The Secret Life of Secret Trusts

https://nationalpost.com/life

“upon the whole matter, it appearing to be, as well a fraud, as also a trust…” Thynn v Thynn (1684)

“every will shall be in writing, and signed by the testator in the presence of two witnesses at one time” IX Will Act 1837

If we consider secret trusts to be “testamentary trusts that arise without complying with the formalities required by the Wills Act 1837” (in particular see sections 1, 9 and 20 (as regards codicils)) and though taxonomically not complicated, with a simple ‘fully’ secret (no mention of trust at all on the ‘face’ of the will) ‘half-secret’ (will mentions trust but does not establish objects) distinction, and consequently different curial solutions in the face of ‘failure’ (in the case of a FST the legatee takes outright; whilst for an HST the trust will fail for want of objects, generating a ‘resulting trust’ (ART) in favour of the testator’s estate) they nonetheless share two, to a degree overlapping conundrums:

i. what kind of trust/s do they represent?
ii. how might we justify the recognition and/or indeed the enforcement of such trusts in the light of their utter failure to comply with, it has to be said, pretty non-ambiguous and long established statutory guidelines.

I here propose to try and address firstly:

Is a secret trust an express trust or a constructive trust? Why?

before moving on to attempt to unravel the related conundrum:

In Blackwell v Blackwell [1929] UKHL 1, [1929] AC 318, Viscount Sumner said that secret trusts are enforceable even if the secret trustees “are acting with perfect honesty, seek no advantage to themselves, and only desire, if the Court will permit them, to do what in other circumstances the Court would have fastened it on their conscience to perform.”

In that situation, how does a court justify enforcing a trust that fails to comply with the Wills Act 1837?

A. Is a secret trust an express trust or a constructive trust?

Capable of several incarnations (inter vivos/testamentary revocable/irrevocable fixed/ discretionary etc.) the ‘express’ triangulated (settlor/trustee/beneficiary) trust might perhaps be considered the ‘classic’ trust, a “trust imposed by the will” as Lord Warrington described it in Blackwell v Blackwell [1929] whilst the ‘constructive’ trust is imposed by the court when a “wrongdoer acquires legal title to property that rightfully belongs to another [importing a] duty to return the property to the true owner”.

Much as in Rochefoucauld v Boustead [1894]7 the tension is between on the one hand an ‘express’ trust, and on the other a ‘constructive’ trust (arising by the ‘operation of law’). This has both theoretic ‘taxonomic’ implications if you will, but perhaps more importantly practical consequences particularly when we come to consider vesting interests in land.

Certainly at first blush both kinds of secret trust have certain significant differences from the classic ‘express’ trust, most notably that ‘timely communication to’ and ‘acceptance by’ the secret trustee are enforceable curial requirements, this not being the case with the ‘express’ trust which can be created even though the intended trustee is wholly unaware of its existence; but is there enough similarity (and the shared remit of fraud prevention) that we can consider them to fall under the Rochefoucauld/‘express’ rubric?

Alternatively can their nature be best captured by a ‘constructive’/‘detrimental reliance’ model; certainly it would ease away the ‘timely communication’/‘acceptance’ issue/s. It would also ease the vesting of land by secret trust, that otherwise may well encounter (aside from s. 9 Wills Act 1837) issue with s.53 (1) (b) of the Law of Property Act 1925 which requires:

“a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will”

If deemed constructive they would be saved by s. 53 (2) which provides exemption for constructive, implied and resulting trusts; it might however be argued that constructive/ express differences aside the reasons for ignoring the Wills Act 1837 should also apply to s. 53(1)(b).

A quick glance at the the table below will confirm that there is little juristic agreement as to how this circle should be squared:

Rochefoucauld [1894] secret trusts
Robert Chambers express (E) constructive (C)
Lord Millett C C
William Swadling E E

Chambers favours the ‘constructive’ trust solution, seeing s. 9 Wills Act as essentially ‘substantive’ (concerned with ‘validity’) suggesting that the testator’s ‘intention’ (to create a trust) PLUS the emphasis on the trustee’s ‘undertaking’ (itself generating ‘detrimental reliance’ as regards the testator) work together in Elias’s terms, to ‘perfect’ the trust. BUT say Swadling, if they are constructive trusts, why as and when they are declared formally ‘void’ is an ART (the usual outcome) not generated; instead the court appears to be looking to ways to give direct effect to what appears to be an ‘express’ trust. He suggests that despite its language, which indeed is (at least in large part) substantive (as was that of its predecessor Section 7 Statute of Frauds 1677) the courts are interpreting s. 9 as if it were procedural, that is to say ‘evidential’ (see: Blackwell v Blackwell [1929]) using the trustee’s ‘undertaking’ to leverage the Rochefoucauld/‘fraud theory’ paradigm, and so bypass the formality requirements of both s. 9 ( and if it is relevant) s. 53 (1) (b).

In a word the will is ‘proved’ (Court of Probate).

So to conclude this section if the trust is constructive, arising by operation of law rather than directly by intention, the formalities problem is obviated, but we then need a ‘reason’ for perfecting the unperfected intentions of the testator which takes us to:

B. How does a court justify enforcing a trust that fails to comply with the Wills Act 1837?

Well, in this contentious area of law, it is perhaps not that surprising, that a variety of explanatory/justificatory paradigms co-exist, all attempting to overcome the flouting of s.9 formalities, and accommodate the fundamental unreliability of parol evidence; the principal theories (in order of importance) are:

• incorporation by reference
• outside the will (‘dehors’) theory • fraud theory

i. ‘incorporation by reference’:

can be easily disposed of as a stand-alone theory, for the simple reason that the doctrine only applies to documents, whereas secret trusts frequently concerns oral testimony; nonetheless it may to an extent (by a process of analogy) explain some of the rules concerning ‘timely communication’.

ii. outside the will (‘dehors’) theory:
In Cullen v AG for Ireland Lord Westbury established the ‘dehors’ theory, when he stated:

“where there is a secret trust, or where there is a right created by a personal confidence reposed by a testator in any individual, the breach of which confidence would amount to a fraud, the title of the party claiming under the secret trust, or claiming by virtue of that personal confidence, is a title dehors the will, and which cannot be correctly termed testamentary.”

Viscount Sumner in Blackwell v Blackwell [1929] affirming that:

“It is communication of the purpose to the legatee, coupled with acquiescence or promise on his part, that removes the matter from the provision of the Wills Act and brings it within the law of trusts…”

This idea, of treating the secret trust/s as essentially ‘non-testamentary’, can be critiqued on a variety of grounds:

  1. it fails to explain why secret trusts place such a great emphasis on trustee ‘acceptance’/‘acquiescence’ (normally not a requirement in English law for the creation of a valid trust).
  2. it appears to affirm, even to establish a false dichotomy between the law of wills, and the law of trusts, that cannot be easily upheld.
  3. it suggests a very narrow, and indeed historically inaccurate view of what constitutes a ‘will’, in harsh contrast with the open texture of s. 1 Wills Act 1837 which states that: ‘the word “will” shall extend to a testament, and to a codicil… and to any other testamentary disposition’; which would seem to comfortably cover both fully and half- secret trusts.
  4. but perhaps most importantly: “it still fails to address the fundamental objection that the evidence the court admits is inherently unreliable.”

iii. fraud theory:


Lords’ Bill 1673 which provided the wording of s. 7 1677 Act

Drawing on s. 7 Statute of Frauds 1677, Thynn v Thynn (1684) clearly establishes the close (potential) connection between fraud and secret trusts, though it must be recalled that the vast majority are simply enacted, not contested. And indeed, for some 200 years it appears “equity would enforce the promise as a trust obligation over the property only in the case of actual fraud.” McCormick v Grogan (1869) was a game changer, when there was a shift away from the requirement of fraudulent ‘induction’, to the courts (assuming there was adequate communication) allowing the testator and legatee/trustee to jointly defy the Wills Act, equity enforcing any such agreement against the legatee.

In cases such as Blackwell [1929] (see Viscount Sumner’s quote above) and re: Snowden [1979] we see the modern day court’s willingness to enforce FST’s with Mitchell even suggesting it may be a way for an aged testator to continually update how their property will be vested up and until their ultimate demise; the only ‘fraud’ necessary being the legatee’s refusal to follow through on what is essentially an informal agreement.

As regards HSTs, the trust is already on the face of the will, and so the only remaining option is what we might think of as ‘fraud on the beneficiaries’ which as Sheridan has pointed out, is in itself a tautology.

While Matthews (2010) has argued that s. 9 of the Wills Act may not apply to testamentary trusts at all, the judges (and many jurists) seem to think otherwise, and so we are finally left with a Gordian knot of possibilities; Chambers favouring a ‘constructive’ interpretation, Swadling an ‘express’ (with ‘fraud’ tipping the balance towards a Rochefoucauld paradigm) whilst Penner suggesting they should not be enforceable at all.

Personally of the three I find Swadling takes the day by a neck, though Penner’s objections are also entirely valid, but it does also strike me, that as in many areas of law these might be best considered as simply one of a kind (sui generis) trusts if you will, with equity drawing on a variety of justifications as it attempts to balance the books of conscionability/ unconscionability. Unfortunately, at least to a degree, we are left in the dark (just as are the other legatees in a FST) as to the exactitudes of the theoretical engine that is driving these decisions.

The pen is mightier…

The pen is mightier than the sword” is a metonymic adage, coined by English author Edward Bulwer-Lytton in 1839, indicating that communication (particularly written language), or in some interpretations, administrative power or advocacy of an independent press, is a more effective tool than direct violence.

In response to a series of posts on the law related Facebook pages I originally established (some years ago now) I thought it might be timely to write a post on the the specifics of writing high scoring essays and problem answers with a focus on the LLB Hons.

If you’re not in the mood for reading a few hundred words, then I’m going to spoil my own article and give you the answer in three simple words: write a lot.

For those more particular amongst you I’ll lay it out in more detail, but I promise you the conclusion will be no different. So with Margaret Thatcher’s words ringing in my mind (“say what you’re going to say, say it, then say it again”) I shall proceed.

  1. general remarks: 

First and foremost I want to stress one fundamental point. Writing is a specific skill. It is neither reading, nor listening, nor speaking, and as such it needs to be learned in and of itself. Don’t imagine reading another chapter of Wilson’s Criminal Law will directly help you write a better essay on say the vagaries of intention. It will hone your reading skills, and you may well need some of the information (case law/theoretical stances etc.) that he refers to BUT it is no substitute whatsoever for you putting pen to paper

Indeed it may undermine that very process by: 

  1. providing you with more information than you can process.
  2. allowing you to applaud yourself for what a good student you are/have been when in fact your writing skills have not advanced one iota.
  3. use up valuable time that would have been better dedicated in actually writing an answer or two.

At the end of your studies one thing is for sure. You will (the dissertation module aside) face a series of very unpleasant unseen examinations. And (forgive me for stating the obvious) they are WRITTEN exams. They are not listening assessments, oral presentations or viva voces. They are unseen WRITTEN examinations. (The smarter students can stop here, stop reading and get their pens out). So you need to spend time writing. Not a bit of time, not occasionally, but a LOT of dedicated time: crafting your skill/s, honing your tools, and learning to express yourself well and succinctly. Until such time as it becomes second nature.

A very simple illustrative example flows from the world of football. Some years ago it was realised that in the land of taking penalties all is not equal. Some nations were excellent at it (Germany for example) whilst others (England for example) were at best inconsistent. Just luck some would say, astrology, the make of football boots, the weather. Utter nonsense I would retort, and indeed it proved to be so. It was really simple. Germany spent on average of 10 times the amount of time practising taking penalties compared to the English players. Is it any wonder they were better at it.

I’ll say it again: write a lot.

Moving on to the specifics of tackling essays v problem questions I would once again offer only one piece of advice. Get good at writing both of them. The alternative is not a pleasant thought. You will simply back yourself into a corner and be/feel obliged to write a style of question that you prefer on a topic that you know very little about, simply because you consider yourself a ‘problem question’ kind of person or vice versa.

ii. problem questions:

There is no doubt here that:

  1. practice makes perfect
  2. a formula helps
  3. practice makes perfect

Use whichever formula that works for you, but I have never seen any need to stray beyond IRAC. If you don’t know what I’m talking about then you should. It stands for:

Issues

Rules

Application

Conclusion

I won’t labour these sub-divisions as plenty has been written elsewhere on the subject (see below) but I will simply make a few points.

The Issues section is vital, much a like a good introduction to an essay question, it not only provides the first impression (don’t forget that the examiner is obliged to read a LOT of scripts) but also, if written well guides the rest of the answer. It here that fatal mistakes are made. You’ll be forgiven an occasional case law error or a misquoted academic article but you won’t recover from completely misidentifying the subject matter of the question. If the focus of the question is on liability for murder you won’t score well if your answer predominantly concerns gross negligence manslaughter. If the question asks you to consider the defences (to said liability) then do so. If it’s a question on the Law of Torts don’t spend half your time considering whether the original contract is binding or not. 

You get the idea I am sure.

The Rules represent the relevant law. So here is your chance to demonstrate your knowledge of statute, construct a narrative with relevant case law and introduce (once again if and only if it is relevant) any human rights concerns. BUT don’t spend TOO long on this section not leaving yourself enough time to APPLY the relevant law to your particular factual matrix for it is this section that the examiner will be really interested in, and able to assess if you do really understand what your talking about and/or are just bluffing. 

So to reiterate, the Application is the meat of the pudding. Do this section well and you will pass. Do it really well and you will pass really well. Nobody cares if you misspell the odd case (Tse Kwing Lam [1983] might test many of us) and/or fail recall the author of an obscure article. But they will care if your analysis makes no sense and/or woefully misapplies the relevant case-law/legislation. Construct a meaningful and accurate narrative, just as a barrister in court would do, using relevant and illustrative cases to bring the story to light.

Once again the Conclusion should be accurate and make some kind of sense. It matters little in many instances if you suggest D is liable or not BUT it matters a great deal that you establish why you are arguing your case in that particular direction. If you have time and energy to spare, here might be a good place to drop in a word or two about potential law reform. It will show the examiner that you are not just a performing seal and are really thinking about the questions that the Law raises.

iii. essay writing:

At pains of restating the obvious:

  1. practice makes perfect
  2. a formula helps
  3. practice makes perfect

Once again, given that you only have 45 minutes per essay (60 in Equity and Trusts) there is no need for rocket science.

Introduction

Body Paragraphs 

Conclusion

And I have to say many of the provisos from above, apply here.

Lay out a good, clear Introduction (say what you’re going to say) and be sure to identify the subject matter of the question clearly. If the question concerns the ‘separation of powers’ an extensive consideration of Wednesbury unreasonableness is unlikely to score highly. Do be aware that LLB questions will almost invariably ask you to critically discuss a subject. That is to say it will be a matter that attracts debate. If you find yourself just recounting any particular subject you have almost certainly missed something. Discuss the claim that codifying the unwritten elements of the UK constitution would have minimal impact on day-to-day politics clearly invites you to discuss BOTH sides of the coin. That is to say to initiate a discussion/debate within your essay. So one would expect to see pros and cons carefully discussed. On the one hand A on the other B. Don’t be scared to have an opinion (as long as it is not TOO extreme) and do be sure to support your argument as well as you are able, with relevant academic opinions, case law etc.

The Body Paragraphs will hopefully flow from your wonderful Introduction. Try not be excessively curt and/or unreasonably ambitious. I usually try to target 3-5 MAIN ideas (with a handful of sub-ideas) per essay. That will be enough. But once again be sure to have practised before your exam is due so that you know your own style, how much you can write in the allotted time etc. Nearer to the time I suggest you write, by hand a series of closed book essays, within the given time frame (45 or 60 minutes) to give yourself an idea of the reality you will be inevitably facing. It is usually quite a humbling but nonetheless very useful experience.

Just as above the Conclusion should be the icing on the cake. Recapitulating your main ideas (if you have time) and drawing any loose threads to some kind of meaningful closure. State your opinion one last time and try and leave a good last impression. Once again you may have time to consider how and where the law is unsatisfactory and so (in certain areas) ripe for reform.

Conclusion:

So there we have it. By no means an exhaustive consideration of the subject matter but enough I believe to get me through three (no less) University of London degrees including one First and one 2:1. And at the risk of irritating you I will leave my final piece of advice. 

You guessed it: write a lot.

Happy Studies.

Additional Material:

  1. Camilla Barker-DeStefano – Mastering the IRAC Method for Law School Success: A down-to-earth step-by-step guide to writing first class answers to legal problem questions ASIN: B07RB752QD
  1. SI STrong – How to Write Law – Essays & Exams OUP Oxford; 5 edition (15 Mar. 2018)
  1. Lisa Webley – Legal Writing – Routledge; 4 edition (8 Feb. 2016)

“just keep writing…” – part II

my dissertation selfie…

With a background in neurosciences, and currently practising as a psychotherapist I have always had a keen interest in how the brain (actually) works, and perhaps more importantly how we might utilise that knowledge to maximise our mental capacity when it comes to approaching the (undoubtedly) challenging UoL LLB (Hons) that many of us are harnessed to. 

The last two/three decades have seen a considerable reframing of the neuro-cognitive paradigm, and in case you don’t have a dictionary to hand, what I’m talking about is thinking, and how we conceptualise our capacity to think and essentially process cognitive data. The two biggest breakthroughs concern what has been termed neuroplasticity (the brain’s ability to reorganise itself by forming new neural connections throughout life) and what we might term cognitive ‘compartmentalisation’; referring to the fact that intelligence is very far from an unitary concept but is distinctly multi-faceted, multi-modular if you will.

Though the former is of great comfort to a mature student like me (it is now official: you CAN teach an old dog new tricks) I’m interested, in this the second of two blog articles concerning ‘how to write a dissertation’, to focus on the latter and in particular its implications when we come to tackling this 10,000 word marathon.

What compartmentalisation refers to, and as with many concepts it is glaringly obvious when it is stated in simple terms, is the idea that even though there is some degree of ‘leakage’ skill-sets are often, if not usually, modality specific. So, to illustrate, simply because I play the  piano very well does not mean I will be a world class boxer, the national chess champion may be an hopelessly nerve wracked public speaker, the articulate playwright no great shakes at downhill skiing. 

The implications of this realisation are highly significant for any potential dissertation writers (and so far the University of London LLB Dissertation Group has 117 active members). Stated in its skeleton form, it means if you want to get good at writing, write; and if that task involves academic writing, write academically.

Let’s break it down into a few bullet suggestions:

i. Take every opportunity to write; writing does generalise… so a good creative writer will more quickly learn the necessary skills of academic writing than someone who has never put pen to paper. So long before I started writing law related articles I’d published a bunch of (as it happens politically related) book reviews, been That’s Shanghai travel correspondent for 24 months, and written a personal blog (http://markpummell.com) for some years.

ii. Start learning to write in the specific language required of you within the legal profession. This may take the form of self-published articles (https://ulondon.academia.edu/MarkPummell) comments on legal websites and/or relevant Facebook pages. The law has its own glossary and it needs to be mastered. This process can obviously be supplemented by broad base legal reading, particularly academic articles and caselaw. But the word truly is supplemented; reading is not a substitute for writing. We can recall. They are different forms of ability.

iii. Start small. 10,000 words (equating to roughly 30 pages of 1.5 spaced type written pdf) is no small achievement, and it is unlikely that you will be able to tackle it if your previous personal best was a 250 word Facebook post. Much like a marathon, build up to it. Write some 1,500 – 2,000 word articles first. When you have an half dozen or so of those under your belt, suddenly the task seems that little less Sisyphean. 

iv. And finally (for today) be patient with yourself. I wrote mine over exactly 20 days. Having prepared for around three months (downloading and reading relevant articles and cases etc.) I set myself the very reasonable (and for that read achievable) target of 500 words per day. Sometimes I did more and sometimes I did less, but there was not a day that went by during that period that I didn’t write something. Self disciple is the name of the game.

just keep swimming…

So with that in mind, sharpen your pencils… on your marks, get set, go… time waits for no man; and it will somehow not seem, or indeed be any easier tomorrow.

Perhaps at these times we should remember the (slightly modified) words of Dory: “just keep writing… just keep writing…”

References:

i. https://www.thatsmags.com/shanghai
ii. https://www.facebook.com/profile.php?id=239250946629830 iii. Finding Dory – https://www.imdb.com/title/tt2277860/

“just keep writing…” Part I

“And it was always said of him, that he knew how to keep Christmas well, if any man alive possessed the knowledge. May that be truly said of us, and all of us!’’


With Diwali just over, and Christmas poised to loom large, I’m feeling particularly festive. The truth is I have much to be grateful for; my health, two wonderful children, a beautiful partner, and as a psychoanalyst, a job that never ceases to amaze. 

But much as Scrooge on that most joyous of Christmas mornings, today you’d find a particular spring in my step, and the reason is simple enough: 10,015 words of completed dissertation. It came at a cost, perhaps not requiring the same kind of existential soul-searching that was asked of poor Ebenezer, but a cost nonetheless. One that on completion merits at least one large glass of red and a few oven warmed mince-pies; even if I say so myself.

But the aim of this piece is not simply to gloat, for that would be most un-Christmasy, nor to simply expound on my efforts which would be nothing short of tedious; the aim is to both encourage, and guide other would-be dissertation aspirants. 

For starters I would ask you, albeit rhetorically, why not give  this module a try? Indeed, why wouldn’t you? It’s challenging, has an high pass rate, relatively high mark averages, but most importantly… pause for effect… it has to be better than sitting another three hour ‘unseen examination’ whilst being circled by vulturous invigilators that would strip search you if they even notice a misplaced eraser. 

There you have it… we’ve established the why. But what of the how?

Well in the first instance, as part of your study pack bundle, it comes with an excellent study guide that will guide you through the all important process of writing your initial proposal. I cannot overestimate the importance of formulating a good research question. 

For brevity’s sake at this stage let me make a few simple points:

i. You need to formulate a research ‘question’, not simply delineate an area of law that interest you. Perhaps for example you find the law of ‘joint enterprise’ interesting, and no doubt it is, but that does not in and of itself constitute a research question. However an outcome study considering the appeals that have followed from the Supreme Court decision Jogee [2016] for example might be more apropos.

ii. Consider preparing more than one proposal. I ended up preparing three; two property related topics and one criminal law. Of those, I think possibly the latter was the most interesting, it concerned the ‘insanity plea’ and aimed to be an essentially empirical continuation of RD Mackay’s  scholarship in this area. But after several e-mails to the Ministry of Justice (invoking the Freedom of information Act 2000) it became apparent that I just wasn’t going to be able to access the data I needed to complete the research. So in the simplest of terms, the research question asked needs to be realistically answerable.

iii. Try to become au fait with basic research ‘methodologies’. This really constitutes the ‘how’ you will attempt to answer the question you propose to answer. Is your study to be qualitative and/or quantitative? Where will you source your data? What will be the scope of your analysis? In truth hardcore empirical research (the stuff that scientists are more than familiar with) and law rarely overlap. I personally think that it is both a shame (it softens the usefulness of many of the research papers written, reducing them ultimately to at best opinions) and a pattern that is beginning to change. So one way you might think to make your research stand out is to add an empirical component: “since Jogee [2016] there have been 12 appeals 7 of which were unsuccessful, 3 of which led to sentence reductions, and 2 of which remain as yet undecided…” (data) reads far better than “I think Jogee was a really bad decision as it doesn’t seem to have changed anything …” (opinion)

iv.Finally (for today) I would suggest you choose a topic that really interests you, for (as we’ll discuss further in Part II) you’ll soon discover that 10,000 words don’t just write themselves. Considering the ‘common intention’ constructive trust I ended up downloading over 100 cases and probably a similar number of journal articles.

That hopefully should get you started, and be enough for you to see your proposal both written and ultimately accepted. In a subsequent blog (just keep writing – Part II) I hope to explore in greater depth how you might tackle writing the actual body of the dissertation itself.

References: 

  1. Charles Dickens 1843 novella – A Christmas Carol
  2. R v Jogee [2016] UKSC 8
  3. RD Mackay – Fact and fiction about the insanity defence 

tolerating complexity I – on tackling Part A of the Tort Law examination…

https://www.rogerebert.com/reviews/bad-samaritan-2018

This academic year will see UoL LLB Tort students across the globe tackle Professor Mulheron’s Modern Law Review article entitled: “Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015” and having had an host of students ask me how to tackle the Part A it seemed a good as time as any to put pen to paper and try to ease this rite of passage.

I propose to do it in two bites; firstly I’ll provide some advice about reading articles in general, generic advice if you will, and secondly try and tackle Professor Mulheron’s piece in more detail.

The first thing I’m inclined to say; is just enjoy the ride. If you have even more than a passing interest in matters legal, then you should enjoy this section of the exam. It clearly doesn’t represent marks on a plate, but at least it represents potentially captive marks. At the very least you know, indeed specifically know, the subject matter on which you’re going to be examined, which differs from the rest of the essentially ‘unseen’ examination

What are the examiners setting out to achieve? Well to date Tort Law is a Level 5 subject. So that suggests they are wanting to raise the ‘ante’. The specific ability  I think they are hoping to awaken (and ultimately examine) in you, is the ability to read articles. You’ll have hopefully already been initiated in the joys of case law, and statute during your Legal Study & Methods module. Now is the turn of the humble article. Often the product of many hours, if not months and years of hard academic labour, it is your job to learn, not just how to access the targeted article, but how to to read (and for this we can substitute ‘critically read’) and to answer some set questions on this juristic product.

So it’s not rocket science.

 You need to read the article, think about the article, and ultimately ready yourself to answer some questions on said article. But while you’re at it, you may as well enjoy the process, and hopefully learn some good article reading ‘habit’s that will last you long beyond May 2019. 

The first habit is to enjoy the journey itself; so learn to tidy your desk, crack open a new jar of coffee and actually focus. No Facebook forays, Instagram intrusions and/or Wechat waffles.

But articles can be challenging; and unlike the more familiar subject guide and/or textbook, they are designed to be so. They provide spaces in which the expectation is that as many questions will be raised as answers provided. This is the paradigm shift you are being asked to negotiate. Make it and you will be making the next gearshift to becoming a real lawyer; side-step it and don’t be surprised if those 60+ (let alone 70+) marks somehow magically elude you.

Let me make this point abundantly clear. Good students read lots of articles and cases. Outstanding students read hundreds of articles and cases. It is (i’m almost afraid to say) as simple as that. 

At this stage of the year you also have one additional luxury; time. 

So read widely. Read the article, but also be sure to read as many of the articles, and indeed cases (this remains a tort Law exam, not just an exercise in critical reading) that the core article references. Why would you not. And this gives you a chance to context the author’s argument/s. Ask yourself, do you agree with what they are arguing… what other arguments could have been made… have they effectively made their case. Just because it’s a published article does not mean that you have to agree with it and/or that it’s well argued. In the year that i sat Tort, the article was so badly written (with my apologies to the usually excellent Nicholas McBride) that when Simon Askey came to summarise it (because so many students had no idea what the article meant) he actually (with my apologies to Simon Askey) came to misunderstand McBride’s fundamental position. This was ultimately only clarified by writing (in fact e-mailing) Professor McBride directly. But I hope it serves to illustrate the point.

A third thing you may think to do, is read around the subject. 

This year you are asked to consider one professor’s view view of 20 lines of legislation. But make no mistake this is just the meniscus on a very complex debate that has raged for many years if not centuries. Try (at least to a degree) to engage with it. Likely you won’t be questioned directly, on the broader implications of her analysis, nor on the underlying debate, but it will absolutely help you to anchor your critical analysis in a way that the ‘study by rote’ student will not have access to. Imagine being asked to critique Chapter 17 of Bleak House if you had no idea of who Charles Dickens was, and/or the legal/social shortfalls he was trying to address. At the bare minimum this article addresses the law of negligence, the Compensation Act 2006 and touches upon the very complex Bad/Good Samaritan debate, which has dogged the common law for centuries. Indeed the latter formed the subject of the essay i wrote some years ago now, when I first dared to enter the Bar Council’s Law Reform Essay Competition; much of the historical backdrop is covered there and it is referenced below.

complications with complexity (see below)

The image above represents nothing more, no less intricate, than the movements of one football team during a 90 minute football game. It serves to illustrate; life is complex and law particularly so. As you start to tackle Tort Law the Part A is a gentle introduction to that complexity, and a challenge to your ability to manage, tolerate and ultimately make sense of it.

Enjoy the journey and you won’t go far wrong.

References:

i. https://www.worldmarket.com
ii. https://www.academia.edu/19716278/Setting_My_Sights
iii. https://landscapearchipelago.wordpress.com/2010/11/07/complications-with-complexity/

EU talkin’ to me?

https://www.hollywoodreporter.com

Coming with all the disclaimers that my most recent piece came with (http://www.markpummell.com/equity-and-trusts/trust-in-me/) this is simply an attempt to if not to eliminate, at least to mollify the angst of any students due to face the LLB EU Law exam this coming October 2018.

I have to say I didn’t find the subject at all easy; and from the relative lack of inactivity we saw on the Facebook page (in contrast to say the Equity and Trusts page) it seems that other students in my/our cohort also found engaging with the subject to a degree challenging. There is always (particularly in the shadow of Brexit) the ‘relevance’ argument, but I might suggest some other reasons. It definitely lacks the historical angle of many of the other common law modules, but is nonetheless (given its relative recency) vast, even giving Tort a good run for its money; and is very dense as regards case law.

I think in this light, whilst acknowledging that for any self-study student there is a grave danger of just getting lost in its bulkiness, it has to be said I think the examiners are practically bending over backwards to get us through this module; just what does that translate into in terms of useful advice.

i. though the ‘integration’ (essentially sovereignty) argument is where a great deal of the subject’s interest lies, it is not (other than when we consider Da costa and EU supremacy etc.) heavily emphasised in the exam. Topics such as the Commission’s legitimacy etc. seemed to have slipped somewhat to the back burner with an heavy emphasis on substantive law and the four freedoms; so if you’re pushed for time start your revision from Chapter 5 onwards.

ii. don’t whatever you do neglect the three following topics:

a. ‘direct effect’ – Van Gend en Loos etc.

b. supremacy (Da Costa etc.)

c. directives – the thorny topic of horizontal direct effect

iii. be sure to master the four freedoms… and of these I would suggest the free movement of ‘goods’ and ‘services/establishment’ reign supreme… capital being less frequently examined it would seem; if you have time Catherine Barnard’s  The Substantive Law of the EU: The Four Freedoms (ISBN – 10 0198749953) is very helpful in this endeavour.

iv. and last but not least; do not neglect a thorough understanding of  ‘justification’ and ‘proportionality’ (on this see Trailers [2009] and Scotch Whisky Association [2017])… this has been the modern emphasis within four freedom judgments… establish the relevant Article/s, consider if there is/is not a degree of ‘restriction’, look to see if the Member State can  justify said restriction, and ultimately can it be said to be a ‘proportional’ measure or should other potentially less restrictive measures be considered.

Happy Studies

 

 

 

trust in me…

https://www.pinterest.co.uk

Any attempt at writing a definitive ‘how to pass’ article written by a (soon to be God willing) final year law student, who has only just sat said paper, and yet to receive confirmation of passing, should no doubt be received with a healthy dose of scepticism. So please accept my disclaimer at the outset, this is not my intention in writing this piece; it is simply to put down on paper, some of the thoughts that have formed over the last twelve months of study of the subject, and that have come out of the experiences of both having recently sat the paper (May 15 2018 in London) and the pleasures of curating our cohort’s Facebook group (https://www.facebook.com/groups/230702390786988/).

Nonetheless (for clarity’s sake) I am going to do it in the time worn manner of some ‘do’ and ‘don’t’ bullet points; so without further ado:

i. DO think through the implications of the new format

Equity and Trusts is the first module to be examined in a new ‘three from six’ (as opposed to the standard ‘four from eight’) format.

There are numerous strategic implications from such a change, not the least being that in contrast to the usual 45 minutes or so per question, you will be writing (allowing yourself 5 minutes or so preparation time per answer) for approximately 60 minutes per topic.

This in and of itself generates a potential flurry of bullet points:

a. DO chose a topic or a problem question that you really know something about and/or think you can answer; if you thought bluffing your way through a 45 criminal law, contract and/or tort essay was tough when you only had an allocated 45 minutes, just try doing it for an hour… it opens up a whole new world of pain!!!

b. DON’T back yourself into a corner by deciding you are a ‘problem answer’ kind of student and/or the converse that you excel at ‘essay style’ questions. I saw this a lot on the Facebook forum in the weeks running up to the exam; personally I think it’s a grave even potentially fatal mistake.

If you are not confident at your problem analysis skills, the answer is not to stick your head in the sand and imagine that the deficiencies will somehow magically resolve themselves; nor does it seem that smart to trust your good fortune to the Gods of the Examination Hall and pray that the three essays (if you’re lucky enough to get such a split) that appear on the paper will be to your liking. The converse applies to the more problem oriented students; so (and perhaps this is my most important piece of advice):

c. DO face your weaknesses head on and try to if not resolve them then at least to improve them. If your essay writing skills need to be honed… then WRITE ESSAYS… this does not mean reading another section of the textbook, trying to borrow another student’s notes, nor even reading other students’ essays… it means sitting down in front of a blank piece of paper and trying to carve out a meaningful essay on a topic that either interests you or perhaps you have selected from a past paper.

Likewise those students who go into a cold sweat when they see a legal scenario outlined need to overcome this very basic and to a degree understandable fear (nobody is born with an innate understanding of how to resolve an Equity and Trusts scenario). So DO start tackling problem scenarios asap. The past exam papers are a fertile source and most importantly come with (in many instances) extensive feedback.

But I would add one caveat; do try and at least sketch out your own answer before you rush to look at the examiners’ report/s. I won’t go as far as to say it is cheating, just that it isn’t that helpful; unfortunately, as far as I can recall I wasn’t allowed to call Professor Hudson during the exam to ask for his advice on how to tackle a question (and what cases I should drop in) on resulting trusts.

ii. DO read some cases:

I have lost track of how many students I have chatted with who quite clearly (in spite of all the advice to the contrary) quite clearly don’t read cases. One student (during the course of a Laws study weekend in Kuala Lumpur) even boasted to me that she had NEVER read a case!!!

There are a myriad of reasons to read cases which I won’t expand on here, but perhaps for me, as the modules increase in complexity, the most obvious one is that ‘advanced legal studies’ is essentially a language. It has its very own glossary and without a firm grasp of those terms your answers (be they problem and/or essay) will sound inherently gauche. And even if all you care about is your final grade then be aware it will cost you (even dearly).

So why read the cases, well that is where the language is to be found. Both Counsel and Law Lords craft their arguments and judgments in the very language. It is not to be found in your textbooks (though referenced there) and certainly not in your lecture notes, but it is there in abundance in the case law. Why would you not read them?

And even (say you’re sitting in October) if your time is limited then just read some. There is NO excuse for not having read Lord Browne-Wilkinson’s judgment in Westdeutsche Landesbank, the three judgments in re: Baden’s Deed Trusts (no 2), Milroy v Lord [1862] to name but a few.

iii. DO take the time to grasp some basic Equity and Trusts theory:

For now, this will be my last point, as I have no desire to overwhelm any active students with my well meant good advice, but for the more advance student (who is already reading case law and tackling his/her natural weaknesses v predilections) this might be a game-saver.

Let me try and break it down:

a. law (certainly common law) is inherently adversarial; grasping this helps… whether writing an essay or tackling a problem scenario… so as John Tribe describes it, Equity and Trust litigation involves a ‘battle for value’. Party A is (in most instances) alleging his or her right to an asset/right is superior to Party B.

b. this does not mean (in most if not all examined scenarios) that A’s right is obviously superior… so AVOID (something I saw played out on the forum so many times) if you can, very categoric, black and white answers. Equity and Trusts is a level 5 (even at times level 6) module for good reason; it is (to a degree) complex and as such nuanced. Focus on your argumentation and not your outcome. If the answer was SO obvious the case would simply be settled and not litigated!!!

c. Equity and Trusts, perhaps more than any other module we study at undergraduate level is, with the exception of jurisprudence, deeply theoretical. So (I would suggest) it is not possible to score well without at least a passing understanding of the basics of the theoretical debates that underlie the principal topics.

I don’t propose to examine these in any detail but with Professor Chambers and William Swadling as two of our chief examiners (both eminent theorists in this area) it does seem to make sense to at least understand that there is considerable debate as to WHY certain judicial outcomes should be favoured. You might think to look at the various theories underpinning secret trust (https://www.academia.edu/34915869/the_secret_life_of_secret_trusts…) and/or resulting trusts (https://www.academia.edu/35910909/_what_goes_round_…_considering_the_resulting_trust) to give yourself an head start.

The debate surrounding the beneficiary principle and/or private purpose trusts (https://www.academia.edu/36167475/in_the_frame_-_private_purpose_trusts) might be another gentle introduction to this area of intense debate; that often rages with the intensity of Sauron’s forges.

https://www.therichest.com/world-entertainment/15-things-you-didnt-know-about-lotrs-sauron/

Which perhaps leads to my last gasp:

iv. DO form an opinion:

It sounds simple enough but I think it’s terribly helpful.

Imagine standing in a courtroom or an University debate and talking for an hour on any topic on which you had not formed an opinion. You’d be lucky to last five minutes!!!

So why is it any different when writing an essay of 60 minutes or so on say Secret Trusts?

I would suggest it isn’t. So decide; do you think secret trusts should be sanctioned by the courts, bypassing formal requirements as they do, and allowing the introduction of parol evidence as they do etc. or should they (as Penner suggests) be relegated to history and other financial/legal routes be established to vest property in say an illegitimate child and/or a secret concubine.

The point is, there isn’t AN answer; but you will soon run out of intellectual steam if you don’t have YOUR answer.

So as you read try and formulate (not just ingest) and be bold; ultimately I’m not inviting you to trust me but you most certainly (if you want do well as you all deserve to do) need to trust yourself!!!

 

 

‘unified market access test’ – a word or two…

Following Commission v Italy (trailers) the Keck exception has been completely substituted in favour of a ‘unified market access test’, at the expense of national sovereignty.

Discuss.

The heavily judicially criticised decision of Keck & Mithouard [1993] (on this see Oliver on Free Movement of Goods) was an undoubted game-changer as regards the terrain of the ‘free movement of goods’. Heavily influenced by the academic contributions of Eric White (see in particular In search of the limits to Article 30 (EEC Treaty)) there was no doubt that it was underpinned by a judicial agenda that set out to limit the numbers of cases that traders were bringing before the Court (ECJ/CJEU) following the expansive consequences of the Dassonville/Cassis de Dijon line of judgments.

It established, what in hindsight some have considered a false dichotomy, between ‘product requirements’, and ‘selling arrangements’, provided that two criteria (established in para 16) are fulfilled; these being that:

i. the measure applies to all traders
ii. and affects, in the same manner (in law and fact) the marketing of both domestic and

imported products

Though seemingly simplifying the area, and certainly formulated with the intention of decreasing the levels of litigation, it is a decision that has been heavily criticised; and even, in some eyes, overruled by in particular Commission v Italy (trailers) [2009] and (to a degree) Scotch Whisky Association [2015] (which entirely side-stepped Keck as regards ‘certain selling arrangements’) with a shift towards an ‘unified market access test’ paradigm.

This was established in para 37 of Commission v Italy (trailers) [2009] where it was stated that:

Consequently, measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably are to be regarded as measures having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC, as are the measures referred to in paragraph 35 of the present judgment. Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept.

The net result of this was (as the question suggests) to once more swing the pendulum back towards empowering the Court to override regulations/legislation that Member States had put in place i.e. market prioritisation at the expense of national sovereignty; carrying with it a real danger of the Court trammelling the very Member State nuances (social goals/non- economic objectives) that Keck was designed to protect.

In practice the Keck test prove difficult for the Member State/s to establish, and in many instances, matters were simply returned to the national courts for decision.

Indeed, case law has established that practically, situations are rarely as black and white as the Keck ‘dichotomy’ might suggest; with cases such as De Agostini [1995] and Gourmet [2001] affirming that in particular ‘advertising bans/restrictions’ may well impact non- domestic traders disproportionally. But with all its attendant difficulties it may still be be a potentially more sophisticated and workable formula than the ‘bulk measure’ approach of Commission v Italy (trailers) [2009] which greatly widens the scope of Articles 34/35 and places a heavy burden of provenance on the Member States.

EU law has never had the same rigid hierarchical relationship with precedence that is found in say the case law (‘common law’) of England & Wales, and this has led to something of a ‘pick and mix’ attitude by the CJEU when negotiating these paradigms.

In a 2010 essay, forming part of a collection celebrating the Classics of EU Law 50 years on from the Rome Treaty Allan Rosas noted:

“Despite the criticism expressed against Keck & Mithouard in legal literature and by some Advocate General, the subsequent case law of the ECJ has by and large applied a combination of Dassonville, Cassis de Dijon and Keck to assess alleged restrictions to the free movement of goods.”

So it seems likely that such an approach will endure, with the Court (in spite of the decisions of Commission v Italy (trailers) [2009] and Scotch Whisky [2015]) still having Keck in the armoury as and when Member State dissatisfaction (and this is as much political as it is legal) boils over.

All is not lost, and the Court still has recourse to the doctrine of ‘proportionality’ to supplement the Article 36 and Cassis (‘mandatory requirements) justifications, and this has certainly been used effectively to soften the potential impact of a return to the ‘market access’ paradigm (see Case 36/02 Omega Spielhallen [2004]) allowing Member States to feel that they still have a voice that is listened to at the negotiation tables of Brussels.

a wee dram… a brief consideration of C – 333/14 + Scotch Whisky Association [2017]

 

Read the case Case C-333/14, Scotch Whisky. Explain, in short, the way in which the Court assesses justifications and proportionality. What did the national court decide (see https:// www.supremecourt.uk/cases/docs/uksc-2017-0025-judgment.pdf)?

Case 333/14 concerned a request for a preliminary ruling (Article 267 TFEU) from the Court of Session concerning the validity of the national legislation and a draft order relating to the imposition of a minimum price per unit of alcohol (‘MPU’) with respect to the retail selling of alcoholic drinks in Scotland; and as such concerned proceedings between the Scotch Whisky Association (and other interested parties) on the one hand, and the Lord Advocate and the Advocate General for Scotland on the other.

With a general consensus (para 32) that such measures amount to what Article 34 describes as ‘measures having an equivalent effect to quantitative restrictions’ (MEE) much of the judgment concerns on what grounds a Member State may seek to justify potential derogations, and by what criteria the ‘proportionality of such measures’ may be established.

Specifically concerning the interpretation of Regulation (EU) No 1308/2013 the Court were concerned to ensure “measures should be taken in a way that avoids market disturbances and that ensures equal access to the goods and equal treatment of purchasers”.

On 25 September 2012 the Commission issued its opinion, that the national measure concerned constituted a quantitative restriction within the meaning of Article 34 TFEU which could not be justified under Article 36 TFEU; seemingly closing the door on legislative measures for fixing minimum retail prices, when other permissible fiscal measures were already available.

justifications:

At 12 (3) we see the Court beginning to explore the ‘protection of human health’ justification, and the extent to which national courts are at liberty to consider “information, evidence or other materials”.

Whilst at 12 (4) we see the Court openly wondering:

under Article 36 TFEU, to what extent is the national court required, or entitled, to form — on the basis of the materials before it — an objective view of the effectiveness of the measure in achieving the aim which is claimed; the availability of at least equivalent alternative measures less disruptive of intra-EU competition; and the general proportionality of the measure?

With questions (5) and (6) concerning respectively ‘justification’ and ‘proportionality’.

We see in the Court’s answer to question 1 (at para 29) that it sets the stage for a consideration of these matters in greater depth when it states:

Consequently, the answer to the first question is that the Single CMO Regulation must be interpreted as not precluding a national measure, such as that at issue in the main proceedings, which imposes an MPU for the retail selling of wines, provided that that measure is in fact an appropriate means of securing the objective of the protection of human life and health and that, taking into consideration the objectives of the CAP and the proper functioning of the CMO, it does not go beyond what is necessary to attain that objective of the protection of human life and health.

At para 33 we see the Court (referring to Case 456/10 ANETT [2012]) establishing orthodoxy where it states:

“a measure having equivalent effect to a quantitative restriction on imports can be justified, for example, on grounds of the protection of the health and life of humans, under Article 36 TFEU, only if that measure is”:

  1. appropriate (‘suitability’) for securing the achievement of the objective pursued and
  2. does not go beyond what is necessary (‘necessity’) in order to attain it

At para 35 we see the Court clarifying the scope of Article 36 TFEU suggesting: “it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they wish to assure.” (Case 170/04 Rosengren and Others [2007])

With para 37 further clarifying:

“that a restrictive measure can be considered to be an appropriate means of securing the achievement of the objective pursued only if it genuinely reflects a concern to secure the attainment of that objective in a consistent and systematic manner” (Case 161/09 Kakavetsos-Fragkopoulos [2011])

proportionality:

Para 40 affirms that even if a measure is deemed both ‘appropriate’, and of reasonable ‘scope’ (criteria ii. above) such a measure needs to be ‘proportionate’.

This subject is considered in more detail in the Court’s answers to questions 4 and 6; with para 53 establishing the principle:

that [any legislation] is [required to be]:

i. necessary in order to achieve the declared objective, and
ii. that that objective could not be achieved by prohibitions or restrictions that are less

extensive, or
iii. that are less disruptive of trade within the European Union

paras 54/55 establish the burden of proof:

(54) the reasons which may be invoked by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and specific evidence substantiating its arguments (Case 42/02 Lindman)

(55) that burden of proof cannot extend to creating the requirement that, where the competent national authorities adopt national legislation imposing a measure such as the MPU, they must prove, ‘positively’, that no other conceivable measure could enable the legitimate objective pursued to be attained under the same conditions

Para 59 helpfully clarifies:

It follows from the foregoing that Article 36 TFEU must be interpreted as meaning that, where a national court examines national legislation in the light of the justification relating to the protection of the health and life of humans, under that article, it is bound to examine

objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods and of the CMO.

With Para 66 answering the question outlined in 12 (3) above:

Consequently, the answer to the third question is that Article 36 TFEU must be interpreted as meaning that the review of proportionality of a national measure, such as that at issue in the main proceedings, is not to be confined to examining only information, evidence or other material available to the national legislature when it adopted that measure. In circumstances such as those of the main proceedings, the compatibility of that measure with EU law must be reviewed on the basis of the information, evidence or other material available to the national court on the date on which it gives its ruling, under the conditions laid down by its national law.

“you’ve gotta ask yourself one question…”

‘the purpose of competition law has never been to achieve optimal market outcomes, but to preserve the ability and the incentive of firms in the marketplace to outperform their rivals.’

Pablo Ibanez Colomo

 

Article 102 of the TFEU could not be plainer; it reads:

“any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.”

But as with all legislation,  just what any provision means, and perhaps more importantly just how far it ‘reaches’ remains, until the court decides, something of a mystery. As regards Article 102, and the specifics of the recent Google anti-trust deliberations, its meaning is only too apparent:

€2 424 495 000

Though facing two further investigations (concerning the Android OS and AdSense) this particular investigation concerned Google’s use of its high degree of EU market dominance, to unfairly advantage one of its other ‘products’, a ‘comparative shopping’ tool which started life as Froogle, now known to most as Google Shopping.

Just how this was achieved is not difficult to grasp. and can perhaps be best considered visually:

Let’s take a simple example to clarify.

My father, based in Norwich UK, decides to visit me in Shanghai, China, and being the tech-savvy 88 year old he is, he whips out his i-pad and opens up Google to try to find the best price for a round trip airplane ticket. He punches in “Shanghai flights”. What happens then is not visible at what is often called the ‘front end’ of the website, but in simple terms a formula (known as an ‘algorithm’) is applied, and moments later your ‘search’ page appears.

 

 

What Google was accused of doing, was essentially manipulating that ‘search’ (i.e. modifying their algorithm) in two fundamental ways:

  1. prominent placement – obviously of their own ‘comparative shopping’ service and
  2. ‘demoting’ their rivals – once again there are various ways to do this, but on average competitor services were appearing no higher than page 4 of any Google search.

Well, imagining you are just that, a ‘rival’, what are the implications for your business?

Well with Google already controlling over 90% of the ‘search’ market share (a ‘dominant position’ on any reading of Article 102) it effectively means commercial death. The European Commission ‘fact sheet’ on the case further clarifies:

“even on desktops, the ten highest-ranking generic search results on page 1 together generally receive approximately 95% of all clicks on generic search results (with the top search result receiving about 35% of all the clicks). The first result on page 2 of Google’s search results receives only about 1% of all clicks. The effects on mobile devices are even more pronounced given the much smaller screen size.”

And that is exactly what was seen to have happened, with enormous growth in Google Shopping traffic (up to 45 fold in the UK alone) with evidence of “sudden drops” of traffic to rival services (up to 92% in Germany).

So coming under increasing pressure from the European Parliament to close the case, in particular given the speed of the ICT (information and communication technology) industry, and the fact that the investigation stretches back to 2010, that is exactly what they did.

After reviewing over 5.2 Terabytes of data (amounting to approx. 1.7 billion search queries) on 27 June 2017, the judgment (yet to be published in full) was released. Google has 90 days (from the ‘decision’) to cease its illegal conduct, whilst the fine was calculated on the “basis of the value of Google’s revenue from its comparison shopping service in the 13 EEA countries concerned.”

Commissioner Margrethe Vestager, in charge of ‘competition policy’, clarified:

“Google has come up with many innovative products and services that have made a difference to our lives. That’s a good thing. But Google’s strategy for its comparison shopping service wasn’t just about attracting customers by making its product better than those of its rivals. Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors.

What Google has done is illegal under EU antitrust rules. It denied other companies the chance to compete on the merits and to innovate. And most importantly, it denied European consumers a genuine choice of services and the full benefits of innovation.”

At the core of the decision is consumer protection, and this has/is always been the goal of EU competition law, as opposed to protecting competitors and as such the decision seems reasonable, and was well received – “firm and fair’ the Guardian Editorial described it.

Struggling to remember where the article’s title comes from, well a quick Google search will give you the answer, and the quote in full:Well 27.6.2017 seems to mark the day when, at least to a degree, Google’s run of European ‘luck’ might have just started to dry up; and given the tone surrounding the two pending investigations we can presume Vestager may well have a bullet or two left in her considerable Commission armoury.

References:

  1. Pablo Ibanez Colomo, Discriminatory Conduct in the ICT Sector: A Legal Framework, in: G. Surblyte (ed.), Competition on the Internet, pp. 73-74
  2. “is 2.42 billion euros a lot” image: http://blogs.lse.ac.uk/businessreview/2017/07/08/the-european-commissions-google-decision-will-affect-competition-law/
  3. http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/565870/EPRS_BRI(2015)565870_EN.pdf
  4. https://www.theguardian.com/commentisfree/2017/jun/27/guardian-view-eu-google-judgment-fair-fine
  5. http://www.imdb.com/title/tt0066999/quotes