Law Degree Revision Blog

A tool for law students to improve general recall on the most fundamental modules for exams. Working at a basic-ish level but a good basis for further exploration!

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Modified Ultra Vires Theory: Constitutional Necessity

UV supporters believe that only MUV coheres with Parl Sov and that it is this very meaning of PS that demands adherence to the UV model. This is based on the Forsyth’s idea that what an all-powerful Parliament does not expressly prohibit, it must authorise (either expressly or impliedly). If this were not so the assumption would be that Parliament did not intend the constraints on statutory power to exist. 

As a consequence: judicial power is contingent on finding consent to limits read into legislation. It does not suffice on this model that Parliament can reject and change any conditions imposed by courts.

Problem I: “the unexpressed middle” = Parl may not have any intent about a matter one way or the other

Problem II: if it is true, then it has the consequence that LI must be regarded as the foundation for all bodies of law, including private law, where the common law principles are read into legislation.

Problem III: CL model is in accordance with ‘classic continuing sovereignty model’ - embodies the idea of legislative omnipotence in the sense of ability to change. 

Consequence: it’s totally legitimate to say judicially created controls apply unless Parliament has indicated otherwise in pursuance of its continuing sovereignty. We just have to prove that the continuing model should be adopted – Craig says this model is consistent with history, case law and principle.

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Situations where a trust can be varied

Variation by trustees and beneficiaries

Trustees under the trust instrument

Beneficiaries under the rule in Saunders v Vautier. This usually amounts to termination of the whole trust.

Variation by the court

Miscellaneous powers section 57, Trustee Act 1925 – this allows the court to confer extra powers in the management and administration of the trust e.g. wider investment powers

The VTA gives the court a general power to vary the beneficial interests under a trust. The court’s approval is needed.

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Harassment

The introduction of a statutory tort of harassment under section 3 Protection from Harassment Act 1997 obviated the need for creative use of other torts:

D pursues a course of conduct

That amounts to harassment of another

D knows or ought to have known that his conduct would amount to harassment

No requirement that the claimant suffers physical or psychological harm as a result of the harassment

The tort is satisfied if the claimant experiences alarm or distress as a consequence of the defendant’s actions (subjective)

Defences are set out in section 1(3) of the Act and include detection and prevention of crime and acts which are reasonable in the particular circumstances

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Specific performance

Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd= an equitable remedy that compels the party in breach to perform his part of the contract. It is generally positive in nature.

The availability of specific performance is on the basis of three considerations: 

At is available only if damages are not an adequate remedy.

As it is an equitable remedy, it is available at the discretion of the judge. 

It is available only for certain types of contract.

Damages are not an adequate remedy

No substitute is available

Cohen v Roche - ordered eight Hepplewhite chairs at an auction, court ordered damages: there was nothing special about the chairs that made them unique and irreplaceable

Phillips v Lamdin - purchased a house including a rare, ornate door made by an artist who had died. Not an option for D to offer money to cover the value of the door.

NB courts tend to view land as unique regardless of characteristics

An award of damages would be unfair to the claimant

if it would cause unfairness to the claimant, i.e. it would leave the claimant without adequate recompense. 

e.g. if the financial value of the loss is very low, a successful claimant will receive only nominal damages [Beswick v Beswick] 

Sale of Goods Act 1979, section 52(1)

“in any action for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit, on the plaintiff’s [now claimant’s] application, by its judgment or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages.“

Discretion of the court

Stickney v Keeble - ‘equity will only grant specific performance if, under all the circumstances, it is just and equitable to do so’

Delay defeats equity [Milward v Earl of Thanet]

He who comes to equity must come with clean hands [Walters v Morgan]

A defendant may resist specific performance on the basis that it would cause extreme hardship to him [Patel v Ali]

Specific performance will not be ordered if the contract requires performance over a period of time so that constant supervision is needed as this would be impractical [Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd]

Type of contract

Generally, specific performance will not be ordered in relation to contracts for personal services, such as a contract of employment. 

Per Geoffrey Lane LJ in Chappell v Times Newspapers Ltd: “Very rarely indeed will a court enforce . . . , a contract for services. The reason is obvious; if one party has no faith in the honesty, integrity or the loyalty of the other, to force him to serve or employ that other is a plain recipe for disaster.”

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Wilkinson v Downton

D told C that her husband had been seriously injured in an accident. This was untrue and had been meant as a practical joke. The claimant suffered a serious shock which led her to suffer adverse physical symptoms for a period of time. 

a person who has ‘wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to safety, and has in fact thereby caused physical harm to her’ has provided a good cause of action

Despite its obvious potential (as it pre-dated the development of cases concerning nervous shock), this case was rarely used in this jurisdiction. The requirements for liability were clarified in Wong v Parkside NHS Trust:

There must be actual harm (physical harm or recognised psychiatric illness).

D must have acted intentionally.

The conduct must be of such a degree that it is calculated to cause harm so that D cannot say he did not mean to cause it.

In Rhodes v OPO, SC held that the defendant must have intended to cause physical harm or severe mental or emotional distress. Recklessness is not sufficient.

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Exclusion of trustees’ liability

Armitage v Nurse - The trust excluded the liability of the trustees for loss or damage unless caused by the actual fraud of the trustees. This was upheld.

There is a view that trustee exclusion clauses have gone too far e.g. McCormack (1998) and Citibank NA v MIBA Assurance SA. 

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Modified Ultra Vires Theory: Explanatory Power

SLI Model subject to the critique that it was empirically unrealistic; MUV said to be justified because Parliament could realistically be regarded as having a general intent.

Problem I: Empirical argument elides ‘approval’ with ‘creation’. GLI could be posited for all manner of things, including an end to child poverty, international conflict, and economic recession.

Problem II: If approval in the preceding sense suffices for GLI to be regarded as the foundation for judicial review, even if it played no part in doctrinal creation, the same must equally be true for all areas of the law

Problem III: MUV cannot provide a normative basis for administrative law and cannot provide ex ante guidance as to grounds on which courts should intervene

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False imprisonment

= ‘The infliction of bodily restraint which is not expressly or impliedly authorised by the law.’ (Winfield and Jolowicz)

Total loss of freedom

It is not enough that the defendant cannot go where he wants provided that he can go somewhere [Bird v Jones]

If there is reasonable means of escape, there is no false imprisonment.

Restraint need not be physical. A person who is told not to leave and complies with this instruction suffers a total loss of freedom.

Need only be temporary [Walker v Commissioner of the Police of the Metropolis]

Knowledge

An action for false imprisonment may arise if the claimant was not aware that he was being detained at the time of the detention [Murray v Ministry of Defence]

Defences

Reasonable condition for release 

= if D’s detention of C is contingent upon the performance of a reasonable condition, i.e. payment of a toll or delay based on the need to wait for appropriate transport

Lawful arrest

Medical detention

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Defences to assault and battery

Lawful authority

e.g. police can use reasonable force when arresting

Self-defence

A person may use such force as is reasonable to protect against an actual or perceived threat of harm against themselves or another person. 

The force used must be proportionate to the threat.

A mistaken belief that a person is under attack must be honestly and reasonably held.

Parental authority

The right of a parent to use physical force to chastise a child is a hugely debated topic and could possibly contravene Article 3

It may amount to battery if the level of force is disproportionate to the child’s behaviour or if the child does not understand the purpose of the punishment [A v UK]

Consent

Consent may be express or implied. 

Consent must be given freely by a person who has the mental capacity to exercise choice and to give or withhold consent.

Necessity

Interference with another person may sometimes be necessary to protect them from a greater evil.

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Modified Ultra Vires theory: Judicial Support

Courts say that they are enforcing the will of Parliament (Boddington v BTP; ex p Page); R (A) v Croydon LBC – court decides legality of administrative action with relation to a statute, ex p Venables – court deciding whether administrative action is unlawful with reference to Parliamentary intention

Problem I: it is ambiguous whether the courts are really supporting this specific doctrine, or whether ‘ultra vires’ is a synonym for ‘unlawful’

Problem II: not all instances of judicial review can be readily explained with reference to statute: prerogative powers [GCHQ]; control of non-statutory bodies [ex p Datafin]; controls over discretionary powers [Wednesbury]

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Foundations of Judicial Review

(1) Core claim: that the precepts of judicial review must be based on legislative intent, since if this were not so such review would constitute a strong challenge to the sovereignty of Parliament --> this is accepted by UV school of thought, but rejected by common law school

(2) Two types of legislative intent: specific or general:

Specific: Parliament has intent as to the meaning of how each particular head of review should apply in each statute

General: Parliament taken to intend that its legislation conforms to the basic principles of fairness and justice which operate in a constitutional democracy. It leaves power to courts to work out precepts of JR in accord with the rule of law 

(3) UV school based primarily now on general legislative intent, GLI, not specific legislative intent, SLI  known as modified ultra vires model, MUV

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Duties and powers of trustees

A duty must be exercised, although the trustee has a discretion as to precisely how it is exercised (e.g. a trustee has a duty to invest but a discretion in what to invest in).

A power is discretionary but if it is a discretionary trust the trustees may be obliged to exercise a discretion.

The courts can interfere in the exercise of trustees’ powers if they have acted in bad faith [Klug v Klug]

Sieff v Fox - Lloyd J: ‘Where trustees [make a mistake] the court will interfere with their action if it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account, or taken into account considerations which they ought not to have taken into account.’

The legislation on trustees’ powers operates in default of any provision in the trust instrument to the contrary (see s. 69(2), Trustee Act 1925)

Main duties of trustees

The duty to give information = there has been a shift from the approach in Re Londonderry’s Settlement, which emphasised that beneficiaries are allowed to see documents which contain information about the trust

In Schmidt v Rosewood Trust Ltd the court emphasised that the issue is the requirement for the court to supervise the trust.

Duty to act impartially = the trustee must act impartially and so must strike a balance between the interests of the life tenant (income required) and the remainderman (preservation of capital required) [Howe v Earl of Dartmouth]

Statutory duty of care = applies to: investment, acquisition of land, appointment of agents, insurance, compounding of liabilities etc.

The fundamental reason why it was introduced was that the duties of trustees were governed mainly by nineteenth century case law which was quite out of date.

Main powers of trustees

Maintenance = payment of income to beneficiaries before they are entitled.

Advancement = payment of capital to beneficiaries before they are entitled

Re Kershaw’s Trusts - An advancement was sought to enable the beneficiary’s husband to set up in business and so prevent the family separating. An advancement would be made. The term advancement has a wider meaning than just financial benefit.

Power to buy land = s. 8 TA 2000

Delegation by trustees = may delegate all functions except: decisions on distribution of assets; decisions on whether to pay fees or other payments out of income or capital; appointment of new trustees; power to sub-delegate.

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Trespass to the person: Assault

= ‘an act which causes another person to apprehend the infliction of immediate, unlawful force on his person’ [Collins v Wilcock] per Lord Goff

Intentional act =

Assault requires a deliberate act by the defendant. Although historically, ‘no words or singing can amount to an assault’ [R v Meade and Belt]

R v Ireland - silent telephone calls 

Reasonable fear = 

Reasonableness is judged according to the claimant’s perceptions of the defendant’s actions [R v St George]

The claimant must believe that the threatened attack is possible and will be carried out [Thomas v National Union of Mineworkers]

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Trespass to the person: Battery

= ‘intention and direct application of force to another person’ (Winfield and Jolowicz)

Intentional use of force = [Letang v Cooper - sunbathing in car park] 

D must make contact with the body or clothing of the claimant 

Direct application of force

Contact by a third party [Scott v Shepherd]

Contact made indirectly [Pursell v Horn] 

Direct contact with the wrong person [Livingstone v MoD]

Level of force

No requirement that battery causes harm

Level of force may be extremely low [Cole v Turner]

Contact must be hostile, which in turn has been interpreted to mean that the actions were unlawful [F v West Berkshire HA]

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The constitutional basis of judicial review

The central principle of administrative law is ‘beyond the powers given’ – so the courts are just enforcing the will of Parliament, this is the UV theory

BUT the specific intent ultra vires doctrine is highly problematic  there are many situations where courts enforce principles of good administration which have no relation to the statute: prerogative powers [GCHQ]; control of non-statutory bodies [ex p Datafin]; controls over discretionary powers [Wednesbury]

Laws and Woolf - sees the ultra vires doctrine as a ‘fig-leaf’

Two models display starkly different relationships between the branches of the constitution:

Common law model sees the pursuit of administrative justice as the domain of the courts - with principles of good administrative justice imposed separately to legislative intent

Modified ultra vires doctrine sees good administration as a co-operative endeavour

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Appointment, retirement and removal of trustees

Appointment of trustees is normally made in the first instance by the settlor or testator in the instrument or will which creates the trust.

S. 36(1) of the Trustee Act 1925 (TA 1925) lists eight cases where trustees who, for example, die, wish to be discharged, etc. can be replaced by the remaining trustees.

Under s. 41, TA 1925 the court can appoint new trustees where it is ‘impracticable or inexpedient to do so without the assistance of the court’.

Retirement of trustees is governed by s. 39, TA 1925 and removal is governed by the general powers of the court.

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Trespass to land: Remedies

Self-help = a landowner may use reasonable force to repel or expel trespassers provided that the trespasser has not obtained full possession of the land, i.e. force cannot be used to evict squatters. 

Self-help can also be used to remove objects placed on land, e.g. a landowner can cut branches from trees that are encroaching onto his land, although he must ensure that the property (the cut branches) is returned to the possession of its owner.

Possession orders = if a trespasser has full possession of land, an order for possession must be obtained to restore the land to its rightful owner