Written By Billy Sexton, Editor, AllAboutLaw.co.uk

Key Questions for Core Areas of Law - Part 2

Written By Billy Sexton, Editor, AllAboutLaw.co.uk

In part two of a special series (part one can be found here) organised with Oxford University Press and their authors, AllAboutLaw.co.uk take three core areas of law (Land Law, Public Law and Tort Law) and ask some key questions about each area. This should provide LLB and GDL students with some extra knowledge regarding each specific area, which should be handy when it comes to completing coursework and revising for exams…

Land Law: How do you determine the status of an interest in law (Legal or Equitable)? What is the significance of this distinction?

When is an interest legal?

The Law of Property Act 1925 reduced the number of estates which may subsist at law to two; namely, the fee simple absolute in possession and the term of years absolute. Additionally, the number of legal interests were reduced to five: an easement, a rent charge, a charge by way of legal mortgage, any other charge on land not created by an instrument and rights of entry exercisable over or in respect of a legal term of years, or annexed to a legal rent charge.

Moreover section 1 only lists those interests that may be legal, and in addition to an interest or estate coming within the provisions of section 1 it must also comply with certain statutory formalities. The Law of Property Act 1925, section 52(1) states, “All conveyances of land or any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed”, and the Law of Property (Miscellaneous Provisions) Act 1989 section 1 says what form the deed must take. Therefore, even if an estate or interest in land comes within section 1, it must also be created in the correct manner, otherwise it is not legal.

In the case of registered land, certain dispositions must also be completed by registration, and will not operate at law until the relevant registration requirements are fulfilled. The result of this provision is that the transfer of a registered estate, the grant of a legal lease for more than seven years, the express grant of a legal easement, or the grant of a legal charge cannot be effected merely by means of a deed.

When is an interest equitable?

Apart from those interests and estates within section 1(1) and (2) Law of Property Act 1925 every other right which is capable of being an interest in land is equitable only. Moreover, in the case of registered land the effect of the Land Registration Act 2002 means that the grant of interests listed in section 27 can only take place in equity until perfected by registration.

Rights which have the ability to be legal under section 1(1) and (2), but which are created or disposed of by deed may be treated as equitable interests (i.e., estate contracts), if they comply with the statutory formalities for a contract for the sale or other disposition of an interest in land (see the Law of Property (Miscellaneous Provisions) Act 1989).

Even where an interest is granted by means of a deed, if the interest does not come within the interests listed in section 1, it will not be legal, but will remain equitable. For example, if Amy grants Bill a restrictive covenant in a deed, the restrictive covenant is still equitable.

Meryl Thomas is a lecturer at Truman Bodden Law School in the Cayman Islands and the editor of Blackstone’s Statutes on Property Law 2014 - 2015.

Public Law: Define what the courts can and cannot do with an Act of Parliament

The law made by Parliament enjoys a pre-eminent position under the UK’s constitutional arrangements as a consequence of the strength of Parliament’s legislative authority.

Unlike legislatures in other countries, whose powers are often limited by an overarching constitutional document, the UK Parliament’s law-making powers are very wide. Provided that a Bill has passed all of its stages and received Royal Assent, it was long recognised that the role of the court was essentially to interpret and obey the law made by Parliament. Accordingly, any attempt to question the validity of provisions in an Act would be rejected.

In more recent times, however, the orthodoxy has changed. Membership of the EU and the enactment of the Human Rights Act 1998 have had an important impact upon the relationship between Parliament and the courts. Whilst the judicial branch of government undoubtedly remains weaker than the legislature, it is now accepted that where Parliament legislates contrary to EU obligations, a court may disapply the relevant provisions. Moreover, some judges have expressed the view that if Parliament were to enact laws which sought to prohibit judicial review, or which eroded fundamental human rights, the obligation of judicial obedience may also not apply.

A primary function of the higher courts is to interpret the law made by Parliament. Traditionally, this has involved eliciting Parliament’s intention from the statutory wording. The important divide between interpreting the law (the role of the courts) and making the law (Parliament’s role) has been observed by countless generations of judges.

Now, however, as a consequence of the Human Rights Act 1998, the courts are able to do far more with an Act of Parliament in the name of interpretation than was formerly the case. Thus they are able to read words into a statutory provision in order to achieve an interpretation which is compatible with a Convention right. Moreover, they may ‘read down’ a provision for the same purpose.

What they remain unable to do, however, is declare an Act of Parliament invalid where its provisions conflict with human rights. In such circumstances, assuming that the conflict cannot be resolved by interpretation, a court has a last resort; to declare the provision to be incompatible with the relevant human right. The provision remains the law, however, unless or until it is amended or repealed by a minister or Parliament.

Neil Parpworth is a Principal Lecturer in Law at De Montfort University and the author of Constitutional and Administrative Law.

Tort Law: Identify the elements of negligence and landmark cases.

The ordinary use of the word ‘negligence’ means carelessness, but the tort of ‘negligence’ uses the word ‘negligence’ in a special sense.

As a tort, negligence is shorthand for the action for a breach of duty but it is not enough to show that defendant was careless, liability requires each of the following elements to be established: (1) that a Duty of Care was owed by the defendant; (2) that a Breach of that duty occurred in the form of the defendant’s failure to take reasonable care and (3) that the Damage which was suffered resulted from the defendant’s breach and that that damage was of a legally recognised kind and not too remote.

Negligence, as a tort in its own right, began to be recognised around the beginning of the nineteenth century but it was in Donoghue v Stevenson (1932) where the House of Lords set out a general rule of liability for harm caused by negligence. A duty was owed to ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected…’ He described such people as ‘my neighbours’ and it is for this reason that the ‘neighbour principle’ is used to define the principle.

The duty concept has been used to set boundaries for liability for the consequences of careless behaviour. A period of expansion and judicial awareness of the potential floodgates of liability in negligence led to decisions which restricted liability. In Caparo Industries plc v Dickman (1990) the House of Lords set down a tripartite test for establishing a duty of care which requires: proximity, foreseeability and that in all the circumstances of the case, it is fair, just and reasonable to impose a duty.

Determining breach of duty requires consideration of the standard of care that the defendant was required to meet in the particular circumstances. The basic standard of care is that of the ‘reasonable man’ defined in Blyth v Birmingham Waterworks Co (1856): the omission to do something that a reasonable man would do or doing something which a reasonable and prudent man would not do. The question is then whether defendant acted reasonably in all the circumstances of the case.

Having established a breach of duty the claimant lastly must show that his damage would not have occurred but for the defendant’s breach. Barnett v Kensington and Chelsea Hospital (1969) established the ‘but for test’ where the key question was whether the harm would not have occurred ‘but for’ the defendant hospital’s failure to take reasonable care. The claim failed because the hospital was able to produce evidence to show that even if the deceased had been examined and treated with proper care, he would have died anyway.

Should the claimant in a negligence action be unable to establish, on a balance of probabilities, any one or more of the three key elements of the tort of negligence, then the action will fail.

Vera Bermingham is Associate Head at Kingston Law School and Carol Brennan is Senior Lecturer in Law at the University of Buckingham. They are the authors of Tort Law Directions.

Blog