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Oxford University Undergraduate Law Journal ~ THE OXFORD UNIVERSITY UNDERGRADUATE LAW JOURNAL ~ ISSUE EIGHT TRINITY TERM 2019 2 The views expressed by the contributors are not necessarily those of the Editorial or Honorary Board of the Oxford University Undergraduate Law Journal. Whilst every effort has been made to ensure that the information contained in this journal is correct, the Editors and the authors cannot accept any responsibility for any errors or omissions, or for any consequences resulting therefrom. © 2019 Individual authors ISSUE VIII (2019) 3 THE EIGHTH EDITORIAL BOARD EDITORS-IN-CHIEF Kenneth Chong Anna Yamaoka-Enkerlin Magdalen College Pembroke College EDITORS Adrian Burbie Niamh Kelly Merton College Merton College SENIOR ASSOCIATE EDITORS Tim Koch Oskar Sherry Jesus College Lady Margaret Hall ASSOCIATE EDITORS Jonas Atmaz Al- Eliza Chee William Chen Sibaie University College Harris Manchester St John’s College College Ee Hsiun Chong Edwin Ewing Bruno Ligas- St John’s College St John’s College Rucinski Christ Church Francesca Parkes Ming Zee Tee George Twinn Corpus Christi Jesus College St Hilda’s College College Joshua Wang St Catherine’s College SPONSORSHIP OFFICER PUBLICITY OFFICER Isadora Janssen Kulsimran Sidhu Merton College Mansfield College 4 THE HONORARY BOARD Sir Nicolas Bratza Professor Michael Bridge Donald Findlay QC Professor Christopher Forsyth Ian Gatt QC The Rt Hon. the Lord Judge The Rt Hon. the Lord Kerr of Tonaghmore Michael Mansfield QC The Rt Hon. the Lord Neuberger of Abbotsbury The Rt Hon. the Lord Phillips of Worth Matravers The Lord Pannick QC His Honour Judge Gordon Risius CB Dinah Rose QC Sir Konrad Schiemann The Rt Hon. the Lord Wilson of Culworth ISSUE VIII (2019) 5 CONTENTS I Foreword (Private Law) 7 Dr Sandy Steel: Fellow in Law of Wadhman College and Associate Professor of Law in the Oxford Faculty of Law II Foreword (Private Law) 9 Professor Laura Hoyano: Senior Research Fellow in Law at Wadham College, Associate Professor of Law in the Oxford Faculty of Law, Barrister at Red Lion Chambers and Fellow of the Honorable Society of the Middle Temple III Foreword (Public Law) 11 Professor Paul Craig: Professor of English Law, St John’s College, Oxford IV Introduction to the Edition 14 Kenneth Chong and Anna Yamaoka- Enkerlin, Editors-in-Chief V Prizes 17 PRIVATE LAW ARTICLES VI Henderson and Illegality in Tort: A 19 Needless Retreat into Opacity Julia Brechtelsbauer VII Actavis v Eli Lilly: Patent Medicine, Risk 45 of Side Effects Antonia Kendrick 6 VIII Of Unsound Mind: The Eternal Triangle 69 of Negligence, Fault, and Mental Impairment Zach Pullar IX Is Time Up for Recovery of Time Value? 91 Mehleen Rahman PUBLIC LAW ARTICLES X A Causal Model for the Extraterritorial 111 Application of Human Rights Treaties Abe Chauhan XI Human Rights, Deprivation of Liberty 140 and the Mental Capacity (Amendment) Bill 2018 Oliver Pateman XII Recognising Human Irrationality: 167 Consumer Behaviour and Assessing Commercial Strategies in Digital Markets under Art. 102 TFEU Tatiana Podstolna ISSUE VIII (2019) 7 FOREWORD (PRIVATE LAW) Dr Sandy Steel Fellow in Law of Wadhman College Associate Professor of Law in the Oxford Faculty of Law he articles in this volume examine complex topical issues in private law. Each article marshals interesting arguments T and sheds light on the issue examined. Even those very familiar with the areas under scrutiny will find themselves with something to think about. Two qualities of the articles stand out. First, they are appropriately critical: they follow lines of reasoning where they lead, even if this means full on disagreement with the views of judges and academics. Mehleen Rahman thoughtfully probes the validity of the UKSC’s reasoning in Prudential on whether the value of the opportunity to use money received by a defective transfer is received at the payor’s expense. Julia Brechtelsbauer analyses the current status in tort law of the framework for the illegality defence set out by the majority in Patel v Mirza; she is critical of the lower courts’ treatment of Patel and persuasively doubts the cogency of differing approaches to the illegality defence across private law areas. Second, the depth of the analysis in each article is impressive. Antonia Kendrick’s contribution weaves together close doctrinal analysis of an important UKSC decision on patent infringement, comparing the court’s approach to that in other EU jurisdictions, with insightful discussion of its broader implications. Zach Pullar draws on tort theory and authorities from other common law jurisdictions to mount an interesting case for a mental incapacity defence in the tort of negligence. I hope that the valuable contributions that comprise this volume of the journal encourage other student authors to think 8 deeply about private law, and law more generally, in the future. And then to write about it. ISSUE VIII (2019) 9 FOREWORD (PRIVATE LAW) Professor Laura Hoyano Senior Research Fellow in Law at Wadham College Associate Professor of Law in the Oxford Faculty of Law Barrister, Red Lion Chambers Fellow of the Honourable Society of the Middle Temple ometimes, the deeper we academics and practitioners delve into our subject, the less we see; as we tread the same S ground over the years, pondering the same issues, our feet wear a deep trench which allows only a glimpse of a small patch of sky. The intelligent, perceptive student, like those published here, interrogates the issues anew, acknowledging, but unconstrained by, precedent and scholarly argument. The Oxford undergraduate syllabus and tutorial system are designed to encourage that kind of thinking. Over my years of teaching and research, I have several times formally credited some undergraduates (two of them in their first year of studies) with ideas proposed and developed in our tutorial discussion (three of them still refer to “our footnote”). Accordingly, it is my pleasure and honour to have been invited to introduce the four private law essays in the eighth issue of the Oxford University Undergraduate Law Journal. Whilst the journal this year has opened up its submissions to undergraduates in law from all leading English research universities, the vast majority of the articles selected for inclusion in this issue were written by Oxford undergraduates reading for a three or four-year degree. They attest to their authors’ intellectual ambition and to the incisiveness of their education. I have learned much in reading the private law essays in this volume, which are all extended critiques of judgments from British courts, two from the Court of Appeal Civil Division, and two from the UK Supreme Court. Two essays are in my ‘home 10 territory’ of tort law. One, by Julia Brechtelsbauer, has tested my thinking about the illegality defence with an extended critique of refusal of the Court of Appeal to apply the reasoning in the contract case of Patel v Mirza to the tragic negligence case of Henderson, which is now on its way to the UK Supreme Court. The other, by Zach Pullar, analyses the objective test for the standard of care, highlighting apparent inconsistencies in approach between two Court of Appeal judgments, which can only be resolved by the Supreme Court. Whilst the topic of the recoverability of compound interest for wrongly paid taxes might seem arid to some – at least to those who have not tried to recoup monies from Her Majesty’s Revenue – Mehleen Rahman, author of “Is Time up for Recovery of Time Value?”, demonstrates the implications of the judgment of the UK Supreme Court in Prudential Assurance for the concept of ‘enrichment’ across the entire field of restitution for wrongs. The fourth essay, by Antonia Kendrick, demonstrates how a judgment of the UK Supreme Court widening patent protection through ‘equivalents’ confers excessively wide protection on patent-holders, potentially stripping researchers in many scientific fields of the protection of their ‘inventive step’ if it can be considered as falling within a broader conception of the original patent than originally applied for. This encourages ‘gaming’ of the patent system in a way which is seemingly condoned by the British courts but not by other European jurisdictions. The author suggests that this ruling may jeopardise incremental research in the industries where we need it most, especially the pharmaceutical industry. I commend all of these essays to readers from across the spectrum of legal experience. They offer fresh perspectives on important issues. ISSUE VIII (2019) 11 FOREWORD (PUBLIC LAW) Professor Paul Craig Professor of English Law, St John’s College, Oxford egal reasoning is foundational to the study of law at university. It is central to the legal education undertaken L by law undergraduates during their three years or more at University. The skills in this respect are what you learn during your University years, and it is what we, the academic community, attempt to imbibe, through lectures, tutorials, seminars and our own legal writing. This understanding of legal reasoning is key, irrespective of the subject matter being studied. It is equally important in the context of contract and constitutional law, tort and administrative law, and land law and EU law, or indeed any other subject that is part of the law syllabus. Skills in terms of legal reasoning play out in the determination and assessment of the positive law, the identification of what the law actually is on any particular topic. This may well require analysis of various primary sources, including statute, treaty provision, secondary legislation, codes and case law. The inter-relation between these discrete elements is itself an expertise honed over time. We can all look back with an admixture of amusement and humility at our first efforts to read a statute, or a complex judgment of the Supreme Court or Court of Appeal. It is a testimony to the learning capacity of university law students how these skills develop expeditiously, such that the sophistication that is brought to bear on University exams towards the end of the first year are unrecognizable as compared to those that existed but six months earlier.
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