UNIVERSITY OF STIRLINGSCHOOL OF LAW LAW STUDENTS’ SKILLS HANDBOOK AUTUMN SEMESTER 2010 1 September 2010 2 INFORMATION This is the second edition of the Skills Handbook for students pursuing degrees wholly or partly in the School of Law, in response to requests from our students to have a range of skills materials in one widely-available document. We will revise it regularly and welcome feedback on it. If you have any suggestions about other material which could be included in this Skills Handbook, please post your ideas in the LLB or BA General Information modules on WebCT. Please note that for the convenience of students newer to law degrees, some parts of this Handbook are included again for students during the Legal Process and Public Law and Legal Systems 1 modules. You will also find the “How to Write a Law Essay” available separately on WebCT, for every undergraduate Law module. What is included in this Handbook? 1. Useful Library Links and Useful Books to Buy or Consult 2. How to Read and Interpret a Statute 3. How to Read and Analyse a Case 4. Answering Problem Questions and Writing a Good Exam Answer 5. How to Write a Law Essay (also available as separately on WebCT under the title “Essay Writing Skills 2009”) 6. Glossary of common legal terms 3 Either one will be a great help to you throughout your law degree.do ?sortby=bookTitleAscend 4 .com/product/academic/highereducation/law/skills/9780199533572.co.00.1405822007.html SI Strong How to Write Law Essays and Exams 3rd ed. Two texts you should seriously consider buying are the classics.).99 ISBN 9781405822008 http://vig.1144. they offer excellent chapters on answering problem questions.If you read no further than this in the Handbook. How To Write Better Law Essays (Longman. 2010).pearsoned. don‟t stop till you finish this page.99 SBN: 978-0-19-928755-0 http://ukcatalogue. £17.uk/catalog/academic/product/0. doing exams and writing essays. 2009. (OUP. Although focused on English law rather than Scots. 2nd ed. £16.oup. Foster and Strong. with examples of good and bad practice. The details you need for Foster and Strong are here: Steve Foster. Many of your modules will use these and they are a great help. Talis List TalisLists are electronic reading lists created for staff by the library.co. £9.php B. Click on this and it will take you to a page of links for your module reading. Green (2009). Highly recommended: Citations: http://www. Mastering and learning how to use legal language In any law assessment.is. £12. you need to be able to express yourself clearly and precisely in good English.99 http://www.ac. Useful Library Links and Useful Books to Buy or Consult You should already have bought your copy of Foster (above). For more information. But what else might help you: online.50 5 . and we make no apologies for recommending it throughout this guide.uk/Law-Collins-Dictionary-William-Stewart/dp/0007221657 Stephen R O‟Rourke. (2006). Glossary of Legal Terms LawBasics W.1.php William Stewart Collins Internet-Linked Dictionary of Law 3rd ed.ac.stir.is.amazon. in the bookshop. Go into the WebCT page for that module and look for the TalisList symbol (usually in Resources).stir. from an essay to a problem question in an exam. What is very important too is that you use legal language well.uk/teaching/readinglists/rlists-stud.uk/research/citing/lawrefer. or in the library? A. see: http://www. It is particularly good for journals. showing that you understand the law and can point to the relevant law with precision. because it saves you searching through the library catalogue for them – you can click on the Talis link and it will take you straight to it. aspx?is=0230000142 Also well worth considering: The Stirling Library link to the Oxford Dictionary of Law (only if you are on campus).ac. it is an English text so cannot always be trusted for Scots lawyers. http://libcat. 6 . This is good and obviously very convenient. £14.co.palgrave. 2010). but watch out.uk/details?prodid=14286&unitid=14286&search=&format=&publishe r=&subject=&from=&to= English law You may occasionally find yourself dealing with the English legal system. above. 2003) £12. Key Concepts in Law (2006) Palgrave Macmillan.wgreen.uk/details?prodid=285203&unitid=285203&search=Glossary%20&for mat=B&publisher=green&subject=all&from=1&to=50 Ian McLeod. An excellent text on this is Gary Slapper and David Kelly The English Legal System 11thed (Routledge.co.ISBN: 9780414017535 http://www.wgreen.uk/record=b1674013 Robert Shiels Scottish Legal System LawBasics (W Green. Latin maxims and phrases * Analysis of a case * Technique for answering exam questions * Sample examination question and answer plans http://www. Unlike Stewart‟s dictionary.50 * Includes: Glossary of legal terms.99 http://www.stir.com/products/title. php See also: Finding cases .ac. your exam or your tutorial problem question Highly recommended: Stirling Library‟s essay advice pages: http://www.php Law Library FAQ: http://www.uk/research/other/lawstatutes.sweetandmaxwell.http://www.is.ac.ac.is.is.uk/help/guides/tutorial.stir.ac.com/product/9780406930231.co.99 http://ukcatalogue.is.uk/Catalogue/ProductDetails. 2001) £25. (OUP.stir.php http://www.uk/research/other/lawfaq. (W Green. Doing research for your essay. Legal Research Skills for Scots Lawyers 2nd ed. Research and writing skills TIP: Don‟t forget that the “how to write an essay” guide at the end of this Handbook has lots of advice .php Guy Holborn Butterworths Legal Research Guide 2nd ed.http://www.stir.do?keyword=guy+holborn&sortby=best Matches Karen Fullerton.ac.uk/research/citing/index. (Sweet & Maxwell.uk/research/citing/lawrefer.stir.95 http://www.uk/details?prodid=33729&unitid=33729&search=Legal%20Research %20Skills%20for%20Scots%20Lawyers&format=B&publisher=green&subject=all&from=1 &to=50 John Knowles.is. 2007) £26 http://www.C. 2009) £18.php Citing law references .is.co.ac.oup.aspx?recordid=3882&producti d=328803 7 . Effective Legal Research 2nd ed.stir.php Finding legislation .uk/research/other/lawcases.stir.http://www.and a sample 1* LLB essay in it.wgreen. 2009) £17.palgrave.asp Although designed for students of English law. 2006) http://www.studentlawjournal. (OUP.oup.uk/Catalogue/ProductDetails.do?rand=0.99 http://www. you can refer to Laws of Scotland Online (note you must sign in to the library website first) http://www.htm) Online Gary Slapper & David Kelly‟s online resource on legal research (when they mention Halsbury‟s. 2006).aspx?is=9780230573116 Also well worth considering: E Higgins and L Tatham Successful Legal Writing (Thomson.sweetandmaxwell.com/uk/legal/auth/checkbrowser.lexisnexis. Palgrave Macmillan.99 http://ukcatalogue.com/products/title.html SI Strong How to Write Law Essays and Exams 2nd ed. £16.routledge. (Pearson.1776516240138747&coo kieState=0&ipcounter=1&bhcp=1 Techniques for writing your essay or exam answers Highly recommended: Steve Foster How To Write Better Law Essays 2nd ed.pearsoned.co.aspx?recordid=2193&producti d=164018 Online advice: An excellent online tutorial by Slapper and Kelly can be found at: http://cw.99 http://vig.do ?sortby=bookTitleAscend Simon Askey and I McLeod Studying Law 2nd ed.00.co.com/textbooks/9780415566957/legal-writing. 8 .1144.uk/catalog/academic/product/0.1405822007.com/product/academic/highereducation/law/skills/9780199533572. it is very helpful for you too. 2008) £13.(and see this student review of Knowles: http://www.com/reviews/misc/efflegalres. ox. but they may help you revise.php Revision Always watch out for publishers selling you books on English law when this differs from Scots.uk/citingreferences/oscola/tutorial/ The Cardiff Index to Legal Abbreviations http://www.legalabbrevs. They are not complex enough to be a substitute for the set text in your module.ac.uk/ac-policy/assessment.uk/research/citing/plagiarism.is. There are however good texts which cover a range of areas of law in a handy. concise style.ac.quality.stir. See these Scots law lists: 9 .uk/published/oscola_2006.stir. above The online Oxford Guide to Legal Citation (to be revised in 2010) http://www.competition-law.ac.ac. Highly recommended: The ranges are being updated all the time.php The Stirling Library‟s guidance pages: http://www.ac.cardiff.Getting your bibliography and your references right in your essay Highly recommended: The library web pages.uk/ Avoiding Academic Misconduct.cardiff.pdf See also the tutorial: https://ilrb. including Plagiarism Highly recommended: The University‟s “Little Book of Plagiarism” and other advice: http://www. html There are also some texts published by Tottel: http://www.co.tottelpublishing.uk/Catalogue/Results.uk/law.co.ac. you may get help from some very well-designed books on English law.uk/general?search=lawbasics&format=B&publisher=all&subject=all& x=0&y=0 Dundee University Press.com/law/featured.uk/Bookshop/subject.asp?item=8224 Also well worth considering: Palgrave Law Masters: http://www.palgrave.com/category/academic/series/law/blqa.dup. Law Essentials: http://www.com/g/5/Scotland.dundee.wgreen. Green‟s LawBasics: http://www. See for instance Highly recommended because they are so well laid out: Oxford University Press Q & As: http://ukcatalogue.pearsoned.oup.do Pearsons‟ Law Express: http://www.aspx?Ntx=mode+matchallpartial&Nt k=KEYWORD-SEARCH&Nty=1&N=4294967264&Ntt=nutshells&Ntpc=1&Ntpr=1 10 .sweetandmaxwell.html If you choose carefully.co. remembering to look out for where English law diverges from Scots.asp Sweet and Maxwell‟s NutShells (and see also their NutCases): http://www. and to legislation of the Scottish Parliament. and you must weigh up the credibility of opposing interpretations. it is therefore not always obvious to the uninformed reader whether a particular statute is ambiguous or not Rupert Cross: “no-one is entitled to assert that statutory words are unambiguous until he has read them in their full context” What is the “full context”? This does not mean the entire possible social. economic and political context The full context is: the facts of the case the other sections of the statute 11 . Informed interpretation It is the duty of the judge to give an informed interpretation. How to Read and Interpret a Statute There is a common approach to statutory interpretation throughout the UK.B. not just guess at what the law means. not to guess at it To find the legal meaning of an enactment you must identify the general interpretative criteria which are relevant to it. you must determine which are decisive.2. Example DPP v Bull 4 All ER 411 Did the words “common prostitute” refer only to women or could it include men? N. Note the importance in the UK‟s legal tradition of the importance of the „intention of Parliament’. Finding the Meaning of a Statute The “legal meaning” Judges speak frequently about the “plain” meaning of a statute or the “ordinary” meaning of statutory words But the legal meaning of a statute is not necessarily the meaning which an untrained observer would give it Your task is to seek out the legal meaning. to select an informed interpretation. ” It amounts to a serious breakdown in communication‟ Understanding Common Law Legislation. or learned commentaries on the meaning of an enactment [Statutes pari materia = related statutes. the author of the UK‟s most comprehensive study of statutory interpretation. discern the statute was intended to remedy” and more broadly. p. but unsatisfactory. “by those and other legitimate means. approach There are said to be three classic „rules‟ of statutory interpretation. 12 . The Mischief Rule (the rule in Heydon's Case (1584) 3 Co Rep 7a) But Francis Bennion. argues: „there are a great many interpretative criteria. and that courts simply choose between them. The Literal Rule (application in Scotland: Keane v Gallagher 1980 SLT 144) 2. … It is wrong to teach law students. statutes dealing with similar subject-matter] Methods of Statutory Interpretation in the UK Courts Approaches to interpretation The traditional. and the court chooses between them. the purpose of the Act (per Viscount Simonds in A-G v Prince Ernest Augustus of Hanover [1957]) the interpretative criteria of statutory interpretation “legitimate means” include for instance official committee reports. the existing state of the law.2). and where these conflict in a particular case there must be a judicial process of weighing and balancing. The Golden Rule (see Caledonian Railway v North British Railway Co (1881) 8R (HL) 23 at 25 per Lord Selborne. and K v Craig 1997 SLT 748) 3. the mischief rule and the golden rule. including any binding precedent other statutes in pari materia the “mischief” which the judge can. These are: 1. as had almost universally been done. the mischief rule and the golden rule. that the interpretative criteria solely consist of the literal rule. … Consult even the latest edition of almost any other book on statutory interpretation and you will find the same old parrot cry trotted out: “the interpretative criteria consist of the literal rule. he insists: „… there is no golden rule. If the judge considers that the application of words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of the statute.‟ (Statutory Interpretation. The first are the intrinsic and extrinsic aids. 3. or a literal rule. Bennion lays out four types of interpretative criteria which act as guides to legislative intention. Fortunately. Rupert Cross updated the rules in what is called the „unified contextual approach‟. Nor is there a mischief rule. 4. These are: (1) rules of construction laid down by statute or the common law 13 . or any other cure-all rule of thumb. the technical meaning of words in the general context of the statute.. 1. where appropriate. and it is not very near. pp 3-4) The Unified Contextual Approach Recognising this. The judge must give effect to the grammatical and ordinary or. 2002. and direct the court. This better describes what modern judges should do in practice.Instead. unworkable. In applying the above rules the judge may resort to certain aids to construction and presumptions. there are several tools available. A court is obliged to apply the law in accordance with the interpretative criteria. Aids and criteria for interpreting a statute For interpreting a statute. Then. He must also determine the extent of general words with reference to that context. 4th ed. alter or ignore statutory words in order to prevent any provision from being unintelligible or absurd or totally unreasonable. he may apply them in any secondary meaning which they are capable of bearing. or totally irreconcilable with the rest of the statute. The judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to. That is the nearest we can get to a golden rule. Instead there are a thousand and one interpretative criteria. but those that do yield factors that the interpreter must figuratively weigh and balance. not all of these present themselves in any one case. 2. Intrinsic aids Things within the statute which help with interpretation. Extrinsic aids Dictionaries.com/pdfs/fb/1990/1990-002-104-statute-law-pt2-ch9. but in cases where there is real doubt. and Scottish Law Commission Reports.9 at http://www. etc. preparatory to the enactment of legislation). if these does not lead to a plain answer then they are to be weighed and balanced) The informed interpretation rule (recognising that the interpreter needs to be well informed on all relevant aspects – see below). or a section of an Act Rules of construction As Bennion points out. judges must have regard to a rule of construction.francisbennion. marginal notes. Consider in particular Hansard and other government papers. see Bennion Statute Law ch. such as interpretation sections. Judicial precedent interpreting an Act. then the judge must apply the statute according to that plain meaning. There are several rules of construction: for more information.pdf Note in particular these common law rules: The basic rule (a statute is to be interpreted using the normal rules and principles of statutory interpretation. the long title. it rarely yields a conclusive answer. etc. The „plain meaning‟ rule: where there is no real doubt on an informed interpretation what the ordinary meaning of the words is. See the guide to “Reading a Statute” at the end of this handout. 14 . historical materials and so-called travaux preparatoires (official publications. including Parliamentary debates. and the interpretative criteria also point in that direction.(2) interpretative principles derived from legal policy (3) interpretative presumptions based on the essential nature of legislation and (4) linguistic canons of construction. See Pepper v Hart [1993] 1 All ER 42. are to be taken to include the feminine gender unless the statute states otherwise Words in the singular are interchangeable with words in the plural A „month‟ is a calendar month The term „person‟ may include an artificial person Principles derived from public policy Over time.francisbennion. The most important is that the precise words of the provision (in the context of the whole statute etc. too.com/pdfs/fb/1990/1990-002-136-statute-law-pt2-ch10.com/pdfs/fb/1990/1990-002-158-statute-law-pt2-ch11. see Bennion Statute Law ch.The Interpretation Act 1978 provides several useful statutory rules. that there should not be unclear alteration of settled law.francisbennion. „him‟) etc.pdf Presumptions A presumption gives guidance on what it is at first glance likely that the legislator intended the statutory provision to mean. but persuasive. or injustice resulting from statutory interpretation unless it is clear that this is what the legislator intended For more information. For instance: Words referring to the masculine gender („he‟.) are the primary indicator of what the legislator meant Especially.pdf 15 . judges have created general legal principles to guide how statutes should be interpreted.11 at: http://www. They are not binding. see Bennion Statute Law ch.10 at http://www. absurd results flowing from the application of law. For instance: Penal (usually criminal) statutes should be narrowly construed Law should be certain and predictable Law should be consistent Law should be in keeping with moral developments in wider society Law should not be applied retrospectively For more information. that statutes dealing with similar subject matter (statutes in pari materia) are to interpreted similarly. Expressio unius principle.” Special approaches to statutory interpretation Special approach 1: EC law Supremacy of EC law: see s.3(1) European Communities Act 1972 and following decisions of the European Court of Justice (ECJ) A UK statutory provision which is incompatible with EC law can be „disapplied‟ Decisions of the ECJ are binding on all UK courts The method of interpretation for legislation governed by EC law must be that used by the ECJ. Cutter v Eagle Star Insurance (1998) The ECJ approach The precise words of the text are much less important (consider that EC legislation appears in several languages) 16 . Ejusdem generis principle For more information. Noscitur a sociis principle. When the drafter uses a new term.francisbennion. he or she normally intends a new meaning. The precise words and the grammar. read Bennion Statute Law ch.pdf Bennion‟s basic rule: “The basic rule of statutory interpretation is that the legislator‟s intention is taken to be that in any case of doubtful meaning the enactment shall be construed in accordance with the general guides to legislative intention laid down by law. Some of the most important linguistic canons are that a statute or part of a statute is to be read as a whole. not that used by UK courts. and that a word or phrase has the same meaning throughout a statute unless the statute states otherwise. syntax etc. punctuation and syntax of the text are very important in interpreting statutes in the UK. You may be surprised by how carefully judges read the text. punctuation.Linguistic canons of construction These are based on the ordinary rules of grammar.com/pdfs/fb/1990/1990-002-187-statute-law-pt2-ch12.12 at: http://www. and that where these conflict the problem shall be resolved by weighing and balancing the interpretative factors concerned. declaration or advisory opinion‟ of the court in its various guises.3(1). See Ghaidan v GodinMendoza [2004] UKHL 30.2 HRA. even where this creates quite artificial interpretations. so far as it is possible to do so. This is so even where the statute is apparently clear. the court must refer the question to the ECJ (by the preliminary reference procedure) Special approach II: the Human Rights Act 1998 (HRA) „Convention rights‟ are most of the rights in the European Convention on Human Rights They have been given effect in UK law by s. as the court cannot adopt a meaning which is inconsistent with a fundamental feature of the statute. There are however limits to this. The HRA approach Under s. In practice. as they are merely delegated legislation). Declarations of incompatibility do not affect the outcome of the case in which they were made – the judge must continue to apply the existing law. legislation must be interpreted in a way which is compatible with Convention rights. the senior judges have striven to avoid making declarations of incompatibility. It may also feel that the matter would be better dealt with by Parliament changing the law instead. – s. the statutory provision must be disapplied If there is doubt over what to do. decision. (For a rare exception. This includes „any judgment.) Delegated legislation however will be invalid (and that includes Acts of the Scottish Parliament. All the court can do then is make a „declaration of incompatibility‟ under s.B.1 of the HRA Any court dealing with a question of „Convention rights‟ must take into account the jurisprudence of the European Court of Human Rights etc. even if it leads to what we would see as a „strained interpretation‟ of the statute If this cannot be done. Special approach III: the Scotland Act 1998 (SA) 17 .4 HRA and leave it to the Government to „fast-track‟ an amendment through Parliament – if the Government wants to. even if a compatible interpretation cannot be achieved. N. and have instead interpreted statutes to conform with the HRA. The courts may even read in words which are not there. see A v SSHD [2005] 2 AC 68. A UK court should take this approach. primary legislation will still be valid. an Act of the Scottish Parliament must be read as narrowly as is needed to keep it within competence. its statutes can be struck down by the courts (unlike primary legislation of the UK Parliament). as far as it is possible to do so. If this cannot be done.101. 18 . The SA approach Under s. It is only valid if it is „within competence‟. Because the Scottish Parliament is only a devolved legislature. it will be struck down. ch.gov.opsi.com/textbooks/9780415566957/legislation.2.asp Where it mentions Halsbury‟s. even though it does not cover Scottish sources: http://cw.1776516240138747&cookieState= 0&ipcounter=1&bhcp=1 Learning how to read a statute is a crucial element of your law studies. you can avoid making the mistakes which even some experienced lawyers have been known to fall into.do?rand=0.com/uk/legal/auth/checkbrowser. Our example is the Representation of the People Act 2000.TIPS: THE BASICS OF READING A STATUTE Another excellent guide is Slapper and Kelly‟s advice for students.uk/ACTS/acts2000/20000002.htm The Major Parts of a Statute If you learn the major parts of a statute and get in the habit of looking for them.routledge. 19 . It will save you much time (and anxiety) in getting to grips with long and often confusing legislation. Making the effort to do this properly now will repay you in the future. For this we will use the example of the Representation of the People Act 2000. also exceptionally useful for you. A statute begins with the short title and chapter number. You may find it helpful to read the guidelines alongside a copy of the original statute itself.lexisnexis. You can view the entire statute online at http://www. you can refer to Laws of Scotland Online (note you must sign in to the library website first) http://www. and for connected purposes” The long title gives more information about the purposes of a statute and can be used as an aid to interpreting it. Our example states: “BE IT ENACTED by the Queen's most Excellent Majesty. in this present Parliament assembled. and by the authority of the same.g. In our example this is: “An Act to make new provision with respect to the registration of voters for the purposes of parliamentary and local government elections. The chapter number 2 simply indicates that it was the second statute passed that year. Next is the date of Royal Assent. Next comes the enacting formula. to make other provision in relation to voting at such elections.The short title is the familiar name of any statute and it will be a brief – sometimes rather unhelpfully brief – description of the contents including the year in which it was passed. If a statute only covers Scotland. Next comes the long title. it will say this in the title e. and a statute is not enacted until it has been passed by Parliament and received the assent of the Queen. In our example this is 9th March 2000. as follows:-“ The enacting formula indicates that this is a valid statute which has been enacted by the Queen in Parliament. and the Commons means the House of Commons). the Law Reform (Miscellaneous Provisions) (Scotland) Act 1986. and Commons. 20 . The legislator is the Queen in Parliament. (The Lords Spiritual and Temporal are the House of Lords. by and with the advice and consent of the Lords Spiritual and Temporal. You need not worry about this just now. (Delegated legislation has different conventions for naming sections – they may be described as “sections”. depending on what type of delegated legislation it is. There may be an interpretation section which explains the meaning of certain key words. “regulations” or “rules”. but you should remember that there is a difference. and usually into subsections too. sometimes with marginal notes Nearly all statutes are divided into sections. The main text of a statute is divided into numbered sections. “articles”.) Marginal notes give a quick indication of what the section is about. This is a standard procedure which makes it easy to search statutes and to cite them. 21 . The ratio may not be immediately apparent but. Such remarks are not binding. Defining the ratio 22 .the rule of law upon which the decision is founded.a 'by the way' remark. Which part of the judgment is binding? The part of the judgment that is binding is known as the ratio decidendi . through the application of certain techniques. How to Read and Analyse a Case First. Which part of the judgment is not binding? In giving its decision. it can be identified. then it is the ratio which is the binding part of that judgment. identify whether a case is a useful precedent In order to identify whether or not a previous case is binding on a present case.3. but may be informative for other reasons. the court will also explain the reasoning informing that decision. we need to consider certain factors: 1. 3. Where in the court hierarchy does the present court stand in relation to the court which gave the previous judgment? This depends on where the courts are placed in the civil and criminal court hierarchies 2. This is done by way of obiter dictum . If a precedent is binding. Work out which part of the judgment is binding Ratio decidendi This is the part of the judgment which provides the legal reason for a decision. One definition of the ratio is the legally material facts plus the decision thereon (i. Note the role of application of the ratio in future cases as part of the process of creating the ratio (see below).g see discussion of Donoghue v Stevenson 1932 SC (HL) 31. The material facts must throw up the 23 . 1932 SLT 317 in White and Willock.e. Note: this does not mean that the facts have to be identical. E. One judgment in full and the others concurring. pp.see tips below and excerpts from Donoghue v Stevenson 1932 SLT 317 Whose ratio? In the higher courts.Note potential confusion on definition. the legal result). Multiple ratios Status of dissenting judgment Evolution of ratio (i. the same issues of law must arise and the legally material facts of the present case must be the same as for the previous case.352-353). Cases 'in point' For the doctrine of binding precedent to apply. judges do not sit alone and therefore a number of judgments will often be issued for the one case. Scottish Legal System. The legally material facts Details relating to personal characteristics of the litigants are immaterial Details relating to the chain of events leading up to the claim may be relevant if they influence the legal argument presented and inform the points of law applied Example . role of future interpretation) A ratio may be stated in broad or in narrow terms and it may also be interpreted and applied by future judges in broader or narrower terms than originally contemplated. A ratio may be wide or narrow.e. If the material facts are the same (i. it can be 'distinguished' (not followed) even if it was decided by a superior court. Which part of the judgment is not binding? Obiter dictum (the plural is dicta) This part of the judgment is not binding upon future courts. White and Willock refer to the need to consider the material facts at the “appropriate level of generality” (p.348). the eminence of the court and the circumstances of the case.See excerpts from Donoghue v Stevenson 1932 SLT 317. Obiter statements are generally made without full consideration of all the consequences that would flow from them if they were binding A statement made obiter dictum is an expression of the court's thought processes which may be very illuminating if we seek to discover why a particular decision has been reached Example . 24 . nothing important in law differentiates them).e. Obiter statements may be respected due to the reputation of the judge.same issues. the case is said to be 'in point' and the doctrine will apply If a previous case is not 'in point' with the present case. go its publications. Judicial decisions of particular legal importance are published in series of law reports. the section on how to read a case is online.routledge. For Scots cases.com/uk/orc/bin/orc_demo/01student/breakdown/case_breakdown.pdf Note that Strong invents his own “CLEO” method: a four step formula of Claim. you 25 . These can be helpful in understanding a case. For decisions of the European Court of Justice. Here. Evaluation and Outcome. Some highly significant cases will be reported in several series. For decisions of the European Court of Human Rights. but they also offer additional content: they sometimes include excerpts from the arguments made by counsel. Helpfully. The most authoritative law reports are those which have been checked by the judges themselves before being published. Another excellent guide is Slapper and Kelly‟s advice for students.asp Where was the case reported? What this question is asking you to identify is the set of law reports (if any) in which the case appeared. Law. If you are appearing in court as a legal representative. see SI Strong.oup. Series A and Series B.com/textbooks/9780415566957/cases. For an excellent guide to the layout of an English case. the most authoritative reports are Session Cases (Scots law only) and the Law Reports (UK-wide). go to the European Court Reports.com/textbooks/9780415566957/cases.asp http://cw. even though it does not cover Scottish cases: http://cw. Not only are these revised by the judges who decided the case. here: http://www. How to Write Law Essays and Exams. also exceptionally useful for you.TIPS: THE BASICS OF READING AND ANALYSING A CASE Understanding a case is a highly skilled activity. we will go through the key questions and give you some tips and advice on how to answer them.routledge. So. Who brought the case.php It is also possible to find the full text of “unreported” decisions (those which have not been included in any set of law reports) in free online databases such as BAILII. You can usually find these right after the title of the case. See also http://www.bailii. other series such as the Scots Law Times and the Scottish Criminal Case Reports are highly respected and often carry decisions which have not been published elsewhere. it will state the court in which the case was heard and the judge or panel of judges who heard it.ac.should cite these in preference to any other series of law reports. In what court was this case decided.html Summaries of cases can be found in newspapers and legal journals.uk/research/other/lawcases. http://www.stir. an appeal decision in the Inner House of the Court of Session or the Supreme Court of the UK may lay down a legal rule which is binding in a great many future cases. You will find many cases through Lexis Library on the library webpages. This gives you several clues about how serious or important the case may be. sometimes within days. and Green‟s Weekly Digest is very useful for finding short summaries of Scots cases which have not been published anywhere else. where rules laid down by higher courts are binding on lower courts in cases dealing with similar facts. and against whom was it brought? 26 .org/ The Supreme Court of the UK puts its own decisions online. and which judge(s) heard it? Whether a decision is reported or unreported.uk/decided-cases/index. Nevertheless.is. Remember too the hierarchy of courts. http://www. where you have a choice.supremecourt.gov. depending on the type of case it is and the court in which it is being heard. Advocate Appellant Party against whom the case is brought Defender Accused Respondent Applicant Defendant Applicant Defendant Claimant (previously plaintiff) Crown Defendant Defendant You will also come across other descriptions of the parties. Test: If a particular fact was absent or different would it alter the outcome of the case? Ask: What was the outcome which the person(s) bringing the case was seeking? What legal rule or rules was she relying to make her argument? What in this legal rule could support her argument? Tips for establishing the material facts 27 .The parties to a case are described differently. English or Scottish. and so on.g. judicial review. heard at first instance or on appeal. Party bringing the case Scots civil case – first instance Scots criminal case – first instance Appeal to a court in the UK Appeal to the European Court of Human Rights Appeal to the European Court of Justice English civil case English criminal case Pursuer Procurator Fiscal. This gives you a shortcut to all sorts of useful information about the case. Knowing what the terms means enables you to spot whether it is civil or criminal. What were the material facts of the case? The material facts in a case are those facts which give rise to or are relevant to resolving the legal issue before the court. such as: Petitioner – A person who brings certain types of case to the Court of Session e. Minuter – A person who has not been called as a defender or third party may nevertheless claim title and interest to enter the process. They then apply by minute for leave to enter the process as a party minuter and to lodge pleadings. The other party is the Respondent. or H. Below is a quick reference chart.M. What were the legal issues the court was asked to determine? Here you are looking to identify the legal problems raised by the material facts of the case. He appeals. In court. and the racial aggravation is provided for by statute. Let us take an example (this is a fictional and simplified adaptation of a real case. State the facts as concisely as possible Learn to spot the difference between the relevant facts and the irrelevant ones Cite only the relevant ones Hector MacQueen1 helpfully suggests drawing diagrams. Breach of the peace is a common law offence. it was clear beyond reasonable doubt that he was referring to Irish people. because law protects his freedom of speech. Walls v PF Kilmarnock [2009]. His conduct was not politically motivated. sings offensive sectarian songs which have been banned by his club. He asks for the court to adjourn the case so he can raise a devolution issue concerning the compatibility of the complaint against him with Article 10 of the European Convention on Human Rights (freedom of expression). He is charged with a racially aggravated breach of the peace. Try placing the name of each party to the case in a separate box. then diagrams of the relationships between them (for instance who has a contract with whom). 1 Studying Scots Law (3rd ed: 2004) p 150. but the Crown argues that in the context of other abuse he shouted. where the facts are complex. despite repeated warnings from police officers present at the match. 28 . The sheriff refuses. rather it was racist. A football fan at a match. such as singing abusive songs referring to the Irish famine. he argues that the word “Fenian” refers to a political organisation and he was only making a political point. One particularly abusive song contains the word “Fenian”. He argues that he has a right to sing these songs. s 96 of the Crime and Disorder Act 1998. in most instances a case in a civil court is a civil action or appeal.The legal issues in his appeal are: (1) Is it a correct interpretation of s 96 of the Crime and Disorder Act 1998 to hold that his conduct was racially aggravated? (2) Was the court correct to reject his request to adjourn the case to allow him to raise a devolution issue regarding his Article 10 right to freedom of expression? Tips for identifying the legal issues: Break down the case into its main parts State the legal issues as precisely as possible Identify all the relevant law (cases. etc. Civil or criminal? Was the action raised in a civil or a criminal court? What was sought: a civil remedy/appeal or the determination of a criminal charge/appeal? (There are exceptions to this. were all the judges in agreement or did some dissent? Even if they all reached the same decision on the outcome. However.) Public or private law? Was the case concerned with the duties and powers of the state (or a state body)? Or was it concerned with the duties and rights of individuals (including non-state bodies such as private companies)? Which source was most important in resolving the issue before the court? This may be important to you if you are involved in challenging a legal decision. What you are looking for here is not the most important source in the hierarchy of legal sources. did they all reach it for the same reasons? Was this (a) a civil or criminal case and (b) a public law or private law case? By now this should be quite easy to identify. as where someone seeks a remedy against officers of the court for malversation (corruption or misbehaviour). and a case in a criminal court involves criminal proceedings or appeal. such as where a criminal remedy is sought in a civil court. statutes. 29 .) by name How were the legal issues resolved and what reasons did the judge(s) give? What was the outcome of the case? If there is more than one opinion. and so on. the outcome may be decided on the grounds of general legal principles or “public policy” (what the court defines as being in the public interest). apart from a very old decision of a Scottish court from the 19th century. but might not apply to this particular case. Note too that no formal source may decide the outcome of the case. This does not mean that judges have a free hand to apply these whenever they like. What you are trying to find here is the source(s) which in fact was most relevant to deciding the case. there might be no law which deals precisely with the situation in question. In that case. it would be the 19th century decision which was most important. public policy considerations can influence what decision judges make when they are confronted with a genuine ambiguity or conflict in the law. For instance. Rather.We already know that statute will trump case law. EC law and the like are more authoritative. 30 . Where there is no law “in point” (and also where there is a conflict between laws or uncertainty over what the law means). Newer statutes. You may get some marks for spotting the word “human rights” or “contract” and then warbling on with everything you know about the Human Rights Act or commercial law. The same advice applies to problem questions. There are a few tips which may help make this easier. when reading a statute. Or. Do not assume that the question is looking for a single clear answer (although this is not an excuse to provide a woolly one instead).4. 31 . As a result there may be more than one possible answer. Answer the question you were set You will be told this about writing essays.and then speculate about what else may have been left out Problem questions are often purposely designed with some crucial facts left out. Assume that the information you are given is accurate . but for now we cover answering a problem question. Go back to the question while writing. Assume that every word might be relevant Check you have understood the question. The same goes for answering problem questions. and check you are answering what you were asked. but you will not get many. but there will also be some more complex points which you could bring out. to read it word-for-word. the problem question may deal with an uncertain area of law where no-one yet knows what a court would decide. Students sometimes struggle to cope with problem questions at first. The clues will be there: read carefully and find them. which can be a difficult task until you get used to it. There will be some easy answers to find. yet it is only through mastering these that you will gain your first experience of how to handle these in exams – and where appropriate to resolve real-life cases. and it is these which attract the highest marks. Their instinct is to avoid them. Answering Problem Questions We will also add a section on writing other exam answers here in the next edition of this handbook. You may remember that we advised you. this is good . This is not to suggest that you should express yourself in the form of a 19th century novel. you may find it is appropriate to analyse the previous decision in quite a bit of detail. This may attract high marks.but a better answer will make the best case for the other party too – and then explain why in your view it still fails. You can get many extra marks for an intelligent discussion about what might happen in law if X or Y had happened. You may not need to cite the whole name and details if you are answering this in an exam. may find herself with a D or worse. Usually. Draw a diagram if it seems all too complicated We mentioned in “Reading a Case” the advice that Hector MacQueen gives on drawing a picture of the relationships between the various parties. my esteemed client betook himself to the august premises of a drinking establishment on Byres Road. if you can make an argument to justify your disagreement. Academic authorities can be cited to support your argument too (and don‟t forget that you can disagree with an academic authority. The less you have to cram into your mind when analysing any one part of the problem. Or. you should explain why the source is relevant – don‟t just cite it. as precisely as possible. Aim to use the appropriate legal language. and use them. or a case. If you can make a persuasive argument for one party. though. Students often do not realise that two answers which say substantially the same thing may get very different marks. You need to justify your arguments by referring to authoritative sources. Argue for both parties in the dispute Problem questions are often framed as a dispute between two (or more) parties. not just what is there. The student who expressed herself clearly using the correct legal language may get a good B. Always cite relevant sources and other materials. while the student who gave a woolly description of what happened. declaiming that “It is undoubtedly the case that on the evening of August the twenty-fourth. This advice works just as well with a nasty problem question. On the other hand. But don‟t assume they are the whole story. Look for what is missing in the problem question.You should use the facts you have in the case and work with them. Assume that they are correct. It may be enough just to put the name of a relevant case or statutory provision in brackets. but show why you think it helps decide this case. the more likely it is that you will grasp all the elements of the answer. using casual language.” You should simply aim to learn the appropriate legal terms wherever possible. if the point is quite complex. you may find that a few words describing the key point of a case will do the trick. if any exist A problem question is not just a test of your analytical skills.) 32 . Further reading This should be enough to get you started.1405822007.). 2009. (OUP.1144.This is all a matter of judgment.oup. £17. once more: Steve Foster. Occasionally you may get a “blue sky” problem question where there is no law in point. and try to predict what a higher court might say if asked to answer the question.99 SBN: 978-0-19-928755-0 http://ukcatalogue. Foster and Strong. you should aim to reason from general principles in that field of law.uk/catalog/academic/product/0. they offer excellent chapters on answering problem questions. you will find it very helpful to consult the two classic texts. but you will find the more you do it (and the more you read books. 2nd ed.00. doing exams and writing essays. How To Write Better Law Essays (Longman. 2006).do ?sortby=bookTitleAscend 33 . with examples of good and bad practice. If you want to read more advice on problem questions. The details you need for Foster and Strong are.com/product/academic/highereducation/law/skills/9780199533572. Although focused on English law rather than Scots.pearsoned. £16.co.html SI Strong How to Write Law Essays and Exams 2nd ed. and judicial decisions in which the experts do it). the easier it will get. articles. and no law that seems to have much to do with the case at all! Here.99 ISBN 9781405822008 http://vig. 5. Below. 34 . How to Write a Law Essay This is also available as separately on WebCT under the title “Essay Writing Skills 2010”. we reproduce that Guide. ESSAY WRITING SKILLS “HOW TO SAY WHAT YOU MEAN” SCHOOL OF LAW UNIVERSITY OF STIRLING New issue.AUTUMN 2010 (Please keep for future reference) 35 . there are a number of steps which you have to go through. any employer who wants a graduate who has studied law will expect that person to be able to use language and analytical skills to present information in a clear. concise and meaningful way. The purpose of this booklet is to guide you on your way to better essay writing. Some of us might not see the need for developing this skill at all given that modern communication is increasingly limited to phones and informal e-mail. form an opinion on it and to communicate that in writing is an essential skill in any workplace and that is what writing an essay is all about.INTRODUCTION Most of us would agree that we could improve the way that we write. Whether you end up preparing press releases. the ability to research information. The key steps are:36 . Furthermore. personnel reports. THE STEPS TO A GOOD ESSAY Before you get anywhere near writing an essay. management proposals or writing books you will need these skills. it is not something that we do every day and it can be extremely frustrating to know what you want to say but not know how to write it down with the same sort of confidence with which we speak. After all. However. 1. IDENTIFY WHAT THE TASK IS 2. RESEARCH 3. PLANNING 4. DRAFTING 5. EDITING 6. FINAL RE-WRITE 1. IDENTIFY WHAT THE TASK IS This might seem like an obvious point but don‟t start working on any project until you know what it is that you are meant to do. Look at the meaning of the words in an essay title. Does it ask you to explain, describe, discuss, analyse, compare, critically comment or otherwise deal with the topic specified? Is it a problem question, in which case have you analysed it to separate out the issues which you will have to address? You will never be asked to “write all you know about x” because that is not what happens in real life. No boss will ever come into your office and ask you to prepare a report on “everything you know about insurance/sales/contract law/widgets”. Always make sure that you know the purpose of the piece of work 37 which you are undertaking or your work will lose focus. Open a folder for your piece of work and divide it into sections: notes, articles, draft copy and final copy. Good organisational skills are essential to completing any task and this is a habit you should get into. 2. RESEARCH Work out which books, articles, cases and notes you intend to look at in order to carry out your research and gather them together if possible. Look at the bibliographies of articles and books which you use and these will refer you to other texts which might be of use to you. We subscribe to Westlaw, LexisLibrary and HeinOnline which are online law resources. You can use these resources to track down articles, cases and statutes relevant to your task. Further advice on research can be found on the library web page http://www.is.stir.ac.uk/research/guides/law.php. More general advice is on http://www.is.stir.ac.uk/research/index.php for good advice on using the library and finding sources. The Library and School of Law have prepared „How To..‟ guides for finding cases, statutes and journal articles and on using the internet for research. These can be found on WebCT for most modules as a resource. You must use reliable sources. Sources fall into two categories: primary sources such as a case or a statute and secondary sources such as a book or journal article. Do not use Wikipedia as this online source can be amended by anyone. Law publishers include W. Green, Pearson Longman, Oxford University Press, Tottel (formerly LexisNexis Butterworth), Cavendish and Dundee University Press so 38 books published by them tend to be reliable sources. There are many good journals: you will find some articles online via Westlaw etc but remember that paper copies of certain journals are available in Level 3 of the library, including the Journal of Business Law, Scots Law Times, Edinburgh Law Review, Modern Law Review, Journal of Criminal Law and Criminology, Journal of Social Welfare and Family Law and Legal Studies. The more advanced your module, the more research you should do. Lecture notes are a good starting point for research but should not be cited in your essay. If using photocopies or your notes, use a highlighter pen to highlight points or quotes which you think could be useful and file them together. Take notes from each resource as you read them, noting the page numbers of specific points and quotes. There is nothing worse than wanting to refer to a source and then not being able to remember where your key point came from. Review your notes once you have finished and decide whether you need any additional information before you go on. Don‟t put off finding something which is potentially relevant until after you have started writing because it may blow your whole argument out of the water and you will have wasted valuable time. Remember: poor preparation = poor performance. 3. PLANNING Time spent planning is not wasted time. It will enable you to focus your answer. The best way to start is with bullet points. For example, you may want to discuss 5 main topics in your final essay. Begin by identifying 39 Evaluate that law in light of the facts presented to you and finally. Evaluation of the law in an essay of this type can include assessing reforms or proposed reforms. 40 . Strong in his book. 2006. Your points might concern a case analysis in which case you could start off with the following bullet points: facts of case ratio of case effect on law of that decision comparison with other jurisdictions conclusion You would then go on to add bullet points within those categories and before you know it you will have mapped out the structure of your essay. Strong suggests that any discussion of the legal theory behind a change in law.co.) and in academic articles and books (Strong.uk/highereducation/mylawchamber/FosterHow toWriteBetterLawEssays2e/) with useful tips and online exercises. 2nd ed. your answer should follow the format suggested by S. His formula is to plan your answer around “CLEO”. Once you are happy with this structure you can go on to the next stage and draft your essay. It has a companion website (http://www. Identify your Claim. state the relevant Law. Discursive essays can follow the same type of plan but the statement of Law and the in-depth Evaluation will be more closely linked. The range of your discussion will depend on your topic and your permitted word count). Foster‟s “How to Write Better Law Essays: Tools and Techniques for Success in Exams and Assignments” (Pearson. We also recommend that you consult S. would include an assessment of why the court or legislature acted as it did. consultative documents etc. The ideas behind the change would be found in judicial opinion. 3rd ed due 2010) with online resource http://www.I.com/uk/orc/bin/9780199287550/).pearsoned. 2009) which is a very useful book on essay writing. “How to Write Law Essays and Exams” (2nd ed OUP. conclude with your Outcome. In a problem based question. for example. pp193-199). analysing recent developments in the relevant area or comparing Scots law with other jurisdictions.oup.these as short bullet points and decide the order in which you intend to discuss them. legislative documents (White Papers. A good way to make sure that it does what it should is to read over your conclusion separately from your essay. Then read the main arguments in your essay –do they tie in with the conclusion? Some people write and reference their work at the same time whilst others write it first and then reference it later. This is vitally important. 41 . it should be straightforward to write your introduction. Ask yourself whether you could work out from the conclusion what the main points in the body of your essay would be. Act or case) for the point which you are making or the quotation which you are using. Because you have taken time to work out what that will be in step 3. Referencing is the process of crediting another source (be it book. article. This should set out what you intend to discuss in the main body of your essay. Unless you have a photographic memory then you should probably reference as you go. Remember that you can use footnotes to include material which you think is important but not vital to your argument. if discussing a case. Have you understood the outcome of that case? Is that clear in your draft? In a non-problem based question. Add depth to your argument as you draft: for example. make sure you make clear which level of court is handling the case (e. Sheriff Court or House of Lords?).” The conclusion would be too long if it simply regurgitated the main body of the essay. make sure that you have kept your focus on the key issues and haven‟t padded it out with information which does not add to your argument.g. I conclude that this case is flawed and that the court missed out on an opportunity to amend the law in this area. Next move on to discuss your key points.4. just write the source in brackets after the point/quote so that you know where it came from. The art of citing and referencing is discussed below but for the purposes of your first draft. draft a conclusion. Finally. this should be easy to do. It should pull together your key arguments and lead on logically from the main body of your essay. it is too simple to say “For the reasons given above. following the order you have planned and specified in your introduction. How long should it be? Using the case analysis example. This should save you a lot of time in the final stages. DRAFTING Now that you know the points which you intend to cover. Try to give yourself enough time to allow you to leave the draft alone for two or three days. EDITING Just when you never want to see your essay ever again. Keep language and sentence structure simple. 5.does it make sense? Take a red pen and edit your work. You can contact them at the Student Support Services (Reception: 4Y. spelling and whether the sentences flow. Be honest. you have to revisit it in the cold light of day. Read it again with a critical eye and mark it against the specimen marking sheet in Appendix 1. Students with dyslexia or who suspect that they might have specific additional needs in this area should contact the Dyslexia Adviser or Disability Adviser. Check grammar. Use a dictionary. tel: 467080) for help and advice. If you have a specific problem with spelling then use the spellchecker function on your computer if available or ensure that someone can read over your work and help you with that aspect of it. Have you done what you said you would do in the introduction? Does your conclusion make sense? 42 . All students can access Student Learning Services: look out for notices on WebCT and posters on essay writing workshops and one-to-one tutorials. This is a useful skill and will serve you well in the future. People who are fluent verbal communicators may trip up with poor spelling. 6. Prepare the bibliography using all of the books. Have you answered the question or are you hoping that the marker will not notice that you have fudged certain issues which you do not understand? Have you used quotations without really understanding what they mean or used them in the wrong place? Mark up the changes which you intend to make. the University‟s policy is in the Code of Assessment: “6.7. cases and electronic sources which you have read in your research.g. double spaced). Do a word count and write this on the front of the essay. FINAL RE-WRITE Re-write the essay taking into account your editing. Marks are deducted for unauthorised late submission of work.2 At undergraduate level. Put your registration number. course details and essay title on the frontsheet. Submit on time unless you have an extension. Proof read the final version and ensure that it is in the format specified by the instructions (e.” Note: the SCHOOL OF LAW COUNTS SATURDAYS AND SUNDAYS AS DAYS FOR THE PURPOSE OF THIS RULE! 43 . Ensure that you have included all of your references.2. articles. After five days the piece of work will be deemed a non-submission and will receive an X (no grade). coursework will be accepted up to five days after the submission date (or expiry of any agreed extension) but the grade will be lowered by one grade point per day or part thereof. Take a copy. points and quotations with a reference then it is easy to challenge what you are saying. if you do not back up your arguments. REFERENCING You must reference your work for two reasons. Where is the evidence for your point? Secondly. failure to reference can open you up to an accusation of plagiarism (see below). Firstly. Referencing 2.SPECIFIC QUERIES 1. 44 . Improving my writing skills 3. What is plagiarism? 1. at the bottom of each relevant page) but it is also possible to format these as endnotes at the end of the essay. Note also footnote 48 in which he includes some additional information which is not vital to his argument and therefore not included in the main body of the text but which is of interest to the point made. This is not an exact guide: the exact frequency will depend on your topic. please use the referencing systems described below. Note the use of numeric citation (1. Check each sentence as you go to make sure that you have cited all references to points made in that sentence. opinion. Look at Appendix 2 again – note how the author backs up his points with references. 2.Unless given express instructions to the contrary by the co-ordinator.e. Citing means acknowledging in your text the document from which you have obtained information: we prefer the Numeric System in the School of Law. cases. Command Papers. statutory instruments and statutes should all be referenced correctly. How do I give the reference for the book/journal/case/legislation? Books. analysis etc which you use in your essay and which is from another source must be cited in the text and a full reference given. 3 etc) and corresponding references – here the author has used footnotes (i. E.: Case in SCCR reports: Smith v Jones 2002 SCCR 146 Case in All England Case reports: Spring v Guardian Assurance plc [1994] 3 All ER 129 45 . you should aim to cite a source at least every 100-150 words. details from the judgment of a case. The reference is the detailed description of the document itself. Parliamentary debates. See Appendix 2 for an example of the Numeric System: this essay was written by one of our own LLB students on delict. fact.g. Depending on the type of essay. What should I cite? Any quotation. journals. HOW CAN I IMPROVE MY WRITING SKILLS? (a) Keep it simple.ac. The two are not unrelated! 46 . considered the material available to you and formed your own opinion. Read widely to see how other people do it. 2009) is an excellent book for students wishing to improve essay writing skills and it contains a very good guide on referencing.php for a specific guide to legal citation.is. This is the written equivalent of putting on a fake accent – it sounds dreadful and sooner or later you slip up! Be articulate – not fake. unless writing about the historical position.is. If you find the item on Westlaw. The temptation in essay writing is to try to use complicated language and convoluted sentences.ac. The degree to which this analysis is required will depend on the type of essay that you are writing and the level of the course. 2. year.com”! S. Publisher. journal reference (the correct format should be printed on it). Read the judgment of Lord Denning in Appendix 3. Ensure most up to date edition is being used.php for a general note on Writing References and at www.stir. Place.uk/research/citing/index. title.uk/research/citing/lawrefer. there should be information on how to cite or refer to the work at the top of the page. All students should also visit the University Library site at www. Foster‟s “How to Write Better Law Essays: Tools and Techniques for Success in Exams and Assignments” (Pearson. Journal articles: Author. He was famous for his use of straightforward language and as a very clear thinker. It is important to show that you have read widely.stir. “Google” is not an adequate reference and neither is “westlaw.Act: Hunting Act 2004 c37 Books: Author. title. 2ND ED. Do not simply paraphrase the arguments of others. stir.uk/acpolicy/PlagiarismUG.quality. They are designed to make you think about language and its effectiveness in communicating an argument. The postgraduate policy is at: http://www.ac. The University has a strict policy on plagiarism for both undergraduates and postgraduates.(b) Do the exercises in Appendix 4.quality. If you plagiarise then you fail to develop the skills that you will have to demonstrate in the workplace after graduation. All students should note the policy on the University website: the undergraduate policy is at http://www.stir. Use the University‟s Little Book of Plagiarism to find out more. WHAT IS PLAGIARISM? Plagiarism is not paraphrasing what someone else has said (provided that you credit them with a reference). Inadvertent plagiarism through lack of referencing is easily solved by ensuring that you do reference your work properly.uk/ac-policy/PlagiarismPG. After all. It is copying someone else‟s work – whether intentionally or not.php. research will lead you to read other people‟s opinions and you have to get your facts from somewhere.and passing it off as your own. 47 . Plagiarism is cheating.php.ac. (c) Apply a test to each sentence – does it have a verb? Can it stand alone? Is it too long? What does it actually mean? Do I know what I want to say? Many people rush into writing before they know what they want to say and if that applies to you then go back to Step 3 before you write any more. 3. Please note that the School of law reserves the right to use plagiarism detection software on essays submitted electronically: please check your module outline for submission details. 48 . _______________________________________________________ MODULE: ______________ Work which is submitted for assessment must be your own work.stir. CRITERIA FAIL 4 or 5 grade PASS 3A-3C GOOD 2D-2F VERY GOOD 2A-2C EXCELLENT 1A-1C Introduction: Relevance & clarity? Argument Relevant to question? Demonstrates an understanding of key issues and reading? Organisation of material Logical? Does it allow the argument to develop? Interpretation Key issues? Reading interpreted correctly? Good level of analysis? Conclusion Linked in with main body of essay? Clear and succinct? Sources Breadth and relevance? 49 . All students should note that the University has a formal policy on plagiarism which can be found at http://www.uk/ac-policy/PlagiarismUG.Appendix 1: Specimen Essay Grading Sheet ESSAY COVER SHEET AND GRADING SCHEME STUDENT REGISTRATION NUMBER_________________________________ ESSAY TITLE/NO.ac.quality.php. Adequate referencing? Presentation Grammar/Writing style? Proof reading? Further comments: Notes and Comments: FINAL GRADE_________ Please see tutor to discuss: yes/no TUTOR‟S GRADE: __________________ SIGNATURE______________________________ Comprises **% of total grade for module 50 . 13. 12 (3) wrongfully inducing breach of contract. Economic Torts p25 : „when a defective product causes harm. K." 6 [1932] AC 562 7 Clerk & Lindsell On Torts at para 25-01. and that there is no „genus‟ tort that provides a base for all the economic torts. T. 11 (2) interference by unlawful means with contractual or business relations. 11 OBG Ltd v Allen 12 Douglas v Hello! Ltd 51 . 62 MLR 320 at 322 (in a review of Weir. L. henceforth OBG ibid at para 137 per Lord Nicholls. Economic Torts) 9 Carty.. 14 2 3 [2007] UKHL 21. 5 Wedderburn.. H.” (Stewart. Weir. Can the Economic Torts be Unified (1998) 18 OJLS 729. and were heard consecutively because the legal issues overlapped. who at para 139 goes on to say: „These are much vexed subjects. (quoted in 2002 (118) LQR 164 at 165) 10 Leaving aside confidence and conversion. Rocking the Torts (1983) 46 MLR 224 at 229 he continues: "they have lacked their Atkin. R. W. 3 The current state of the law of economic torts 4 has been described as “ramshackle”.‟ 8 Bagshaw. 7 Others believe that such generalisation is neither possible nor desirable 8. I intend to use English terminology except where it‟s necessay to distinguish Scots law. v Allan 2 were concerned with claims in tort for third party economic loss caused by intentional acts. Oliphant.APPENDIX 2: LLB Student Essay (LAW9DE: 1A** grade awarded) The three appeals considered by the House of Lords under the lead name OBG Ltd.5 Some commentators have suggested this is because this area of the law lacks the kind of general principle applied by Lord Atkin in Donoghue v Stevenson 6 which successfully unified the law of negligence. T. An Analysis of the Economic Torts p269. and since also the case being discussed along with most of the legal authority on the subject is English. Nearly 350 reported decisions and academic writings were placed before the House. Reparation: Liability for Delict para A1-012).‟ 4 Although this purports to be an essay on the Scots law of delict. considering that “the dominant influence of the last 200 years has been that of the English common law.J.we do not say that this is a special case of negligence to which special rules apply. 9 The grounds for action presented in these three cases were: 10 (1) interference by unlawful means with contractual relations. J. 51 17 OBG supra n1 at paras 38. 38. The courts have no role to play in this normally. The key dicta were: (1) inducing breach of contract should continue to be considered a distinct category of tort and not be subsumed within the general category of unlawful interference with business. 51. 62 18 Weir. T. The Wedding Crashers – Take 6 157 NLJ 8 16 OBG supra n1 at paras 32. Reparation: Liability for Delict at para A8-001 52 . or even be put out of business. 16 and. W.17 To understand the significance of this decision we must review the history of the economic torts to discover how we got into “our present pickle?” 18 Economic losses are a difficult area of law in a free market since one business may suffer losses. 15 In the event the House effectively erased all of twentieth century caselaw from the three party economic torts. 15 Caddick.The issue which the Lords took this opportunity to address was whether three such separate heads of tort exist or whether they might be rationalised within a „unified theory‟. Economic Torts p39 19 Stewart. and economic orthodoxy considers there are consequent gains for consumers.19 Historically in English common law unlawful 13 14 Mainstream Properties Ltd v Young I do not intend to say anything about the facts of these individual cases. by the lawful competition of a rival. producers and workers. Most publicity surrounding the case centred on the celebrity wedding and much of the expectation in the legal journals was focussed on right to privacy issues. (2) unlawful interference with contractual relations should not be a separate head of tort but should be considered under the conditions of liability for unlawful interference with business. A. interference in trade was actionable. 20 21 OBG supra n1 at para 6 (1620) Cro Jac 567.... the defendant‟s liability is primary. in response to changing conditions within society. where the tort lay in “firing a cannon at negroes and thereby preventing them from trading with the plaintiff. CJ at 576 26 McLaren. 24 it was only ducks that were being shot at in a dispute over wildfowling rights: where a violent. in Carrington v Taylor. livelihood . The respective acts of threatening mayhem and discharging ordnance at potential customers are clearly in themselves unlawful. 25 Such cases are straightforward because..” 24 (1809) 11 East 571 25 ibid per Holt. there an action lies in all cases..” 23 Thankfully. by the turn of the century. But the law of torts has inevitably grown and been modified over the centuries. J Nuisance Law and the Industrial Revolution (1983) 3 OJLS 155 53 . and Tarleton v M‟Gawley 22. threatening to mayhem”. all comers .. 26 and as the ingenuity of the industrialists and entrepreneurs of Victoria‟s Empire developed more subtle ways of influencing the customers.. 2 Roll Rep 162 22 (1790) 1 Peake NPC 270 23 L. Lord Hoffman 20 cites Garret v Taylor 21 where a business was harmed because the defendant “imposed so many and so great threats upon .act is done to a man's ..Hoffman fails to record that this anti-competitive inititative actually “killed one of the natives. or £3.would be a strange and impossible council of perfection. Bramwell 29 Weir. but nothing that was actually unlawful: To say that a man is to trade freely. 30 The authority for all inducing breach of contract cases is Lumley v Gye..The courts‟ attitude to the nineteenth century free-market was crystallised in Mogul Steamship Co Ltd v McGregor.” 33 Lumley raised an action against Gye for “maliciously procuring” a breach of contract. but that he is to stop short at any act which is calculated to harm other tradesmen.600 per performance [ House of Commons Research Library. Lumley had contracted Wagner to sing twice a week at Her Majesty‟s Theatre for a payment of £100 per week. 31 Two rival theatre owners were vying for the services of the opera diva Johanna Wagner.” 28 A number of ship owners had entered into a league and had applied “sharp practices and power plays” 29 in seeking to control the tea trade from certain Chinese ports. A Casebook On Tort title of Ch15 30 [1892] AC 25 per Bowen LJ 31 (1853) 2 E&B 216 32 That‟s equivalent to £7. which established the boundaries of lawful competition as whatever is “neither forcible nor fraudulent. Gow & Co 27 .200 per week in today‟s money. neice of the famous composer.32 Wagner subsequently agreed with Gye that she would sing at Covent Garden for a “larger sum. 34 27 28 [1892] AC 25 ibid per L.. HCRL 99/20] 33 Lumley v Wagner 1 De GM&G 604 at 607 34 Lumley v Gye (1853) 2 E&B 216 54 . T. in Mogul SS 598 at 613 Allen v Flood supra n34 at 96 per L.36 Such an analysis seems perfectly reasonable with a century of hindsight but the social mood of the time was perhaps less comfortable with it. in my opinion. R.” 38 39 e. but over the next century several false trails were followed. to labour disputes. the law could have stopped here. 41 This case involved “boycotting by trade unions in one of its most objectionable forms. as held by Bowen L.g. 37 The Lords specifically rejected the proposition that liability might arise whenever one person did damage to another wilfully and intentionally without just cause and excuse.J. so too is an employee free to cause economic harm to a rival employee (by getting him laid off) as long as no unlawful means are employed.” 42 but as ever it wasn‟t the details of fact that caused confusion but the details in the dicta. Judicial Prosopography.The case which completed the triangular foundation on which twentieth century economic tort law was to be constructed was Allen v Flood.Lindley 55 .” 37 Heuston. 38 Since Allen liability has turned on intentional procurement of an actionable wrong or the deliberate use. 40 were sown by Quinn v Leathem.Watson 40 OBG suprs n1 at para 15 per L. which. The seeds of confusion.Hoffman 41 [1901] AC 495 42 ibid at 542 per L. 35 In essence this case simply extended the principle of Mogul Steamship Co. 39 In respect of the House of Lord‟s judgement in OBG. Two key passages were 35 36 [1898] AC 1 ibid at 164 per L. of illegal means directed against the claimant. or threatened use. LQR (1986) 102 LQR 90-113 quotes the Law Times (Dec 1897): “It is strange that trade unionism should have to be thankful for the House of Lords. In the same way that rival businesses are free to cause harm to one another in lawful pursuit of their own interests.Shand – “The case was one of competition in labour. is in all essentials analagous to competition in trade. In Sorrell v Smith 45 Lord Dunedin was prompted to invoke the prayer of Ajax in an attempt to clear the “fog of battle” from this area of law. T.‟ (A8-027) By this analysis there would be two concurrent ground of action. In Stewart. it is suggested that procurement should be considered „as a separate heading within inducement. Lindley 45 [1925] AC 700 46 Clerk & Lindsell On Torts at para 25-05 47 OBG supra n1 at para 22 48 [1952] Ch 646 49 In Scots law a distinction has been made between inducing and procuring a breach of contract as respectively involving lawful and unlawful means.Macnaghten ibid at 535 per L. (2) inducing a breach of contract isn‟t of itself a wrongful act but only attracts secondary liability once there‟s been a breach. purporting to re-state the basis of Lumley v Gye: (1) “it is a violation of legal right to interfere with contractual relations recognised by law” 43 and. 118(JAN). 50 Weir. when DC Thomson & Co Ltd v Deakin 48 consolidated the unified theory that considered inducing breach of contract to be a species of the more general tort of unlawful interference with contractual rights.” 44 The problem with these respective passages is: (1) Lumley wasn‟t founded on merely interfering with a contract but on inducing an actual breach of a contract and. (2) “The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual. one (accessory liability) for the breach and one (primary liability) for the procurement. Reparation:Liability in Delict. but a „penumbra of doubt‟ 46 nonetheless continued to hang over cases where there was interference with contractual performance but no actual breach of contractual obligations. “The muddle set in” 47. WJ.identified by Lord Hoffman. 164-167 56 . LQR 2002. 49 Throughout the twentieth century as the law worked to connect the various islands of the “archipelago” that was the common law of economic torts 50 with stepping stones of 43 44 ibid at 510 per L. Denning declared: Th e time has come when the principle should be further extended to cover deliberate and direct interference with the execution of a contract without that causing any breach. On his retirement the Haldane Society of Socialist Lawyers said that “ no judge had done more than Denning to bridge the ever-narrowing gap between the law and Conservative Party policy.” (Financial Times 2nd August 1982) 53 54 Clerk & Lindsell On Torts at para 25-32 Middlebrook Mushrooms 612 at 620 55 OBG supra n1 at para 44 56 ibid at para 37 57 . it was invariably in the trade union disputes that the lords ran the greatest risk of getting their feet wet.caselaw.” 56 51 [1969] 2 Ch 106 52 [1969] 2 Ch 106 at 137. In Torquay Hotel Co Ltd v Cousins 51 L. 52 The creation of this tort of interference with contract has been much criticised and has not been supported by later authority. 53 Rather judges have stressed “the limits which as a matter of policy the court must place on the principle of Lumley v Gye”. 54 For Lord Hoffman all this confusion has arisen from attempts to apply the unified theory 55 and he thinks “it is time for the unnatural union between the Lumley v Gye tort and the tort of causing loss by unlawful means to be dissolved. and Sales. so that his colleague may capture him.. Intentional Infliction of Harm By Unlawful Means (1999) 115 LQR 411-437 at 412 who although they propose encompassing the economic tort within a broader intentional harm tort specifically exclude inducing breach of contract from such a scheme as being a separate tort grounded in secondary liability.”( Kolbert. 60 This has got the law into the position where we see “honest demonstrators enjoined from putting their views to the supermarketing public”. An Outline of Roman Law. Justinian The Digest p119 Book 47.S.He believes commentators like Tony Weir seek to confer too broad an ambit on the tort of causing loss by unlawful means. Anson. J. W. see also Ulpian on theft “if one man persuades a slave to run away. will be liable for theft because theft was committed by his aid and advice. Economic Torts .” 62. Title 2. cf Stilitz. The Law of Torts at 451.” 60 61 ibid p30 Middlebrook Mushrooms v TGWU [1993] IRLR 232 (CA) 62 Millar v Bassey [1994] EMLR 44 63 Weir op cit p20 64 Pollock.” 64 Certainly some early Scottish cases based on the delict of harbouring of employees have more of a feel of invasion of res corporales 65 than anything to 57 Weir. D. F. Economic Torts p29 : “a tort which. 36) 58 . and the confusion as arising from interpretations of Lumley that focus on the plaintiff‟s rights rather than the defendant‟s wrong. would certainly be special since it seems to require neither any targeting of the plaintiff not the use of wrongful means by the defendant. R.. 57 and sides with those who are critical of Weir‟s “Herculean” ambition to unify the economic torts. if it existed. T. Principles of the English Law of Contract at 208 (both quoted in Bagshaw supra n 57) 65 Muirhead. T. C. he .J. P. believing that “clarity is not in itself sufficient reason for accepting a particular factor as a determinant of tort liability. 61 and “a singer sued for not singing by those for whom she never agreed to sing. 58 Bagshaw. 63 Some commentators have even suggested a possible analysis of Lumley in terms of “ownership or possession” and “rights in rem. Can the Economic Torts be Unified (1998) 18 OJLS 729 at 731-732 59 Weir.” 58 Weir himself sees the “illegitimate tort of interference with contract” 59 as the problem. Rose Street Foundry & Engineering Co Ltd v John Lewis & Sons Ltd 1917 SC 341. Couper v Macfarlane 1879 6 R 683. on an interference with property analysis liability becomes primary and thus more readily incorporated into a unified theory. H.do with contract. as opposed to the trade dispute scenario which is more like frustration of contract? 67 Carty. Interestingly. whether the breach was an end in itself or the means to some further end. R. it is not sufficient that the breach was merely a foreseeable consequence of your action.” 69 66 Dickson v Taylor 1816 1 Mur 141. 67 The House of Lords therefore took this belated opportunity to answer Ajax‟s prayer and we can now say that following their decision in OBG the law is as follows: To be liable for inducing breach of contract: 68 (1) you must know you are inducing a breach and that the act you are procuring will have this effect. (2) you must have knowledge not just of the existence of the contract but of the essential terms relevant to the breach. (3) the claimant must have been intentionally targeted. (4) there must have been an actual breach: “no secondary liability without primary liability. O‟Dair. 66 However almost everyone had long identified a pressing need for an authoritative definition of the tort of unlawful interference with trade. Justifying An Interference With Contractual Rights (1991) 11 OJLS 246 68 OBG supra n1 at para 38-44 69 OBG supra n1 at para 44 59 . Intentional Violation of Economic Interests: The Limits of Common Law (1988) LQR 104 250. Perhaps there‟s also a distinction to be made between misappropriation of expectation in contract as in Lumley or Rose Street Foundry. C. Douglas v Hello! .The Final Frontier Ent LR 2007 18(7) 241. Many of the journal articles about this decision focus on the confidence and privacy issues. with expectation that there should be fewer cases where claimants cherry-pick the most favourable features of each tort and ignore the requisite limiting features. & Wisely.” 60 . and would exclude acts which may be unlawful against a third party but which do not affect his freedom to deal with the Claimant. McIntyre. 72 70 71 OBG supra n1 at para 45-62 Michalos. I. Economic Tort (2007) 157 NLJ 919 – he goes on to welcome the fact that “it will be easier to strike out misconceived economic tort claims where the necessary knowledge and intention have not been pleaded. Public and Confidential 2007 52(6) JLSS 18 The Journal of the Law Society of Scotland seems overawed by the occassion and manages to squeeze 5 A-list celebrity names into its first sentence! 72 Mitchell.Liability for causing loss by unlawful means requires: 70 (1) wrongful interference with the actions of a third party in which the Claimant has an economic interest. G. E. 71 but reaction to this clarification of the economic torts seem mainly positive. (2) intention thereby to cause loss to the Claimant whether or not the loss was an end in itself or the means to an end. (3) wrongful interference would be any act actionable by that third party or which would have been actionable had he sufferd loss by it. LexisNexis UK. 1937 O‟Dair.BIBLIOGRAPHY Bagshaw. Economic Torts) Reid. R. 2006 Financial Times (2nd August 1982) Harvie. 62 MLR 320 at 322 (review of Weir. Penguin. 2004 61 . G. K. Scotland A New History. A. Pimlico. R. J. J. T. Can the Economic Torts be Unified (1998) 18 OJLS 729 Caddick. E. Oxford University Press. C. J.A. Damage and Insult. Intentional Violation of Economic Interests: The Limits of Common Law (1998) (104) LQR Dugdale. Sweet & Maxwell. 2006 McIntyre. HCRL 99/20 Kolbert.Green 2003 to date (loose-leaf) Stilitz. II Obligations. 19th edition. I. Reparation: Liability for Delict Thomson/W. 1988 Heuston. K. M. P. R. Economic Tort (2007) 157 NLJ 919 Muirhead. Intentional Infliction of Harm By Unlawful Means LQR 1999 411 Thomson.. Revolution and the Rule of Law in Morgan. The Wedding Crashers – Take 6 157 NLJ 8 Carty. 3rd edition. Ltd. ed. Oxford University Press. Douglas v Hello! – The Final Frontier 2007 18(7) Ent LR 241 Mitchell.O. C. & Zimmermann. C. (translator). K. Rapine. The Oxford Illustrated History of Britian. M. H. W.F. Nuisance Law and the Industrial Revolution (1983) 3 OJLS 155 Michalos. An Outline of Roman Law. Delictual Liability. Public and Confidential 2007 52(6) JLSS 18 McLaren. A History of Private Law in Scotland Vol. 1979 Lynch. Justifying An Interference With Contractual Rights (1991) 11 OJLS 246 Oliphant. D. (editors) Clerk & Lindsell On Torts. Justinian The Digest of Roman Law: Theft.S.J. Juridicial Prosopography (1986) 102 LQR 90 House of Commons Research Library. London. & Sales. & Wisely. R. William Hodge & Co. 2000 Stewart. A. & Jones.M. P. 1996 CASES Allen v Flood [1898] AC 1 Carrington v Taylor (1809) 11 East 571 [HeinOnline] Couper v Macfarlane 1879 6 R 683 D C Thomson & Co Ltd v Deakin [1952] Ch 646 Dickson v Taylor 1816 1 Mur 141 Donoghue v Stevenson [1932] AC 562 Douglas v Hello! Ltd [2003] EWHC 786 (Ch) Garret v Taylor (1620) Cro Jac 567. A Casebook on Tort. 1966 [Note 2nd revised edition 1981] Watts. 2 Roll Rep 162 [HeinOnline] Lumley v Gye (1853) 2 E&B 216 Lumley v Wagner 1 De GM&G 604 Mainstream Properties Ltd v Young [2005] EWCA Civ 861 Middlebrook Mushrooms v TGWU [1993] IRLR 232 (CA) 62 . L. Clarendon Press. Sweet & Maxwell. The Law of Delict in Scotland Vol II. T.M. R.Green. Self-Appointed Agents – Liability in Tort (2007) 123 (Oct) LQR 519 Wedderburn. W. Rocking the Torts (1983) 46 MLR 224 Weir. 6th edition. The Law of Obligations. Oxford University Press. 1997 Zimmermann. Economic Torts. London. London. 1988 Weir.Walker. D. T. Millar v Bassey [1994] EMLR 44 Mogul Steamship Co Ltd v McGregor. Gow & Co (1889) 23 QBD 598 Mogul Steamship Co Ltd v McGregor. Gow & Co [1892] AC 25 OBG Ltd v Allan [2007] UKHL 21 Quinn v Leathem [1901] AC 495 Rose Street Foundry & Engineering Co Ltd v John Lewis & Sons Ltd 1917 SC 341 Sorrell v Smith [1925] AC 700 Tarleton v M‟Gawley (1790) 1 Peake NPC 270 [HeinOnline] Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 63 . APPENDIX 3: Lord Denning writes… 64 . ” [this is a quotation and you should then footnote the reference for this quotation] 65 . firstly..) then maintain that throughout the essay.” “The legal principle that ……………………. was established in the case of X v Y.” “The case of X v Y can be distinguished from the present case because…….APPENDIX 4 USEFUL PHRASES Introduction to essay “The purpose of this essay is to ………………..” “The case of X v Y is authority for the point that…….e. secondly etc.. Referring to cases “Authority for this point is found in the case of X v Y.” If you use a numeric system (i.” Referring to sources You can simply use a footnote or you can work the reference into the text by saying:“X states that „law is dead‟…………. ” Good sentences and Paragraphs Think about the sentences you write.” “Having distinguished between X and Y. one can conclude that……………. Be strict with your writing..” [then footnote reference] “Professor X has made the point that……………. Think first.“As X argues in her article. it is possible to ………….. „Law for Laughs‟ ………………” [then footnote the reference of the article which you have paraphrased] “It has been argued by X that………….” “It is now necessary to consider………………….it is first necessary to……..” “Having established that………………. if another point occurs to you as you write about a topic then don‟t simply pop it in. Paragraph lengths should vary. Do they further your analysis? Do they merely repeat in slightly different language a point that you have already made. If you want the 66 . or do they add something more to your analysis? You should maintain “paragraph unity”: all of the sentences in a paragraph usually should relate to a main point.. An average paragraph should have about 150-200 words. Remember that the reader is not psychic. and each clause or phrase of each sentence. The thesis sentence is often the first sentence of the paragraph.e. The main point is usually stated in the “thesis sentence” of the paragraph. Is it relevant? Should it be developed into a separate paragraph? Avoid the scattergun approach to writing.” [then footnote reference] “It has been argued by academics that……………” [plural references for the sources of this information] Link phrases (i. linking one point to another to move on with your argument) “Before going on to …………………………. the defender was on the wrong side of the road and also he was drunk. 3. There are three points to consider:firstly. As it didn‟t prove anything. re-write and reference the following paragraph: “For some time now it was said that the law had to be changed about the way in which it looked at the issue of keeping goldfish in tanks without water pumps and many commentators had argued that this violated the animal welfare rights of fish everywhere but the Government had not been keen to pass a statue dealing with a mater like this that it didn‟t think was very important. EXERCISE 1 Edit.reader to understand your work then you must set it out in paragraphs which are easy to follow. EXERCISE 2 What is wrong with these sentences? 1. A Government spokesman said that the Parlilament should be used for more important matters and that the legislative process was convoluted enough without passing laws which nobody was reelly interested in doing anything about although not everyone agreed with that”. The court did not came to the conclusion that the persuer was right. not to mention the fact that he did not actually have a driving licence. 2. 67 . phoned to say that they couldn‟t play because they were due on Top of the Pops to perform their surprise hit single instead.EXERCISE 3 Read a journal article and work out why you were able to understand it (or not as the case may be!). You think that Dave is unlikely to get damages because he won‟t actually lose money from the band‟s failure to turn up. 1962 SC (HL) 204). grammar and structure did the author use? Do you think that you could use some of the skills demonstrated by the author? EXERCISE 4 Write a short essay answering the following problem question: “Dave booked a band. 2004. What sort of language. Advise Dave.” Use the following law (note: this list is not exhaustive!): Dave has a contract with the band. One week before the party. Dave has the right to withdraw from the contract if the breach is material ( Wade v Waldon. Compare your answer with these models: 68 . The band has signalled an anticipatory breach of the contract. to play at his birthday party on 21st June. the lead singer. The Unreliables. Eric. 1909 SC 571) and to sue for damages OR he can wait until the due date for performance and sue for specific implement (White & Carter (Councils) Ltd v McGregor. In answering this question. it is necessary to assess whether this breach is material. secondly. Firstly. The date of performance of the contract is Dave‟s birthday on 21st June 2004. 69 . It was established in the case of Wade v Waldon(1) that a material breach allows the innocent party (Dave in this case) to withdraw from the contract and to seek further remedies. Before advising Dave on his remedies. Beginning with the first point. It will then be shown that Dave is indeed the innocent party and that he has a case to sue The Unreliables for their breach. it is necessary to establish that there was a contract. what remedies. They do not have a defence and would have to turn up and do the gig. The second point is the need to establish the nature of the breach. there is quite clearly a contract between Dave and The Unreliables. are available to Dave. This is a case about anticipatory breach. An offer and an acceptance constitute a contract. it is necessary to consider three issues. Answer B The purpose of this essay is to advise Dave who has had difficulty in his dealings with The Unreliables.Answer A Dave could sue the band for money because of the way that they have acted. I would argue that the refusal to perform is material because it goes to the heart of the agreement. This is known as anticipatory breach of contract. whether there has been a breach of that contract and thirdly. if any. I think that Dave would have a good chance in the courts because he is the innocent party here but it is hard to see how much he could get because he won‟t lose any money if they don‟t turn up. He offered to hire them for his party and they accepted. so you could say that their breach was material which is shown in a case like Wade v Waldon. A material breach means a serious breach which affects the fundamentals of the contract. The Unreliables have told Dave that they will not perform as agreed and they have done this before the due date for performance. The band have acted very badly. including your own. He can either sue for damages or specific implement. Given that the band was booked for a party rather than a business event. He has two main options. The best advice to Dave would therefore be to sue for specific implement if he is desparate for the band to play: the court has discretion to award this rememdy and can refuse if it would be disproportionate to grant it.Having established that the breach is material. Is your answer more A than B? Using Strong‟s formula. Evaluation and Outcome in each of the answers. You may also think that in real life. These are valid points but should only be made once the legal arguments have been expored. Law. identify the Claim. Dave would be unlikely to want to pay to sue the band. To conclude. that the band would be a bad bet on the day if forced to play and that Dave should simply walk away. Dave is therefore the innocent party and because the breach is a material one. he can wait until the due date for performance and sue The Unreliables for specific implement thereby obtaining a court order forcing them to perform as contracted. Dave had a contract with The Unreliables who then breached that contract. he has two options for taking action. (2) 1962 SC (HL) 204. CLEO. OTHER USEFUL SOURCES OF INFORMATION ON ESSAY WRITING 70 . it is necessary to identify the remedies available to Dave. it is unlikely that Dave has suffered any financial loss and so a claim for damages would be unlikely to succeed. He can either withdraw from the contract and sue for damages (Wade v Waldon) or. following the case of White & Carter (Councils) Ltd v McGregor (2). Footnotes (1) 1909 SC 571. How To Write Better Law Essays (Pearson Longman. & Tatham L. 2006) Websites www. Strong. 71 .ac. How to Write Law Essays and Exams (OUP.Books Foster. S. This website offers useful guides to grammar and sentences structure. 2nd ed 2006 – 3rd ed due 2010) (available in the University bookshop). S. Successful Legal Writing (Thomson. 2009) (available in the University bookshop).I.ucl.uk/internet-grammar/. Higgins E. Compare Inquisitorial procedures. Direct effect: this is a special legal term and those of you go on to study European Law will study this in more depth. They set out matters such as the distribution of powers. common to several areas of law). will have glossaries of their own. We are just providing an introduction to some generic legal terms here (i.g. for instance.gov.e. as you might be able to guess from the name. But here are a few definitions to start you off. this means that it directly gives inviduals certain rights or obligations.Glossary of Common Legal Terms Note that you are best using a legal dictionary. such as Stewart‟s Collins Internet-Linked Dictionary of Law. Claim: this is the English term for what in Scotland would be referred to as a petition for judicial review (see below) Collegiate court: in the Court of Session and High Court and their courts of appeal. the court of first instance could in fact be quite a senior court. See also this helpful glossary for terms used in Scottish court procedure: http://www. Not legally binding. the UK courts) in each member state. such as the High Court if it is a murder trial. These must be enforced by the national courts (e. below.scotcourts. and so on.pdf Adversarial: the judge here is like an umpire: s/he hears the case. Note also that your texts on Delict. When EC law has direct effect. Think of these as part of the constitution of an organisation. but it is up to the parties‟ lawyers to find and present the evidence. Court of first instance: this is the court where a case is first heard. all the judges are of the same rank (with the exception of a small number of senior judges) Concordat: As we use the word here.uk/library/publications/docs/glossary. 72 . (Contrast this to a court of appeal. it is a framework for co-operation between the UK and Scottish governments. ask the right questions of the witnesses. Usually there will be just one judge sitting in a case in a court of first instance (rather than a panel of judges as often but not always happens in appeals). Contract and Property.) Depending on the seriousness of the case. Articles of association: you will study these in company law. which. Students‟ Glossary of Scottish Legal Terms) 73 .113) Ouster clause: a provision (usually in a statute) which seeks to exclude the jurisdiction of the courts Petition: this is an “application to the Court of Session for a purpose such as the grant of a special power or exercise of a particular jurisdiction” (Duncan. Intra vires – within its powers Judicial review: the Court of Session has a special supervisory jurisdiction at common law. If the “Lisbon Treaty” is ratified by all the Member States.Doctrine of implied powers: you will study this in more depth if you take the modul in European Law.” (p. Non-justiciable: a non-justiciable issue is one which it is not proper to examine in a court of justice. searching for evidence. These questions should be referred to other agencies that are better equipped to decide them. then the EU itself has the power to negotiate treaties on that topic with bodies outside the European Union. and so on.” (p. then this will become a general rule of European law. S/he carries out some investigations in the case. Inquisitorial: in some continental legal systems.334) We will look at this topic in more detail in later lectures. is the power “to ensure that all those vested with a legal authority exercise that authority in accordance with the law. the important point is that the European Court of Justice has decided that where it has the power to decide a matter within the European Union. Turpin & Tomkins say: “Some questions are „non-justiciable‟ because they cannot be satisfactorily decided by the process of legal argument and rule application. For now. as Jane Munro puts it. asking questions. the judge has a much more active role. or because they raise issues of policy or the public interest of which it is impossible for the courts to inform themselves adequately within the limits of existing judicial procedures and rules of evidence. (called a debate in the sheriff court and a procedure roll hearing in the Court of Session). the judge will require to be satisfied that the case is in a sufficient state of preparation to enable him or her to appoint the case to a trial diet.asp 30 year rule: this is the unofficial name for the requirement that certain government documents kept secret must be released to the public after 30 years. Although it seems out of step in a modern democracy. though: this depends on the constitution of the particular state. all cases that are to be dealt with in the High Court will commence in that court by means of a preliminary hearing. Rolls of Court: these are the official lists of the cases due to be heard by the courts. 74 .scotcourts. This does not always mean that the treaty becomes law in that state. documents may be kept secret for varying lengths of time. Depending on the level of secrecy required. ratification: when a state or a government ratifies a treaty.Prerogative: There are various prerogative powers.in law . immunities and privileges in law. Usually these are exercised by government ministers. A court can of course refuse to have a debate at all and say that the claim is such that if the alleged facts are true the claim is good in law and allows that a proof (trial of the facts).uk/rolls/index. At this hearing. On the other hand a court may decide that it needs to hear the evidence to understand the subtlety of the facts before coming to a legal conclusion. Proof before answer: In Scotland we usually have written pleadings setting out the legal basis of the claim and the principal facts which it is said will be proved (but without including any evidence). Accordingly it is possible to hold a legal argument as to whether . which can be used in exceptional circumstances to pardon someone or for remission of their sentence.it does not go so far as to say it is a good claim. These rolls are now online.uk/justiciary/index. the Crown still possesses certain powers. with the resulting inconvenience and stress that may be caused to witnesses. One example is the prerogative of mercy.gov.the claim is good. Preliminary hearing: “As from April 2005.gov.” http://www. and you can see them here: http://www. but what we are looking at here is the royal prerogative.scotcourts. this means it adopts it so that the state becomes a signatory to it. jurors and all other parties involved. So when a court allows pba it is contributing to our legal understanding by saying that in law this is not a bad claim . If the defender succeeds the case may thrown out on the basis that even if you prove what you say you will prove the claim must fail. This new procedure is designed to cut down the number of cases having to be adjourned at the trial diet due to their not being in a position to proceed.asp Ratify. uk/business/so/sto-3. Exceptionally. Any member may give notice of a motion that the Scottish Executive or a member of the Scottish Executive or a junior Scottish Minister no longer enjoys the confidence of the Parliament ("a motion of no confidence"). members may be given a shorter period of notice if in the opinion of the Parliamentary Bureau a shorter period is appropriate.scottish. 3. the Government is expected either to resign or to call an election. Members shall normally be given at least 2 sitting days' notice of a motion of no confidence.” http://www.Vote of no confidence: UK Government: If a majority in the House of Commons carry a vote of no confidence. it shall be included in a proposed business programme.12 Motions of no confidence: 1.htm#8 75 .12 of the Standing Orders: “Rule 8.parliament. Scottish Government: see Rule 8. 2. If notice of a motion of no confidence is supported by at least 25 members. 76 .