Revision structure:

When answering essay questions breakdown the key points into subheadings. The structure should be as follows:

a)Introduction

b)Sub-heading 1 (can be a question or statement)

c) Sub-heading 2

d)Sub-heading 3

e) Sub-heading 4 (time permitting)

f) Conclusion

Example 1: (EU LAW)

1. Answering essay question on supremacy

a)Introduction: Art 249, 10 and 5 EC imp

b)Emergence and evolution of the principle of supremacy: Van Gend en Loos – first sets out the principle of surpremacy

Affirmed in Costa v ENEL

International Handelsgesselshaft GmbH

Simmenthal SpA:

c) Principle of supremacy stops short? Significance of the Francovich/ Factortame decision:

Joseph Weiler (1981, YEL):

Political significance of supranationalism and is it the case today? Compared to other multilateral organisations EU is unique and this is character it gains from the ECJ jurisprudence. What does the future hold?

d)Conclusion

Planning notes for answering essay questions in 3 different areas – Anjalie Athukorale

Example 2: EQUITY & TRUST LAW

1. Beneficiary principle/Non-Charitable purpose trust:

1/ The need for a beneficiary in non-charitable purpose trusts

a) The current position of the courts is that non-charitable trusts without human beneficiaries are now enforceable. In that the courts have implied that members at the time of dissolution are beneficial joint tenants and therefore the last surviving joint tenant(s) will be allocated the surplus.

b) The Crown doesn’t receive the surplus of non-charitable trusts under the bona vacantia.

c) This is far removed from the ‘beneficiary principle’ laid down by Sir Grant in Morice v Bishop of Durham: every other [non-charitable trust] must have a definite object. There must be someone in whose favour the court can decree performance.

d) Re: West Sussex Constabulary’s Widows, Children and Benevolent Fund Trusts

e) Re: Buckinghamshire Constabulary Widows and Orphans Fund Friendly Society (no 2)

f) Hatchett-Stamford v Attorney General [2008]

g) Baughen (2010), Conveyancer:

The decision of Lewison J in Hatchett-Stamford is to be welcome as it confirms that the ‘contract holding’ theory is the basis on which all unincorporated associations with non-chartable purposes hold property…

A disposal of surplus assets by way of bona vacantia (ownerless property) will now occur only in the event of a disclaimer by the current members or member of the association at the date of its dissolution

If the assets of an unincorporated association is held by way of a joint tenancy for its current members, in the event the association is dissolved by reduction to a single member, the remaining member becomes solely entitled to any surplus assets by way of survivorship

2/ Exceptions creating a non-charitable purpose trust: where there is no human beneficiary in the trust, under the principle in Morice v Bishop of Durham there can be no trust

a) Perpetuity period: 21 years

Planning notes for answering essay questions in 3 different areas – Anjalie Athukorale

b) If the trust is sufficiently certain and confined to perpetuity period of 21 years then it’s a non-charitable purpose trust:

1. Animals

2. Monuments and tombs

3. Masses

4. Miscellaneous – e.g. fox hunting

c) Brown (2007), Conveyancer:

The survey conducted by the author has found that non-charitable purpose trusts are still in use and such trusts for the caring of animals, with whom humans have close affection, are the most popular

d) Pawlowski (2007), Conveyancer:

Affirms Brown’s findings

Trusts of imperfect obligation are upheld provided the relevant purpose is sufficiently certain and not capricious and confined to the perpetuity period

Such trusts, however, remain unenforceable the trustee cannot be compelled to perform the terms of the trust if, for whatever reason, he is unwilling to do so.

Authors, examines the requirement of the “human beneficiary rule” and advocate radical changes in the law by the introduction of a statute validating purpose trusts, similar to existing legislation in force in various off-shore jurisdictions

As pointed out by McKay the principle Bishop of Durham seems to be construed as indicating that the object must be certain, rather than certain and human.

Other cases refer to the requirement of a cestui que trust (is the person for whose benefit the trust is created) in order for the trust to be valid. Re Wood, Harman J

Re Astor’s Settlement Trusts, Roxburgh J: held that any non-charitable trust that did not have a cestui que trust was unenforceable and void

Planning notes for answering essay questions in 3 different areas – Anjalie Athukorale

Example 3 – Structure of notes

IV/ State liability

The Principle of State Liability = created under Francovich

The development of direct effect is that it can enable an individual, before his national court, to seek a remedy for losses as a result of the failure by a M.S. to implement, or apply correctly, provisions of EC law.

The Francovich ruling: developed a third & separate principle.

Facts : the C’s were a group of ex-employees, seeking arrears of wages following their employer’s insolvency. Their claim was based on Directive 80/987, which required M.S., inter alia, to provide for a guarantee fund to ensure the payment of employee’s arrears of wages in the event of their employers’ insolvency. They brought the claim for compensation against the state. There were two aspects to their claim: (1) was based on the state’s breach of the C’s substantive rights contained in the directive, which they claimed were directly effective. (2) Was based on the state’s primary failure to implement the directive, as required under Art 249 & Art 10 EC.

Held: In regard to claim (1) the Court found that the provisions in question were not sufficiently clear, precise and unconditional to be directly effective. But entitled to succeed in their second claim. The Court: where a state had failed to implement an EC directive it would be obliged to compensate individuals for damage suffered as a result of its failure to implement the directive if certain conditions were satisfied. That is, where:

1. The directive involved rights conferred on individuals

2. The content of those rights could be identified on the basis of the provisions of the directive and

3. There was a causal link between the state’s failure and the damage suffered by the persons affected

Reasoning: (i) the M.S. obligation to implement directives under Art 249 and their general obligation under Art 10 EC to ‘take all appropriate measures…to ensure fulfilment of’ their obligations under Community law; (ii) on its jurisprudence in Van Gend en Loos and Cost v ENEL that certain provisions of EC law are intended to give rise to rights of individuals; and (iii) that national courts are obliged to provide effective protection for those rights, as established in Simmenthal Spa and Factortame.

Concluded: a principle of state liability for damage to individuals caused by a breach of Community law for which it’s responsible is inherent in the scheme of the Treaty.

Planning notes for answering essay questions in 3 different areas – Anjalie Athukorale

Where the 3 conditions of Francovich are fulfilled, individuals seeking compensation as a result of activities and practices that are inconsistent with EC directives may proceed directly against the state.

There will be no need to rely on the principles of direct and indirect effects. Responsibility for the non-implementation of the directive will be placed not on the employer – public or private – but squarely on the shoulders of the state, arguably, where it should always have been.

This creates an indirect mechanism for enforcement of Community law.

Planning notes for answering essay questions in 3 different areas – Anjalie Athukorale