speech of Lord Upjohn in Vandervell v IRC [1967] 2 AC 291

Please read the following extract from the speech of Lord Upjohn in Vandervell v IRC [1967] 2 AC 291 and then answer the questions which follow. Note that this case is also vitally important in the area of resulting trusts. That aspect of the decision, however, has been omitted. You should also note that Lord Wilberforce decided the section 53(1)(c) point on a different ground altogether from the rest of his brethen. That reasoning is not pursued here.
(Brief facts: Mr Vandervell was the beneficiary of a bare trust of shares. He orally directed his trustee to transfer the shares to the Royal College of Surgeons, which it did, his intention being that they receive the shares outright. The question for the House of Lords was whether this oral direction was a purported disposition of Vandervell's interest under the trust and therefore void for want of writing, with the result that the Royal College of Surgeons only held the shares on bare trust for Vandervell, and not outright as he had intended. The Court of Appeal had found that section 53(1)(c) had no application to the facts of the case. The case then went to the House of Lords.)
Lord Upjohn
The question is whether notwithstanding the plainly expressed intention of the appellant by himself or his agents the absence of writing prevented any equitable or beneficial interest in the shares passing to the college so that contrary to his wishes and understanding they remained bare trustees for him. This depends entirely upon the true construction of section 53(1)(c) of the Law of Property Act, 1925, which the Crown maintain makes writing necessary to pass the beneficial interest. This section was generally thought to re-enact section 9 of the Statute of Frauds and that section had never been applied to a trust of an equitable interest of pure personalty. Before the cases of Grey v Inland Revenue Commissioners and Oughtred v Inland Revenue Commissioners, both in your Lordships' House, this argument would have been quite untenable.
It was shown in those cases that the Law of Property Act, 1925, was not re-enacting section 9 but that it had been amended by the Law of Property Act, 1924. The relevant words of section 53 are: '...a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same. ....' Those words were applied in Grey and Oughtred to cases where the legal estate remained outstanding in a trustee and the beneficial owner was dealing and dealing only with the equitable estate. That is understandable; the object of the section, as was the object of the old Statute of Frauds, is to prevent hidden oral transactions in equitable interests in fraud of those truly entitled, and making it difficult, if not impossible, for the trustees to ascertain who are in truth his beneficiaries. But when the beneficial owner owns the whole beneficial estate and is in a position to give directions to his bare trustee with regard to the legal as well as the equitable estate there can be no possible ground for invoking the section where the beneficial owner wants to deal with the legal estate as well as the equitable estate.
I cannot agree with Diplock LJ that prima facie a transfer of the legal estate carries with it the absolute beneficial interest in the property transferred; this plainly is not so, eg, the transfer may be on a change of trustee; it is a matter of intention in each case. But if the intention of the beneficial owner in directing the trustee to transfer the legal estate to X is that X should be the beneficial owner I can see no reason for any further document or further words in the document assigning the legal estate also expressly transferring the beneficial interest; the greater includes the less. X may be wise to secure some evidence that the beneficial owner intended him to take the beneficial interest in case his beneficial title is challenged at a later date but it certainly cannot, in my opinion, be a statutory requirement that to effect its passing there must be some writing under section 53(1)(c).
Counsel for the Crown admitted that where the legal and beneficial estate was vested in the legal
owner and he desired to transfer the whole legal and beneficial estate to another he did not have to do more than transfer the legal estate and he did not have to comply with section 53(1)(c); and I can see no relevant difference between that case and this.
As I have said, that section is, in my opinion, directed to cases where dealings with the equitable estate are divorced from the legal estate and I do not think any of their Lordships in Grey and Oughtred had in mind the case before your Lordships. To hold the contrary would make assignments unnecessarily complicated; if there had to be assignments in express terms of both legal and equitable interests that would make the section more productive of injustice than the supposed evils it was intended to prevent.
I think the Court of Appeal reached a correct conclusion on this point ....

Viscount Simonds and Lord Radcliffe in Grey v IRC [1960] AC 1

Viscount Simonds and Lord Radcliffe in Grey v IRC [1960] AC 1
Please read the following extracts from the speeches of Viscount Simonds and Lord Radcliffe in Grey v IRC [1960] AC 1 and then answer the questions which follow.
(Brief facts: Mr Hunter was the sole beneficiary of a bare trust of shares. His trustees were also trustees of six other trusts in favour of Hunter's grandchildren. Hunter gave oral directions to his trustees to hold the shares on the trusts of the grandchildren's settlement. The question for the House of Lords was whether Hunter's oral direction to his trustees was a purported disposition of an equitable interest under a trust and therefore void because not in writing.)
Viscount Simonds
These facts give rise to the plain question whether the oral directions given by Mr Hunter ... were effective or were, having regard to section 53(1)(c) of the Law of Property Act, 1925, wholly ineffective. ... [W]ere the ... oral directions given by Mr Hunter dispositions by him of the equitable interest in the shares held by the appellants as nominees for him?
If the word 'disposition' is given its natural meaning, it cannot, I think, be denied that a direction given by Mr Hunter, whereby the beneficial interest in the shares theretofore vested in him became vested in another or others, is a disposition. But it is contended by the appellants that the word 'disposition' is to be given a narrower meaning and (so far as relates to inter vivos transactions) be read as if it were synonymous with 'grants and assignments' and that, given this meaning, it does not cover such a direction as was given in this case. As I am clearly of the opinion, which I understand to be shared by your Lordships, that there is no justification for giving the word 'disposition' a narrower meaning than it ordinarily bears, it will be unnecessary to discuss the interesting problem that would otherwise arise.
My Lords, the argument for narrowing the meaning of 'disposition' was that the Law of Property Act, 1925, was a consolidating Act, that among the Acts which it consolidated was the Statute of Frauds 1677, section 9, that that section enacted that 'all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect,' and that therefore the word 'disposition' in section 53(1)(c) of the Act of 1925 is to be given the same meaning as would be given to 'grants and assignments' in section 9 of the Statute of Frauds.
My Lords, the principles applicable to the construction of a consolidating Act are not in doubt. The presumption is that such an Act is not intended to alter the law, but this prima facie view must yield to plain words to the contrary .... If the Law of Property Act, 1925, was a typical consolidating Act, the question would be whether the alteration from 'grants and assignments' to 'disposition' changed the law by enlarging the area of void transactions - a question that might not be easy to answer. But the Act of 1925 cannot be thus regarded. It was, it is true, a consolidating Act, but it was, with a number of other Acts, the culmination of a body of legislation by which a large part of the law of real and personal estate was profoundly altered. ... [The Act of 1925 must therefore] be construed so as to give each word the meaning proper to it in its context. So construed the word 'disposition' in section 53(1)(c) has the natural meaning which I attributed to it at the opening of this opinion. ...
The appeal must, in my opinion, be dismissed with costs.
Lord Radcliffe
My Lords, if there is nothing more in this appeal than the short question whether the oral direction that Mr Hunter gave to his trustees ... amounted in any ordinary sense of the words to a 'disposition of an equitable interest or trust subsisting at the time of the disposition,' I do not feel
any doubt as to my answer. I think that it did. Whether we describe what happened in technical or in more general terms the full equitable interest in the 18,000 shares concerned, which at that time was his, was (subject to any statutory invalidity) diverted by his direction from his ownership into the beneficial ownership of the various equitable owners, present and future, entitled under his six existing settlements.
But that is not the question which has led to difference of opinion in the courts below. Where opinions have differed is on the point whether his direction was a 'disposition' within the meaning of section 53(1)(c) of the Law of Property Act, 1925, the argument for giving it a more restricted meaning in that context being that section 53 is to be construed as no more than a consolidation of three sections of the Statute of Frauds, sections 3, 7 and 9. So treated, 'disposition,' it is said, is merely the equivalent of the former words of section 9, 'grants and assignments,' except that testamentary disposition has to be covered as well, and a direction to a trustee by the equitable owner of the property prescribing new trusts upon which it is to be held is a declaration of trust but not a grant or assignment. The argument, concludes, therefore, that neither before January 1, 1926, nor since did such a direction require to be in writing signed by the disponor or his agent in order to be effective.
In my opinion, it is a very nice question whether a parol declaration of trust of this kind was or was not within the mischief of section 9 of the Statute of Frauds. The point has never, I believe, been decided and perhaps it never will be. Certainly it was long established as law that while a declaration of trust respecting land or any interest therein required writing to be effective, a declaration of trust respecting personalty did not. Moreover, there is warrant for saying that a direction to his trustee by the equitable owner of trust property prescribing new trusts of that property was a declaration of trust. But it does not necessarily follow from that that such a direction, if the effect of it was to determine completely or pro tanto the subsisting equitable interest of the maker of the direction, was not also a grant or assignment for the purposes of section 9 and therefore required writing for its validity. Something had to happen to that equitable interest in order to displace it in favour of the new interests created by the direction: and it would be at any rate logical to treat the direction as being an assignment of the subsisting interest to the new beneficiary or beneficiaries or, in other cases, a release or surrender of it to the trustee.
I do not think, however, that that question has to be answered for the purposes of this appeal. It can only be relevant if section 53(1)(c) of the Law of Property Act, 1925, is treated as a true consolidation of the three sections of the Statute of Frauds concerned and as governed, therefore, by the general principle, with which I am entirely in agreement, that a consolidating Act is not to be read as effecting changes in the existing law unless the words it employs are too clear in their effect to admit of any other construction. ... [I]n my opinion, it is impossible to regard section 53(1)(c) of the Law of Property Act, 1925, as a consolidating enactment in this sense. ...
The Law of Property Act, 1925, itself was, no doubt, strictly a consolidating statute. But what it consolidated was not merely the Law of Property Act, 1922, a statute which had itself effected massive changes in the law relating to real property and conveyancing, but also the later Law of Property (Amendment) Act, 1924. The Statute of Frauds sections had not been touched by the Act of 1922; but they were in effect repealed and re-enacted in altered form by the operation of section 3 of the Act of 1924 and the provisions of Schedule III to that Act. The Schedule is divided into two Parts, the contents of Part I being described simply as 'Amendments' and the contents of Part II being headed by the description 'Provisions facilitating consolidation. ...' I suppose that the authors of the Act of 1924 understood what was the significance of the division of Schedule III into these two Parts under their different headings. I cannot say that I do. Each Part, when examined, is seen to contain numerous amendments of various previous statutes relating to real property and conveyancing, apart from the Act of 1922 itself, and in this sort of matter I cannot see how one can satisfactorily measure the degrees of substance involved in the various changes. The point is that they were avowedly changes. It is paragraph 15 of Part II of Schedule III which deals with the Statute of Frauds; and though the introductory words do seem to suggest that the sections concerned are only being re-enacted in different words, it is apparent,
when they are read through, that this is not so and that alterations of more or less moment are in fact being made. This new wording is what is carried into section 53 of the Act of 1925.
For these reasons I think that there is no direct link between section 53(1)(c) of the Act of 1925 and section 9 of the Statute of Frauds. The link was broken by the changes introduced by the amending Act of 1924, and it was those changes, not the original statute, that section 53 must be taken as consolidating. If so, it is inadmissible to allow the construction of the word 'disposition' in the new Act to be limited or controlled by any meaning attributed to the words 'grant' or 'assignment' in section 9 of the old Act.

Trust Law - Computer Assessment 1

Which of the following statements provides the most accurate summary of the effect of section 53(1)(c) of the Law of Property Act 1925?
Choose one answer. A. Assignments of a beneficiary's interest under a trust can only be evidenced by writing which is signed by the beneficiary or his/her agent
B. Dispositions of a beneficiary's interest under a trust can only be made in writing which is signed by the beneficiary
C. Dispositions of a beneficiary's interest under a trust can only be evidenced in writing which is signed by the beneficiary
D. Dispositions of a beneficiary's interest under a trust can only be made in writing which is signed by the beneficiary or his agent
E. Don't know
Feedback
That's correct.
This answer is correct, firstly, because the provision is not evidentiary but dispositive, secondly, because, unlike its predecessor, section 9 of the Statute of Frauds 1677, it is concerned with 'dispositions' and not only 'assignments', and thirdly, there is provision in the sub-section for signature by an agent.

Correct
Marks for this submission: 1/1.Question 2
Marks: 1 As a matter of logic, what does section 53(1)(c) pressuppose?
Choose one answer. A. That the object of any trust has an interest which he/she can transmit to others
B. That the object of some trusts has an interest which he/she can transmit to others
C. That the object of a trust can create a trust of his/her interest under the trust
D. That the object of a trust can contract to assign his/her interest to another
E. Don't know
Feedback
That's correct.
In that section 53(1)(c) LPA 1925 lays down formalities for the disposition of an object's interest under a trust, it pressupposes that the interest is transmissible. But it says nothing about the circumstances in which a transmissible interest will arise, and for that reason it is wrong to say that the object of any trust has an interest which he/she can transmit to others; as we saw in Chapter 4, the objects of a discretionary trust have no assignable interest. It is also wrong to say that the object of a trust can create a trust of his/her interest under the trust, because though it is true that the object, at least of a fixed trust, can create a trust of their interest under the trust, a sub-trust, this is not presupposed by section 53(1)(c). For exactly the same reason it is wrong to say that the object of a trust can contract to assign his/her interest to another.

Correct
Marks for this submission: 1/1.Question 3
Marks: 1 To what type of trusts does section 53(1)(c) apply?
Choose one answer. A. Only trusts of land
B. Only trusts of shares
C. All trusts
D. Possibly all trusts
E. Don't know
Feedback
That's correct.
The law in this area is uncertain. Section 53(1)(c)'s predecessor, section 9 of the Statute of Frauds 1677, probably only applied to trusts of land. And though on its face, section 53(1)(c) would appear not to be so restricted, especially when compared to sub-sections (a) and (b), both of which specifically restrict themselves to land, the provision has to be read in light of the definition section in the Law of Property Act 1925, section 205(1)(x) of which defines 'equitable interests' as equitable interests 'in or over land'. Section 205 is, however, prefaced by the statement that it applies 'unless the context otherwise requires', and some textbooks argue that to make sense of section 53 as a whole requires us to disapply section 205(1)(x) in this case: see, eg, Oakley, pp 98-99. Note that the point was not taken in any of the leading cases on section 53(1)(c), Grey, Oughtred, and Vandervell, and, despite what certain textbooks may tell you, the issue cannot therefore be said to be settled either way.

Correct
Marks for this submission: 1/1.Question 4
Marks: 1 Which of the following statements provides the most accurate summary of the effect of section 53(1)(b) of the Law of Property Act 1925?
Choose one answer. A. Allegations of a declaration of trust of land can only be proved by the production of written evidence signed by the party capable of declaring the trust
B. Declarations of trust must be in writing which is signed by the party capable of declaring the trust
C. Allegations of a declaration of trust can only be proved by written evidence signed by the party capable of declaring the trust or by his agent
D. Declarations of trusts of land must be in writing signed by the party capable of declaring the trust or by his agent
E. Don't know
Feedback
That's correct.
This answer is correct because, differently to section 53(1)(c), section 53(1)(b) is evidential, not dispositive, which means that the two answers that require the declaration to be 'in writing' are wrong. The other answer mentioning an agent for the party capable of declaring the trust is wrong both because it allows the possibility of an agent signing the relevant writing and because it is not confined to declarations of trust respecting land.

Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers to an extract. Please make sure you read the relevant extract before answering the questions below.
Please read the following extracts from the speeches of Viscount Simonds and Lord Radcliffe in Grey v IRC [1960] AC 1, then answer the five questions (Q5 - Q9) that follow. Question 5
Marks: 1 What were the arguments of Mr Hunter?
Choose one answer. A. That section 53(1)(c) had no application because he was the beneficiary of a trust of shares, not land
B. That the word 'disposition' had to be given its natural meaning, which was 'grants or assignments'
C. That the Law of Property Act 1925 was a consolidating statute and the word 'disposition' had therefore to be given a meaning equivalent to 'grants and assignments' under the Statute of Frauds 1677, and that a direction such as his was not a 'grant or assignment' but the creation of a new trust
D. That his direction amounted to a declaration of a sub-trust, which was not caught by the statutory provision
E. Don't know
Feedback
That's correct.
The argument that section 53(1)(c) had no application because he was the beneficiary of a trust of shares, not land, though plausible, was not one put to their lordships by Mr Hunter. The argument that the word 'disposition' had to be given its natural meaning, which was 'grants or assignments', was not argued by Mr Hunter. The argument that his direction amounted to a declaration of a sub-trust, which was not caught by the statutory provision, does not fit the facts of the case; although Mr Hunter did argue that a new trust had been created, he did not say that it was a sub-trust.

Correct
Marks for this submission: 1/1.Question 6
Marks: 1 How did their lordships deal with the argument about consolidation?
Choose one answer. A. The Law of Property Act 1925 consolidated the relevant provisions of the Statute of Frauds 1677, with the result that it should be construed as not having changed the law. The word 'disposition' could not therefore be read as equivalent to 'grants and assignments'
B. The Law of Property Act 1925 was not a consolidating statute, with the result that there was no connection between section 9 of the Statute of Frauds 1677 and section 53(1)(c) of the 1925 Act
C. The Law of Property Act 1925 consolidated the relevant provisions of the Statute of Frauds 1677, with the result that it should be construed as not having changed the law. The word 'disposition' must therefore be read as equivalent to 'grants and assignments'
D. The Law of Property Act 1925 had not consolidated the relevant provisions of the Statute of Frauds 1677, with the result that the word 'disposition' had to be read as equivalent to a 'declaration of trust'
E. Don't know
Feedback
That's correct.
If the 1925 Act had indeed not changed the law, then the word 'disposition' should have been read as equivalent to 'grants and assignments', which invalidates one of the answers. Moreover, their lordships found that the 1925 Act was not a consolidating statute: consequently the two answers that assert that it was a consolidating statute are incorrect. Indeed, the answer that claims that such consolidation meant that the word 'disposition' must be read as equivalent to 'grants and assignments' was the losing argument of Mr Hunter. Although their lordships did indeed find that the 1925 Act was not a consolidating statute, they did not hold that the word 'disposition' had to be read as equivalent to a 'declaration of trust'. If you are in any doubt as to what is meant by a 'consolidating statute', you should revisit your work on Common Law Reasoning and Institutions, where it will have been explained.

Correct
Marks for this submission: 1/1.Question 7
Marks: 1 What did Lord Radcliffe say to the argument that an oral direction was not a 'grant or assignment'?
Choose one answer. A. Even if the Law of Property Act 1925 could be seen as a consolidating statute, there was an argument for saying that what Hunter did amounted to a 'grant or assignment' of his interest under the trust
B. Since the Law of Property Act 1925 was not a consolidating statute, the question whether Hunter's oral direction might have amounted to a 'grant or assignment' need not be addressed
C. Even if the Law of Property Act 1925 was to be seen as a consolidating statute, what Hunter did amounted to a 'grant or assignment' of his interest under the trust
D. What Hunter did amounted to the creation of a new trust, and as such did not amount to a transfer of his interest under that trust to those entitled under the six settlements
E. Don't know
Feedback
That's correct.
To say that "since the Law of Property Act 1925 was not a consolidating statute, the question whether Hunter's oral direction might have amounted to a 'grant or assignment' need not be addressed" is wrong because, unlike Viscount Simonds, Lord Radcliffe was at least prepared to address the issue. To say that "even if the Law of Property Act 1925 was to be seen as a consolidating statute, what Hunter did amounted to a 'grant or assignment' of his interest under the trust" is wrong, however, because although Lord Radcliffe did think that there was an argument that Hunter's contentions would have in any case failed even if the consolidation argument were accepted, he was not unequivocal on this point. Lastly, to say that "what Hunter did amounted to the creation of a new trust, and as such did not amount to a transfer of his interest under that trust to those entitled under the six settlements" is wrong because this is precisely the argument which Hunter raised and which Lord Radcliffe, albeit tentatively, rejected.

Correct
Marks for this submission: 1/1.Question 8
Marks: 1 How did their lordships define the word 'disposition'?
Choose one answer. A. The word 'disposition' was to be equated with 'grants and assignments'
B. The word 'disposition' meant any act by which the beneficiary was deprived of his interest under the trust
C. The word 'disposition' was to be equated with 'declaration'
D. The word 'disposition' was to be given its 'natural meaning'
E. Don't know
Feedback
That's correct.
To say it was to be equated with 'grants and assignments' is wrong because this was the argument of Mr Hunter rejected by their lordships. The answer that it meant any act by which the beneficiary was deprived of his interest under the trust was not the answer given by their lordships, and would in any case have been beyond the possible scope of the sub-section. To say it was to be equated with 'declaration' is wrong because it would render section 53(1)(b) of the Law of Property Act 1925 redundant. And though it is correct to say that 'disposition' was to be given its 'natural meaning', their lordships unfortunately did not venture to define the word 'dispostion' any further than this.

Correct
Marks for this submission: 1/1.Question 9
Marks: 1 In what way was Mr Hunter's oral direction a 'disposition' of his interest under the trust?
Choose one answer. A. Mr Hunter's oral direction was a 'disposition' because his beneficial ownership of the shares was now vested in his grandchildren
B. Mr Hunter's oral direction was a 'disposition' because the trust under which they had originally been held had come to an end
C. Mr Hunter's oral direction was a 'disposition' because he had assigned his interest in the shares to his grandchildren
D. Mr Hunter's oral direction was a 'disposition' because he no longer held the beneficial interest
E. Don't know
Feedback
That's correct.
The answer that "it was a 'disposition' because the trust under which they had originally been held had come to an end" is wrong because, although it was true that Mr Hunter's interest under the trust had come to an end, this was not the ground on which the House of Lords found that he had purported to make a disposition. And it could not in any case be the answer, because trusts can come to an end for reasons outside the control of the beneficiary, and section 53(1)(c) clearly comprehends some act on the part of such a person. The answer that it "was a 'disposition' because he had assigned his interest in the shares to his grandchildren" is wrong because both Viscount Simonds and Lord Radcliffe, though more tentatively, proceed on the assumption that Hunter's oral direction was not an assignment of anything. Lastly, the answer that it "was a 'disposition' because he no longer held the beneficial interest" is wrong because, although it is correct to say that Hunter no longer held the beneficial interest, both Viscount Simonds and Lord Radcliffe placed emphasis on the fact that the beneficial interest was now in the grandchildren.

Correct
Marks for this submission: 1/1.Please read the following extract from the speech of Lord Upjohn in Vandervell v IRC [1967] 2 AC 291 and then answer the three questions (Q10 - Q12) that follow. Question 10
Marks: 1 What does Lord Upjohn mean when he says that the Inland Revenue's arguments with regard to section 53(1)(c) would have been 'untenable' before the cases of Grey and Oughtred?
Choose one answer. A. It was previously thought that section 53(1)(c) only applied to trusts other than trusts of land
B. It was previously thought that section 53(1)(c) only applied to trusts of land
C. It was previously thought that section 53(1)(c) only applied to trusts of shares
D. It was previously thought that section 53(1)(c) only applied to testamentary dispositions
E. Don't know
Feedback
That's correct.

Answer (b) is correct because, as we saw, it seems to have been accepted on all sides in Grey (and also in Oughtred) that section 53(1)(c), differently to section 9 of the Statute of Frauds 1677, was not confined to land. What Lord Upjohn does not say, however, and this point is vital, is that the question was not raised in either of those two cases. It is therefore still open to a litigant to argue that section 53(1)(c) is confined to land, though subject, of course, to the argument mentioned in the feedback to question 3 (above). Answer (a) is wrong because it gets the history the wrong way around, answer (c) is wrong because it inverts the assumption in both Grey and Oughtred, and answer (d) is wrong because section 53(1)(c), though it includes them, is clearly not confined to testamentary dispositions.

Correct
Marks for this submission: 1/1.Question 11
Marks: 1 How does Lord Upjohn distinguish the decision of the House of Lords in Grey?
Choose one answer. A. That was a case where the trustee had vested in him both the legal and equitable estate
B. That was a case where the trustee was dealing with the equitable estate
C. That was a case where the dealings by the beneficiary did not amount to a disposition of his equitable interest
D. That was a case where the legal estate remained outstanding in a trustee and the beneficiary was dealing only with the equitable estate
E. Don't know
Feedback
That's correct.

In the present case, Vandervell had instructed his trustee to convey the shares to the Royal College of Surgeons. In that sense, the facts were different to Grey, for there the shares themselves were not to move from one person to another, but merely to be held for a different person than before. Answer (a) is clearly wrong, because if it was true that the trustee had vested in him both the legal and equitable estates, there would have been no trust at all. Answer (b) is also incorrect, because the trustee is not able to deal with an interest he does not have. And answer (c) is incorrect because it is the exact opposite of what was decided in Grey.

Correct
Marks for this submission: 1/1.Question 12
Marks: 1 What, for Lord Upjohn, was the purpose of section 53(1)(c)?
Choose one answer. A. To enable the Inland Revenue to collect tax
B. To keep manufacturers of paper in business
C. To enable companies to know to whom they should be paying dividends
D. To prevent hidden oral transactions in equitable interests in fraud of those truly entitled, and making it difficult, if not impossible, for the trustees to ascertain who were their beneficiaries
E. Don't know
Feedback
That's correct.

Answer (a) is wrong, although it is an answer commonly given by examinees. It is simply a coincidence that tax is sometimes leviable on written instruments, on the one hand, and that section 53(1)(c) requires a written instrument for certain types of transaction, on the other. Answer (b) is simply facetious; and answer (c) cannot be right because the provision is not limited to shares and in any case the dividends will be payable to the trustee, who has the chose in action consisting of the shares, not the beneficiary.

Correct
Marks for this submission: 1/1.Application
Please read the following examination question and then answer the two questions which follow:

Consider the following factual scenario:
Ben, the beneficiary of a bare trust of a title to a painting, orally directs Tom, his trustee, to give the title to Amelia, it being Ben's intention that Amelia receive it as a gift. Tom hands her the painting. Ben later dies intestate, and Fred, his next of kin, asserts that Amelia holds the title to the painting for him on a bare trust and demands that she convey it to him under the rule in Saunders v Vautier.
Question 13
Marks: 1 What argument will Fred make in relation to section 53(1)(c) of the Law of Property Act 1925 in support of his claim?
Choose one answer. A. That Ben's failure to comply with the sub-section means that the trustee did not manage to convey to Amelia Ben's interest under the trust
B. That Ben's failure to comply with the sub-section means that nothing passed from the trustee to Amelia
C. That Ben's failure to comply with the sub-section means that Ben's interest under the trust was still in him on his death
D. That Ben's failure to comply with the sub-section means that Ben's interest in the trust was destroyed on the transfer of title to Amelia
E. Don't know
Feedback
That's correct.

The only argument which has the remotest possibility of working for Fred is argument (c). Argument (a) is a non-starter, because the trustee did not have Ben's interest to transfer. Argument (b) is also a non-starter, for section 53(1)(c) only governs the beneficiary's dealings with his own interest, not the dealings of others with theirs. And argument (d), if true, would contradict Fred's claim altogether.

Correct
Marks for this submission: 1/1.Question 14
Marks: 1 Vandervell is obviously against Fred. How might he argue that it could be distinguished?
Choose one answer. A. That Vandervell concerned a gift to charity, while the present case involves a gift to a private individual
B. That Vandervell was a case concerning tax, while the present case concerns intestate succession
C. That Vandervell was a case concerning realty, while the present case concerns personalty
D. That Vandervell was a case concerning shares, while the present case concerns a painting
E. Don't know
Feedback
That's correct.

Of the four arguments presented, only argument (d) is a possible argument that Fred could present in order to distinguish Vandervell. The reason it is relevant is that some argue that it is part of the ratio of Lord Upjohn's speech that the transfer of the shares from the trustees to the Royal College of Surgeons had to be done in writing. This, said Lord Upjohn, made any further writing redundant. This case, however, is different, for title to the painting passed by delivery, a physical handing over of possession of the painting, without the need for any writing. If it was indeed fundamental to Lord Upjohn's reasoning that the writing required to transfer the shares was enough for the purposes of section 53(1)(c), then Fred could argue that this case is different. As to the other arguments, (a) is wrong because nothing turned on the fact that Vandervell's intention was to make a gift to charity; (b) is wrong because, again, nothing turned on this point; and (c) is wrong because it was not land which was the subject-matter of the transfer in Vandervell. Of course, there is, as we have seen, an argument that section 53(1)(c) is confined to land, but that is not the argument presented here. Note also that there are other arguments that Fred could make, most particularly in relation to the correctness of Vandervell itself. As further reading, you might want to now, with some knowledge of these difficult cases under your belt, look at Brian Green's article on the topic in (1984) 47 MLR 385.

Correct
Marks for this submission: 1/1.

Tort Law Assessment III

No additional materials are provided for the following ten 'knowledge' questions. Please read each question carefully and select an answer from those available.
Question 1
Marks: 1 Which of the following is the correct definition of assault:-
Choose one answer. A. A person intentionally causes another to fear for his or her own safety
B. A person intentionally causes another to fear immediate and unlawful force
C. A person intentionally causes another to apprehend the application of immediate and unlawful force
D. A person intentionally causes another to reasonably apprehend the application of immediate and unlawful force on his person
E. Don't know
Feedback
The correct answer is (c).

Apprehension, not fear, is required - therefore the answers mentioning fear are incorrect. Furthermore, the apprehension of immediate and unlawful force must be reasonable: see Thomas v NUM (South Wales Area) [1986] Ch 20.

Incorrect
Marks for this submission: 0/1.Question 2
Marks: 1 Can silence ever amount to an assault?
Choose one answer. A. No
B. Yes, if the victim apprehends the possibility of imminent force
C. Yes, provided that the other party intends to upset the victim
D. Yes, if the victim is intentionally caused to apprehend the possibility of imminent force due to silent telephone calls
E. Don't know
Feedback
The correct answer is (d).

The House of Lords in R v Ireland and Burstow [1998] A.C. 147 made it clear that mere words (and, in certain circumstances, silence) could amount to an assault, but much would depend on the circumstances. Lord Steyn commented that 'The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, "Come with me or I will stab you." I would, therefore, reject the proposition that an assault can never be committed by words. That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to be to be "Yes, depending on the facts."... Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions ... As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller's potentially menacing call and calls on the victim' (at page 162). The liability is not confined to silent telephone calls and depends on the effect of the conduct on the victim (rather than on the other party's intention).

Incorrect
Marks for this submission: 0/1.Question 3
Marks: 1 Which of the following statements is not a battery?
Choose one answer. A. Giving a work colleague a kiss
B. Throwing water at a work colleague
C. Bumping into a work colleague in the corridor
D. Hitting a work colleague very hard on the back to congratulate him or her
E. Don't know
Feedback
The correct answer is (d).
A battery is the intentional and direct application of force to another person. Giving a work colleague a kiss is a battery unless, of course, there is consent. Bumping into a work colleague in the corridor may technically amount to a direct application of force to another person, but such ordinary contact will not be actionable: see Wilson v Pringle [1986] 2 All E.R. 440. Whilst bumping into a colleague may be seen as part of ordinary life, hitting her or him very hard on the back, even in congratulations, or throwing water would be seen as exceeding what is ordinarily acceptable in such circumstances.

Correct
Marks for this submission: 1/1.Question 4
Marks: 1 The tort of false imprisonment requires which of the following?
Choose one answer. A. Imprisonment
B. That the defendant falsely justifies his or her interference with the victim's freedom of movement
C. That the victim is confined by someone who is not a police officer
D. That there is a complete restriction on the victim's freedom of movement
E. Don't know
Feedback
That's correct.
The tort of false imprisonment does not require actual imprisonment, but that the defendant imposes a complete restriction on the victim's freedom of movement: see Bird v Jones (1845) 7 QB 742. It is not a requirement that the defendant is not a police officer, although a police officer will not be liable under this tort if his or her actions are expressly or impliedly authorised by law. The defendant's actions must be intentional, but need not involve any false statement of fact.

Correct
Marks for this submission: 1/1.Question 5
Marks: 1 Which of the economic torts typically involves the defendant threatening to act in an unlawful manner towards a third party with the intention to damage the economic interests of the claimant?
Choose one answer. A. Deceit
B. Intimidation
C. Intentionally inducing breach of contract
D. Conspiracy
E. Don't know
Feedback
That's correct.
The tort of intimidation typically involves an illegal action or threat by the defendant to a third party which aims to harm the economic interests of the claimant: see Rookes v Barnard [1964] A.C. 1129. It is distinct from intentionally inducing breach of contract which does not require that the defendant commits a wrongful act to persuade the third party not to enter into a contract with the claimant: see Lumley v Gye (1853) E & B 216. Conspiracy clearly involves more than one party and deceit requires a specific false statement of fact which is intended to (and which does) influence the claimant's conduct.

Correct
Marks for this submission: 1/1.Question 6
Marks: 1 What is the difference between pure purpose and unlawful means conspiracy?
Choose one answer. A. Only the former requires that the predominant purpose is to harm the claimant's interests
B. A pure purpose conspiracy will also amount to a criminal offence
C. It is a trick question - there is in reality no difference
D. Unlawful means conspiracy requires more than five conspirators
E. Don't know
Feedback
That's correct.
The two torts are distinct, although they are both forms of conspiracy requiring two or more persons to conspire: it is therefore incorrect to say either that there is no difference. The tort of conspiracy also has no relationship nowadays with criminal law despite their common origins and so it is incorrect to say that a pure purpose conspiracy will also amount to a criminal offence, although there may of course be a possibility that the conspirator's conduct amounts to a criminal offence. Only pure purpose conspiracy requires that the predominant purpose of the conspirators is to injure the claimant: see Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] A.C. 435. This is not the case for unlawful means conspiracy: see Lonrho v Fayed [1992] 1 A.C. 448.

Correct
Marks for this submission: 1/1.Question 7
Marks: 1 Defamation is a tort which protects:-
Choose one answer. A. The claimant's reputation
B. The claimant's privacy
C. The claimant's freedom of expression
D. The claimant's feelings
E. Don't know
Feedback
That's correct.
Defamation protects the claimant's reputation, not his or her feelings or privacy. On this basis, the tort will only occur when a third party discovers the allegation i.e. the words have been published.

Correct
Marks for this submission: 1/1.Question 8
Marks: 1 In which case did a judge make the following statement: 'not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided'?
Choose one answer. A. It was Millett L.J. in Berkoff v Burchill
B. It was Greene L.J. in Byrne v Deane
C. It was Slesser L.J. in Youssoupoff v MGM Pictures Ltd.
D. It was Lord Atkin in Sim v Stretch
E. Don't know
Feedback
That's correct.
In Youssoupoff, Slesser L.J. expanded the definition of defamatory to include words which cause a person to be shunned or avoided (at page 587). He continues: 'It is for that reason that persons who have been alleged to have been insane, or be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Correct
Marks for this submission: 1/1.Question 9
Marks: 1 The falsity of the defamatory statement:-

Choose one answer. A. Must be proved by the defendant
B. Must be proved by the claimant
C. Is presumed, unless the defendant proves otherwise
D. Is presumed
E. Don't know
Feedback
That's correct.
Defamatory statements are presumed to be untrue, unless the defendant proves otherwise. This can be achieved by establishing the defence of justification or truth. This gives the claimant a considerable advantage, but has not been found to be contrary to Article 10 of the European Convention on Human Rights.

Correct
Marks for this submission: 1/1.Question 10
Marks: 1 Which of the following is not a defence to the tort of defamation:-
Choose one answer. A. Qualified privilege
B. Mistake
C. Consent
D. Innocent dissemination
E. Don't know
Feedback
That's correct.
It is no excuse that the defendant is mistaken if his or her statements are defamatory, refer to the claimant and have been published. The mistake may, however, enable the defendant to rely on sections 2-4 of the Defamation Act 1996 (procedure for unintentional defamation).

Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers to an extract. Please make sure you read the relevant extract before answering the questions below.
Please read the speech of Lord Bingham in the case of Jameel v Wall Street Journal Europe SPRL (No 2) [2006] UKHL 44, [2006] 4 All E.R. 1279, then answer the six questions (Q11 - Q16) that follow. Note that this is a very recent case and so not covered in your Subject Guide, but deals with an application of the principles described at 12.3.3.

Context
The claimants (a prominent Saudi Arabian businessman and the trading company of which he was president and general manager which was incorporated in Saudi Arabia) began proceedings for defamation against the defendant. The defendant had published a newspaper article which had been edited and printed in Belgium and distributed in Europe, the United States and the Middle East which asserted that, at the request of United States enforcement agencies, the central bank of Saudi Arabia was monitoring certain bank accounts to prevent their use for channelling funds to terrorist organizations which included that of the claimants' trading group. Although the company neither owned property nor traded in the United Kingdom, it had a commercial reputation here. The defendant sought to rely on a defence of qualified privilege.
Question 11
Marks: 1 Why was the company able to sue for libel when it had not shown that it had suffered financial loss?
Choose one answer. A. Because it had a commercial reputation in the United Kingdom
B. Because it traded mainly in the United Kingdom
C. Because it was incorporated in the United Kingdom
D. Because the company owned property in the United Kingdom
E. Don't know
Feedback
That's correct.
Libel is actionable per se, that is, without proof of damage. Although the company did not trade, nor own property in the United Kingdom and was incorporated in Saudi Arabia, provided it can show that it possesses a commercial reputation in the United Kingdom, it may bring an action for libel. The courts draw no distinction between individuals and companies.

Correct
Marks for this submission: 1/1.Question 12
Marks: 1 The rule that companies can sue for defamation is, according to Lord Bingham, consistent with Article 10 of the European Convention on Human Rights because:-
Choose one answer. A. It has not been challenged in the European Court of Human Rights
B. English law should be permitted to establish its own rules of defamation
C. Article 10 gives only a qualified right to freedom of expression, which allows necessary and proportionate restrictions
D. The argument that defamation can have a chilling effect on freedom of expression is wrong
E. Don't know
Feedback
That's correct.
In paragraph 20, his Lordship makes it clear that the question of recovery of damages for defamation by a trading corporation which has not proved financial loss has been subject to challenge before the European Commission and Court and that the court did not hold the current rule to be necessarily inconsistent with Article 10. The Human Rights Act 1998 gave domestic effect to the European Convention on Human Rights and includes reference to Article 10: it is therefore incorrect to say that English law should be permitted to establish its own rules of defamation. His Lordship also notes that the chilling effect argument has been exaggerated in this context, but does not indicate that it has no force: it is therefore incorrect to say that the chilling effect argument is wrong. Paragraph 19 shows that the answer that Article 10 gives only a qualified right to freedom of expression is correct.

Correct
Marks for this submission: 1/1.Question 13
Marks: 1 Does Lord Bingham express any reservations about the ability of trading corporations to obtain damages for libel without proof of damage:-
Choose one answer. A. No. The tort of defamation exists to afford redress for all unjustified injuries to the reputation
B. Yes, if the damages awarded are excessive
C. Yes, where defamation of the company involves defamation of directors and individuals who are able to sue in their own right
D. No. The law is currently Convention-compliant
E. Don't know
Feedback
That's correct.
His lordship does express a reservation - see paragraphs 19 and 27 - and thus both "No" answers are incorrect. He expressly rejects the argument regarding a situation where directors and individuals are able to sue in their own right: see paragraph 21.

Correct
Marks for this submission: 1/1.Question 14
Marks: 1 To establish the defence of qualified privilege, it is necessary that:-
Choose one answer. A. The article published is in the public interest
B. The article published is of topical interest
C. The article published concerns a matter of political interest
D. The article published engages the interest of the public
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 31 states that 'The necessary precondition of reliance on qualified privilege in this context is that the matter published should be one of public interest. In the present case the subject matter of the article complained of was of undoubted public interest. But that is not always, perhaps not usually, so. It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.' His Lordship thus distinguished the 'public interest' from something that engages the interest of the public. Public interest is also distinct from matters of topical and political interest, which may be in the public interest, but not necessarily so.

Correct
Marks for this submission: 1/1.Question 15
Marks: 1 In applying Lord Nicholls' ten criteria in Reynolds (2001), a court must:-
Choose one answer. A. Ensure that all 10 criteria are met
B. Examine whether the article could have been published without the inclusion of the particular ingredient complained of
C. Establish whether the thrust of the article is true
D. Use the criteria as pointers to indicate on the facts of each case whether the publication is protected by qualified privilege
E. Don't know
Feedback
That's correct.
Lord Bingham states that Lord Nicholl's criteria are guidance, not an absolute test. It is therefore incorrect to say that all ten must be met. Although the issue of whether the ingredient giving rise to the complaint was necessary for publication and the issue of the truth of the thrust of the article might be relevant to the court's decision, they will not always be significant: see paragraph 34. The use of the criteria as pointers as to whether or not the publication is protected by qualified privilege therefore represents his Lordship's view of the preferred approach to the Reynolds criteria.

Correct
Marks for this submission: 1/1.Question 16
Marks: 1 In Jameel, did his Lordship find the defence of qualified privilege to exist?
Choose one answer. A. Yes. On balance, the test of responsible journalism had been satisfied
B. No. The claimants should have been given a right of reply
C. Yes, because it is no longer necessary to attempt to give a right of reply or comment on the article
D. No. The article was not in the public interest
E. Don't know
Feedback
That's correct.
Despite his Lordship's doubts, Lord Bingham does find the publication to be protected by qualified privilege and so the two "No" answers are incorrect. The answer that "it is no longer necessary to attempt to give a right of reply or comment on the article" goes too far - his Lordship in paragraph 34 considers the impact of the newspaper's failure to obtain a comment, but finds, on balance, that it did not lead to a failure of responsible journalism.

Correct
Marks for this submission: 1/1.Application
Please answer the following four examination questions (Q17 - Q20):
Question 17
Marks: 1 David tells Goliath: 'if I was not studying for my Tort Multiple Choice Test, I would strike you dead.' He is, in fact, diligently studying for his Tort Multiple Choice Test. Which of the following is correct?
Choose one answer. A. David commits an assault
B. David commits a battery
C. David intentionally causes Goliath nervous shock
D. David doesn't commit assault or battery, nor does he intentionally cause nervous shock
E. Don't know
Feedback
That's correct.
Here, the words negate what would otherwise be an assault - Turberville v Savage (1669) 1 Mod Rep 3 - and so David does not commit an assault. Equally, there is no direct application of force amounting to a battery, nor any evidence of intentionally inflicted nervous shock. It must therefore be the case that David does not commit any of these torts.

Correct
Marks for this submission: 1/1.Question 18
Marks: 1 Keith tells Lenny that Lenny's fiancée has had an accident on the eve of their wedding. Lenny collapses with shock. Keith laughs and tells him that it was a joke. Which of the following actions could Lenny bring against Keith?
Choose one answer. A. Assault
B. Battery
C. Intentionally causing nervous shock
D. Defamation
E. Don't know
Feedback
That's correct.
Assault requires the reasonable apprehension of immediate and unlawful force on the person - there is no evidence that Lenny had any such apprehension. Battery requires the intentional and direct application of force to another person - again this has not occurred. The statement does not harm Lenny's reputation as required by defamation. The facts indeed resemble those of Wilkinson v Downton [1867] 2 Q.B. 57, whose principle is stated in the answer "Intentionally causing nervous shock".

Correct
Marks for this submission: 1/1.Question 19
Marks: 1 James, a journalist, writes the following story which is published in the local newspaper, the Daily Rag:
'We are sympathetic towards Dr Morris - after all, it must be upsetting to find out that no-one leaves her surgery alive!'
Several patients have recently died at Dr Morris' clinic due to natural causes. There is no evidence that Dr Morris is anything but an excellent physician. Which of the following is a jury likely to find?
Choose one answer. A. The statement is not defamatory as it is sympathetic towards Dr Morris' plight
B. The statement is defamatory, but James has a good defence of justification
C. The statement is defamatory due to an innuendo that Dr Morris is incompetent. This is not true
D. The statement is defamatory, but James, as a journalist, can rely on the defence of qualified privilege
E. Don't know
Feedback
That's correct.
The statement contains an innuendo that Dr Morris is incompetent. There is no evidence that it is true and no basis given to sustain a defence of qualified privilege under the Reynolds test of responsible journalism.

Correct
Marks for this submission: 1/1.Question 20
Marks: 1 Fred takes Barney to one side and tells him that he is a liar and a cheat. Barney's business partner, Betty, happens to be leaning out of a window above them and hears every word. As a result, she decides to terminate the partnership and Barney loses his investment in the business. Is Fred?
Choose one answer. A. Not liable in slander because he had no intention to publish the words
B. Not liable in slander because Barney suffers no damage
C. Not liable in slander because Betty should not be listening to private conversations
D. Not liable in slander because it was unforeseeable that Betty would overhear the words
E. Don't know
Feedback
That's correct.
Slander requires special damage in addition to the usual requirements for defamation, except in four exceptional cases. The words have been published if a third party hears them and intention is irrelevant. As a result it is incorrect to assert that Fred is not liable because he had no intention to publish the words. Barney suffers financial loss as a result of the statement and so it is incorrect to say he suffers no damage (arguably, it would be actionable per se in any event due to the damage to Barney's professional reputation under section 2, Defamation Act 1952). However, it must be reasonably foreseeable that someone would overhear (see Theaker v Richardson [1962] 1 W.L.R. 151). It is only by chance that Betty overhears what was meant to be a private conversation and so the answer is that Fred could not have foreseen this and is therefore not liable in slander. The courts will not, however, make moral judgements as to people listening to other people's conversations - the test is an objective one of reasonable foresight and therefore it is incorrect to use the subjective opinion that Betty should not have been listening.

Correct
Marks for this submission: 1/1.

HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Jameel and others (Respondents) v. Wall Street Journal Europe Sprl (Appellant

large circulation in the United States.
3. The respondents, claimants in the proceedings, are Saudi Arabian. The first respondent is a prominent businessman and president of the Abdul Latif Jameel Group, an international trading conglomerate based in the Kingdom of Saudi Arabia comprising numerous companies and with interests in cars, shipping, property and distribution of electronic goods. The second respondent is a company incorporated in Saudi Arabia and is part of the Group. The first respondent is the general manager and president of the company, which does not itself own property or conduct any trade or business here, but which has a commercial reputation in England and Wales.
4. On 6 February 2002 the newspaper published the article which gave rise to these proceedings. It was headed "Saudi Officials Monitor Certain Bank Accounts" with a smaller sub-heading "Focus Is on Those With Potential Terrorist Ties". It bore the by-line of James M Dorsey, an Arabic-speaking reporter with specialist knowledge of Saudi Arabia, and acknowledged the contribution of Glenn Simpson, a staff writer in Washington. The gist of the article, succinctly stated in the first paragraph, was that the Saudi Arabian Monetary Authority, the Kingdom's central bank, was, at the request of US law enforcement agencies, monitoring bank accounts associated with some of the country's most prominent businessmen in a bid to prevent them from being used, wittingly or unwittingly, for the funnelling of funds to terrorist organisations. This information was attributed to "U.S. officials and Saudis familiar with the issue". In the second paragraph a number of companies and individuals were
named, among them "the Abdullatif Jamil Group of companies" who, it was stated later in the article, "couldn't be reached for comment".
5. The jury in due course found that the article referred to was defamatory of both respondents. They may have understood the article to mean that there were reasonable grounds to suspect the involvement of the respondents, or alternatively that there were reasonable grounds to investigate the involvement of the respondents, in the witting or unwitting funnelling of funds to terrorist organisations. For present purposes it is immaterial which defamatory meaning the jury gave the passage complained of, neither of which the newspaper sought to justify.
6. The article was published some five months after the catastrophic events which took place in New York and Washington on 11 September 2001. During the intervening months the US authorities had taken determined steps, with strong international support, to cut off the flow of funds to terrorist organisations, including Al-Qaida. These steps were of particular importance in relation to Saudi Arabia, since a large majority of the suspected hijackers were of Saudi origin, and it was believed that much of their financial support came from Saudi sources. Yet the position of the Saudi authorities was one of some sensitivity. The Kingdom was an ally of the United States and condemned terrorism. But among its devoutly Muslim population there were those who resented the Kingdom's association with the United States and espoused the cause of Islamic jihad. Thus there were questions about whether, and to what extent, the Kingdom was co-operating with the US authorities in cutting off funds to terrorist organisations. This was, without doubt, a matter of high international importance, a very appropriate matter for report by a serious newspaper. But it was a difficult matter to investigate and report since information was not freely available in the Kingdom and the Saudi authorities, even if co-operating closely with those of the United States, might be embarrassed if that fact were to become generally known.
7. The trial of the action before Eady J and a jury lasted some three working weeks and culminated in verdicts for the respondents and awards of £30,000 and £10,000 respectively. Much evidence was called on both sides, of which the House has been referred to short excerpts only. The judge rejected the newspaper's argument on the damage issue ([2003] EWHC 2945 (QB), [2004] 2 All ER 92) and the Court of Appeal agreed with him ([2005] EWCA Civ 74, [2005] QB 904). The judge also rejected the newspaper's claim to Reynolds privilege ([2004] EWHC 37 (QB)). On this question also the Court of Appeal upheld his decision, but on a more limited ground. This calls for more detailed consideration.
8. The judge put a series of questions to the jury which, so far as relevant to Reynolds privilege, were directed to two matters: the sources on which Mr Dorsey, as reporter, relied; and his attempt to obtain the respondents' response to his inclusion of their names in his proposed article. Mr Dorsey testified that he had relied on information given by a prominent Saudi businessman (source A), confirmed by a banker (source B), a US diplomat (source C), a US embassy official (source D) and a senior Saudi official (source E). In answer to the judge's questions the jury found that the newspaper had proved that Mr Dorsey had received the information he claimed to have received from source A, but had not proved that Mr Dorsey had received the confirmation he claimed from sources B-E inclusive. The judge attached significance to these negative findings, since Mr Dorsey said in evidence that he would not have
written the article in reliance on source A alone. In the Court of Appeal, the judge's reliance on these negative findings was criticised by the newspaper. At the outset of his direction to the jury the judge had pointed out that there was no plea of justification and that therefore, if the jury found the article defamatory of the respondents, they should assume it to be untrue. This direction, it was said, may well have infected the jury's approach to the questions concerning sources B-E. The Court of Appeal refused the newspaper leave to raise a new ground of misdirection, and thought (para 66) that the jury had "almost certainly" based their answers on the impression made by witnesses in court. But the Court of Appeal preferred to base its decision on the other ground relied on by the judge to deny privilege.
9. Mr Dorsey described attempts to obtain a response from the Group about his proposed article. He said he had telephoned the Group office at about 9.0 a.m. and left a recorded message. The jury found that the newspaper had not proved on the balance of probabilities that that was so. There was, it was agreed, a telephone conversation between Mr Dorsey and Mr Munajjed, an employee of the Group, on the evening of 5 February, the day before publication. During that conversation, according to Mr Munajjed, he had asked Mr Dorsey to wait until the following day for a comment by the Group. He had, he said, no authority to make a statement and the first respondent was in Japan, where the time was 3.0 a.m. Mr Dorsey denied that Mr Munajjed had asked him to wait. But the jury found that Mr Munajjed had made that request. It was on this ground, as I understand, that the Court of Appeal upheld the judge's denial of Reynolds privilege:
"82. We turn to the judge's observation that the Jameels were not given sufficient time to comment on the proposed publication. It was to this matter that the jury's questions 6 and 7 were addressed. Mr Dorsey had given evidence that he had telephoned the Jameels' offices on the morning before the publication and left a recorded message. The jury found that this did not take place. What the jury did find had taken place was that Mr Dorsey had spoken to the Jameels' representative, Mr Munajjed, on the evening before publication, that the latter had asked for the publication to be postponed so that he could contact Mr Jameel, who was in Japan on business, and that Mr Dorsey had declined this request. The judge found that there was no compelling reason why Mr Jameel could not have been afforded 24 hours to comment on the article. We can see no basis for challenging this conclusion, nor did Mr Robertson suggest that there was one."
10. I turn to the two issues raised in the appeal.
I DAMAGE
11. The issue under this head is whether a trading company which itself conducts no business but which has a trading reputation within England and Wales should be entitled to recover general damages for libel without pleading and proving that the publication complained of has caused it special damage. To resolve this question it is helpful to distinguish three sub-issues:
(1) whether such an entitlement exists under the current law of England and Wales;
(2) whether, if so, article 10 of the European Convention on Human Rights requires revision of the current domestic law; and
(3) whether, if not, the current domestic law should in any event be revised.
(1) The current domestic law
12. The tort of libel has long been recognised as actionable per se. Thus where a personal plaintiff proves publication of a false statement damaging to his reputation without lawful justification, he need not plead or prove special damage in order to succeed. Proof of injury to his reputation is enough.
13. It was argued in South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133 that this rule did not apply to trading companies. The newspaper in that case had published an article strongly critical of the way in which the plaintiff, a colliery owner, housed its workers, and the company had not pleaded or proved any actual damage. It was argued for the publisher that a corporation could have no personal character, and that the article had not related to the business of the company (pp 134, 137). The Court of Appeal unanimously rejected this argument. Lord Esher MR held the law of libel to be one and the same for all plaintiffs (p 138). While he referred to obvious differences between individuals and companies (pp 138-139), his conclusion (p 139) was clear:
"Then, if the case be one of libel - whether on a person, a firm, or a company - the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case."
There need be no evidence of particular damage (p 140). Lopes LJ agreed (p 141): a company may maintain an action for a libel reflecting on the management of its business without alleging or proving special damage. Kay LJ also agreed (p 148): a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special, although, where there is no such evidence, the damages given will probably be small.
14. In Lewis v Daily Telegraph Ltd [1964] AC 234, 262, Lord Reid pointed out that a company cannot be injured in its feelings but only in its pocket. There was, however, no challenge in that case to the principle laid down in South Hetton, which was not cited in either party's printed case, or in argument, or in any judgment.
15. Mr Robertson QC, for the newspaper, pointed out, quite correctly, that the Faulks Committee on Defamation, in its Report (Cmnd 5909, March 1975), para 336, recommended amendment of the South Hetton rule. The amendment recommended was, however, only to limit libel actions by trading corporations to cases where the trading corporation could establish either that it had suffered special damage or that the defamation was likely to cause it financial damage. This recommendation was made after considering trenchant criticisms of the existing rule made by Mr J A Weir ("Local Authority v Critical Ratepayer - a Suit in Defamation" (1972A) CLJ 238). It is not a recommendation to which Parliament has chosen to give effect.
16. In Derbyshire County Council v Times Newspapers Ltd the issue concerned the entitlement of a local authority, not a trading corporation, to sue in libel. But at first instance South Hetton was cited, and contributed to Morland J's conclusion that a local authority could sue: [1992] QB 770, 781, 783-788. On appeal, counsel for the newspaper distinguished South Hetton on the ground of the colliery company's trading character and counsel for the local authority relied on it: ibid, pp 792, 797. No member of the Court of Appeal questioned the decision. Balcombe LJ accepted South Hetton as binding for what it decided, but also (despite Mr Weir's criticism) expressed his agreement with it: p 809. In the House, counsel for the local authority cited the decision ([1993] AC 534, 536-537). Counsel for the newspaper did not criticise it, but distinguished it as applicable to a company with a business reputation which a local authority did not have (p 538). In his leading opinion, with which the other members of the House agreed, Lord Keith of Kinkel (who had been a member of the Faulks committee) cited South Hetton at some length, and also National Union of General and Municipal Workers v Gillian [1946] KB 81, in which a non-trading corporation (a trade union) had been assimilated to a trading corporation. He then continued (p 547):
"The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co case [1894] 1 QB 133 would appear to be an instance of the latter kind, and not, as suggested by Browne J, an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the union's ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions."
Lord Keith then went on to give his reasons for concluding that a local authority was to be distinguished from other types of corporation, whether trading or non-trading.
17. In Derbyshire the correctness of South Hetton was not challenged, but acceptance of its correctness was an important step in Lord Keith's reasoning and I find no ambiguity in the proposition he propounded: the authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. In Shevill v Presse Alliance SA [1996] AC 959, decided some three years later by a differently constituted committee of the House, one of the plaintiffs was a trading corporation and the presumption of damage in libel cases was treated as part of our national substantive law. I conclude that under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages
without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business.
(2) Article 10
18. Article 10 of the European Convention provides:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The central importance of this article in the Convention regime is clear beyond question, and is reflected in section 12 of the Human Rights Act 1998. Freedom to publish free of unjustifiable restraint must indeed be recognised as a distinguishing feature of the sort of society which the Convention seeks to promote. The newspaper in this case relies on article 10 to contend that a domestic rule entitling a trading corporation to sue in libel when it can prove no financial loss is an unreasonable restraint on the right to publish protected by article 10.
19. This is not an unattractive argument, and it would be persuasive if, in such a case, excessive, punitive or exemplary damages were awarded. But the damages awarded to the second claimant in this case were not excessive, and the argument encounters three problems of principle. First, as the text of article 10 itself makes plain, the right guaranteed by the article is not unqualified. The right may be circumscribed by restrictions prescribed by law and necessary and proportionate if directed to certain ends, one of which is the protection of the reputation or rights of others. Thus a national libel law may, consistently with article 10, restrain the publication of defamatory material.
20. Secondly, the national rule here in question, pertaining to the recovery of damages by a trading corporation which proves no financial loss, has been the subject of challenge before the European Commission and Court in the context of libel proceedings brought by two corporate plaintiffs against two individual defendants. In S and M v United Kingdom (1993) 18 EHRR CD 172, 173, the challenge to the rule was somewhat oblique and the Commission made the points summarised in para 19 above. In Steel and Morris v United Kingdom (2005) 41 EHRR 403 the challenge was direct: see para 31 (a) and (b), p 419. The Court accepted that the domestic rule was as stated in Derbyshire (para 40) but held (para 94) that
"The state therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation."
The Court cited and echoed observations in an earlier decision, Märkt Intern and Beerman v Germany (1989) 12 EHRR 161, paras 33-38. Thus the Court did not hold the current rule to be necessarily inconsistent with article 10: it was a matter for the judgment of the national authorities.
21. Thirdly, the weight placed by the newspaper on the chilling effect of the existing rule is in my opinion exaggerated. Among the arguments it advances is that the rule is unnecessary since, it is said, defamation of a company involves defamation of directors and individuals who are free to sue as personal plaintiffs. I very much doubt if this is always so, although in some cases it will be. But, to the extent that it is so, I question whether the possibility of a claim by the company will add significantly to the chilling effect of a claim by the individuals.
22. I would accordingly answer this question in the negative.
(3) Revision of the current law
23. Since the European Court accords a generous margin of appreciation to the judgment of national authorities, and these include courts, it is appropriate for the House to review the merits of the South Hetton rule as re-stated in Derbyshire. The newspaper argues that, in accordance with the trend towards enhanced recognition of freedom of expression, the rule should be abrogated. Parliament could of course have legislated to abrogate or modify the rule, but it has not done so. It is accordingly necessary to revert to basic principles.
24. The tort of defamation exists to afford redress for unjustified injury to reputation. By a successful action the injured reputation is vindicated. The ordinary means of vindication is by the verdict of a judge or jury and an award of damages. Most plaintiffs are individuals, who are not required to prove that they have suffered financial loss or even that any particular person has thought the worse of them as a result of the publication complained of. I do not understand this rule to be criticised. Thus the question arises whether a corporation with a commercial reputation within the jurisdiction should be subject to a different rule.
25. There are of course many defamatory things which can be said about individuals (for example, about their sexual proclivities) which could not be said about corporations. But it is not at all hard to think of statements seriously injurious to the general commercial reputation of trading and charitable corporations: that an arms company has routinely bribed officials of foreign governments to secure contracts; that an oil company has wilfully and unnecessarily damaged the environment; that an international humanitarian agency has wrongfully succumbed to government pressure; that a retailer has knowingly exploited child labour; and so on. The leading figures in such corporations may be understood to be personally implicated, but not, in my opinion, necessarily so. Should the corporation be entitled to sue in its own right only if it can prove financial loss? I do not think so, for two main reasons.
26. First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect. Nor do I think it an adequate answer that the corporation can itself seek to answer the defamatory statement by press release or public statement, since protestations of innocence by the impugned party necessarily carry less weight with the public than the prompt issue of proceedings which culminate in a favourable verdict by judge or jury. Secondly, I do not accept that a publication, if truly damaging to a corporation's commercial reputation, will result in provable financial loss, since the more prompt and public a company's issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue.
27. I do not on balance consider that the existing rule should be changed, provided always that where a trading corporation has suffered no actual financial loss any damages awarded should be kept strictly within modest bounds.
II REYNOLDS PRIVILEGE
28. The decision of the House in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 built on the traditional foundations of qualified privilege but carried the law forward in a way which gave much greater weight than the earlier law had done to the value of informed public debate of significant public issues. Both these aspects are, I think, important in understanding the decision.
29. Underlying the development of qualified privilege was the requirement of a reciprocal duty and interest between the publisher and the recipient of the statement in question: see, for example, Harrison v Bush (1855) 5 E & B 344, 348; Pullman v Hill & Co Ltd [1891] 1 QB 524, 528; Adam v Ward [1917] AC 309, 334; Watt v Longsdon [1930] 1 KB 130, 147, all cases cited in Duncan & Neill on Defamation, 2nd ed (1983), pp 93-94, paras 14.04-14.05. Some of these cases concerned very limited publication, but Adam v Ward did not, and nor did Cox v Feeny (1863) 4 F & F 13; Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400; Perera v Peiris [1949] AC 1 and Webb v Times Publishing Co Ltd [1960] 2 QB 535. Thus where a publication related to a matter of public interest, it was accepted that the reciprocal duty and interest could be found even where publication was by a newspaper to a section of the public or the public at large. In Reynolds the Court of Appeal restated these tests ([2001] 2 AC 127, 167, 177), although it suggested a third supplemental test which the House held to be mistaken.
30. I do not understand the House to have rejected the duty/interest approach: see Lord Nicholls of Birkenhead, pp 194-195, 197, 204; Lord Steyn, p 213; Lord Cooke of Thorndon, pp 217, 224, 227; Lord Hope of Craighead, pp 229, 235; Lord Hobhouse of Woodborough, pp 237, 239. But Lord Nicholls (p 197) considered that matters relating to the nature and source of the information were matters to be taken into account in determining whether the duty-interest test was satisfied or, as he preferred to say "in a simpler and more direct way, whether the public was entitled to know the particular information."
31. The necessary pre-condition of reliance on qualified privilege in this context is that the matter published should be one of public interest. In the present case the subject matter of the article complained of was of undoubted public interest. But that is not always, perhaps not usually, so. It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.
32. Qualified privilege as a live issue only arises where a statement is defamatory and untrue. It was in this context, and assuming the matter to be one of public interest, that Lord Nicholls proposed (at p 202) a test of responsible journalism, a test repeated in Bonnick v Morris [2003] 1 AC 300, 309. The rationale of this test is, as I understand, that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify. As Lord Hobhouse observed with characteristic pungency (p 238), "No public interest is served by publishing or communicating misinformation". But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication.
33. Lord Nicholls (at p 205) listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. He intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege. Lord Nicholls recognised (at pp 202-203), inevitably as I think, that it had to be a body other than the publisher, namely the court, which decided whether a publication was protected by qualified privilege. But this does not mean that the editorial decisions and judgments made at the time, without the knowledge of falsity which is a benefit of hindsight, are irrelevant. Weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner.
34. Some misunderstanding may perhaps have been engendered by Lord Nicholls' references (at pp 195, 197) to "the particular information". It is of course true that the defence of qualified privilege must be considered with reference to the particular publication complained of as defamatory, and where a whole article or story is complained of no difficulty arises. But difficulty can arise where the complaint relates to one particular ingredient of a composite story, since it is then open to a plaintiff to contend, as in the present case, that the article could have been published without inclusion of the particular ingredient complained of. This may, in some instances, be a valid point. But consideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.
35. These principles must be applied to the present case. As recorded in para 8 above, the Court of Appeal upheld the judge's denial of Reynolds privilege on a single ground, discounting the jury's negative findings concerning Mr Dorsey's sources: that the newspaper had failed to delay publication of the respondents' names without waiting long enough for the respondents to comment. This seems to me, with respect, to be a very narrow ground on which to deny the privilege, and the ruling subverts the
liberalising intention of the Reynolds decision. The subject matter was of great public interest, in the strictest sense. The article was written by an experienced specialist reporter and approved by senior staff on the newspaper and The Wall Street Journal who themselves sought to verify its contents. The article was unsensational in tone and (apparently) factual in content. The respondents' response was sought, although at a late stage, and the newspaper's inability to obtain a comment recorded. It is very unlikely that a comment, if obtained, would have been revealing, since even if the respondents' accounts were being monitored it was unlikely that they would know. It might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect. I would accordingly allow the appeal and set aside the Court of Appeal judgment.
36. I am in much more doubt than my noble and learned friends what the consequence of that decision should be. The House has not, like the judge and the jury, heard the witnesses and seen the case develop day after day. It has read no more than a small sample of the evidence. It seems to me a large step for the House, thus disadvantaged, to hold that the publication was privileged, and I am not sure that counsel for the newspaper sought such a ruling. But I find myself in a minority, and it serves no useful purpose to do more than express my doubt.

Tort Law Assessment II

Question: In the case of Wheat v E Lacon & Co Ltd [1966] A.C. 552 , the House of Lords defined the occupier of premises under the Occupiers' Liability Act 1957 as someone who:-
Choose one answer. A. Lives on the premises
B. Owns the premises
C. Has sufficient control of the premises
D. Occupies the premises
E. Don't know
Feedback
The correct answer is (c)

The word "occupier" is not defined in either the Occupiers' Liability Act 1957 nor the Occupiers' Liability Act 1984. The House of Lords in Wheat v Lacon, therefore, relied on the common law definition which requires control of the premises. As Lord Denning explains at page 577 : ' In the Occupiers' Liability Act, 1957, the word "occupier" is used in the same sense as it was used in the common law cases on occupiers' liability for dangerous premises. It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises.'

Correct
Marks for this submission: 1/1.Question 2
Marks: 1 Is the following a sufficient warning to protect a visitor to your premises?
Choose one answer. A. 'Watch out!'
B. 'Care should always be taken on the premises'
C. 'Enter at your peril'
D. 'Please use alternative door as this door is faulty'
E. Don't know
Feedback
The correct answer is (d)

Warnings are expressly mentioned in both the Occupiers' Liability Act 1957 (s2(4)(a)) and the Occupiers' Liability Act 1984 (s1(5)) as means by which an occupier can discharge his or her duty of care to the visitor or non-visitor. Under the 1957 Act, the common duty of care will only be discharged if the warning is sufficiently detailed to enable the visitor to be reasonably safe. In Roles v Nathan [1963] 1 W.L.R. 1117, Lord Denning gives an example of a footbridge over a stream which was rotten and dangerous. The occupier would be liable if he only put up a notice stating "This bridge is dangerous," where the visitor had no option but to go over the bridge. Only if there were two footbridges, one of which was rotten, and the other safe a hundred yards away, could the occupier escape liability by putting up a notice: "Do not use this footbridge. It is dangerous. There is a safe one further upstream." Such a warning is sufficient because it does enable the visitor to be reasonably safe. In the question, therefore, the incorrect answers lack sufficient detail. The visitor is not given sufficient information to enable him or her to avoid the danger. 'Please use alternative door as this door is faulty' explains the problem and gives an alternative means of entry - this would be sufficient to enable the visitor to be reasonably safe.

Correct
Marks for this submission: 1/1.Question 3
Marks: 1 Which of the following statements is correct?
Choose one answer. A. A duty is owed to trespassers if the occupier is aware of the danger (or has reasonable grounds to believe that it exists), knows (or has reasonable grounds to believe that) the trespasser is (or may come) into the vicinity of the danger, and the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection
B. The duty owed to trespassers is to avoid any wilful act undertaken with the deliberate intention of harming him or her
C. The duty owed to trespassers is one of common humanity
D. No duty of care is owed to trespassers
E. Don't know
Feedback
The correct answer is (a)

If these conditions are satisfied, section 1(4) specifies that 'Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned'.

"The duty owed to trespassers is to avoid any wilful act undertaken with the deliberate intention of harming him or her" and "The duty owed to trespassers is one of common humanity" represent the earlier common law tests which existed prior to the Act (Addie v Dumbreck [1929] A.C. 358 and BRB v Herrington [1972] A.C. 877 respectively). "No duty of care is owed to trespassers" is obviously incorrect.

Correct
Marks for this submission: 1/1.Question 4
Marks: 1 Which of the following statements is correct?
Choose one answer. A. An employer has no direct duty towards its employees in tort. Liability only exists under the law of contract
B. An employer may be both primarily and vicariously liable for injury to its employees
C. An employer may only be liable in tort towards its employees under the tort of breach of statutory duty
D. The doctrine of vicarious liability means that the employer can be liable vicariously for injury to its employees by other employees. This, together with protection under the tort of breach of statutory duty, determines when an employer will be liable towards its employees
E. Don't know
Feedback
The correct answer is (b)

There are three possible ways in which an employer may be liable towards its employees: primarily in negligence (see Wilsons and Clyde Coal Co Ltd v English [1938] A.C. 57) or for breach of statutory duty (e.g. Groves v Lord Wimborne [1898] 2 Q.B. 402), and vicariously under the doctrine of vicarious liability which renders it liable for torts committed by employees in the course of their employment.

Correct
Marks for this submission: 1/1.Question 5
Marks: 1 Section 4(1)(e) of the Consumer Protection Act 1987 states that 'In any civil proceedings by virtue of this Part against any person ("the person proceeded against") in respect of a defect in a product it shall be a defence for him to show that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control'.

This means that:

Choose one answer. A. The producer has a good defence if he is unable to discover the defect in the product
B. The producer has a good defence if a reasonable producer, possessing the scientific and technical knowledge accessible at the time the product was put into circulation, could not have detected the defect
C. The producer has a good defence if, having taken reasonable steps to investigate scientific and technical developments, he could not have detected the defect
D. The producer has a good defence if, although aware of the risk of a defect, he could not due to the state of scientific and technical knowledge at the relevant time detect the defect in the product
E. Don't know
Feedback
That's correct.

"The producer has a good defence if he is unable to discover the defect in the product" is subjective and thus incorrect. "The producer has a good defence if, although aware of the risk of a defect, he could not due to the state of scientific and technical knowledge at the relevant time detect the defect in the product" represents the position in A v National Blood Authority [2001] 3 All E.R. 289, which Burton J found not to satisfy section 4(1)(e). "The producer has a good defence if, having taken reasonable steps to investigate scientific and technical developments, he could not have detected the defect" is closer but, according to EC v United Kingdom [1997] All ER (EC) 481, is not strict enough - the producer is expected to be aware of ALL accessible knowledge which may require more than reasonable steps to acquire this knowledge.

Correct
Marks for this submission: 1/1.Question 6
Marks: 1 The primary aim of the tort of private nuisance is to:
Choose one answer. A. Prevent neighbourhood disputes
B. Protect the environment from pollution
C. Protect the occupiers' use and enjoyment of land
D. Protect the use and enjoyment of land of those with rights to land
E. Don't know
Feedback
That's correct.

Although preventing neighbourhood disputes and protecting the environment from pollution might be the result of the tort of private nuisance, its primary aim is to protect the use and enjoyment of those with rights to land: see Hunter v Canary Wharf Ltd [1997] A.C. 655. "Protect the occupiers' use and enjoyment of land" is too broad as occupiers might include persons without rights to land.

Correct
Marks for this submission: 1/1.Question 7
Marks: 1 Which of the following determine 'reasonable user' in all cases of private nuisance?
Choose one answer. A. The duration and frequency of the interference
B. The nature of the locality
C. Both the duration and frequency of the interference and the nature of the locality
D. The utility of the defendant's conduct
E. Don't know
Feedback
The correct answer is "The duration and frequency of the interference".

St Helen's Smelting Co v Tipping (1865-66) L.R. 1 Ch. App. 66 indicates that where physical damage to the property has been caused, the court will pay little attention to the nature of the locality. "The nature of the locality" cannot therefore be said to determine 'reasonable user' in ALL cases of private nuisance, rendering two of the answers above incorrect. Utility is relevant, but tends to influence the courts in exercising its equitable jurisdiction whether to grant an injunction (see Miller v Jackson [1977] Q.B. 966) and cannot therefore be said to satisfy the question.

Incorrect
Marks for this submission: 0/1.Question 8
Marks: 1 Which of the following is not a defence to the tort of private nuisance:-
Choose one answer. A. Statutory authority
B. Twenty years' prescription
C. Coming to the nuisance
D. Consent
E. Don't know
Feedback
That's correct.

Coming to the nuisance is not a defence: Bliss v Hall (1838) 4 Bing N.C. 183. "Statutory authority", "twenty years' prescription" and "consent" are all good defences to the tort of private nuisance.

Correct
Marks for this submission: 1/1.Question 9
Marks: 1 Which of the following statements is correct?
Choose one answer. A. A private individual can always bring an action for public nuisance
B. A private individual can only bring an action for public nuisance when a crime has been committed
C. A private individual can only bring an action for public nuisance with the support of the Attorney General
D. A private individual can only bring an action for public nuisance when he can show special damage
E. Don't know
Feedback
That's correct.

A private individual must show special damage i.e. damage in excess of that suffered by the public at large. If he or she cannot prove this, then the only other option is to persuade the Attorney General to bring a relator action or the local authority to bring an action under section 222 of the Local Government Act 1972.

Correct
Marks for this submission: 1/1.Question 10
Marks: 1 Under the doctrine of vicarious liability, an employer will not be liable for the torts of its employees committed in the course of his or her employment if:-

Choose one answer. A. The employee has been prohibited from acting in that way
B. The employee's act is not connected with his employment
C. The employee has harmed another employee under the doctrine of common employment
D. The employer is not insured
E. Don't know
Feedback
That's correct.

The courts will not consider the provision of insurance in their judgments.

A mere prohibition of the act in question will not necessarily take it outside the course of employment: see Rose v Plenty [1976] 1 W.L.R. 141 where the employee had been expressly instructed not to employ minors to assist on his milk round, but did so and injured his thirteen-year-old assistant. The employer was vicariously liable for his actions.

Although the doctrine of common employment did prevent vicarious liability for the tortious infliction of injury by one employee on another, this was abolished in 1948 by the Law Reform (Personal Injuries) Act 1948, section 1.

"The employee's act is not connected with his employment" therefore most accurately reflects the current legal position: see Lister v Hesley Hall Ltd [2002] 1 A.C. 215.

Correct
Marks for this submission: 1/1.Comprehension
Each question in the Comprehension section refers to an extract. Please make sure you read the relevant extract before answering the questions below.

Please read the speech of Lord Bingham in the case of Transco Plc v Stockport MBC [2003] UKHL 61 [2004] 2 A.C. 1, then answer the six questions (Q11 - Q16) that follow.

Context
The case examined the scope of the rule in Rylands v Fletcher. In 1966 the claimant was granted a right to install a gas main along a stretch of disused railway line which included an embankment at Brinnington in Stockport. On a nearby site owned by the defendant local authority lay a tower block of flats which was supplied with water by means of a water pipe which the authority had constructed between the tower block and the water main. In 1972 part of the disused line, including the embankment, was purchased by the authority, with the claimant continuing to have an easement of support in respect of its gas main. In 1992, without any negligence on the part of the authority, the water pipe leading to the block of flats fractured. As a result large quantities of water escaped underground and caused the collapse of the embankment, leaving the gas main exposed and unsupported. The claimant, having been compelled to carry out emergency repair work to its gas main, brought an action to recover the cost of the remedial work on the ground, inter alia, that the authority was strictly liable for non-natural user of land under the rule in Rylands v Fletcher.
Question 11
Marks: 1 In setting out the rule in Rylands v Fletcher, Blackburn J believed that:-
Choose one answer. A. He was creating a new legal principle
B. He was responding to recent flooding disasters
C. He was developing a rule to deal with the escape of water
D. He was not laying down any new principle of law
E. Don't know
Feedback
That's correct.

In paragraph 3, Lord Bingham explains the historical background to the judgment of Blackburn J in Rylands v Fletcher and that the judge did not conceive himself to be laying down any new principle of law, but regarded the case as one of an isolated interference with the claimant's use and enjoyment of land.

Correct
Marks for this submission: 1/1.Question 12
Marks: 1 According to Lord Bingham, what is the relationship between the rule in Rylands v Fletcher and the tort of private nuisance?
Choose one answer. A. The rule in Rylands v Fletcher is a sub-set of nuisance
B. The rule in Rylands v Fletcher has been absorbed into the tort of private nuisance
C. None. The rule in Rylands v Fletcher has been absorbed into the tort of negligence
D. The rule in Rylands v Fletcher is a separate tort to that of private nuisance
E. Don't know
Feedback
That's correct.

Lord Bingham, in paragraph 9, states that the rule in Rylands v Fletcher is a sub-set of nuisance. This means that the rule can be considered a 'type' of nuisance, but not that they are necessarily exactly the same: it is therefore incorrect to say either that the rule has been subsumed into the tort of private nuisance, or that it is a separate tort from it. His Lordship refused to follow the High Court of Australia which in Burnie Port Authority v General Jones Pty Ltd (1994) 120 A.L.R. 42 treated the rule as governed by the principles of ordinary negligence: the rule therefore cannot have been subsumed into the tort of negligence. Transco does not exclude future claims under the rule in Rylands v Fletcher, although it indicates that few claims will in reality succeed.

Correct
Marks for this submission: 1/1.Question 13
Marks: 1 Which of the following is a consequence of the rule in Rylands v Fletcher being a sub-species of the tort of private nuisance:-
Choose one answer. A. Claimants can no longer recover damages for death or personal injury
B. Claimants do not now have to demonstrate an escape from one set of premises to another
C. Claimants need not now show a non-natural use of land
D. It is no longer necessary to demonstrate that the loss suffered was reasonably foreseeable
E. Don't know
Feedback
That's correct.
Lord Bingham states at paragraph 9 that claims for death or personal injury will no longer be permitted under the rule in Rylands v Fletcher, despite decisions to the contrary in the past: see Shiffmann v Order of the Hospital of St John of Jerusalem [1936] 1 All E.R. 557. The other requirements of the tort, however, remain.

Correct
Marks for this submission: 1/1.Question 14
Marks: 1 The mischief or danger test is satisfied if something is brought onto the land which:-
Choose one answer. A. Is likely to cause harm if it escapes
B. Is likely to cause serious harm if it escapes
C. Is likely to give rise to an exceptionally high risk of harm if it escapes
D. Is likely to cause a catastrophe if it escapes
E. Don't know
Feedback
That's correct.
In requiring an 'exceptionally high risk of danger or mischief' in paragraph 10, Lord Bingham is restricting the scope of the rule beyond the likelihood of harm or serious harm being caused, although not to the extent of being likely to cause a catastrophe.

Correct
Marks for this submission: 1/1.Question 15
Marks: 1 'Non-natural user' is described by Lord Bingham as:-
Choose one answer. A. Use of anything not growing naturally on the land
B. A use which is not for the general benefit of the community
C. An extraordinary and unusual use of the land
D. Unreasonable use of the land
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 11 helpfully reviews the alternative explanations of the 'non-natural user' requirement and prefers this description.

Correct
Marks for this submission: 1/1.Question 16
Marks: 1 The piping of water to the block of flats was a natural use of land because:-
Choose one answer. A. Water occurs naturally on land
B. The piping of water to premises is a normal and routine use of the land
C. The piping of water to premises is necessary for the use of land
D. The quantity of water was far less than that contained in a reservoir
E. Don't know
Feedback
That's correct.
Lord Bingham in paragraph 13 emphasises that although water in quantity can almost always cause some damage if it escapes, the rule in Rylands v Fletcher does not cover the routine piping of a water supply from the mains to the storage tanks in a block of flats. It cannot be characterised as 'extraordinary or unusual'. Only the argument that "the piping of water to premises is a normal and routine use of the land" satisfies the test set by his Lordship in Transco.

Correct
Marks for this submission: 1/1.Application
Please answer the following four examination questions (Q17 - Q20):
Question 17
Marks: 1 Alexander decides to go for a walk in the park run by Borcestershire Council on a hot summer's day. Feeling warm, he decides to dive into a natural lake in the centre of the park despite clear signs saying "Dangerous - do not swim - you could drown." He dives into the lake and hits his head on a rock at the bottom of the lake. He suffers serious injuries. In assessing whether Borcestershire Council is liable as an occupier, should a court consider its liability:
Choose one answer. A. In negligence
B. Under the Occupiers' Liability Act 1957
C. Under the Occupiers' Liability Act 1984
D. In relation to the defence of consent
E. Don't know
Feedback
That's correct.
The case resembles that of Tomlinson v Congleton BC [2004] 1 A.C. 46, where John Tomlinson chose to dive into a lake formed from a disused quarry in a park, despite notices stating 'Dangerous water: No swimming'. The majority of the House of Lords treated him as a trespasser - therefore placing his claim under the Occupiers' Liability Act 1984. Lord Hoffmann found that in diving into the water, Mr Tomlinson crossed the line between the status of lawful visitor and that of trespasser. Lord Scott, however, disputed this. Mr Tomlinson was prohibited from swimming. At no point did he swim - his accident occurred as a result of his disastrous dive! He therefore remained a visitor. This rather technical approach was not adopted by his brethren.

Correct
Marks for this submission: 1/1.Question 18
Marks: 1 In assessing Alexander's claim in Q17 above, is the court likely to find:
Choose one answer. A. Breach of the common duty of care under the Occupiers' Liability Act 1957
B. Breach of the section 1 duty of care under the Occupiers' Liability Act 1984
C. That Alexander cannot succeed under either Occupiers' Liability Act
D. That Alexander has a good claim for negligence
E. Don't know
Feedback
That's correct.
In Tomlinson v Congleton BC [2004] 1 A.C. 46, the House of Lords was of the view that Mr Tomlinson's injury had not arisen from any danger due to the state of the premises or to things done or omitted to be done on them and so his claim fell outside both the 1984 and 1957 Act. In the words of Lord Hoffmann, 'Mr Tomlinson was a person of full capacity who voluntarily and without any pressure or inducement engaged in an activity which had inherent risk. The risk was that he might not execute his dive properly and so sustain injury. Likewise, a person who goes mountaineering incurs the risk that he might stumble or misjudge where to put his weight. In neither case can the risk be attributed to the state of the premises. Otherwise any premises can be said to be dangerous to someone who chooses to use them for some dangerous activity. In the present case, Mr Tomlinson knew the lake well and even if he had not, the judge's finding was that it contained no dangers which one would not have expected. So the only risk arose out of what he chose to do and not out of the state of the premises'.

Correct
Marks for this submission: 1/1.Question 19
Marks: 1 Clarence decides to buy a house in the country and finds a cottage next to a lake in a beautiful location. He is delighted and moves in immediately. When Spring arrives, however, he is disturbed by the constant buzz of jet-skis on the lake. He discovers that there is a local jet-ski club, which is about to host an international competition lasting a week. The club has received support from the local council for its activities and encourages local youths to take part in this growing sport.

Which of the following is a court most likely to find?

Choose one answer. A. That there is a nuisance, but an injunction on terms would be the correct response
B. That there is a nuisance, but damages would be an adequate remedy
C. That there is no nuisance due to the public utility of the club's activities, as recognised by the local council
D. That there is no nuisance because the club has permission from the council for its activities
E. Don't know
Feedback
The correct answer is "that there is a nuisance, but an injunction on terms would be the correct response".

The noise is likely to amount to a private nuisance. Any public utility or support from the council will not prevent a court finding a nuisance. However, the court will consider the public utility of the club's activities in assessing which remedy to give. Whilst Miller v Jackson [1977] Q.B. 966 suggests that the court would be reluctant in such circumstances to grant an injunction, the later case of Kennaway v Thompson [1981] Q.B. 88 suggests a more robust approach. In that case, the Court of Appeal was not prepared to allow the public interest to prevail over the private interest, but did not grant an absolute injunction, but chose to grant an injunction on terms which specified when motor-boat racing would be permitted on the lake. A similar result is likely to be achieved here.

Incorrect
Marks for this submission: 0/1.Question 20
Marks: 1 Dominic wishes to complain about the conduct of his neighbour, Elspeth. During a recent storm, a tree on her land was struck by lightning and set on fire. Elspeth cut down the tree which extinguished the fire and then rushed to catch a train to visit her aunt. In her absence, the wind picked up and reignited the fire which has now spread to Dominic's land and damaged his crops. Which of the following would suggest that Elspeth will be found liable in private nuisance?
Choose one answer. A. It is proved that a tree on her land caused the damage
B. It is proved that the fire caused a nuisance to Dominic's land
C. It is proved that she failed to take reasonable steps to deal with the fire
D. It is proved that she failed to take reasonable steps to deal with the fire in the light of her personal resources and ability to act
E. Don't know
Feedback
That's correct.
In Goldman v Hargrave [1967] 1 A.C. 645, Lord Wilberforce found similar conduct to amount to a continuation of the nuisance. A 'measured duty of care' would arise to deal with natural hazards which could foreseeably harm another: 'the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more' (at page 663). In Goldman, the occupier was found liable for merely cutting down a tree when he could easily have prevented any subsequent re-ignition of the fire by dowsing it with water.

Correct
Marks for this submission: 1/1.