Please see the ‘guide to writing legal essays’ and the OSCOLA referencing guide on the ALPS Moodle site and details in your ALPS Handbook.
You will be assessed in relation to:
• the range and relevance of sources used (you need to demonstrate research effort and skills locating a variety of relevant references)
• the appropriate use of footnotes and the bibliography
• the structure and clarity of your argument
• the quality of legal analysis that you provide.
The essay should be type-written in a font no less than 12 point. It should be double spaced with a one inch margin around the whole page and stapled. Your essay must not exceed 1,000 words (excluding bibliography and footnotes). The word count must be provided on the coversheet. Exceeding the word count will result in penalty marks being deducted. School of Law
Guide to writing
THIS IS IMPORTANT – READ AND USE!
At Oxford, I studied mathematics. No need for words there. The tools I used then were numbers, letters and symbols. They were lifeless things without meaning or sound – the necessary tools of the scientist but not of the lawyer. But when I was called to the Bar, I had to become proficient with words . . . I had to practise continually. As a pianist practises the piano, so the lawyer should practise the use of words, both in writing and by word of mouth.
Our clients are entitled to assume we know the law – so they tend to judge the quality of our legal advice as much through presentation and efficiency as through objective assessment of whether it is right or commercial. This means that every document and every letter must be perfect. Even minor mistakes will compromise our professionalism – a missing word here or a superfluous comma there can change the entire meaning of a clause.
Freshfields’ Graduate Recruitment website
This guide is to enable undergraduate students of law to present their essays according to the conventions of legal academic writing and to the requirements of the teaching staff of the School of Law. We suppose that most first-year students will not be familiar with the conventions of legal academic writing and that international students may need guidance in the use of English in the law. All students, however, are expected to write legal academic English and to conform to this Guide in their written work.
Do not think that we are just being pedantic in expecting you to learn and observe the conventions of legal academic writing; it is a necessary part of learning and applying lawerly skills, especially those of paying attention to detail and closely following instructions. It is vital that you develop your writing skills to a high level because employers tell us all the time that the standard of written presentation of letters of application and CVs is low. They say that letters and CVs which are not properly presented and have errors of English go in the bin. In many areas of writing, precision in expression is vital; academic journals (not just legal ones) have very detailed style guides which must be adhered to precisely. A director at the College of Law recently said that correct and accurate use of English is crucial since competition for places of further study and for jobs is more intense than ever before, and using English correctly marks out good students or candidates and so enhances their chances of success. The extract from Freshfields’ website is typical of what all employers require in this regard – perfection.
We require you to follow the conventions set out in this guide. You must learn the conventions to be followed in basic matters such as how to set out your essay, how to write footnotes, how properly to cite cases and statutes, and how to use quotations. Also, each year a number of essays display a variety of errors in writing and presentation. Not all essays show the same errors and some show very few; but certain errors appear repeatedly or are very marked. In addition to setting out our requirements for essay writing – our house style – using this guide will encourage good writing practice and help you to avoid errors. If you develop good habits at an early stage, your subsequent performance in your course and your prospects for your future will be enhanced. In any job of graduate level, you will be expected to write emails, letters, reports and so on, and you will be judged by how well you write such things. Poor use of English will get you noticed for the wrong reasons.
A lawyer should be able, amongst other things, to communicate effectively and persuasively. Language is the tool of the job, and that job cannot be done properly if the tool is not used correctly. It is hard to be effective and persuasive if the use of English is weak. Few of us can avoid the occasional grammatical slip or some infelicity of expression, but every effort should be made to avoid errors which are so marked that they distract the reader or cause doubt as to meaning. It is notable that in certain recent case reports judges have remarked that not only is the drafting style of documents poor but mistakes and ambiguities in drafting actually give rise to litigation. One of our aims is to produce graduates from this School of Law who can write well.
One of the other aims of a law degree course is to learn to ‘think like a lawyer’. That aim is more likely to be fulfilled if, from the outset, you adopt the conventions of legal academic expression. ‘Thinking like a lawyer’ needs to be accompanied by ‘communicating like a lawyer’ (where you are communicating with other lawyers, that is). The lawyer is not composing literature; the style of expression should be clear, objective, detached and concise. Thinking like a lawyer also means learning and using certain methods of analysis and exposition. The School’s ALPS course (LW105) for first years is not something distinct from other courses but what is taught there should be applied in all other courses, and not only in your first years but in subsequent years. Adoption of the conventions of legal academic expression is necessary and also shows commitment to and interest in the degree course you have chosen to follow. There is, of course, room for individuality within the conventions.
Not all of you intend to become lawyers but the skills, including writing skills, you will learn as a law undergraduate are highly valued in any job. They are, to use the jargon, ‘transferable skills’.
It ought to be the case that those marking essays should be able to concentrate on the content and not be distracted by weaknesses in style and grammar.
A. WHAT YOU SHOULD DO
1. Basic requirements of presentation
• do not write out the question
• text must be double spaced
• margins must be wide enough for comments
• font size must not be less than 12 point
• footnote numbers should be placed after punctuation
• footnotes must be placed at the foot of the page
• pages must be numbered at the top right-hand corner (assuming you are printing on one side only of the paper)
• it is a convention to start the first line of the opening paragraph justified up to the left edge, and for the first line of all subsequent paragraphs to be indented. You can see this done in the Introduction to this Guide.
• citations, references and quotations, and bibliographies must be written as set out in this guide
• dates must be given according to British English convention,
i.e. 1 January 2004 (the reverse usage, January 1, is American)
• page references must be given in full,
e.g. 234-238, not 234-8
• numbers up to ninety-nine, except statute sections, must be in words, not numerals
e.g. ‘two years’, ‘all three parties’, ‘fifty-two sections’ (percentages are, however, written thus: ‘25 per cent’)
• read the rubric (the instructions) carefully and follow the requirements. This may sound obvious but it is very common for students in essays (and examinations) to fail to follow the rubric (especially, in examinations, to fail to answer both parts of a two-part question: in a final year examination this year, this mistake caused a candidate to get a 2:2 instead of a 2:1). If it says, for example, ‘include
a bibliography’, it is unimpressive to fail to do so. Check if there are mark penalties for failing to follow the rubric.
2. Sources of material for your essay
Be guided by the lecture synopsis, including the reading references given there, and your notes taken in lectures and tutorials as to the area of study (but do not cite your notes in footnotes or mention them in a bibliography). You should, however, supplement these with your own further reading from the sources. Lawyers talk of primary and secondary sources.
Primary sources are statutes, cases and official reports (such as Law Commission reports).
Secondary sources are textbooks and articles in legal academic journals such as The Conveyancer and Property Lawyer. Secondary sources are the result of research by academics such as the members of staff of this School. In the law, research does not mean what it means in science where discoveries are made; rather, it means exposition and analysis of, and commentary on the primary sources. In all areas of law, there are one or two leading textbooks which are of such high authority that the exposition in them of the law may be used by judges in their efforts to state what the law is. Comment and analysis in other textbooks and in articles in the journals provoke critical evaluation of the law. Your bibliography, where one is required, should list those secondary sources you have used (but not statutes and cases – see 10 below). Do not overlook reference works such as Halsbury’s Laws.
3. Essay structure
Plan the essay so that it has a beginning, a middle and an end.
The beginning should be a short introduction which identifies in broad terms the legal issues raised by the question. A single paragraph may be enough.
In the case of a problem question, the middle or body of the essay identifies and addresses points intended to be raised by the particular facts. The set methodology is:
(i) identify the legal issues raised by the facts
(ii) state what law applies to those points (the law may be case law, or statute, or a mixture of the two, and may also involve reference to leading textbooks and articles)
(iii) apply the law to the points
The third part of the methodology – application – frequently makes the difference between a mediocre essay (or examination answer) and one of upper second quality. Anyone can learn the law – that is not enough. It is the ability to use the law, to apply it, which matters. Application means using the relevant law to answer a question, to solve a problem. It may be (but not always) that the question deliberately omits certain information which would be needed fully to answer a point. It is expected that students realize this and offer alternative solutions according to whether the complete facts would point to one or another.
Such is the methodology used by judges in giving their judgments, as any reading of a case report will show. The judges state the facts of the case (the equivalent of the problem question). They then state the relevant law and apply that law to the facts. They come to a judgment accordingly.
In the case of essay questions which are not problem questions, the middle of the essay should identify the particular points arising and say how the law deals with those points by reference to what judges and commentators say about them. It is likely that there is some element of debate or controversy on a point, and that debate or controversy should be mentioned.
The end or conclusion of an essay sets out the essence of what has been said and draws together the points made. You may also add your own comment on the issues but only if based upon arguments given in the body. The conclusion may be quite short.
In the body of your essay, use paragraphs. These should be used to make a point. Try to link paragraphs together.
An essay question may consist of two or more parts or sections. You will then need to adapt the basic structure indicated above to such an essay. You should write an overall introduction, answer the several parts, and finish with a conclusion. Note that not all parts may need the same amount of attention. There is no objection to setting out your essay according to the sections of the question, and this may be the obvious and logical way to proceed. Thus, where a question has, say, six parts (a) to (f), your essay may be set out in the same way as opposed to being a continuous narrative. Where a question has two parts, you have to make a judgment as to how much space to devote to each part; do not assume that both parts deserve equal attention.
It is most important to remember never to make any statement which is not supported with authority. Every statement or assertion must be accompanied by a reference to a statute, a judge’s judgment, a commentator’s article or to a leading textbook, but not to lecture or tutorial notes (as students sometimes have done). (See 11 below.)
4. Case names
Case names must be written in italics when work is word processed. This includes case names given in footnotes as well as in the text of the essay. Do not underline case names or set them in bold.
The Oxford Guide to Style recommends the first example shown below which uses italics for the actual names but with the ‘v’ (for ‘versus’) written in roman and without a point (full stop). Different legal publishers have their own preferred styles, examples of which are given. Any is acceptable – the important point is to be consistent.
Parker v British Airways Board
Parker v. British Airways Board
Parker v British Airways Board
5. Case citations
There is no place for individuality in this – follow the conventions, otherwise the citation does not do its job which is to make it easy to find the case. Just as it is vital to be precise with website addresses, so it is with citations. A marker should be able to check a reference immediately.
• Give the full name of the case in the text, and put the citation as a footnote at the first mention of the case – the citation is not necessary after the first mention.
• Do not split the reference by putting the year after the case name and the rest of the citation in the footnote.
• After the first mention of a leading case, it may be referred to by its commonly accepted short form, e.g. Parker.
• In citations, it is now usual to dispense with points (full stops),
e.g.  QB 1004.
• When quoting from a case, give the citation in a footnote with the page number, or paragraph number in neutral citations, after a comma, e.g.
 QB 1004, at 1010
 EWCA Civ 401, at 
(Some publishers omit the ‘at’ – it is a matter of preference, though The Oxford Guide to Style recommends its omission.)
It is not sufficient, when quoting from a judgment, to give only the case citation. You must pinpoint the precise location in the judgment of the quotation by giving the page or paragraph as shown.
When quoting from a judgment, the judge’s name may be given in the text, e.g. ‘As Donaldson LJ said, ‘ . . . ’, with a footnote as mentioned. Alternatively, the quotation may be given in the text with a footnote reference thus:
 QB 1004, at 1010 per Donaldson LJ
Do not, as a rule, cite case references from electronic databases such as Westlaw where a law report for that case is available. Database reports are not always accurate; they should only be used when the case is so recent that a law report is not yet available.
6. References to statutes
The first mention of a statute should give the name in full, e.g. Law of Property Act 1925. The definite article is not part of the name and should not be capitalized: write,
the Law of Property Act 1925
not The Law of Property Act 1925
After the first mention of an Act which is well known and which is referred to several times in your essay, its name can be abbreviated, e.g. LPA 1925, or, where there is no other by the same name, without the year, e.g. TLATA (which is sometimes seen as TOLATA: both are acceptable – just be consistent).
Do not underline or set in bold the names of statutes or put them in italics.
Do not give any book reference for a statute: some students cite, e.g. ‘Law of Property Act 1925, s 53(1)(b)’ and then give a footnote reference for a statute book. This is wrong. Statutes do not have such references.
When referring to sections, abbreviate ‘section’ to ‘s’ and ‘sections’ to ‘ss’. The Oxford Guide to Style suggests no point after the ‘s’. When the word ‘section’ starts a sentence, write it in full (with a capital letter ‘S’, of course),
e.g. ‘Section 5 of the Act says . . . ‘
Write the word ‘section’ when it is not followed by the number, e.g. ‘ . . . but this section has been held . . . ‘
Section numbers, subsections and paragraph letters should be set out according to convention, which is, a space after ‘s’ but no spaces after,
e.g. s 53(1)(b)
There are two ways of referring to a statutory provision:
• Law of Property Act 1925, s. 53(1)(b)
• s 53(1)(b) of the Law of Property Act 1925
either is normal, but be precise. Note the comma after the name of the Act in the first way.
7. References to textbooks and articles
As with cases, there are conventions for setting out these. In the first place, avoid blatant inaccuracies; e.g. a student has been known to make reference to the fourth edition of Mark Thompson’s Modern Land Law when the current edition is the second! Such carelessness is unacceptable.
The method recommended by The Oxford Guide to Style for giving full textbook references is as follows:
• to give the author’s name, in roman, as it appears on the title page of the book, and followed by a comma
• the title in italics and followed by a comma
• the edition
• in parentheses, the place of publication, a colon, the publisher, a comma, and the year
e.g. Mark P Thompson, Modern Land Law, 2nd edn. (New York: Oxford University Press, 2002)
(Remember to cancel the ‘I’ icon on the toolbar before typing the comma which follows the title.) In footnotes, however, the part in parentheses is omitted: Mark P Thompson, Modern Land Law, 2nd edn. Then put the page number.
After the first mention, use an intelligible abbreviation, e.g. Thompson. Clearly, if more than one work by the same writer is used, you must include the work, e.g. Thompson, Modern Land Law. When quoting from a book, you must give the page number after the reference, whether first or later, e.g. Thompson, p 86. The trend now is to repeat a reference this way, and to avoid ‘op. cit.’, ‘ibid.’ and the like.
However, a textbook reference should be set out in a bibliography with the author’s or authors’ first names after their surnames thus:
Thompson, Mark P, [and the rest as above]
Gray, Kevin, and Gray, Susan Francis, Elements of Land Law, 4th edn. (New York: Oxford University Press, 2004)
When setting out your bibliography, the full reference as recommended by The Oxford Guide to Style must be given – see 10 below.
References for articles start similarly, then with the title of the article in italics followed by the journal reference:
M. Haley, Licences of Commercial Premises: a return to Form?  J.B.L. 310
Take the trouble to know the meaning and correct usage of reference terms such as ‘ibid.’, ‘op. cit.’, ‘loc. cit.’, ‘ante’ and ‘supra’. Note that overuse of these tends to suggest immature and spurious academicism. (In fact, the journal Modern Law Review, in its style guide for contributors, requires the use of equivalent English terms rather than Latin ones, i.e. ‘above’, not supra, ‘below’, not infra.)
8. It is a convention in legal writing to have one ‘e’ in ‘judgment’.
A judgment is a decision of the court. A judgement is a moral or comparative evaluation, and so is personal. Judges give the judgment of the court; they do not offer a personal judgement of the case.
9. Quotations and Paraphrasing
Remember that when you quote, you must quote exactly. Short quotations are set in single quotation marks and are run on in the text, e.g.
. . . but Herle J retorted that the judges would not ‘undo the law for a cartload of hay’.
Longer quotations should be displayed by being indented, two spaces below and with the font size one point less than the text. No quotation marks are used. E.g.
‘Lord Birkenhead, who piloted the earlier legislation through Parliament, described its policy in the following terms. He said:
Its general principle is to assimilate the law of real and personal estate and to free the purchaser from the obligation to enquire into the title of him from whom he purchases, any more than he would have to do if he were buying a share or a parcel of stock.
He sought to achieve what was probably an unattainable goal . . . ‘
Of course, any quotation must be footnoted giving the source. If, in part of a quotation, you have to deviate from the original, put that part in square brackets, e.g. ‘[Parliament] is therefore taken to withhold . . .’ where the original said ‘it’ and not ‘Parliament’.
Paraphrasing means putting someone’s ideas in your own words. So, instead of an actual quotation from a book or article by, say, Mark Thompson, you write, ‘As Thompson argues . . . ‘ and say what Thompson argues in your own words. You will probably stick closely to Thompson’s own words, and you must still cite the book and page or the article in the prescribed way.
Rubrics often require that you give a bibliography. This is to show what research you have done for your answer. You should refer to more than one major textbook, and, perhaps, to articles.
• give the names of cases or of statutes or of statute books in your bibliography; it should be clear from the essay to what extent you have referred to cases and statutes.
• cite ‘Nutcase’, ‘Nutshell’ books and the like – these are not academic research material
A bibliography should set out the full reference for a book, but unlike the reference in a footnote, the author’s surname is given first, followed by a comma and the forenames and/or initials according to how the author’s name appears on the title page book of the book. The order should be alphabetical according to surname, e.g.
Sparkes, Peter, A New Land Law, 2nd edn. (Portland, OR: 2003)
Thompson, Mark P, Modern Land Law, 2nd edn. (New York: Oxford University Press, 2002)
If there are two authors, give their names in order as they appear on the title page of the book, e.g.
MacKenzie, Judith-Anne, and Phillips, Mary, Textbook on Land Law, (New York: Oxford University Press, 2004)
When you have typed the title in italics, remember, as mentioned above, to cancel the ‘I’ icon on the toolbar before you type the comma which follows the title.
Divide the bibliography into parts with subheadings for textbooks, articles, and reference works (such as Halsbury’s Laws).
11. Support every statement with authority
This is fundamental to legal thinking. A statement unsupported by authority is nothing more than a personal opinion, and a personal opinion simpliciter has no value and no place in legal writing. A personal opinion is not the same as the reasoned opinion of a person, a cogent argument, developed from due consideration of the stated authorities. It would, for example, be insufficient to say (as was said in one essay) of an issue, ‘the law in this area is inconsistent’; that may be true and it may generally be known to be true; but the truth of the statement must be demonstrated by citing contrasting cases which reveal the inconsistency. It is only in this way that markers of essays (and examination scripts) can see that you know and understand the law. Authority may, of course, according to the context, be from case law, statute, and from a leading article or textbook.
12. Use examples from cases, not from imagination
Sometimes, students illustrate their answers with imaginary examples. For instance, in an essay on Fixtures and Fittings, past students have mentioned items they have thought of, whereas only items the subject of a case must be used. Only take examples from actual cases and give the correct citation.
13. Reading through your work
After writing an essay, wait a day or two, and then read it through as though it were someone else’s that you were reading critically. This should help to avoid many errors. There are provisions for others to help by reading through your work though this must be acknowledged in the prescribed way.
14. Hand in your work in time
Why lose marks unnecessarily? There is now zero tolerance of late submission of assessed work. So, the result of late submission can mean no mark at all instead of a good mark.
B. WHAT YOU SHOULD NOT DO
1. You should not the use the first person
Legal academic writing should be detached and objective. Judges, of course, do use the first person in their judgments, but they generally preserve the necessary detachment and objectivity, avoiding tending to emotion. (For a dryly amusing anecdote, see Re Baden (No2)  1 Ch 9 at 18 per Sachs LJ.) The judge is giving a speech which is then written up; also, use by judges of the first person helps to distinguish their speeches from those of their brethren.
The use of the first person is not the accepted convention in legal academic writing. (You may see exceptions but these are not models to be followed.) Do not write, ‘I think’ or ‘to my mind‘ or ‘I would argue‘. It is no better to write, ‘in this writer’s opinion’. Find a different construction such as, ‘It follows that . . . ‘.
Students sometimes ask for guidance on how to avoid using the first person in writing essays. Text books and articles in journals (and, for that matter, newspaper articles) are written in the third person.
The best way of learning how to avoid the first person is to follow the examples to be found in the text books and articles. Two examples taken at random from Modern Land Law by Mark P Thompson may help. At page 181 in the second edition, there is a section headed, ‘Acts by the Vendor’. The first sentence of this section says that a certain argument has been put, and a reference is given for the source of that argument (footnote 123). The second and third sentences expound that argument. The fourth sentence begins, ‘It is suggested that this view . . . ‘ In this way, Thompson avoids saying, ‘I think that this view . . . ‘ He goes on to state his view. Note that a further sentence begins, ‘It is thought that . . . ‘
These are obvious ways of avoiding the first person. A more subtle way is used on page 135. In the section headed, ‘Miscellaneous Rights’, Thompson lists some very old rights. He then writes, ‘This collection of somewhat arcane and archaic rights is ripe for abolition.’ He avoids writing, ‘I think this collection of . . . ‘ In this sentence, Thompson expresses his opinion in an indirect way: thus, he uses a qualifier, ‘somewhat’ (though that had better been avoided), and he uses two adjectives, ‘arcane’ and ‘archaic’. Finally, he makes an assertion: that this collection ‘is ripe for abolition’. This assertion, however, is followed by comment supported with authority; the paragraph goes on to set the assertion in the context of the ECHR and the Land Registration Act 2002.
2. Do not address the reader
Never address the reader, e.g. ‘. . . but you cannot be sure that . . .’
3. Avoid using a comma when there should be a semi-colon or a comma and a conjunction
This is a very common error but there is no excuse for it. For example, ‘This is normally the case, however there can be . . . ‘. Clauses in compound sentences should be separated by a comma and a conjunction, or by a semi-colon, e.g.
This is normally the case; however, there can be . . .
This is normally the case, but there can be . . .
Note also that such words as ‘however’, ‘nevertheless’, and ‘accordingly’ should be followed by a comma.
4. Avoid starting a sentence and then failing to give it a main clause
e.g. ‘Although there is only very old authority for the proposition that cases involving such a duty should be treated as giving rise to a trust.’
Clearly, ‘trust’ should be followed by a comma and a further clause, the main clause of the sentence, otherwise what is written is both ungrammatical and nonsense. This error suggests a failure to read through and check the text (see para.13 above).
5. Do not mix tenses
e.g. ‘his lordship said’ followed soon after by ‘his lordship says’ – be consistent
6. Avoid mixing number
e.g. ‘object was considered to be fixtures’ or ‘one of the tests that are carried out are’. Hopefully, it is clear why these are incorrect!
7. Avoiding qualifiers
This is a matter of judgment. Do not write, ‘this case is rather important’: it is or it is not! But you can write, ‘in rather similar vein, Eveleigh LJ said’.
Words such as ‘rather’ and ‘fairly’ can tend to imprecision of thought in a legal context; use them judiciously and sparingly.
8. Avoid contractions
It is still not acceptable in legal academic writing to write, ‘don’t’, wasn’t’, ‘isn’t’ and suchlike. Use the full form, ‘do not’, ‘was not’ and ‘is not’.
9. Do not plagiarise
Plagiarism is the presentation of the writing of others without acknowledgement, so that it appears to be your own work. A paragraph and even a couple of lines copied from a textbook without acknowledgement is plagiarism and you will be subject to academic discipline as a result. Downloading and cutting and pasting material from the internet is also plagiarism. Plagiarism is dishonest. It is cheating.
This is a serious academic offence which may have grave consequences. Do not think it will not be spotted – it will! Do not do it!
Also, for those students who intend to be solicitors or barristers, we have to notify the Law Society or the Bar Council (as the case may be) of any academic offence committed by an applicant. So plagiarism could prejudice your career prospects.
C. THREE OTHER POINTS
1. The problem of the personal pronoun
Unlike most languages, English does not use masculine and feminine genders grammatically as, for example, in French (le bureau, la porte), and English has no way of avoiding a gender-specific possessive personal pronoun. It has always been the convention to use a masculine pronoun which includes the feminine where the context allows, e.g. ‘every judge has to be mindful of his duty in this regard’. Other languages may use similar constructions, but in the U.S.A. and Britain, there is an opinion that this is ‘sexist’, though such an opinion seems not to be widespread elsewhere. (For example, Russian uses the same construction as English but the idea that this was sexist was never current in the Soviet Union.) This ‘Anglo-American’ opinion arguably fails to recognize that the use of ‘his’ in such a context is purely grammatical rather than exclusive of the female gender. There may be an alternative construction which avoids the use of the masculine such as using the plural, e.g. ‘judges have to be mindful of their duty in this regard’. Other efforts, however, do violence to grammar: there is a tendency to use the plural pronoun where the singular should be found, e.g. ‘every judge has to be mindful of their duty in this regard’, but this, whilst commonly to be found and in some places recommended, is clearly ungrammatical. Leading reference works try to stay neutral but concede that no satisfactory alternative to the traditional convention has been found. Until some acceptable alternative form is found, the standard convention of using a masculine personal pronoun can be used. This may, however, be anathema to some. Whatever you do, at least be consistent, and do not mix pronouns thus: ‘they’ closely followed by ‘he’, and do not write ‘he/she’ which becomes tiresome.
2. Subjective and Objective tests
In some essays, there has been confusion about what these tests are. A legal test is used to determine the meaning of something. The test is said to be subjective when that ’something’ is looked at from the point of view of the parties, for example, where it is said that a document called a licence (as opposed to a lease) must be a licence because that is what the parties called it. The test is objective when the matter is considered by the court without regard for the view of the parties, as where, following the example given, the court determines that the document is a lease because the court finds that, in law, that is what it is despite the label ‘licence’ having been put upon it by the parties. The objective test was described by one judge thus: ‘if the parties have a dog, it is a dog, and the parties cannot turn it into a cat by calling it one’.
Individual style, as opposed to style conventions as set out above, is a difficult matter. There is room for individuality but not for eccentricity. Law is a technical subject with its own terminology or ‘jargon’, just as, say, science subjects have theirs. To get a ‘feel’ for style, read articles and judgments and see how authors and judges write (though not all judges write well!).
Your prose style should not be affected; do not use obscure and complex words or make it consciously ‘legalistic’. On the other hand, it should not be so informal that it seems casual. Use straightforward language which clearly and concisely conveys your meaning. If you have ever read David Copperfield by Charles Dickens, you will remember that Mr. Micawber loved using high-flown language and so is a figure of fun. There is much to be said now for using Old English words where Latin- or French-based words would formerly have been used. There is no reason, for example, why, where appropriate, we should not use ‘end’ rather than ‘terminate’, ‘use’ rather than ‘employ’.
Here are some tips:
• do not make sentences too long
• do not make paragraphs too long
• avoid waffle and padding
• avoid colloquialisms
• avoid tiresome lead-ins, e.g. ‘It is interesting to note that . . ‘, ‘It may perhaps be said that . . .’, and the like
• avoid legalistic verbiage such as ‘aforementioned’, ‘aforesaid’
The following reference works are recommended:
Burchfield, R. W. (ed.), The New Fowler’s Modern English Usage, 3rd edn. (Oxford: Oxford University Press, 1998)
MHRA Style Guide (London: Modern Humanities Research Association, 2002) – available free of charge online at www.mhra.org.uk
Pearsall, Judy (ed.), Concise Oxford Dictionary, 10th revised edn. (New York: Oxford University Press, 2002) – this includes the very useful Appendix 8: Guide to good English
Ritter, R. M. (ed.), The Oxford Guide to Style (Oxford: Oxford University Press, 2002) – includes a special section on legal style
E. A FINAL POINT
When you have written an essay, ask yourself two questions:
• if I were in a law firm, on a placement or in a training contract, or in any other job, is this piece of work of a standard that I would be happy and confident to put in front of my boss or a client?
• is this the best that I can do?
F. WORKED EXAMPLE
What follows is the Land Law assessed essay question that was set in the Spring Term 2005 and suggested answer to demonstrate what we expect. It is not held out as a perfect answer (though it is pretty good!) but rather as a guide to style and presentation.
Answer both parts
1. Harold, Ian and Joseph, three wealthy law students, bought a house together in September 2002, with the intention that they should live there until they had completed their studies. They made equal contributions to the purchase price, and the house was conveyed into their joint names, with no express provision as to beneficial ownership. For some time they lived happily together, but in June 2003 Harold left the house after failing his first year examinations. He never returned, and in September 2003 Kenneth, another student, arrived at the house, producing documents to show that Harold had sold him his share in the property.
Ian took an instant dislike to Kenneth, and the situation in the house rapidly deteriorated. Ian decided to move out, and asked Joseph and Kenneth if they wanted to buy his share in the house. They both said that they would do so, and the three agreed that they would sort out the final details of the transaction after the winter vacation. Returning to the house in January 2004, Ian was involved in a car accident and was killed instantly. He left a will leaving all his property to his only relative, his brother Lewis.
Joseph has decided that he now wants the house to be sold, but Kenneth has objected to this, saying that he intends to live there for at least the next ten years, until he is settled in his career.
Advise Joseph, Kenneth and Lewis of their interests (if any) in the house. Will Joseph be able to sell the house, despite Kenneth’s wishes?
How would your answer differ if, instead of dying accidentally, Ian had been killed by Joseph following an argument?
2. ‘The law of co-ownership of real property continues to discriminate in favour of co-owners who are married’.
To what extent is this true?
Suggested answer (word count: 1487)
This question concerns the devolution of the interests of three co-owners. Some of the facts do not give rise to difficulty since the law gives no room for doubt as to the position. There are some points, however, which are arguable and to which, therefore, no conclusive answer may be given.
Harold, Ian and Joseph took the house as joint tenants of the legal title:
s 1(6), Law of Property Act 1925. How the beneficial interests were held is important since if they held as joint tenants, the right of survivorship would apply whereas if they were tenants in common it would not. Where there is no express provision as to beneficial ownership (which would have been conclusive: Goodman v Gallant ), it is necessary to see whether the ‘four unities’, possession, interest, title, and time, are all present. If they are, it is presumed (unless there is rebutting evidence) that a joint tenancy exists. The facts indicate that all four unities were present and there is no suggestion of any rebutting evidence. In the circumstances, however, a tenancy in common would have been more appropriate.
Harold left and sold his share to Kenneth. This was an act of severance of the first type mentioned in Williams v Hensman, and meant that the beneficial interests were then held as a tenancy in common as between Kenneth and Ian and Joseph, though a joint tenancy continued between Ian and Joseph. There was no change in the holding of the legal title.
Then there were negotiations between Ian and Joseph and Kenneth to buy out Ian’s notional one-third share. It appears that these negotiations were not conclusive, and so the question arises whether there was mutual agreement to sever the joint tenancy of Ian and Joseph, the second method in Williams v Hensman. Gray and Gray acknowledge that mutual agreement may be difficult to distinguish from mutual conduct, but affirm that there is a difference. The facts indicate mutual agreement, and though Burgess v Rawnsley suggests this could effect severance, Gray and Gray say that ‘[c]aution is required, however, in relation to the severing quality of a mere ‘agreement in principle’ if there is evidence that the parties reserved the right to alter their respective bargaining positions in the light of later developments.’ Subject to evidence to the contrary, the position here appears to be that there was no severance: Gore and Snell v Carpenter. If there was no severance, Ian’s will was ineffective as the right of survivorship operated in favour of Joseph; if there was, his will was effective to pass his share to Lewis. Ian’s death left Harold and Joseph holding the legal title on trust for Kenneth and Joseph, assuming there was no severance as between Ian and Joseph, which appears more likely.
There is now a dispute between Joseph and Kenneth as to sale. Any interested person may apply to the court for an order for a sale of land: s 14, Trusts of Land and Appointment of Trustees Act 1996. In deciding whether to order sale, the court has regard to the criteria in s 15. Before TOLATA, an order for sale might be made under s 30, Law of Property Act 1925, and the case law on s 30 may still guide judges in the exercise of their discretion. The court considers the original purpose of the trust, and, if that still subsists, sale may not be ordered: Re Buchanan-Wollaston’s Conveyance. Here, only Joseph of the original three students now occupies the house, and Kenneth’s wishes are different from the original purpose of the trust. There is, therefore, a strong argument that sale should be ordered: Jones v Challenger. Accordingly, Joseph most likely could force a sale of the house, despite Kenneth’s wishes. Kenneth should be advised of the strength of Joseph’s case to persuade him to accede to this without the expense of proceedings. For the reasons given above, it is unlikely that Lewis has any interest in the house. If he had, a sale is still likely: there is no suggestion that Lewis occupies the house and he had no part in the original purpose of its purchase. In the event of Harold not being found to execute a transfer, the court would be asked to make appropriate directions.
Where one of two beneficial joint tenants kills the other, public policy requires that the killer should not profit by operation of the right of survivorship: Forfeiture Act 1982. Assuming no severance of Ian and Joseph’s joint tenancy, such policy would deprive Joseph of any benefit by treating the homicide as a severing event which leaves Joseph as a trustee of the legal title but holding the share he would have acquired from Ian on trust for Ian’s estate: Re K. Only in exceptional cases where the justice of the case requires it may the forfeiture rule be dispensed with at the court’s discretion: Re K and Dunbar v Plant.
There are various ways in which unmarried couples are treated differently by the law from married couples. In the area of real property, the difference in treatment becomes apparent on breakdown of the relationship. The property rights of married couples, on separation or divorce, will be determined by the court which, under the matrimonial legislation, has discretion to adjust these rights as it thinks fit. Unmarried couples by definition cannot refer to this legislation, and disputes about property law can only be determined by the much less flexible rules of resulting and constructive trusts, and perhaps proprietary estoppel, to establish a beneficial interest in the property (save that homosexual partners may now have recourse to the Civil Partnership Act 2004).
Under the law of resulting trusts, a claimant is essentially entitled to get back what he or she put into the property by way of a contribution to the purchase price. Contributions to the support of the household will not form the basis of an interest in property: Burns v Burns. As Gray and Gray put it, ‘[t]o this day English law recognises no distinct regime of family property . . . The reward for generalised, and usually unquantifiable, contributions of domestic performance is to be found – if at all – only in the law of constructive trusts.’
The restrictive approach of the House of Lords in Lloyd’s Bank plc v Rosset, means that an agreement to share a home is not the same as agreeing on the beneficial interests in it. Rosset does show, however, that whilst the property interests of married couples can be dealt with in separation or divorce proceedings, even married couples are faced with the same application of property and trust law rules in proceedings brought by a mortgagee. Otherwise, the position as shown in Burns v Burns and in Rosset confirms that ‘there is a major difference between the position of unmarried and married couples, when their relationships come to an end’.
There is evidence of a more realistic approach by the courts: following Grant v Edwards , Midland Bank plc v Cooke and Oxley v Hiscock, a view of the whole relationship and the dealings of the parties may now be taken. Oxley v Hiscock is especially useful in reviewing the previous case law and seeking to make progress towards a more just and realistic handling of such cases. In that case, Chadwick LJ felt able not to restrict himself to resulting trust rules based on Miss Oxley’s undoubted financial contribution but to use this as a basis for finding a constructive trust. Since it will be very unusual for a cohabitant to make no financial contribution whatever, situations such as the facts in Burns v Burns will be rare though it is hard to see how, even now, similar facts could lead to a different result.
Dillon LJ said in Springette v Defoe, that ‘[t]he court does not as yet sit, as under a palm tree, to exercise a general discretion to do what the man in the
street . . . might regard as fair’. Perhaps now it does, and this raises the perennial question whether such fairness undermines certainty.
Gray, Kevin and Gray, Susan Francis, Elements of Land Law, 4th edn. (New York: Oxford University Press, 2005)
McKenzie, Judith-Anne and Phillips, Mary, Textbook on Land Law, 10th edn. (New York: Oxford University Press, 2004
Thompson, Mark P, Modern Land Law, 2nd edn. (New York: Oxford University Press, 2002)