Treaties/rules regarding their application
Misuse of powers
Members States, EU Parliament, Council, Commission have automatic right of
standing in annulment cases
Individuals and Companies have limited standing: “Non-privileged applicants”.

Standing for non-privileged applicants:

Act addressed to applicant
Act addressed to third party which is of direct and individual concnern to the applicant
A regulatory act which is of direct concern to the applicant and which does not entail
implementing measures
May be able to gain standing if Member of “fixed and ascertainable class” when the
measure was passed

Semi-privileged applicants for the purpose of Standing: Court of Auditors, ECB,

Committee of the Regions WHEN their interests are affected
2 month limitation period for art 263
Direct concern: unbroken chain of causation between act and damage
Individual concern: NARROW: “decision affects them by reason of certain attributions
which are peculiar to them or by reason of circumstance in which they are
differentiated from all other persons.

Free Movement of Goods

Art 30: No tariff barriers, customs duties or charges having equivalent effect to
customs duties
Customs duty:
A pecuniary charge
Imposed because goods cross a frontier
Outside Art 30:
Health inspection service rendered for importer: the service must be:
Of direct benefit to the importer/exporter;
Charge must be proportionate to the value of service.
Art 100: Prohibition of discriminatory taxation
No taxation which discriminates between imported and domestic goods\INCLUDES:
taxes on imported products giving indirect protection to other products: e..g French
tax on high powered cars, which it did not produce.
If products have degree of substitution, tax should be the same. E.g. beer vs wine
Discrimination based on collection method: e.g. domestic producers taxed only when
goods marked vs imported goods taxed at time of import.
Indirect discrimination sometimes permissible if objectively justified: e.g. higher tax
on synthetic alcohol to encourage production of fermented alcohol is okk.

Non-tariff Barriers to Trade

Prohibition of quantitative restrictions: quotas and bans
MEQR: measures having equivalent effect to quantitative restrictions:
Health/safety requirements;
Packaging requirements;
Marketing requirements, etc.

Indistinctly applicable MEQR: Appear not to discriminate: Apply equally to

domestic/imported goods
E.g.: requirement that certain retail goods be marked with country of origin: MEQR:
enabled consumers to discriminate.

Obligation to ensure free movement of goods

Principle of mutual recognition:

Goods lawfully produced and marked in one State
Should be introduced to other States without restriction
If rule of reason applies, set aside this principle9ONLY applies to indistinctly
applicable MEQRS).
Permissible rule of reason restrictions (UNLESS EU rules exist governing the interest
concerned:
ONLY indistinct Provisions recognised as necessary to satisfy mandatory
requirements:
Effectiveness of fiscal supervision
Protection of public health
Fairness of commercial transactions
Defence of the consumer
Bottle return systems have been upheld: protection of the environment or essential
EU objective
Sunday trading rules: upheld in UK
Proportionality: only NECESSARY restriction permitted: often causes these
restrictions to fail.

Selling arrangements
NOT concnerced with rules relating to goods themselves e.g. packaging, content,
labelling
Art 34: included: opening hour restrictions, restrictions on the kinds of outlets from
which certain goods may be sold, advertising restrictions

Selling arrangements which will escape Art 34:

Apply to all affected traders in national territory
Affect in the same manner, in law and fact, the marketing fo domestic products and
imported products;
Art 36: Derogation: Exhaustive list of justifications: need proportionality and principle
of mututal recognition applies
Available grounds NOT for indistinctly applicable measures (ONLY distinctly
applicable (narrowly construed)
Public morality
Public policy
Public security (e.g. ensure refining capacity by requiring % of oil to be produced
domestically
Protect health/life of humans/animals/plants
Protect national treasures with artistic historic/archaeological value
Protect industrial/commercial property
NOTE: Art 36 only applies in absence of EU rules.

Free Movement of Persons

Grounds on which free movement and residence rights may be limited:
Public policy;
Public security; an d
Public health

EU Citizenship right: EU citizens and family members may move to and reside in
another Member State up to 3 months (must hold valid identity card or passport)
Economically inactive citizens: rights apply provided that individuals do not become
unreasonable burden on host State’s social security system.

Economically active citizen:

Two heads of free movement rights:
Art 45: as workers
Art 49: self-employed
Right to remain in host state formore than three months for EU citizens and family
memebrs
Right to enter and remain in host state to seek work
“
Family members: spouse/partner, kids younger than 21, dependent direct relatives in
the ascending line
Dependency: a factual situation in which EU citizen is actually providing support.
Persons with independent means, students and their families:
Right to remain in host state for more than 3 months
Must have sufficient means and health insurance (Member State NOT permitted to
set fixed amount for what is sufficient”
May NOT discriminate with tuition fees
Member States MAY require “certain degree of integration into the State’s society” for
benefits
Court of Justice permitted 5 year Dutch residency requirement (for purposes of
guaranteeing integration.

Marriages of convenience: member States may refuse, terminate or withdraw rights,

provided such action is proportionate.
Permanent residency rights: Live legally and continuously in the host State for 5
years (6 month temporary absence allowed): EU citizen and family aquire right to
permanent residency.

Death/Departure of EU Citizen
(Assuming permanent residency not already acquired)
Death: Non-EU citizen family may stay, provided that tthey have lived with the EU
citizen for more than 1 year, SUBJECT to them being works/self-employed, or having
sufficient resources/health insurance
Departure: Non-EU Citizen family MUST leave, except children currently in education
and their guardian irrespective of nationality
Divorce: Non-EU Citizen family may remain if marriage/partnership has lasted at
least 3 years, with 1 year in the host state OR may remain if non-EU citizen
spouse/partner has custody of EU citizen children OR may remain if particularly
difficult circumstances (e.g. domestic violence AND subject to them being
workers/self-employed, or having sufficient resources/health insurance.

Right to take up employment (for all family members)

Workers children have some acess to apprenticeship, educational, vocational training
as national of the host state

Permitted to require reporting arrival to host state authorities within reasonable time.
Sanctions may be imposed, provided they are proportionate and non-discrimanatory.

Free Movement of Workers

(Primary free movement rights enjoyed both as EU citizens and as workers)

As with citizens movement rights, subject to limitation:
Public policy
Public security
Public health
“worker” undefined: interpreted broadly by Court of Justice
NOT disqualified as worker merely due toincome falling below minimum subsistence
level.
TEST: Is the work more than purely marginal and ancillary
Even if no pay, may still be worker if engaged in effective economic activity

Jobseekers: no right to remain indefinitely but may remain if:

Genuine efforts to find work;
Real chance of being employed.
NOT entitled to welfare benefits in host state, BUT may be able to claim “jobsekkers
benefit” – Non-discrimination includes right to financial benefits
(NOTE: may still be denied if justified by proportionate andnon-discrimatnatory
objective factors)

Eligibility for employment

Language requirements PERMITTED, provided they are necessary by reason of the
nature of the post to be filled
Requirement to held particular language qualification would be unlawful, unless it
could be justified by factors unrelated to nationality and was proportionate
Certain public service employment may be restricted based on nationality: e.g.
teachers, private sector security guards.

Retaining worker status

(after losing job/becoming self-employed)
temporary unemployment due to accident/illness
involuntary unemployment after working more than 1 year or on expiry of a fixed term
contract
if registered as a jobseeker
if embarking on vocational training

Free movement for the self-employed (Art 49)

Freedom of establishment: direct effect
Right to set up/manage business or practice profession on a permanent basis
Right of entry/residence subject to limitation (i.e. public policy, public security, public
health).
Professional qualifications: if not already recognised as equivalent
Equivalent with national requirements therefore accept.
If not ,evidence of the necessary knowledge and experience may be required.

Restrictions on the freedom to provide services

“Services” normally provided for remuneration
Restriction on non-resident Dutch lawyer being able to present cases in Dutch courts
upheld
TEST:
Equally applicable to host state nationals
Objectively justified in public interest
Proportionate

COMPETITION LAW
Direct effect – may apply in national proceedings
Art 101: Business arrangements
Art 102: Abuse of dominance (lose cooperation between Commission and national
authorities required)
No power of forcible entry, but may obtain serach warrants
Penalties: up to 10% of previous years worldwide turnover and daily paenalties up to
5% of daily turnover for continuing infringement.
Undertakings: natural and legal persons engage in commercial activity for the
provision of goods and services.

Abuse of dominant position: Art 102

Only where “may effect trade between Member States”
Dominance: position of economic strength enabling undertaking to prevent effective
competition on relevant market
Power to behave appreciable independent of competitors, customers and
consumers.
Relevant market: product, geographic and temporal
Product market: undertakings own product and any substitutable product
Geographic market: consider transporation costs, how far customers willing to travel
Indicators of dominance: market share, market structure, length of time market share
held, financial/tech resources ,vertical integration, IP rights.

Abuse of dominant position

Unfair prices
Discriminatory pricing
Discounting: quantity/loyalty/target discounts: unobjectionable provided they apply
without discrimination to all purchasers and are justified;
Tie-ins/bundling;
Predatory pricing;
Refusal to supply (essential facilities doctrine)
Import/export bans, dividing up markets.

Art 101
“agreements”: range from formal binding contracts to concerted practices.
Concerted practice: practical cooperation substituted for the risks of competition
Parallel behaviour may be strong evidence of a concerted practice.

Ambit of coverage: can it be said that he agreement or concerted practice may

affect trades between Mmeber States?
If Yes: covered by Art 101: effect on trade includes ANY effect even an increase in
trade.
“Is the object or effect of the arrangement the prevention, restriction or distortion of
competition?”
If does not needs to be actual effect.
Rule of reason: balance pro and anti-competitive effects of restrictive agreements.
Art 101(3): does the agreement contribute to promoting economic/technical progress
or to improving the production/distribution of goods, while allowing consumers a fair
share of the benefit? AND which does not impose restrictions NOT indispensible to
the attainment of those objectives OR afford undertakings the possibility of
eliminating competition in respect of a substantial period of products in question?

Commission Notice:
NOT capable of affecting trade between Member States if parties aggregate market
share on any relevant EU market does not exceed 5% AND
Horizontal agreements:
Aggregate turnover isles than 40M euros;
Vertical agreements: aggregate turnover of supplier is less than 40M euros.

De minimis otherwise:
Agreements between competitors: (normally horizontal)
Equal to or less than 10% share of relevant market
Agreements between non-competitors: (normally vertical)
Less than or equal to 15% share in market of EACH of the parties.

Individual exemptions: may be granted by national authority/Commission e.g. where

potential efficiency gains; economies of scale, technical cooperation, joint research.
Proportionality: restrictions must not go beyond what is necessary to achieve the
beneficial objectives of the agreement.
Block exemptions: tehnology transfer agreements, R&D agreements, specialisation
agreements, exclusive distribution, distribution franchising, selective distribution
agreements (the LAST THREE above subject to market share threshold of equal to
or less than 30% of relevant market.
Block exemptions do not apply to vertical agreements containing hardcore
restrictions.

Abuse of dominant position: Art 102

ONLY where “may affect trade between Member States”

Dominance: position of economic strength enabling undertaking to prevent effective
completion on relevant market
Power to behave appreciably independent of competitors, customers and consumers
Relevant market: product, geographic and temporal
Product market: undertakings own product and any substitutable product
Geographic market: consider transportation costs, how far customers wiling to travel
Indicators of dominance: market share, market structure, length of time market, share
held, financial/tech resources, vertical integration, IP rights.

Abuse of dominant position:

Unfair prices
Discriminatory pricing
Discounting: quantity/loyalty/target discounts; unobjectionable provided they apploy
without discrimination to all purchaser are justified;
Tie-ins/bundling;
Predatory pricing;
Refusal to supply (and essential facilities doctrine);
Import/export bans, diving up markets)
MISCELLANEOUS TOPICS

Blackmail
View to gain for self/cause loss to another (like fraud crimes)
Unwarranted demand with menaces
NOT unwarranted if:
Belief that thee are reasonable grounds for making the demand
Belief that use of menaces is proper means of reinforcing the demand

Menaces have included:

Threats to publish attacks on company calculated to lower share value
Threat to reveal that victim has not honoured a debt
Threat to place victim on trade association “stop list”
Threat to refrain from giving evidence in an action

Capacity (Contracts/enforceability)
Minors can be bound for “necessaries” – otherwise may rescind, UNLESS:
Lapse of time
Affirmation
Third party rights
Counter-resitiution possible
Mental incapacity/complete intoxication.

In principle bound when other person could not/did not know they lacked capacity
If did/could know, only bound for necessaries.