2009 Exam Papers

PAPER 2. Constitutional Law
1. 'The British constitution fails to embody an adequate conception of the separation of powers; that this is a bad thing can be seen most clearly when on considers the executive's respective relationships with the judicial and legislative branches.' Discuss.
2. 'The rule of law is a legal concept which, in English law, acquires practical effect principally through judicial interpretation of legislation.' Critically assess this claim. To what extent does the interpretative duty of the courts under section 3 of the Human Rights Act 1998 reduce the relevance of the rule of law to the interpretation of legislation by judges?

3. The (imaginary) Legislative Procedure and Human Rights Act 2008 provides as follows:
1. (1) Section 1 of this Act may be repealed or amended only by means of a provision in an Act of Parliament which has been approved by a two-thirds majority of both Houses.
(2) Acts of Parliament may take effect without royal assent.
2. (1) The Human Rights Act 1998 is hereby repealed.
(2) All legislation passed and to be passed shall be valid and enforceable only to the extent that it is compatible with the rights set out in the European Convention on Human Rights.
Consider the following alternative situations:
(a) The (imaginary) Animal Welfare Act 2009, which criminalises certain kinds of fishin, is approved by both Houses of Parliament but does not receive royal assent. Karl, who has been charged with an offence under the Animal Welfare Act, wishes to argue in his defence that the Act is invalid.
(b) Section 1 of the (imaginary) Legislative Procedure (Reform) Act 2009 provides that, 'Section 1(") of the Legislative Procedure and Human Rights Act 2008 is hereby repealed.' Mike, a leading anti-monarchy campaigner, wishes to know whether section 1 of the Legislative Procedure (Reform) Act 2009 is legally valid. The 2009 Act received royal assent and was approved by both Houses, but in both cases by majorities falling short of two-thirds.
(c) Section 1 of the (imaginary) Sedition Act 2009 criminalises, in a way that is inconsistent with Article 10 of the European Convention on Human Rights, criticism of government policy. Julie, a prominent critic of the government, wishes to know whether section 1 of the Sedition Act 2009 could be enforced against her if she were to breach it.
Advise Karl, Mike and Julie.
4. 'It would be futile to attempt to understand the British constitution by looking only at constitutional law. The application of such law is informed - and sometimes radically affected - by constitutional conventions.' Do you agree with this statement? Give examples to justify your answer.
5. Assume that the (imaginary) EC Financial Services Directive requires Member States, by 1 January 2009, to ensure that consumers entering into contracts for financial services and insurance have the right to withdraw from such contracts, without penalty, for a period of 100 days following the formation of the contract (a 'cooling-off period'). Assume further that UK law currently requires financial institutions only to allow such consumers a 'reasonable' cooling-off period, and that this has, in general, been interpreted by domestic courts as meaning up to two weeks.
On 2 January 2009, Gabrielle, a single parent who recently lost her job, signs a contract for a £10,000 loan from Wisteria Loans Ltd at an annual interest rate of 16 per cent. On 2 April 2009, she discovers that she could have obtained a loan from elsewhere at a more competitive interest rate. She seeks to cancel the contract with Wisteria, but they content that she has no right to pull out because the cooling-off period provided for under UK law is now over.
On 2 January 2009, Carlos takes out and pays for a five-year health insurance policy with Fairview, a major high street bank in which the government recently took a 45 per cent shareholding in order to ensure that the bank survived the global banking crisis. On 2 April 2009, Fairview refuses to pay out under the insurance policy to reimburse Carlos for private medical treatment for a long-standing back complaint, pointing out that pre-existing medical conditions are not covered by the policy. Carlos, who had failed to notice the exclusion, wishes to pull out of the contract; the bank refuses to allow him to do so.
Advise Gabrielle and Carlos. What difference, if any, would it make to your answer if, on 1 January 2009, the UK had enacted and brought into force legislation providing that, 'notwithstanding the Financial Services Directive, the cooling-off period for contracts concerning financial services and insurance shall be 14 days'?
6. 'The devolution systems which exist in the United Kingdom derive from, and thus underline, features of the British constitution that are unusual or even unique to it.' How far, if at all, do you agree with this statement?
7. 'Judicial review by English courts shows evidence of increasing judicial activism. This damaging development, which risks judicial usurpation of executive functions, is most apparent from the judges' willingness to embrace the proportionality doctrine and to subject the use of an increasing range of prerogative powers to review.' Discuss.
8. The (imaginary) Credit Crunch Act 2009 authorises the Secretary of State for Business, Enterprise and Regulatory Reform to make grants of up to £100,000 to 'small businesses which are experiencing financial difficulties'.
Orson is an independent travel agent specialising in long-haul holidays. With his business on the brink of collapse, he unsuccessfully applies for a grant to the Secretary of State. Orson receives from a junior official in the Minister's department a letter in the following terms: 'I have turned down your application for two reasons. First, the Secretary of State for Energy and Climate Change told me to turn it down: he thinks that long-haul air travel should be discourage in light of its environmental impact. Secondly, your application falls outside the Business Secretary's policy which is to make grants only to firms in the manufacturing sector.' Orson is aggrieved by (among other things) the fact that he requested but was denied an oral hearing prior to the taking of the decision.
Bree, the owner of the UK's largest battery hen farming firm successfully applies for a grant. The Business Secretary and Bree rowed in the same boat when they were students at Cambridge. Rex, a celebrity chef who campaigns against battery hen farming, is incensed by the Minister's decision. Advise Orson and Rex.
9. 'The Human Rights Act 1998 imposes obligations to respect certain rights not only upon public bodies but also, quite rightly, upon individuals.'
Discuss with reference to the way in which the legal protection of privacy has been enhanced at common law since the entry into force of the Human Rights Act.
10. Following a government decision to allow the construction of a new runway at a major airport, the following events occur:
i) A thousand people - at the instigation of Tom, a well known pacifist - gather outside the Palace of Westminster and march towards Downing Street. They come to a halt near Downing Street, impeding the flow of traffic along the main road. The police, concerned that the crowd may contain a small number of hardcore protesters and fearful that they might intimidate government ministers as they arrive for a Cabinet meeting, set up a security cordon around the protesters within which they are all required to remain for several hours. Tom asks to leave but is denied permission to do so.
ii) Kayla, a civil servant in the Department for Transport, leaks to the press a document marked 'top secret' containing advice to the Secretary of State for Transport to the effect that if the new runway is used to full capacity, the UK will definitely not meet its international commitments to reduce carbon emissions. The leak causes a major political scandal, since the Secretary had always denied that the new runway would produce such effects. Kayla later confesses to her boss that she was responsible for the leak but tells him that 'blowing the whistle was for the greater good of the environment'. Kayla now faces prosecution under the Official Secrets Act 1989. Discuss.
11. 'Contempt of court may be used to prevent or penalise an act which prejudices or impedes legal proceedings. However, in order not to violate the right to freedom of expression, particularly in cases involving the press, it is important to limit contempt in relation to statements and publications to cases in which information or views are expressed in unbalanced terms rather than objectively informing the public about the case.' Consider the extent to which this is an accurate account of the current law of contempt of court.

PAPER 4. Tort Law
1. Either a) Explain how far the law of tort allows a claim in respect of i) exposing another person to a risk of future harm and ii) causing another person to lose the chance of a benefit.
Or b) 'The English law of libel makes it unreasonably difficult for the media to report honestly on matters of public interest and importance.' Discuss.
2. Stichus was employed for 10 years by Aulus. In 2007 he left to set up in business on his own, but things did not work out, and in 2009 he sought employment with Balbus, who offered him a job 'subject to satisfactory references'.
Consider the possible tortious liability of Aulus in each of the following situations:
i) Aulus refused to provide a reference for Stichus and in consequence Balbus decided not to employ him.
ii) Balbus approached Aulus for a reference; Aulus, being irritated with Stichus, wrote him an unfairly bad one, and in consequence Balbus decided not to employ him.
iii) Aulus wrote Stichus a glowing reference, on the strength of which Balbus employed him; in fact, as Aulus was well aware, Stichus had left Aulus's employment under a cloud, having been suspected of theft and fraud; Stichus abuses his new position with Balbus to steal a large amount of money, which he is unable to repay.
3. Grump, aged 80, who is in the early stages of dementia, lives in a flat in sheltered accommodation, run by Blankshire County Council. Grump, who is wealthy, pays an allowance to his adult son, Leech, who aspires to be an artist. Leech tells the warden, Mopp, that the hot water in Grump's flat is intermittently overheating, so creating a risk of scalding. Mopp reports the fault to Hopeless Heating Ltd, with which Blankshire has a maintenance contract. Hopeless sends an engineer, Wrench, to call on Grump, but Grump, taking against him, falsely tells him that all is well and sends him away Wrench reports this to Hopeless, who tells Mopp that the problem has been resolved and Mopp takes no further action. Shortly afterwards, Grump severely scalds himself in the shower because the water has once again overheated, and dies in hospital a week later. On Grump's death Leech loses his allowance, but inherits most of Grump's wealth.
a) What claims in tort (if any) may now be brought by Leech (either personally, or as the executor of Grump's estate)?
b) Would your answer be different if, in breach of the service contract, Hopeless had failed to send an engineer to check the fault?
4. Strop, who suffers from epileptic fits, is warned by his doctor, Wuss, that, if he persists in driving Wuss will inform the police. Strop replies 'If you do that I shall sue you under the Human Rights Act' which induces Wuss not to carry out his threat. Some weeks later Strop has a fit when driving and collides with a van belonging to Chris, an interior decorator and designer, and driven by Chris's employee, Pete. Pete suffers various injuries, including a head injury that would probably have been avoided if he had worn a seat-belt. Six months later Pete is diagnosed as permanently unfit for work, and leaves his job.
Advise Chris and Pete on their possible claims in tort, given that:
i) Chris's van has been destroyed; his business has suffered in consequence of the absence of Pete; and partly because Chris has a history of depression, the resulting worry has caused him to have a severe nervous breakdown.
ii) Not only is Pete unemployed, bu his head injury has caused a change of personality, making him irritable and violent; so that when taunted on his facial scars resulting from his accident by Yob, a fellow drinker in the Boozer's Arms, he strikes him with a bar-stool and kills him - thereby incurring a 5-year prison sentence for manslaughter.
5. 'The Consumer Portection Act 1987 would be more accurately called the Act for the Persecution of Producers.' Discuss.
6. Discuss the possible tortious liability of Jaron, a dishonest dentist, in the following situations:
i) anxious to increase his work, he falsely tells a gullible patient, Dave, that he needs twenty fillings, which he then carries out and charges for, drilling and filling twenty previously good teeth;
ii) he has an affair with a married patient, Slapper, failing to inform her that he is suffering from Hepatitis B; when she contracts the disease from Jaron, he rich husband, Peeve, discovers the affair and promptly divorces her, leaving her in reduced financial circumstances.
iii) despite being struck off the Dental Register for professional misconduct because of i) and ii) he continues to practice, thereby committing a criminal offence against the Dentists Act 1984, the statute regulating dental practice; during this period he gives innovative dental treatment to Richard; although Jaron carries out this procedure with due care, an unfortunate side-effect is that Richard suffers a permanent loss of sensation in his mouth.
7. Lord Snooty, having fallen on hard times, turns his ancestral home Bunkerton Castle into an amusement park, which the public are invited to enter on payment for admission. On the advice of his solicitor, Desmond, and of his insurer, Welsh, he puts up a notice at the entrance saying 'Warning, all visitors enter at their own risk', and has the same words printed in small type on the back of the admission tickets. Consider Snooty's possible tortious liability in the following situations:
i) In the grounds there stands a lake where, at first, visitors were allowed to swim and dive. After a health and safety inspector warns Snooty that it was unsafe to swim there, Snooty puts up a large notice saying 'no swimming' and engages a contractor, Laches, to remove the diving-board. Before Laches has carried out the work, Darren aged 12 and illiterate, enters the park without payment through a hole in the perimeter fence. Darren dives into the lake from the board, breaks his neck and is now paralysed.
ii) In the stables are horses which visitors can ride under the supervision of Snooty's employee, Forelock. Tracy, aged 11, is injured when the horse that she was riding, Bronco, rears in fright because Forelock's dog, which he has brought to work with him in breach of orders, snaps at Bronco's heels. Bronco is normally docile, but like many horses, will rear if he is scared by a sudden noise behind him.
iii) In a paddock Snooty keeps a herd of llamas. Venge, a disgruntled keeper employed by Snooty who has just given him a week's notice of dismissal, deliberately lets them out. Some of them wander into Bill's garden, where they trample his lawn and eat his vegetables, and others escape onto the road where Ben, swerving to avoid them, falls off his motorcycle and breaks his leg.
8. In Effluent Road, Stretchford, there stands an empty warehouse, owned by Weird. Next door there stands a building which Shifti, in breach of planning permission, uses for the bulk storage of polystyrene, having bribed Bakanda, an inspector employed by the Stretchford City Council, to turn a blind eye. Further down the street there is a gym, owned and run by Truss. Behind all three buildings stands a market garden, owned and occupied by Green. One winter, Weird's warehouse is occupied by squatters, whose drunken and disorderly behaviour in the street causes many of Truss' clients to stay away, so damaging his business. Truss complains about this to Weird, who does nothing. When the weather turns cold, the squatters take it upon themselves to reconnect the gas supply. Their amateur gas-fitting is incompetent, so that the building later fills with gas, causing an explosion and a faire. The fire spreads to Shifti's warehouse, where his polystyrene is ignited and burns furiously. The fire in Shifti's warehouse rapidly engulfs Truss' gym next door, which is totally destroyed. Clouds of poisonous smoke and fumes from the burning polystyrene pollute Green's market garden, ruining his crops, and causing injury to Brown, Green's head gardener, who inhales fumes when trying unsuccessfully to rescue Green's truck, which despite his efforts perishes in the flames. Discuss the tortious liabilities that arise.