Tort -> Nuisance

Definition: as ‘continuous, unlawful and indirect interference with a person’s enjoyment of land or some right over, or in connection with it’. State of Land; An occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining land from natural hazards on his land (Leakey v National Trust).

Ingredients of Unreasonable use of land: Locality; It was stated in Sturges v Bridgman ‘what may be a nuisance in a residential area need not be in an industrial area’. Nuisance must be continuous (Bolton v Stone) over a period of time with the claimant's use or enjoyment of land. The utility of the defendant's conduct; It will be unlikely for an activity to amount to a nuisance if it is useful for the community as a whole (Harrison v Southwark Water). Sensitivity of the claimant: The standard of tolerance is that of the 'normal' neighbour. Therefore, abnormally sensitive plaintiffs are unlikely to succeed in their claims for private nuisance. (Robinson v Kilvert). Malicious behaviour on part of the defendant maybe regarded as evidence of unreasonableness (Christie v Davey).

Interference with use/enjoyment of land The claimant must usually prove damage, physical damage to the land itself or property; or injury to health, which prevents a person enjoying the use of their land (Halsey v Esso Petroleum - disturbing neighbours' sleep by noise and vibrations and damage to clothes from acid smuts). HoL in Hunter v Canary Wharf stated interference with TV reception does not amount to nuisance as it is not interference with use or enjoyment of land. The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune.

Defences Prescription: If the nuisance has been continued for 20 years without interruption the defendant will not liable for a nuisance (Sturges v Bridgeman). Statutory authority: If it can be shown that the activities complained about were authorised (expressly or impliedly) by a statute (Allen v Gulf Oil) Coming to the nuisance: It is no defence to prove that the claimant came to the nuisance: (Miller v Jackson: the cricket ball case)

Public -> Freedom of Protest

Freedom of protest is a right laid down by European Convention on Human Rights article 10 (freedom of expression) article 11 (freedom of assembly) and implemented by common law (Beatty v Gillbank). Which the courts must balance against the offences under the Public Order Act 1986 and article 11 (2) which restricts the freedom of assembly to prevent disorder and crime.

• A public assembly is defined under s16 of the Public Order Act 1986 as ‘an assembly of 20 or more persons in a public place which is wholly or partly open to the air’.
• A procession is defined in Flockhart v Robinson as ‘a body of persons moving along a route’.

Police Powers

S11 of the Public Order Act 1986 requires 6 days of advance notice to the police unless it’s not reasonably practical.

The police have a discretion on how they use their public order control powers and are not obliged to arrest or disperse protestors, nor can they arrest for lawful protest or anything that’s not a crime (R v Chief Constable of Devon).

S14 allows a senior officer at the scene to impose conditions upon a public assembly if he reasonably believes it would result in public disorder. Officers an give directions on place, number of people and duration of assembly as well as statutory powers to disperse assemblies. Refusal of police direction is a criminal offence.

If the protestors become intimidating, harassing or cause alarm or distress then a senior officer can authorise dispersal under s.30 of Anti-Social Behaviour Act 2003 as seen in R v Chief Constable of West Midlands.

A common law power exists to prevent a breach of the peace “an act or threat of violence” (R v Howell). Which can be used to disperse a crown as seen in Duncan v Jones and for the offence of obstruction of a police officer in the execution of his duties.

Obstruction of a Highway

It is an offence under s137 of the Highway Act 1980 to wilfully obstruct free passage along the highway without lawful authority or excuse. Arrowsmith v Jenkins held a gathering on the pavement is an obstruction of the highway. Even if theres no intention to obstruct it is still an offence of wilful obstruction. As ‘a highway is for passage and re-passage and your purposes incidental to that movement’.

DPP v Jones (Margaret) HoL held that a small protest in a public place on a roadside verge was not an obstruction of the highway; Small + Peaceful protest = not an obstruction of the highway.

Use of Threats and Violence Under POA

s.1 (Riot)	Use or threat of unlawful violence	12 or more ppl with a common purpose
s.2 (Violent disorder)	Use or threat of unlawful violence.	3 ppl
s.3 (Affray)	Use or threat of unlawful violence towards another.	1 person
s.4 (fear or provocation of violence) DPP v Fidler and Moran	Use of threatening, abusive, nsulting words or behaviour or display of such towards another.	1 person
s.5 (Harassment alarm or distress)	Use of threatening abusive, insulting words or behaviour or display of such.	1 person

Use of threats, abusive or insulting behaviour likely to cause fear of immediate persona violence (R v Horsefery Rd) would satisfy s4 +s5 of POA to experience harassment alarm or distress.

A s.1 riot is a serious offence under the act ‘12 or more people present use of threatening violence for a common purpose as would cause a reasonable person to fear for his personal safety’. The violence may include violence towards person or property (s.7), however it must be proved they had a common purpose… usually towards violence (R v Jefferson). This can sometimes be difficult to prove therefore a s.2 offence may be charged (violent disorder) as it merely requires 3 participants and no need to prove “common purpose”.

Criminal -> Deception

The offence of obtaining property by deception is created by s.15(1) of the Theft Act 1968:

“A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding 10 years.”

Actus reus: Deception Obtains Property Belonging to another

Mens rea: Dishonestly Intent of permanently depriving Deliberate or recklessly making the deception

Actus Reus:

Deception is defined in s.15(4), where it may take the form of words or conduct. S.15(4) requires the deception to be deliberate or reckless:

• Deliberate where he knows his representations are untrue.
• Reckless where he knows his representations may or may not be true.

DPP v Ray - Restaurant customer left without paying. ‘Implied representation’ he would pay. An omission can amount to a deception.

R v Laverty - The deception must cause the obtaining of property.

R v Collis-Smith - The deception must precede the obtaining of property.

Barnard – Deception by conduct; Oxford students charge to college was in gown but want actually a student.

MPC v Charles - Overdrawn cheque @ Casino: if the victim says he did not care, therefore not deception a victim would have done it anyway.

R v Lambie – Woman on a shopping spree using a maxed out card.

R v Goodwin – Getting freebies from a vending machine he cannot therefore be charged under s15 as the deception must operate on a human mind, but can be charged with theft.

S.15(2) define Obtains as when the D obtains ownership, possession and control of the property either for himself or another.

S.34(1) defines Property. “Money and all property, real or personal, including things in action and other intangible property” may be obtained by deception.

‘Belonging to another’ is defined under s.5(1).

The property that belongs to the V transfers physically to another person.

Preddy – transferring money from 1 account to another there’s no physical transfer of anything. Therefore not deception… possibly theft tho.

Mens Rea:

Dishonesty: There’s no set definition of dishonesty. The common law test defined under s2:

a) Belief in legal right to deprive

b) Belief in owner's consent (Re Holden)

c) Belief that owner cannot be traced.

Or s.2 (2) can be dishonest even if willing to pay i.e. buying something that’s not for sale.

If D does not fall into one of the above then apply the Ghosh test:

In R v Ghosh, a person is dishonest if either:

1. Was the D behaviour dishonest according to standards for reasonable person? (Objective test... what is the standard? Too uncertain)
2. Did the D realise he was falling below the standard?

No need to put the second part of the test unless D suggests he was being honest.

Intention to Permanently Deprive: defined under s.6 where it’s given the common sense meaning.

Deliberate or recklessly; the deception must be deliberate or Cunningham Reckless; in other words the D must know that the statement is false or know that it may be false.

Obtaining money transfer by deception: s.15A created by the Theft (Amendment) Act 1996 as a result from Preddy.

Obtaining a pecuniary advantage by deception: s.16 refers to obtaining a financial advantage.Money is NOT a pecuniary advantage… its property.

Watkins – told lies to get an over draft.

Charles – Dodgy cheques @ casino.

Clarke – D lied to get a job said “im not dishonest as I knew I could do the job” even if I lacked the qualifications.

DPP V Turner – D wrote a cheque which bounced & he knew it would. Acquitted as he did not intend to permanently deprive.

Obtaining services by deception: defined in s.1 TA 1978. if you deceive a person to performing some service for FREE you can not be charged with this section.

Evasion of liability by deception: defined under s.2 TA 1978. An existing liability to make a payment & you get out by some sort of deception. Or wriggling out of a future liability. However the V must be aware there is a liability to remit.

Silbartie – train passenger flashed an invalid ticket at conductor.

Making off without payment as defined in s.3 TA 1978

Brookes v Brookes – making off doesn’t have to be deceptive.

Troughton v Metropolitan Police - taxi driver drove passenger to wrong place customer didn’t want to pay.

Equity & Trusts -> Charitable Trusts

Charitable trusts are created to carry out a charitable purpose; however a trust is only charitable if it benefits the public as a whole or a sufficient section of it.

To be a valid charitable trust it must satisfy requirements:

• Gift must be for purpose which falls ‘within the spirit and intendment’ of preamble to Statute of Elizabeth.
• Trust must promote public benefit accepted by courts (as what is considered charitable is a question of law not settlors intentions)
• Purposes must be wholly and exclusively charitable.

There’s no set definition of poverty, but generally a person who’s ‘unable to maintain a very modest standard of living for himself and any dependant’ (Mary Trustees v Anderson).

Categories identified in Lord MacNaghten’s judgement in Commissioners for the Purpose of Income Tax v Pemsell:

1. Trusts for the relief of poverty.
2. Trusts for the advancement of education.
3. Trusts for the advancement of religion.
4. Trusts for other purposes beneficial to the community.

Must not include purposes that are NOT charitable i.e. political (Re Bushnell).

The promotion of sport is not a charitable purpose (Re Nottage), unless it can be regarded as a means of furthering a purpose which is charitable. As seen in Re Mariette provision of squash courts as an integral part of boys education and thus was placed under the second head of Lord MacNaghtens criteria in Pemsel; ‘advancement of education’. It’s a matter of construction of the purpose of the trust as a means of furthering a charitable purpose. But only if the court is willing to infer that the testator intends that purpose.

Provisions for prize maybe charitable f the game is itself said to be educational/charitable in some way (Re Dupress) although this can be difficult to prove and will tend to be borderline charitable. However under the Recreational Charities Act 1958 it is charitable to provide facilities for recreation or other leisure time occupation in the interests of social welfare provided the facilities improve the conditions of life for the people for whom they are intended and there’s a need of such facilities.

Vicars/Churchwardens and such promote a charitable purpose regarding the advancement of religion (Re Simpson), as long as the person work is limited to the charitable scope (Farley).

Environment and moral (preservation of … ) may be held to be charitable under the fourth head (Re Wedgwood). As long as it is of public benefit it is charitable. However if its purpose is considered political or aims to change the law, it will be denied charitable status as the court will be unable to judge if this is in the publics benefit (McGovern v AG) unless the political element is merely ancillary to the charitable purpose (IRC v Temperance).

Advantages of Charitable Trusts

• Exemption from the beneficiary principle.
• Exemptions from the rules of inalienability.
• Exemptions from certainty of objects rule.
• Tax benefits e.g. income tax, inheritance tax.

Differences between Charitable and Private Trusts

1. Primary difference is charitable trusts aim to benefit society at large whereas private trusts is designed to benefit group of people or purposes which the law does not recognise as charitable.
2. Private trusts are enforced by beneficiaries (Morice v Bishop of Durham) whereas charitable trusts are enforced by the Attorney General (AG). Thus also whereas ‘certainty of object’ is an essential requirement for private trusts (Re Astor Settlement Trusts) it is not necessary for charitable trusts. Provided its wholly charitable and satisfies the public benefit element (Re Smith; a gift on to my country England). Unless terms are so vague that it could be applied to non-charitable purposes the trust can not be deemed charitable (Re Cole).
3. If a private trust fails it falls on resulting trust to the settlor or the settlor’s estate. If a charitable trust fails the property can sometimes be saved for charity by applying the cy-pres scheme, although a general charitable intentions (Re Wilson) as specified in the Charities Act 1993 s.13.
4. Private trusts are subject to rules against perpetuities whereas charitable trusts are subject only to the rules of remoteness of vesting (Christ Hospital v Grainger).
5. Charitable trusts also enjoy certain tax benefit and relief i.e. income tax, capital gains tax and inheritance tax.

Land -> Answering Mortgagee's Remedies Q.

In order for a mortgagee to sell:

• The power of sale must have arisen (s.101 LPA) and all three requirements satisfied:

1. Notice served by the mortgagees,
2. Interest due under the mortgage is two months in arrears,
3. The mortgagors have breached some term under the mortgage deed.

• Power of sale must be exercisable (s.103 LPA) where one of the three requirements is satisfied:

1. You have given the mortgagor a notice requiring payment and the default has continued for 3 months after.
2. Some of the interest payable is at least two months in arrear.
3. There has been a breach of a covenant in the mortgage (other than non-payment) or some other provision of the LPA 1925.

A Mortgagors remedy against the mortgagee:

Mortgagee subject to two duties (Cuckmere v Mutual Finance) when selling a property also re-emphasised in Silven v Royal Bank of Scotland:

• Subjective duty - to act in good faith. In order to obtain the best price possible. Otherwise the mortgagee will find himself liable to the mortgagor if he fails to do so.
• Objective duty - to take reasonable care to obtain the “true market price” and not to unduly rush the transaction or sell at a low price that will simply cover the debt (Palk v Mortgage Service Funding). However the mortgagee is under no duty to enhance the value of a property.
  
• Mode of sale – there is no obligation to sell by auction, although the mortgagee may have a duty to seek advice on method of sale (Kwong Lam v Wong Chit Sen) but must show a proper conduct of sale and proper advertising.
• REMEDY FOR BREACH of duty is “an order to account” for the price that should have been received (Silven v RBS).

Remedy Against a purchaser

• Purchasers are only obliged to check if the power of sale has arisen.
• They are not concerned with the S.103 exercise conditions or the nature of any default.
• A purchaser may be affected if he discovers an “obvious breach” as he may not then be a purchaser in good faith (Bailey v Barnes).

Application of proceeds of sale

• S.105 LPA renders the selling mortgagee a trustee of the proceeds of sale. These must be applied in a set order.

a) any prior encumbrances (if they consent)

b) expenses of sale

c) moneys due to the selling mortgagee

d) any surplus should be paid to “the person next entitled” – i.e. a later mortgagee or, if none, the mortgagor.

Mortgagee should search the Land Registry to see if there are any registered charges. If they fails to do so then she will be personally liable to any subsequent mortgagee who has registered his interest.

Public -> JR answer structure

The validity of the argument may be challenged by JR, because as laid down in O’Reilly v Mackman, it concerns the activities of a public body in matters relating to public law. The grounds of challenge are … illegality (AG v Fulham Corp), Irrationality/unreasonableness (Wednesbury) or procedural Impropriety (Bradbury v Enfield LBC).

Procedural Impropriety & Natural Justice

Claimant must apply within 3 months to the administrative court under s.31 of the Supreme Court Act 1981 for permission to make an application for JR, with locus standi.

Establish a right to a fair hearing (Ridge v Baldwin) when an individual severely affected by a decision he must be afforded an opportunity to hear and refute the case against them. Before any decision is reached the claimant must be given an opportunity to hear and refute the case against them.

Before any decision is reached the claimant must be given an opportunity to state her case and in order to do this it is necessary that she is informed of matters of concern beforehand, so that she has an effective time to prepare a defence. As in R v Thames Magistrates Court exp Polemis "it’s a breach of natural justice to serve a summons on a defendant in the morning and try him that afternoon as he had no chance to prepare a defence". However if the court believes a granting a hearing would be pointless as the decision would still be the same, then it may choose not to allow a hearing (Glynn v Keele University).

A right to legal representation from R v Maze Prison exp Hone states there’s no absolute right to legal representation however R v Home Sec exp Tarrant says an adjudicatory body must consider in each case whether to permit legal representation baring in mind an unreasonable refusal could invalidate the proceedings. Although its difficult to prove you should be represent but can show an unreasonable refusal was a breach of natural justice.

Taking into account relevant information/evidence (R v Hull Prison exp St Germain) however Osgood v Nelson suggests it is acceptable for a subordinate to collect evidence for them.

Right to cross examine as held in Bushell v Sec of State for Environment is an automatic right in oral hearings.

An allegation that one member of the tribunal was biased is potentially enough to invalidate a decision. Two forms of bias lead to automatic disqualification; a financial interest (Dime v Grand) and a direct association with a party to the case (Exp Pinochet). Other indirect forms of bias the courts have to apply the test from Porter v Magill which asked ‘Whether the fair minded and informed observer would consider there was a real possibility or danger of bias?

There is no general duty in common law to give reasons for a decision, although there are numerious statutes which state a reason is to be given and failure to do so would be a breach of a statutory requirement. Failure to give reasons may invalidate a decision if in order to have a fair hearing the applicant requires an explanation of the reason (R v Sec of State for Home Dep exp Doody).

Remedies vary from a Quashing order to a mandatory Order.

Criminal -> Theft

s. 1 (1) Theft Act 1968 defines theft as:

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly.”

The actus reus of theft Appropriation of Property Belonging to another.

The mens rea consists Dishonestly, and The intention of permanently depriving the other of it.

Actus Reus (the physical element)

Appropriation is defined in s.3 (1) stating:

“Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as an owner.”

• Kelly suggests it’s possible to steal something that is already stolen as lawful possession is not necessary. Although some protection is offered to the bona fide (in good faith) purchaser by s3(2).
• HoL have also made it plain that an assumption of any right of an owner will be an appropriation (R v Morris).
• Property can be appropriated by authorised acts if they are dishonest (R v Gomez).

Property is defined under s4 (1) as:

“"Property" includes money and all other property, real or personal, including things in action and other intangible property.”

• Any currency that’s legal tender can count as money, however cheques are not money until filled out.
• ‘Things in action and other intangible property’ usually personal rights of property that can only be claimed or enforced by legal action and not by taking physical possession i.e. debt, rights, patents, copy right (William).
• Oxford v Moss – secret information can not be stolen, as once it had entered the public domain it has no value.
• It is an offence to dishonestly use, waste or divert electricity s13.
• S4 (3) states, it is not theft to take mushrooms or flowers, fruit or foliage from a wild plant. It would however, be theft to take the whole plant, or to take anything for a commercial purpose. Thus it would be theft if mushrooms were picked in order to sell them later.
• S4 (4) animals in zoos, safari parks and domestic pets can all be stolen, even if they are appropriated having escaped from captivity. A wild animal, whether live or dead, cannot be stolen unless it has already been taken into possession by somebody else.

Belonging to another is defined in s5 (1):

“Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not equitable interest arising only from an agreement to transfer or grant an interest)”

• Possession (Turner (No 2))
• Control (Woodman)

Clearly this section does not require that property should be owned by the person from whom it is appropriated; mere possession or control is enough.

Generally property is never without an owner.

Mens Rea (the mental element)

Dishonesty is dealt with in s2 with a partial defence:

If, however the defendants situation does not fit within s2(1) but there is still some debate as to whether or not his actions were dishonest you must apply the Ghosh test:
A person is not dishonest if either:
(i) his actions were in accordance with the standards of ordinary people or
(ii) If it was dishonest by those standards whether the defendant himself must have realised that what he was doing was by those standards dishonest.

The second point need only be put to the jury in those cases where the defendant raised the special plea that he did not think he was being dishonest by his own standards.

Intention to permanently deprive
as defined in s.6.