DOCSLIB.ORG

Student Law Journal, Volume IX (2017)

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

GRAY’S INN STUDENT LAW JOURNAL VOLUME IX EDITED BY PHOEBE WHITLOCK ASSOCIATION OF GRAY’S INN STUDENTS LONDON • 2017 1 CONTENTS Foreword 4 Articles Have the Courts interpreted section 3 of the Human Rights Act 5 1998 in a way which undermines the sovereignty of Parliament? Siân McGibbon (Winner of the Michael Beloff Essay Prize) Can human rights effectively ensure environmental protection? 14 Alexander Barbour How do the Article 4.4 (Therapeutic Use Exemptions) and Article 22 10.5 (No Significant Fault of Negligence) help mitigate the potential unfairness of strict liability in anti-doping cases? Chloe Ogley Taking up arms for an embattled decision: Pennington v Waine 32 15 years on Daniel de Lisle “Native Title as a form of permissive occupancy at will”: An analysis 39 of the legal formula in Mabo (No 2) (1992), the Native Title Act 1993 and its effect in Australia. Horaine Henry Exceptions to Exceptionalism: should the Supreme Court use 52 international and foreign laws as an interpretative aid to the US Constitution? Julija Stukalina Are mimes not pantomimes? A critical assessment of the protection 66 of television formats under UK Copyright Law Paulo Fernando Pinheiro Machado The Rebirth of the Common Law: Common Law Constitutional 74 Rights and Legality Philippe Kuhn Is there a need to abolish the floating charge? A critical discussion 94 on the distinction between floating and fixed charges. Ryan Martin 2 Sticks and stones will break my bones and online words will hurt 102 me Patrick Boyers Following Gow v Grant [2012] UKSC 29: to what extent does 117 English law protect cohabiting couples? Hollie-Mae Le Cras Judicial Determinations through Sport: The Application of EU case 126 law to sport and in relation to the development of the jurisprudence of the EU. Victoria Alicea Infringement of rights or enhanced national security: considering 137 the unimaginable Anastasiya Sattarova Case C-157/15 (G4S Secure Solutions): a critical discussion on the 145 Islamic veil as a human right Zara Kayani Exploring the relationship between copyright and freedom of 154 expression Kin-Hoe Loi Case Notes R (on the application of Tigere) v Secretary of State for Business, 162 Innovation and Skills [2015] UKSC 57 Markus Findlay Williams v Bridgeport Music Inc (USDC, C.D. California) March 166 10, 2016 Mark Baldwin Isle of Wight Council v Platt [2017] UKSC 28 170 Philip Jones 3 FOREWARD It has been a privilege to take on the role of Editor for volume nine of the Gray’s Inn Student Law Journal. I am particularly grateful to the many students who have contributed excellent articles to this year’s Journal. I have attempted to make selective choices to bring a wide variety of interests and opinions to the Journal. This year there is a wide variety of issues discussed from the rebirth of the common law to Native title in Australia. A special mention must be given to Siân McGibbon whose excellent essay on the Court’s interpretation of section 3 of the Human Rights Act 1998 opens the Journal as the winner of the annual Micheal Beloff Essay Prize. Further, I am most grateful to all those who contributed to the production of the Journal. The Education Department of Gray’s Inn and the rest of the AGIS Committee have all worked hard to support the Journal. Into the future, I hope that the Journal will continue to provide students with the prospect of engaging academically with the law, developing further an area of interest, and sharing their perspectives on topical legal issues. PHOEBE WHITLOCK LONDON 2017 4 HAVE THE COURTS INTERPRETED SECTION 3 OF THE HUMAN RIGHTS ACT 1998 IN A WAY WHICH UNDERMINES THE SOVEREIGNTY OF PARLIAMENT? Siân McGibbon Introduction In our unwritten constitution, the sovereignty of the elected legislature is the cornerstone of democracy; any perceived compromise of this principle has tended to evoke strong reactions. In more recent years, the legal protection of human rights, the most significant provision for which in UK law is arguably the Human Rights Act 1998, has been also accorded increasing weight and value. It is perhaps inevitable, then, that where these two principles come into conflict, as they do in the application of s3 of the Human Rights Act, there is a need for delicate balance to be struck. The ability of these two features of UK law to co-exist is dependent on both the scope of s3 as interpreted by the Courts, and the definition of the concept of sovereignty. This article will begin by analysing the application and interpretation of s3 by the Courts, before proceeding to explore the meaning of Parliamentary sovereignty within the modern constitution. A definition of sovereignty will be advanced which allows for Parliament to bind its successors to the limited extent necessary to enact legislation providing for a continuing intention from which it does not mean to depart without express provision. It will be submitted that such an understanding offers both a descriptively accurate account of the modern constitutional understanding of sovereignty, and a normatively desirable evolution of the principle. The final section of this work will argue that the interpretation of s3 of the Human Rights Act is compatible with such a conception of sovereignty and that examination of the reasoning in the jurisprudence concerning s3 supports this conclusion. The Interpretation of S3 of the Human Rights Act 1998 S3(1) of the Human Rights Act 1998 provides that ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights’1. This creates an interpretative obligation which applies to all legislation, whether passed before or after the coming into force of the 1998 Act. The strength of the obligation contained in s3 remains the subject of voluminous academic debate. Nonetheless, there are certain parameters of the power which appear to be almost universally accepted. At the least, it is clear that the obligation is stronger than the usual purposive 1 Human Rights Act 1998 (HRA) s3(1). The term ‘Convention rights’ refers to the Articles and Protocols of the European Convention on Human Rights and Fundamental Freedoms (ECHR), which are incorporated in Schedule 1 to the Act. 5 interpretative obligation imposed on courts. At the highest, it appears to be settled that the phrase ‘so far as it is possible to do so’ is to be accorded at least some significance; there will be cases in which it is not possible to apply s3 to render legislation Convention-compliant. If nothing else, the existence of the power to make a ‘Declaration of Incompatibility’, contained within s4 of the 1998 Act, to complement the power in s3, is a clear indication that Parliament did not anticipate that all legislation would be capable of being interpreted under s3 so as to comply with Convention rights. However, within these broad boundaries, the extent of the power is contentious. The wording of the section itself is open to more than one possible meaning; to use the words of Lord Nicholls in Ghaidan v Godin-Mendoza, ‘section 3 itself is not free from ambiguity…[and] is open to more than one interpretation. The difficulty lies in the word ‘possible’2. Despite initial discord amongst senior judges as to the proper scope of s33, more recent jurisprudence concerning s3 has clarified matters to some extent. In R v A (No 2), which concerned the ‘rape shield’ enacted in s41 of the Youth Justice and Criminal Evidence Act, illustrated the difficulties which the court faced in grappling with the extent of their new power. The challenged statutory provision severely restricts cross-examination of a rape victim on the subject of her sexual conduct. The House of Lords unanimously held that the section had to be read subject to s3 of the Human Rights Act, and consequently interpreted the section as applying only where the exclusion of the evidence would not endanger the fairness of the trial in breach of Article 6 of the Convention4. The tone of the leading speech in that case, delivered by Lord Steyn, suggests an activist approach. He makes clear that ambiguity in the language of the challenged legislation is not a prerequisite for the application of s3. By contrast, the judgement of Lord Hope is more cautious, accepting the strength of the rule of construction laid down in s3 as being ‘quite unlike any previous rule of statutory interpretation’, but emphasising that ‘the rule is only a rule of interpretation…s3 does not entitle the court to legislate’5. Lord Hope reiterated the conservative analysis of s3 which he had given in his judgement in R v Lambert6, and it was later adopted by the House of Lords in In Re S (Care Order: Implementation of Care Plan)7. In that case the Court declined to reinterpret the Children Act under s3 of the Human Rights Act, expressing concern that to do so would involve giving 2 Ghaidan v Godin-Mendoza [2004] UKHL 30 at [27]. 3 See for example: R v Lambert [2001] UKHL 37; R v Kansal [2001] UKHL. In both of these early cases, the three members of the House who heard the case were unable to arrive at a unanimous decision. 4 Article 6 ECHR, which enshrines the right to a fair trial. 5 R v A (No 2) [2002] 1 AC 45, per Lord Hope at [108]. 6 R v Lambert [2001] UKHL 37. It should be noted that Lord Hope later held that Lambert had been wrongly decided on its facts.
Recommended publications
  • The Overlapping of Legal Concepts a Legal Realist Approach to the Classification of Private Law

    The Overlapping of Legal Concepts a Legal Realist Approach to the Classification of Private Law

    THE OVERLAPPING OF LEGAL CONCEPTS A LEGAL REALIST APPROACH TO THE CLASSIFICATION OF PRIVATE LAW by DAVID SALMONS A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Birmingham Law School College of Arts and Law University of Birmingham Summer 2011 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT The main aim of this research is two-fold; firstly, these chapters will seek to demonstrate the unreliability of theoretical or abstract approaches to legal reasoning in describing the law. Secondly, rather than merely providing a deconstruction of previous attempts to classify private law, the chapters attempt to construct an overlapping approach to classification. This represents a new way of classifying private law, which builds on the foundations of the lessons of legal realism and explains how classification can accommodate overlaps to assist in identifying the core elements of private law reasoning. Following the realist tradition, the thesis argues for narrower formulations of the concepts of property, contract and tort. It is then argued that within these narrower concepts, the law is made more predictable and clearer.
  • The Law of Trusts and Equity

    The Law of Trusts and Equity

    Queen Mary, University of London School of Law LAW OF PROPERTY III EQUITY, TRUSTS & RESTITUTION Seminar Materials 2009/2010 1 Equity, Trusts & Restitution Law of Property III Seminar Outlines 2009/2010 The structure of this module The first seminars will be held in rotation starting from weeks 3 and 4 of the winter semester. Seminars are bi-weekly. Students must read chapters 1 and 2 in Hudson‟s Equity & Trusts or a similar textbook by way of introduction to this topic before the first seminar. This module is structured so that these materials will be covered in lectures before students are required to consider them for seminars. The following 11 seminars will form the basis of the module. Seminar Title Date, depending on your No. group, week commencing 1 Introduction, certainty of intention & 12 October / 19 October certainty of subject matter 2 Certainty of objects 26 October / 2 November 3 The beneficiary principle 16 November / 23 Nov. 4 The constitution of trusts 30 November / 7 Dec. 5 Duties of trustees and breach of trust 14 December / 11 Jan. 6 Quistclose trusts 18 January / 25 Jan. 7 Trusts of homes 1 Feb. / 8 Feb. 8 Constructive trusts 15 February / 1 Mar. 9 Dishonest assistance and knowing receipt 8 March / 15 March 10 Tracing 22 March / 29 March 11 Unjust enrichment *Date to be arranged* NB: Weeks commencing 9 November and 22 February are reading weeks so there are no seminars in those weeks – hence the chronological gaps in the schedule above. What to read for this module This document is simply made up of the questions which you will consider for the larger part of your seminars – all of the reading is set out in the Lecture Course Documents.
  • Level 6 - Unit 5 – Equity & Trusts Suggested Answers – January 2011

    Level 6 - Unit 5 – Equity & Trusts Suggested Answers – January 2011

    LEVEL 6 - UNIT 5 – EQUITY & TRUSTS SUGGESTED ANSWERS – JANUARY 2011 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2011 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A 1(a) A decree of specific performance is a court order instructing a party to a contract to perform their obligations under that contract. Failure to comply is contempt of court. It is a precondition of a decree of specific performance that the remedy at law is inadequate. That remedy is generally damages. This is consistent with the role of equity within our legal system, as it developed to provide remedies for those who could not receive the assistance they required through the common law courts. Whether damages are an adequate remedy will depend on the subject matter of the contract. If a contract is for the sale and purchase of an item that is unique, no amount of damages will be able to make up for the fact that the purchaser will no longer receive the item they contracted for.
  • 1 Equity Reading Lists 2020-2021

    1 Equity Reading Lists 2020-2021

    1 EQUITY READING LISTS 2020-2021 Plan of reading lists 1. Declaring a trust 2. Trusts for non-charitable purposes 3. Charitable trusts 4. Failures to create a trust and resulting trusts 5. Fiduciaries and fiduciary liabilities 6. The powers, duties and control of trustees 7. Responses to a breach of trust (1): personal liabilities 8. Responses to a breach of trust (2): proprietary claims Books On the reading lists, I will be referring to: Webb & Akkouh, Trusts Law, 5th ed (Palgrave Macmillan, 2017) (‘Webb’ on the reading lists). This is my favourite of the available textbooks, but is on the short side. This at least gives it the virtue of brevity – but it does mean that it also doesn’t cover the law in enough detail for your purposes. So I will also be referring to: Davies & Virgo, Equity and Trusts: Text, Cases and Materials, 3rd ed (OUP, 2019) (‘D&V’ on the reading lists). You will also need an up-to-date, and unmarked, copy of Blackstone’s Statutes on Property Law (last year’s version, from Land Law, will be fine). Cases The reading lists will refer you to a number of key cases – you will be expected to read them. But having read them, don’t stop there. Use them as the basis for deepening your knowledge of the law by going onto Westlaw, looking them up, and then on the menu on the left, click on ‘Key cases citing’ and ‘Journal articles’ to see whether there are any recent cases that have anything interesting to say about the key cases to which I have referred you, and to see whether there are any interesting casenotes or articles in legal journals on those cases.
  • Text, Cases and Materials on Equity and Trusts

    Text, Cases and Materials on Equity and Trusts

    TEXT, CASES AND MATERIALS ON EQUITY AND TRUSTS Fourth Edition Text, Cases and Materials on Equity and Trusts has been considerably revised to broaden the focus of the text in line with most LLB core courses to encompass equity, remedies and injunctions and to take account of recent major statutory and case law developments. The new edition features increased pedagogical support to outline key points and principles and improve navigation; ‘notes’ to encourage students to reflect on areas of complexity or controversy; and self-test questions to consolidate learning at the end of each chapter. New to this edition: • Detailed examination of The Civil Partnership Act 2004 and the Charities Act 2006. • Important case law developments such as Stack v Dowden (constructive trusts and family assets), Oxley v Hiscock (quantification of family assets), Barlow Clowes v Eurotrust (review of the test for dishonesty), Abou-Ramah v Abacha (dishonest assistance and change of position defence), AG for Zambia v Meer Care & Desai (review of the test for dishonesty), Re Horley Town Football Club (gifts to unincorporated association), Re Loftus (defences of limitation, estoppel and laches), Templeton Insurance v Penningtons Solicitors (Quistclose trust and damages), Sempra Metals Ltd v HM Comm of Inland Revenue (compound interest on restitution claims) and many more. • New chapters on the equitable remedies of specific performance, injunctions, rectification, rescission and account. • Now incorporates extracts from the Law Commission’s Reports and consultation papers on ‘Sharing Homes’ and ‘Trustee Exemption Clauses’ as well as key academic literature and debates. The structure and style of previous editions have been retained, with an emphasis on introduc- tory text and case extracts of sufficient length to allow students to develop analytical and critical skills in reading legal judgments.
  • Rethinking the Common Intention Constructive Trusts in Stack V Dowden and Jones V Kernott – Should the Resulting Trusts Be Preferred?

    Rethinking the Common Intention Constructive Trusts in Stack V Dowden and Jones V Kernott – Should the Resulting Trusts Be Preferred?

    Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? by Yee Ching Leung Abstract Yee Ching Leung takes the two landmark cases, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as starting points to consider the new Common Intention Constructive Trust approach in dealing with the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. The article analyses whether this new approach should be preferred over the traditional Resulting Trust approach. The author explains the two approaches and gives three arguments in support of the Resulting Trust approach. First, it provides a greater degree of certainty, which is crucial in property law. Secondly, the traditional approach is more coherent in principle when comparing to the Common Intention Constructive Trust approach. Thirdly, the author argues that the Resulting Trust approach would not leave the discretion of judges unconfined. Toward the end of the article, the author gives two brief replies to the critics of the Resulting Trust approach. However, the Common Intention Constructive Trust approach is now the law of England and whether the Resulting Trust approach will return remains to be seen. I. Introduction This article concerns the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. Generally, the issue can be resolved by either an express trust or an express agreement. However, in a domestic context, it is common that cohabitants do not make explicit arrangements. Accordingly, the courts have to decide the issue when disputes arise during their separation.
  • Law of Contract July 2010

    Law of Contract July 2010

    LEVEL 6 - UNIT 5 - EQUITY AND TRUSTS SUGGESTED ANSWERS - JANUARY 2014 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2014 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 (a) “Every effort” test The transfer of the legal title to company shares is not complete until the transferee is registered by the company. Similarly a gift of the legal estate in land is not effective until the donee is registered at the Land Registry. In these cases the final stage in the transfer formalities is in the hands of a third party and is outside the donor’s control. Such gifts are effective in equity before the legal title is transferred if the donor has done everything required of him or her to transfer legal title (Milroy v Lord (1862); Re Rose (1952)). In Re Rose it was held that this stage is reached for gifts of shares when the transferor has parted with the stock transfer form and share certificate beyond recall and it lies in the transferee’s power to be registered as the new shareholder.
  • The Myth of the Remedial Constructive Trust

    The Myth of the Remedial Constructive Trust

    Charlie Webb The myth of the remedial constructive trust Article (Accepted version) (Refereed) Original citation: Webb, Charlie (2016) The myth of the remedial constructive trust. Current Legal Problems, 69 (1). pp. 353-376. ISSN 0070-1998 DOI: 10.1093/clp/cuw013 © 2016 The Author This version available at: http://eprints.lse.ac.uk/68160/ Available in LSE Research Online: October 2016 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. THE MYTH OF THE REMEDIAL CONSTRUCTIVE TRUST CHARLIE WEBB* ABSTRACT Remedial constructive trusts are held out as a way for the courts to make better decisions: freed from the strictures of rules, courts would be better positioned to do justice on the facts, tailoring a remedy to the circumstances of the case. If this were true, their rejection in English law would be a serious failing.
  • Cohabitation: the Financial Consequences of Relationship Breakdown

    Cohabitation: the Financial Consequences of Relationship Breakdown

    The Law Commission (LAW COM No 307) COHABITATION: THE FINANCIAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN Presented to the Parliament of the United Kingdom by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty July 2007 Cm 7182 £xx.xx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Etherton, Chairman Mr Stuart Bridge Mr David Hertzell1 Professor Jeremy Horder Mr Kenneth Parker QC The Chief Executive of the Law Commission is Mr Steve Humphreys. The Law Commission is located at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. The terms of this report were agreed on 3 July 2007. The text of this report is available on the Internet at: http://www.lawcom.gov.uk 1 Mr David Hertzell was appointed a Law Commissioner with effect from 1 July 2007, in succession to Professor Hugh Beale QC, FBA. The terms of this report were agreed on 3 July 2007. ii THE LAW COMMISSION COHABITATION: THE FINANCIAL CONSEQUENCES OF RELATIONSHIP BREAKDOWN TABLE OF CONTENTS PART 1 - INTRODUCTION 1 THIS REPORT 1 WHY IS THIS ISSUE IMPORTANT? 2 Demographic data and future projections 3 Public attitudes towards cohabitation 6 THE BACKGROUND TO THE PROJECT 6 TERMS OF REFERENCE 7 THE CONSULTATION PAPER 9 The Consultation Paper’s provisional proposals in outline 9 THE CONSULTATION PROCESS 10 RECENT DEVELOPMENTS 11 Recent decisions of the House of Lords 11 Recent research 12 Debate in Parliament and beyond 13 Child
  • 6FFLK003: Law of Trusts | King's College London

    6FFLK003: Law of Trusts | King's College London

    09/25/21 6FFLK003: Law of Trusts | King's College London 6FFLK003: Law of Trusts View Online 1. Mitchell, C., Hayton, D. J., Hayton, D. J., Marshall, O. R. & Marshall, O. R. Hayton and Mitchell commentary and cases on the law of trusts and equitable remedies. (Sweet & Maxwell, 2010). 2. Penner, J. E. The law of trusts. vol. Core text series (Oxford University Press, 2014). 3. Penner, J. E. The law of trusts. vol. Core text series (Oxford University Press, 2012). 4. Mitchell, C., Hayton, D. J., Hayton, D. J., Marshall, O. R. & Marshall, O. R. Hayton and Mitchell commentary and cases on the law of trusts and equitable remedies. (Sweet & Maxwell, 2010). 5. Senior Courts Act 1981. 6. Judicature Acts 1873-1875. 1/36 09/25/21 6FFLK003: Law of Trusts | King's College London 7. Mason, Anthony. Equity’s Role in the Twentieth Century. King’s College Law Journal 8, (1997). 8. Mitchell, C., Hayton, D. J., Hayton, D. J., Marshall, O. R. & Marshall, O. R. Hayton and Mitchell commentary and cases on the law of trusts and equitable remedies. (Sweet & Maxwell, 2010). 9. Andrew Burrows. We Do This at Common Law but That in Equity. Oxford Journal of Legal Studies 22, 1–16 (2002). 10. Smith, L. Fusion and Tradition. in Equity in commercial law (Lawbook Co, 2005). 11. Penner, J. E. The law of trusts. vol. Core text series (Oxford University Press, 2012). 12. Mitchell, C., Hayton, D. J., Hayton, D. J., Marshall, O. R. & Marshall, O. R. Hayton and Mitchell commentary and cases on the law of trusts and equitable remedies.
  • Introduction Section 53 (1) (B) of the Law of Property Act (LPA) 19252

    Introduction Section 53 (1) (B) of the Law of Property Act (LPA) 19252

    1 LORENZO MANISCALCO1 COMMON INTENTIONS AND CONSTRUCTIVE TRUSTS: UNORTHODOXY IN TRUSTS OF LAND Introduction Section 53 (1) (b) of the Law of Property Act (LPA) 19252 requires a settlor’s intention to be evidenced in signed writing for a trust of land to be enforceable. However, as every property lawyer knows, intentions either informally expressed or merely inferred from conduct have maintained an extremely important role in trusts of land, in particular in circumstances when two or more parties acquire land sharing a common intention as to how their beneficial shares in it should be distributed. In these circumstances, informal evidence of such a common intention may support a claim under a common intention constructive trust (CICT). Academic literature in this area has focussed mostly on the process of identification of informal common intentions.3 My object in this article is, assuming they are identified, the role that common intentions play in setting up a CICT. CICTs have their origins in a line of cases decided under section 17 of the Married Women’s Property Act (MWPA) 1882,4 and it was historically ambiguous whether these were trusts established by the parties’ common intentions themselves or under some other doctrine of property law. It has been recognised since the decision of the House of Lords in Gissing v Gissing that CICTs are trusts arising by operation of law to enforce the parties’ otherwise unenforceable common intentions when they have been detrimentally relied upon by one of them.5 CICTs respond to the fact that the circumstances make it unconscionable for the defendant to insist that the parties failed to comply with the applicable formalities, they are not trusts established by the parties’ common intentions themselves.
  • Constructive Trusts

    Constructive Trusts

    7 Constructive Trusts I General Principles 278 G Acquisition of Property by a Criminal 302 280 II Categories of Constructive Trust H , e Vendor under a Contract A Unconscionable Conduct 280 for the Sale of Land 307 B Rescission 284 I Undertakings by a Purchaser 310 C Unauthorised Pro t by a J , e Remedial Constructive Trust 315 Fiduciary 286 D Fiduciaries de son tort 286 III e Nature of Constructive E Mutual Wills 288 Trusteeship 320 F Secret Trusts 301 i General Principles A constructive trust arises by operation of law rather than by the intention of the parties2 and it can arise in a wide variety of circumstances. But there is little agree- ment amongst the judiciary or academic writers as to when a constructive trust will be recognised and why it should be recognised. To make this area of the law even more complicated, there is no consistent use of terminology. Indeed, the term ‘constructive trust’ has been used in at least four diH erent ways. e institutional constructive trust.3 According to this view of the constructive trust, it will only be recognised where the facts of the dispute fall within an existing category of cases where a constructive trust has previously been recognised. e remedial constructive trust.4 According to this view, a constructive trust will be recognised through the exercise of judicial discretion. , is notion of the constructive t r u st ha s be en recog n i s ed i n a nu mber of C om monwe a lt h cou nt r ie s , i nclud i ng Au st r a l ia , Canada, and New Zealand, but it has generally not been recognised in England.