QUESTION 1: LAND LAW
The core objective of the present research is to provide a comprehensive answer to the question of whether a Court is likely or unlikely to uphold the claim of each ‘licensee’ to be a tenant and why. In order to answer the above-captioned research question, each licensee’s case must be scrutinized. Before the licensees’ situations are analyzed in detail, the general facts of Hild’s case must be outlined as follows. First, Hild is the owner of a two-story house with a basement underneath and a garage at the back (hereinafter referred to as property). Second, Hild’s property has been transformed into two self-contained flats, while the basement has been equipped with what is necessary for occasional accommodation for Hild’s necessities when she visits her property. Third, Hild has permitted other people to use her property under the provisions of so-called ‘License Agreements’. Fourth, Hild has allowed others to use her property usually in return for a weekly ‘License Fee’ which means that the use is commonly payable.
Taking into consideration the aforesaid facts, it is possible to arrive at several preliminary conclusions. The first conclusion is that Hild has used her property for commercial purposes. This is proved by the fact that she has converted a unitary two-story house into a couple of self-contained flats and has taken money for allowing others to use the flats and garage. The second conclusion is that the relationship between Hild and the users of her property are contractual. This conclusion stems from the fact that others have been permitted to use Hild’s property under so-called ‘License Agreements’ which should a priori be deemed as contracts. This notwithstanding, the nature and appropriateness of ‘License Agreements’ in terms of the actual relationships between Hild and other users of her property are still uncertain. It is expected that the scrutiny of each licensee’s case will help to ascertain the truth.
a) Urd’s Case
According to the available data, Urd is Hild’s daughter who was allowed by Hild to use the First Floor flat under the condition ‘until something comes up’. Also, it is important to mention that Urd paid Hild weekly both for the use of the First Floor flat and for Hild’s cleaning lady to clean the First Floor flat as well as Hild’s basement flat every week. The aforesaid facts, in conjunction with the general facts of Hild’s case mentioned earlier, should be taken into account by the Court while deciding on validity or invalidity of Urd’s claim to be a tenant.
First and foremost, the Court needs to make insight into the nature of the ‘License Agreement’ between Hild and Urd if available. According to Thomas v Sorrell, the license is understood as a personal obligation which creates entitlements enforceable only between the individuals privy to the license. Also, the case regulates that a license is a dispensation or permission to use the property without any interest in respect of it. The fact is that license as legal permission can neither alter nor transfer property in anything, ‘but only makes an action lawful, which without it had been unlawful’. Hence, it follows that license is legal permission to use the certain property without having any interest in respect of it. Also, the prescriptions of the Law of Property Act 1925 regulates that license is always such a document which can be revoked by the owner any time. That means that the property license does not transfer the right to property and can be ceased at the will of the owner of the property (licensor).
According to the Law of Property Act 1925, the license is different from the lease. Analysis of the nature of license shows that it is a unilateral will of the property owner rather than a bilateral agreement. In order to ascertain that the court is either likely or unlikely to uphold Urd’s claim to be a tenant, it is necessary to examine whether Urd’s case can be qualified as the relationship of lease or license under the prescriptions of both the statutory and common law.
First and foremost, it is prudent to delineate the statutory requirements for lease. Thus, the Law of Property Act 1925 provides that leases are most usually established under a contract. Moreover, the contract of lease is valid only if it is concluded in written form and signed by the parties concerned. Given this, the first prerequisite to the validity of Urd’s claim for tenancy is the existence of a written contract of lease. There is not any evidence whether ‘Licence Agreements’ between Hild and other users of her property have been concluded in a written form. Also, the case lacks data concerning the existence and nature of the agreement between Hild and her daughter Urd.
If a ‘Licence Agreement’ between Hild and Urd has been concluded, then the court of justice needs to ascertain the nature of the agreement and its regulative power. Certainly, from Hild’s perspective a ‘Licence Agreement’ should be understood as a license. However, Urd claims to be a tenant and, thus, must prove that a ‘Licence Agreement’ is the contract of the lease under the prescriptions of the Law of Property Act 1925. In case of the existence of a written ‘Licence Agreement’ between Hild and Urd, there is a high probability that the court will consider the written ‘Licence Agreement’ a license rather than a lease. This inference has been deduced from the provisions of the common law.
Also, Street v Mountford is a landmark case in English property law which establishes the fundamental principles that the court will eagerly deploy to make a decision on either Urd’s occupation of Hild’s property is a lease (tenancy) or a license. According to the judgment in the case, a license in connection to property should be regarded as an entitlement to use the property for the purposes empowered by the licensor which does not create an estate. Alternatively, Street v Mountford, in conjunction with the Law of Property Act 1925, regulates that tenancy is the exclusive possession at rent whereby the tenant is liable to determination by notice or re-entry. Hence, Street v Mountfordaccentuates on the exclusiveness of possession as the critical point for differentiation between license and lease (tenancy). The case particularly takes into consideration the problem of residential occupancy. In view of the above mentioned, in case of residential accommodation, there is not any complexity to determine whether the grant of the property confers exclusive possession.
The case provides that an occupier of residential accommodation at rent for a specific term can be understood as either a tenant or a lodger. The occupier is recognized as a lodger if the property owner provides the occupier with attendance and services and the owner or his servants has unrestricted access to the premises. On the other hand, the occupier will be recognized as a tenant only if the property owner provides neither attendance nor services and has limited access to the premises. In other words, if the grantee is entitled to exclusive possession of the premise, he will be recognized as a tenant. John Rhys Morris acknowledges the reasoning of Lord Templeman in Street v Mountford and contends that there are three main preconditions for considering the occupier as a tenant rather than a licensee: a) exclusive possession of residential accommodation; b) fixed or periodic term of occupancy; c) a stated rent.
Morris makes apparent that the exclusiveness of possession is not the decisive factor for differentiation between a license and a tenancy. There are cases when the occupiers in exclusive possession have been held to be licensees. For instance, in Marcroft Vagons v Smith, a property owner permitted her daughter to remain in possession of property paying rent for six months.
Applying the above-captioned principles of Street v Mountford to Urd’s case, it is possible to concede that Urd’s occupancy of Hild’s Flat is license, or lodging, rather than a tenancy. The facts show that Urd has not been provided with Hild’s flat for exclusive possession. Nor has Hild’s flat been granted to Urd for a fixed or periodic term. According to the facts of Urd’s case, Urd has been allowed by Hild to occupy the First Floor flat ‘until something comes up’. Also, Urd has both to pay for cleaning services and provide Hild’s cleaning lady with unrestricted access to the premises. All this evidence means that the court will be unlikely to uphold Urd’s claim to be a tenant.
b) Skuld’s Case
Skuld’s case rests on the following facts. First, Skuld is a market trader who has been allowed by Hild to use Hild’s garage for the purposes of storing his stock. Second, Skuld has been permitted by Hild to use Hild’s garage only on Market Days (Thursdays). Third, it has been incumbent on Skuld to empty Hild’s garage at the end of each Market Day. Fourth, Skuld has always complied with the aforesaid requirement of the ‘Licence’ but has been unsure whether Hild has ever used the garage during his absence.
After that the core facts of Skuld’s case have been delineated, it is the right time to make insight into both the statutory and common law which regulate the issues of lease (tenancy) and license. In this connection, it might be appropriate to note that Shell-Mex and B.P. Ltd v Manchester Garages Ltdarticulates that an agreement allowing an occupier to use uninhabitable premises for personal purposes should not be deemed as tenancy unless the agreements grant exclusive possession to the person who is named a licensee.
That is, Lord Denning M. R. purports that a license always confers a personal privilege to use property, whereas tenancy grants an interest in the property. Moreover, the court’s reasoning in Shell-mex and B.P. v Manchester Garages Ltd makes apparent that the exclusive possession is not the decisive factor for differentiating tenancy from a license. However, in some cases, broader consideration is required. The case provides that, among other things, it is necessary to ascertain whether the possession of the property is intrinsically personal, or not. This matter is discussed in Errington v Errington and Woods as well. According to the case, the right to occupy the property is personal and, thus regulated under a license if the occupier is granted a personal privilege to use the property in accordance with the conditions of the license but has no exclusive possession of the property.
The lack of exclusiveness in Skuld’s possession over Hild’s garage may be exemplified with the provisions of the ‘Licence’ providing that the property owner (Hild) is empowered to use the garage during weekdays. In this case, Skuld’s entitlements in respect of Hild’s garage may be recognized as a dispensation according to Thomas v Morrall. In this case, Chief Justice Vaughan propounds a classic definition of a license which is pertinent to Skuld’s case: ‘A dispensation or a license properly passes no interest or alters or transfers property in anything but only makes an action lawful without which it had been unlawful’.
In Skuld’s case, Hild has neither passed an interest nor altered/transferred property in garage. However, Hild has made Skuld’s actions in garage lawful by way of granting Skuld the license. Given this, Skuld is not entitled to consider himself as a tenant and require from Hild to terminate the agreement according to the rules concerning the termination of leases. The common law provides that a license is always revocable at will. This means that Skuld has been obliged to empty Hild’s garage upon Hild’s notice.
c) Mara’s Case
The case of Mara is based on a range of facts. First, Mara is a daughter of Hild’s friend who had occupied Hild’s Ground Floor flat. Second, Mara was allowed by Hild to stay on in the Ground Floor flat after the death of her father. Third, Hild had refused any payment for Mara’s occupation of the flat. According to the circumstances of the case, Mara was permitted to reside in the flat as long as it was necessary for a view of the threat of homelessness. In Minister of Health v Bellotti, a woman was in actual occupation of the flat as a licensee, not a tenant. There are not any grounds to recognize Mara as a tenant due to the fact that there is no written contract of lease between Mara and Hild. Also, Hild had not allowed Mara to stay in the flat for a fixed period of time.
Mara’s case resembles Marcroft Vagons Ltd v Smith. According to Marcroft Vagons Ltd v Smith, on the death of the statutory tenant widow, allowed her daughter to stay in possession of the property paying rent for six months. In the final analysis, the court decided that this daughter was not a tenant, but the only licensee. In like manner, Mara’s case demonstrates that Mara had had no interest in Hild’s property being permitted by the owner only to use the premises at will.
According to Street v Mountford, the license does not establish an estate in the property to which it relates but only legalizes an act which would otherwise be unlawful. In other words, Hild’s permission to stay in her property had not provided Mara with an estate in the property but had made Mara’s stay in the flat lawful.
To continue, justices in Street v Mountford assay that the classical distinction between a tenancy and a license of the property lies in the ‘grant of land for a term at rent with exclusive possession’. This means that lease is always a grant of the property for a specific period of time and with exclusive possession of a tenant. That is, in order to recognize an arrangement as tenancy, the arrangement must contain the clearly determined period of its duration. Also, contracts of lease incorporate provisions concerning exclusive possession. As the foregoing discussion must suggest, exclusive possession is the entitlement of a tenant to have a property in his/her possession, while others, including the property owner, have restricted access to the property.
As far as Mara’s case is concerned, it is possible to notice that Hild had not provided Mara with exclusive possession with regard to her property. The fact is that Hild allowed Mara to occupy the flat in order to overcome the threat of homelessness. Also, Hild demanded no payment and, thus, implying that no interest in respect of the property was sold.
Notwithstanding the aforementioned arguments, Mara may claim that she is a tenant by succession. In this case, Mara may refer to the facts that her father occupied the Ground Floor flat and ceased about a year ago. Similar circumstances are discussed in Marcroft Wagons Ltd v Smith. According to the case, the deceased tenant’s daughter claimed to be a statutory tenant according to succession. In the aforesaid case, the court was unlikely to decide in favor of the claimant. The court held that the property owner had no intention to recognize the daughter as a tenant and had never contracted with her. According to the case, the tenancy inference should not necessarily be drawn from the fact when an individual succeeds on death to the property occupation […] ‘no tenancy would result if nothing else has happened in this case’.
On the other hand, Mara cannot be accepted by the court as a tenant by succession as she has been allowed to occupy the Ground Floor flat only for a year after her father’s death. The lack of rent to be paid for the occupancy of Hild’s flat speaks about license rather than tenancy as well.
After that everything has been given due consideration, it is possible to arrive at the conclusion that for each ‘Licensee’ (Urd, Skuld, and Mara), a court is unlikely to uphold their claims to be tenants.
QUESTION 2: EU LAW
The analyzed problem is based on a compilation of the following facts. First, Directive 2010/04 of the European Union Commission was adopted in 2010. Second, the directive was addressed to the Government of the United Kingdom. Third, the directive required from the UK to diminish the level of pollution by the chemicals ‘ABC’. Fourth, the directive prescribed the maximum amount of ABC which could be permitted into the water from factories. Fifth, a compulsory testing regime was required from the UK to oversee compliance with the maximum limit. Sixth, the deadline for the directive to be implemented by the United Kingdom was the 1st of January 2012.
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In addition to the general facts delineated above, this situation rests on the circumstances when the UK failed to bring directive 2010/04 into force in its territory. The core research question of this part is whether the residents generally and the gardeners specifically can rely on the directive against CITREC Ltd as a privately owned industrial paint manufacturer or a state-owned paint manufacturer.
In order to provide a comprehensive answer to the prescribed research question, it is mandatory to make insight into the nature of the EU directive in general and directive 2010/04 specifically first. Thus, the most general definition of the EU directive is given in the Treaty on the Functioning of the European Union. According to the Treaty, a directive, as compared to other legal instruments of the European Union, should be understood as ‘binding, as to the results to be achieved, shall leave to the national authorities the methods and form choice. From the above-mentioned definition of EU directive, it is possible to make the inference that any directive of the EU is obligatory for every State as Member to which it is addressed. If directive 2010/04 has been addressed to the United Kingdom, then it is obligatory on the United Kingdom to achieve the results dictated by this directive.
The binding effect of the EU directive originates from the directive capability to bind those member-states, to which they are addressed. That is, EU directives grant certain rights and obligations. In the context of the assigned legal situation, directive 2010/04 provides the United Kingdom with the obligation to diminish pollution by the chemical ‘ABC’.
Apart from the binding effect, every directive of the European Union has a direct effect. Many researchers are prone to believe that the direct effect is a very significant characteristic of the EU directives. Thus, direct effect, as a prominent doctrine of the European law, means that the EU law confers rights and imposes obligations on persons. This notwithstanding, the EU directives are not automatically applicable and, thus can not become part of the UK national law without a proper implementation by the national legislature.
In the context of the prescribed legal situation, the United Kingdom has failed to implement directive 2010/04 within the predefined time limit. In this connection, the EU doctrine of direct force comes to the surface. According to the doctrine, if the directive, which is clear and unconditional in its provisions, has not been implemented on a timely manner, a person is entitled to rely on the directive prescriptions in making legal actions against the state. This doctrine has been elaborated particularly in the framework of the EU case law, including Pubblico Ministero v Tullio Ratti and Van Duyn v Home Office.
As far as Pubblico Ministero v Tullio Ratti is concerned, the court accentuates on the principle of direct effect by contending that ‘the expiration of the period fixed for the implementation of a directive’ is not the reasonable excuse for a member-state to apply its national laws including penal sanctions to an individual ‘who has complied with the requirements of the directive’. The above-captioned provisions of the EU case law highlight the principle of the superiority of the EU directives over domestic laws.
Additionally, Van Duyn v Home Office promotes the principle of direct effect by justifying the necessity to rely on the provisions of the already passed but not yet implemented the directive of the EU. The justification of the case may be explicated in the following arguments. First, the case rejects the prudence of depriving a man of the possibility to invoke the obligation which is imposed by the directive. Second, the directive which is addressed to a particular Member-State expects a particular course of action and, thus, the beneficial effect of this act ‘would be weakened under condition individuals did not rely on it before the national courts’. This means that the principle of direct effect assists in guaranteeing that the Member-State citizens will not be debarred of any possibility to have recourse to the already existent but not implemented prescriptions of the EU (community) law. Third, the rules of Van Duyn v Home Office provide individuals with the right to call upon legal provisions of unimplemented EU directives in national courts in order to enforce them as the elements of the community law.
Expatiating on the research, it might be appropriate to note that the consequences of state’s failure to implement measures required by the directive within the specified period of time are discussed in Marshall v Southampton. According to the case, if the provisions of the unimplemented directive are unconditional and precise so that every individual is encouraged to rely on those prescriptions against the state in case, ‘where the state fails to perform the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly’. That is, the failure of a Member-State to carry out the directive does not deprive the Member-State citizens to rely on the provisions of that directive against the state.
Besides above, Marshall v Southampton establishes much more significant rule – citizens of a Member -State has no right directly to rely on the EU directive in disputes between private parties.
In Defrenne v Sabena, the European Court of Justice arrives at the decision that there are two forms of direct effect: vertical direct effect and horizontal direct one.
According to the case, the differentiation between these two forms of direct effect is based on the entity or person against whom the right is going to be invoked. Thus, vertical direct effect means that there is a relationship between the common law and national law. This relationship is manifested especially through the state’s obligation to guarantee that it functions and is totally compatible with the EU law, thereby providing its citizens with the possibility to have recourse to the provisions of the EU law in actions against the state or against public legal entities. The specificities of vertical direct effect expatiate in Foster v British Gas plc.
The aforementioned case clearly defines what organizations in the public and private sector can be recognized as an organ of state and, thus be qualified as a party of the dispute to which the principle of vertical direct effect applies. The analysis of Foster v British Gas plc is relevant in terms of the present research because the assigned legal situation requires a competent answer to one of the research questions: Could the unimplemented directive 2010/04 can be applied against CITREC Ltd as a state-owned legal entity?
The prescriptions of the case clearly articulate that anybody, irrespective of its legal form, which provides a public service under the control of the state and possesses special authority discrepant from that under the normal rules applicable between individuals should be deemed as an organ of the state. Thus, vertical direct effect relates to the applicability of unimplemented the EU directives to the state to protect the individuals against the state.
On the contrary, the horizontal direct effect should be considered to be the application of the EU rules to the legal relationship between private individuals in their relations with other private law entities. According to Eric Engle (2009), legal norms which provide horizontal direct effect bind all the Member-State citizens in their reciprocal relations (p. 165. The particularities of the horizontal direct effect have been elucidated particularly in Defrenne v Sabena.
According to the case, the European Court of Justice regulates that Article 119 of the Treaty of the European Community is such that has horizontal direct effect, and, therefore, enforceable not only in relationships between individuals and state bodies but also between individuals and other private parties. Thus, the case not only identifies the discrepancies between vertical and horizontal forms of direct effect but also proclaims the provisions of EU law can be invoked in national courts. Moreover, the EU case law makes evident that private parties include not only individuals by privately owned companies. That is, if provisions of an unimplemented directive of the EU are directly effective, then the Member -State citizens are able to have recourse to them in actions against each other (horizontal effect).
Before making conclusions in the context of Part (a), it is necessary to summarize all findings from the analysis of the EU case law. Thus, the conducted research has revealed that even a directive of the EU that was not implemented has a direct effect on the relationships either between individuals and state (vertical direct effect), or between private parties such as individuals and privately owned companies (horizontal direct effect). Vertical direct effect of directive is largely regulated by Van Duyn v UK, whereas horizontal direct effect is established in Marshall v Southampton & South West Health Authority.
In addition to this, Marleasing SA v La Comercial Internacional de Alimentacion SA is a landmark case which may provide reasonable substantiations with regard to the issues in question. According to the case, courts of all the Member-States of the European Union are obliged to interpret national legislation in line with unimplemented or badly implemented the European Union directive. In the context of the present research, it is apparent that directive 2010/04 has not been implemented by the UK government. The fact is that the prescriptions of Marleasing SA v La Commercial Internacional de Alimentacion SA should be used as the basis for the enforcement of the provisions of Directive 2010/04. In the aforesaid case, the European Court of Justice holds that it is incumbent on every Member-State to attain the result which is conceived in the framework of the directive. Also, the aforesaid case provides that every Member-State has an obligation under Article 5 of the EEC Treaty to undertake all necessary measures, either general or specific, to guarantee the fulfillment of the obligation concerning the achievement of the directive result.
In other words, the decision in Marleasing SA v La Comercial Internacional de Alimentacion SA binds national courts to recognize the superiority of the community law, including directives over the national law. However, according to Arcaro case, the obligation of a court of justice to interpret provisions in question in the line of the wording of a directive reaches the limit where such an interpretation results in the imposition on an individual of an obligation which is prescribed by the directive but has not been transposed.
On the other hand, according to Dilenkofer and Others v Federal Republic of Germany, a directive that was not implemented automatically leads to state liability. In other words, the failure of the state to perform the EU directive into national law within the prescribed time limit signifies a very serious breach of law. The holding in Dilenkofer case creates footing for the recognition of the state’s failure to perform the EU directive as the serious breach of law.
In the final analysis, questions of Part (a) can be answered as follows. Residents of the UK generally and the gardeners specifically cannot rely on the directive 2010/04 against CITREC Ltd as a privately owned industrial paint manufacturer. The research shows that the community law provides resident of a Member-State both with the right to rely on the unimplemented directive in disputes against the state (vertical direct effect and with the entitlement to call upon the EU law in disputes between private parties (horizontal direct effect. Nevertheless, the conducted study has unraveled that the doctrine of horizontal direct effect does not apply to directives.
This revelation has been achieved after the scrutiny of Marshall v Southampton & South West Health Authority which establishes that directives have no horizontal direct effect. This means that the UK citizens generally and gardeners specifically have no right directly to rely on directive 2010/04 against a private party (individual or privately owned organization). According to the assigned data CITREC Ltd is a privately owned industrial manufacturer of paint. Hence, it follows that the UK citizens generally and gardeners specifically are not entitled to have recourse to unimplemented directive 2010/04 against CITREC Ltd as a private party.
The answer to the second question of Part (a) is affirmative. That is, if CITREC Ltd was a state-owned organization it could be possible for the UK citizens generally and gardeners specifically to rely on unimplemented directive 2010/04 against it due to the rule of vertical direct effect established in Van Gen en Loos, Foster v British Gas plc, Van Duyn v UK and other cases which maintain that citizens of a Member-State are entitled to have recourse to a directive of the EU that was not implemented in disputes against state, as well as in disputes against state bodies (state-owned organizations which provide services under supervision, financing and control of a state).
In addition to the general facts of Question 2, the major facts of the Part (b) should be outlined as follows. First, the United Kingdom as a Member-State has implemented directive 2010/04 within the required time frames. Second, the national legislation of the United Kingdom contains no mechanisms for the establishment of a mandatory testing regime as prescribed by the directive. Third, the legislation of the United Kingdom gives preference to the voluntary reliance of all users of ABC. Fourth, residents of Littleway (UK) express confidence that CITREC Ltd takes advantage of the voluntary regime in order to allow unacceptable levels of ABC in the groundwater.
The core question of Part (b) is whether residents of Littleway could have recourse to directive 2010/04 in their claims against the UK government. In order to provide the exhaustive answer to the above-captioned research question, it is necessary to make insight into the community law.
Thus, it needs to be stated that the principle of state liability stems largely from the prescriptions of Francovich v Italy. In this case, for the first time, the Court fully discusses the question of state liability for violations of the community (EU) law. The case rules that one of the major principles of the community law is that it is incumbent on the Member- States to compensate losses and damages inflicted on individuals by the breaches of the EU law. In light of this, the case regulates that the liability of the state for damages and losses inflicted on individuals can be enforced under certain conditions. The conditions under which the liability gives rise to an entitlement to reparation are dependent on the nature of the contravention of the community law giving rise to the damage or loss.
To proceed further, Francovich v Italy indicates that the conditions of State’s liability should regard the kind of breach in hand, or, in other words, the non-transportation of a directive within the specified period of time. The case establishes the following three prerequisites to State’s liability: a) the result conceived in the directive should lead to the conferring of rights to individuals; b) the contents of the entitlements granted by the directive must be specified in accordance with the provisions of the directive; c) there must be a causal nexus between the breach of the State’s obligation under the directive and the damages and losses suffered by the injured individuals.
To put it briefly, Francovich v Italy provides the possibilities of obtaining compensation due to the failure of the state to follow the prescriptions of a directive. Francovich’s principle of state’s liability may be realized in practice only under several conditions. First, there must be a breach of EU law. Second, the breach of the Union’s law must be attributable to the Member-State. Third, the breach of the EU law must inflict damages or losses on an individual. Assuredly, the complete combination of the elements of the ‘Frankovich’s principle’ provides a person or group of persons with reasonable grounds to claim for compensation.
To continue, Brasserie/Factortame judgment extends the preconditions to state’s liability elaborated in Francovich v Italy. The European Court of Justice has connected the liability of the European Union under Article 215 of the EC Treaty with the question of the state’s liability for breach of the community law. Thus, the Court has determined the general principle attributable to the Member-States legal systems that unlawful conduct of the State gives birth to an obligation to compensate for damages. In this connection, the failure of a Member-State to transpose a directive into national law gives rise to liability if the rule of law infringed must have been intended to grant rights to individuals and manifest a serious breach of the community law.
Following the reasoning of the European Court of Justice in Francovich v Italy and Brasserie/Factortame, the assigned question of Part (b) should be answered affirmatively. That is, the residents of Littleway could rely on the directive 2010/04 in their claim against the UK government if they prove the three conditions of Francovich’s principle. This means that the court must impose on the UK the obligation to compensate losses and damages inflicted on individuals by the UK’s failure to establish the mandatory testing regime.
QUESTION 3: TORT LAW
The main purpose of the research is to give competent advises to the managers of Bartford Nature Reserve concerning both their liability under the Occupier’s Liability Act and the rules relating to psychiatric injury. In order comprehensively to fulfill the aforesaid task of the present research, it has been decided to divide the investigation into several logical parts as follows: a) Paul & Dillon’s case; b) Cassandra’s case; c) Tom & Anna’s case.
a) Paul’s Case
The core facts of Paul & Dillon’s case should be delineated as follows. First, Paul climbs up the protection wire fence surrounding the gorilla enclosure. Second, Paul climbs up this fence with relative ease. Third, there are not any signs or notices around the gorilla enclosure warning visitors not to enter the enclosure. Fourth, there is no warden standing by. Fifth, Paul and Dillon fall from 20 feet high fence because Dillon’s foot gets caught into some loose wire. Sixth, both Paul and Dillon are injured from the fall.
The aforementioned facts must be considered and qualified by having recourse to the UK Occupiers’ Liability Act 1957. In accordance with the Occupiers’ Liability Act 1957, this statute is a landmark Act of the UK Parliament which regulates issues of occupier’s liability. The appropriateness of the Act to the present research lies in the fact that the statute not only establishes the duty of care owed to visitors by the occupier but also codifies provisions of the common law with regard to this duty of care. The Act regulates the issues of duty of care and liability for landlords as well as the duty of care for persons entering the property and means of excluding the liability for visitors.
As far as Paul & Dillon’s case is concerned, it might be appropriate to note that Section 1 (2) of the Act defines that the occupier under the prescriptions of the Act is the person who either occupies or controls the premises and is entitled to give invitation or permission to another person to enter or use the particular premises. Also, it is expected that the occupier is such a person or entity who has been able to prevent the harm or damages. Following the reasoning of the Occupiers’ Liability Act 1957, it is possible to infer that Bartford Nature Reserve is the occupier in the context of the present case. Also, it is indisputable that both managers and other personnel of the Reserve have acted on behalf of the occupier.
To continue, if Bartford Nature Reserve is the occupier in the context of the present case, then the common duty of care is imposed on it. Section 2 (1) of the Act provides that an occupier of premises owes the common duty of care to all his visitors. In the context of the present research, the common duty of care implies that Bartford Nature Reserve as the occupier owes the same duty to all visitors of the premises which are controlled by the occupier. In light of this, it is incumbent on Bartford Nature Reserve to take reasonable care in respect of a visitor in all the circumstances of his/her occupation which will provide his/her safety in using the premises for the aims for which the visitor is permitted to be there.
Given this, the Occupiers’ Liability Act 1957 imposes on Bartford Nature Reserve the obligation to take measures directed towards the creation of reasonable safety for all visitors. The circumstances of the case clearly demonstrate that it has been incumbent on Bartford Nature Reserve to take measures for the reasonable safety of all visitors of the Reserve including Paul and his friends. The subsequent analysis of the Act aims at finding out whether Bartford Nature Reserve has successfully fulfilled its common duty of care.
Thus, according to Section 2 (4) of the Act, in order to determine whether the occupier of premises has failed to do its duty of care to Paul, it is necessary to take into consideration a number of circumstances. First and foremost, it is crucially to determine whether damage to a visitor is caused by the danger about which the visitor has been warned by the occupier. The Occupiers’ Liability Act 1957 clearly articulates that the warning must be enough to make visitor be reasonably safe. As far as Paul & Dillon’s case is concerned, the lack of any signs or notices warning visitors not to enter the gorilla enclosure, as well as the absence of a warden close to the enclosure, provide sufficient evidence to believe that Bartford Nature Reserve has failed to warn Paul of the danger connected with the intrusion on the gorilla enclosure and, thus has failed to prevent damage to a visitor by the unexpected danger.
Moreover, the fact of Paul & Dillon’s case makes apparent that Paul has visited Bartford Nature Reserve with a group of his school friends. On these grounds, it is possible to presuppose that Paul is a child. To that end, the Occupiers’ Liability Act 1957 prescribes that an occupier must be prepared for children to be less attentive than adults. In this sense, the Act establishes a higher standard of care for the occupier in relation to children visiting his premises. This means that Bartford Nature Reserve must have provided much more informative warnings to Paul and his friends than those compared to adult visitors.
Thus, the occupier’s failure to fulfill the requirement of effective warning is one of the critical points in Paul & Dillon’s case. As the matter of fact, Section 2 (4) (a) of the Occupiers’ Liability Act 1957 prescribes that warning will only be taken into account to discharge the occupier’s duty with regard to the danger if it ensures reasonable safety for the visitor. From these provisions of the Act, it follows that the warning must be precisely clear about the danger, while means of preventing the danger must be readily available.
It is highly probable that, in determining the effectiveness of warning, a court will take into consideration the following circumstances: a) the preciseness of the warning; b) the clarity of the danger which is described in the warning; c) the nature of the danger, either hidden or apparent one; d) the kind of visitor. In the context of Paul & Dillon’s case, it is possible to notice that neither warnings nor signs were provided by the occupier in the area surrounding the gorilla enclosure. This means that the occupier failed to fulfill its obligation under the Occupiers’ Liability Act 1957 to provide effective warning in a dangerous place.
Besides the Occupiers’ Liability Act 1957, the common law prescribes that, in the places of augmented or unusual danger, it is not sufficient for the occupier to place a warning. Thus, Rae v Mars (UK) Ltd regulates that in places of unusual or extreme places the placement of warnings must be supplemented with the arrangement of a barrier or additional notice. The facts in Paul & Dillon’s case show that Paul climbed up the wire fence around the gorilla enclosure with relative ease. This means that the occupier failed to establish a reliable and safe barrier around the enclosure. Thus, the occupier was unsuccessful in providing safety in the gorilla enclosure area.
Taking into consideration the aforementioned facts and provisions of both the statutory and common law, it is possible to arrive at the conclusion that Bartford Nature Reserve as the occupier failed to fulfill its duty of care in respect of Paul and other visitors and, therefore, is liable for injuries inflicted on Paul. In addition to this, the facts in the case show that fatal injuries of Paul and Dillon are results from their fall, while the fall is caused by Dillon’s foot has been caught into some loose wires in the fence.
The fact of loose wires may help to discharge the occupier’s liability only if the occupier proves that he acted reasonably and entrusted the maintenance of the fence to an independent contractor. Thus, according to Section 2 (4) (b) of the Occupiers’ Liability Act 1957, the discharge of the common duty of care by an occupier takes place if damage is caused to a visitor by danger because of ‘the faulty execution of any work of construction, repair, maintenance by any contractor employed by the occupier; the occupier should not be treated without more as answerable for the danger […]’.
b) Dillon’s Case
The core facts of Dillon’s case are the following. First, Dillon was called by the managers of Bartford Nature Reserve. Second, Dillon is an animal behavior expert capable to rescue people from aggressive primates. Third, Dillon was injured due to the fall from the fence.
Given this, it is vital to highlight that Dillon was called to Bartford Nature Reserve as a professional rescuer. In this sense, Section 2 (3) (a) of the Occupiers’ Liability Act 1957 provides that visitors as specialists such as professional rescuers who enter the premises upon the occupier’s calling are expected to ‘guard against any risk ordinary incident to the exercise of the skill’. This means that the occupier does not the special duty of care to avert injury to persons who fulfill their professional obligations in the occupier’s premises.
In addition to this, Roles v Nathan prescribes that the occupier has no duty of care in respect of professionals who apply their skills in the premises upon the occupier’s calling. It is expected that professional rescuers are aware of the danger and are precluded from getting compensation for personal injury. Nevertheless, the common law produces no unified standard to all cases of personal injuries inflicted on professional rescuers. Every single court considers facts in an independent way. Therefore, the occupier can be requested by the court to provide evidence that the professional rescuer has been warned (informed) about the peculiarities of danger.
c) Cassandra’s Case
As far as Cassandra’s case is concerned, the core facts of the case are the following. First, the occupier of Bartford Nature Reserve provided services of the fairground attraction. Second, one of the cars mounted on the Ferris wheel became detached and crashed into the standing crowd of people. Third, at the moment of the accident, Cassandra was a bystander who experienced the reactivation of schizophrenia. The main aim of this section is to ascertain whether managers of Bartford Nature Reserve will be liable for Cassandra’s psychiatric injury. In order to provide an answer to the question of whether Bartford Nature Resort is liable for the infliction of psychiatric harm on Cassandra, it is necessary to have recourse to the rules relating to psychiatric injury.
The rule relating psychiatric injury in English tort law are largely prescribed by the common law. The common law establishes the general procedure for proving all elements of the tort of negligence in order to claim for the recovery of damages. In this connection, it is incumbent on Cassandra to prove the following elements of the tort of negligence: a) the existence of the occupier’s duty of care; 2) the breach of the duty of care; 3) a causal link between the breach and the psychiatric injury (reactivation of schizophrenia). The first element of the tort of negligence may be proved by making insight into the Occupiers’ Liability Act 1957. Thus, according to Section 2 (4) (b) of the Occupiers’ Liability Act 1957, the discharge of the common duty of care by an occupier takes place if damage is caused to a visitor by danger because of ‘the faulty execution of any work of repair, maintenance, construction by an independent contractor that is employed by the occupier, the occupier is should not be treated without more than answerable for the danger […]’.
This means that Bartford Nature Reserve may be found not liable for the malfunction of the nature reserve fairground attraction only if an independent contractor employed by the occupier was responsible from the construction, maintenance or repair of it. Otherwise, Bartford Nature Reserve would have a duty of care in respect of Cassandra. The determination of the second and third elements of the duty of care is connected with the nature of the first one.
Additionally, the common law establishes specific rules relating to psychiatric injury. Thus, apart from the general rules of the tort of negligence, a court takes into consideration such factors as foreseeability and proximity. As far as the factor of foreseeability is concerned, Page v Smith regulates that the fact of psychiatric injury may create liability only if the inflictor could have reasonably foreseen that the victim would suffer physical injury from the accident. In other words, the liability for causing psychiatric injury is dependent on the foreseeable circumstances of the physical injury.
Another landmark case that relates to the problems of psychiatric injury is Jaensch v Coffey. The psychiatric illness concept is a very complicated issue. The complexity of this issue lies in the fact that the victim experiences psychiatric illness and there is a shock that induced this illness. Also, the case regulates that it is insufficient for a person to have knowledge about the distressing occurrence. In order to have the right for compensation, the plaintiff must have the sudden sensory perception (‘shock’) by way of seeing, hearing or touching a thing or event which is so distressing that the perception of the phenomenon confront the plaintiff’s mind and induces (reactivates) a recognizable psychiatric disease. The legal reasoning in Jaensch v Coffey helps to formulate another factor of liability for the infliction of psychiatric injury – proximity. The principle proximity means nearness in space and time. This principle implies that the victim of psychiatric injury has had close physical proximity to the shocking event. Also, this principle may be extended to the ‘immediate aftermath’ of the accident.
After that the major cases have been analyzed, it is possible to make the inference that Cassandra is entitled to compensation due to psychiatric injury which has been caused by the accident in the nature reserve fairground attraction. The following arguments underpin the aforesaid inference: 1) the accident happened due to the breach of duty of care; 2) the psychiatric injury was foreseeable as the car dismounted and crashed down into a standing crowd; 3) Cassandra was close to the accident, both in time and space (proximity).
d) Tom & Anna’s Case
The core details of Tom & Anna’s case should be delineated as follows. First, Tom, Anna’s husband was instantly killed in the Ferris wheel car. Second, Anna, Tom’s wife, was informed about the fatality concerning her husband via the phone. Third, Anna saw her husband’s body several hours later after the fatality had occurred. Fourth, the visit to the hospital caused Anna psychiatric injury.
Taking into consideration the above-mentioned facts, it is possible to contend that Anna is a secondary victim who suffers psychiatric injury as she has not been directly exposed to danger. Anna’s status of a secondary victim may be substantiated with the fact of her having not been present at the place and at the time of the accident, but has been informed about the tragedy via the phone. Given this, it is essential to have recourse to Alcock v Chief Constable of South Yorkshire Policewhich articulates three reciprocal stages of a proximities-control device helping to determine whether a secondary victim is entitled to compensation due to a psychiatric injury or not.
In accordance with the case, a plaintiff is entitled to compensation only if the following three factors (stages) take place: a) foreseeable circumstances; b) proximity; c) proximity of perception. The first factor implies that the second victim and the primary victim must be in a close relationship of affection and love. In the context of Tom & Anna’s case, it is evident that the secondary victim (Anna) was in a close relationship of affection and love with Tom, the primary victim because they were married.
To proceed further, the factor of proximity means that the plaintiff must be both spatially and temporally close to the accident. The case regulates that the factor of proximity requires from the claimant who is a ‘secondary victim’ to either personally perceive the shock of the accident with his own unaided sense, as a direct witness of the accident, or personally hear the accident with his ears, or apprehend the immediate consequences of the accident. Suffice it to say that the factor of proximity implies the direct experience of the accident rather than the knowledge of it through third persons. In Tom & Anna’s case, Anna as a secondary victim had knowledge about the death of her husband through the telephone call, or, in other words, indirectly.
The third stage is the proximity of perception or, the direct experience of the accident’s causes. This stage is absent in Tom & Anna’s case beyond controversy. The legal interpretation of this stage can be found in McLoughlin v O’Brian. The aforementioned legal case resembles Tom & Anna’s case. In this case, the court finds out that despite the fact that a family member suffers greater emotional harm than a strange pedestrian, merely viewing the outcomes of the accident and not perceiving the accident itself constitute insufficient proximity.
In summary, it is possible to infer that Anna has no right to compensation because of the psychiatric injury relating to her husband’s death as she lacks nearness in space and time to the accident as well as fails to satisfy the requirement of the proximity of perception.
QUESTION 4: PIL
The main aim of this study is to evaluate the status of United Nations Security Council resolutions as a source of public international law in view of the International Court of Justice holding that ‘it is for non-member States to act in accordance (sic) with those decisions [of the UN Security Council].’
a) The Legal Definition of UN Security Council Resolutions
In order to provide a comprehensive answer to the research question, it is vital to find the legal definition of United Nations Security Council resolutions and ascertain their salient features first. The fact is that UNSC resolution is a legal document that is adopted by the fifteen members of the Security Council. However, the Charter of the United Nations does not use the word resolution at all. Alternatively, the UN Charter articulates about recommendations of the United Nations Security Council. Thus, according to Article 27 of the UN Charter, decisions of the Security Council on procedural issues can be made ‘by an affirmative vote of seven members’. The UN Charter continues that decisions on all issues can be made ‘by an affirmative vote of seven members including the concurring votes of the permanent members.’
To that end, it should be stated that the Charter of the United Nations as a multilateral international treaty constitutes the basis for the distribution of its functions and powers among different UN organs. It is evident that the UN Charter empowers the Security Council to act on behalf of the UN Member-States and to adopt recommendations and decisions. Nevertheless, the UN Charter refers to none resolutions.
In this connection, it is insufficiently to analyze the Charter of the United Nations to get the meaning of the UNSC resolutions. In the advisory opinion in the ‘Reparations’ case of 1949, the International Court of Justice regulates that the United Nations as a multilateral international organization has both implicit and explicit powers. The Court determines that Articles 104 and 2 (5) of the Charter have provided the Organization with legal authority to achieve its objectives as clearly defined or implied in the Charter. Thus, Article 25 of the UN Charter prescribes that the States as Members of the United Nations give their consent to implement the Security Council decisions following the provisions of the Charter.
In addition to this, the UN legal publication ‘The repertory of United Nations organs practice provides that the participants of the United Nations Conference on International Organization who met in San Francisco in the year of 1945 failed to confine obligations of Member-States under Article 25 to the decisions that were taken by the Council. Hence, it was decided on the Conference that the Security Council was conferred with the responsibilities under Article 24 (1) to act on the member’s behalf in the domains of international peace and security.
The aforesaid interpretation of Article 24 of the UN Charter has become a source of power that may be used in order to meet situations that are not regulated by detailed provisions in the articles of the Charter. Also, it should be noted that the Repertory on Article 24 explicates that ‘the question whether Article 24 confers Security Council powers that are a discussion subject following the opinion of the International Court of Justice which was rendered on the 21st of June in 1971 in view of the question of Namibia.’
UNSC resolutions are binding documents of the Security Council only if they are adopted as decisions of the Security Council under Chapter VII of the Charter of the United Nations (‘Actions with respect to threats to the peace, breaches of the peace and acts of aggression’). However, the UN jurisprudence is very ambiguous with regard to the legal nature of UNSC resolutions. This is neither possible to elaborate a comprehensive definition of UNSC resolutions and analyze their salient features only by means of the black letter law approach. A theoretical discussion is required.
b) A critical Analysis of UNSC Resolutions as Manifestation of the Implicit Powers of the UN Security Council
Before making any inferences concerning the nature of UNSC resolutions as a source of public international law, it is necessary to investigate their legal effects first. According to Marko Divac Oberg (2005), the legal effects of unilateral instruments of international organization in public international law may be divided into several groups. The first group incorporates substantive effects. They imply binding, (dis)empowering and authorizing effects. The second group is titled causative effects, which arise due to the determination of fact or of law. The third group encompasses modal effects – ‘how and when the substantive effects come into effect.
Aside from the above, Oberg differentiates between two ways of different effects manifesting themselves – intrinsic and extrinsic. According to the scholar, intrinsic effects stem from the special conventional powers of the United Nations Security Council or General Assembly, whereas extrinsic effects originate from the general international law, particularly from customary international law.
As far as the legal effects of United Nations Security Council resolutions are concerned, Oberg assays that these effects derive from judgment and opinions of the International Court of Justice (ICJ). The International Court of Justice focuses on binding effect with passing references to other substantive effects which shape the legal and factual determinations triggering them.