ELS/CLRI - Doctrine of Precedent

This post is specifically being written as a request from a Facebook fan asking for help in respect of English Legal System and, in particular, the doctrine of Precedent.

Now, I am not intending to 'teach' you about Precedent.  Rather, I want to clarify, and also guide you as to the types of questions you would get in this area, and how you would address them.  Based on your reading, whether textbooks, or other publications, you should now know that Judicial Precedent is the process by which judges follow previously decided cases where the facts or point of law are sufficiently similar.  You should also understand that the doctrine is unique to the common law system and so it is unknown in civil law jurisdictions like Germany and France .  The doctrine stands on the stare decisis principle (‘let the decision stand’), meaning that a decision from a previous judgment will be followed in similar subsequent cases and will (supposedly) ensure certainty, consistent and clarity in the law.  So the idea, is that by having a consistent application of the law, this can then be used as a prediction in later, similar, cases.

Where you want to really consider the doctrine, is when you have a question which looks at the doctrine not being followed, or judges departing -- so judicial activism, for example in the area of statutory interpretation.  The point with statutory interpretation (and judicial activism) is that on the one hand, there is the intention to allow the development of the common law, whilst affecting the traditional notion of precedent.

The body of decisions made by the higher courts, which the lower ones must respect, is known as case law.  Case law comes from the decisions made by judges in the cases before them (the decisions of juries do not make case law). In deciding a case, there are two basic tasks: first, establishing what the facts are, meaning what actually happened; and secondly, how the law applies to those facts. It is the second task that can make case law, and the idea applies to a particular set of facts, similar facts in later cases should be treated in the same way, following the principle of stare decisis. This is clearly a far more fairer system than allowing each judge to interpret the law differently.  It also provides predictability, which makes it easier for people to live within the law.  The judge listens to the evidence and the legal argument and then prepare a written decision as to which party wins, based on what they believe the facts were and how the law applies to them. This decision is the judgment. The explanation of the legal principles on which the decision is made is called the ratio decidendi – Latin for the ‘reason for deciding’. It is this part of the judgment, known as binding precedent, which forms case law.  All the parts of the judgment which do not form part of the ratio decidendi of the case are called obiter dicta. This is Latin for ‘things said by the way’.

In deciding a case, a judge must follow any decision that has been made by a higher court in a case with similar facts. The rules concerning which courts are bound by which are known as the rules of judicial precedent, or stare decisis. As well as being bound by the decisions of courts above them, some courts must also follow their own previous decisions; they are said to be bound by themselves.  In order to appreciate this I will ask you to go back to your textbooks to look at the structure and hierarchy of the courts in England and Wales, from the Supreme Court, down to the Magistrates' Courts and Tribunals.

One of the more activist judges, was Lord Denning.  We see him being 'promoted' to the House of Lords, however, by choice, he returned to the Court of Appeal.  He seemed to be on a mission to persuade the House of Lords (now Supreme Court) that the Practice Statement applied to both the House of Lords and the Court of Appeal.

Now the vast majority of cases terminate in the Court of Appeal and so one could understand Denning's reasoning.  However, if each judge in the Court of Appeal did what he/she liked, it would certainly affect (and upset) the certainty basis of Judicial Precedent.  The various cases where Lord Denning has dissented, and then it has become law later on are numerous.  Consider for example Candler v Crane Christmas (which then gave rise to the principle in Headley Byrne v Heller regarding liability for negligent misstatement).  

One very good example, but which had dire consequences, was Broome v Cassell (1971).  The Court of Appeal refused to follow the decision of the House of Lords in Rookes v Barnard [1964], on the principles for the award of exemplary damages in tort. They based the refusal on the ground that Rookes v Barnard was wrong and decided per incuriam, in ignorance of two previous decisions of the House. When Broome v Cassell & co. Ltd reached the House of Lords, the Law Lords castigated the Court of Appeal for its disloyalty, with Lord Hailsham saying: "[I]t is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way and, if it were open to the Court of Appeal to do so, it would be highly undesirable ....The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers."

The most unfortunate thing of all, as Denning, later showed by his remorse and regret when writing in one of his books, the approach he adopted in Broome v Cassell & co. Ltd meant that the court ordered Commander Broome to pay part of the costs of the hearing in the Court of Appeal, which he would not otherwise have had to do had the decision not been what it was.

As you approach this area (like any area) and in answering an exam question, remember that just reciting the principle will never ever be enough.  Know what the 'issue' in an area is...and for judicial precedent, the issue is the activist judges and the devices used to circumvent precedent (e.g., distinguishing, etc).  So in answering, look at EXACTLY what is asked about the question, dissect it, and then discuss in the answer, what has been raised.

Recent Developments in the Law - Preparing for Law Exams

Part of the preparation for law exams, is ensuring you are up to date with the current position in the law.  Unlike a dealer in tangible commodities, there is nothing tangible that a client leaves a lawyer's office with, having parted company with a substantial sum (which is undoubtedly the reason lawyers are not necessarily 'flavour of the month').  As such, I feel it is important to always bear in mind, that effectively, there are only two things a lawyer sells -- his time and his knowledge.  Thus, if he is not up to date in his knowledge, he is, by all accounts, selling 'stale goods'.  It is in the preparation of law exams that you cultivate this practice of keeping up to date in your legal knowledge.

There are some topics which require more cultivation than others.  So, for example, when one considers trust law, or land law, or even contract and commercial law, these tend to be fairly settled areas.  So much so, that when a case comes along it creates quite a stir (think Stack v Dowden in land and Shogun Finance in contract).  Other areas though, need a fair bit of constant review...in particular, English Legal System (CLRI), Public Law, EU Law, Labour Law, and to some extent, Family Law and Criminal Law.

Focusing on ELS/CLRI, Public and EU specifically, these three subjects are extremely dynamic (so they are always undergoing constant change), and you need to ensure that you keep up with the daily commentary, news and updates.  So, for example, when you consider legal services, and the provision of legal aid, recently there have been considerations to change the way personal injury litigation and its funding is dealt with.  Equally, with Public Law, the House of Lords reforms have seen some strange happenings based on the Coalition government's inability to come to some logical agreement; and in respect of the EU, there has been the murmurings of the UK's potential (really?) departure.  As such, you don't need to 'reinvent the wheel'.  You should not plagiarise...EVER...but by reading and analysing the commentary from credible commentators, you can see the cogency of the arguments for and against a particular topic.  You can then build on that with your own views and the evidence and facts of the particular topic.

Most syllabuses have a 'cut off' date by when you need to know the law on a particular area that will be tested; so, for example, the University of London International Programme's requirement is that you will be tested on the law as it was as at February 15th of the year that you are sitting the exams.  That said, if there has been dramatic changes since February 15th, and you have kept abreast of the changes, then you really should push for a 'higher mark' by showing your knowledge to the examiner (if it's relevant of course!) by showing that you are aware of the position relative to the question, and respond to it in an intellectual manner; and not necessarily stick to the law as at the cut off date.

Don't just confine your reasoning to what you have read in the textbooks.  Ensure that you keep up to date on the law in a particular area.  Ensure you visit websites such as the guardian.co.uk, independent.co.uk, bbc.co.uk, all of which have internal searches.  Whilst these are all free, you could subscribe to the times at timesonline.co.uk.  It costs £8.99 per month but is really good value as there is a student law section each week, it is searchable, and there is the bonus of the law reports.

Lastly, by keeping up to date on the current position in the law, it emphasises and displays your research skills...an added bonus in your law exams........so start reading!!! (NOTE: I have tried to place interesting links on my Facebook page that you can read current commentary on certain topics).

New Year - NEW WEBSITE

January 1st tends to invite incredible hope...a newness.  Whatever has happened in the last year, whatever has gone wrong, January 1st conjures up a feeling of 'starting afresh' and making things right.

By now, most of you will be considering exams...either paying for them, preparing for them, or selecting the exam subjects you will be sitting.  Whatever the case, I'm sure you are feeling the 'freshness'...for all the books you didn't read, assignments you didn't do...you have now undoubtedly made resolutions to study more, read more, write more, and ensure assignments are done and handed in on time.  But what may stop you, of course, is that some of the reading may not in fact have been as clear, or been as 'clear as mud'.  Well, my new website, opened today, offers understandable lectures that will assist you.  At present, only land law, contract law, Public law and English Legal System (CLRI) are available.  Others will be added over the next 4-8 weeks.

You may purchase one lecture, a series of lectures, or 'add on' online seminars (but only if you choose the series).  I feel sure that you will feel a level of comfort and understanding with the Sessions, and certainly invite your feedback.  JH

Answering Law Exam Questions - Contract Law

Today, we will consider  Contract Law, and in particular, question 1 which was posed on the University of London LLB Programme’s 2011 Contract Examination paper. 

The Question reads:

On Monday, Angela telephoned Barney in response to an advertisement in the Weekly Chronicle, a local newspaper. Barney’s telephone was answered by Clara, his absent-minded wife. Angela introduced herself and stated, ‘I agree to buy the advertised car at the advertised price. I’ll send a fax confirming this.’ Clara replied, ‘Great – I’ll let Barney know when he gets in.’  When Barney returned home, Clara could no longer remember the details of her earlier conversation and told Barney, ‘Some woman rang about the car and she is willing to buy it.’ On Thursday Barney found the fax and replied immediately by email stating, ‘I agree that the car is yours at the agreed price.’ Unfortunately Angela received only part of this message due to a defect in her email programme. On Wednesday of that week the value of the car had dropped by half because of the introduction of a new model. Angela refused to take the car.  Advise Barney.

Contract Formation questions tend to be a staple of any LLB Contract law exam paper.  The examiner details various communications which have taken place between 2 (or more) parties, and then the issue invariably turns on the effect of these communications in determining the contractual status between the parties because one party now either seeks to enforce the various communications as a contract; or seek to not abide by the agreement.

The most important thing to bear in mind in contract formation questions, is that YOU should determine the status of each communication.  Don’t let the examiner TELL you what it is.  So for example, a question might say X placed an advertisement on his windscreen offering his car for sale for £10,000.  B was passing by his house and saw this and called A to accept his offer.  Well, by any stretch of the imagination, legally, this is not an offer and an acceptance given what you know about adverts.  So just because the Examiner uses the work offer in respect of the advertisement and uses the word acceptance in relation to the telephone call, does not mean that’s what it is.  YOU have to explain the effect of the advertisement on the windscreen and you make your own submissions and tell the examiner the status of the communication, not simply take the words the question uses as being gospel.

Consider the chronology of the events as they happen as well.  So here, although the call is from Angela, we see that it is in response to a newspaper advertisement as we are told:

“…in response to an advertisement in the Weekly Chronicle, a local newspaper”

What you will need to do is to tie down an analysis for that first communication as everything you do will flow from that.  Because if you start off saying it’s an ITT, then Angela’s response is an offer.  Equally, if you say it’s an offer, Angela’s response will either be an acceptance or counter offer.  So that is why examinees’ answer papers will differ.  Because one person might say it’s an offer (depending on the discussion of course) and another might say it’s an invitation to treat (again depending on the discussion).  Much depends on your discussion and your submission here - - so are you saying it’s an offer or invitation to treat?

Notice how the examiner frames Angela’s response when she calls responding to the ad:

‘I agree to buy the advertised car at the advertised price. I’ll send a fax confirming this.

You would need to discuss the main cases for offer because it appears she thinks she is accepting so you need to discuss what is required for an offer, as she can only accept an offer, and also discuss invitation to treat given that we are told it is a newspaper advertisement.  So you would have to briefly focus on the relevant cases; Storer v MCC and Gibson v MCC for offer; and Carlill and Partridge v Crittenden for ITT.  You also need to make submissions.  This seems to be one of the biggest downfalls of law students…failing to 'nail their colours to the mast' as it were.  They discuss, but make no submissions.  It is good form to make submissions.  So once you have done the discussion, submit that, based on how you have argued, it is an advertisement or ITT.  And then move on to discuss the status of the next communication in light of your submission.  So if you end up saying the advert is an ITT, then discuss the next issue as the offer that Angela makes and how that offer comes into being, particularly, you would need to focus on the offer being communicated as the message was given to Clara.  If you submitted that the ad was an offer, then you would need to discuss the effect of the acceptance by Angela and, again, as the message was given to Clara.

The question says ‘Advise Barney’ so that’s what you do – answer the question and advise Barney.  What are you going to advise him about - - look at the end of the question, 

Angela refused to take the car

You have to advise Barney about this.  The issue is - - Is there a validly formed contract?  Because if there is, Angela will be liable to Barney but if there isn’t she is not.  I would certainly suggest an introduction that started along the lines of:

In advising Barney as to whether there is a validly formed contract between him and Angela, giving rise to liability on her part, it is necessary to consider the status of each communication between them in determining whether such a liability exists.

I would then continue and consider the chronology of each communication.

Now in the discussion relating to the advertisement of the car in the newspaper, as I’ve already discussed, you would want to draw on the law relating to ITT and offer in discussing this.  Now based on Carlill, we know that an ad can amount to an offer, but it must meet the criteria for an offer.  The question is deliberately vague and so it is possible to submit it is an offer.  But the safer approach based on the facts you have, is to submit it is an ITT.  The offer would then be when Angela speaks to Clara and, of course, it must get to Barney.  But even if you said the ad was an offer, you would need to mention the case you know about a third party passing on… meaning the case of Dickinson v Dodds and the reliable third party in respect  of the message to Clara.

The examiner has also raised the issue of communication by fax.  You would need to consider the rules and cases in relation to instantaneous communication, the minute a fax machine or even email is used.  So you would need to discuss Entores v Miles Far East; Brinkibon v Stahag Stahl and the Brimnes.  If Barney was purporting to accept Angela’s supposed offer, then you would need to explain the issue of the failure of the entirety of the email to get to her and the defect in that communication.

Now that is my suggestion on your approach to answering this question.

Answering a CLRI/ELS Question - Supreme Court

As promised today, let's consider a question from Common Law Reasoning and Institutions (as it is named on the University of London International Programmes Syllabus) or English Legal System as named by some other Universities' syllabus.

This is a question previously posed on the University of London Internationl LLB Programme’s 2010 CLRI (ELS) Examination paper. It reads:

"The role and functions of a court of appeal and a supreme court are different. The United Kingdom has created a Supreme Court in name but not in function; it would be better if no change had been made." Discuss. 

This is a very good question for you to display your research and analysis skills.  The first thing to do in preparing to answer the question, is to not only consider the framework of the UK Court system but also think what 'a' Supreme Court does.  So the basic approach to this question can be broken down into five sub-parts:

1. What is an appeal Court?
2. What is a Supreme Court?
3. What are the functions of the two?
4. A statement is made – it would have been better if no change had been made - - what do you think (but not using the words ‘I think’ - - but making submissions)
5. What about the fact the HL sat in the Legislative upper chamber? 

SO AN INTRO MIGHT START WITH: 

Whilst the first statement appears a truism, taken as a whole the entire statement does not necessarily appear accurate.  Indeed, the role and function of an appeal court is largely to exercise appellate jurisdiction for lower courts.  Conversely, a Supreme Court suggests a more constitutional role, with the ability to scrutinise and, where possible, intervene in unconstitutional matters.  The Supreme Court in the UK has been the result of an evolution in the UK, which has seen a physical change.  However, whether in substance, i.e., whether it has been more than a name change, has to analysed and, further, reviewed as to whether maintaining the status quo would have been better......... [THIS SHOWS THE PATH YOUR ESSAY WILL TAKE]

YOU WOULD THEN CONTINUE INTO A SECOND PARAGRAPH ALONG THE LINES OF:

In 2009, the Supreme Court of England and Wales came into being, moving into new premises in the London Guildhall and discarding its cloak and nomenclature of the House of Lords.  The functions of the HL had been not only to consider appeals, but where difficult areas of law required intervention, this was undoubtedly considered, for example, when one considers a case such as FCC v Anisminic.  The fact though, is that given Parliamentary supremacy, the role of the Supreme Court is arguably of an appellate nature as, unlike in the USA where unconstitutional laws can be struck down, that cannot be the case in the UK.  An appeal court - - (at this point, you would say what it does),  Whereas a Supreme Court - - (at this point, you would say what it does)....[THIS SHOWS DEFINITION, THAT IS,YOU DEFINING CERTAIN KEY MATTERS]

YOU WOULD THEN:

1. Go on to then discuss the differences
2. Any cases that show the conflict – e.g., Burmah Oil v Lord Advocate

So in the structure of your answer you should, by say paragraph 3 to 5 (depending on how long or short your paragraphs), have given an indication as to the arguments for, and maybe do a couple of paragraphs on that, and by say paragraph 4-7 (again depending on length of paragraphs), do a couple of paragraphs which show the argument against. 

I am from the school of thought that you SHOULD make submissions in favour of a position, although you will get examiners who will say you don’t have to choose a side, rather, you can simply give the arguments for and against and conclude.  I feel that it makes your discussion ‘cleaner’ if you lean in favour of a position because your discussion then seems like a better analysis leading to a particular conclusion, and it forces you to think about, analyse, and put forward the alternative arguments.  But that is my personal view and you have to see what works for you.

Finally, you would want to then conclude BASED on your discussion.  One of the biggest problem areas I find in law students' writing, is their conclusion.  Never, introduce new points in your conclusion and always try to use the essay statement's words in your conclusion.  So you shouldn't be raising something you have not mentioned at all in the body of your discussion.  The conclusion is to pull your discussion together and if you have put forward a strong argument in favour of the position you have taken (if you have leaned in favour of a particular position) then say that and also briefly remind about the weakness(es) of alternative arguments.  But your conclusion should not be a rewrite or re-hash of what you have just written.  However, the examiner is not stupid (we hope!) and so if you have just 'waffled' in your discussion and given a descriptive account, it is not going to make a good conclusion to then say in your conclusion,....Therefore, the role and functions of a court of appeal and a supreme court are different and the United Kingdom has created a Supreme Court in name but not in function, and it would be better if no change had been made... [THIS WILL NOT 'FOOL' THE EXAMINER IF SUCH A CONCLUSION IS NOT BORNE OUT BY YOUR DISCUSSION IN YOUR ESSAY]

Assuming that you have done your discussion, made valid arguments, and discounted any weaker contrary arguments, your conclusion may look like this:

"It is clear from the overwhelming arguments, that the United Kingdom has appeared to simply have created a Supreme Court in name only but not in function.  The UK Supreme Court appears impotent in striking down actions by the legislature which arguably borders on unconstitutionality such as occurred in Burmah Oil.  Indeed, when one compares its role and function to the Supreme Courts of other jurisdictions, for example, the High Court of Australia, or the Supreme Court in the USA, there is a stark difference in their respective approaches.  Overall, the description in the UK of a 'Supreme Court' has a certain hollow effect, however, its importance and significance cannot be underestimated and it would certainly appear a step too far to suggest that it would have been better not to make a change, not least, its location required, if not demanded, change."

That is today's suggestion.  Tomorrow, we will consider Contract Law.

Answering a Public Law Question: Parliamentary Sovereignty

Let's consider answering specific questions. Today I will do Public Law and focus on a Sovereignty question in Public law.  This question is from the UOL LLB past exams, question 3 of 2011:

With reference to statute and case law, discuss the extent to which the United Kingdom is ‘sovereign’ in relation to the European Union. 

In any question on sovereignty, you must know what are the contemporary issues which affect it.  You must know what PS is, and you must know that the two biggest impacts on PS are HRA and EU membership.  So if this is a topic that interests you then you need to know the two areas of HRA and EU law as well.

In answering an essay question, you must look at what the examiner asks…so words and phrases here which are important include: "With reference to statute and case law"…"discuss" - - "extent", "sovereign"…and the most important of all - - IN RELATION TO THE EUROPEAN UNION.  So it is not just a question in relation to Parliamentary Sovereignty - - it has a specific focus -- it asks you to contextualize Parliamentary Sovereignty vis-a-vis the European Union.

You may want to start with definitions or paths.  A good starting point is to explain the concept of 'sovereignty', briefly discussing the difference between legal and political sovereignty before proceeding to focus on legal sovereignty. On legal sovereignty, given you are under exam conditions, the best course would likely be to adopt AV Dicey‟s three-part explanation.

You would then need to focus on, and turn your attention to, the European Union, (which is the crux of the question) and give a brief explanation of its origins and evolution. Because The question called for ‘reference to statute and case law’ this would require you to explain the major cases decided by the Court of Justice of the EU, on the issue of sovereignty, as well as the major cases on the subject by the domestic courts. In relation to the European case law, you would need to include the seminal cases of Costa v ENEL, Van Gend en Loos, Internationale Handelsgesellschaft and Simmenthal. In giving a well rounded answer, it would raise your marks to show you understand the workings of the EU, and therefore you would want to briefly discuss the concepts of direct and indirect effect and state liability, again making good use of case law. From the domestic standpoint, the European Communities Act 1972 would need to be discussed, and you would then need to explain how s.2 of the Act operates as the conduit through which EU law enters and becomes effective in domestic law.

So in writing, a good start may seek to ensure the statement (and the words) in the question are taken account of.  So I would suggest a start like this:

In determining the extent to which the UK is sovereign, when considered in the context of the European Union, it appears clear from the case law that some degree of sovereignty has been abrogated.  The relevant statute appears to suggest that primacy has been given to EU law and this will also be examined in respect of the statement.

In the next paragraph, then a definition of Sovereignty would be needed and possibly the first indication of the EU’s impact by virtue of the ECA 1972.

In the following paragraphs, an exploration of the caselaw, in a logical fashion, infused with the examples of your knowledge of the EU framework, would show that you have a goodg grasp of the topic and  make your essay a strong one.

In the conclusion, you would then draw on the main thread(s) of your argument and show how you have answered the question.

The danger for this type of question, is discussing parliamentary sovereignty while ignoring the impact of the European Union. This would definitely show a failure to read and interpret the question with sufficient care.  Again, it is an essay question, it is short, and I would remind you that you should read it THREE times to get the full flavour.

Tomorrow.........we consider a question from CLRI/ELS

JH

Actually Answering the Law Exam Question...

Well today is the tomorrow I promised you that I would continue....

Now then, what about your question answering ability?  First, if it is an essay question, make sure you read it at least twice.  Then consider, what is the examiner asking me?  Do not just see ‘an adverse possession question’ - - look at what exactly ABOUT adverse possession the examiner is asking.  Then you answer the essay question logically.  Meaning, you start with a path, then definition (or definition then path) then you set out your arguments in favour of the position advanced, then any arguments against your position, and then you conclude. 

One of the ways to stay focused in an essay question, is to keep referring to the words used in the question after you write a paragraph or a couple of short paragraphs.  Then it means that you are answering THAT question…the question asked by the examiner, not just ‘an adverse possession’ question which generally tends to be a general ‘everything I know about adverse possession’ type answer.

In an essay, read the question carefully to make sure you understand what is required. Look carefully at the key words and phrases, which indicate the sort of answer you are expected to give. Very few essay questions require merely factual descriptions of what the law is; you will almost always be required to analyse the factual content in some way, usually highlighting any problems or gaps in the law, and suggesting possible reforms. If a question asks you to analyse whether the land registration system has now made the position better in relation to adverse possession you should not write everything you know about adverse possession and finish with one sentence saying the system is now better. Instead you should select your relevant material and your whole answer should be targeted at answering whether or not the system is better.

What about Problem Questions? These consist of facts, usually with the direction to 'Advise X [one of the parties]'. The aim will be to analyse the facts to identify the legal issue(s), and analyse the law to find the relevant legal rule(s). Next will be the application of the law to the issue(s), and reaching a conclusion. Remember I R A C : Issues Rules Application Conclusion...OR - C L E O - Claim   Law    Evaluation    Outcome - - So the structure of the entire entire essay, from paragraph 1 to the end, should reflect the structure of IRAC/CLEO, e.g., paragraph 1 could reflect I/C; paragraphs 2-3 could reflect R/L; pararagraphs 4-5 could reflect A/E; and paragraph 6 could reflect C/O.  So as a reader reads through the answer, it is logical and coherent...please DO NOT do sub-headings which say Issue, Rule, etc., etc...that is wrong.

This is general advice on how to approach a special type of exercise to which law students have been subjected from time immemorial, whether in seminars or examinations - namely the problem-type exercise.

You can identify these because typically they begin with a statement of hypothetical (and sometimes faintly improbable) facts and end by asking you to "Advise" one of the parties, although sometimes you will be asked to "Discuss the case" or "Discuss the liability of one of the parties".

Again, don’t visualise the facts as being ‘real’ rather, focus on the legal rules and principles which arise.

The writing is critical - - ANSWER THE QUESTION ASKED - - Legal writing is about formality.  If I ask you – what is your name? - - the answer is not ‘Jennifer’ - - it is ‘My name is Jennifer Housen’.  As such, when the examiner gives you a set of facts and at the end say ‘Advise X’…the answer is not ‘A lease is an interest in land etc, etc.’ - - no that is the answer to the question, ‘what is a lease’.  Even if the question is about a lease, If the question asks you to  ‘Advise X’, The correct answer is - - in advising X, etc., etc.,

There is an American TV programme called Jeopardy and the idea behind it is, you are given an answer and you have to phrase the question, so for example the host says ‘Queen Elizabeth the Second’ and the contestant says ‘who is the queen of England’.  Well, your answers should reflect something like that.  When a reader reads the first line, sentence or paragraph of your answer, without knowing what the question asked, that reader should be able to look at your answer and know the question, simply by seeing the structure and response you have given.  So if in relation to my example on X, if my answer was:

In advising X, the status of A, B and C’s occupation will be considered to determine whether or not their occupation is binding on X as the purchaser of Blackacre…then in that less than 2 line introduction, the person reading my answer becomes aware of X, and A, B and C, and know that they are apparently occupying Blackacre which X has purchased...that says my job is done...I have answered the specific question asked.  

Finally, be succinct, be precise, and write in the third person.

Over the next few days, I will consider specific questions and how you would answer them...tomorrow, I will start with contract.