Guide to Writing Law Essays

8/10/2019 Guide to Writing Law Essays

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University of Essex_______________________________________________________

School of Law

Guide to writingundergraduate essays

THIS IS IMPORTANT READ AND

USE!


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Introduction

At Oxford, I studied mathematics. No need for words there. The

tools I used then were numbers, letters and symbols. They were

lifeless things without meaning or sound the necessary tools of the

scientist but not of the lawyer. But when I was called to the Bar, I

had to become proficient with words . . . I had to practise continually.

As a pianist practises the piano, so the lawyer should practise the use

of words, both in writing and by word of mouth.

Lord Denning

Our clients are entitled to assume we know the law so they tend to

judge the quality of our legal advice as much through presentationand efficiency as through objective assessment of whether it is right

or commercial. This means that every document and every letter

must be perfect. Even minor mistakes will compromise our

professionalism a missing word here or a superfluous comma there

can change the entire meaning of a clause.

Freshfields Graduate Recruitment website

This guide is to enable undergraduate students of law to present their essays

according to the conventions of legal academic writing and to the requirements

of the teaching staff of the School of Law. We suppose that most first-year

students will not be familiar with the conventions of legal academic writing and

that international students may need guidance in the use of English in the law.

All students, however, are expected to write legal academic English and to

conform to this Guide in their written work.

Do not think that we are just being pedantic in expecting you to learn and

observe the conventions of legal academic writing; it is a necessary part of

learning and applying lawerly skills, especially those of paying attention to detail

and closely following instructions. It is vital that you develop your writing skills

to a high level because employers tell us all the time that the standard of written

presentation of letters of application and CVs is low. They say that letters and

CVs which are not properly presented and have errors of English go in the bin.

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In many areas of writing, precision in expression is vital; academic journals (not

just legal ones) have very detailed style guides which must be adhered to

precisely. A director at the College of Law recently said that correct and accurate

use of English is crucial since competition for places of further study and for jobs

is more intense than ever before, and using English correctly marks out good

students or candidates and so enhances their chances of success. The extractfrom Freshfields website is typical of whatallemployers require in this regard

perfection.

We require you to follow the conventions set out in this guide.You

must learn the conventions to be followed in basic matters such as how to set out

your essay, how to write footnotes, how properly to cite cases and statutes, and

how to use quotations. Also, each year a number of essays display a variety of

errors in writing and presentation. Not all essays show the same errors and some

show very few; but certain errors appear repeatedly or are very marked. Inaddition to setting out our requirements for essay writing our house style -

using this guide will encourage good writing practice and help you to avoid

errors. If you develop good habits at an early stage, your subsequent

performance in your course and your prospects for your future will be enhanced.

In any job of graduate level, you will be expected to write emails, letters, reports

and so on, and you will be judged by how well you write such things. Poor use

of English will get you noticed for the wrong reasons.

A lawyer should be able, amongst other things, to communicate effectivelyand persuasively. Language is the tool of the job, and that job cannot be done

properly if the tool is not used correctly. It is hard to be effective and persuasive

if the use of English is weak. Few of us can avoid the occasional grammatical slip

or some infelicity of expression, but every effort should be made to avoid errors

which are so marked that they distract the reader or cause doubt as to meaning.

It is notable that in certain recent case reports judges have remarked that not only

is the drafting style of documents poor but mistakes and ambiguities in drafting

actually give rise to litigation. One of our aims is to produce graduates from this

School of Law who can write well.

One of the other aims of a law degree course is to learn to think like a

lawyer. That aim is more likely to be fulfilled if, from the outset, you adopt the

conventions of legal academic expression. Thinking like a lawyer needs to be

accompanied by communicating like a lawyer (where you are communicating

with other lawyers, that is). The lawyer is not composing literature; the style of

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expression should be clear, objective, detached and concise. Thinking like a

lawyer also means learning and using certain methods of analysis and

exposition. The Schools ALPS course (LW105) for first years is not something

distinct from other courses but what is taught there should be applied in all other

courses, and not only in your first years but in subsequent years. Adoption of

the conventions of legal academic expression is necessary and also showscommitment to and interest in the degree course you have chosen to follow.

There is, of course, room for individuality within the conventions.

Not all of you intend to become lawyers but the skills, including writing

skills, you will learn as a law undergraduate are highly valued in any job. They

are, to use the jargon, transferable skills.

It ought to be the case that those marking essays should be able to concentrate

on the content and not be distracted by weaknesses in style and grammar.

A. WHA !"U SH"UL# #"

$. %asic re&uire'ents of (resentation

do not write out the question

text must bedouble spaced

margins must be wide enough for comments

font size must not be less than 12 point

footnote numbers should be placed after punctuation

footnotes must be placed at the foot of the page

pages must be numbered at the top right-hand corner (assuming you

are printing on one side only of the paper)

it is a convention to start the first line of the opening paragraph

justified up to the left edge, and for the first line of all subsequent

paragraphs to be indented. You can see this done in the Introduction

to this Guide.

citations, references and quotations, and bibliographies must be

written as set out in this guide

dates must be given according to British English convention,

i.e.1 January 2004 (the reverse usage, January 1, is American)

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page references must be given in full,

e.g.234-238,not234-8

numbers up to ninety-nine, except statute sections, must be in words,

not numerals

e.g.two years, all three parties, fifty-two sections (percentages are,

however, written thus: 25 per cent) read the rubric (the instructions) carefully and follow the

requirements. This may sound obvious but it is very common for

students in essays (and examinations) to fail to follow the rubric

(especially, in examinations, to fail to answer both parts of a two-part

question: in a final year examination this year, this mistake caused a

candidate to get a 2:2 instead of a 2:1). If it says, for example, include

a bibliography, it is unimpressive to fail to do so. Check if there are

mark penalties for failing to follow the rubric.

). Sources of 'aterial for your essay

Be guided by the lecture synopsis, including the reading references given

there, and your notes taken in lectures and tutorials as to the area of study

(butdo notcite your notes in footnotes or mention them in a bibliography).

You should, however, supplement these with your own further reading from

the sources. Lawyers talk ofprimaryandsecondarysources.

Primary sourcesare statutes, cases and official reports (such as Law

Commission reports).

Secondary sourcesare textbooks and articles in legal academic journals such

asThe Conveyancer and Property Lawyer. Secondary sources are the result of

research by academics such as the members of staff of this School. In the law,

research does not mean what it means in science where discoveries are made;

rather, it means exposition and analysis of, and commentary on the primary

sources. In all areas of law, there are one or two leading textbooks which are

of such high authority that the exposition in them of the law may be used by

judges in their efforts to state what the law is. Comment and analysis in other

textbooks and in articles in the journals provoke critical evaluation of the law.

Your bibliography, where one is required, should list thosesecondarysources

you have used (butnotstatutes and cases see$*below). Do not overlook

reference works such asHalsburys Laws.

+. Essay structure

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Plan the essay so that it has abeginning, amiddleand anend.

Thebeginningshould be a short introduction which identifies in broad

terms the legal issues raised by the question. A single paragraph may be

enough.

In the case of a problem question, themiddleor body of the essay identifies

and addresses points intended to be raised by the particular facts. The set

methodology is:

(i) identify the legal issues raised by the facts

(ii) state what law applies to those points (the law may be case law, or

statute, or a mixture of the two, and may also involve reference to

leading textbooks and articles)(iii) apply the law to the points

The third part of the methodology - application - frequently makes the

difference between a mediocre essay (or examination answer) and one of

upper second quality. Anyone can learn the law - that is not enough. It is the

ability to use the law, to apply it, which matters. Application means using the

relevant law to answer a question, to solve a problem. It may be (but not

always) that the question deliberately omits certain information which would

be needed fully to answer a point. It is expected that students realize this andoffer alternative solutions according to whether the complete facts would

point to one or another.

Such is the methodology used by judges in giving their judgments, as any

reading of a case report will show. The judges state the facts of the case (the

equivalent of the problem question). They then state the relevant law and

apply that law to the facts. They come to a judgment accordingly.

In the case of essay questions which are not problem questions, themiddle

of the essay should identify the particular points arising and say how the law

deals with those points by reference to what judges and commentators say

about them. It is likely that there is some element of debate or controversy on

a point, and that debate or controversy should be mentioned.

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Theendor conclusionof an essay sets out the essence of what has been

said and draws together the points made. You may also add your own

comment on the issues but only if based upon arguments given in the body.

The conclusion may be quite short.

In the body of your essay, use paragraphs. These should be used to makea point. Try to link paragraphs together.

An essay question may consist of two or more parts or sections. You will

then need to adapt the basic structure indicated above to such an essay. You

should write an overall introduction, answer the several parts, and finish with

a conclusion. Note that not all parts may need the same amount of attention.

There is no objection to setting out your essay according to the sections of the

question, and this may be the obvious and logical way to proceed. Thus,

where a question has, say, six parts (a) to (f), your essay may be set out in thesame way as opposed to being a continuous narrative. Where a question has

two parts, you have to make a judgment as to how much space to devote to

each part; do not assume that both parts deserve equal attention.

It is most important to remember never to make any statement which is

not supported with authority. Every statement or assertion must be

accompanied by a reference to a statute, a judges judgment, a

commentators article or to a leading textbook, but not to lecture or tutorial

notes (as students sometimes have done). (See$$below.)

,. -ase na'es

Case names must be written initalicswhen work is word processed. This

includes case names given in footnotes as well as in the text of the essay. Do

not underline case names or set them in bold.

The Oxford Guide to Stylerecommends the first example shown below

which usesitalicsfor the actual names but with the v (for versus) written in

roman and without a point (full stop). Different legal publishers have their

own preferred styles, examples of which are given. Any is acceptable the

important point is to beconsistent.

ParkervBritish Airways Board

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Parker v. British Airways Board

Parker v British Airways Board

. -ase citations

There is no place for individuality in this follow the conventions, otherwise

the citation does not do its job which is to make it easy to find the case. Just

as it is vital to be precise with website addresses, so it is with citations. A

marker should be able to check a reference immediately.

Give the full name of the case in the text, and put the citation as a

footnote at the first mention of the case the citation is not necessary

after the first mention. Do not split the reference by putting the year after the case name and

the rest of the citation in the footnote.

After the first mention of a leading case, it may be referred to by its

commonly accepted short form, e.g.Parker.

In citations, it is now usual to dispense with points (full stops),

e.g. [1982] QB 1004.

When quoting from a case, give the citation in a footnote with the

page number, or paragraph number in neutral citations, after a

comma, e.g.

[1982] QB 1004, at 1010

[2003] EWCA Civ 401, at [18]

(Some publishers omit the at it is a matter of preference,

thoughTheOxford Guide to Stylerecommends its omission.)

It is not sufficient, when quoting from a judgment, to give only the case

citation. You must pinpoint the precise location in the judgment of the

quotation by giving the page or paragraph as shown.

When quoting from a judgment, the judges name may be given in the text,

e.g. As Donaldson LJ said, . . . , with a footnote as mentioned. Alternatively,

the quotation may be given in the text with a footnote reference thus:

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[1982] QB 1004, at 1010perDonaldson LJ

Do not, as a rule, cite case references from electronic databases such as

Westlaw where a law report for that case is available. Database reports are

not always accurate; they should only be used when the case is so recent that

a law report is not yet available.

/. 0eferences to statutes

The first mention of a statute should give the name in full, e.g. Law of

Property Act 1925. The definite article is not part of the name and should not

be capitalized: write,

the Law of Property Act 1925

notThe Law of Property Act 1925

After the first mention of an Act which is well known and which is referred to

several times in your essay, its name can be abbreviated, e.g. LPA 1925, or,

where there is no other by the same name, without the year, e.g. TLATA

(which is sometimes seen as TOLATA: both are acceptable just be

consistent).

Do not underline or set in bold the names of statutes or put them in italics.

Do not give any book reference for a statute: some students cite, e.g.Law of

Property Act 1925, s 53(1)(b) andthengive a footnote reference for a statute

book. This is wrong. Statutes do not have such references.

When referring to sections, abbreviate section to s and sections to ss.The

Oxford Guide to Stylesuggests no point after the s.When the word section

starts a sentence, write it in full (with a capital letter S, of course),

e.g. Section 5 of the Act says . . .

Write the word section when it is not followed by the number, e.g. . . . but

this section has been held . . .

Section numbers, subsections and paragraph letters should be set out

according to convention, which is, a space after s but no spaces after,

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e.g. s 53(1)(b)

There are two ways of referring to a statutory provision:

Law of Property Act 1925, s. 53(1)(b) s 53(1)(b) of the Law of Property Act 1925

either is normal, butbe precise. Note the comma after the name of the Act in

the first way.

1. 0eferences to text2oo3s and articles

As with cases, there are conventions for setting out these. In the first place,avoid blatant inaccuracies; e.g. a student has been known to make reference to

thefourthedition of Mark ThompsonsModern Land Lawwhen the current

edition is thesecond! Such carelessness is unacceptable.

The method recommended byThe Oxford Guide to Stylefor giving full

textbook references is as follows:

to give the authors name, in roman, as it appears on the title page

of the book, and followed by a comma

the title initalicsand followed by a comma the edition

in parentheses, the place of publication, a colon, the publisher, a

comma, and the year

e.g. Mark P Thompson,Modern Land Law, 2ndedn. (New York: Oxford

University Press, 2002)

(Remember to cancel the I icon on the toolbar before typing the comma

which follows the title.) In footnotes, however, the part in parentheses is

omitted: Mark P Thompson,Modern Land Law, 2ndedn. Then put the page

number.

After the first mention, use an intelligible abbreviation, e.g. Thompson.

Clearly, if more than one work by the same writer is used, you must include

the work, e.g. Thompson,Modern Land Law. When quoting from a book,you

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must give thepage numberafter the reference, whether first or later, e.g.

Thompson, p 86. The trend now is to repeat a reference this way, and to avoid

op. cit., ibid. and the like.

However, a textbook reference should be set out in a bibliography with the

authors or authors first names after their surnames thus:

Thompson, Mark P, [and the rest as above]

Gray, Kevin, and Gray, Susan Francis,Elements of Land Law, 4thedn.

(New York: Oxford University Press, 2004)

When setting out your bibliography, thefullreference as recommended by

The Oxford Guide to Stylemust be given see$*below.

References for articles start similarly, then with the title of the article initalics followed by the journal reference:

M. Haley,Licences of Commercial Premises: a return to Form?[2002]

J.B.L. 310

Take the trouble to know the meaning and correct usage of reference terms

such as ibid., op. cit., loc. cit., ante and supra. Note that overuse of these

tends to suggest immature and spurious academicism. (In fact, the journal

Modern Law Review, in its style guide for contributors, requires the use ofequivalent English terms rather than Latin ones, i.e. above, notsupra, below,

notinfra.)

4. It is a convention in legal writing to have one 5e6 in 57udg'ent6.

A judgment is a decision of the court. A judgement is a moral or comparative

evaluation, and so is personal. Judges give the judgment of the court; they do

not offer a personal judgement of the case.

8. 9uotations and :ara(hrasing

Remember that when you quote, you must quoteexactly. Short quotations

are set in single quotation marks and are run on in the text, e.g.

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. . . but Herle J retorted that the judges would not undo the law for a

cartload of hay.

Longer quotations should be displayed by being indented, two spaces below

and with the font size one point less than the text. No quotation marks are

used. E.g.

Lord Birkenhead, who piloted the earlier legislation through Parliament,

described its policy in the following terms. He said:

Its general principle is to assimilate the law of real and personal estate and to

free the purchaser from the obligation to enquire into the title of him from

whom he purchases, any more than he would have to do if he were buying a

share or a parcel of stock.

He sought to achieve what was probably an unattainable goal . . .

Of course, any quotation must be footnoted giving the source. If, in part of a

quotation, you have to deviate from the original, put that part in square

brackets, e.g.[Parliament] is therefore taken to withhold . . . where the

original said it and not Parliament.

Paraphrasing means putting someones ideas in your own words. So,

instead of an actual quotation from a book or article by, say, Mark Thompson,

you write, As Thompson argues . . . and say what Thompson argues in your

own words. You will probably stick closely to Thompsons own words, and

you must still cite the book and page or the article in the prescribed way.

$*. %i2liogra(hies

Rubrics often require that you give a bibliography. This is to show what

research you have done for your answer. You should refer to more than one

major textbook, and, perhaps, to articles.

Do not:

give the names ofcasesor ofstatutesor ofstatute booksin your

bibliography; it should be clear from the essay to what extent you

have referred to cases and statutes.

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cite Nutcase, Nutshell books and the like these are not academic

research material

A bibliography should set out the full reference for a book, but unlike the

reference in a footnote, the authors surname is given first, followed by a

comma and the forenames and/or initials according to how the authors

name appears on the title page book of the book. The order should bealphabetical according to surname, e.g.

Sparkes, Peter,A New Land Law, 2ndedn. (Portland, OR: 2003)

Thompson, Mark P,Modern Land Law, 2ndedn. (New York: Oxford

University Press, 2002)

If there are two authors, give their names in order as they appear on the title

page of the book, e.g.

MacKenzie, Judith-Anne, and Phillips, Mary,Textbook on Land Law, (New

York: Oxford University Press, 2004)

When you have typed the title initalics, remember, as mentioned above, to

cancel the Iicon on the toolbar before you type the comma which follows the

title.

Divide the bibliography into parts with subheadings for textbooks,

articles, and reference works (such asHalsburys Laws).

$$. Su((ort every state'ent with authority

This is fundamental to legal thinking. A statement unsupported by authority

is nothing more than a personal opinion, and a personal opinionsimpliciter

has no value and no place in legal writing. Apersonalopinion is not the same

as thereasonedopinionof aperson, a cogent argument, developed from due

consideration of the stated authorities. It would, for example, be insufficient

to say (as was said in one essay) of an issue, the law in this area is

inconsistent; that may be true and it may generally be known to be true; but

the truth of the statement must be demonstrated by citing contrasting cases

which reveal the inconsistency. It is only in this way that markers of essays

(and examination scripts) can see that you know and understand the law.

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Authority may, of course, according to the context, be from case law, statute,

and from a leading article or textbook.

$). Use exa'(les fro' cases; not fro' i'agination

Sometimes, students illustrate their answers with imaginary examples. For

instance, in an essay on Fixtures and Fittings, past students have mentioned

items they have thought of, whereas only items the subject of a case must be

used. Only take examples from actual cases and give the correct citation.

$+. 0eading through your wor3

After writing an essay, wait a day or two, and then read it through as though

it were someone elses that you were reading critically. This should help toavoid many errors. There are provisions for others to help by reading

through your work though this must be acknowledged in the prescribed way.

$,. Hand in your wor3 in ti'e

Why lose marks unnecessarily? There is now zero tolerance of late

submission of assessed work. So, the result of late submission can mean no

mark at all instead of a good mark.

%. WHA !"U SH"UL# NOT #"

$. !ou should not the use the first (erson

Legal academic writing should be detached and objective. Judges, of course,

do use the first person in their judgments, but they generally preserve the

necessary detachment and objectivity, avoiding tending to emotion. (For adryly amusing anecdote, seeRe Baden (No2)[1973] 1 Ch9 at 18perSachs LJ.)

The judge is giving a speech which is then written up; also, use by judges of

the first person helps to distinguish their speeches from those of their

brethren.

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The use of the first person is not the accepted convention in legal academic

writing. (You may see exceptions but these are not models to be followed.)

Do not write, I think or to my mind or I would argue. It is no better to

write, in this writers opinion. Find a different construction such as, It

follows that . . . .

Students sometimes ask for guidance on how to avoid using the first

person in writing essays. Text books and articles in journals (and, for that

matter, newspaper articles) are written in the third person.

The best way of learning how to avoid the first person is to follow the

examples to be found in the text books and articles. Two examples taken at

random fromModern Land Lawby Mark P Thompson may help. At page 181

in the second edition, there is a section headed, Acts by the Vendor. The first

sentence of this section says that a certain argument has been put, and areference is given for the source of that argument (footnote 123). The second

and third sentences expound that argument. The fourth sentence begins, It is

suggested that this view . . . In this way, Thompson avoids saying, I think

that this view . . . He goes on to state his view. Note that a further sentence

begins, It is thought that . . .

These are obvious ways of avoiding the first person. A more subtle way is

used on page 135. In the section headed, Miscellaneous Rights, Thompson

lists some very old rights. He then writes, This collection of somewhatarcane and archaic rights is ripe for abolition. He avoids writing, I think this

collection of . . . In this sentence, Thompson expresses his opinion in an

indirect way: thus, he uses a qualifier, somewhat (though that had better

been avoided), and he uses two adjectives, arcane and archaic. Finally, he

makes an assertion: that this collection is ripe for abolition. This assertion,

however, is followed by comment supported with authority; the paragraph

goes on to set the assertion in the context of the ECHR and the Land

Registration Act 2002.

). #o not address the reader

Never address the reader, e.g. . . . but you cannot be sure that . . .

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+. Avoid using a co''a when there should 2e a se'i


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This is a matter of judgment. Do not write, this case is rather important: it is

or it is not! But you can write, in rather similar vein, Eveleigh LJ said.

Words such as rather and fairly can tend to imprecision of thought in a

legal context; use them judiciously and sparingly.

4. Avoid contractions

It is still not acceptable in legal academic writing to write, dont, wasnt,

isnt and suchlike. Use the full form, do not, was not and is not.

8. #o not (lagiarise

Plagiarism is the presentation of the writing of others without

acknowledgement, so that it appears to be your own work. A paragraph and

even a couple of lines copied from a textbook without acknowledgement is

plagiarism and you will be subject to academic discipline as a result.

Downloading and cutting and pasting material from the internet is also

plagiarism. Plagiarism is dishonest. It is cheating.

This is a serious academic offence which may have grave consequences. Do

not think it will not be spotted it will! Do not do it!

Also, for those students who intend to be solicitors or barristers,we have to

notify the Law Society or the Bar Council (as the case may be) of any

academic offence committed by an applicant.So plagiarism could

prejudice your career prospects.

-. H0EE "HE0 :"I=S

$. he (ro2le' of the (ersonal (ronoun

Unlike most languages, English does not use masculine and feminine genders

grammatically as, for example, in French (le bureau, la porte), and English has

no way of avoiding a gender-specific possessive personal pronoun. It has

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always been the convention to use a masculine pronoun which includes the

feminine where the context allows, e.g. every judge has to be mindful of his

duty in this regard. Other languages may use similar constructions, but in

the U.S.A. and Britain, there is an opinion that this is sexist, though such an

opinion seems not to be widespread elsewhere. (For example, Russian uses

the same construction as English but the idea that this was sexist was nevercurrent in the Soviet Union.) This Anglo-American opinion arguably fails to

recognize that the use of his in such a context is purely grammatical rather

than exclusive of the female gender. There may be an alternative construction

which avoids the use of the masculine such as using the plural, e.g. judges

have to be mindful of their duty in this regard. Other efforts, however, do

violence to grammar: there is a tendency to use the plural pronoun where the

singular should be found, e.g. every judge has to be mindful of their duty in

this regard, but this, whilst commonly to be found and in some places

recommended, is clearly ungrammatical. Leading reference works try to stayneutral but concede that no satisfactory alternative to the traditional

convention has been found. Until some acceptable alternative form is found,

the standard convention of using a masculine personal pronoun can be used.

This may, however, be anathema to some. Whatever you do, at least be

consistent, and do not mix pronouns thus: they closely followed by he, and

do not write he/she which becomes tiresome.

). Su27ective and "27ective tests

In some essays, there has been confusion about what these tests are. A legal

test is used to determine the meaning of something. The test is said to be

subjective when that something is looked at from the point of view of the

parties, for example, where it is said that a document called a licence (as

opposed to a lease) must be a licence because that is what the parties called it.

The test is objective when the matter is considered by the court without

regard for the view of the parties, as where, following the example given, the

court determines that the document is a lease because the court finds that, in

law, that is what it is despite the label licence having been put upon it by theparties. The objective test was described by one judge thus: if the parties

have a dog, it is a dog, and the parties cannot turn it into a cat by calling it

one.

+. Style

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Individual style, as opposed to style conventions as set out above, is a difficult

matter. There is room for individuality but not for eccentricity. Law is a

technical subject with its own terminology or jargon, just as, say, science

subjects have theirs. To get a feel for style, read articles and judgments and

see how authors and judges write (though not all judges write well!).

Your prose style should not be affected; do not use obscure and complex

words or make it consciously legalistic. On the other hand, it should not be

so informal that it seems casual. Use straightforward language which clearly

and concisely conveys your meaning. If you have ever readDavid Copperfield

by Charles Dickens, you will remember that Mr. Micawber loved using high-

flown language and so is a figure of fun. There is much to be said now for

using Old English words where Latin- or French-based words would formerly

have been used. There is no reason, for example, why, where appropriate, weshould not use end rather than terminate, use rather than employ.

Here are some tips:

do not make sentences too long

do not make paragraphs too long

avoid waffle and padding

avoid colloquialisms

avoid tiresome lead-ins, e.g. It is interesting to note that . . , It

may perhaps be said that . . ., and the like avoid legalistic verbiage such as aforementioned, aforesaid

#. 0ES"U0-ES

he following reference wor3s are reco''ended>

Burchfield, R. W. (ed.),The New Fowlers Modern English Usage,3rdedn. (Oxford:

Oxford University Press, 1998)

MHRA Style Guide (London: Modern Humanities Research Association, 2002)

available free of charge online atwww.mhra.org.uk

Pearsall, Judy(ed.),Concise Oxford Dictionary, 10threvised edn. (New York:

Oxford University Press, 2002) this includes the very usefulAppendix 8: Guide to

good English

Ritter, R. M. (ed.),The Oxford Guide to Style(Oxford: Oxford University Press,

2002) includes a special section on legal stylehttp://www.oup.com/uk/orc/bin/9780199570638/pearceetal_ch11.p!

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http://www.mona"h.eu.au/ll"/llonline/ine#.#ml

http://www.e""e#.ac.uk/m$"kill"/"kill"/!eeback/!eeback.a"p

E. A ?I=AL :"I=

When you have written an essay, ask yourself two questions:

if I were in a law firm, on a placement or in a training contract, or in any

other job, is this piece of work of a standard that I would be happy and

confident to put in front of my boss or a client?

is this the best that I can do?

?. W"0@E# EAB:LE

What follows is the Land Law assessed essay question that was set in the SpringTerm 2005 and suggested answer to demonstrate what we expect. t is not heldout as a perfect answer !though it is pretty good"# $ut rather as a guide to styleand presentation.

The question%

&nswer $oth parts

'. (arold) an and *oseph) three wealthy law students) $ought a housetogether in Septem$er 2002) with the intention that they should li+e thereuntil they had completed their studies. They made equal contri$utions tothe purchase price) and the house was con+eyed into their ,oint names)with no express pro+ision as to $eneficial ownership. -or some time theyli+ed happily together) $ut in *une 200 (arold left the house after failinghis first year examinations. (e ne+er returned) and in Septem$er 200

/enneth) another student) arri+ed at the house) producing documents toshow that (arold had sold him his share in the property.

an too an instant dislie to /enneth) and the situation in the houserapidly deteriorated. an decided to mo+e out) and ased *oseph and/enneth if they wanted to $uy his share in the house. They $oth said thatthey would do so) and the three agreed that they would sort out the finaldetails of the transaction after the winter +acation. 1eturning to the house

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in *anuary 200) an was in+ol+ed in a car accident and was illedinstantly. (e left a will lea+ing all his property to his only relati+e) his$rother Lewis.

*oseph has decided that he now wants the house to $e sold) $ut /ennethhas o$,ected to this) saying that he intends to li+e there for at least the

next ten years) until he is settled in his career.

&d+ise *oseph) /enneth and Lewis of their interests !if any# in the house.Will *oseph $e a$le to sell the house) despite /enneth3s wishes4

(ow would your answer differ if) instead of dying accidentally) an had$een illed $y *oseph following an argument4

2. The law of co6ownership of real property continues to discriminate infa+our of co6owners who are married3.

To what extent is this true4

Suggested answer !word count% '78#

% 1

&hi" 'ue"tion concern" the e(olution o! the intere"t" o! three co)

owner". *ome o! the !act" o not +i(e ri"e to i,cult$ "ince the law

+i(e" no room !or oubt a" to the po"ition. &here are "ome point"-

howe(er- which are ar+uable an to which- there!ore- no conclu"i(e

an"wer ma$ be +i(en.

arol- an an o"eph took the hou"e a" oint tenant" o! the

le+al title:

" 16- aw o! ropert$ ct 1925. ow the benecial intere"t" were

hel i" important "ince i! the$ hel a" oint tenant"- the ri+ht o!

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"ur(i(or"hip woul appl$ wherea" i! the$ were tenant" in common it

woul not. here there i" no e#pre"" pro(i"ion a" to benecial

owner"hip which woul ha(e been conclu"i(e: Goodman ( Gallant1- it

i" nece""ar$ to "ee whether the !our unitie"- po""e""ion- intere"t-

title- an time- are all pre"ent. ! the$ are- it i" pre"ume unle"" there

i" rebuttin+ e(ience that a oint tenanc$ e#i"t". &he !act" inicate

that all !our unitie" were pre"ent an there i" no "u++e"tion o! an$

rebuttin+ e(ience. n the circum"tance"- howe(er- a tenanc$ in

common woul ha(e been more appropriate.

arol le!t an "ol hi" "hare to ;enneth. &hi" wa" an act o!

"e(erance o! the r"t t$pe mentione in Williams ( Hensman-2an

meant that the benecial intere"t" were then hel a" a tenanc$ in

common a" between ;enneth an an an o"eph- thou+h a oint

tenanc$ continue between an an o"eph. &here wa" no chan+e in

the holin+ o! the le+al title.

&hen there were ne+otiation" between an an o"eph an

;enneth to bu$ out an" notional one)thir "hare. t appear" that

the"e ne+otiation" were not conclu"i(e- an "o the 'ue"tion ari"e"

whether there wa" mutual a+reement to "e(er the oint tenanc$ o! an

an o"eph- the "econ metho in Williams ( Hensman. 1 All ER 31121861 1 John & H 546

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aution

i" re'uire- howe(erin relation to the "e(erin+ 'ualit$ o! a mere

a+reement in principle i! there i" e(ience that the partie" re"er(e

the ri+ht to alter their re"pecti(e bar+ainin+ po"ition" in the li+ht o!

later e(elopment".5 *ubect to e(ience to the contrar$- the po"ition

here appear" to be that there wa" no "e(erance: Gore and Snell (

Carpenter.6 ! there wa" no "e(erance- an" will wa" ine?ecti(e a" the

ri+ht o! "ur(i(or"hip operate in !a(our o! o"eph@ i! there wa"- hi" will

wa" e?ecti(e to pa"" hi" "hare to ewi". an" eath le!t arol an

o"eph holin+ the le+al title on tru"t !or ;enneth an o"eph- a""umin+

there wa" no "e(erance a" between an an o"eph- which appear"

more likel$.

&here i" now a i"pute between o"eph an ;enneth a" to "ale.

n$ intere"te per"on ma$ appl$ to the court !or an orer !or a "ale o!

lan: " 14- &ru"t" o! an an ppointment o! &ru"tee" ct 1996. n

eciin+ whether to orer "ale- the court ha" re+ar to the criteria in "

15. Ae!ore &B&- an orer !or "ale mi+ht be mae uner " 30- aw

o! ropert$ ct 1925- an the ca"e law on " 30 ma$ "till +uie u+e" in

3Elements of Land Law4thedn, p 10674=1975> Ch4295Elements of land Law4thedn, p 106761990 60 PC CR 456 at 461)462

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the e#erci"e o! their i"cretion. &he court con"ier" the ori+inal

purpo"e o! the tru"t- an- i! that "till "ub"i"t"- "ale ma$ not be orere:

Re Buchanan-Wollastons Conveyance.7 ere- onl$ o"eph o! the

ori+inal three "tuent" now occupie" the hou"e- an ;enneth" wi"he"

are i?erent !rom the ori+inal purpo"e o! the tru"t. &here i"- there!ore-

a "tron+ ar+ument that "ale "houl be orere:ones( Challenger.8

ccorin+l$- o"eph mo"t likel$ coul !orce a "ale o! the hou"e- e"pite

;enneth" wi"he". ;enneth "houl be a(i"e o! the "tren+th o!

o"eph" ca"e to per"uae him to accee to thi" without the e#pen"e o!

proceein+". Dor the rea"on" +i(en abo(e- it i" unlikel$ that ewi" ha"

an$ intere"t in the hou"e. ! he ha- a "ale i" "till likel$: there i" no

"u++e"tion that ewi" occupie" the hou"e an he ha no part in the

ori+inal purpo"e o! it" purcha"e. n the e(ent o! arol not bein+ !oun

to e#ecute a tran"!er- the court woul be a"ke to make appropriate

irection".

here one o! two benecial oint tenant" kill" the other- public

polic$ re'uire" that the killer "houl not prot b$ operation o! the ri+ht

o! "ur(i(or"hip: Dor!eiture ct 1982. ""umin+ no "e(erance o! an an

o"eph" oint tenanc$- "uch polic$ woul epri(e o"eph o! an$ benet

b$ treatin+ the homicie a" a "e(erin+ e(ent which lea(e" o"eph a" a

tru"tee o! the le+al title but holin+ the "hare he woul ha(e ac'uire

7=1939> Ch7388=1961> 1 QB 176

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!rom an on tru"t !or an" e"tate: Re !.9 Bnl$ in e#ceptional ca"e"

where the u"tice o! the ca"e re'uire" it ma$ the !or!eiture rule be

i"pen"e with at the court" i"cretion: Re ! an "un#ar ( $lant.10

% 2

&here are (ariou" wa$" in which unmarrie couple" are treate

i?erentl$ b$ the law !rom marrie couple". n the area o! real

propert$- the i?erence in treatment become" apparent on breakown

o! the relation"hip. &he propert$ ri+ht" o! marrie couple"- on

"eparation or i(orce- will be etermine b$ the court which- uner the

matrimonial le+i"lation- ha" i"cretion to au"t the"e ri+ht" a" it think"

t. Enmarrie couple" b$ enition cannot re!er to thi" le+i"lation- an

i"pute" about propert$ law can onl$ be etermine b$ the much le""

Fe#ible rule" o! re"ultin+ an con"tructi(e tru"t"- an perhap"

proprietar$ e"toppel- to e"tabli"h a benecial intere"t in the propert$

"a(e that homo"e#ual partner" ma$ now ha(e recour"e to the Gi(il

artner"hip ct 2004.

Ener the law o! re"ultin+ tru"t"- a claimant i" e""entiall$ entitle

to +et back what he or "he put into the propert$ b$ wa$ o! a

contribution to the purcha"e price. Gontribution" to the "upport o! the

hou"ehol will not !orm the ba"i" o! an intere"t in propert$: Burns (

9 =1985> Ch85 at10010=1998> Ch412

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Burns.11 " Ch63816=1995> 4 All ER 56217=2004> 3 ()R715

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re(iewin+ the pre(iou" ca"e law an "eekin+ to make pro+re"" towar"

a more u"t an reali"tic hanlin+ o! "uch ca"e". n that ca"e-

Ghawick !elt able not to re"trict him"el! to re"ultin+ tru"t rule"

ba"e on Ji"" B#le$" unoubte nancial contribution but to u"e thi"

a" a ba"i" !or nin+ a con"tructi(e tru"t. *ince it will be (er$ unu"ual

!or a cohabitant to make no nancial contribution whate(er- "ituation"

"uch a" the !act" in Burns ( Burns will be rare thou+h it i" har to "ee

how- e(en now- "imilar !act" coul lea to a i?erent re"ult.

Killon "ai in Springette ( "eoe-18that =t>he court oe" not a"

$et "it- a" uner a palm tree- to e#erci"e a +eneral i"cretion to o

what the man in the

"treet . . . mi+ht re+ar a" !air. erhap" now it oe"- an thi" rai"e"

the perennial 'ue"tion whether "uch !airne"" unermine" certaint$.

Aiblio+raph$


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Guide to Writing Law Essays