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Studying Law Guidebook

2013/2014

LLB(Hons) Law with BusinessLLB(Hons) Law with CriminologyLLM/Postgraduate Diploma in Law/CPE

Contents

1. Introduction2 Law learning resources2.1 General2.2 The law collection2.3 The electronic law resources2.4 Westlaw2.5 Lexis Library2.6 Lawtel2.7 HeinOnline2.8 The internet2.9 Help and support finding law resources3. How to approach law coursework3.1 Types of law question3.2 Understanding the question3.3 Gathering material for your answer3.4 Writing your answer3.5 Presenting your answer3.6 Referencing your answer3.7 Checking your answer4. Law examinations4.1 Preparing for the examinations4.2 Statute books4.3 The examination4.4 Frequently asked questionsAPPENDICESA Sample pieces of law courseworkB Presentation, referencing & citation checksheet

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1. Introduction

The purpose of this handbook is to provide you with some important general information on law resources and some guidance on writing, referencing and presentation law coursework and examinations.

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2. Law learning resources

2.1 GeneralGeneral information about information services (including library opening hours, borrowing entitlements, photocopying facilities etc) may be found in your Student Handbook. Detailed guides are available in the libraries and on the Information Services web pages via http://www.brighton.ac.uk/is

2.2 The law collection

The University has a good range of law materials in paper and electronic form. This includes primary materials, such as law reports, statutes and statutory instruments, and secondary materials, such as periodicals and books.

Most of the materials that comprise the University’s paper law collection are housed together in close proximity on the first floor of the Aldrich Library on the Moulsecoomb Campus, a short walk from Mithras House. In addition, the library on the Falmer Campus has a number of resources relating to the criminal justice and social policy fields.

The University also subscribes to a range of electronic law learning resources. Further details on each of these resources, and how to access them, can be found below.

2.3 The electronic law resources

University of Brighton students have access, via the University’s on-line library (click the Online Library tab in studentcentral or go to http://library.brighton.ac.uk) to four on-line law packages – Westlaw, Lexis Library, Lawtel and HeinOnline. In addition, a handful of full-text law and law-related publications are available via the Business Source Premier on-line package which the University also subscribes to1. You can access the on-line products from inside and outside the University, which is useful if you have access to a personal computer and the internet from either home or work. However, if you don’t have such access, the University’s own computer pool rooms are open for long hours, especially during term time.

General information about the University’s information technology provision, such as the location of computer pool rooms, opening hours, printing facilities etc may be found in your Student Handbook. Detailed guides are available in the computer pool rooms and on the Information Services web pages via http://www.brighton.ac.uk/is

Finally, it should be noted that you should only use the on-line services (such as Westlaw, Lexis Library, Lawtel and HeinOnline) for purposes related to your course. The University’s licences do not cover use of these databases for other purposes ie for your personal use or uses related to any employment.

1 Business Source Premier gives access to the full text of the “Estates Gazette” (from 2002) and “The Lawyer” (from 2001) journals.

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http://www.brighton.ac.uk/is

http://library.brighton.ac.uk/


2.4 Westlaw2.4.1 Introduction

Westlaw is a massive on-line database of full-text, national and international cases, legislation and journals. It also includes access to the ‘Legal Journals Index’, the most comprehensive index of legal journals available.

2.4.2 Full text UK resources

Full-text UK & EU resources available on Westlaw include:

UK & EU Cases

British Company Cases 1983-Business Law Reports 2007-Civil Procedure Law Reports 1999-Commercial Law Cases 1994-Common Market Law Reports 1962- Criminal Appeal Reports 1967-Criminal Appeal Reports Sentencing 1979-Entertainment and Media Law Reports 1993 –Environmental Law Reports 1993 –European Commercial Cases 1978 –European Copyright and Design Reports 2000-European Human Rights Reports 1979 –European National Patent Reports 2000-European Patent Office Reports 1979 –European Trade Mark Reports 1996 –European Union Case Law 1954-European Union OJ C Series 1990-Fleet Street Reports 1966-Housing Law Reports 1981-Human Rights Law Reports 2000-Industrial Cases Reports 1972-International Litigation Procedure 1990-Landlord & Tenant Reports 1998-The Law Reports (Incorporated Council) 1947-Lloyds Law Reports 1919-Personal Injuries and Quantum Reports 1992-Professional Negligence and Liability Reports 1995-Property, Planning & Compensation Reports 1949- Reports of Patent Cases 1977-Road Traffic Reports 1979 - Scots Law Times 1893-United Kingdom Law Reports (Transcripts)1999- Weekly Law Reports 1953-

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UK LegislationUnited Kingdom Law in Force 1267 –United Kingdom Law in Force Historic1992 –United Kingdom Law in Force PDFs of entire Statutes and Statutory Instruments 1267-United Kingdom Statutes1267 –United Kingdom Statutes Historic 1992 –United Kingdom Statutory Instruments 1948 –United Kingdom Statutory Instruments Historic 1992 –

EU Legislation European Union Legislation 1952-European Union Treaties 1951-European Union Preparatory Acts 1974-European Union Parliamentary Questions 1992-European Union OJC Series 1992-

UK and EU journalsBritish Journal of Criminology 2002-British Tax Review 1986-Cambridge Law Journal 1998-Civil Justice Quarterly 1986-Communications Law 2005-Company Lawyer1986 –Computer & Telecommunications Law Review 1995 –Construction Law Journal 1986 –Conveyancer & Property Lawyer 1986 –Criminal Law Review 1995-Criminal Lawyer 2005-Employment Law Bulletin 1994 –Entertainment Law Review 1990 –European Competition Law Review 1988 –European Human Rights Law Review 1996 –European Intellectual Property Review 1986 –European Journal of International Law 2002-European Law Review 1986 –Human Rights Law Review 2005-Immigration, Asylum & Nationality Law 2005-Industrial Law Journal 2002-Insolvency Lawyer 1999 –Intellectual Property Quarterly 1997 –International & Comparative Law Quarterly 2002-Journal of Business Law 1986-Journal of Environmental Law 2002-Journal of Personal Injury Litigation/Law 1994 –Journal of Planning & Environmental Law 1990 –Landlord & Tenant Review 1997 –Law Quarterly Review 1986-Medical Law Review 2002-Oxford Journal of Legal Studies 2002-Professional Negligence, 2005-Public Law 1986-Public Procurement Law Review 1992-Statute Law Review 2002-

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2.4.3 Access

This resource is available both on and off campus using your university username and password. Full instructions for access are available beneath the database description on the online library (click the Online Library tab in studentcentral or go to http://library.brighton.ac.uk ) or from your library enquiry desk.

If you would like more information or assistance with using the Online Library please ask at your library enquiry desk or email [email protected].

2.4.4 Further information Further information and help on how to use the Westlaw service may be found by clicking ‘Help’ at the top right-hand side of the Westlaw homepage.

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mailto:[email protected]


2.5 Lexis Library

2.5.1 Introduction

Like Westlaw, Lexis Library (LL) is a massive on-line database of full-text, national and international cases, legislation and journals. LL also gives access to Halsbury’s Laws of England a product designed to enable practitioners to answer the full range of questions likely to arise in the course of their work. It provides the only comprehensive narrative statement of the Law of England and Wales, and is written by leading lawyers, both practitioners and academics.

2.5.2 Full text UK resources

The full text UK law reports on LL include:

All England Commercial CasesAll England Law ReportsAll England Law Reports European CasesAll ER Reprints and Reprints ExtensionBankruptcy and Personal Insolvency ReportsButterworths Company Law CasesButterworths Human Rights CasesButterworths Intellectual Property and Technology CasesButterworths Local Government ReportsButterworths Medico-Legal ReportsCase SearchConstruction Law ReportsCustoms Duties CasesEducation Law ReportsEstates Gazette Law ReportsEstates Gazette Planning Law ReportsEuropean Court of Human Rights CasesExcise Duties CasesFamily Court ReportsFamily Law ReportsGoode: Consumer Credit ReportsHarvey on industrial Relations & Employment Law CasesHMSO Tax CasesIndustrial Relations Law ReportsJustice of the Peace Law Reports Law Reports of the CommonwealthLaw Times ReportsOccupational Pensions Law ReportsSimon’s Tax Cases The Law Reports (Incorporated Council of Law Reporting)Times Law Reports

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The full text journals on LL include:

Child and Family Law QuarterlyCivil Court NewsCommon Law World ReviewCompany Secretary’s ReviewConstruction Law (Journal)Consumer Law TodayEducation Law JournalEnvironmental Law ReviewEstates Gazette – LegalEuropean Journal of International LawFamily Law (Journal)Housing Law MonitorIndustrial Law JournalInsolvency Law and Practice JournalInternational and Comparative Law QuarterlyInternational Family Law JournalInternational Journal of Evidence and Proof International Journal of Law & Information TechnologyInternational Journal of Law Policy and the FamilyInternational Journal of Refugee LawIT Law TodayJournal of Conflict and Security LawJournal of Criminal LawJournal of Environmental LawJournal of International Banking & Financial LawJournal of International Criminal JusticeJournal of International Economic LawJustice of the PeaceLaw Society GazetteMedical Law ReviewThe New Law JournalOccupational Pensions JournalOxford Journal of Legal StudiesPersonal Injury JournalStatute Law Review

2.5.3 Access



2.5.4 Further information

Further information and help can be obtained by clicking ‘Help’ (at the top right-hand side of the screen) on the LL homepage.

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2.6 Lawtel

2.6.1 Introduction

Lawtel is a very user-friendly, on-line group of searchable databases of (primarily) cases, legislative material and journal articles that is updated every 24 hours.Traditionally, most of the entries posted on Lawtel have comprised summaries rather than full-text. However, increasingly, the full-text of cases, statutes and statutory instruments are available via Lawtel. The Lawtel service offers a range of databases. The main database that the University subscribes to is ‘Lawtel UK.’

2.6.2 Lawtel UK

Lawtel UK includes:

Case Law

Reports decisions as they happen across all areas of the law, from an unparalleled range of courts.

Over 30,000 cases reported in total to date. Includes cases reported in the major law reports plus thousands of decisions

reported exclusively by Lawtel UK. Online within 24 hours of judgment. Most of the older cases are reported as summaries only. However, there are now

links directly from Lawtel UK Case Reports to all available full text court transcripts online.

Hypertext links to other relevant cases and legislation. Expert commentary from leading chambers on the impact and legal significance

of new key cases.

Legislation Enables you to track the latest statutory developments as they happen. Enables you to see whether a section of an Act is in force, has been amended, or

repealed by another Act. Includes an archive of all Acts back to 1984 as well as an automatic search

facility listing all related Statutory Instruments. Access to all Statutory Instruments back to 1984 – highlighting their enabling

power, their effect and status and links to relevant documents. The Parliamentary Bills Service enables you to track every stage of a Public Bill

through the Westminster or Scottish parliaments or Northern Ireland Assembly, and link directly to the up-dated full text versions where available.

Offers access to all Command Papers back to 1997/98, plus an archive of Green and White Papers back to 1992/93 session. Includes hypertext links directly to the full text where available.

Articles

Abstracts of substantive and authoritative legal and practice management articles from over 70 specialist and general legal publications, including the legal supplements of the major broadsheets.

Direct links to all cited cases and legislation.

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2.6.3 Access



2.6.4 Searching

To search the Lawtel UK database:

Enter key words into the ‘Search Lawtel UK’ box Then select the kind of material you are looking for e.g. case law, statute law Then (if you wish) select a date range Then click ‘Search’

When the search is completed, you will be presented with a list of returned matches. Click on any of the matches to take you to the full entry.

3.6.5 Further information Further information and help on how to use the Lawtel databases may be found on the Lawtel web site. Click ‘Help’ at the top left-hand side of the screen.

2.7 HeinOnline

2.7.1 Introduction

“HeinOnline allows you to search or browse all 176 volumes of the English Reports, Full Reprint along with its "Index of Cases" and "Index Chart." This collection encompasses the decisions of the English Courts prior to the commencement of the Law Reports in 1865. It represents reprints of 275 separate series of reports, arranged by the English Courts: House of Lords, Chancery, Rolls Court, etc. The English Reports, Full Reprint contains over 100,000 cases reprinted verbatim and spans the years 1220 to 1867.” (source: HeinOnline web site)

2.7.2 Access


Once you have reached the HeinOnline homepage:

Click “Subscribers Click Here to Enter” (at the top of the page) Then click “English Reports – Full Reprint (1220-1865)”

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2.8 The Internet In addition to the electronic services to which the University subscribes, it is also important to note that lawyers are fortunate to have access to a very large amount of free high quality primary and secondary law material on the Internet e.g. Acts of Parliament (including explanatory notes), bills, statutory instruments, cases, Law Commission Consultation Papers and Reports, proceedings in Parliament, White Papers, Green Papers, government consultation papers and reports. The best gateways to this information are three well-known and respected portals :

Lawlinks An annotated list of web site compiled by University of Kent at Canterbury librarian Sarah Carter : http://www.kent.ac.uk/lawlinks/

Legal Resources in the UK and Ireland Maintained by Delia Venables at www.venables.co.uk

2.9 Help and support finding law resources

LLM/PG Dip Law students will be given training on how to use the law electronic resources as part of their Legal System, Method and Skills module and undergraduate law students as part of their Law in Action module.

There is also a team of Information Advisers and Assistant Information Advisers based in the Aldrich Library who are available to help you and deal with any questions or queries that you may have about law resources:

E-mail: [email protected]

If there is a book or a journal article which you need which is not available in the library, then you can make a request for a copy to be obtained from another library. Forms are available at the Help Desk in the Aldrich Library or to download from http://www.brighton.ac.uk/is

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http://www.venables.co.uk/

http://www.kent.ac.uk/lawlinks/

3. How to approach law courseworkThis section gives you guidance on how to complete law coursework in all your law subjects. This section will deal with issues surrounding the question you have been asked, the material you should be looking for, structuring your answer and referencing your work. It is very important that you read this section before you begin any coursework.

Before starting your coursework, especially if you are a first year, you might find it helpful to consult a book which has been specially written for law students. This sort of book will help you understand what is expected of a law student and how to go about your coursework. There are some books in the library which will give you guidance. Here are a few of the most useful ones:

Strong, How to write law essays and exams (3 edn OUP Oxford 2010) Huxley-Binns, Riley and Turner Unlocking Legal Learning (2nd edn Hodder

Education London 2008) McMillan and Weyers How to write essays and assignments (Pearson Harlow

2011) Cottrell, The Study Skills Handbook Stella Cottrell (3rd edn Palgrave Hampshire

2008) Finch and Fafinski Legal Skills (OUP London 2009)

To help you understand what the University of Brighton expects we have reproduced some of this information below for you.

3.1 Types of law questions that you might get

During your time at university there are two main types of law questions that are set by tutors, these are:

Essays Problem questions

Essay questions are normally short statements about the law that are opening the debate. These questions focus on your ability to explain, discuss and evaluate the law and proposals for reform of the law.

Problem questions are a set of facts designed by your tutor, they are often like a mini story. They are client based questions that resemble what a solicitor might hear when they first meet the client. These questions focus on your ability to identify legal issues, display your knowledge of relevant legal rules and principles and apply those rules and principles to complex factual situations.

Both types of question assess a number of common skills such as your ability to present clear, logical and persuasive arguments. These skills should be your central aims when writing your coursework.

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3.2 Understanding the question3..2.1 Understanding essay questions

It is essential to start by reading the essay question carefully. What exactly are you asked to do? Is a broad or a narrow focused discussion appropriate? What are the assumptions behind the question? What are the limits to the topic? Does it require you to consider one, or more than one issue?

In focusing on the essay question, it is often useful to underline the key words in the question – those that specify the kind of report or essay required. Here are some examples:

Compare : Look for similarities and differences between; and perhaps reach a conclusion as to which is preferable.

Contrast: Set in position, in order to bring out differences.

Criticise: Give a reasoned judgement about the merits of theories or opinions, about the truth of facts. Back your judgement by a discussion of evidence or reasoning involved.

Define: Set down the precise meaning of the word or phrase. In some cases it may be necessary or desirable to examine different, possible or often used definitions.

Describe: Give a detailed or graphic account.

Differentiate/Distinguish: Explain the difference.

Discuss: Investigate or examine by argument; sift and debate; give reasons for and against. Also examine the implications.

Evaluate: Make an appraisal of the worth of something, in the light of its truth or usefulness, including, to a lesser degree, an opinion.

Explain: Make plain; interpret and account for; give reasons for.

Illustrate: Use a figure or diagram to explain or clarify; or make clear by the use of concrete examples.

Interpret: Expound the meaning of; make clear and explicit, usually giving your own judgements also.

Outline: Give the main features, or general principles, of a subject, omitting minor details and emphasising structure and arrangements.

Relate: Show how things are connected to each other, and to what extent they are alike, or affect each other.

Review: Make a survey of, examine the subject carefully.

State: Present in brief, clear form.

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Summarise: Give a concise account of the chief points of a matter, omitting details and examples.

Trace: Follow the development or history of a topic from some point of origin.

Sometimes an essay question will include more than one of these key words. In this case it is important to take account of all and not just some of them. For example, if you were asked to describe and discuss a legal principle, you would need to set out a clear account of the principle and then explore it from relevant angles, examining implications etc. If you only focus on one of the key words, you will have only completed half of the task.

If you have any doubts as to what is being asked seek clarification from the lecturer – preferably in class so that everyone is clear and there is no ambiguity.

3.2.2 Understanding problem questions

Problem questions are essentially complex factual scenarios which contain a number of legal issues, usually three or four significant issues, which you are required to identify and discuss. The following is an example of a problem question:

Bonnie and Clyde raid the South Coast Mutual Building Society, where they confront the Manager (Gita), a 17 year-old cashier (Heidi) and two customers (Irma and Kelvin). Kelvin’s blind daughter, Layla, is sitting on a chair by the door listening to her MP3 player. Clyde brandishes a loaded gun and shouts: “Don’t move or I’ll shoot”. Bonnie also brandishes a gun, although hers is a cheap plastic imitation gun. Kelvin lunges towards Clyde, prompting Clyde to fire a warning round of bullets into the ceiling. Unfortunately, two of the bullets rebound, one hitting Heidi in the leg and the other hitting Bonnie in the arm. Irma collapses and dies of shock. Bonnie and Clyde attempt a getaway. However, they are pursued by Kelvin and members of the general public, who manage to tackle both to the ground. As they all wait for the police to arrive, Kelvin repeatedly and violently kicks Clyde. Nobody stops him. Heidi is taken to hospital unconscious. There she is operated on by surgeons to save her leg even though her parents protest that Heidi would not consent to the operation for religious reasons.

Discuss the potential claims in the law of torts.

The key initial task is to identify the legal issues which the question raises. It is therefore essential to read and re-read the problem scenario very carefully, as this will increase the likelihood of you identifying all the legal issues which the question raises and which should be covered in a good answer.

You should accept the facts set down in a problem question and not worry about issues of proof or the improbability of the scenario.

You should also bear in mind that crucial facts will often be deliberately omitted from a problem question. This may then require you to develop an answer based on a number of premises i.e. if X applies then my answer would be this, but if Y applies then my answer would be this.

Usually every sentence in a problem question is there for a reason, the tutor is trying to assess you on different areas of law and if you chose to ignore certain facts then you will lose the marks that were available.

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3.3 Gathering material for your answerOnce you have determined what the question is about - regardless of whether it is an essay or a problem question - your answer will need to be thoroughly researched, and you should start your legal research early. This gives your thinking time to mature, and enables you to revise your first attempts.

For undergraduate law students, legal research training will comprise part of the Legal Institutions and Method module, and for postgraduate law students, will comprise part of the Legal System, Method and Skills modules. You should also be able to obtain advice, help and support from library staff.

Try to use a variety of sources. If the topic is new to you, start with brief surveys e.g. introductory texts, general journal articles and encyclopaedia such as Halsbury’s Laws of England. Use these to discover the essential topics and then move on to cases, statutory material, more specialised books and journal articles, government papers etc as appropriate.

You can view sources as a hierarchy. Some are much more important than others and some sources must never be used. Look at the table below to give you ideas about which sources to use. You should start your research by looking at the area covered in lectures. You can get a basic understanding from your lecture and seminar notes but these should never be directly referenced in your coursework (see below for other sources which should not be used). Once you have a clear idea about the area of law you can start to research properly. You must read selectively, picking out cases, statutory material, journal articles and parts of books that are directly relevant to the question. Look for sources which give opposing views. Never follow one source too closely, especially if this is an introductory text or summary. You are trying to build up corresponding arguments to present them in your work.

One of the most important points is remembering you must NEVER PLAGIARISE. This can carry very stiff penalties. For further guidance on the issue of plagiarism please refer to the section below on referencing, your Course Handbook, the University Student Handbook, and the Plagiarism Awareness Pack - you will have been provided with copies of all these documents at the start of your course, and copies will also be available in electronic form within your Course Area on Studentcentral.

Keep a notebook or file cards for your notes. When taking notes don’t rewrite the case, statute, journal article or book – just jot down the vital points. ALWAYS record the source, including the page numbers, because:

you may need to expand on your notes when you come to write your report; it is often useful to look at your source details; you must give references for your sources of information and ideas.

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3.3.1 Sources you might use

Best sources

Basic sources

Primary sources of law such as:

case law statutes secondary legislation Parliamentary bills

Secondary sources such as:

Law Commission reports Public enquiry reports Government documents Select committee reports Hansard legal encyclopaedias journal articles specialist books case notes written by professionals

Secondary sources such as:

textbooks newspaper articles websites related to the topic eg. bbc.co.uk

Sources which should NOT be used in law coursework because they are not authoritative:

Lecture notesLecture booksSeminar notes

or are unreliable Threads or comments from online forumsWikipedia Unreliable online sources

NOTE: If you find that you have no choice but to use one of these sources you must acknowledge it in a footnote. You risk losing marks for not using a proper source, but if you do not give a footnote at all you risk an accusation of plagiarism

This table shows that the very best work you can produce will contain references to many primary sources and to some of the better secondary sources. Your work should never merely regurgitate your core textbook. This does not show depth of knowledge or advanced research skills. First year coursework will contain references to the textbook and this is acceptable, however as you progress through your legal studies you should aim to rely less on the textbooks and much more on primary and secondary sources higher up the table.

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3.4 Writing your answer3.4.1 Essay questions

Introduction, Main Body and Conclusion Your essay should always comprise an introduction, main body and conclusion.

Keep the introduction to less than one tenth of the total length. Comment on the topic and explain your interpretation of the question. It is often appropriate to outline the order of the discussion so as to help the reader through your essay. It may be necessary to define some key terms.

In the main body of the essay you should put down your main points in a sensible order – one which will enable your discussion to flow and which avoids repetition. Where appropriate expand on the points with examples or illustrations. Check that your discussion answers the question. If the question has two or more parts, make sure that you keep these distinct, and allow the proper amount of space for each.

You should keep your conclusion to about one eighth of the total length. Summarise your main ideas or arguments. Ensure that your conclusion corresponds to the question asked, and that it follows from the discussion in the main body. It is not always possible to give a firm answer to a question; instead you may need to explain uncertainties. It may be appropriate to suggest the wider implications of your discussion, or point to future trends, or areas that are worthy of further research.

Flow and coherence There should be a continuous thread of argument or discussion throughout your answer. Arrange your material into paragraphs. Each paragraph should deal with one topic or idea. This is generally stated in the first sentence; then developed or elaborated. Closely related material should be in the same paragraph. It is a good idea to put contrasting points in adjacent paragraphs, eg for and against; cause and effect; positive and negative; merits and demerits.

Link paragraphs by using ‘transition’ words or phrases, e.g. ‘however’, ‘it follows that’, ‘consequently’, ‘furthermore’, ‘on the other hand’, etc. But be careful to use these properly e.g. don’t use ‘therefore’ unless what follows is implied by (follows from) the previous point. Do not overuse the same few transition words. Starting each paragraph or new point the same way does not make for a piece of work that reads well.

Style Your style is peculiar to you, but it is not fixed and not beyond improvement. Always aim first at clarity and succinctness. A good, varied, fresh vocabulary is attractive but try to USE SIMPLE STRAIGHTFORWARD LANGUAGE where possible and only use technical terms that are essential for precision. Use short sentences, especially where you want to make a clear, powerful point. Longer sentences can give a pleasant contrast to these, but avoid a jungle of subordinate clauses.

Avoid using the first person singular. Phrases such as ‘I think’ usually lead onto unsubstantiated conjecture. Do not use the term ‘we’, you are writing the work alone so there is no relevance to writing ‘we believe that…’. You should also avoid using the second person. So do not write ‘you can see from this point that…’.It is simply important to remain objective throughout your work. What is required is reasoned well-supported argument leading to phrases such as ‘it is submitted’ or ‘research has shown’ or ‘it can be seen’ – properly referencing your sources, of course.

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Examples and quotations It is often useful to illustrate a point or argument with an example but this also involves dangers. Avoid excessively long, elaborate examples, which might unbalance your piece of work and detract from the main thread of discussion. Ensure that the example does make the point that you intend to make. Always use examples to illustrate a point, never to establish a generality. Where you are using exact quotes then you must follow the presentation rules below. You must always reference any direct quote.

Students often ask “how many quotes am I allowed?” There is no simple answer to this. However, it is important that this guide gives you some idea of our expectations. If you think of your work in percentage terms then you should aim for quotations not amounting to more than 10%-20% of it. In a 2000 word essay you should have no more than 200-400 words in direct quotes. It is tempting to cut and paste in a direct quote especially when you think there is no way you could say it any better than the original author, but think again, do you really need to say this exact phrase or could you explain it slightly differently? Could you put your own ‘spin’ on it? REMEMBER though, you must still give credit to the original author in your footnote, if you do not it is plagiarism, even if you have changed the passage to your own words. Below is an example of poor style in relation to quotations:

It is an example of poor style because the student has chosen to insert quoted words on nearly every line. There are 166 words in this passage and 77 of them are direct quotes. This is a direct quote percentage of 46%. This work shows that the student cannot possibly have understood the topic. They cannot display genuine knowledge in this way. It would also be a poor piece of work if the student had inserted larger, indented quotations throughout. Both these styles result in a piece of coursework that contains only 50% of words written by the student themselves. Below is an example

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Subsidiarity was ‘introduced as a political compromise to reassure member states that the Community’s power was not unlimited.’10 It was a ‘kind of antidote against the growing anxiety of some member states’11 that they still retained some power. This fear was originally aroused by the Maastricht Treaty which was labelled as a ‘Treaty Too Far’.12 True to form, leading academics cannot agree on the meaning and purpose of subsidiarity. Taking Davies’ submission as a starting point; he claims subsidiarity was implemented to ‘prevent a complete infantilization of national governments with the inevitable consequent of political backlash.’13 Barber supports this view and takes it one step further as he submits that ‘the purpose of subsidiarity is not only to protect and empower pre-existing intuitions’14 but also ‘new democratic institutions.’15 Whereas Estella argues that ‘subsidiarity was introduced to placate those Member States, who feared that too much power was shifting’16 to Community level, but Barber is critical of this approach and implies such an explanation to be ‘empty’.17

10 Barber (n 3) 315.11 T Schilling, ‘A New Dimension of Subsidiarity as a Rule and a Principle’ (1994) 14 Yearbook of European Law p 203.12 ibid.13 Davies (n 1) 64.14 Barber (n 3) 4.15 ibid.16 A Estella, The EU Principle of Subsidiarity and its Critique (OUP 2002) ch 3.17 Barber (n 3) 315.

of coursework written on the same topic by a different student. This is a much better style:

If you do decide to use a longer quotation do not just insert it into your text and hope the reader will understand why you chose it. Introduce your quotation with a few

words and then afterwards expand on the points made or critique them with another author or your own objective view. Think of these sentences each side of the quote as parents! Never leave your quotation orphaned!

Legal and other terminology It is important that you take care to use legal and other terminology correctly. For example, students often use the term Parliament when they mean Government.

English, Spelling and Punctuation Poor English, spelling mistakes or scruffy presentation will all detract from the impression given by your work. At the very least your written English must be good enough not to detract from the clarity and precision of your discussion, and, preferably, enhance it.

Planning and drafting Planning is vital for good writing. It provides a structure, which helps you to write your answer and helps you to avoid irrelevance. Your plan should consist of a series of brief headings or notes. Never let your source material

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According to Davies the fundamental difference about the European Union is the dual law making procedures of the Court and Commission, with overlapping competencies and sometimes conflicting policies and interests.8 Davies view, however oversimplifies the problem. His argument reflects classical legal thinking, and generally this view is too simplistic.9 It is Davies simplicity that leads to exaggeration, although he recognises that realistically both the Commission and the Court consider the Member States when legislating and interpreting law respectively, he exaggerates the relationship, omitting the many areas in which the Court and Commission share a common goal. The commitment to free trade or the reaction to the threat of terrorism provides examples of the common goals shared by both the Commission and the Court. The Court merely attempts to forbid the unjust restrictions on free movement, it in no way opposes the common goal.

Structurally speaking, according to the criticisms put forward by Barnard, Davies misses the potential of the connections between the Roman Catholic Church system and the European system.10 Barber agrees, suggesting that the arguments that supported the Catholic principle could also at some point provide support for the European principle11 and that the European account of subsidiarity ‘could be presented as a subset of the Catholic principle.’12 It is unfortunate to note however that both Barnard’s and Barber’s view on these connections have little strength and one writer even concludes that their points are ‘likely to be trite’!13 Davies assessment is exaggerated, yet sound, the systems are just too different to be able to allow subsidiarity to function in the same manner.

8 Davies (n 2) 79.9 P Syrpis, ‘In Defence of Subsidiarity’ (2004) 24(2) OJLS 326.10 Barnard (n 3) 120.11 N Barber, ‘The Limited Modesty of Subsidiarity’ (2005) 11(3) European Law Journal 321.12 ibid 320.13 ibid 320.

dictate your plan – it is unlikely to be written in answer to your specific question. Following too closely the approach taken in source material may amount to plagiarism, but in any case makes it very difficult for you to demonstrate that you have understood the material and can develop your own ideas.

Your plan is your guide to the finished piece of work, but you need not set about writing it in the order in which it will finally appear. With regard to essay questions, many people find the introduction is the most difficult part to write. So long as you have made the essential decision about what will go into the introduction you can leave it unwritten until after completing the main body. Whenever possible, write a first draft and leave it for a short while before reading it through again. You will find it far easier to be objective and critical about your own work. Try reading the draft out aloud, preferably to a friend who is not submitting the same assignment!

3.4.2 Answering problem questions

Most of the advice above applies equally to answering problem questions, but subject to the following additional points:

Tailor your answer to the question You should make sure that your answer is sensitive to the specific question or questions asked at the end of the scenario e.g. if the question asks you to ‘Advise Mr X’ or ‘Advise A, B & C’ make sure you do advise Mr X or A, B & C. Reading through your work you should be clear what the person’s legal advice is. Taking care to do this demonstrates to the marker that you have carefully read the question.

However, just because you have been asked to advise a particular party, does not mean that your answer should be partial. Every client is entitled to be fully informed about the strengths and weaknesses of their case so that they can make an informed decision whether or not to proceed with litigation. So if you think their case is weak and they would be unlikely to win you must say so, but you must support this conclusion with the opposing arguments. Think of yourself as a lawyer going to court, you would not turn up at court on the morning of your big case not knowing what your opponent might argue. Instead you would have researched the other side’s case and you will have your counter arguments ready. It is exactly the same in a problem question. Any weak points for your client must be identified, explored and the countered if possible.

Structure The most appropriate way to structure the answer to a problem question will vary from question to question, depending on the wording and nature of the question, and the subject-matter. There is no standard formula which applies to every question.

For example, where a question specifically asks you to advise stated individuals, whether they be potential claimants or defendants, then this should normally be the key driver for your structure, considering each individual in turn.

However, if a question asks you to just ‘Discuss’ the scenario or ‘Consider potential legal liability’ then it could be more appropriate to consider potential legal actions as they arise chronologically in the question, or in order of likelihood of success.

Also, approaches and techniques to answering problem questions may vary from subject to subject e.g. as between Contract Law, the Law of Torts and Criminal Law.

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Therefore, this general guidance needs to be considered in conjunction with subject-specific guidance which is given to you by relevant subject tutors.

There are mixed views on whether an answer to a problem questions should have a general introduction and conclusion. We take the view that a general introduction on the subject-matter of a problem question is not normally necessary. However, a short paragraph at the end of your answer, summing up your main conclusions, can be very useful.

If you find problem questions difficult then you may want to consult some books written on this topic. Some authors have designed a formula for answering problem questions. This can be helpful but it is not something which can be applied without thought to all problem questions you will be set. These systems simply give you a framework for structuring your answer. You might bear them in mind when you are answering a problem question. However, it is not always possible to follow this structure to the letter, but sometimes it can be used very productively at the planning stage. For example Rebecca Huxley-Binns et al2 identify the IRAC system:

Issues Rules Application Conclusion

In more detail this means that you must;

- Identify the Issues- Explain the legal Rules- Apply the law to the question- Conclude

S.I. Strong3 also has a method of structuring problem question answers. The CLEO method:

Claim Law Evaluation Outcome

You start by stating your character’s claim in legal terms. So if this were a criminal case you might start by deciding what the defendant will be charged with. If it were a tort problem then you should identify the claimant’s cause of action. You identify the relevant law, with authorities and then evaluate the legal position against the facts you have been given, finally you state what the likely outcome will be for your character. Where there are a number of characters in a problem question, like the tort example given above, you can use these systems for each person. So theoretically if you could separate out each part of the system then your coursework would look something like this:

BonnieC-L-E-O or I-R-A-C

2 R Huxley-Binns et al, Unlocking Legal Learning (2nd edn, Hodder Education 2008). 3 S I Strong, How to write law essays and exams (2nd edn, OUP 2005).

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ClydeC-L-E-O or I-R-A-C

GitaC-L-E-O or I-R-A-C

HeidiC-L-E-O or I-R-A-Cetc etc…

You can use headings for each individual character, see the section on presenting your answer.

Sometimes it is not possible to structure your work so neatly. There are also times when there are many smaller points of law to be made and application to the facts needs to follow each point. Therefore sometimes your coursework will be structured like this:C – L–E – L–E – L–E – L–E – O Where each “L – E” pair represents a small paragraph of Law and Evaluation to facts.

Issue, law, application Even if you do not use one of the systems above you should always state each legal issue, give the relevant law, taking care to include authorities for your propositions i.e. case law and statutory material, and then attempt to apply the law to the factual scenario.

It is important that you are discriminating and careful in your use of cases, statutes and statutory instruments. With respect to case law, it is important to be sensitive to the concepts of precedent, ratio decidendi, obiter and the process of distinguishing. In respect of statutory material, you should be keenly aware of the rules of statutory interpretation.

Focus on the most complex issues Do not spend too much time considering unproblematic points, but do dwell on the more complex issues which a factual scenario raises. For example, if you are considering whether a person is liable in the tort of Negligence, it would be necessary to explain all the essential ingredients of the tort, ie duty of care, breach, causation. However, it may be that only one of those ingredients is problematic in the given set of facts, in which case the larger part of your answer should be devoted to consideration of that issue.

Don’t repeat the law You only have to state principles, doctrines and rules etc once. Therefore, if you are applying the same principle, doctrine or rule to more than one potential claimant or defendant in a problem question, then after you have stated the principle, doctrine or rule etc once, you can simply refer back to it later in your answer.

No need to consider the advantages and disadvantages of the law Generally, problem questions are designed to test your knowledge and understanding of what the law ‘is’, not to consider its advantages or disadvantages or what it should be. Critiques of the law are more appropriate for essay-style questions. However, a consideration of the rationale of a legal principle may well be relevant in an answer to a problem question if you are being required to consider how the principle should be applied to a novel set of circumstances.

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3.5 Presenting your answer 3.5.1 Introduction

It is very important that you follow the guidelines on presenting your work. If you do not do this it can make life very difficult for your examiner. For example when students use fonts that are too small or there is not enough spacing between the lines to make comments.

General guidance on the presentation and referencing of work may be found in your Course Handbook and the Brighton Business School Referencing Guide (2nd edn, Brighton Business School 2009).

However, there are special conventions that apply to the presentation of legal coursework. The following is therefore an adaptation of the School’s general guidance, taking into account those conventions. In formulating this adapted guidance, we have also been guided by the presentation principles contained within the Oxford Standard Citation of Legal Authorities (OSCOLA) (see:

http://denning.law.ox.ac.uk/published/oscola.shtml

NB: Where there appears to be contradiction between the presentation and referencing guidance in your Course Handbook and the Brighton Business School Referencing Guide, and the guidance below, you should always follow the guidance given here when completing LAW coursework. If you cannot find information about a specific presentation issue in any of the handbooks or guides mentioned then you must seek help from the Legal Academic Skills tutor or your lecturer for that module.

3.5.2 Paper Size, Spacing, Margins and Fonts

The work should be on A4 paper with one-and-a-half spacing between the lines, single or double sided. Appendices and footnotes may be single-spaced. Each page should be numbered with page numbers at the foot of the page.

There should be a margin of at least 1.5 inches (4 cm) on the left side of the page, both for the text and for any diagrams. Top, right and bottom margins should be at least 1.25 inches (3 cm). The main text should be in a single 12-point font, e.g. Times New Roman or similar. An alternative font such as Arial in a smaller point size may be more appropriate in diagrams and tables.

3.5.3 Headings and Sub-Headings

You may find it useful to use headings and sub-headings in your work to reinforce its structure. Headings and sub-headings should be short, and follow a clear hierarchy. The same font and point-size should be used for the headings and sub-headings as the rest of your work and they should be separated from the main text with gaps above and below. The following is an example of a hierarchy that may be suitable for a substantial piece of coursework such as a project, case study or dissertation:

LEVEL ONE A MAIN HEADING (CAPITALS, BOLD & CENTRED)

LEVEL TWO 1 First Sub-Heading (Bold and Left Aligned)

LEVEL THREE (a) Second sub-heading (Left Aligned)

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http://denning.law.ox.ac.uk/published/oscola.shtml

LEVEL FOUR (i) Fourth sub-heading (Left Aligned)

However, it may be appropriate to adopt a simpler hierarchy for shorter pieces of work eg coursework assignments with a word limit of 2,000 or less.

3.5.4 Index

Where you are producing a substantial piece of work - such as a project, case study or dissertation - that will inevitably incorporate a substantial number of headings and sub-headings - you should preface your work with an index.

3.5.5 Paragraphs

Paragraphs should be separated from one another by a gap. The beginning of paragraphs should not be indented.

3.5.6 Footnotes

Footnotes are used to give your references. They appear as a numerical system of references to work at the bottom of each page. This system is explained below. Footnotes should primarily be used for referencing source material used in the text, they should not be used to give explanations of things that do not fit comfortably in the text. Endnotes should not be used, this is where all your references are given at the end of your document. It can make it hard for a reader to link sentences with the correct reference if you present your work like this.

Footnotes should begin with a capital letter unless the first item is an abbreviation that conventionally starts with a lower case letter such as eg, cf or ibid.

Footnotes should normally end with a full stop unless for some reason they end with a question mark (?) or exclamation mark (!).

When using a footnote to reference a source there is no need to commence the footnote with ‘See’ as this is implied. You should simply give the case name, statute or document you are referencing.

3.5.7 Cross-referencing and cross-citation

It is permissible to cross-reference ie refer the reader of your work to another part of your work. This can be a useful way of not repeating the same point or discussion. However, you should not cross-reference if a very simple point is involved that can be concisely re-stated.

The cross-reference should be sufficiently detailed to enable the reader to easily find the material referred to - ‘see above’ or ‘see below’ will not normally be sufficiently detailed. Reference to an actual page number is preferred. So for example in the text you may wish to write “see above at p.3 for an explanation of the duty of care owed to patients”.

Cross-citation is a specialised form of cross-referencing. This is where you are directing the reader to a footnote mentioned already. This will be dealt with in more detail below in the referencing section.

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3.5.8 Abbreviations

If you use an abbreviation then you must make sure that you identify it in a ‘List of Abbreviations’ at the beginning of your work (after the index if your work includes an index) unless: it is an abbreviation in common usage such as eg or etc; or it is an abbreviation commonly used by lawyers. For example, most series of law reports and legal journals have accepted abbreviations. Full stops should not be used in abbreviations. For example, ‘HL’ as should be used rather than ‘H.L.’ , and ‘eg; should be used rather than ‘e.g.’ For a very useful internet-based index of legal abbreviations see The Cardiff Index to Legal Abbreviations at : http://www.legalabbrevs.cardiff.ac.uk 3.5.9 Quotations

Using quotes in your work can be very helpful. See above at section 4.4.1 for guidance on when to use direct quotations in your work. If you do use quotations in your work then they must be properly referenced in a footnote. Individual quotations should only be used if they are pertinent. Normally an individual quotation should not exceed one paragraph in length. Furthermore, excessive use of quotations in a piece of work should be avoided. All quotations must appear exactly as they do in the original source.

A quotation that is less than three lines should normally be included in the text of your answer in single quotation marks (double quotation marks where there is a quotation within a quotation). The quotation should not be italicised, underlined or in bold.

A quotation that is greater than three lines should be separated from the text of your work and double-indented. This means you need to adjust the margin on that piece of text so that it is narrower than the rest of your work. It should not be enclosed in quotation marks. See this extract of coursework below for example:

Generally, use a colon to introduce a long quotation. However, when the lead-in moves seamlessly into the quoted material a comma or no punctuation may be

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The Family Law Act 1996 provides some degree of protection to victims of domestic violence. It introduces two new orders, the occupation order and the non-molestation order. These orders used to be known as injunctions and are often still labelled this way. Occupation orders can give the victim a right to stay in the property and exclude the person causing the violence. This type of order has been criticised heavily by K Heating in 2006:

Occupation orders are a nightmare for an innocent homeowner or tenant. They have been seized by unscrupulous people, sadly most of these are women. These bogus victims will convince the court that they are in serious danger and the respondent should be immediately excluded from the home. In some cases there is virtually no evidence of physical harm, no witness statements and no call to the police, yet the court almost operates with a presumption in favour of the claimant. 1

However R Smith contests this, arguing that there are many occasions where the court has refused to grant any occupation order, despite clear evidence of abuse. 2

http://www.legalabbrevs.cardiff.ac.uk/

preferable. When a quotation begins in the middle of a sentence in the text, the first letter of the text should be capitalized if the quotation itself is a complete sentence, but not otherwise. When a quotation begins at the start of a sentence in the text, the first letter should be capitalized, and square brackets placed round it if it was not capitalized in the original text. Use an ellipsis (…) when intervening text is missing from the quotation, or if it ends mid-sentence in the original text. Any comments on the quotation, such as ‘emphasis added’ (showing that the emphasis was not in the original text), should be in a footnote. For example:

If there is a mistake in the original quote then you must keep the mistake but you can insert [sic] after the mistake to show you have noticed it.

3.5.10 Foreign words

Foreign words should generally be italicised, with the translation in brackets if necessary. However, please note that foreign words that have become part of everyday legal parlance are treated as English and not italicised eg ratio decidendi, ultra vires and a priori.

3.5.11 Clip art etc

Clip art should not be incorporated into your work without good reason. For example, diagrams, tables and charts are acceptable providing they are appropriate.

3.5.12 Bibliography

Your work should always end with a bibliography of the sources that you consulted and used in your work. You should separate different types of source material, for example books, journal articles, cases, legislation and other sources.

Books and journal articles should be listed in alphabetical order according to author surname, then initials. Give the full citation of each, even if you have already done this in a footnote. Note that, following OSCOLA, the authors’ surnames comes before their initials in a bibliography (the reverse of in a footnote) and only the authors’ surnames and initials are shown, not their full forenames as may be shown in a footnote.

You will often refer to many primary sources of law as well, which should also be listed in the bibliography, after the books and journals:

A Table of Cases – with sub-headings for English cases, EU cases and cases from other jurisdictions. Cases should be listed alphabetically, the only

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Lord Radcliffe stated the position as follows:

[T]here is no precise formula that will determine the extent of detail called for when a director declares his interest or the nature of his interest. ... His declaration must make his colleagues ‘fully informed of the real state of things’ ... If it is material to their judgment that they should know not merely that he has an interest, but what it is and how far it goes, then he must see to it that they are informed.16

10 … Emphasis added.

being EU cases where the reference begins with the case reference number, either C- series, T- series or older cases without a letter prefix. These should be shown in order of reference number within year (the year that is embedded within the reference number). Eg: 123/63, 288/63, 12/67, C-321/89, T-277/90, C-24/92.

A Table of Legislation – with sub-headings for UK statutes, statutory instruments, EU legislation, legislation from other jurisdictions. List alphabetically.

If you have also used other secondary material beyond books and journals you can list this under the heading “Other sources” This part might contain details of the following:

Internet Material Newspaper reports Government publications Law Commission Reports Audio files

Each item that is included should be fully cited and listed alphabetically.

See below for an extract based on some of the sources that have been cited throughout this guide plus some fictional ones for demonstration:

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3.5.13 Typographical and spelling errors

You are responsible for the accuracy of the finished work so after it has been completed you should use the spell-checker to catch any typographical and spelling errors. You should also proofread it yourself (or have it read by someone else) as the spell checker is not likely to catch every error. Please check that your computer is not using a USA version of spell checker.

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Bibliography Books

Cottrell S, The Study Skills Handbook (2nd edn, Palgrave 2003) Estella A, The EU Principle of Subsidiarity and its Critique (OUP 2002) Finch E and Fafinski S, Legal Skills (OUP 2007) Huxley-Binns R Riley L and Turner C, Unlocking Legal Learning (2nd edn,

Hodder Education 2008) Strong S I, How to write law essays and exams (2nd edn, OUP 2006)

Journal Articles

Barber N, ‘The Limited Modesty of Subsidiarity’ (2005) 11(3) European Law Journal

Syrpis P, ‘In Defence of Subsidiarity’ (2004) 24(2) OJLS 326

Table of cases

Gillick v West Norfolk and Wisbech AHA [1986] 1 FLR 229Glass v United Kingdom [2004] 1 FLR 1019R v Church [1996] 1 QB 59R v Lowe [1973] QB 702, [1973] 1 ALL ER 805

Table of statutes

Children Act 1989Companies Act 2006Family Law Act 1996Protection from Harassment Act 1997

Other SourcesLaw Commission, Family Law: Children and Young Persons (Law Com No 158, 1996)www.bbc.co.ukwww.theguardian.co.uk

3.5.14 Word count

Your work should include a word count. The word count should exclude the index (if one is included in your work), the list of abbreviations (if included), footnotes and the bibliography/sources list.

3.5.15 Fastening your work

You should make sure that the sheets of your work are securely fastened.

For assignments that have a word limit of 2,000 words or less the work should be fastened by a corner staple. Plastic covers should not be submitted.

More substantial pieces of work should be bound.

For more examples of well-presented and well- referenced pieces of coursework, see Appendix A.

3.6 Referencing your answerThis is one of the most important sections in this guide. You should read it very carefully and ensure that you use the rules set out below. If you fail to do this the result could be severely detrimental to you. If your referencing is poorly presented you could lose marks. However, it may be your work is so poorly presented that it becomes plagiarism, for which more severe penalties may apply (see your Course Handbook). You may also be reported to a professional regulatory body like the Law Society who may not admit you to practice. This can all be avoided by careful referencing. It is important to understand why we ask you to reference your work. This will help you appreciate the rules in this area.

3.6.1 Why do I have to Reference?

Referencing you work means giving a clear indication of the source of any material that you have used in your work. At first giving lots of references seems tiresome and difficult, but over time you will get used to it and it becomes second nature to insert a footnote where it is relevant.

You should see referencing as a good thing. It is not copying or not thinking for yourself, it is taking a collection of ideas from different areas and putting them together to form a meaningful argument. We ask you to reference your work for a number of reasons. Stella Cottrell4 gives five reasons:

Acknowledging a source is a courtesy to the person whose ideas or words you have used or referred to.

By giving a reference to the source you make it clear to the reader that you are not trying to pretend that someone else’s work is your own. (You are not ‘plagiarising’ someone else’s work.)

Referring to the source helps the reader find the original texts or web pages to read themselves, should they wish.

If you need to check something later, the reference will help you find it more easily.

People will have more confidence in your assertions if they know where your information comes from. Thoroughness in referencing suggests that you will also have been thorough in checking your facts.

4 Stella Cottrell, The Study Skills Handbook (2nd edn, Palgrave 2003) 135.

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Here is a brief explanation of plagiarism and when you should give a reference.

3.6.2 When do I need to give a reference?

Some people say that referencing is “not copying out big chunks of books and passing them off as your own work.” This is far too simplistic. Referencing and plagiarism are interrelated. When you are a student, especially an undergraduate, practically nothing you write will be your own ideas, nor will your work be novel or original. Thousands of students before you have been asked to write about similar topics. Hundreds of academics have already been writing about these same topics for hundreds of years. Do not worry about this. We are not expecting you to dream up a new legal theory on the tort of negligence. Instead we ask you to read widely, understand the topic, apply your knowledge to the question, reach a logical conclusion and answer the question. This should all be done with credit to the works you have used. This can only be achieved by giving full, professional references. You will clearly see this in action if you take a look at your core text for any one of your law topics. These are basic textbooks that bring together all the concepts of law and ideas about a particular area. They are not saying anything new so you will see literally hundreds of references throughout the book. This is what your coursework should look like.

Thankfully not everything needs a reference! You can simply state obvious facts which are widely available in the public domain without the need to attribute them to a source. So for example you can write the following without giving a reference:

But you could not write the following without giving a reference:

In the first three examples you are stating common knowledge. You are not stealing any idea or concept from anyone. There would be no reference to give here as all three of these statements are widely known. However in the next three examples you are making statements that have an opinion element to them or are making a judgement about something. You need to give evidence of the original sources for

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David Cameron is currently the Prime Minister.

The British Parliament is based in London.

George Bush was the President of the United States when the attacks on the World Trade Centre occurred in 2001.

The Human Rights Act has been criticised as a seriously deformed piece of legislation by Gordon Brown’s opponents.

Opposition parties have suggested that part of their manifesto in the run up to a general election would be to repeal the Human Rights Act if they are voted into power. They want to replace it with a proper Bill of Rights for the UK.

George Bush was internationally criticised for going to war in Iraq. Tony Blair was also labelled in the same manner as Britain and America have a ‘special relationship’.

these statements. They are someone else’s ideas or statements. If you merely presented them as your own or failed to acknowledge where you got them from you would be stealing the idea. This is plagiarism.

Plagiarism is defined as using the work of others without acknowledging your source of information or inspiration. This includes: Using words more or less exactly as they have been used in articles, lectures,

TV, books, online or anywhere else Using other people’s ideas or theories without saying whose ideas they are Paraphrasing what you read or hear without saying where it comes from Even if you change the order of a few words in a sentence or add in one or two

words of your own the result is still plagiarism.5

So you should always give a reference in the following situations6:

Where you have used someone else’s work to gain inspiration Where you are writing about particular theories, arguments, viewpoints or

opinions Where you are giving specific information like the results of a research study or

statistical evidence Where you have chosen to include a direct quote in your work Where you are paraphrasing the work of another*

*Paraphrasing is a very useful skill and we actively encourage you to do it. It is where you read the work of another and then translate it into your own words, picking out the most important parts for you. The person’s central idea remains but you have put your own spin on it. You must always refer the reader to the original person’s work. You will get more marks for doing this than if you simply cut and paste in a quote about the other person’s work.

Thorough referencing is the only way to avoid plagiarism which the University views very seriously. For further guidance on the issue of plagiarism please refer to your Course Handbook, the University Student Handbook, and the Plagiarism Awareness Pack - you will have been provided with copies of all these documents at the start of your course, and copies will also be available in electronic form within your Course Area on Studentcentral.

3.6.3 How do I give references?

There are two main ways to give references (we also call it giving citations) in academic work. These are the Harvard system and the London Footnoting system (LFS). Most lawyers prefer the LFS. It tends to disrupt the reader less. At Brighton, for your law courses we ask you to use the LFS only. You will need to double check what other subjects require you to use. It is quite possible that your business subjects will require you to use Harvard. This is an unfortunate side-effect of studying on a multi subject degree. In this guide we introduce you to LFS, if you need to use Harvard then ask your business tutors for their guide. The systems both do the same job but in different ways. Both systems require you to attach a bibliography to your work, please look at section 4.5 for further details on your bibliography.

**Remember that in a law piece of coursework neither footnotes nor your bibliography count in the word limit! So make sure you untick the “Include

5 Stella Cottrell (n 4) 135. 6 ibid.

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Footnotes” box when you click word count and keep your bibliography as a separate word document. This means you have more words available for the actual answer.**

The London Footnoting system

Any referencing system has golden rules. This system is designed around the central concepts, ease of use and efficiency. Using LFS means that you give the full publication details once in the footnote area. You record the full publication details in the footnote on the first occasion you refer to a text. Subsequent footnote references to the same text can then be restricted to the author's name and the number of the footnote where the full details can be found. This is also called cross-citation. (see section 4.5.7) Look at the example below:

The first four footnotes in the example are all being cited for the first time. The full publication or citation details are given. However in footnote 5 and 6 Smith is being cited for the second and third time. On these occasions it is enough to simply refer the reader back to the original footnote. If the page number is different from theoriginal footnote then you must give the new page number.

Where you are using the same source again in the next footnote immediately following then you must use a different convention. This time you do not have to give any author details you can simply write “ibid.” this is an abbreviation of the word ibidem and means, ‘in the same place’. It is ONLY used to refer to a work that you have cited immediately above. This convention can also be used where you have just cross-cited. So now in the example above footnote 6 can simply say “ibid.” Look at next example below for use of ibid.

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The defendant who is charged with involuntary manslaughter has brought about the actus reus of murder but did not have the mens rea to be charged with murder. To be found guilty of constructive manslaughter a defendant must commit an unlawful and dangerous act which causes the death of the victim.2 An unlawful act will also become a dangerous one if all reasonable and sober people would recognise that the unlawful act subjected the victim to some harm, this does not need to be serious harm.3 There must also be an act, an omission would not suffice for this crime.4 The actus reus is the unlawful and dangerous act, not the killing itself. The unlawful act must be a crime and the defendant must have the mens rea of that unlawful act.5 The unlawful act must be identified and proved by the prosecution.6

C Elliot and F Quinn, Criminal Law (Pearson 2004) 79.2 JC Smith, Smith and Hogan Criminal Law (10th edn, Butterworths 2003) 378.3 R v Church [1996] 1 QB 59.4 R v Lowe [1973] QB 702, [1973] 1 ALL ER 805.5 Smith (n 2) 379-380.6 Smith (n 2) 379.

Here footnote 5 and 6 are referring the reader to Herring J, Family law. Footnote 5 is telling the reader that the source is exactly the same page as the previous footnote, but footnote 6 shows that the source is Herring but at page 395. The use of ibid. is only possible as both these references come directly after the Herring reference. If another source had come in between then ibid. could not be used. There would have to be a cross-citation back to footnote 4. This does seem confusing on first sight, but if you remember that ibid. can only ever mean the last footnote given you will get it right.

Using a word processor can make life easier. If you are using Word 98-XP you can find the tool on the tabs at the top of the screen, under “Insert”>”Reference”>”Footnote”. There is a warning here! Word will automatically move footnotes around as you shift your text about. So if you cut and paste a paragraph from page 6 to page 4, the footnotes will go with it. This means that where you have given cross citations or used ibid. you could have references taking the reader to the wrong place. The best way to stop this happening is to put enough in each footnote to remind yourself what you were referring to whilst you are still in typing up mode. Then once your work is finished you can just go through the footnotes and take out any extra information that was only there for your benefit.

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The intervention surely cannot be starker than at your child’s bedside, as they lay dying and the hospital refuse to give any more life saving treatment. They can ignore your wishes and substitute a decision of their own. Furthermore they will go on to claim that they have the ‘full force of law’ behind them as no judge has ever overturned a doctor’s decision2 This needs further investigation, first it is important to know exactly who has responsibility for what. The current legal position is such that doctors can only provide treatment/operate on a young child (who is not Gillick competent3) where it is in the child’s best interests and they have the consent of a person who holds parental responsibility for the child.4 If the parent refuses to consent, the doctor must refer the case to the court for the treatment to be declared lawful.5 Should the doctor refuse treatment proposed by a parent then the court is not able to force them to give that treatment.6 If a doctor wants to withhold treatment and the parent refused to consent to it, this would need to be sanctioned by a court.7

J Bridgeman, ‘Caring for Children with Severe Disabilities: Boundaried and Relational Rights’ (2005) The International Journal of Children’s Rights 99, 104. This is described by her as ‘extremely worrying’.2 Glass v United Kingdom [2004] 1 FLR 1019.3 Gillick v West Norfolk and Wisbech AHA [1986] 1 FLR 229.4 J Herring, Family Law (2nd edn, Pearson 2004) 393-394.5 ibid. 6 ibid 395.7 Glass (n 2) - Where a “do not resuscitate” order was placed on child’s notes without mother’s consent.

3.6.4 How do I cite different sources?

There are technical rules about law references/citations. Different sources are cited in different ways. It is important that you follow these conventions exactly. Failure to do so may result in negative feedback from your tutor and loss of marks.

Our rules are based upon a recognised UK standard, the Oxford Standard Citation of Legal Authorities (OSCOLA), which can be found at:

www.law.ox.ac.uk/published/OSCOLA_4th_edn.pdf

and we acknowledge this as the key source of our guidance. If the following rules do not cover a particular point then we advise you to consult and apply OSCOLA itself, which contains much more detail.

There is also a useful Quick Reference Guide at www.law.ox.ac.uk/published/OSCOLA_Quick_Reference_Guide_001.pdf What follows is based on OSCOLA.

England and Wales Cases

(a) Basic rules

When citing cases, best practice is to give the name of the case, a citation to the relevant law report, and where necessary identify the court. If your work is word-processed the case name should be in italics but the rest of the citation should be in non italicised font. If your work is handwritten (eg as in the case of an exam script) the case name should be underlined.

DPP v Jordan - this is the case name [1977] AC 699 - this is the citation to the law report

(HL) - this identifies the court that decided the case

DPP v Jordan [1977] AC 699 (HL) – word-processed script

DPP v Jordan [1977] AC 699 (HL) - handwritten script

If you are writing an assignment the case name will usually be in the body of the assignment, but the case citation should be in the footnote. The case name and the citation should also be cited in the table of cases. In an examination it is acceptable to just cite the case name (with date in round brackets if you know it).

If you want to cite more than one case in one footnote they should appear in date order, separated by semi-colons. Example:

1 Kenlin v Gardiner [1967] 2 QB 510 (DC); DPP v Jordon [1977] AC 699 (HL); R v Rushworth (1992) 95 Cr App Rep 252 (CA).

To avoid repetition in the text of your assignment, once a case name has been fully stated then the case name can be shortened. For example after first referring to Phelps v Hillingdon LBC you may later refer to it as the Phelps case and the

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http://www.law.ox.ac.uk/published/OSCOLA_Quick_Reference_Guide_001.pdf

http://www.law.ox.ac.uk/published/OSCOLA_4th_edn.pdf

accompanying footnote can also be restricted, although any new relevant passage you are now referring to should be pinpointed as explained below. Example:

14 Phelps v Hillingdon LBC [2001] 2 AC 619 (HL).

…19 Phelps (n 14) 628.

Where you cite a case as authority for a specific proposition you should also ‘pinpoint’ the relevant passage of the case report in the citation by identifying the relevant page or paragraph number. Examples:

Bunt v Tilley [2006] 3 All ER 336 (QB) [1]–[37] – here the relevant passages are in paras 1-37.R v Leeds County Court, ex p Morris [1990] QB 523 (QB) 530, 534 – here the relevant passages are to be found on pages 530 and 534.

(NB The principle of pinpointing also applies to other types of document such as books and articles).

If you are quoting from a case report and the name of the judge quoted is not mentioned in the body of the assignment, then this information must also appear in the footnote in round brackets at the end of the citation. Example:

Arscott v The Coal Authority [2005] Env LR 6 [27] (Laws LJ) – this makes clear that the quote is from Lord Justice Laws and is to be found at para 27 of the report.

To find out more about how to refer to judges’ names see OSCOLA pp 19-20.

(b) Brackets in case citations

Where the year is given in square brackets it is part of the citation of the case and the volume of the law report is using the date to identify itself. Examples:

DPP v Jordan [1977] AC 699 (HL) – This tells you that the case was decided by the House of Lords and is to be found at page 699 of the 1977 volume of the Appeal Cases.

Kenlin v Gardiner [1967] 2 QB 510 (DC) – This tells you that the case was decided by the Divisional Court and is to be found at page 510 in the second volume of the Queen’s Bench reports for 1967.

Where a date is in round brackets then the date merely identifies the date of the case and does not identify any volume. Example:

R v Rushworth (1992) 95 Cr App Rep 252 (CA) – This tells you that the case was decided by the Court of Appeal and is to be found at page 252 in volume 95 of the Criminal Appeal Reports. The date (1992) is given only as information.

The same rule of square and round brackets applies to journal articles:

Hilson, ‘Judicial Review Policies and the Fettering of Discretion’ [2002] PL 111.

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Treitel, ‘Damages for Breach of Warranty of Quality’ (1997) 113 LQR 188.

(c) Identifying the Court

It is now essential to indicate which court decided the case. Unless the case citation is unequivocal as to the court (as in neutral citation) then the relevant abbreviation to identify the court should be given (eg SC for Supreme Court, HL for House of Lords and CA for Court of Appeal). The divisions of the High Court are indicated by (QB), (Ch), and (F). The Commercial Court and Administrative Court within the Queen’s Bench Division are (Com Ct) and (Admin). Indicate the court in brackets after the first page of the report, and before the pinpoint if there is one. Example:

R v Jones (Margaret) [2005] QB 259 (CA) [17]

If the case is earlier than 1860 the court is not given unless you want to identify the court for a particular reason, in which case you spell it out in the text, for example ‘The Court of Common Pleas took the view that…’

It is bad practice to cite a case as an authority for a proposition without stating where the passage is to be found in the judgment. The exact page number should be given after the court acronym.

If you wish to identify the judge then add his or her name in brackets after the citation of the exact page.

O’Reilly v Mackman [1983] 2 AC 237 (HL) 283 (Lord Diplock)

(d) Neutral Citation

Since late 2001 judgments of the higher courts have a date/numerically-based reference that identifies them independently of any series of law reports. Therefore even unreported cases will have a neutral citation.

An unreported case is cited by its neutral citation only. When the neutral citation itself identifies the court, it is not necessary to re-identify the court by adding its abbreviation.

Since the same date all judgments now have numbered paragraphs. In order to cite a proposition or quote from such a judgment the relevant paragraph number(s) (instead of page number(s)) should be given in square brackets at the end of the citation (even if you are also citing to a report which will has a page number as part of its citation). Examples:

O’Brien v MGN Ltd [2001] EWCA Civ 1279 [30]-[35] Bunt v Tilley [2006] 3 All ER 336 (QB) [1]–[37]

(e) Which Report to Cite

You should always give a law report citation (in addition to a neutral citation) if one is available. This citation should be to the report you have actually read. Therefore if you read the case in the All England Reports you should cite the All England

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reference. If you have not read the case, or have only read for example the Westlaw summary, you should use the ‘best report’ as the reference. The reference should be to the ICLR Law Reports if the case has been reported there. Second preference is the Weekly Law Reports, followed by the All England Law Reports, followed by other specialised reports. If you use Westlaw to find out where the case is reported, the list Westlaw gives you is in best reference order. For example:

R v Jones (Margaret)

[2004] EWCA Crim 1981 – this is the neutral citation (not a report)

[2005] QB 259 – this is the best report[2004] 3 WLR 1362 – this is the second best report[2004] 4 All ER 955 – this is the third best report[2005] 1 Cr App R 12 – this is the fourth best report

You only need ONE nominated report. So the best way to cite this case in your work would be:

[2005] QB 259 (CA).

(f) Unreported Cases

Where the case has not been reported use the neutral citation. If the case has no neutral citation, then cite the name of the court and the date of the judgment. Example:

R v Marianishi ex p London Borough of Camden (CA, 13 April 1965).

(g) Punctuation

Only use punctuation in citations where its omission would cause information to merge. Do not put a full stop after the ‘v’ and type or write QB, HL and All ER rather than Q.B, H.L and All E.R.

Ex parte cases should be abbreviated to Ex p with no full stop after the ‘p’ and the letter ‘E’ capitalised if it appears at the beginning of the case name but not if it is the middle of the name. Example:

R v Panel on Take-overs and Mergers ex p Datafin plc [1987] QB 815 (CA).

Cases from Scotland and Northern Ireland

See OSCOLA.

UK Legislation

(a) Primary Legislation

The short title and the date of the Act should be cited. The Act is not put into italics nor is there a comma between the title of the Act and the date.

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When referring to sections or sub-sections of the Act, the words should be abbreviated (unless the word ‘section’ is the first word of the sentence, in which case it should be written out in full). No full stop is placed after the ‘s’ when it is abbreviated.

Examples:

Trustee Act 2000, s 3(1).Family Law Act 1996, ss 33-36.

A citation in a footnote is not required when citing legislation if all the information the reader needs about the source is provided in the text.

(b) Secondary Legislation

Statutory instruments are referred to by their name followed by the date and serial number.

Example:

Public Trustee (Fees) Order 1999, SI 1999/855

European Union Law – Cases and Legislation

(a) Cases heard by the ECJ and CFI

The official reports of the European Union are the European Court Reports, referred to as ECR.

The European Court of Justice cases are prefixed by C- followed by the case number, then immediately (i.e. without a comma) the name of the case in italics, the year and the ECR reference. The C- prefix should not be added to pre-1989 cases.

The Court of First Instance cases are prefixed by a T-followed by the case number, the name of the case in italics, the year and the ECR reference.

The ECR is divided into two. Part I contains the judgments of the ECJ, i.e. the C cases and Part II contains the judgments of the CFI, i.e. the T cases.

Example:

Case C-234/89 Delimitis v Henninger Brau [1991] ECR I-935.

When pinpointing use ‘para’ or ‘paras’ after a comma:

Case T-30/89 Hilti AG v Commission [1991] ECR II-1439, paras 10-12.

The main commercial series of law reports in English are the Common Market Law Reports referred to as CMLR. The volume of the CMLR and the page reference should be given. If the ECR are not available, then the CMLR should be cited or alternatively the official Law Reports of England and Wales or the All ER.

Example:

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Case T-219/99 British Airways plc v Commission (2004) 4 CMLR 1008.

(b) Commission Decisions

Commission decisions regarding EU competition law and mergers are treated as case law. They are reported in the L-series of the Official Journal of the European Community (referred to as the OJ) and the case number should be stated followed by the OJ reference. The name of the case should be in italics followed by the date as in the example below.

Example:

Georg Verkehrsorgani v Ferrovie dello Stato (Case COMP/37.685) Commission Decision 2004/33/EC [2004] OJ L11/17.

(c) European Union Legislation.

Primary Legislation

The first time a Treaty is referred to, it should be given its formal name with its informal name in brackets. This may be followed by the date of the Treaty. Thereafter, if the informal name is used, it should be in single inverted commas. Alternatively the abbreviated formal title may be given. In the main text of your document, the word ‘Article’ should be written out in full but it may be abbreviated to Art in a footnote.

Examples:

Treaty on European Union (Maastricht Treaty) ‘Maastricht Treaty’TFEU Art 39

Secondary Legislation

Secondary legislation, e.g. Regulations, Directives and Decisions are published in the L-series of the Official Journal of the European Union (known as the OJ). The OJ is the official gazette of the EU and is published daily. The L series is for EU legislation and is followed by the page reference of the OJ.

The first time these types of secondary legislation are cited, they should be given their full title, thereafter an abbreviated form may be given.

Example of full title:

Commission Regulation 2790/1999 of 22 December 1999 onthe application of Article 81(3) of the Treaty to categories ofvertical agreements and concerted practices [1999] OJ L336/21

Example of short title:

Commission Regulation 2790/99 (which can be abbreviated in a footnote to‘Reg. 2790/99’).

European Court of Human Rights - Cases

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When citing decisions of the European Court of Human Rights, the name of the case should be in italics and you should give the relevant reference either in the official reports (cited as ECHR or up to 1996 as Series A) or the European Human Rights Reports reference (cited as EHHR).

Examples:Osman v UK ECHR 1998 – V111 3124.Dudgeon v UK Series A No 45 (1981) 4 EHRR 149.

Books

(a) Authored books

Books should be cited as follows, by way of footnote, with no punctuation used:

Author, Title (edition, publisher year) page.

Examples:

Murphy, Street on Torts (12th edn, OUP 2007) 218.Rogers, Winfield and Jolowicz on Tort (18th edn, Sweet & Maxwell 2010) 176-189.

The first edition of book does not require an edition number to be stated.

Example:

Wright, Tort Law and Human Rights (Hart 2001).

Lists of books should be separated by a semi-colon and end with a full stop.

(b) Edited books

Where a book is edited rather than authored the same rules apply except that ‘(ed)’ or ‘(eds)’ is inserted after the name of the editor.

Example:

Birks (ed), Privacy and Loyalty (Clarendon Press 1997).

(c) Contributions in edited books

To refer to a contribution in an edited book:

Lord Bingham of Cornhill, ‘Tort and Human Rights’ in Cane and Stapleton (eds) The Law of Obligations, Essays in Celebration of John Fleming (Clarendon Press 1988) 2

Articles

When referencing an article the author’s name should be given first followed by a comma and then the title of the article, which should be in single quotation marks but NOT italicised or underlined. The year of publication should then be given (in brackets), followed if necessary by the volume number and then followed by the full name of the periodical, or (as is more likely) the abbreviated version if it is listed in

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full in the appendix/bibliography or a list or abbreviations. The first page number of the article is then given.

The shape of the brackets round the date depends on whether the date is essential to trace the publication. If the date IS essential the brackets should be square. If the date is merely additional information for the convenience of the reader (e.g. because the publication is bound in a volume which is separately numbered) then round brackets should be used.

No punctuation is used except a comma after the author’s name and, when pinpointing, between the number of the first page of the article and the number of the page(s) which are the source of the information

Examples:

Treitel, ‘Damages in Respect of Third Party Loss’ (1998) 114 LQR 527.

Palmer and Yates, ‘The Future of the Unfair Contract Terms Act 1977’ [1981] CLJ 108, 114.

Official government publications

This will vary according to the nature of the publication.

(a) Reports of Parliamentary Select Committees

Refer to by name and number and not italicised or underlined. Example:

Select Committee on Delegated Powers and Deregulation 3rd report [Session 1998-99] HL Paper (1998-99) No 12.

(b) Reports of Parliamentary Debates

There are now 3 series of Hansard reports of parliamentary debates: HC, HL and HC Public Bill (previously standing) committees. Examples of how to refer to these:

HC Deb 4 July 1996, vol 280, col 505WHL Deb 21 July 2005, vol 673, col WA 261Health Bill Deb 30 January 2007, cols 12–15

‘W’ indicates a written answer in the HC, ‘WA’ a written answer in the HL.

(c) Law Commission

These reports should be cited by name and Commission number, with the year of publication. Example:

Law Commission, Marital Property Agreements (Law Com No 198, 2011) paras 4.16-4.18.

Newspapers

Author, ‘Article Title’ Newspaper (city of publication, date) page

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Fennell, ‘Practising what he teaches: Sir Basil Markesinis moves easily between the campus, on both sides of the Atlantic, and business’ The Times (Law Supplement) (London, 5 April 2005) 5

Citing work that you found in a third party document

Sometimes you will read a journal article or a text book and it will refer you to a piece of work you are interested in or might be relevant to your coursework. Sometimes you will read a quote given in a text book and wish to use it yourself in your own coursework. If these things happen the first thing to do is try to get hold of the original. You must always read the original text where possible. This is because your text book author could have put a different spin on it or set it in a different context. When you read the original you may understand more fully what the first writer actually meant. Then you can just cite the original piece as normal.

However if it is impossible to get hold of the original piece and you still feel you would like to use the work and give credit to the original author then you can cite it in your footnote in the following way:

D Archard, Children Family and The State (Ashgate 2003) cited in J Herring, Family Law (4th edn, Pearson Longman 2008) 442.

Herring is the book that you read, D Archard’s book is the work you are using but you have not been able to read this in its original form. This is shown by the words ‘cited in’.

**WARNING – WARNING – WARNING – WARNING – WARNING**

There is no excuse for doing this with cases or statutes. You can always get hold of these and therefore if you are stating a legal principle given by a case you must cite the case not your textbook. You will be marked down if citations are incorrect.. Electronic sources

The internet is now the research tool of choice for many students. This is respected by the university and we actively encourage you to use this resource. However you must follow the proper conventions when using the material you find. Tutors often use the plagiarism software “Turnitin”, by submitting a piece of student coursework into the program it can detect any passage that has been cut and pasted into work from the internet. This is outright plagiarism and will be dealt with as mentioned above.

If you are using websites for your coursework you must cite the source as follows:

Author (if identifiable), title, type of document (if relevant), date of issue (if available), web address and date of access. Examples:

S Chakrabarti, ‘The End of Innocence’ http://www.liberty-human-rights.org.uk/resources/articles accessed 20 February 2011.

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http://www.liberty-human-rights.org.uk/resources/articles

http://www.liberty-human-rights.org.uk/resources/articles

Günter Verheugen, ‘Future of EU Shipbuilding’ (Speech at New Year’s Reception of the Committee of EU-Shipbuilders’ Associations, Speech 05/65 Europa website 2005) http://europa.eu.int accessed 15 April 2011.

Think carefully before you use websites in your work. Some websites can be unreliable and you must make sure that your research trail can be traced by the examiner. If you are in any doubt that the website might disappear over time then print a copy of the relevant part of the site and file it in your course books just in case. Never use websites that have no authority behind them, in law or otherwise. Your work should always retain integrity. Check that you have not used websites which may contain unsubstantiated material eg Wikipedia. If you source a publication online which is also available in hard copy, cite the hard copy version. There is no need to cite an electronic source for such a publication.

**WARNING – WARNING – WARNING – WARNING – WARNING**

You will be using online legal databases like Lexis and Westlaw to find many of your sources such as cases legislation and journal articles. For referencing purposes these are treated just like paper sources in an ordinary library. Thus it is NOT acceptable to do the following:

1Smith v Jones [2007] accessed on www.westlaw.co.uk 10 May 2011.

You will be penalised for doing this. You must give the full reference to the source just as if you had looked up the paper copy. The online database used is not mentioned at all. For more examples of well-presented and well- referenced pieces of coursework, see Appendix A.

3.7 Checking your answer

As already mentioned, it is always advisable to read through the first draft of your report very critically. It is also essential to double-check the final draft.

In both cases a check list is useful –

Have I answered the particular question that was set? Have I divided the questions into separate, smaller questions and answered

these? Have I covered all the main aspects? Have I covered these in enough depth? Is the content accurate? Have I arranged the material logically? Does the report move smoothly from one section to the next, from paragraph to

paragraph? Do example, argument and/or legal authority support each point made? Have I acknowledged all sources and references? Have I distinguished clearly between my own ideas and those of others? Is the coursework the right length – both according to the word limit and for its

own purpose? Have I written plainly and simply? Have I read it aloud to sort out clumsy and muddled phrasing?

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http://www.westlaw.co.uk/

http://europa.eu.int/

Are the grammar, punctuation and spelling accurate? Have I presented a convincing case, which I could justify in a discussion?

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4. Law examinations

4.1 Preparing for the examinationsWhichever course you are enrolled on, you will be required to sit a significant number of law examinations. Here are some tips in terms of preparing for those examinations:

Revision should be revision Make sure that you pace yourself through the academic year and keep up with each module as it progress through the syllabus. Therefore, your ‘revision’ at the end of the year should be genuine ‘revision’, and not learning material for the first time.

Do your thinking before the examination There is not much time in an examination to engage in deep thinking about contentious legal issues. Therefore, it is sensible for you to have thought about and have a view on all the controversial legal issues in a subject area before you enter the examination room.

Examiner style and question spotting You can generally gain quite a lot from looking at and working through past papers.

Selective revision Most students selectively revise. However, over-reliance on selective revision can be risky.

Be an active rather than passive reviser Information is much more likely to ‘stick’ if you learn actively e.g. make revision cards, practise exam questions, join study groups, discuss issues with others etc. Staring at a book and reading notes does not work for most people.

Practise, practise, and practise Answering questions under timed conditions is a skill and there is no substitute for lots of practice.

4.2 Statute booksFor many of the law examinations you sit you will be permitted to take unannotated statutory material into the examination room with you. Such material can be very useful because, whilst it is advisable that you are familiar with the material, you don’t have to learn it rote fashion in advance of the examination. Therefore, you should take care to check whether it is possible to take unannotated statutory material into the law examinations which you are sitting each year.

NB “Unannotated” means there should be NO WRITING of any sort in the book. Highlighting is permissible as are BLANK coloured post-it notes. No student should use highlighter pens or post-it notes in a way which could be interpreted as giving them an unfair advantage e.g. underlining individual letters to make words. If you are unclear as to the rules check with your lecturer in advance i.e. BEFORE you go into the examination room. Taking unauthorised material into an examination is academic misconduct and will always be treated very seriously. In the examination room if it is reasonable of the invigilator to assume that this rule has been broken then the material will be confiscated, no replacement will be provided.

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When students are permitted to take unannotated statutory material into their examination, many choose, for convenience, to purchase and use a statute book. For example, Blackstone’s Statutes on Contract, Tort and Restitution is a compendium of the most relevant statutes on those subject areas. However, if you do wish to use a statute book it is a good idea to purchase it early in the academic year, as these become much more difficult to purchase as the academic year progresses, and often impossible immediately before the examinations.

4.3 The examinationIn the examination itself, you will invariably asked to answer essay-style and/or problem-style questions, and therefore much of the advice in the previous section of this booklet, for example, on structuring answers, will apply. However, the following is also advised:

Pacing To maximise your marks, it is absolutely essential that you answer the correct number of questions on the paper and that you devote roughly an equivalent amount of time to each question. It is well-known that it is easier to accrue the first 30% marks of a question than it is to obtain the last 30% marks.

Spend 5 minutes planning your answer Spending a short time sketching a plan of your answer before you start writing will reap benefits. It will usually result in your answer being better-structured and if you run out of time it will give the marker a clear indication of where your answer would have ended up, for which credit may be given.

4.4 Frequently asked questionsHow much should I write? This will depend on a number of factors, not least the size of your handwriting! It is also important to bear in mind that quantity does not equate with quality, and that two pages of well-honed, concise and relevant argument will attract a significantly higher mark than ten pages of marginally relevant material. However, in a 3 hour examination where you a required to answer four questions, you should be aiming to write, on average, 3-4 sides of an A4 answer booklet per question.

How many cases should I cite? This will depend on the question. However, on average, a good answer will refer to 8-10 cases.

Do I have to remember the names and dates of cases? If you can remember the names and dates of cases correctly then this will give your answer a highly professional edge. However, if you cannot remember the name of a relevant case then at least give enough detail of the case to make it clear to the examiner which case you are referring to. For example, if you referred to ‘the snail and bottle of ginger beer case’, in a Law of Torts examination the examiner would know that you were referring to the Donoghue v Stevenson (1932) case.

How much should I write about each case? Again, this will depend on the question. Sometimes, it may be acceptable to give the name (or identifying details) of a case as the authority for a principle. However, if a case or a small number of cases is the focus of a question, or part of a question, it may be necessary to discuss the case(s) in much more detail.

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Do I have to write out the facts of a case? You should consider whether the facts of the case are necessary and/or will add anything to your answer. If you are citing a case simply as an authority for a legal principle then it is unlikely that the facts will add anything to your answer. If, on the other hand, in answering a problem question, you want to distinguish a case, an explanation of the facts may be very important.

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Appendix A

Sample pieces of law courseworkThe following piece coursework – an essay assignment and problem question assignment, submitted by undergraduate law students Fran Gravestock (essay) and Nigel Urban (problem) are examples of well-presented and well-referenced pieces of work. They are reproduced with Fran‘s and Nigel’s permission. The referencing in these pieces has been changed from the original where appropriate to reflect the fourth edition of OSCOLA.

These pieces of work are included as examples of presentation and referencing only. Do not assume that they represent the current law. In particular, note that the problem question refers to the “EC”, whereas after the Treaty of Lisbon references should be to the “EU”.

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Essay Assignment - Family Law

In Hyman v Hyman [1929] AC 601. Lord Halisham stated that ‘…parties cannot

validly make an agreement either i) not to invoke the jurisdiction of the courts,

or ii) to control the powers of the court when its jurisdiction is invoked’

With respect to pre-nuptial agreements, review the extent to which this

proposition has been adhered to by the courts, and critically examine the

arguments in favour of its abandonment.

Lady Hale observed; 'The object of an ante-nuptial agreement is to deny the

economically weaker spouse the provision to which she would otherwise be entitled.'7

With regard to Hales statement there has been ample debate regarding pre-nuptial

agreements; they are among the most debated topics in family law and form part of

the Law Commission’s tenth programme of law reform8. A pre-nuptial agreement is

an arrangement, on contemplation of marriage, which deals with the financial and

property arrangements a couple will make should their marriage come to an end9.

They are not binding but are taken into account by the divorce court in ancillary relief

proceedings under the Matrimonial Causes Act 1973, either as a relevant

circumstance under s.25 (1) or as a matter of conduct, which it would be inequitable

to disregard, under s.25 (2)(g).

The weight given to an agreement will depend on the facts of the particular case but

they carry little weight in a courts consideration because it is the court which decides

how property should be distributed on divorce and the parties cannot rob the court of

its jurisdiction10. The objectives in ancillary relief cases are non-discrimination and

fairness and so in the courts wide discretion they may decide not to uphold the terms

7 Radmacher v Granatino [2010] UKSC 42 (SC) [137].8Law Commission, Tenth Programme of Law Reform (Law Com No 311, 2007).9 K Standley, Family Law (Seventh edn, Palgrave Macmillan 2010) 187.4 Herring, Family Law (Fourth Edn Pearson Education Limited 2009) 255.5 K Standley (n 3) 188.6 [1929] AC 60 (HL).

10

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of the agreement and make a new order all together11, i.e. it may be unfair and

discriminatory to uphold an agreement which does not make provision for a child of

the family. Pre-nuptial agreements were, until relatively recently regarded with

significant suspicion within the legal system, as in Hyman v Hyman12, however

recently there have been a number of high profile cases13 where the outcome of

ancillary relief has been heavily influenced by a pre-nuptial agreement14. The use of

these agreements in England has become more widespread over the last twenty years

and so it may be useful to review the way in which the law relating to pre-nuptial

agreements has developed.

At one time there was considerable judicial reluctance to uphold agreements due to

reasons of public policy15. In 1988 the government mooted the possibility of

legislative reform to make agreements binding but these proposals were not taken any

further16. In 1995, F v F (Ancillary Relief: Substantial Assets)17 Thorpe J refused to

attach any significant weight to the German contracts, even though they could be

strictly enforced against the wife in Germany. Thorpe J seemed to suggest that pre-

nuptial agreements must be of very limited significance18. Similarly, in N v N

(Foreign Divorce: Financial Relief19) in 1997 Mr Justice Cazalet said that a pre-

nuptial agreement that would be binding in Sweden was ‘no more than a material

consideration in this court under section 25 Matrimonial Causes Act 1973’20. Also, in

1997 in S v S (Divorce: Staying Proceedings)21 Wilson J sounded a cautionary note

that no significant weight will be afforded to a pre-nuptial agreement in any

circumstances. However, he goes on to say that the circumstances surrounding the

prenuptial agreement may prove influential or even crucial22.

11

12

13 Radmacher (n 1).14 Law Commission, Marital Property Agreements A Consultation Paper (Law Com No 198, 2011).15 K Standley (n 3) 188.16 Home office Supporting Families (1998) PL CNO.17 [1995] 2 FLR 45 [66] (F).18 ibid.19 [1997] 1 FCR 573.20 ibid [586] – [587].21 [1997] 2 FLR 100 [102].22 ibid 103.

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The courts continued to struggle with the level of importance to attach to prenuptial

agreements and the key constraint was summarised in X v. Y (Y and Z Intervening23)

2002 where Munby, J stated that pre-nuptial agreements are against public policy and

void. Another case which shows the courts approach is M v M (Pre-nuptial

Agreement24) where Connell J said the courts duty was to look at the agreement and

decide what weight to be given to it in the particular circumstances. He stated that the

pre-nuptial agreement guided him towards a more modest award to the wife than he

might otherwise have made25. It is clear that from the mid-1990s there has been a

gradual but clear trend in the case law towards pre-nuptial agreements being

considered as one of the circumstances of the case under s.25 and giving them greater

influence if it is fair to do so26. A major factor that influenced the change in the courts

attitude is the decision of the House of Lords in White v White27in 2001, whereby the

courts developed a principle that once the parties needs are met, their assets are

shared. This is known as the ‘yard stick of equality’28. In July 2003 the Family Law

Committee of the Law Society published a report29, it recommended that s.2530 should

have a series of guidelines for the sharing of assets incorporated into it and that pre-

nuptial agreements should not be given binding status.

However, the watershed was in 2003 with the decision in K v K (Ancillary Relief:

Pre-nuptial Agreement 31 as this was the first time in English law that a pre-nuptial

agreement in part had been upheld as ‘conduct it would be inequitable to disregard’.

Smith QC refused to follow the maintenance aspects of the agreement as he thought

the figures were too low. However, if the figures in the agreement are in the range of

awards that are considered reasonable the judge may make an order along the line of

the agreement32. It was held that the wife understood the agreement, had not been

under pressure to sign it and that there had been no unforeseen circumstances that

would make it unfair to hold her to it. These are the questions the court laid out as a

checklist for future cases when considering whether a pre-nuptial agreement would be

influential. The approach of the courts in subsequent cases was to follow this 23 [2002] 1 FLR508.24 [2002] 1 FLR 654.25 K Standley (n 3) 189.26 Foster, ‘Marital Agreements: Latest Developments’ (2010) 2 PCB 128, 129.27 [2001] 1 AC 596 (HL).28 ibid 605.29 ‘Financial Provision on Divorce: Clarity and Fairness- Proposals for Reform’ 2003.30 Matrimonial Cause Act 1973.31 [2003] 1 FLR 120 at 132 (QB).32 ibid.

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https://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&&context=12&crumb-action=replace&docguid=IE0EA4D702A0C11DF9EF3A80520A2C51D

guidance and assess pre-nuptial agreements as one of the circumstances of the case,

subject to the courts overall discretion regarding s.2533. Ella v Ella34 in 2007 also

followed this change of approach. Therefore, moving away from the position in

Hyman v Hyman35. It also came out of this case that an agreement will not be taken

into account unless the parties had been properly advised and there was appropriate

disclosure36. In July 2007 a pre-nuptial agreement bill was introduced into the House

of Commons37as a private members bill to provide for the enforceability of pre-nuptial

agreements but this was not taken forward. Thus showing there was still some

suspicion towards them at this time.

The next major development was the 2008 case of Crossley v Crossley38. The

marriage was short and childless and there was substantial wealth on both sides. A

pre-nuptial agreement was executed. Thorpe L.J described the agreement as “a factor

of magnetic importance”39. The courts thus moved from regarding pre-nuptial

agreements as merely a minor factor in the section 25 exercise to giving them

considerable weight in some cases40. However, due to the facts of the case; both very

wealthy, had no children and had been fully advised, had any of these circumstances

been different then it is unlikely that the same approach would be appropriate41. S v S

(Ancillary Relief)42was held by Eleanor King J to be one of the types of cases

identified in Crossley43where the agreement was of magnetic importance.

The final milestone before the Supreme Court’s decision in Radmacher is the Privy

Councils decision in MacLeod v MacLeod44. Although the decisions of the Privy

Council are not binding on English courts they are treated as highly persuasive

authority. The case was dealing with post-nuptial agreements but Baroness Hale made

obiter remarks about pre-nuptial agreements, stressing that it was not reversing the

long standing principle that pre-nuptial agreements are contrary to public policy and

are thus not binding contractually45. It was also stated that it was more appropriate for 33 Foster (n 19). 34 [2007] EWCA Civ 99.35 Hyman (n 6).36 K Standley (n 3) 190.37 By Quentin Davies MP.38 [2007] EWCA Civ 1491.39 ibid 15.40 Law Com No 198 (n 8) 45.41 Herring (n 4) 256.42 [2008] EWHC 2038 (Fam), [2009] 1 FLR 254.43 Crossley (n 32).44 [2008] UKPC 64.45 ibid 31.

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parliament, rather than the courts, to decide if the time had come to make pre-nuptial

agreements binding in England and Wales46. The reaction to this judgment was

whether a pre-nuptial agreement could in fact be held as valid by conversion after

marriage to a post-nuptial agreement, as in this case they held post-nuptial agreements

were not void47.

The supreme courts restatement of the law in Radmacher v Granatino48arguably takes

the law as far towards an enforceable status for pre-nuptial agreements as is possible

within the statutory framework, and Scherpe49 observes that it makes a clear departure

from other case law. In the first instance decision50 of the high court Baron, J was

clear that a pre-nuptial agreement could not be enforced contractually and that it was

tainted because of the circumstances in which it had been signed i.e. the husband

received no independent legal advice, there were now children and the agreement

deprived him of all his claims. Therefore his claims were addressed on a classic needs

based approach51. Ms Radmacher appealed to the Court of Appeal on the grounds that

the High court had not given the pre-nuptial agreement enough weight. Development

of the law relating to pre-nuptial agreements was discussed at some length with

particular emphasis that England is becoming increasingly isolated from other

European jurisdictions52 where pre-nuptial agreements are binding53. Also, that it was

becoming increasingly unrealistic to not recognise the rights of adults to enter into

agreements governing their future financial relationships ‘in an age when marriage is

not generally regarded as a sacrament and divorce is a statistical commonplace’,54 thus

highlighting the inconsistencies with MacLeod55. The Court of Appeal held that Baron

J. had not given decisive weight to the agreement under the s.25 exercise, given that

the parties were French and German and so the agreement would have been

enforceable in both jurisdictions. The Court of Appeal reduced the husband’s award

so that it reflected his needs in his role as a father, rather than a husband56.

46 Macleod v Macleod [2008] EWHC 2038. 47 Foster (n.20) at p.132.48 Radmacher v Granatino (n 1).49 Scherpe, ‘Pre -nups, private autonomy and paternalism’ (2010) 69(1) CLJ 35, 35.50 [2008] EWHC 1532 (Fam), [2009] 1 FLR.51 Foster (n 19) 133.52 Scherpe, ‘Foreign marital agreements: the approach of the English courts’ (2010) 3 PCB 190-195.53 As did Sir Mark Potter P in Charman v Charman (No 4) [2007] EWCA Civ 503, [2007] 1 FLR 1246.54 Radmacher [2009] EWCA Civ 649; [2009] 2 F.C.R. 645 at [29].55 MacLeod (n 38).56 ibid.

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In March 2010, nine judges of the Supreme Court heard the husbands appeal57. By a

majority of eight to one (Lady Hale dissenting) the Supreme Court dismissed the

appeal and thus upheld the judgment of the Court of Appeal. Lord Philips gave the

leading judgment reiterating the approach in McFarlane v McFarlane58that the three

strands to an ancillary relief procedure are needs, compensation and sharing. The

Supreme Court has left us with a three step approach59 . Firstly, [68]-[73] of the

judgment sets out the circumstances that could detract from the weight of the

agreement i.e. sound legal advice is desirable and that both parties intend the

agreement to take effect. Lord Philips stated that “in future it will be natural to infer

that parties who enter into Ante-Nuptial Agreement to which English law is likely to

be applied intend that effect should be given to it60”. However this can be seen as

leaving those who have entered into agreements in the past in limbo61. Lord Philips

did not seem to give much weight to the foreign element, which came as a surprise as

prior to this judgment it was one of the elements that attracted most criticism62. The

Supreme Court thought that the only relevance was that if the parties signed up to an

agreement that was binding in Germany then this surely showed strong evidence that

the parties intended it to be effective. The court also recognised the fact that it only

becomes difficult to decide what weight to give to a pre-nuptial agreement where the

provision of that agreement conflicts with what the court otherwise would have made

and assessed as being fair. The test to be applied to both pre and post- marital

agreements is; “The court should give effect to a Nuptial Agreement that is freely

entered into by each party with a full appreciation of its implications unless in the

circumstances prevailing it would not be fair to hold the parties to their agreement.63”

The court felt that the longer the marriage the more fairness would come into play.

They felt the order of the Court of Appeal had met the husband’s needs and that the

pre-nuptial agreement meant that in effect he had contracted out of sharing64.

Lady Hale differed from the majority on a number of points, and it must be noted that

she was not only the only family specialist on the panel but also the only woman65. 57 Radmacher (n 1).58 [2006] 2 AC 618.59 Jenkins, ‘Are pre- and post-marital agreements finally worth the paper they are written on’ (2011) 1 PCB, 30, 31.60 Radmacher (n 1) [70].61 Jenkins (n 53) 35.62 Jenkins (n 53) 32.63Radmacher (n 1) [75].64 Jenkins (n 53) 32.65 ibid.

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Both her opening and closing judgments focused on marriage. Central to her concerns

was that, by giving so much autonomy to individuals to contract freely then the result

could undermine the institution of marriage66. Lady Hale did make clear that the law

regarding pre-nuptial agreements is “in a mess” and is “ripe for systematic review and

reform”67, specifically saying that the Law Commission would be best at reviewing

the law and making recommendations to parliament as it is not the Supreme Courts

Statutorily ordered job to review the law with a view to recommending change68. Hale

went on to identify the things which she strongly disagreed with69, namely that pre-

nuptial agreements are legally enforceable contracts and also with the test Lord

Philips set out as she felt this amounted to a presumption.

It is clear from the Supreme Court’s judgment of the majority that they are in favour

of abandoning the proposition by Lord Hailsham in Hyman70 namely to bring the

English jurisdiction in line with those of Europe and the need to grant autonomy to

individuals to contract as they see fit, subject to safeguards71. Standley72 believes it

could encourage more people to get married so the courts will not deal with their

property in ancillary relief proceedings on divorce. Lady hales dissenting judgment

highlights the many conflicting arguments for and against pre-nuptial agreements and

the possible discriminatory effect that upholding them may have73. Miller74 observes

that pre-nuptial agreements are not without their problems. One problem being that of

undue pressure and so protection is needed against the possible abuse of a dominant

financial position of one of the parties when the agreements are concluded. Therefore,

it should be the courts in their discretionary exercise that uphold fairness. Standley75

notes that there may be problems of non-disclosure, duress, mistake and inequality of

bargaining power if more weight is given to pre-nuptial agreements. There is therefore

much for the law commission to consider and Morris76 observes how they have set out

66 Radmacher (n1) [132].67 ibid 133.68 Barton, ‘In Stoke-On-Trent, My Lord, They Speak of Little Else: Radmacher v Granatino’ (2011) 41(Jan) Fam Law 67, 72.69 Meehan, ‘Radmacher in the Supreme Court: What does it all mean?’ (2010) 40(Dec) Fam Law 1284, 1289.70 Hyman (n 6).71 Meehan (n 63) 9.72 Standley (n 3) 205.73 ibid.74 Miller, ‘Pre nuptial agreements in English law’ (2003) 6 PCB 415, 426.75 Standley (n 3) 205.76 Morris, ‘Seeking certainty’ (2011) 161 NLJ 99, 100.

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a number of possible variations upon the current law77 i.e. they have provisionally

proposed that in future a pre-nuptial agreement shall not be void, or contrary to public

policy, by virtue of the fact that it provides for the financial consequences of a future

separation.

The Supreme Court case confirms that the law has moved on from the 19 th century

cases, however it is clear that the Supreme Court was in no doubt that a pre-nuptial

agreement could not oust the jurisdiction of the court78 . The case law since 1995 has

gradually moved away from the approach in Hyman in being less rigid with regard

pre-nuptial agreements, however, it seems that in the absence of reform, as the Law

commission is waiting for response to its consultation paper, the rule in Hyman v

Hyman79cannot be ignored.

Word count: 2,498

Bibliography:

Texts:

Herring Family Law (Fourth edn, Pearson Education Limited 2009)

Standley, K Family Law (Seventh edn, Palgrave Macmillan 2010)

Journals:77 Law Com no 198 (n 8) 136.78 Radmacher (n1) [7].79 Hyman (n 6).

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Barton, ‘In Stoke-On-Trent, My Lord, They Speak of Little Else: Radmacher v

Granatino’ (2011) 41(Jan) Fam Law 67-73

Foster, ‘Marital Agreements: Latest Developments’ (2010) 2 PCB 128-135

Jenkins, ‘Are pre- and post-marital agreements finally worth the paper they are

written on’ (2011) 1 PCB 30-37

Meehan, ‘Radmacher in the Supreme Court: What does it all mean?’ (2010) 40(Dec)

Fam Law 1284-1293

Miller, ‘Pre nuptial agreements in English law’ (2003) 6 PCB 415-426

Morris, ‘Seeking certainty’ (2011) 161 NLJ

Scherpe, ‘Foreign marital agreements: the approach of the English courts’ (2010)

PCB 190-195.

Scherpe, ‘Pre -nups, private autonomy and paternalism’ (2010) 6991) CLJ 35-37.

Cases:

Charman v Charman (No 4) [2007] EWCA Civ 503, [2007] 1 FLR 1246Crossley v Crossley [2007] EWCA Civ 1491Ella v Ella [2007] EWCA Civ 99F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45Hyman v Hyman [1929] AC 601.K v K (Ancillary Relief: Pre-nuptial Agreement) [2003] 1 FLR 120M v M (Pre-nuptial Agreement) [2002] 1 FLR 654MacLeod v MacLeod [2008] UKPC 64N v N (Foreign Divorce: Financial Relief) [1997] 1 FLR 900Radmacher v Granatino [2008] EWHC 1532 (Fam) [2009] EWCA Civ 649 [2010]

UKSC 42

(S v S (Ancillary Relief) [2008] EWHC 2038 (Fam) [2009] 1 FLR 254

S v S (Divorce: Staying Proceedings) [1997] 2 F.L.R. 100White v White [2001] 1 AC 596 (HL)X v. Y (Y and Z Intervening) [2002] 1 FLR508

Statutes:

Matrimonial Causes Act 1973

Other Sources:

Family Law Committee ‘Financial Provision on Divorce: Clarity and Fairness-

Proposals for Reform’ 2003.

Home office, Supporting Families (1998) PL CNO.

Law Commission, Marital Property Agreements A Consultation Paper (Law Com No

198, 2011).

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Law Commission, Tenth Programme of Law Reform (Law Com No 311, 2007)

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Problem Question Assignment – European Union Law

Fictional Council Directive 04/322 required all contracts for the construction of public works over 2 million euros to be advertised throughout the European Community by the business concerned, with compensation payable in the event of non-compliance. The deadline for implementation of the directive was 1st May 2005 but this date has passed without any implementing measure being enacted by the United Kingdom. A Government spokesman has explained that this is due to lack of Parliamentary time to debate certain detailed administrative measures related to the directive.

Shoreside plc, which is licensed under the Marina and Ports Act 1992 to manage and develop the Shoreside port, advertised throughout the United Kingdom in September 2005 for tenders to build two further wharfs, worth over 10 million euros and is presently negotiating a contract with a Scottish company, McNair plc.

McNamee plc, a competitor based in the Republic of Ireland, has only just heard of the advertisement, and has been told that it is too late for Shoreside plc to consider its bid.

Advise McNamee plc

(a) whether it may take action against Shoreside plc for its failure to comply with Directive 04/322 (60 marks)

and

(b) whether there are means under Community law by which the United Kingdom might be encouraged or compelled to implement the Directive.

(40 marks)

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(a) Action against Shoreside plc

IntroductionEC directives are pieces of secondary legislation issued in accordance with

EC Treaty (Treaty of Rome, as amended) Article 249. They are addressed to

Member States for transposition into domestic law, using a form and method

of their choice provided the result specified is achieved.1

Had Council Directive 04/322 been transposed into UK domestic law then

McNamee, being a legal entity in an EC Member State, would have the direct

benefit of two rights: a) to be informed, through advertising in their own

country, of public works contracts worth over €2,000,000 and b) to receive

compensation if their rights in a) were violated. McNamee would like to assert

those rights in court, either obtaining an order for Shoreside to consider their

offer or having damages assessed against Shoreside for loss of opportunity.

Even though the directive has not been transposed McNamee can still assert

their legal rights against Shoreside, by using the principles of direct or indirect

effect. They do not have any action against Shoreside based on state liability

as Shoreside is not responsible for implementing directives.2

Direct Effect This principle stems not from the EC Treaty but from the jurisprudence of the

ECJ. Van Gend & Loos stated that community law is ‘…producing direct

effects and creating individual rights which national courts must protect.’3

Van Gend & Loos did not concern a directive, but this is not a problem, as

directives were held to have direct effect in Van Duyn v Home Office4 and

confirmed in Pubblico Ministero v Ratti.5 The latter case specified the criteria

1 EC Treaty (Treaty of Rome, as amended) Art 249, third indent. 2 But state liability will be used in part (b). 3 Case 26/62 NV Algemene Transport- en Expedetie Onderneming van Gend & Loos v

Netherlands Inland Revenue Administration ECR (English Special Edition) 1. 4 Case 41/74 [1974] ECR 1337.5 Case 148/78 [1979] ECR 1629.

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for a directive to have direct effect; it must be ‘…unconditional and sufficiently

precise’,6 the time limit for implementation must have passed7 and, implicitly,

the other party must be the state.8 This last criterion was stated expressly in

Marshall v Southampton and South-West Hampshire Health Authority9 and

subsequently confirmed in Facchini Dori v Recreb Srl.10 When the other party

is the state this is called vertical direct effect and when the other party is an

individual it is called horizontal direct effect.

In the instant case the time limit for transposition has passed and the directive

is unconditional in that it requires no pre-requisites other than implementation.

The other criteria are problematic and require reference to further case law to

determine if they might apply.

In Francovich v Italian Republic it was suggested that precision can be

gauged by trying to determine who receives the right, what does it comprise

and who provides it.11 This raises problems for McNamee, as it might be

asked how ‘public works’ are defined, when is it appropriate to award

compensation (and to whom) and what should the quantum be?

Note that, if there are difficulties interpreting EC law, a domestic court may

make a reference to the ECJ for an interpretation, known as a ‘preliminary

ruling’, in accordance with EC Treaty Article 234.12 If the case reaches the

House of Lords this reference is mandatory.13

In Foster v British Gas plc it was held that direct effect of a directive could be

used against a body ‘…which has been made responsible, pursuant to a

measure adopted by the State, for providing a public service under the control

of the State and has for that purpose special powers…’ (emphasis added).14

6 ibid [23].7 ibid [43]-[44], [46].8 In Ratti this was the public prosecutor.9 Case 152/84 [1986] ECR 723 [46], [48].10 Case C-91/92 [1994] ECR I-3325 [20], [24]-[25]. 11 Joined Cases C-6 & 9/90 [1991] I-5357 [12].12 EC Treaty Art 249, first and second indents.13 ibid third indent.14 Case C-188/89 [1990] ECR I-3313 [20].

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However, such a body was only ‘…included…among…’ those bodies against

which direct effect of a directive could be used,15 and in Kampelmann v

Landschaftsverband Westfalen-Lippe the criteria were held not to be

cumulative, being ‘…subject to the authority or control of the State or have

special powers…or other bodies…providing a public service…’16

Domestic authorities also give direction. In Doughty v Rolls Royce it was held

that the Foster criteria could, in exceptional circumstances, be departed

from.17 This happened in NUT v St Mary’s School where the school had no

special powers but was still held to be an emanation of the state.18 Arrowsmith

and Green19 report that in Griffin v South West Water20 it was stressed that the

important point is whether the public service is under the control of the state,

not the body itself.

Tayleur has derived a formula for determining an emanation of the state:

Is the body under state control or does it have special powers? If the answer to either of these questions is yes, then it is an emanation of the state. If the answer is no then one should ask: Has the state made it statutorily responsible for providing a public service and does it provide the service under the supervision of the state? If the answer to both questions is yes, then the body will be an emanation of the state.21

There is strong evidence to suggest that Shoreside is an emanation of the

state. It is licensed under statute for providing a public service which, as a

licence is required, suggests state supervision. This satisfies the Foster

criteria except for evidence of special powers, but this may not be fatal, as

seen in Kampelmann and NUT v St Mary’s. The answers in the Tayleur

formula are no, no, yes and yes, signifying an emanation of the state.

15 ibid.16 Joined Cases C-253-258/96 [1997] ECR I-6907 [46]. Emphasis added.17 [1992] 1 CMLR 1045 (CA) 1058 (Mustill LJ).18 NUT v Governing Body of St Mary’s Church of England (Aided) Junior School [1997] 3

CMLR 630 (CA) 647 (Schiemann LJ).19 S Arrowsmith and P Green, ‘The Direct Effect of Directives Against Utilities: the Decision

in Griffin v South West Water Ltd’ [1995] 1 Public Procurement L Rev CS8, CS9.20 Griffin v South West Water [1995] IRLR 15 (Ch). 21 T Tayleur, ‘Emanations of the State’ (2000) 150 NLJ 1292, 1293.

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A complicating feature of the instant case is that a third party, McNair, could

suffer detriment from application of direct effect in McNamee’s favour. Similar

scenarios have been discussed by Nyssens and Lackhoff, 22 who report case

law suggesting it is not a problem.23

Indirect Effect Indirect effect allows for assertion of rights under a directive when the criteria

for direct effect are not satisfied; it is also called the ‘duty of purposive

interpretation’.24 It was introduced in the cases of Von Colson v Land

Nordrhein-Westfalen25 and Harz v Deutsche Tradax GmbH.26 In both cases

the directive was not unconditional and sufficiently precise27 and in Harz the

other party was not the state, but the directive could still be relied upon, not in

itself, but by interpreting national law to be consistent with it.28 The authority

for this was EC Treaty Article 10 which places a duty on Member States to

fulfil their obligations under the EC Treaty (in this case Article 249 – duty to

implement a directive).29

Von Colson and Harz related to an incorrectly implemented directive, but the

principle was extended to unimplemented directives in Marleasing SA v La

Comercial Internacional de Alimentacion SA where it was held that pre-

existing national law should be interpreted ‘…as far as possible, in the light of

the wording and the purpose of the directive…’.30

For McNamee, one obstacle to using indirect effect is that existing national

law would need to be found that could be interpreted to be consistent with the

22 H Nyssens and K Lackhoff, ‘Direct Effect of Directives in Triangular Situations’ (1998) 23 EL Rev 397-413.23 Case C-441/93 Pafitis v Trapeza Kentrikis Ellados AE [1996] ECR I-1347; Case C-129/94

Bernaldez [1996] ECR I-1829.24 S Drake, ‘Twenty Years after Von Colson: The Impact of “Indirect Effect” on the Protection

of the Individual’s Community Rights’ (2005) 30 EL Rev 329, 330.25 Case 14/83 [1984] ECR 1891.26 Case 79/83 [1984] ECR 1921.27 ibid [27]. Note that the referenced paragraphs are identical in Von Colson and Harz. 28 ibid [28].29 ibid [26].30 Case C-106/89 [1990] ECR I-4135 [8].

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directive. That law might be in the Marina and Ports Act 1992 or it could be

elsewhere. The recent case of Pfeiffer v Deutches Rotes Kreuz, Kreisverband

Waldshut eV gave considerable latitude, suggesting drawing on ‘…the whole

body of rules of national law…’.31

Another potential problem for McNamee is that using indirect effect to impose

an obligation on an individual may not be possible. This was stated in the

criminal case of Arcano,32 although Drake does not see it as a general rule,

certainly not in civil cases.33 Constraint of indirect effect due to the

requirement for legal certainty had already been raised in Kolpinghuis

Nijmegen BV.34 More optimistically, in Webb v EMO Air Cargo (UK) Ltd the

House of Lords recognised indirect effect and imposed an obligation on an

individual as a result.35

Also, depending on interpretation, it might be that classification of Shoreside

as not being an emanation of the state would lead to the wharf project being

classified as not being ‘public works’, which would take it outside the scope of

the directive and invalidate any action.

Horizontal Direct EffectSome academics, for example Lenz36 and Craig37, believe in the existence of

horizontal direct effect. Although this would remove the need to find legislation

to interpret, the authorities are unclear and it is not suggested that an action

should be founded on this principle.

(b) Encouraging/Compelling the UK to Implement the Directive

31 Joined Cases C-397-403/01 [2004] ECR I-8835 [119].32 Case C-168/95 [1996] ECR I-4705 [42]. 33 Drake (n 24) 338. 34 Case 80/86 [1987] ECR 3969 [13]. 35 [1996] 2 CMLR 990. 36 M Lenz, ‘Horizontal What? Back to Basics’ (2000) 25 EL Rev 509-522. 37 PP Craig, ‘Directives: Direct Effect, Indirect Effect and the Construction of National

Legislation’ (1997) 22 EL Rev 519-538.

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IntroductionThere are two possible approaches. Firstly an action for damages could be

pursued against the UK, based on liability for breaching Community

obligations. Secondly, enforcement proceedings could be taken against the

UK to force it to comply with those obligations. These two approaches are not

mutually exclusive and they can also be taken in addition to, but

independently of, any action to assert rights under direct effect38 (except that,

presumably, damages could not be collected twice: from Shoreside plc under

the directive and from the UK under state liability).

Damages for State Liability King reports that this approach has been ‘…welcomed as a means…

encouraging Member States to implement E.C. legislation…’39 and Craig

describes it as ‘…an incentive to implement…’.40

The principle that a Member State should be liable for loss or damage caused

by its breach of Community obligations is called the ‘Francovich principle’

having been first expounded in the case of Francovich v Italian Republic.41

There were, however, conditions laid down: individuals’ rights must be at

stake, the content of those rights must be identifiable and there must be a

causal link between the State’s breach and the loss or damage.42 The later

case of Brasserie du Pêcheur SA v Germany added a requirement for the

breach to be ‘sufficiently serious’43 and gave guidance on assessing that,44

guidance which is not relevant to the instant case because a subsequent

ruling in Dillenkofer v Germany stated that: ‘…failure to take any measure to

transpose a directive… constitutes per se a serious breach of community

law…’.45

38 Joined Cases C-46/93 & 48/93 Brasserie du Pêcheur SA v Germany & R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029 [18]-[20].

39 V King, ‘The Fault Issue in State Liability: From Francovich to Dillenkofer’ (1997) 18 ECLR 110, 110.

40 Craig (n 37).41 Joined Cases C-6 & 9/90 [1991] I-5357 [35-37].42 ibid [40].43 Factortame (n 38) [51]. 44 ibid [55]-[57].45 Joined Cases C-178-179/94 & 188-190/94 Dillenkofer v Germany [1996] ECR I-4845 [29].

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McNamee plc has rights under the directive, but those rights might not be

precisely identifiable, which could cause a problem.

Proving causation could also be problematic. Anagnostaras sees potential

problems where the breach was ‘failure to transpose measures that provide

for the imposition of obligations on certain private parties’, as in the instant

case, 46 and cites authority for this.47 He also notes possible problems where a

loss may be due to the applicant’s own negligence.48 Thus it might be said

that, as McNamee could understand English and wanted to bid for projects in

the UK, they should have checked UK advertising.

Enforcement Proceedings

The EC Treaty allows for enforcement proceedings to be taken when a

Member State has failed to fulfil its obligations therein. The combination of EC

Treaty Articles 10 and 249 gives an obligation to transpose a directive, so

failure to do so amounts to failure to fulfil an obligation.

McNamee could request the Irish government to take an action against the

UK using EC Treaty Article 227, although Fairhurst49 considers this to be an

unpopular option, for political reasons, and as a result reports only one

incidence.50

The more usual procedure is for action to be taken by the Commission using

powers in EC Treaty Articles 226, 228. McNamee would need to write to the

Commission outlining the UK Government’s breach of obligation. There is

however no certainty that action will be taken or that the directive will be

transposed. Firstly the Commission must believe that there has been a failure

to fulfil an obligation51 and, if it does, an administrative stage begins and it 46 G Anagnostaras, ‘Not as Unproblematic as You Might Think: The Establishment of

Causation in Governmental Liability Actions’ (2002) 27 EL Rev 663, 670. 47 Re Burn’s application for Judicial review [1999] NI 175.48 Anagnostaras (n 46) 671. 49 J Fairhurst, Law of the European Union (5th edn, Pearson Education 2006) 190.50 Case 141/78 France v UK [1979] ECR 2923. 51 EC Treaty Art 226 first indent.

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must ask the UK for its observations. The Commission then delivers a

reasoned opinion on the matter.52 If the UK fails to comply with this opinion

within the time period allowed, which Fairhurst reports is typically at least two

months,53 then the Commission has a discretionary right to move to a judicial

stage. For example successful proceedings were taken against the UK for

failure to transpose Directive 80/778.54

An ECJ ruling that the UK must comply is binding, but there are no penalties

for non-compliance at that point.55 If the Commission believes that the UK has

still not complied then proceedings must start again under EC Treaty Article

228.56 There is a similar administrative stage, with the UK’s observations and

the Commission’s reasoned opinion,57 and a discretionary judicial stage with

the ECJ assessing a penalty if appropriate.58 An example of this is in

Commission v Greece, where Greece was fined €20,000 per day of non-

compliance.59

The UK’s defence of insufficient Parliamentary time is unlikely to be

successful. Fairhurst reports that such defences are not generally accepted60

and cites Commission v Belgium, where force majeure was pleaded and

rejected in similar circumstances.61

In summary, implementation might be achieved through enforcement

proceedings but the process is lengthy and uncertain.

Word Count: 2076 words.

52 ibid.53 Fairhurst (n 49)193-194. 54 Case C-337/89 Commission v UK [1992] ECR I-6103.55 EC Treaty Art 228(1).56 EC Treaty Art 228(2) first indent.57 ibid.58 ibid second and third indents.59 Case C-387/97 [2000] ECR I-5047 [99]. 60 Fairhurst (n 49) 197.61 Case 77/69 [1970] ECR 237 [14]-[16].

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Bibliography

Books Fairhurst J, Law of the European Union (5th edn Pearson Education 2006)Foster N (ed), Blackstone’s EC Legislation 2005-2006 (16th edn OUP 2005)

Journal ArticlesAnagnostaras G, ‘Not as Unproblematic as You Might Think: The

Establishment of Causation in Governmental Liability Actions’ (2002) 27 EL Rev 663-676

Arrowsmith S and Green P, ‘The Direct Effect of Directives against Utilities: the Decision in Griffin v South West Water Ltd’ [1995] 1 Public Procurement L Rev CS8-12

Craig PP, ‘Directives: Direct Effect, Indirect Effect and the Construction of National Legislation’ (1997) 22 EL Rev 519-538

Doran E, ‘Direct Effect: Need Lawyers Read EC Directives’ (1993) 4 Intl Company and Commercial L Rev 174-178

Drake S, ‘Twenty Years after Von Colson: The Impact of “Indirect Effect” on the Protection of the Individual’s Community Rights’ (2005) 30 EL Rev 329-348

King V, ‘The Fault Issue in State Liability: From Francovich to Dillenkofer’ (1997) 18 ECLR 110-113

Lenz M, ‘Horizontal What? Back to Basics’ (2000) 25 EL Rev 509-522 Nyssens H and Lackhoff K, ‘Direct Effect of Directives in Triangular Situations’

(1998) 23 EL Rev 397-413Tayleur T, ‘Emanations of the State’ (2000) 150 NLJ 1292-1293 Table of Cases England

Doughty v Rolls Royce [1992] 1 CMLR 1045 (CA)Griffin v South West Water [1995] IRLR 15 (Ch) NUT v Governing Body of St Mary’s Church of England (Aided) Junior School

[1997] 3 CMLR 630Webb v EMO Air Cargo (UK) Ltd [1996] 2 CMLR 990

Northern Ireland

Re Burn’s application for Judicial review [1999] NI 175

European

Case 26/62 NV Algemene Transport- en Expedetie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration ECR (English Special Edition) 1

Case 77/69 Commission v Belgium [1970] ECR 237 Case 41/74 Van Duyn v Home Office [1974] ECR 1337Case 141/78 France v UK [1979] ECR 2923

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Case 148/78 Pubblico Ministero v Ratti [1979] ECR 1629Case 14/83 Von Colson v Land Nordrhein-Westfalen [1984] ECR 1891Case 79/83 Harz v Deutsche Tradax GmbH [1984] ECR 1921Case 152/84 Marshall v Southampton and South-West Hampshire Health

Authority (Teaching) [1986] ECR 723Case 80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969Case C-106/89 Marleasing SA v La Comercial 1029Internacional de

Alimentacion SA [1990] ECR I-4135Case C-188/89 Foster v British Gas plc [1990] ECR I-3313 Case C-337/89 Commission v UK [1992] ECR I-6103Joined Cases C-6 & 9/90 Francovich v Italian Republic [1991] I-5357Case C-91/92 Facchini Dori v Recreb Srl [1994] ECR I-3325Joined Cases C-46/93 & 48/93 Brasserie du Pêcheur SA v Germany & R v

Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029 Case C-441/93 Pafitis v Trapeza Kentrikis Ellados AE [1996] ECR I-1347Case C-129/94 Bernaldez [1996] ECR I-1829Joined Cases C-178-179/94 & 188-190/94 Dillenkofer v Germany [1996] ECR

I-4845 Case C-168/95 Arcano [1996] ECR I-4705 Joined Cases C-253-258/96 Kampelmann v Landschaftsverband Westfalen-

Lippe [1997] ECR I-6907Case C-387/97 Commission v Greece [2000] ECR I-5047 Joined Cases C-397-403/01 Pfeiffer v Deutches Rotes Kreuz, Kreisverband

Waldshut eV [2004] ECR I-8835

Table of Treaty ArticlesEC Treaty (Treaty of Rome, as amended)

Article 10Article 226Article 227Article 228Article 234Article 249

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Appendix B

Presentation, referencing and citation checksheet 2013/2014

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LAW COURSEWORK

Presentation, Referencing and Citation Checksheet 2013/14

A copy of this form is to be completed and submitted with coursework for the following law modules: LW189, LW188, LW189, ML140, LWM01

NAMECOURSEYEARMODULE

Please confirm that you have complied with the School’s law coursework presentation, referencing and citation rules by ticking the ‘Yes’ boxes below. For further information on the rules please see sections 3.5 and 3.6 of the Studying Law Guidebook.

TICK1) Spacing, Margins and Fonts:

One-and-a-half spacing has been used between lines. Each page of the work is numbered at the foot of the page The font is Times New Roman (or similar). The text is in a single 12-point font.

2) Paragraphs: Paragraphs are separated by a gap.

3) Footnotes: Footnotes (and not endnotes) have been used. Footnotes have been used to reference source material in the

main text. The footnotes do not commence with ‘See’ The footnotes begin with a capital letter - unless the footnote

begins with an abbreviation that conventionally starts with a lower case letter such as eg, cf or ibid.

The footnotes end with full stops (unless they end with a question mark or quotation mark).

4) Citations: All citations of materials (cases, legislation, books, journal

articles, government papers) are compliant with the guidance in Section 3.6 of the Studying Law Guidebook

5) Cross-referencing and cross-citation: Cross referencing has not been used for simple points that can

be concisely re-stated. The cross-referencing is sufficiently detailed to enable the

reader to identify the relevant material Cross-citation briefly identifies the item being referred to and

the note where the full citation may be found. ‘ibid’ has been used correctly. Other Latin tags such as supra and infra have NOT been used.

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6) Quotations: Quotations are pertinent, and do not generally exceed one

paragraph. Quotations that are less than three lines have been included

within the text in single quotation marks. Quotations that are greater than three lines have been

separated from the text, double-indented and not enclosed in quotation marks.

Quotations are exactly as in the original source. There is not excessive use of quotations.

7) Clip Art: Only appropriate clip art has been used.

8) Bibliography: A bibliography including ALL of the sources of material

consulted is at the end of the work. The bibliography has been separated into different types of

source material eg cases, legislation, books, journal articles, internet material.

Each item in the bibliography is fully cited. The items under each heading in the bibliography are listed

alphabetically.9) Checking:

The work has been put through the spell-checker and the grammar-checker.

The work has been manually proof-read.10) Word Count:

A word count has been included at the end of the work.

Note:

You will be awarded a single mark for your piece of work based upon an overall impression of the work. A piece of work that is well-presented and well-referenced will generally leave a much better overall impression than a piece of work that is not, and this may be reflected in the mark, possibly by as much as 10% . Non-referencing is PLAGIARISM and can result in much severer penalties. The best way for you to ensure that your work is correctly presented and referenced is to follow the guidance that we issue in the Studying Law Guidebook.

SIGNED __________________________________________________

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