Ratio Decidendi and Detailed reasons for the decision

LSM ASSESSMENT 2021-22

Case note: R (on the application of McConnell) v Registrar General [2020] EWCA Civ 559

Statute: Dealing in Cultural Objects (Offences) Act 2003

GENERALLY The Legal system and method (LSM) module will be assessed entirely by written examination in May 2022 or October 2022. The examination is divided into three parts: A, B and C. All parts are compulsory.

 Part A (25% of the overall marks) relates entirely to the case of R (on the application of McConnell) v Registrar General [2020] EWCA Civ 559. There will no longer be any multiple-choice questions in this section.

 Part B (50% of the overall marks) consists of six essay questions from which candidates much choose two; and

 Part C (25% of the overall marks) is a multi-part question about the statute.

THE CASE NOTE You are required to write a case note based on the report of R (on the application of McConnell) v Registrar General and to submit the case note – via the VLE – by the due date.

 The case note submission deadline is Thursday 10 March 2022 for those intending to sit the examination in May 2022 and Monday 5 September 2022 for those intending to sit the examination in October 2022.

 The process for submitting the case note is explained on VLE course pages for LSM.  Candidates encountering problems with the submission process should log an enquiry

through the student portal at least two days before the due date.  Failure to submit the case note by the due date will result in failure of Part A of the examination.  The case note cannot be taken into the examination.

Guidance on writing the case note is provided below.

THE STATUTE Part C will test understanding of Dealing in Cultural Objects (Offences) Act 2003. You should be familiar only with the modified version of the Act as provided on the VLE. A clean copy will be provided in the examination.

GUIDANCE ON WRITING YOUR CASE NOTE Your case note should be as short and as comprehensive as possible. You want it to be a case note – that is substantially shorter than the original – but you also need it to be comprehensive – that is to cover all the points you need to understand and recall. How long, or short, any piece of writing should be depends on your reasons for writing. The reasons for writing a case note on R (on the application of

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McConnell) v Registrar General are different to the reasons for making a note, perhaps only of a paragraph or two, of the many cases you will study in subjects like Criminal or Contract law.

It follows that your case note should be as long as you need it to be to help you fully understand the case and to help you when you are revising for the examination. You are expected to be very familiar with the judgment in McConnell and to be able to explain the judicial reasoning in the case.

 Your case note should include:  Case name and citation  Court and judges  Parties  Material facts  Question(s)of law/issue(s)  Decision  Detailed reasons for the decision  The ratio decidendi

EXAMPLE CASE NOTE Here is an example of a case note based on Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256. Note that the comments in the right hand column are not part of the case note but explanatory notes included to assist you in understanding the case note. Your case note should not include explanatory notes. If you are unfamiliar with the case you can find the Law Report using the online library or find the judgment Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 on Bailii.

CASE NAME AND CITATION Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 11, [1893] 1 QB 256.

COURT AND JUDGES Court of Appeal (Civil Division): Lindley, Bowen and A L Smith LJJ.

PARTIES Appellant: The Carbolic Smoke Ball Company. Respondent: Carlill.

MATERIAL FACTS The defendants advertised2 their product promising a reward to purchasers, who, after using the product according to the instructions, subsequently caught the influenza (at 261).

The defendants placed a significant sum on deposit to show their ‘sincerity in the matter’ of the reward (at 261).3

The plaintiff, relying on the advertisement, purchased and used the product in the prescribed manner and contracted the influenza.

QUESTION OF LAW/ISSUES The issues before the court are:

(i) whether the 100l reward was intended to be an offer (A L Smith LJ at 272)4 and, if it was an offer (ii) whether it constituted a binding promise (Lindley LJ at 262) which (iii) required notification of acceptance

1 The neutral citation, [1892] EWCA Civ 1, is not original. Neutral citations were introduced in 2000 but BAILII now includes some significant historic cases and has assigned them neutral citations. Including the citation will make it easier to find the law report or judgment later. 2 The name of the newspaper is immaterial. 3 The fact that they placed money on deposit is material; it is part of Lindley and Bowen LJJs’ reasoning as to whether it was a promise or ‘mere puff’ (at 261 and 268) and A L Smith LJ states (at 272-3) that it shows the sincerity of the offer and was not ‘was mere waste paper’. 4 It is important to refer to the case explicitly by citing the judges and giving the relevant page (or in modern cases the paragraph number).

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to create a binding contract (Ibid) and, additionally, (iv) whether the plaintiff provided consideration for the promise (at 264).

DECISION Unanimously, (Lindley LJ at 265; Bowen LJ at 272 and A L Smith LJ at 275) the court upheld the decision of Hawkins J at first instance and dismissed the appeal.

DETAILED REASONS FOR THE DECISION The reasoning found in the judgments of the Lords Justices of Appeal is fairly consistent. All three agree that the advertisement is ‘an express promise to pay 100l in certain events’ (Lindley LJ at 261). This conclusion is reached by interpreting the language of the advertisement ‘in its plain meaning, as the public would understand it’ (Bowen LJ at 266). The security of 1,000l deposited with a bank is material5 to their Lordships’ conclusion that the advertisement was an offer ‘intended to be acted upon and when accepted and the conditions performed constituted a binding promise’ (A L Smith LJ at 273).

On the question of whether the promise was binding and not an offer made to the whole world or no one in particular, Lindley (at 262) and A L Smith (at 274) LJJ rely upon Williams v Cawardine 4 B & Ad 621 as authority that advertisements offering rewards are open to any person who performs the conditions of the advertisement. Bowen LJ6 (at 269) reaches the same conclusion relying on the judgment of Willes J in Spencer v Harding Law Rep 5 CP 561.

All three reject the defendant’s claim that acceptance offer should have been notified. Lindley LJ cites Lord Blackburn in Brogden v Metropolitan Railway Co in support of the view that notice of acceptance, if it is required, is given ‘contemporaneously with… notice of performance of the condition’ (at 262) but prefers the view that no notice is either expected or required ‘apart from notice of performance’ in the present case (at 263). Bowen LJ concludes that the nature of the offer ‘impliedly indicate[s] that [it] does not require notification of acceptance of the offer’ (at 270). He refers to Brogden and Harris’s Case Law Rep 7 Ch 587 and explains his reasoning with an example of a lost dog. A L Smith LJ does not consider this point in detail but concurs with the others (at 274).

A L Smith LJ is of the opinion that consideration for the contract was provided (i) by the inconvenience suffered by the plaintiff in using the smoke ball in the required fashion and (ii) the monetary benefit to the defendant through sales of the smoke balls (at 275). On the first point Bowen LJ (Ibid) refers to three cases and Selwyn’s Nisi Prius, an academic work, to reach the conclusion that ‘inconvenience sustained by one party at the request of another is sufficient to create a consideration’. On the question of the benefit to the defendant in terms of sales, Bowen and Lindley LJJ agree with A L Smith LJ, reasoning on the facts that the advertisement could lead to public confidence in the remedy and hence increased sales which would be of benefit to the defendants.

RATIO DECIDENDI7 The advertisement8 as expressed in terms publicised by the defendant was an offer; ‘a distinct promise expressed in language which is perfectly unmistakeable’ (Lindley LJ at 261). The promise was not ‘mere

5 According to Goodhart the material facts aid the identification of the judges’ reasoning in a case. The 1,000l reward persuades the judges here that the promise is genuine and is clearly seen in the reasoning of A L Smith LJ (at 273). 6 When examining the reasoning in a case where there is more than one judgment identify the points on which the judges agree and disagree but also note the different ways in which they reach the same conclusion. 7 This is the descriptive ratio; it describes what is binding in the court’s decision based on reading only this report. 8 The material facts plus the decision based on those facts help you formulate the ratio. For example, the material fact that the defendant advertised the smoke ball promising a reward to those who used it and subsequently caught the influenza plus the decision (based on this material fact) that this amounted to ‘a distinct promise’ provides the first component of the ratio here.

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puff’ (Lindley LJ at 261) but constituted a binding promise guaranteeing protection from the influenza while the smoke ball was in use (Bowen LJ at 267).

Notification of acceptance of the contract was not required in this situation; ‘performance of the conditions is sufficient acceptance’ (Bowen LJ at 270).

‘Ample consideration to support [the] promise’ (A L Smith LJ at 275) was provided by (i) the inconvenience the plaintiff endured, at the defendant’s request, in using the smoke ball three times each day for a fortnight and (ii) the benefit the defendant would gain in promotion of sales of the smoke balls (Lindley LJ at 265, Bowen LJ at 271 and A L Smith LJ at 275).