UNIVERSITY OF STIRLING

SCHOOL OF LAW

LAW STUDENTS SKILLS HANDBOOK

AUTUMN SEMESTER 2010

September 2010

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
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If you read no further than this in the Handbook, dont stop till you finish this page. Two texts you should seriously consider buying are the classics, Foster and Strong. Although focused on English law rather than Scots, they offer excellent chapters on answering problem questions, doing exams and writing essays, with examples of good and bad practice. Either one will be a great help to you throughout your law degree.

The details you need for Foster and Strong are here:

Steve Foster, How To Write Better Law Essays (Longman, 2009, 2nd ed.), 17.99 ISBN 9781405822008 http://vig.pearsoned.co.uk/catalog/academic/product/0,1144,1405822007,00.html

SI Strong How to Write Law Essays and Exams 3rd ed. (OUP, 2010), 16.99 SBN: 978-0-19-928755-0 http://ukcatalogue.oup.com/product/academic/highereducation/law/skills/9780199533572.do ?sortby=bookTitleAscend

1. Useful Library Links and Useful Books to Buy or Consult

You should already have bought your copy of Foster (above), and we make no apologies for recommending it throughout this guide. But what else might help you: online, in the bookshop, or in the library?

A. Talis List
TalisLists are electronic reading lists created for staff by the library. Many of your modules will use these and they are a great help. Go into the WebCT page for that module and look for the TalisList symbol (usually in Resources). Click on this and it will take you to a page of links for your module reading. It is particularly good for journals, 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. For more information, see: http://www.is.stir.ac.uk/teaching/readinglists/rlists-stud.php

B. Mastering and learning how to use legal language

In any law assessment, from an essay to a problem question in an exam, you need to be able to express yourself clearly and precisely in good English. What is very important too is that you use legal language well, showing that you understand the law and can point to the relevant law with precision.

Highly recommended: Citations: http://www.is.stir.ac.uk/research/citing/lawrefer.php William Stewart Collins Internet-Linked Dictionary of Law 3rd ed. (2006), 9.99 http://www.amazon.co.uk/Law-Collins-Dictionary-William-Stewart/dp/0007221657 Stephen R ORourke, Glossary of Legal Terms LawBasics W. Green (2009), 12.50
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ISBN: 9780414017535 http://www.wgreen.co.uk/details?prodid=285203&unitid=285203&search=Glossary%20&for mat=B&publisher=green&subject=all&from=1&to=50 Ian McLeod, Key Concepts in Law (2006) Palgrave Macmillan, 14.99 http://www.palgrave.com/products/title.aspx?is=0230000142

Also well worth considering: The Stirling Library link to the Oxford Dictionary of Law (only if you are on campus). This is good and obviously very convenient, but watch out. Unlike Stewarts dictionary, above, it is an English text so cannot always be trusted for Scots lawyers. http://libcat.stir.ac.uk/record=b1674013 Robert Shiels Scottish Legal System LawBasics (W Green, 2003) 12.50 * Includes: Glossary of legal terms, Latin maxims and phrases * Analysis of a case * Technique for answering exam questions * Sample examination question and answer plans

http://www.wgreen.co.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. An excellent text on this is Gary Slapper and David Kelly The English Legal System 11thed (Routledge, 2010).

C. Research and writing skills

TIP: Dont forget that the how to write an essay guide at the end of this Handbook has lots of advice - and a sample 1* LLB essay in it.

Doing research for your essay, your exam or your tutorial problem question

Highly recommended: Stirling Librarys essay advice pages: http://www.is.stir.ac.uk/research/citing/index.php http://www.is.stir.ac.uk/help/guides/tutorial.php See also: Finding cases - http://www.is.stir.ac.uk/research/other/lawcases.php Finding legislation - http://www.is.stir.ac.uk/research/other/lawstatutes.php Citing law references - http://www.is.stir.ac.uk/research/citing/lawrefer.php Law Library FAQ: http://www.is.stir.ac.uk/research/other/lawfaq.php

Guy Holborn Butterworths Legal Research Guide 2nd ed. (OUP, 2001) 25.99 http://ukcatalogue.oup.com/product/9780406930231.do?keyword=guy+holborn&sortby=best Matches Karen Fullerton, Legal Research Skills for Scots Lawyers 2nd ed. (W Green, 2007) 26 http://www.wgreen.co.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, Effective Legal Research 2nd ed. (Sweet & Maxwell, 2009) 18.95 http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?recordid=3882&producti d=328803
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(and see this student review of Knowles: http://www.studentlawjournal.com/reviews/misc/efflegalres.htm)

Online Gary Slapper & David Kellys online resource on legal research (when they mention Halsburys, you can refer to Laws of Scotland Online (note you must sign in to the library website first) http://www.lexisnexis.com/uk/legal/auth/checkbrowser.do?rand=0.1776516240138747&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. (Pearson, 2009) 17.99 http://vig.pearsoned.co.uk/catalog/academic/product/0,1144,1405822007,00.html SI Strong How to Write Law Essays and Exams 2nd ed. (OUP, 2006), 16.99 http://ukcatalogue.oup.com/product/academic/highereducation/law/skills/9780199533572.do ?sortby=bookTitleAscend Simon Askey and I McLeod Studying Law 2nd ed. Palgrave Macmillan, 2008) 13.99 http://www.palgrave.com/products/title.aspx?is=9780230573116

Also well worth considering: E Higgins and L Tatham Successful Legal Writing (Thomson, 2006) http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?recordid=2193&producti d=164018

Online advice: An excellent online tutorial by Slapper and Kelly can be found at: http://cw.routledge.com/textbooks/9780415566957/legal-writing.asp Although designed for students of English law, it is very helpful for you too.
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Getting your bibliography and your references right in your essay

Highly recommended: The library web pages, above The online Oxford Guide to Legal Citation (to be revised in 2010) http://www.competition-law.ox.ac.uk/published/oscola_2006.pdf See also the tutorial: https://ilrb.cardiff.ac.uk/citingreferences/oscola/tutorial/ The Cardiff Index to Legal Abbreviations http://www.legalabbrevs.cardiff.ac.uk/

Avoiding Academic Misconduct, including Plagiarism

Highly recommended: The Universitys Little Book of Plagiarism and other advice: http://www.quality.stir.ac.uk/ac-policy/assessment.php The Stirling Librarys guidance pages: http://www.is.stir.ac.uk/research/citing/plagiarism.php

Revision
Always watch out for publishers selling you books on English law when this differs from Scots. There are however good texts which cover a range of areas of law in a handy, concise style. They are not complex enough to be a substitute for the set text in your module, but they may help you revise.

Highly recommended: The ranges are being updated all the time. See these Scots law lists:
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 Greens LawBasics: http://www.wgreen.co.uk/general?search=lawbasics&format=B&publisher=all&subject=all& x=0&y=0 Dundee University Press, Law Essentials: http://www.dup.dundee.ac.uk/law.html There are also some texts published by Tottel: http://www.tottelpublishing.com/g/5/Scotland.html

If you choose carefully, remembering to look out for where English law diverges from Scots, you may get help from some very well-designed books on English law. See for instance

Highly recommended because they are so well laid out: Oxford University Press Q & As: http://ukcatalogue.oup.com/category/academic/series/law/blqa.do Pearsons Law Express: http://www.pearsoned.co.uk/Bookshop/subject.asp?item=8224

Also well worth considering: Palgrave Law Masters: http://www.palgrave.com/law/featured.asp Sweet and Maxwells NutShells (and see also their NutCases): http://www.sweetandmaxwell.co.uk/Catalogue/Results.aspx?Ntx=mode+matchallpartial&Nt k=KEYWORD-SEARCH&Nty=1&N=4294967264&Ntt=nutshells&Ntpc=1&Ntpr=1

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2. How to Read and Interpret a Statute

There is a common approach to statutory interpretation throughout the UK, and to legislation of the Scottish Parliament. Note the importance in the UKs 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, 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; and you must weigh up the credibility of opposing interpretations, to select an informed interpretation.

Informed interpretation
It is the duty of the judge to give an informed interpretation, not just guess at what the law means. Example DPP v Bull 4 All ER 411 Did the words common prostitute refer only to women or could it include men? N.B. 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
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the existing state of the law, including any binding precedent other statutes in pari materia the mischief which the judge can, by those and other legitimate means, discern the statute was intended to remedy and more broadly, 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, or learned commentaries on the meaning of an enactment [Statutes pari materia = related statutes; statutes dealing with similar subject-matter]

Methods of Statutory Interpretation in the UK Courts

Approaches to interpretation

The traditional, but unsatisfactory, approach

There are said to be three classic rules of statutory interpretation. These are: 1. The Literal Rule (application in Scotland: Keane v Gallagher 1980 SLT 144) 2. 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 (the rule in Heydon's Case (1584) 3 Co Rep 7a) But Francis Bennion, the author of the UKs most comprehensive study of statutory interpretation, argues:

there are a great many interpretative criteria, and where these conflict in a particular case there must be a judicial process of weighing and balancing. It is wrong to teach law students, as had almost universally been done, that the interpretative criteria solely consist of the literal rule, the mischief rule and the golden rule, and that courts simply choose between them. 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, the mischief rule and the golden rule, and the court chooses between them. It amounts to a serious breakdown in communication Understanding Common Law Legislation, p.2).

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Instead, he insists:

there is no golden rule. Nor is there a mischief rule, or a literal rule, or any other cure-all rule of thumb. Instead there are a thousand and one interpretative criteria. Fortunately, not all of these present themselves in any one case; but those that do yield factors that the interpreter must figuratively weigh and balance. That is the nearest we can get to a golden rule, and it is not very near. (Statutory Interpretation, 4th ed., 2002, pp 3-4) The Unified Contextual Approach Recognising this, Rupert Cross updated the rules in what is called the unified contextual approach. This better describes what modern judges should do in practice.

1. The judge must give effect to the grammatical and ordinary or, where appropriate, the technical meaning of words in the general context of the statute. He must also determine the extent of general words with reference to that context. 2. 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, he may apply them in any secondary meaning which they are capable of bearing. 3. 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, alter or ignore statutory words in order to prevent any provision from being unintelligible or absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute. 4. In applying the above rules the judge may resort to certain aids to construction and presumptions.

Aids and criteria for interpreting a statute

For interpreting a statute, there are several tools available. The first are the intrinsic and extrinsic aids. Then, Bennion lays out four types of interpretative criteria which act as guides to legislative intention, and direct the court. A court is obliged to apply the law in accordance with the interpretative criteria. These are: (1) rules of construction laid down by statute or the common law
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(2) interpretative principles derived from legal policy (3) interpretative presumptions based on the essential nature of legislation and (4) linguistic canons of construction.

Intrinsic aids

Things within the statute which help with interpretation, such as interpretation sections, the long title, marginal notes, etc. See the guide to Reading a Statute at the end of this handout. Extrinsic aids

Dictionaries, etc. historical materials and so-called travaux preparatoires (official publications, including Parliamentary debates, preparatory to the enactment of legislation). See Pepper v Hart [1993] 1 All ER 42. Consider in particular Hansard and other government papers, and Scottish Law Commission Reports. Judicial precedent interpreting an Act, or a section of an Act Rules of construction

As Bennion points out, judges must have regard to a rule of construction, but in cases where there is real doubt, it rarely yields a conclusive answer. There are several rules of construction: for more information, see Bennion Statute Law ch.9 at http://www.francisbennion.com/pdfs/fb/1990/1990-002-104-statute-law-pt2-ch9.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; 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), The plain meaning rule: where there is no real doubt on an informed interpretation what the ordinary meaning of the words is, and the interpretative criteria also point in that direction, then the judge must apply the statute according to that plain meaning.
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The Interpretation Act 1978 provides several useful statutory rules. For instance: Words referring to the masculine gender (he, him) etc. 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, judges have created general legal principles to guide how statutes should be interpreted. They are not binding, but persuasive. 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, see Bennion Statute Law ch.10 at http://www.francisbennion.com/pdfs/fb/1990/1990-002-136-statute-law-pt2-ch10.pdf

Presumptions

A presumption gives guidance on what it is at first glance likely that the legislator intended the statutory provision to mean. The most important is that the precise words of the provision (in the context of the whole statute etc.) are the primary indicator of what the legislator meant Especially, too, that there should not be unclear alteration of settled law, absurd results flowing from the application of law; or injustice resulting from statutory interpretation unless it is clear that this is what the legislator intended For more information, see Bennion Statute Law ch.11 at: http://www.francisbennion.com/pdfs/fb/1990/1990-002-158-statute-law-pt2-ch11.pdf

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Linguistic canons of construction

These are based on the ordinary rules of grammar, punctuation, syntax etc. The precise words and the grammar, 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. Some of the most important linguistic canons are that a statute or part of a statute is to be read as a whole; that statutes dealing with similar subject matter (statutes in pari materia) are to interpreted similarly; and that a word or phrase has the same meaning throughout a statute unless the statute states otherwise. When the drafter uses a new term, he or she normally intends a new meaning. Expressio unius principle, Noscitur a sociis principle, Ejusdem generis principle For more information, read Bennion Statute Law ch.12 at: http://www.francisbennion.com/pdfs/fb/1990/1990-002-187-statute-law-pt2-ch12.pdf

Bennions basic rule: The basic rule of statutory interpretation is that the legislators 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; and that where these conflict the problem shall be resolved by weighing and balancing the interpretative factors concerned.

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, not that used by UK courts. 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)
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A UK court should take this approach, even if it leads to what we would see as a strained interpretation of the statute If this cannot be done, the statutory provision must be disapplied If there is doubt over what to do, 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.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. s.2 HRA. This includes any judgment, decision, declaration or advisory opinion of the court in its various guises. The HRA approach Under s.3(1), legislation must be interpreted in a way which is compatible with Convention rights, so far as it is possible to do so. The courts may even read in words which are not there. This is so even where the statute is apparently clear. There are however limits to this, as the court cannot adopt a meaning which is inconsistent with a fundamental feature of the statute. It may also feel that the matter would be better dealt with by Parliament changing the law instead. See Ghaidan v GodinMendoza [2004] UKHL 30. N.B. even if a compatible interpretation cannot be achieved, primary legislation will still be valid. All the court can do then is make a declaration of incompatibility under s.4 HRA and leave it to the Government to fast-track an amendment through Parliament if the Government wants to. 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. In practice, the senior judges have striven to avoid making declarations of incompatibility, and have instead interpreted statutes to conform with the HRA, even where this creates quite artificial interpretations. (For a rare exception, see A v SSHD [2005] 2 AC 68.) Delegated legislation however will be invalid (and that includes Acts of the Scottish Parliament, as they are merely delegated legislation).

Special approach III: the Scotland Act 1998 (SA)

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Because the Scottish Parliament is only a devolved legislature, its statutes can be struck down by the courts (unlike primary legislation of the UK Parliament). It is only valid if it is within competence.

The SA approach Under s.101, an Act of the Scottish Parliament must be read as narrowly as is needed to keep it within competence, as far as it is possible to do so. If this cannot be done, it will be struck down.

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TIPS: THE BASICS OF READING A STATUTE

Another excellent guide is Slapper and Kellys advice for students, also exceptionally useful for you, even though it does not cover Scottish sources: http://cw.routledge.com/textbooks/9780415566957/legislation.asp Where it mentions Halsburys, you can refer to Laws of Scotland Online (note you must sign in to the library
website first) http://www.lexisnexis.com/uk/legal/auth/checkbrowser.do?rand=0.1776516240138747&cookieState= 0&ipcounter=1&bhcp=1

Learning how to read a statute is a crucial element of your law studies. Making the effort to do this properly now will repay you in the future. It will save you much time (and anxiety) in getting to grips with long and often confusing legislation.

For this we will use the example of the Representation of the People Act 2000. You may find it helpful to read the guidelines alongside a copy of the original statute itself. You can view the entire statute online at http://www.opsi.gov.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, you can avoid making the mistakes which even some experienced lawyers have been known to fall into.

A statute begins with the short title and chapter number. Our example is the Representation of the People Act 2000, ch.2.

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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, it will say this in the title e.g. the Law Reform (Miscellaneous Provisions) (Scotland) Act 1986. The chapter number 2 simply indicates that it was the second statute passed that year.

Next is the date of Royal Assent. In our example this is 9th March 2000. The legislator is the Queen in Parliament, and a statute is not enacted until it has been passed by Parliament and received the assent of the Queen.

Next comes the long title. 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; to make other provision in relation to voting at such elections; 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.

Next comes the enacting formula. Our example states: BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-

The enacting formula indicates that this is a valid statute which has been enacted by the Queen in Parliament. (The Lords Spiritual and Temporal are the House of Lords, and the Commons means the House of Commons).

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 The main text of a statute is divided into numbered sections, sometimes with marginal notes Nearly all statutes are divided into sections, and usually into subsections too. This is a standard procedure which makes it easy to search statutes and to cite them. (Delegated legislation has different conventions for naming sections they may be described as sections, articles, regulations or rules, depending on what type of delegated legislation it is. You need not worry about this just now, but you should remember that there is a difference.) Marginal notes give a quick indication of what the section is about. There may be an interpretation section which explains the meaning of certain key words.

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3. How to Read and Analyse a Case

First, identify whether a case is a useful precedent

In order to identify whether or not a previous case is binding on a present case, we need to consider certain factors:

1. 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. Which part of the judgment is binding? The part of the judgment that is binding is known as the ratio decidendi - the rule of law upon which the decision is founded. 3. Which part of the judgment is not binding? In giving its decision, the court will also explain the reasoning informing that decision. This is done by way of obiter dictum - a 'by the way' remark. Such remarks are not binding, but may be informative for other reasons.

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. If a precedent is binding, then it is the ratio which is the binding part of that judgment.

The ratio may not be immediately apparent but, through the application of certain techniques, it can be identified.

Defining the ratio

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Note potential confusion on definition. One definition of the ratio is the legally material facts plus the decision thereon (i.e. the legal result). A ratio may be wide or narrow. Note the role of application of the ratio in future cases as part of the process of creating the ratio (see below).

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 - see tips below and excerpts from Donoghue v Stevenson 1932 SLT 317

Whose ratio?

In the higher courts, judges do not sit alone and therefore a number of judgments will often be issued for the one case. One judgment in full and the others concurring. Multiple ratios Status of dissenting judgment

Evolution of ratio (i.e. 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. E.g see discussion of Donoghue v Stevenson 1932 SC (HL) 31; 1932 SLT 317 in White and Willock, Scottish Legal System, pp.352-353).

Cases 'in point'

For the doctrine of binding precedent to apply, 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. Note: this does not mean that the facts have to be identical. The material facts must throw up the
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same issues. White and Willock refer to the need to consider the material facts at the appropriate level of generality (p.348). If the material facts are the same (i.e. nothing important in law differentiates them), 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, 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. Obiter statements may be respected due to the reputation of the judge, the eminence of the court and the circumstances of the case. 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 - See excerpts from Donoghue v Stevenson 1932 SLT 317.

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TIPS: THE BASICS OF READING AND ANALYSING A CASE

Understanding a case is a highly skilled activity. Here, we will go through the key questions and give you some tips and advice on how to answer them.

For an excellent guide to the layout of an English case, see SI Strong, How to Write Law Essays and Exams. Helpfully, the section on how to read a case is online, here: http://www.oup.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, Law, Evaluation and Outcome.

Another excellent guide is Slapper and Kellys advice for students, also exceptionally useful for you, even though it does not cover Scottish cases: http://cw.routledge.com/textbooks/9780415566957/cases.asp

http://cw.routledge.com/textbooks/9780415566957/cases.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.

Judicial decisions of particular legal importance are published in series of law reports. Some highly significant cases will be reported in several series. The most authoritative law reports are those which have been checked by the judges themselves before being published.

For Scots cases, the most authoritative reports are Session Cases (Scots law only) and the Law Reports (UK-wide). For decisions of the European Court of Justice, go to the European Court Reports. For decisions of the European Court of Human Rights, go its publications, Series A and Series B.

Not only are these revised by the judges who decided the case, but they also offer additional content: they sometimes include excerpts from the arguments made by counsel. These can be helpful in understanding a case. If you are appearing in court as a legal representative, you
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should cite these in preference to any other series of law reports, where you have a choice. Nevertheless, 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.

You will find many cases through Lexis Library on the library webpages. See also http://www.is.stir.ac.uk/research/other/lawcases.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. http://www.bailii.org/ The Supreme Court of the UK puts its own decisions online, sometimes within days. http://www.supremecourt.gov.uk/decided-cases/index.html Summaries of cases can be found in newspapers and legal journals, and Greens Weekly Digest is very useful for finding short summaries of Scots cases which have not been published anywhere else.

In what court was this case decided, and which judge(s) heard it?

Whether a decision is reported or unreported, it will state the court in which the case was heard and the judge or panel of judges who heard it. You can usually find these right after the title of the case. This gives you several clues about how serious or important the case may be.

Remember too the hierarchy of courts, where rules laid down by higher courts are binding on lower courts in cases dealing with similar facts. So, 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.

Who brought the case, and against whom was it brought?

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The parties to a case are described differently, depending on the type of case it is and the court in which it is being heard. Knowing what the terms means enables you to spot whether it is civil or criminal, English or Scottish, heard at first instance or on appeal, and so on. This gives you a shortcut to all sorts of useful information about the case. Below is a quick reference chart. 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, or H.M. 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, such as: Petitioner A person who brings certain types of case to the Court of Session e.g. judicial review. The other party is the Respondent. 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.

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. 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

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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, where the facts are complex. 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).

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. Let us take an example (this is a fictional and simplified adaptation of a real case, Walls v PF Kilmarnock [2009]. A football fan at a match, despite repeated warnings from police officers present at the match, sings offensive sectarian songs which have been banned by his club. One particularly abusive song contains the word Fenian. He is charged with a racially aggravated breach of the peace. Breach of the peace is a common law offence, and the racial aggravation is provided for by statute, s 96 of the Crime and Disorder Act 1998. In court, he argues that the word Fenian refers to a political organisation and he was only making a political point, but the Crown argues that in the context of other abuse he shouted, such as singing abusive songs referring to the Irish famine, it was clear beyond reasonable doubt that he was referring to Irish people. His conduct was not politically motivated; rather it was racist. He argues that he has a right to sing these songs, because law protects his freedom of speech. 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). The sheriff refuses. He appeals.

Studying Scots Law (3rd ed: 2004) p 150.

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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, statutes, etc.) 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, were all the judges in agreement or did some dissent? Even if they all reached the same decision on the outcome, 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. 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, such as where a criminal remedy is sought in a civil court, as where someone seeks a remedy against officers of the court for malversation (corruption or misbehaviour). However, in most instances a case in a civil court is a civil action or appeal, and a case in a criminal court involves criminal proceedings or appeal.) 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.
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We already know that statute will trump case law, and so on. What you are trying to find here is the source(s) which in fact was most relevant to deciding the case. For instance, there might be no law which deals precisely with the situation in question, apart from a very old decision of a Scottish court from the 19th century. In that case, it would be the 19th century decision which was most important. Newer statutes, EC law and the like are more authoritative, but might not apply to this particular case. Note too that no formal source may decide the outcome of the case. Where there is no law in point (and also where there is a conflict between laws or uncertainty over what the law means), 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). This does not mean that judges have a free hand to apply these whenever they like. Rather, public policy considerations can influence what decision judges make when they are confronted with a genuine ambiguity or conflict in the law.

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4. Answering Problem Questions

We will also add a section on writing other exam answers here in the next edition of this handbook, but for now we cover answering a problem question, which can be a difficult task until you get used to it. Students sometimes struggle to cope with problem questions at first. Their instinct is to avoid them, 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. There are a few tips which may help make this easier.

Assume that every word might be relevant Check you have understood the question. You may remember that we advised you, when reading a statute, to read it word-for-word. The same advice applies to problem questions. There will be some easy answers to find, but there will also be some more complex points which you could bring out, and it is these which attract the highest marks. The clues will be there: read carefully and find them.

Answer the question you were set You will be told this about writing essays. The same goes for answering problem questions. 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, but you will not get many. Go back to the question while writing, and check you are answering what you were asked.

Assume that the information you are given is accurate - and then speculate about what else may have been left out Problem questions are often purposely designed with some crucial facts left out. As a result there may be more than one possible answer. Or, the problem question may deal with an uncertain area of law where no-one yet knows what a court would decide. 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).

31

You should use the facts you have in the case and work with them. Assume that they are correct. But dont assume they are the whole story. You can get many extra marks for an intelligent discussion about what might happen in law if X or Y had happened. Look for what is missing in the problem question, not just what is there.

Aim to use the appropriate legal language, as precisely as possible. Students often do not realise that two answers which say substantially the same thing may get very different marks. The student who expressed herself clearly using the correct legal language may get a good B, while the student who gave a woolly description of what happened, using casual language, may find herself with a D or worse. This is not to suggest that you should express yourself in the form of a 19th century novel, declaiming that It is undoubtedly the case that on the evening of August the twenty-fourth, my esteemed client betook himself to the august premises of a drinking establishment on Byres Road. You should simply aim to learn the appropriate legal terms wherever possible, and use them.

Argue for both parties in the dispute Problem questions are often framed as a dispute between two (or more) parties. If you can make a persuasive argument for one party, this is good - but a better answer will make the best case for the other party too and then explain why in your view it still fails.

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. This advice works just as well with a nasty problem question. The less you have to cram into your mind when analysing any one part of the problem, the more likely it is that you will grasp all the elements of the answer.

Always cite relevant sources and other materials, if any exist A problem question is not just a test of your analytical skills. You need to justify your arguments by referring to authoritative sources. You may not need to cite the whole name and details if you are answering this in an exam. It may be enough just to put the name of a relevant case or statutory provision in brackets. Or, you may find that a few words describing the key point of a case will do the trick. On the other hand, if the point is quite complex, you may find it is appropriate to analyse the previous decision in quite a bit of detail. Usually, though, you should explain why the source is relevant dont just cite it, but show why you think it helps decide this case. Academic authorities can be cited to support your argument too (and dont forget that you can disagree with an academic authority, or a case, if you can make an argument to justify your disagreement. This may attract high marks.)
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This is all a matter of judgment, but you will find the more you do it (and the more you read books, articles, and judicial decisions in which the experts do it), the easier it will get. Occasionally you may get a blue sky problem question where there is no law in point, and no law that seems to have much to do with the case at all! Here, you should aim to reason from general principles in that field of law, and try to predict what a higher court might say if asked to answer the question.

Further reading This should be enough to get you started. If you want to read more advice on problem questions, you will find it very helpful to consult the two classic texts, Foster and Strong. Although focused on English law rather than Scots, they offer excellent chapters on answering problem questions, doing exams and writing essays, with examples of good and bad practice. The details you need for Foster and Strong are, once more:

Steve Foster, How To Write Better Law Essays (Longman, 2009, 2nd ed.), 17.99 ISBN 9781405822008 http://vig.pearsoned.co.uk/catalog/academic/product/0,1144,1405822007,00.html

SI Strong How to Write Law Essays and Exams 2nd ed. (OUP, 2006), 16.99 SBN: 978-0-19-928755-0 http://ukcatalogue.oup.com/product/academic/highereducation/law/skills/9780199533572.do ?sortby=bookTitleAscend

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5. How to Write a Law Essay

This is also available as separately on WebCT under the title Essay Writing Skills 2010.

Below, we reproduce that Guide.

34

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

INTRODUCTION

Most of us would agree that we could improve the way that we write. After all, 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.

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. However, the ability to research information, 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. Whether you end up preparing press releases, personnel reports, management proposals or writing books you will need these skills.

Furthermore, 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.

THE STEPS TO A GOOD ESSAY

Before you get anywhere near writing an essay, there are a number of steps which you have to go through. The key steps are:36

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 dont 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. Dont 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
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these as short bullet points and decide the order in which you intend to discuss them. 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. Once you are happy with this structure you can go on to the next stage and draft your essay. In a problem based question, your answer should follow the format suggested by S.I. Strong in his book, How to Write Law Essays and Exams (2nd ed OUP, 2006, 3rd ed due 2010) with online resource http://www.oup.com/uk/orc/bin/9780199287550/). His formula is to plan your answer around CLEO. Identify your Claim, state the relevant Law, Evaluate that law in light of the facts presented to you and finally, conclude with your Outcome. Discursive essays can follow the same type of plan but the statement of Law and the in-depth Evaluation will be more closely linked. Evaluation of the law in an essay of this type can include assessing reforms or proposed reforms, analysing recent developments in the relevant area or comparing Scots law with other jurisdictions. Strong suggests that any discussion of the legal theory behind a change in law, for example, would include an assessment of why the court or legislature acted as it did. The ideas behind the change would be found in judicial opinion, legislative documents (White Papers, consultative documents etc.) and in academic articles and books (Strong, pp193-199). The range of your discussion will depend on your topic and your permitted word count). We also recommend that you consult S. Fosters How to Write Better Law Essays: Tools and Techniques for Success in Exams and Assignments (Pearson, 2nd ed, 2009) which is a very useful book on essay writing. It has a companion website (http://www.pearsoned.co.uk/highereducation/mylawchamber/FosterHow toWriteBetterLawEssays2e/) with useful tips and online exercises.

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4. DRAFTING

Now that you know the points which you intend to cover, it should be straightforward to write your introduction. This should set out what you intend to discuss in the main body of your essay. Because you have taken time to work out what that will be in step 3, this should be easy to do. Next move on to discuss your key points, following the order you have planned and specified in your introduction. Add depth to your argument as you draft: for example, if discussing a case, make sure you make clear which level of court is handling the case (e.g. Sheriff Court or House of Lords?). Have you understood the outcome of that case? Is that clear in your draft? In a non-problem based question, make sure that you have kept your focus on the key issues and havent padded it out with information which does not add to your argument. Remember that you can use footnotes to include material which you think is important but not vital to your argument. Finally, draft a conclusion. This is vitally important. It should pull together your key arguments and lead on logically from the main body of your essay. How long should it be? Using the case analysis example, it is too simple to say For the reasons given above, I conclude that this case is flawed and that the court missed out on an opportunity to amend the law in this area. The conclusion would be too long if it simply regurgitated the main body of the essay. A good way to make sure that it does what it should is to read over your conclusion separately from your essay. Ask yourself whether you could work out from the conclusion what the main points in the body of your essay would be. 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. Referencing is the process of crediting another source (be it book, article, Act or case) for the point which you are making or the quotation which you are using. Unless you have a photographic memory then you should probably reference as you go. The art of citing and referencing is discussed below but for the purposes of your first draft, just write the source in brackets after the point/quote so that you know where it came from. This should save you a lot of time in the final stages.
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 Use a dictionary. People who are fluent verbal communicators may trip up with poor spelling. 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. Students with dyslexia or who suspect that they might have specific additional needs in this area should contact the Dyslexia Adviser or Disability Adviser. You can contact them at the Student Support Services (Reception: 4Y; tel: 467080) for help and advice. All students can access Student Learning Services: look out for notices on WebCT and posters on essay writing workshops and one-to-one tutorials. Keep language and sentence structure simple.

5. EDITING

Just when you never want to see your essay ever again, you have to revisit it in the cold light of day. Try to give yourself enough time to allow you to leave the draft alone for two or three days. Read it again with a critical eye and mark it against the specimen marking sheet in Appendix 1. Be honest- does it make sense? Take a red pen and edit your work. This is a useful skill and will serve you well in the future. Check grammar, spelling and whether the sentences flow. Have you done what you said you would do in the introduction? Does your conclusion make sense?

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 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. 6. FINAL RE-WRITE

Re-write the essay taking into account your editing. Ensure that you have included all of your references. Proof read the final version and ensure that it is in the format specified by the instructions (e.g. double spaced). Prepare the bibliography using all of the books, articles, cases and electronic sources which you have read in your research. Do a word count and write this on the front of the essay. Put your registration number, course details and essay title on the frontsheet. Take a copy. Submit on time unless you have an extension. Marks are deducted for unauthorised late submission of work; the Universitys policy is in the Code of Assessment: 6.2.7.2 At undergraduate level, 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. After five days the piece of work will be deemed a non-submission and will receive an X (no grade). Note: the SCHOOL OF LAW COUNTS SATURDAYS AND SUNDAYS AS DAYS FOR THE PURPOSE OF THIS RULE!

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SPECIFIC QUERIES

1. Referencing 2. Improving my writing skills 3. What is plagiarism?

1. REFERENCING

You must reference your work for two reasons. Firstly, if you do not back up your arguments, points and quotations with a reference then it is easy to challenge what you are saying. Where is the evidence for your point? Secondly, failure to reference can open you up to an accusation of plagiarism (see below).

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Unless given express instructions to the contrary by the co-ordinator, please use the referencing systems described below.

Citing means acknowledging in your text the document from which you have obtained information: we prefer the Numeric System in the School of Law. The reference is the detailed description of the document itself. See Appendix 2 for an example of the Numeric System: this essay was written by one of our own LLB students on delict. Note the use of numeric citation (1, 2, 3 etc) and corresponding references here the author has used footnotes (i.e. at the bottom of each relevant page) but it is also possible to format these as endnotes at the end of the essay.

What should I cite? Any quotation, fact, opinion, details from the judgment of a case, 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. Depending on the type of essay, you should aim to cite a source at least every 100-150 words. This is not an exact guide: the exact frequency will depend on your topic. Check each sentence as you go to make sure that you have cited all references to points made in that sentence. Look at Appendix 2 again note how the author backs up his points with references. 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.

How do I give the reference for the book/journal/case/legislation? Books, journals, cases, Parliamentary debates, Command Papers, statutory instruments and statutes should all be referenced correctly. E.g.: 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
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Act: Hunting Act 2004 c37 Books: Author, title, Place, Publisher, year. Ensure most up to date edition is being used, unless writing about the historical position. Journal articles: Author, title, journal reference (the correct format should be printed on it). If you find the item on Westlaw, there should be information on how to cite or refer to the work at the top of the page. Google is not an adequate reference and neither is westlaw.com!

S. Fosters How to Write Better Law Essays: Tools and Techniques for Success in Exams and Assignments (Pearson, 2ND ED, 2009) is an excellent book for students wishing to improve essay writing skills and it contains a very good guide on referencing. All students should also visit the University Library site at www.is.stir.ac.uk/research/citing/index.php for a general note on Writing References and at www.is.stir.ac.uk/research/citing/lawrefer.php for a specific guide to legal citation.

2. HOW CAN I IMPROVE MY WRITING SKILLS?

(a) Keep it simple. The temptation in essay writing is to try to use complicated language and convoluted sentences. 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. Do not simply paraphrase the arguments of others. It is important to show that you have read widely, considered the material available to you and formed your own opinion. 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. Read widely to see how other people do it. Read the judgment of Lord Denning in Appendix 3. He was famous for his use of straightforward language and as a very clear thinker. The two are not unrelated!

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(b) Do the exercises in Appendix 4. They are designed to make you think about language and its effectiveness in communicating an argument.

(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. WHAT IS PLAGIARISM?

Plagiarism is not paraphrasing what someone else has said (provided that you credit them with a reference). After all, research will lead you to read other peoples opinions and you have to get your facts from somewhere. Plagiarism is cheating. It is copying someone elses work whether intentionally or not- and passing it off as your own. If you plagiarise then you fail to develop the skills that you will have to demonstrate in the workplace after graduation.

The University has a strict policy on plagiarism for both undergraduates and postgraduates. All students should note the policy on the University website: the undergraduate policy is at http://www.quality.stir.ac.uk/acpolicy/PlagiarismUG.php. The postgraduate policy is at: http://www.quality.stir.ac.uk/ac-policy/PlagiarismPG.php. Use the Universitys Little Book of Plagiarism to find out more.

Inadvertent plagiarism through lack of referencing is easily solved by ensuring that you do reference your work properly.

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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.

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Appendix 1: Specimen Essay Grading Sheet

ESSAY COVER SHEET AND GRADING SCHEME STUDENT REGISTRATION NUMBER_________________________________ ESSAY TITLE/NO._______________________________________________________ MODULE: ______________ Work which is submitted for assessment must be your own work. All students should note that the University has a formal policy on plagiarism which can be found at http://www.quality.stir.ac.uk/ac-policy/PlagiarismUG.php.
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?

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Adequate referencing? Presentation Grammar/Writing style? Proof reading?

Further comments:

Notes and Comments:

FINAL GRADE_________ Please see tutor to discuss: yes/no TUTORS GRADE: __________________ SIGNATURE______________________________ Comprises **% of total grade for module

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APPENDIX 2: LLB Student Essay (LAW9DE: 1A** grade awarded)

The three appeals considered by the House of Lords under the lead name OBG Ltd. v Allan 2 were concerned with claims in tort for third party economic loss caused by intentional acts, and were heard consecutively because the legal issues overlapped. 3

The current state of the law of economic torts 4 has been described as ramshackle.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. 7 Others believe that such generalisation is neither possible nor desirable 8, and that there is no genus tort that provides a base for all the economic torts. 9

The grounds for action presented in these three cases were: 10 (1) interference by unlawful means with contractual relations; 11 (2) interference by unlawful means with contractual or business relations; 12 (3) wrongfully inducing breach of contract. 13, 14

2 3

[2007] UKHL 21, henceforth OBG ibid at para 137 per Lord Nicholls, who at para 139 goes on to say: These are much vexed subjects. Nearly 350 reported decisions and academic writings were placed before the House. 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. (Stewart, W.J. Reparation: Liability for Delict para A1-012), and since also the case being discussed along with most of the legal authority on the subject is English, I intend to use English terminology except where its necessay to distinguish Scots law. 5 Wedderburn, L. Rocking the Torts (1983) 46 MLR 224 at 229 he continues: "they have lacked their Atkin." 6 [1932] AC 562 7 Clerk & Lindsell On Torts at para 25-01; Weir, T. Economic Torts p25 : when a defective product causes harm...we do not say that this is a special case of negligence to which special rules apply. 8 Bagshaw, R. Can the Economic Torts be Unified (1998) 18 OJLS 729; Oliphant, K. 62 MLR 320 at 322 (in a review of Weir, T. Economic Torts) 9 Carty, H. An Analysis of the Economic Torts p269, (quoted in 2002 (118) LQR 164 at 165) 10 Leaving aside confidence and conversion. 11 OBG Ltd v Allen 12 Douglas v Hello! Ltd

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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. 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. 15 In the event the House effectively erased all of twentieth century caselaw from the three party economic torts.

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, 16 and; (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.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, or even be put out of business, by the lawful competition of a rival. The courts have no role to play in this normally, and economic orthodoxy considers there are consequent gains for consumers, producers and workers.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. 15 Caddick, A. The Wedding Crashers Take 6 157 NLJ 8 16 OBG supra n1 at paras 32, 38, 51 17 OBG supra n1 at paras 38, 51, 62 18 Weir, T. Economic Torts p39 19 Stewart, W.J. Reparation: Liability for Delict at para A8-001

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interference in trade was actionable. Lord Hoffman 20 cites Garret v Taylor

21

where a

business was harmed because the defendant imposed so many and so great threats upon ... all comers ... threatening to mayhem, and Tarleton v MGawley 22, where the tort lay in firing a cannon at negroes and thereby preventing them from trading with the plaintiff. 23 Thankfully, by the turn of the century, in Carrington v Taylor, 24 it was only ducks that were being shot at in a dispute over wildfowling rights:

where a violent...act is done to a man's ... livelihood ; there an action lies in all cases.
25

Such cases are straightforward because, the defendants liability is primary. The respective acts of threatening mayhem and discharging ordnance at potential customers are clearly in themselves unlawful. But the law of torts has inevitably grown and been modified over the centuries, in response to changing conditions within society, 26 and as the ingenuity of the industrialists and entrepreneurs of Victorias Empire developed more subtle ways of influencing the customers.

20 21

OBG supra n1 at para 6 (1620) Cro Jac 567, 2 Roll Rep 162 22 (1790) 1 Peake NPC 270 23 L.Hoffman fails to record that this anti-competitive inititative actually killed one of the natives. 24 (1809) 11 East 571 25 ibid per Holt, CJ at 576 26 McLaren, J Nuisance Law and the Industrial Revolution (1983) 3 OJLS 155

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The courts attitude to the nineteenth century free-market was crystallised in Mogul Steamship Co Ltd v McGregor, Gow & Co
27

, which established the boundaries of lawful

competition as whatever is neither forcible nor fraudulent. 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, but nothing that was actually unlawful:

To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen...would be a strange and impossible council of perfection. 30

The authority for all inducing breach of contract cases is Lumley v Gye. 31 Two rival theatre owners were vying for the services of the opera diva Johanna Wagner, neice of the famous composer. Lumley had contracted Wagner to sing twice a week at Her Majestys Theatre for a payment of 100 per week.32 Wagner subsequently agreed with Gye that she would sing at Covent Garden for a larger sum. 33 Lumley raised an action against Gye for maliciously procuring a breach of contract. 34

27 28

[1892] AC 25 ibid per L. Bramwell 29 Weir, T. A Casebook On Tort title of Ch15 30 [1892] AC 25 per Bowen LJ 31 (1853) 2 E&B 216 32 Thats equivalent to 7,200 per week in todays money, or 3,600 per performance [ House of Commons Research Library, HCRL 99/20] 33 Lumley v Wagner 1 De GM&G 604 at 607 34 Lumley v Gye (1853) 2 E&B 216

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The case which completed the triangular foundation on which twentieth century economic tort law was to be constructed was Allen v Flood. 35 In essence this case simply extended the principle of Mogul Steamship Co. to labour disputes. In the same way that rival businesses are free to cause harm to one another in lawful pursuit of their own interests, 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.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. 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. 38

Since Allen liability has turned on intentional procurement of an actionable wrong or the deliberate use, or threatened use, of illegal means directed against the claimant. 39 In respect of the House of Lords judgement in OBG, the law could have stopped here, but over the next century several false trails were followed.

The seeds of confusion, 40 were sown by Quinn v Leathem. 41 This case involved boycotting by trade unions in one of its most objectionable forms, 42 but as ever it wasnt the details of fact that caused confusion but the details in the dicta. Two key passages were
35 36

[1898] AC 1 ibid at 164 per L.Shand The case was one of competition in labour, which, in my opinion, is in all essentials analagous to competition in trade.
37

Heuston, R. Judicial Prosopography, 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.
38 39

e.g. as held by Bowen L.J. in Mogul SS 598 at 613 Allen v Flood supra n34 at 96 per L.Watson 40 OBG suprs n1 at para 15 per L.Hoffman 41 [1901] AC 495 42 ibid at 542 per L.Lindley

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identified by Lord Hoffman, 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; (2) The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual. 44 The problem with these respective passages is: (1) Lumley wasnt founded on merely interfering with a contract but on inducing an actual breach of a contract and; (2) inducing a breach of contract isnt of itself a wrongful act but only attracts secondary liability once theres been a breach. 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, 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, 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. 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.Macnaghten ibid at 535 per L. 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. In Stewart, WJ. Reparation:Liability in Delict, it is suggested that procurement should be considered as a separate heading within inducement. (A8-027) By this analysis there would be two concurrent ground of action, one (accessory liability) for the breach and one (primary liability) for the procurement. 50 Weir, T. LQR 2002, 118(JAN), 164-167

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caselaw, it was invariably in the trade union disputes that the lords ran the greatest risk of getting their feet wet. In Torquay Hotel Co Ltd v Cousins
51

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. 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. 56

51

[1969] 2 Ch 106

52

[1969] 2 Ch 106 at 137; 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

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He believes commentators like Tony Weir seek to confer too broad an ambit on the tort of causing loss by unlawful means, 57 and sides with those who are critical of Weirs Herculean ambition to unify the economic torts, believing that clarity is not in itself sufficient reason for accepting a particular factor as a determinant of tort liability. 58 Weir himself sees the illegitimate tort of interference with contract 59 as the problem, and the confusion as arising from interpretations of Lumley that focus on the plaintiffs rights rather than the defendants wrong. 60 This has got the law into the position where we see honest demonstrators enjoined from putting their views to the supermarketing public, 61 and a singer sued for not singing by those for whom she never agreed to sing. 62, 63 Some commentators have even suggested a possible analysis of Lumley in terms of ownership or possession and rights in rem. 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, T. Economic Torts ; cf Stilitz, D. and Sales, P. 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. 58 Bagshaw, R. Can the Economic Torts be Unified (1998) 18 OJLS 729 at 731-732 59 Weir, T. Economic Torts p29 : a tort which, if it existed, would certainly be special since it seems to require neither any targeting of the plaintiff not the use of wrongful means by the defendant.
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, F. The Law of Torts at 451; Anson, W. Principles of the English Law of Contract at 208 (both quoted in Bagshaw supra n 57) 65 Muirhead, J.S. An Outline of Roman Law; see also Ulpian on theft if one man persuades a slave to run away, so that his colleague may capture him, he ... will be liable for theft because theft was committed by his aid and advice.( Kolbert, C.J. Justinian The Digest p119 Book 47, Title 2, 36)

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do with contract. 66 However almost everyone had long identified a pressing need for an authoritative definition of the tort of unlawful interference with trade. 67

The House of Lords therefore took this belated opportunity to answer Ajaxs 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, it is not sufficient that the breach was merely a foreseeable consequence of your action. (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, whether the breach was an end in itself or the means to some further end. (4) there must have been an actual breach: no secondary liability without primary liability. 69

66

Dickson v Taylor 1816 1 Mur 141; Couper v Macfarlane 1879 6 R 683; Rose Street Foundry & Engineering Co Ltd v John Lewis & Sons Ltd 1917 SC 341. Interestingly, on an interference with property analysis liability becomes primary and thus more readily incorporated into a unified theory. Perhaps theres also a distinction to be made between misappropriation of expectation in contract as in Lumley or Rose Street Foundry, as opposed to the trade dispute scenario which is more like frustration of contract? 67 Carty, H. Intentional Violation of Economic Interests: The Limits of Common Law (1988) LQR 104 250; ODair, R. 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

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. (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, and would exclude acts which may be unlawful against a third party but which do not affect his freedom to deal with the Claimant.

Many of the journal articles about this decision focus on the confidence and privacy issues, 71 but reaction to this clarification of the economic torts seem mainly positive, 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. 72

70 71

OBG supra n1 at para 45-62 Michalos, C. Douglas v Hello! - The Final Frontier Ent LR 2007 18(7) 241; McIntyre, E. & Wisely, I. 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, G. 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.

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BIBLIOGRAPHY

Bagshaw, R. Can the Economic Torts be Unified (1998) 18 OJLS 729 Caddick, A. The Wedding Crashers Take 6 157 NLJ 8 Carty, H. Intentional Violation of Economic Interests: The Limits of Common Law (1998) (104) LQR Dugdale, A.M. & Jones, M.A. (editors) Clerk & Lindsell On Torts, 19th edition, London, Sweet & Maxwell, 2006 Financial Times (2nd August 1982) Harvie, C. Revolution and the Rule of Law in Morgan, K.O. ed. The Oxford Illustrated History of Britian, Oxford University Press, 1988 Heuston, R. Juridicial Prosopography (1986) 102 LQR 90 House of Commons Research Library, HCRL 99/20 Kolbert, C.F. (translator), Justinian The Digest of Roman Law: Theft, Rapine, Damage and Insult, Penguin, 1979 Lynch, M. Scotland A New History, Pimlico, 2006 McIntyre, E. & Wisely, I. Public and Confidential 2007 52(6) JLSS 18 McLaren, J. Nuisance Law and the Industrial Revolution (1983) 3 OJLS 155 Michalos, C. Douglas v Hello! The Final Frontier 2007 18(7) Ent LR 241 Mitchell, G. Economic Tort (2007) 157 NLJ 919 Muirhead, J.S. An Outline of Roman Law, William Hodge & Co. Ltd., 1937 ODair, R. Justifying An Interference With Contractual Rights (1991) 11 OJLS 246 Oliphant, K. 62 MLR 320 at 322 (review of Weir, T. Economic Torts) Reid, K. & Zimmermann, R. A History of Private Law in Scotland Vol. II Obligations, Oxford University Press, 2000 Stewart, W.J. Reparation: Liability for Delict Thomson/W.Green 2003 to date (loose-leaf) Stilitz, D. & Sales, P. Intentional Infliction of Harm By Unlawful Means LQR 1999 411 Thomson, J. Delictual Liability, LexisNexis UK, 3rd edition, 2004
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Walker, D.M. The Law of Delict in Scotland Vol II, W.Green, 1966 [Note 2nd revised edition 1981] Watts, P. Self-Appointed Agents Liability in Tort (2007) 123 (Oct) LQR 519 Wedderburn, L. Rocking the Torts (1983) 46 MLR 224 Weir, T. A Casebook on Tort, 6th edition, London, Sweet & Maxwell, 1988 Weir, T. Economic Torts, London, Clarendon Press, 1997 Zimmermann, R. The Law of Obligations, Oxford University Press, 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, 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)
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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 MGawley (1790) 1 Peake NPC 270 [HeinOnline] Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106

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APPENDIX 3: Lord Denning writes

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APPENDIX 4

USEFUL PHRASES Introduction to essay

The purpose of this essay is to .. If you use a numeric system (i.e. firstly, secondly etc.) then maintain that throughout the essay.

Referring to cases

Authority for this point is found in the case of X v Y. The case of X v Y is authority for the point that. 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..

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.. [this is a quotation and you should then footnote the reference for this quotation]
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As X argues in her article, Law for Laughs [then footnote the reference of the article which you have paraphrased] It has been argued by X that. [then footnote reference] Professor X has made the point that. [then footnote reference] It has been argued by academics that [plural references for the sources of this information]

Link phrases (i.e. linking one point to another to move on with your argument)

Before going on to ,it is first necessary to. Having established that.., it is possible to .. Having distinguished between X and Y, one can conclude that.. It is now necessary to consider.

Good sentences and Paragraphs

Think about the sentences you write, and each clause or phrase of each sentence. Do they further your analysis? Do they merely repeat in slightly different language a point that you have already made, 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. The main point is usually stated in the thesis sentence of the paragraph. The thesis sentence is often the first sentence of the paragraph. Be strict with your writing; if another point occurs to you as you write about a topic then dont simply pop it in. Think first. Is it relevant? Should it be developed into a separate paragraph? Avoid the scattergun approach to writing. Paragraph lengths should vary. An average paragraph should have about 150-200 words. Remember that the reader is not psychic. If you want the
66

reader to understand your work then you must set it out in paragraphs which are easy to follow.

EXERCISE 1

Edit, 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 didnt think was very important. 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.

EXERCISE 2

What is wrong with these sentences? 1. As it didnt prove anything. 2. The court did not came to the conclusion that the persuer was right. 3. There are three points to consider:firstly, the defender was on the wrong side of the road and also he was drunk, not to mention the fact that he did not actually have a driving licence.

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EXERCISE 3

Read a journal article and work out why you were able to understand it (or not as the case may be!). What sort of language, 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, The Unreliables, to play at his birthday party on 21st June, 2004. One week before the party, the lead singer, Eric, phoned to say that they couldnt play because they were due on Top of the Pops to perform their surprise hit single instead. Advise Dave.

Use the following law (note: this list is not exhaustive!): Dave has a contract with the band. The band has signalled an anticipatory breach of the contract. Dave has the right to withdraw from the contract if the breach is material ( Wade v Waldon, 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, 1962 SC (HL) 204). You think that Dave is unlikely to get damages because he wont actually lose money from the bands failure to turn up.

Compare your answer with these models:

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Answer A Dave could sue the band for money because of the way that they have acted. 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 wont lose any money if they dont turn up. The band have acted very badly, so you could say that their breach was material which is shown in a case like Wade v Waldon. They do not have a defence and would have to turn up and do the gig. This is a case about anticipatory breach.

Answer B The purpose of this essay is to advise Dave who has had difficulty in his dealings with The Unreliables. In answering this question, it is necessary to consider three issues. Firstly, it is necessary to establish that there was a contract, secondly, whether there has been a breach of that contract and thirdly, what remedies, if any, are available to Dave. 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. Beginning with the first point, there is quite clearly a contract between Dave and The Unreliables. He offered to hire them for his party and they accepted. An offer and an acceptance constitute a contract. The date of performance of the contract is Daves birthday on 21st June 2004. The second point is the need to establish the nature of the breach. The Unreliables have told Dave that they will not perform as agreed and they have done this before the due date for performance. This is known as anticipatory breach of contract. Before advising Dave on his remedies, it is necessary to assess whether this breach is material. A material breach means a serious breach which affects the fundamentals of the contract. 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. I would argue that the refusal to perform is material because it goes to the heart of the agreement.

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Having established that the breach is material, it is necessary to identify the remedies available to Dave. He has two main options. 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), 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. To conclude, Dave had a contract with The Unreliables who then breached that contract. Dave is therefore the innocent party and because the breach is a material one, he has two options for taking action. He can either sue for damages or specific implement. Given that the band was booked for a party rather than a business event, it is unlikely that Dave has suffered any financial loss and so a claim for damages would be unlikely to succeed. 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.

Footnotes (1) 1909 SC 571. (2) 1962 SC (HL) 204.

Is your answer more A than B? Using Strongs formula, CLEO, identify the Claim, Law, Evaluation and Outcome in each of the answers, including your own. You may also think that in real life, Dave would be unlikely to want to pay to sue the band, that the band would be a bad bet on the day if forced to play and that Dave should simply walk away. These are valid points but should only be made once the legal arguments have been expored.

OTHER USEFUL SOURCES OF INFORMATION ON ESSAY WRITING

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Books Foster, S. How To Write Better Law Essays (Pearson Longman, 2009) (available in the University bookshop). Strong, S.I. How to Write Law Essays and Exams (OUP, 2nd ed 2006 3rd ed due 2010) (available in the University bookshop). Higgins E. & Tatham L. Successful Legal Writing (Thomson, 2006) Websites www.ucl.ac.uk/internet-grammar/. This website offers useful guides to grammar and sentences structure.

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Glossary of Common Legal Terms

Note that you are best using a legal dictionary, such as Stewarts Collins Internet-Linked Dictionary of Law. But here are a few definitions to start you off. Note also that your texts on Delict, Contract and Property, for instance, will have glossaries of their own. We are just providing an introduction to some generic legal terms here (i.e. common to several areas of law). See also this helpful glossary for terms used in Scottish court procedure: http://www.scotcourts.gov.uk/library/publications/docs/glossary.pdf Adversarial: the judge here is like an umpire: s/he hears the case, but it is up to the parties lawyers to find and present the evidence, ask the right questions of the witnesses, and so on. Compare Inquisitorial procedures, below.

Articles of association: you will study these in company law. Think of these as part of the constitution of an organisation. They set out matters such as the distribution of powers.

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, 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, it is a framework for co-operation between the UK and Scottish governments. Not legally binding.

Court of first instance: this is the court where a case is first heard, as you might be able to guess from the name. (Contrast this to a court of appeal.) Depending on the seriousness of the case, the court of first instance could in fact be quite a senior court, such as the High Court if it is a murder trial. 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). Direct effect: this is a special legal term and those of you go on to study European Law will study this in more depth. When EC law has direct effect, this means that it directly gives inviduals certain rights or obligations. These must be enforced by the national courts (e.g. the UK courts) in each member state.
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Doctrine of implied powers: you will study this in more depth if you take the modul in European Law. For now, 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, then the EU itself has the power to negotiate treaties on that topic with bodies outside the European Union. If the Lisbon Treaty is ratified by all the Member States, then this will become a general rule of European law.

Inquisitorial: in some continental legal systems, the judge has a much more active role. S/he carries out some investigations in the case, asking questions, searching for evidence, and so on. Intra vires within its powers Judicial review: the Court of Session has a special supervisory jurisdiction at common law, which, as Jane Munro puts it, is the power to ensure that all those vested with a legal authority exercise that authority in accordance with the law. (p.334) We will look at this topic in more detail in later lectures.

Non-justiciable: a non-justiciable issue is one which it is not proper to examine in a court of justice. Turpin & Tomkins say: Some questions are non-justiciable because they cannot be satisfactorily decided by the process of legal argument and rule application, 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. These questions should be referred to other agencies that are better equipped to decide them. (p.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, Students Glossary of Scottish Legal Terms)

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Prerogative: There are various prerogative powers, but what we are looking at here is the royal prerogative. Although it seems out of step in a modern democracy, the Crown still possesses certain powers, immunities and privileges in law. Usually these are exercised by government ministers. One example is the prerogative of mercy, which can be used in exceptional circumstances to pardon someone or for remission of their sentence. 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 - in law - the claim is good. (called a debate in the sheriff court and a procedure roll hearing in the Court of Session). 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. 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. So when a court allows pba it is contributing to our legal understanding by saying that in law this is not a bad claim - it does not go so far as to say it is a good claim. 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). Preliminary hearing: As from April 2005, all cases that are to be dealt with in the High Court will commence in that court by means of a preliminary hearing. At this hearing, 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. 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, with the resulting inconvenience and stress that may be caused to witnesses, jurors and all other parties involved. http://www.scotcourts.gov.uk/justiciary/index.asp Ratify, ratification: when a state or a government ratifies a treaty, this means it adopts it so that the state becomes a signatory to it. This does not always mean that the treaty becomes law in that state, though: this depends on the constitution of the particular state.

Rolls of Court: these are the official lists of the cases due to be heard by the courts. These rolls are now online, and you can see them here: http://www.scotcourts.gov.uk/rolls/index.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. Depending on the level of secrecy required, documents may be kept secret for varying lengths of time.
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Vote of no confidence: UK Government: If a majority in the House of Commons carry a vote of no confidence, the Government is expected either to resign or to call an election. Scottish Government: see Rule 8.12 of the Standing Orders: Rule 8.12 Motions of no confidence: 1. 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"). 2. If notice of a motion of no confidence is supported by at least 25 members, it shall be included in a proposed business programme. 3. Members shall normally be given at least 2 sitting days' notice of a motion of no confidence. Exceptionally, members may be given a shorter period of notice if in the opinion of the Parliamentary Bureau a shorter period is appropriate. http://www.scottish.parliament.uk/business/so/sto-3.htm#8

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