Offer DEFINITION o Expression of willingness to contract on specified terms without further negotiation so that it only requires acceptance for

r a binding agreement to be formed (exhibited in Storer v. Manchester CC) o Intention to legally commit o Intention that is binding upon acceptance Only an offer is capable of immediate translation into a contract by the fact of acceptance Intention to be bound is assessed OBJECTIVELY HOW TO DETERMINE AN OFFER o Assess whether communication is sufficiently specific with respect to main obligation(s) and price so as to be capable of immediate acceptance o Assess whether statement made with intention that it will be binding upon acceptance o Assess language used: may be prepared to sell NOT an offer (Gibson v. Manchester CC) am prepared to sell VALID offer (Storer v. Manchester CC) first come, first served ARGUABLY VALID OFFER relying on the U.S. case of Lefkowitz v. Great Minneapolis Surplus Stores first 100 replies with $X enclosed ARGUABLY VALID OFFER relying on the U.S. case of Lefkowitz v. Great Minneapolis Surplus Stores Firm Offer of NO effect unless supported by valuable consideration; offer to keep offer open can be withdrawn at any time unless the option is purchased Routledge v. Grant VENDING MACHINES/AUTOMATIC TICKET MACHINES : OFFER once money is paid/put into the machine (acceptance), the transaction is complete What is NOT an offer? o Statement of minimum price Harvey v. Facey o Letter with heading subject to contract makes offer not legally binding Walford v. Miles c/f provisional agreement does not have the same effect Branca v. Cobarro o Invitation to treat Generally, (Newspaper) Ads, Brochures, Price Lists Prima facie not an offer o ADVERTISEMENT: prima facie an invitation to treat Partridge v. Crittenden EXCEPTION: Where advertisement is unilateral (promise to pay in exchange for an act); binding upon performance of the stated act Carlill v. Carbolic Smoke Ball o SHOP WINDOW: invitation to treat Fisher v. Bell o SHOP DISPLAYS/SHELVES: invitation to treat - Pharmaceutical Society of Great Britain v. Boots o WEBSITE: Arguably the electronic equivalent of shop displays, advertisements or catalogs = Invitations to treat Offer comes from customer at the checkout stage where they follow the instructions to process the order o REQUEST FOR TENDERS: invitation to treat Negotiating device used in commercial contracts NB: The tender would be the Offer EXCEPTION: Request for bids/tenders which commit the person requesting tenders to be bound to accept the highest bid; the highest bid cannot be a referential bid Harvela Investments v. Royal Trust. Co. of Canada 1

o o o o o o

NB: If the highest bid is not seen as a result of the default/fault of the person inviting the bids, he is still bound by the highest bid (e.g. bid submitted on time but the relevant personnel did not see it was stuck in box ) Blackpool v Blackpool BC AUCTIONS: invitation to treat Auction is invitation to treat; bidder makes the offer (not auctioneer) Payne v. Cave It is when the hammer is struck that offer is accepted; Bid is the offer which auctioneer may accept or reject British Car Auctions v. Wright Notice that an auction will be held on a certain date is not an offer which then could be accepted by turning up at the stated time. It is a statement of intention; no liability if auction not held or lots withdrawn Harris v. Nickerson Auction stated to be without reserve, still a statement of intention and there is no need to hold the auction; however, auctioneer is bound to sell to the highest bidder as without reserve constitutes a unilateral offer Barry v. Davies Without reserve auction: auctioneer MUST sell to the highest bona fide bidder NOT THE SELLER HIMSELF Warlow v. Harrison Communication of Offer Offer MUST be Communicated; ineffective unless and until it is communicated to the offeree POSTAL RULE DOES NOT APPLY TO OFFER No assent without knowledge R v. Clarke Motives in accepting offer, irrelevant if he has knowledge of the offer Williams v. Cawardine Cross offers do NOT constitute an agreement Tinn v Hoffman TERMINATION of Offer: [Acceptance] Revocation Offer may be revoked at any time before acceptance Byrne v. Van Tienhoven Must be communicated; revocation ineffective unless & until communicated to offeree May be communicated by a reliable 3rd party Dickinson v. Dodds Offer made to the whole world must be revoked by taking reasonable steps to inform the public, i.e. must revoke in same manner as advertised (with the same notoriety), e.g. placing ad in the same newspaper Shuey v. U.S.A. If offer was placed in shop window, taking it down is sufficient Revocation of an offer takes place when the letter is RECEIVED Cannot revoke once performance has commenced Errington v. Errington and Woods (if mortgage paid off by son & his wife, father would give them house; offer withdrawn shortly before full debt paid IRREVOCABLE); Daulia v. Four Millbank Nominees Lapse (Implied by law) LAPSE/PASSAGE OF TIME: at the end of a stipulated time-period OR after a reasonable time, where no time specified Ramsgate Victoria Hotel Co. v. Montefiore (attempt to accept offer to buy shares after 5months passed failed; offer lapsed) FAILURE OF A CONDITION: Financings Ltd. v. Stimson car badly damaged; offer lapsed since it was an implied term that car would remain in same condition as when offer made DEATH: Of the offeror if K of a personal nature or Offeree has no notice of the death: If performance is independent of the offeror, then acceptance is valid unless revoked before accepted - Bradbury v. Morgan (estate was liable to pay debt guaranteed by the deceased) Of the offeree 2

Rejection EXPRESS: Offeree rejected the offer IMPLIED: Counter-Offer>> Offeree varies terms or introduces a new term Hyde v. Wrench c/f Request for information Counter-offer; Generally an enquiry into flexibility of the offer terms; Offer therefore remains open Stevenson v. Mclean Qualifying cover later attached to a signed and completed application form may be a collateral K which does not affect the offer; completed form is unconditional acceptance Society of Lloyds v. Twinn NB: if offeree says I accept butX.and otherwise I will not be able to accept then this is not an acceptance Writing in blank spaces specifically left for that purpose is not acceptance but a counter offer; however if the person writes approved on it and they act upon the contract it is binding Brogden v. Metropolitan Rlwy Battle of the forms counter offer and implied rejection; but if counter offer accepted, then binding K Butler Machine Tool v. Ex-Cell-O Corpn. Ltd.

Acceptance DEFINITION o Offerees unequivocal expression of intention and assent made in response to and which exactly matches the offer o Acceptance MUST be communicated Powell v. Lee VALID ACCEPTANCE = Fact of Acceptance + Communication of Acceptance No acceptance where prescribed method of acceptance not followed Eliason v. Henshaw; Butler Machine Tool v. Ex-Cell-O If no exclusive method prescribed, an equally expeditious or advantageous method may suffice Manchester Diocese v. Council of Education; Tinn v. Hoffman RULES: o Acceptance must be in response to an offer; person accepting must know of the offer R v. Clarke If person accepting offer subsequently becomes aware of the offer at the time acceptance is communicated to offeror, then acceptance valid Gibbons v. Proctor (reward offered for info given to Supt. Penn; offeree had no knowledge of offer at time he gave info but became aware at the time info communicated reached Supt.) As long as there is knowledge, motive irrelevant Williams v. Cawardine o Acceptance must be communicated to the offeror (or his agent) - Powell v. Lee APPLIES TO TELEPHONE, TELEX, FAX RECEIPT RULE: Acceptance is communicated when & where received by offeror NOT when read Entores v. Miles Far East Where failure of communication is the offerors fault, he is liable; Messages at the risk of the recipient if he fails to man telex/fax machine Brinkibon v. Stahag Stahl Communication during business hours when offeree could reasonably expect offeror to be monitoring machine and would expect communication to occur when fax received is ACTUAL COMMUNICATION The Brimnes Within ordinary business hours in The Brimnes was deemed where message received between 5:30 p.m. 6:00 p.m. 3

EMAIL: s. 20 of the Electronic Transactions Act = Receipt rule (since sender will know if not sent) Where there is a designated e-mail address which was given then: Acceptance communicated via the designated address is when the document reaches the server Where, address other than designated address used, acceptance communicated when it comes to the attention of the offeror Where no dealings with email and e-mail used to accept either of the above INSTANCES WHERE ACTUAL COMMUNICATION IS NON-INSTANTANEOUS EVEN THOUGH INSTANTANEOUS METHOD USED When received at night or out of business hours Brinkibon v. Stahag Stahl Receipt deemed to occur on start of next working day Mondial Shipping v. Astarte Answering machine no case, argue by analogy What would offeree expect? Communication when message played back RECEIPT RULE EXCEPTIONS Implied waiver of communication Unilateral contracts - performance is sufficient no need to communicate one is attempting to perform Carlill v. Carbolic Smoke Ball Co. Ltd. NO waiver in Bi-lateral contracts promise in exchange for a promise Silence does not amount to acceptance even where offeror is the one who imposed such a condition Felthouse v. Bindley POSTAL RULE: Acceptance takes place when and where the letter is posted; not when received Adams v. Lindsell ONLY APPLICABLE TO ACCEPTANCE!!!!! ONLY APPLIES TO LETTERS and TELEGRAMS (non-instantaneous means of communication) It must be reasonable to use post as means of communication if offer by fax or telephone, unless stipulated, post may not be reasonable Acceptance even where letter lost in post Household Fire Insurance Co. Ltd. v. Grant Letter is posted when in possession of Post Office (letter handed to post man who only delivers but not authorized to accept is not properly posted) Re London & Northern Letter must be properly/correctly addressed Korbetis; Holwell Securities v. Hughes Where notice in writing is required by offeror it requires actual communication, POSTAL RULE is excluded Holwell Securities v. Hughes Retraction or Overtaking of Postal Rule: NO ENGLISH LAW ON POINT By strict postal rule in English law, once posted acceptance communicated and contract formed Countess of Dunmore v. Alexander suggests it is possible to do this (revoke acceptance by quicker method after it is posted); HIGHLY DUBIOUS AUTHORITY

Consideration HISTORICAL APPROACH TO DEFINITION o 16TH & 17TH C motives for giving a promise NB: When Denning revived promissory estoppel he opined consideration not necessary; this was however changed by WILLIAMS V ROFFEY. o Reason why promise should be kept i.e. because of reciprocity o 18th C merely a support for the fact that parties ICLR (per Mansfield) o Moral obligation o 19th C it became one of the essential ingredients to uphold a K NB: Consideration does away with legal formalities in some situations DEFINITIONS o Generally, the bargaining element of a K; law of K only enforces reciprocal agreements o The price paid for a promise to one party or detriment suffered by another. Hence a promise for a promise Currie v Misa o Right, interest, profit or benefit accruing to one OR forbearance, detriment, loss or responsibility given, suffered or undertaken by the other (Currie v Misa) = BENEFIT/DETRIMENT ANALYSIS => criticized; does not explain reciprocity of bargaining; fails to show distinction between legal benefit/detriment vs. factual benefit/detriment NB: Wlliams v Roffey revived this definition o Price for which the promise of the other is bought (Pollock in Dunlop v Selfridge)=> Preferred definition = shows exchange or bargain Kinds of consideration 1. Executed consideration a reward for an act i.e. entirely performed at the time the contract is entered into. 2. Executory a promise to do something in the future; promise for a promise 3. Past a promise of payment or some other benefit which comes AFTER the act Re McArdle promise is totally independent of the act; i.e. act is not because of the promise lacks the bargaining element Roscorla v Thomas horse promised to be w/o vice AFTER the sale Re McArdle improvements on building carried out; afterwards promise & written agreement to pay. NO CONSIDERATION. THIS WAS PAST CONSIDERATION PAST consideration is NO consideration EXCEPTION: o Pau On v Lau Yiu Long (3 Requirements) 1. Promisor requests service/act Lampleigh v Braithwaite 2. Circumstances imply/dictate that some payment of money or other benefit will be recovered for service Re Caseys Patents 3. Promise of payment/benefit must be legally recoverable/enforceable prior to agreement, i.e. payment not for illegal act o Where requirements met, this brings together the PROMISE + ACT = ENFORCEABLE K & PAST consideration will be good consideration (Pau On)

Rules 1. Must move from promisee TWEDDLE V ATKINSON ; DUNLOP v. SELFRIDGE 1. [only a party can sue=Privity of K] 5

2. Consideration MUST be sufficient, but need NOT be adequate CHAPPEL v. NESTLE 1. Adequacy is for the parties to decide; not the Courts (caveat emptor) BOLTON v. MADDEN 2. Arguable, however, there must be some economic value (Treitel) 3. SUFFICIENCY Question of FACT 1. Promise by son to stop nagging father in exchange for father putting son in will, NO CONSIDERATION - WHITE V. BLUETT c/f (USA CASE) Promise by uncle to pay nephew $5K on 21st bday if he refrained from drinking, swearing, etc. was enforceable; GOOD CONSIDERATION HEYMER v. SIDWAY 2. Promise to forego legal proceedings may be good consideration PITT V. PHH ASSET MGNMNT. LTD. 3. Sufficiency - What is offered as consideration must have some value in the eyes of the law CHAPPEL V NESTLE o Even though wrappers were going to be thrown away, Nestle gained a benefit as this was a promotion; wrappers were not a mere condition (Lord Keith) but part of the consideration (Lord Reid) o The contracting party can stipulate quite clearly for whatever consideration he choosesa peppercorn does not cease to be good consideration if it is established that the promisee does not like peppercorns and throws them away (Lord Summerville) Are casino/gaming chips good consideration? o NO CHT Ltd. v. WARD People do not game to win chips, but to win money Chips ARE NOT moneys worth but counters or symbols used for the convenience of all o NO, only mere mechanism to facilitate gambling LIPKIN GORMAN v. KARKNELL Solicitor stole money from clients used it to gamble and lost Firm sued the Club for the money Club argued they gave chips in exchange for the money and this was good consideration HELD: Gaming chips are not consideration but a mere mechanism to facilitate gambling; money RECOVERABLE. Perhaps decision made in interest of fairness and justice as otherwise the Club would have been unjustly enriched. o C/f CHAPPEL v. NESTLE Wrappers were a mechanism to facilitate marketing but were nonetheless GOOD consideration 4. INSUFFICIENT CONSIDERATION 1. Promise to perform an existing PUBLIC DUTY COLLINS v. GODEFROY (promise to pay subpoenaed witness unenforceable NO consideration; already under statutory/public duty Exception: o Going above & beyond public duty = GLASBROOK BROS v. GLAMORGAN CC mine owners & police case By assigning police to live on site, they acted above & beyond what they thought was necessary to maintain law & order in the first place; police could recover money promised GOOD CONSIDERATION. 6

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

2. A promise to perform an EXISTING CONTRACTUAL DUTY STILK v. MYRICK o Desertion of 2 sailors covered by the contract which stated that crew members had to cover for all emergencies; promise of extra pay UNENFORCEABLE NO CONSIDERATION EXCEPTIONS: o HARTLEY v. PONSONBY -if more than originally promised is performed then there is GOOD consideration Crew of 36, 19 deserted; of 19 only 4 or 5 able sea men Circumstances had changed so drastically and become so dangerous that original K had therefore come to an end and parties entered new contract which, on account of the perilous circumstances, was vastly different from previous K; promise to pay higher wages ENFORCEABLE GOOD consideration o THE ATLANTIC BARON promisee provided additional benefit and/or incurred additional detriment o WILLIAMS v. ROFFEY promisor gains a factual benefit or obviates a disbenefit, GOOD consideration Requirements promise is binding & money recoverable where: K for goods/services in return for payment o NB: Re Selectmove Court refused to extend principle beyond Ks for goods/services A has reason to believe B will not complete work on time A promises to pay B more to finish on time A secures a practical benefit or obviates a disbenefit Promise given without duress or fraud o ATLAS v. KAFCO driver for contracted haulers refused to move goods until agreement for more money entered into and signed ECONOMIC DURESS CRITICISM ARTIFICIAL South Caribbean Trading v. Trafigura Beheer 3. Duty owed to 3rd party SCOTSON v. PEGG o A agreed to deliver coal to Bs order; B ordered delivery to C o C promised to unload the coal o HELD: A could enforce Cs promise As delivery of the coal was GOOD consideration EURYMEDON o Consignee requested stevedore to remove goods, although already contracted by carrier to do so. GOOD consideration 7

4. Promise to pay a lesser sum PINNELS CASE payment of a smaller sum will not discharge duty to pay higher sum/full amt (even where creditor agrees!!!) o Applied in FOAKES v. BEER although Court opined that rule not consistent with commercial realities EXCEPTIONS: o Where original sum was unliquidated or disputed in good faith o Where AT THE CREDITORS REQUEST, payment is made: At an earlier time At a different place By a different method Is payment by negotiable instrument, e.g. cheques, a different method? o NO CUMBER v. WAYNE (18th C) o YES SIBBERY v. TRIP (1846) o NO GODDARD v. OBRIEN (1882) o NO - D & C Builders Ltd. v. Rees (1965) rd o Payment by 3 party HIRACHAND PUNACHAND v. TEMPLE o Composition agreement with creditors o Promissory Estoppel ___________________________________________________________ o Promise made by deed or in return for consideration o Payment accompanied by an additional benefit 3. Consideration cannot be of the past cant claim benefit for act completed (Re Mcardle) PROMISSORY ESTOPPEL DEFINITION o Equitable concept o Where A promises not to enforce his legal right and B relies on this promise. In such a case, equity prevents A from going back on promise where it would be unfair to do so ESTOPPEL = Promise + Reliance o Provides an alternative explanation as to why a promise is binding, i.e. reliance Based on Hughes v. Metropolitan Railway (time on a notice stopped running during negotiations) but established/revived OBITER in HIGH TREES (Landlord could only recover rent for post-war years when flats fully occupied) Used to mitigate harshness of Rule in Pinnels case REQUIREMENTS 1. A contract 2. A clear, unequivocal, (express or implied) promise or representation that a strict legal (i.e. contractual) right will not be enforced 3. Promisee in reliance on the promise alters his position Not necessarily to his detriment, although there is an argument that detriment should be involved EMERY v. UCB CORPORATE SERVICES 8

 Estoppel claim failed because Emery could not show that they had altered their position to their detriment or that they would have acted differently. (Emery was in too bad a financial standing and had no chance of recovery) SEECHURN v. ACE INSURANCE In personal injury suit, solicitor threatened to sue for final payment but did nothing further until limitation period passed. NO ESTOPPEL no evidence that Seechurn acted to his detriment 4. It would be inequitable for the promisor to go back on his promise The Post Changer LIMITATIONS o It is a DEFENCE to a claim, NOT a cause of action (Shield, not a Sword) COMBE v. COMBE does not create a new cause of action BAIRD TEXTILES v. MARKS and SPENCER NB: Claimant can rely on promissory estoppel where it is not the main cause of action HUGHES v. METROPOLITAN Rlwys In CRABB v. ARUN DC, it was doubted whether distinction between PROMISSORY and PROPRIETARY estoppel was helpful. Consequently, promissory estoppel then could be used as a cause of action. This has not been followed despite the Australian case of WALTONS STORES where it was used to create a new right of action. o Defendant cannot rely on promissory estoppel if not acting equitable (He who seeks equity must do equity CLEAN HANDS PRINCIPLE) D & C BUILDERS v. REES Defendant argued estoppel where Claimant brought action for remainder of money. NO ESTOPPEL Rees did not act equitably in putting undue pressure on D & C to accept smaller sum EFFECT of Promissory Estoppel TOOL METAL v. TUNGSTEN : o EXTINCTINCTIVE as regards existing obligations HIGH TREES > DURING WAR right to full rent extinguished o SUSPENSORY as regards future obligations - HIGH TREES > POST-WAR right to full rent after war when full occupancy was revived (obligation was suspended then revived) Waiver vs. Promissory Estoppel discussed in Brikom Investments v.Carr; Rickards v. Oppenheim Consider Promissory estoppel where issue arises re repayment (after looking at Consideration)

Intent to Create Legal Relations judged objectively based on presumptions You can have offer, consideration, and acceptance and dont have valid K Begs question is it intention or Public policy. Presumption is that the parties did not intend to create legal relations. PRESUMPTIONS o Social/Domestic Agreements NO ITCLR appears to be public policy Rebutted by:- clear reliance, certainty of terms, seriousness of promise (No express statement will suffice) Balfour v. Balfour - NO ITCLR o c/f Merritt v. Merritt ITCLR; breakdown of relationship takes agreement outside domestic arrangements; when parties in amity different; when breakdown, they bargain keenly not relying on honourable understandings Jones v. Padavatton promise to pay fees and living allowances, ITCLR; NO ITCLR where daughter lived in a house where other rooms let DETRIMENT: Parker v. Clarke couple sold house as instructed by older couple in exchange for the promise to get older couples house after they died >>>ITCLR MUTUALITY: Simpkins v. Pays ITCLR >> pooling of funds for lottery and entering in one persons name BUSINESS ARRANGEMENT: Snelling v. Snelling o Commercial Agreements heavy presumption of ITCLR Difficult to displace based on purpose of such Ks and undesirability for ITCLR to be a further hurdle for party seeking to enforce K Commercial Ks meant to be legally binding EDWARDS v. SKYWAYS Advertising generally mere puff Exceptions: o Carlil v. Carbolic Smoke Ball deposit of $$ - ITCLR o Barman v. A.B.T.A. notice of guarantee intended to be read and would be reasonably read by customers as constituting a binding offer which customers would accept by booking with member tour operators. Rebutted By: Express words denying that the agreement is to have legal consequences/enforceable in Courts Rose and Frank v. Crompton Bros. Statement that it is binding in honour only Jones v. Vernon Pools Comfort Letters Kleinwort Benson Ltd. v. Malaysia Mining Corp. Trade Union & Collective Bargaining Agreements Ford v. AUFFN NOTE: Where nature & context of parties dealings fall between a transaction and social agreement, the Claimant must discharge burden of proving commercial agreement. SADDLER v. REYNOLDS

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Intention - evidence n not substantive law Direct Intention Where D brings about a desired result, then he intends such a result (R v Mohan). He has intention where he has purpose and foresight of certainty. Indirect Intention Jury Question. Jury may infer a result is directly intended when: the result of Ds act is a virtually certain consequence of his actions, this will suffice as evidence which the jury can use to find intention; when D knows that it is a virtually certain consequence. DPP v Smith (natural and probable consequence) Intention can be formed instantly (man signalled to stop. Police jumped on car bonnet. D drove at high speed swinging car until officer thrown off and killed. He intended to cause GBH and held murder) objective test reasonable man

Subjective Hyam v DPP D lit mailbox fire to scare V High degree of probability of death or GBH intention R v Moloney wedding shotgun If result was a natural consequence and the defendant foresaw the consequence as being natural then he intended the consequence. Nothing less than intention will suffice o o o Was death/GBH the natural consequence Did D foresee one or other as a natural consequence of his act If so, CAN INFER intention

R v. Hancock & Shankland Big brick over bridge probability = foresight, the greater the probability of a consequence the more likely that it was foreseen, and more likely foreseen more likely it was intended. R v Nedrick Paraffin through letter box which was set afire Jury MAY infer intention if D recognized that death or GBH would be a virtually certain consequence, but is not obliged to do so R v Woollin man throws baby confirmed Nedrick test virtual certainty, can find intention need not go one step further to infer; substantial risk not enough Matthews & Alleyne court MUST find intention if death or GBH was a VCC; this direction Wrong

Recklessness SUBJECTIVE R v Cunningham (removed gas meter escaped into neighbours house who inhaled it) Was there an obvious risk which D consciously took or unconsciously took? Objective test. Reasonable man. Stevenson a man is reckless where he carries out a deliberate act appreciating that there is a risk that damage (to property) may result from his act; risk must be obvious in all circumstances and unreasonable; risk must have entered his mind

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OBJECTIVE Caldwell and Lawrence (Caldwell -D drunk set fire to hotel; Lawrence caused death by dangerous driving); person is reckless where he does an act which creates an obvious risk that property destroyed or damaged and when does the act has not given any thought to risk or takes it even after recognizing o Caldwell Lacuna What if D gave thought to the risk but thought there would be no harm (Shimmen)

R v G overruled Caldwell in light of lacuna o Not blameworthy to do something involving riskif one genuinely does not perceive the risk

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

Transferred Malice If D with the mens rea of a crime does an act which causes actus reus of same crime he is guilty even though result is unintended (R v Latimer - belt). o Does not extend to foetus A-Gs Reference No. 3

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

Coincidence of Actus Reus & Mens Rea D forms M/R but A/R not completed until later and at a time where he no longer necessarily satisfies M/R, he may still be convicted o Thabo Meli Ds hit V over head intending to kill him but only knocked him unconscious. Believing he was dead, and in an effort to fake an accident, they rolled him off a cliff. V died of exposure. HELD: impossible to divide up what was really one series of acts; Ds guilty of murder Church D beat woman unconscious and in a panic thinking she was dead, threw her into a river. She died from drowning. HELD: Ds act from moment he first struck her to when he threw her in the river was a serious of acts to cause death Le Brun D hit wife on chin intending serious harm and knocking her unconscious. While he was trying to drag body along the street to avoid detection, he accidentally lost his grip. Her head hit pavement, fracturing her skull and causing her death. HELD: time lag between first strike and Vs death did not stop it being a single sequence of events. Participation Who is a secondary party? Aid or abet the P offender before or at the time of the commission of the offence. Actus reus - aid abet counsel or procure Mens rea as long as u intended to aid..(national coal board v gamble) 12

Joint Enterprise participation of 2 or more persons in a crime, each assumes liability of the other a common design General both liable for accidental or unforeseen (R v Baldessare) Exception- major departure; only principal liable (Davies v DPP) The threshold for the mens rea for 2ndary party is lowered (murder) R v Powell; R v English- parties (2ndary) need to realize that death or GBH was possible In R v English if weapon fundamentally different then scotch free Duress by threats (Hudson v Taylor) By threats To a person Immediacy

Withdrawal If spontaneous, communication not required R v OFlaherty If planned, communication and acts reasonable to prevent crime Rook

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Injunctions DEFINITION o Equitable remedy o In personam o Order by the Court for a party to do something (Mandatory) or to refrain from doing a particular act (Prohibitory) Prohibitory - compelled not to do (restraint of trade clauses) Mandatory compels defendant to do what he is promised to do o NOT GRANTED WHERE - Supervision, severe hardship, or defendant disadvantaged o Restrain breach of contract of employment Warner Bros v Nelson; o Lumley v Wagner TYPES based on time-span 1. Perpetual Order finally settles dispute 2. Interlocutory/Interim deals with the matter in the interim, there is still a matter to be heard in the end; i.e. granted pending trial of substantive matter May be prohibitory, mandatory or quia timet (because he fears injunction before D does something) Usually remains in force until substantive trial of the matter; may be granted for shorter period GENERAL GUIDELINES o Right sought must be known to law or equity Cannot seek injunction because you dislike something DAY v. BROWNRIG o Damages not adequate Mandatory injunctions granted less frequently than prohibitory Mandatory injunction Specific performance o Mandatory inj may act as restorative remedy to have D undo a wrongful act or compel D to carry out positive obligations o Specific performance granted where contractual obligations are at issue (Mandatory inj can be given but this is rare) PRINCIPLES - American Cyanamid v. Ethicon 1975 o Pre Cyanamid J.T. Stratford & Sons v. Lindley Strong prima facie case that your rights have been infringed Damages would be inadequate Balance of convenience favour the grant Hence, prior to Cyanamid, Claimant had to show that it was more than likely that he would succeed at trial Effectively, a mini-trial which looked at merits of the case without hearing sufficient argument Where injunction granted, D would generally not proceed to trial FAST-TRACKING of matter. Claimants did this deliberately

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Current/Cyanamid REQUIREMENTS: 1. Serious Question to be tried instead of strong prima facie case; capable of serious argument 2. Case not frivolous or vexatious Balance of convenience o Carried over from precious dispensation o If Balance of Convenience does not favour grant: Preservation of status quo when all else fails the strength of each parties case must be considered, if present consider special factors r they aspects or departure? Damages Inadequate o Carried over from b4 RATIONALE: Courts should not be embarking on massive fact-finding missions at such a stage

Post-Cyanamid o Lord Diplocks enunciation in Cyanamid have not done away with previous dispensation principles entirely o Cyanamid is guideline and must never be used as a rule of thumb, let alone a straight-jacket Cambridge Nutrition v. BBC o Ends of justice not served by laying down hard inflexible rules from which no departure can ever be made Jagdeo Singh v. State of Trinidad & Tobago Special factors which may take case outside Cyanamid Principles: o This is the precise reason why Cyanamid did not lay down any hard and fast rules Fellowes & Son v. Fisher Lord Diplock refused injunction saying he did not feel bound by Cyanamid as there were escape routes from Cyanamid Lord Brown commented that there was flexibility NB: Denning still preferred strong prima facie case as he believed such matters warranted expeditious treatment o Special factors: Trade disputes strong prima facie case; Cyanamid doesnt apply Trial of action unlikely or delayed No arguable defence Patel v. W.H. Smith Libel cases inapplicable Bonnard v. Perryman Life saving treatment to a child Re J (A minor) Claimant cannot give a worthwhile undertaking in damages Mandatory Interlocutory Injunctions - Mareva and APO NB: If Cyanamid not applicable, relevant test is still strong prima facie case as prior Cyanamid

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ANTON PILLER ORDER DEFINITION o Named after ANTON PILLER KG v. MANUFACTURING PROCESSES LTD. o Known as a Search Order o It is NOT a search warrant o Court order which mandates the defendant to permit the Claimant to enter his premises and effect a search and seizure of evidence o If Defendant does not comply, he is in contempt of Court and also, negative inferences will be drawn against him at trial o Aim: to prevent destruction of incriminating evidence o Described as an innovation which has proved its worth time and time again Usually obtained ex parte, i.e. without notice, based solely off of affidavit evidence Draconian measure REQUIREMENTS o NB: Cyanamid rules DO NOT apply o Claimant must show: 1. Strong prima facie case 2. Actual or potential damage of a very serious nature 3. Clear evidence that defendant has incriminating evidence (documents, etc.) o Claimant cannot be going on a fishing expedition 4. There is a real possibility of them being destroyed before an application notice can be made DRACONIAN EFFECT o Strikes without warning since no notice o Violates audi alteram partem rule - based solely off of affidavit evidence brought by Claimant o Allows for exposure of sensitive information, e.g. sensitive or confidential information re the business, its clients, suppliers, creditors, etc. (notably the Claimant may be a competitor) o May lead to destruction of business custom o Effectively overrides the right of the citizen to an unprecedented extent o Can lead to gross injustice to Defendant, esp. where Claimant abuses situation or Order o Co-opts innocent 3rd parties into complying with an Order issued out of proceedings to which they were not parties 3rd parties may hold the information or documents which are subject to the order o Potentially violates the Defendants rights against self-incrimination o Any defence re self-incrimination is only applicable to the Defendant; third-parties may not be protected SAFEGUARDS o Strong prima facie case threshold which needs to be met by Claimant o Strict duty of full and frank disclosure of all relevant matters, even if prejudicial to Claimant Order revoked if full & frank disclosure not made (Fourie v. Le Roux although Mareva Case, still applicable) o Execution of Order must not be oppressive executed within business hours so Defendant can get legal advice, at the very least o Woman must be present at search of private home where woman may be alone o Experienced Attorney must be present and make comprehensive list of items taken 16

o o

Defendant may opt not to deliver up evidence which is self-incriminating Rank Film Distributors NB: Not available to 3rd parties Framework of safeguards refined in Columbia Pictures Industries v. Robinson and Universal Thermosensors v. Hibben

MAREVA INJUNCTION DEFINITION o Named after MAREVA COMPANIA NAVIERA SA v. INTL BULKCARRIERS SA However, not the first time Order granted. First granted in Nippon v. Karageorgis o Known as a Freezing Injunction o Interlocutory injunction ancillary to a substantive pecuniary claim for a debt or damages o Considered by Lord Denning as the greatest piece of judicial reform of his time (albeit he was doing the reforming) o Aim: prevent the Defendant from dissipating assets or removing them from the jurisdiction before trial so as to render judgment against him useless o Usually obtained ex parte, i.e. without notice, based solely off of affidavit evidence May be sought with APO Does NOT rest on Cyanamid principles REQUIREMENTS o Good arguable case o Full & frank disclosure of all material information o Claimant must give particulars of his claim o Claimant must undertake in damages, giving security in suitable cases o Claimant must establish that there is a risk of the removal of the assets outside of the jurisdiction DRACONIAN EFFECT o Strikes without warning since no notice o Violates audi alteram partem rule - based solely off of affidavit evidence brought by Claimant o May lead to destruction of business custom as assets are frozen, Defendant unable then to fulfill obligations to employees, creditors, etc. o Effectively overrides the right of the citizen to an unprecedented extent o Co-opts innocent 3rd parties into complying with an Order issued out of proceedings to which they were not parties 3rd parties (e.g. banks) usually hold the assets which are subject to the order Once served with a notice, 3rd party must not facilitate disposal of assets without a Court Order; otherwise, it will be in contempt of Court o Recent expansion of jurisdictional reach Originally involved a foreign national who had assets in England Today: May extend to ALL of the Defendants assets (although, a limit is usually specified) o i.e. Worldwide freeze of Defendants assets Derby & Co. Ltd. v. Weldon (No. 3 and No. 4) Republic of Haiti v. Duvalier 17

May be granted against locals with assets outside jurisdiction

SAFEGUARDS o Good arguable case threshold which needs to be met by Claimant o Strict duty of full and frank disclosure of all relevant matters, even if prejudicial to Claimant Order revoked if full & frank disclosure not made (Fourie v. Le Roux) o Applicant/Claimant has no action against 3rd party for negligence; but any expense incurred by 3rd party to comply with Order must be met by the Applicant/Claimant o 3rd party may have a remedy/right of set-off that it would normally have had prior to injunction o Execution of Order must not be oppressive Must not interfere with convenience or freedom of action of a third-party Galaxia Maritime Freezing order obtained for cargo on ship; Ship owner obtained discharge of the Order as it would have interfered with the crews arrangements for Christmas

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Specific Performance DEFINITION o Equitable Remedy- when c/l remedies not apply o Discretionary, but granted on settled principles E.g. ought not to be granted in respect of personal property; unless item is peculiar o Subject to the maxims of equity He who comes must come with clean hands Equity does not act in vain Jones v. Lipman: specific performance would not have been ordered if property was sold in arms-length transaction to bona fide purchaser for value without notice (company other than that owned by the Defendant) Courts are not in the business of supervising (corp insurance V argyll stores) Delay defeats equity Equity does not assist a volunteer o Given in the context of a contractual agreement o Order of the Court requiring a party to perform his obligation under the contract specifically Remedy in personam - Penn v. Lord Baltimore o Generally, governing principles are not to be avoided by seeking an injunction in the alternative; however, Courts have in fact ordered injunctions with the effect of specific performance and admitted to doing so Warner Bros. v. Nelson; Sky Petroleum Ltd. v. VIP Petroleum Ltd. DOCTRINE OF PART PERFORMANCE o If a party has sufficiently performed part of the contract (esp. sale or lease), in the absence of written agreement for land contract, Court may still grant relief by specific performance Sutton v. Sutton Sufficient part performance may then displace requirements of Statute of Frauds re Land contracts, particularly, that they be in writing o If binding agreement and sufficient acts of part performance, relief granted Wakeham v. McKenzie Part performance may be sufficient in cases where: Claimant takes possession of premises Claimant carries out work on premises Claimant pays rent in advance Claimant pays down substantial amount as deposit o Part performance cant unless its a severable K when significant work is done as it would be inequitable (design n build)

CONTRACTS FOR THE SALE OF LAND o COGENT v. GIBSON Unique nature of land makes it amenable to specific performance Since purchaser can get specific performance against Vendor; MUTUALITY PRINCIPLE applies and Vendor can therefore obtain specific performance against Purchaser (even though it is a contract to pay money) o MUTUALITY PRINCIPLE Where S/P can be ordered in favour of one party, it will usually be available to the other 19

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

CONTRACTS TO PAY MONEY o Not normally enforceable by specific performance since damages would be adequate: Locabail International Finance v. Agroexport Exceptions 1. Mutuality Principle (above) 2. Contracts to pay money to a 3rd party ( since damages awarded to Claimant would only be nominal) Beswick v. Beswick 3. Contracts for company to take up and pay debentures 4. Contracts for payment of annuity or other periodic sums (e.g. rent) o Specifically enforceable as it prevents Claimant from going to Court each time Defendant defaults on payment. Where S/P ordered, Defendants default is contempt of Court CONTRACTS FOR PERSONAL SERVICES o Generally, not specifically enforceable: Tantamount to slavery Requires supervision o Rule cannot be avoided by seeking injunction However, Courts have granted injunctions which have had effect of S/P (and they have admitted to doing so) 1. Hill v. Parsons, which applied 2. Lumley v. Wagner SINGER COULD BE INJUNCTED FROM SINGING ELSEWHERE 3. Warner Bros. v. Nelson Court opined that the injunction although having effect of specific performance was not tantamount to slavery as the actress could have worked elsewhere, such as in department store; just not act in another film o RULES Court will not generally award S/P where contract would require constant supervision 1. Posner v. Scott-Lewis a resident porter: ENFORCEABLE 2. Ryan v. Mutual Tontine a specific porter: NOT ENFORCEABLE Equity does not act in vain S/P not granted if it cannot be ensured that it would be carried out 1. Co-Op Insurance v. Argyll Stores o NOTE: If A makes promise to B in return for personal services, if B has completed the obligations for which S/P would not have been available by the time of judgment; B can obtain S/P against A If B has not completed by date of judgment, no S/P as A would not be able to get against B What is important is completion by date of judgment; not whether S/P could be obtained at time of K Price v. Strange Since equity is equality, ordering S/P for transfer of land because personal services rendered may be far too much; however, there may be an award of damages in acknowledgment of the services Jennings v. Rice

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Trust of homes Institutional form of trust imposed by law to grant a claimant an equitable remedy. Truth conditions Common intention to share of property Detrimental reliance

Lord Denning new model constructive trust (eves v eves) remedial effect lose predictive value Lloyds bank v rossett detrimental reliance =financial contributions Ossley v hisscock household duties saving u from paying these thus contribute to mortgage joint acct(grant v edwards) Stack v Dowden- look at whole course of dealings not only truth conditions baroness haye based on conduct what must have been the intention?

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Tort
Negligence
To establish Negligence there must be Duty of care Donoghue v stevenson Neighbour principle you must take reasonable care to avoid acts or omissions which you can reasonably foresee would injure your neighbour. Neighbour is persons who are so closely and directly affected that I ought to have them in my contemplation as being affected when doing the acts or omissions. o Current test in Jamaican law Anns v Merton 1) Is there sufficient relationship of proximity so that carelessness of D might cause damage to P so that prima facie duty arose? 2) Are there considerations which would limit the scope of the duty? Economic Loss Usually not recoverable. However where there is: Loss consequent to physical damage of property Spartan Steel v Martin Where plaintiffs suffered electricity loss as a result of negligence of D, this caused physical damage to factory furnaces and metal, they also lost profit on metal. HeldOnly the damages to furnaces, metal which had to be discarded and profit lost on discarded metal recoverable. Losses from factory being shut down for 15 hours not recoverable. Negligent Misstatement Headley Byrne v Heller Requirements 1. Advisor actually or inferentially knew that the advice was required for a purpose; 2. The adviser knew the advice would be communicated to the advisee; 3. It was known that the advice would be acted upon by the advisee without independent inquiry; 4. It was acted upon by the advisee to his detriment. Consider Caparo v Dickman where D had done audit for company being taken over, and P acted on the audit. Held: Not D's problem as D did the work for the company, not the P. P could've gotten independent audit. Advice given in social occasions may have liability attached. Though it isnt ordinarily. (Chaudhry v Prabhakar) Advisors may protect themselves by a disclaimer however this cant be applied where the notice is unreasonable (Smith v Eric Bush Purchasing house surveyer)

Breach Standard is the reasonable man test, usually man on the clapham bus, however this standard may be too low Blyth v Birmingham waterworks D had done what the reasonable person would've done. o Bolam Test Where D has repersented himself as having more than average skills, the test expects standards in accordance with a responsible body of opinion. o Novices must show same standard of care as a reasonable person with that skill. No allowance given for lack of experience. Child D is expected to meet the standard of reasonable child of same age Public authorities only liable for misfeasance and not for negligence for failure to act or to provide a service (under jamaican law)

Res Ipsa Loquitor Evidence speaks for itself Raises prima facie inference of negligence > Reverses burden of proof requiring D to show that damage was not caused by his failure to take reasonable care. Jamaica Omnibus v Hamilton Where Bus door flew open around a corner and Passenger fell out. Held that door under control of company and they were negligent. If part of car fails, then must show that it wasn't fault of D and he had taken all reasonable steps

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 Causation o Causation in Fact Claimant must prove on balance of probabilities that D's breach caused the harm. If there are multiple causes must prove that one particular breach caused the damage, doesnt have to be main cause, provided that it materially contributed. May be sufficient to prove that D's breach made risk of injury more probable (McGhee v National Coal Board) Causation in law Where there are 2 successive causes of harm, the court may regard first event as cause of the harm. Baker v Willoughby C sufferred injuries to left leg as a result of D's negligence. Subsequently in the course of his employment C was victim of armed robbery where he got shot in the left leg and it had to be amputated. D argued liability extinguished by 2nd incident. Held Prior loss was in no way reduced by amputation of leg.

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

Remoteness o o Previously in Re Polemis Held that once some harm was foreseeable the D was liable for full extent of the harm. Current Test Wagon Mound #1 test Only the harm that was reasonably foreseeable is recoverable. Extent of damage need not be foreseeable though (Thin skull rule applies R v Blaue jehovah witness) Claimant has duty to mitigate.

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Nuisance
What is it? Continuous unlawful interference with the use or enjoyment of land (or right In land) Private Nuisance Physical injury to the land (flooding); Encroachment on N land (overhangs); Interference with enjoyment (smell, noise). Requirements Continuous Over a period of time. A single act can however rarely amt to nuisance (Crown River Cruises v Kimbolton fireworks) Unlawful/Unreasonable C must prove D's conduct unreasonable, making it unlawful (sic utere tuo ut alienum non laedas use own property as not to injure your neighbour's). Court will take factors into account when assessing reasonableness o o o o o Locality Sturges v Bridgeman What is nuisance in belgravia may not be in berdmondsey Sensitivity Robinson v Kilvert Abnormally sensitive paper damaged by heat from adjoining premesis. Utility Harrison v Southwark Building work carried out at reasonable times of day is not nuisance. (if activity is useful for community as a whole may not be nuisance) Malice Christie v Davey Music lessons ruined by neighbour. State of D's land Occupier must take steps to prevent/minimise dangers to adjoining land Leakey v National Trust D had mound of earth which was gradually eroding into P's property. Held D must take steps to prevent or minimise danger from natural hazards on his land.

Interference with the use/enjoyment of land or right over it. Halsey v Esso Petroleum Held that doing work at 10am is fine. But at 10pm is not fine. Work disturbed neighbours sleep and caused damage to clothes from acid smut. *NB Interference with TV reception by building is not an actionable nuisance, it isnt interference with enjoyment of land. Who may sue Persons with proprietary interest or exclusive possession (Dobson v thames water) Who may be sued Creator of nuisance, landlord if he has knowledge of nuisance. Defences Prescription 20 yrs, statutory authority Remedies Injunction, damages amenity value, Cost of cure, Abatement Titus v Duke Tree in yard damaged C's car. C had warned D about tree. D refused to cut tree and told him to move car. Held D not liable, since respondent was occupier, could've taken steps to remedy.

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

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

What is it? Continuous unlawful interference with the use or enjoyment of land (or right In land) Types of private nuisance Physical injury to the land (flooding) Encroachment on N land (overhangs) Interference with enjoyment (smell, noise) Requirements Continuous interference Unlawful interference a single act can amt to nuisance (crown river cruises v kim Bolton) fireworks unreasonable use causes unlawful use sensitivity of claimant (give n take), (Robinson v kilvert steam damage paper crt says no)/(mckinnon industries v walker orchids) Duration and frequency Locality Malice (Christie v Davey) Interference with use prove physical damage or peaceful enjoyment (halsey v esso petroleum noise and vibration)/(hunter v canary wharf interference with tv reception ) persons with proprietary interest or exclusive possession (Dobson v thames water) creator of nuisance, landlord- knowledge of nuisance, come n continue nuisance. Prescription 20 yrs, statutory auth injunction, damages amenity value, cost of cure, abatement

Who may sue Who may be sued Defences Remedies

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

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Public Nuisance AG v PYA Quarries What is it? An act which materially affects the reasonable comfort/convenience of her majesty subjects. Eg. Unreasonable use and obstruction of highway. Its a crime and a tort (prove special damage over n above others) damages, injunctions can get for personal injuries

Remedies

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Rylands v Fletcher

Rylands v Fletcher
1. Defendant brought something onto his land; 2. D made non-natural use of his land 3. The thing was something likely to cause mischief if it escaped; 4. The thing escaped and caused damage 5. Now there is further requirement that the harm must have been foreseeable ( Cambridge water v Eastern Counties leather Held that though all requirements of Rylands v Fletcher were there, the harm was too remote)

Defences contributory negligence, unforeseeable act of a stranger Remedies Damages for Physical harm to land itself and other property. No personal injury though (usually negligence) Defences Consent (Where claimant consents to the presence of source of danger, provided there is no negligence will be a defence. o Common Benefit If danger was maintained for benefit of both C & D o Act of a stranger If stranger responsible not liable o Statutory authority o Act of God

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

Cambridge water company- only foreseeable harm is recoverable Transco PLc- courts took restrictive approach - claimant must have interest to sue -dangerous or high risk thing Defences contributory negligence, unforeseeable act of a stranger Remedies- no personal injury How relevant? Tort of negligence (Donoghue v Stevenson)

FOR JAMAICAN LAWYERS: Just an update as it relates to electrocution there is a case in Barbados Phillips v Barbados Light & Power, which says that you CAN recover damages for personal injury in Rylands v Fletcher FOLLOWING THE POLICY FOR SUCH RECOVERY IN AUSTRALIA. Note, this is a Barbadian case. Thus, you have the option of following the English jurisprudence or using the Barbadian case.
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ENGLISH LAWYERS: STILL GO ALONG THE ROUTE OF NEGLIGENCE AS PERSONAL INJURY IS NOT RECOVERABLE IN ENGLISH LAW.
Rylands v. Fletcher vs. Private Nuisance o R v F and nuisance can be invoked indifferently Read v. Lyons o Courts have refused to push the rule in R v F forward; stated clearly that R v F is a sub-species of nuisance Transco o Current trend of eroding non-fault basis of liability in R v F which has been reinforced in recent time Cambridge Water o Similarities Nuisance liability where unreasonable interference with Cs proprietary interest in land; principle of reasonable user R v F reasonable user similar to principle of natural use; in Transco Lord Bingham showed preference to ordinary use Foreseeability of damages important in R v F (Cambridge Water Co.) and private nuisance No recovery for personal injury in private nuisance (Malone v. Laskey) or R v F (Cambridge Water) o Distinctions LIABILITY R v F founded upon escape of accumulation (therefore, generally excludes things occurring naturally) Nuisance liability may arise for things occurring naturally (Charles v. Charles) TANGIBLE/INTANGIBILE R v F accumulation of tangible matter likely to cause damage if it escapes and which escapes Nuisance can cover damage caused by escape of intangible escapes such as noise (Rushmer v. Polsue) STANDING/LOCUS STANDII R v F once escape is established, anyone who suffers damage may claim irrespective of whether they are occupiers of adjoining land British Celanese Private Nuisance founded upon proprietary interest Molone v. Laskey

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Co-Ownership DEFINTION o Simultaneous/concurrent ownership of land by 2 or more persons o Simultaneous interest in the same land o Land subject to several and separate ownership in various forms TYPES o Joint Tenancy 4 unities Time Title Interest Possession Viewed as more perfect type of co-ownership because of Ius accrescendi Ius accrescendi IS The right of Survisorship Odious in equity because of: 1. Lottery effect/uncertainty survival of the fittest; no-one knows which JT will out live the other(s); EQUITY PREFERS CERTAINTY 2. Inequality JT may get entire interest without having contributed anything at all or only a small portion; EQUITY IS EQUALITY 3. Unconscionable nature JT is not allowed to do what he may with his portion of the property; ius accrescendi thus acts without conscience or compassion as it relates to not just wishes of JT but also the needs of those who may depend on him All owners viewed as a single legal entity Co-owners own ALL the land; no separate ownership All co-owners must act in concert o Tenancy In Common Co-owners hold a separate but undivided share in the land Each co-owner can deal with their undivided share as they see fit Less perfect since only one Unity, unity of possession, and ius accrescendi does not apply On death of Tenant in Common, his undivided share devolves to his estate In Jamaica, co-owners may be Joint Tenancy or Tenancy in Common at law (i.e. on Title) o c/f England where only JT at law Where conveyance/transfer without words of severance, JT at law equity follows the law So, generally, where parties purchase as co-owners, JT is presumed o SPECIAL CASE Commercial undertakings right of survivorship incompatible with commercial undertakings so really TIC (in equity) Co-owners for partnership (business or otherwise) Lake v Craddock Purchasing for individual business purposes - Malayan Credit 29

SEVERANCE o Act of transforming joint tenancy into a tenancy in common o Severance must be inter vivos Williams v. Hensman o Cannot sever legal title; can only operate in equity o METHODS: Alienation - Williams v. Hensman JT acts on his potential share; potential share would be referable to number of parties If JT seeks to sell, Statute of Frauds must be met Other JTs need not know Mutual Agreement - Williams v. Hensman ALL JTs must agree; not some Need not be in writing Burgess v. Rawnsley Mutual Conduct - Williams v. Hensman No hard and fast rule; depends on circumstances in respect of their conduct o E.g. if they partitioned house or treated one side of house as belonging to one and the other side to the other Homicide common law forfeiture rules against unjust enrichment o NB: Notice IS NOT sufficient (LAWRENCE v. MAHFOOD); (GAMBLE v. HANKLE) - nothing short of a registered transfer will suffice (Generally) Gamble v. Hankle inter vivos deed of transfer did not conform to requirements under Registration of Titles Act but was nevertheless a sufficient act showing alienation of interest o Severance creates a trust situation Legal owners (on title as JT) hold on trust for themselves and persons in equity (those who severed, etc. as the case may be) FORCE OF SALE o Decision based on parties relationship in light of ALL circumstances, esp. where there is a trust Starting point Re Buchanan-Wollastons Conveyance - can the purpose of the trust still be carried out All surrounding circumstances must be taken into account Whether in light of the moment and circumstances, it would be right and proper to order sale Whether voice of person seeking force of sale should prevail Re Evers Trust purpose of trust was to provide a family home; NO SALE Re Holliday purpose of trust was matrimonial home; SALE POSSIBLE; interests of the children only taken into account insofar as they affected the equities in the matter as between the two beneficially entitled persons However, it is suggested that the conflict is merely a matter of language Cousins v. Dzosens o Court will consider: Intention of creator of trust Purpose of trust Welfare of the children

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

APPORTIONMENT OF PROCEEDS, WHERE SALE SUCCESSFUL Where financial contribution, resulting trust; otherwise constructive trust Presumed intention resulting trust arises as a result of contribution to purchase money o Contribution resulting trust as tenants in common referable to contribution Dyer v. Dyer o Presumption Rebuttable where: Declaration Goodman v. Gallant Absence of express declaration Stack v. Dowden principles

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Easements DEFINITION o A right to use a persons land for the benefit of another piece of land (right in rem) ESSENTIALS o Re Ellenborough Park 1. DT and ST 2. Owned and occupied by separate persons (Diversity) o Cannot have right over own land or right against oneself 3. Right must accommodate or benefit the DT o Right must not be a personal benefit to owner Hill v. Tupper 4. Capable of a Grant -capable grantee/grantor sound mind and age -sufficiently definite footpath, etc. (No right to privacy (Brown v. Flower; Bernstien v. Skyways); No right to a view (Aldreds case); Right to general flow of air Chasty v. Ackland) -analogous to existing easement in nature of rights held to be easement Recognized easements Right of way Borman v. Griffiths Storage Wright v. McAdam Passage of air through specific channel Wong v. Beaumont Right to require ST owner to put up fencing Crowe v. Wood Right to put sign on neighbours land Moody v. Steggles Parking London & Blenheim v. Ladbroke Right to use communal Gardens Mulvary v. Jackson Right to use neighbours toilet Miller v. EMCER Right to light Colls v. Home & Colonial Stores Right to light for business purposes is sufficient light for the premises for ordinary business use Right to light of itself is insufficient to form easement S. 3 Prescription Act 2oyrs enjoyment makes right indefeasible -must not exclude servient tenement owner altogether o If Re Ellenborough not met, then there may be a licence Creation of easements o Easements may be granted or reserved Granted sells DT Reserved retains DT; sells ST o Grant of an easement express grant by deed legal Must be in writing Clear on the face of it that intended to be a deed Signed by person making deed in presence of witness who attests signature Delivered as a deed express grant by K equitable Not delivered as deed But in writing > Statute of Frauds satisfied 32

Signed by or on behalf of both parties and containing express terms of agreement implied by necessity legal easement Implied into deed Absolute necessity Titchmarsh v. Royston o Must be no evidence of alternate route Menzies v. Breadalbane o Not created simply because of public policy; but upon circumstances of the situation - Nickerson v Barraclough implied by mutual intention legal implied into deed Courts give effect to what it believes intention of parties was o Wong v Beaumont Trust implied grant (Wheeldon v Burrows) can be either as to document Single owner DT sold Maturation of quasi-easement REQUIREMENTS: o Continuous & apparent o Necessary for the reasonable enjoyment of land sold o In use prior to and at time of sale for benefit of DT Example: Borman v. Griffiths Also applicable where common owner sells DT and ST to X and Y at the same time implied grant s.9 Conveyancing Act every Conveyance of land passes with it all liberties, privileges, easements, rights & advantages appertaining to or reputed to appertain to the land or any part thereof REQUIREMENTS: o DEED- does not apply to Ks >> Borman v. Griffiths For leases < 3yrs; written K o S. 9 not expressly excluded o Right meets Ellenborough Park o DT and ST owned by same person; but occupied by different persons

o prescriptive easements legal without force without permission without secrecy BASIS: long user as of right TYPES: Common law time immemorial = 1189; Lost Modern Grant (rebutted by showing no-one could have possibly given grant); Prescription Act 20yrs Reservation -legal express deed Must be in writing Clear on the face of it that intended to be a deed Signed by person making deed in presence of witness who attests signature Delivered as a deed implied by necessity absolute necessity 33

Implied into deed Absolute necessity Titchmarsh v. Royston o Must be no evidence of alternate route Menzies v. Breadalbane o Not created simply because of public policy; but upon circumstances of the situation - Nickerson v Barraclough implied by mutual intention implied into deed Courts give effect to what it believes intention of parties was

Wheeldon v. Burrows v S.9 o WB continuous and apparent Necessary for reasonable enjoyment In use previously existed and at time of sale Owning the whole transfer part Applies to contracts o S9 Single owner; diverse occupation doesnt require continuous does not apply to k far wider than wb PROTECTION o LEGAL EASEMENT binding upon the world o EQUITABLE EASEMENT binding upon all except bona fide purchaser for value without notice Increase in use of DT will not necessarily extinguish easement o as long as nature of the use does not vary, it will be within the initial grant White v Grand Hotel Eastbourne house changed to hotel; British Rlwys Board v. Glass railway crossing used for crossing cattle then caravans were given permission to use by the person entitled to easement WITHIN GRANT, as above o If use is excessive, right can be challenged - Jelbert v Davis

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Defences Insane automatism (insanity) (MNaughten rules) Sane automatism Complete loss of control due to an external cause and it is not self-induced Denial of actus reus (R v Quick) Intoxication (voluntary or involuntary) Voluntary intoxication Alcohol and dangerous drugs Partial defence to crimes of specific intent e.g. murder (DPP v Majewski) Dutch courage - public policy Intoxication other than alcohol and dangerous drugs (R v Bailey) Defence to crimes of specific and basic intent provided not reckless (Myquil) Involuntary intoxication (spiking drinks) Complete defence to all crimes (R v Kingston) Self-defence Proportionate and reasonable use of necessary force (R v Williams) D commit no offence if the force used was reasonable in the circumstances as he believed them to be Defect of reason by disease of mind which renders the defendant to not appreciate the nature and quality of the act or even if he did, did not know it was wrong (legally) Defendant to prove own insanity Disease of mind legal concept not medical Rule which negatives the mens rea

Duress Limited not applied to murder or attempted murder 35

By threats (R v Hasan) Threat to kill or do GBH To self or person for whom one is responsible Immediate; Threat and offence near By circumstances (analogous to necessity) Threats from external source Necessity D committed crime in order to avoid an even greater evil (Re A (Children) 2 reasons for recognizing the defence Unjust to punish D for something a reasonable person would have done in same circs The law should encourage D to choose the lesser and avoid greater evil on public policy Mistake Ignorance of the law excuses no one Mistakes of fact denies mens rea bear Mistakes as to the actus reus Tolson (1889) Honest reasonable belief now bad law Mistake should be honestly

Equitable remedies Damages monetary compensation for non-performance of contractual obligations Available as of right

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Specific performance Substitution not possible eg fine art Adequacy of damages / appropriateness of damages SP not granted Too difficult to supervise No mutuality Used to be thought of at the time of contracting Price v Strange time for considering mutuality is time of trial Risk of hardship to defendant Equity will not assist a volunteer If claimant has not given consideration for promise eg. Contracts by deed Delay defeats equity (laches) Damages can be awarded in lieu of specific performance

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