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Table of Contents

1A ………………………………………………………………………………………………………2-5
1B…………………………………………………………………………………….……..…………..6-8
1B part a)…………………………………………………………………………….……………….….9
1B part b)………………………………………………………………………………………………...9
Bibliography………………………………………………………………………………………..10-11

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1a)
The Judiciary

The judiciary is the system of courts which interprets and applies the law in the name of the
sovereign or state. The judiciary also provides a mechanism for the resolution of disputes.
Under the doctrine of the separation of powers, the judiciary generally does not make or enforce
law, but rather interprets law and applies it to the facts of each case. They are expected to
deliver judgment in a completely impartial manner through a strict application of the law, without
allowing their personal preference or influence from any person or party to affect their decision
in any way.
The judiciary is an arm in the doctrine of separation of powers. The separation of powers is
posited on the existence of three distinct functions of government, the legislative, executive and
the judiciary. These distinct arms of government should be kept separate so as not to allow
centralisation of too much power, that power should be shared between the bodies with checks
and balances included to prevent abuse.
The judiciary was lead by the Lord Chancellor. The Lord Chancellor role is an anomalous
position in respect to the separation of powers. He has roles in each arm of the state. This role
is a party political appointment influenced by the prime minister of the day. Lord Chief Justice is
now the Head of the Judiciary as per specification of the CRA 2005
It can be argued that the Lord Chancellor could have influenced by the other arms of the state,
and in turn influence the judiciary in its decision. The suggestion has been made that the Lord
Chancellor has represented the interest of their political masters, at the expense of the interest
of their legal colleagues. The Constitutional Reform Act 2005 (CRA 2005) has changed the
appointment of the Lord Chancellor; it is now done via a Judicial Appointment Board and his
powers in roles in the other arms of the states have been transferred. The implementation of the
CRA 2005 has significantly reduced the likelihood of influence of the judiciary by other arms of
state, hence greater independence.
A lack of independence can be caused by interference by a minister or his representative
informing the judges of the result desired by the government for a litigant or particular pressure
group, this is minimized by the CRA 2005. Bribery is another form of breach of independence,
though not common, can alter the outcome of cases. A subtle lack of independence can occur
due to the appointment of a judge who belongs to the same affiliation as those in powers or in
the government. In the Stafford v the United Kingdom: the continuing role of the Secretary of
State in fixing the tariff and in deciding on a prisoner's release following its expiry, has become

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increasingly difficult to reconcile with the notion of separation of powers between the executive
and the judiciary, this led to a violation of Article 5 §§ 1 and 4 of the European Convention on
Human Rights (right to liberty and security). Biased decisions may result in cases; a trial by jury
is a safeguard to this issue.
Restrictions in a judge’s powers can compromise independence, as they cannot exercise as
much freedom as they may need to in making a judgment. Independence means more than
interference, it means that judges are free to bring their sense of values in considering
legislating and do not simply reflect the values of the government. A judge should be free to
take decisions on all the issues before him without pressure or influence being exerted by any
outside authority, agency or individual. The issue of judicial independence arose in the case of
Mc Gonnell v United Kingdom [2000] 30 EHRR 289 EHRR 289. The European Court of
Human Rights held that this amounted to a breach of Article 6 in that it denied the applicant the
right to a fair trial before an impartial tribunal.
Impartiality and independence are connected concepts because independence is a pre-
condition of impartiality and fair trials. A judge should strive to ensure that his or her conduct,
both in and out of court, maintains and enhances the confidence of the public, the legal
profession and litigants, in the impartiality of the judge and of the judiciary. Judges must not only
be impartial but they must appear to be so. Impartiality means that a fair hearing would be given
listening carefully to all sides and reaching a result which is not influenced by outside factors.
The have been cases where impartiality was a concern as in t he case Locobail (UK) Ltd v
Bayfield Properties Ltd [2002] QB 451 where it was held the outcome of the cause could
realistically affect the judge's interest.
Perhaps one of the key areas of controversy of the judiciary is their diversity. A long held
criticism of the judiciary is that they are all from the same mould: white, male, middle-class,
privately educated Oxbridge graduates. This position is perhaps exemplified by the current
senior judiciary. Of the most senior five judges (the Lord Chief Justice and the four Heads of
Division), four list their educational background. All five are male and white. All four of those
who declare their educational background were privately educated and studied at the University
of Cambridge.
Diversity in the judiciary is obvious in two categories, gender and ethnicity. Speaking in 1992,
Lord Taylor the then Lord Chief Justice said, “The present imbalance between male and female,
white and black in the judiciary is obvious . . . I have no doubt that the balance will be redressed
in the next few years . . . Within five years I would expect to see a substantial number of

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appointments from both these groups. This is not just a pious hope. It will be monitored.”(Taylor
(1992)).
It has been noted that the number of female students entering university to read law has been
increasing since 1970 and since 1988 there have actually been more female entrants than male
and since 1992 there have been marginally more newly qualified female solicitors than male
solicitors. However if the judicial statistics are examined it can be seen that the position in terms
of gender is extremely poor. There is currently no female Head of Division although it should be
noted that prior to 2005, Lady Justice Butler-Sloss was, as the President of the Family Division,
a Head of Division. As more women progress through the profession, it is to be expected that
the numbers of women within the judiciary will increase. However this misses the point that
women have been members of the profession for a considerable period of time and defies the
statistics discussed above.
The position in respect of ethnic representation is even worse. The last census suggests that
approximately 7.9 per cent of the population consider themselves to be a member of the ethnic
minorities. However the latest judicial statistics demonstrate that no Head of Division belongs to
an ethnic minority nor are there any Lords of Appeal in Ordinary or Lords Justice of Appeal.
There is one (0.9 per cent) puisne judge and this is a recent appointment. This means that of
the senior judiciary as a whole there is only one ethnic minority judge which accounts for 0.6 per
cent of the judiciary.
The justification for the slow progress of diversity is that only the best are appointed to be
judges and that any move towards positive assistance would be contrary to this rule and could
even dilute the quality of judges.
With respect to judicial training a report generated by Lord Bridges lead to the formation of the
Judicial Studies Board (JSB) in 1979 to provide a formal system of judicial training. The judge is
also expected to go one re-fresher courses to learn about new legislation and developments in
the law. The topic of judicial training raises the question of the general competence of judges to
decide particular cases where they have little or no practical experience or knowledge. This may
lead to relevant information not being cited or overlooked affecting the overall judgment. In the
JSB judges are trained by judges thereby creating a multitalented judge.

It can be concluded that given the fact that cases of impartiality and independence have arisen
indicates that it is being monitored and corrected. This restores public confidence and faith in
the judiciary without jeopardizing the independence of the judiciary which is essential in

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safeguarding the rule of law and access to justice. Every effort should be made, however, to
widen the ethnic and social nature and culture of the bench so that it becomes more
representative of society. There have never been cases of ethnicity, only a representation
requirement in the law society; this does not affect natural justice.

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Question

1b)

Advice to Andy

With respect to the advert in the local newspaper it is required to determine whether or
not it is an offer which may lead to binding legal obligations or merely an invitation to treat
indicating the readiness to receive offers.

It is widely regarded that advertisements in newspapers and shop windows are

considered to be invitations to treat. As in the classic case of Partridge v Crittenden [1968] 1
WLR 1204 the court held an advert was an invitation to treat. Similarly in the case FISHER v
BELL [1961] 1 QB 394 had the same outcome, confirming that the advertisements were not
offers.

To determine if a contract has come into being, it is necessary to establish if an offer

was made by one party (called the offeror) which was accepted by the other party (called the
offeree) and that legal relations were intended. By definition an offer is an expression of
willingness to be bound by the terms of the offer. In this case, once the dog is returned the
reward will have to be paid; hence the advert is an offer. Although most advertisements are
treated as an invitation to treat, there are situations where advertisements are considered as a
definite offer. In the case of Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256, where
a reward for an act was offered, the court held that there was a fully binding contract since the
advertisement was in fact a unilateral offer. Similarly the case of Bowerman v Association of
British Travel Agents LTD [1996] CLC 451 confirmed a unilateral contract was in fact formed.

In this instance where the offer was made to the world at large, a unilateral contract can
be formed. In a unilateral contract only one party, called the offeror makes a promise in
exchange for an act to another party called an offeree. If the offeree commences the act as
promised by the offeror, the offeree has accepted the offer. Once the offer is accepted there
must be consideration where both parties must contribute to the bargain. Consideration here is
payment of a reward by the offeror and the offeree finding the lost dog. At this point there is an

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intention to create legal relations, hence a contract is formed. Once the offer is accepted the
offer now merges into a contract and the offeror is legally obligated to fulfil the promise
(contract).

Mr Bolam who bought equipment in an effort to capture the lost dog has in fact acted on the
promise made in the newspaper, this confirms acceptance to the offer. Although the general
rule is that acceptance must be communicated, as expressed in the case Felthouse v Bindley
[1862] EWHC CP J 35 where the court held that acceptance must be communicated, not in all
cases acceptance is required to be communicated. In the Brogden v Metropolitan Railway
Company [1876-77] L.R. 2 App. Cas. 666, it was established that an offer can be accepted by
the conduct of the parties. Acceptance in the case of a unilateral contract does not have to be
communicated and can be expressed by virtue of actions, i.e. performance equates to
acceptance, as in the Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256, which is very
similar in this instance.
It must be considered that Mr Bolam, because his acceptance and commencement of
the act to recover the lost dog, where specialist equipment has been purchased, may be
entitled to the reward or part thereof. In the case of Veivers v Cordingley [1989] 2 Qd R 278,
the court held that monies had to be paid because of commencement of the act. Usually where
monies are to be paid due to commencement of act, there exists a formally written contract
where both parties are aware of its condition. In this instance where a unilateral contract and
not a formal written contract existed between the offeror and offeree, there is no binding legal
obligation to pay based on action, hence Andy does not have to pay Mr. Bolam.

On Thursday a notice was placed in a local shop saying that the reward was no longer
an offer. The general rule is that an offer may be revoked anytime before it is accepted. This is
expressed in the case Payne v Cave (1789) 3 T.R. 148 where the court held that the offer can
be revoked prior to acceptance of the offer. The revocation of the offer must be properly
communicated to the offeree(s). If a revocation is not properly communicated, it is ineffective
and demonstrated in the case Byrne v Van Tienhoven [1880] 5 CPD 344 where the court held
that the revocation was not properly communicated, hence nullified. Revocation can also be
communicated via a reliable third party as expressed in the case Dickinson v. Dodds [1876], 2
Ch. D. 463 (C.A.), where it was held that the offeror did not have to personally communicated
by the offeror. The revocation notice in the local shop was not a reliable third party notice.

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Revocation of a unilateral offer can be revoked if the revocation is done in the same manner as
the offer was made, this is clearly expressed in the case Shuey v. United States, [1875] 92
U.S. 73. It is necessary, in the case of a unilateral offer to the whole world where the offeree(s)
are unascertained, to communicate the revocation via the same channel as used for the offer.
Clearly in this instance the revocation was not communicated in the same manner as the offer,
hence the offer is still open. The revocation was placed two days after the offer was placed in
the local newspaper. An offer can be terminated by lapse of time specified in the offer or at the
end of a reasonable time if no time is specified. What is reasonable time depends on the
circumstances of the case. In the Ramsgate Victoria Hotel v Montefiore [1866] LR 1 Ex 109
the court held that the lapse of time was unreasonable and the offer was terminated. In this
instance the two days given can be considered as to short of time to retract the offer. The time
to be considered here is the time to retrieve and return the dog where two days may be
insufficient for someone to completely perform that act. The fact that Mr Bolam bought
equipment, suggest the commencement of the act of finding the dog and if he has evidence to
support this makes revocation impossible. This is expressed in the case Abbot v Lance [1860]
where it was held that the offer becomes irrevocable once the act or acts have been partly
performed.

Stan, who captured the dog and brought it to Oldcastle, did so on his kindness and was
not aware of the reward for its return. It can be argued that he is not entitled to the reward
because for the unilateral contract to be formed he must know about the offer and accept it after
some consideration. This non entitlement to the reward is expressed in the case R v Clarke
(1927) 40 CLR 227 where it was held that Mr Clarke was not acting on the offer. In this case
Stan heard about the offer prior to the actual delivery of the dog. On delivery of the dog, it is
here that consideration has been completed and the offer accepted. The offer now merges into
contract, hence contractually obligated to pay the reward to Stan. In the case of Williams v
Carwardine [1833] 110 ER 590 the court held that the motives of the plaintiff is irrelevant and
the requirement of the offer was fulfilled, taking into consideration in this case, Stan was aware
of the offer at the time delivery of the dog.

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a) My advice to Andy if Stan is the younger brother of Andy

Domestic and social agreements are unenforceable on the basis of public policy, for
instance between children and parents. One early example is found in Balfour v Balfour [1919]
2 KB 571where the court held that there was no intention to create legal relations when the
agreement is domestic in nature, and hence not legally bound by the promise. There are
however instances where there are intentions to create legal relation as expressed in the case
Merritt v Merritt [1970] 2 All ER 760; [1970] 1 WLR 1211

b) My advice to Andy if Cassey dies before it could be returned to Andy

When it becomes impossible for one party to perform their obligations, then we need to
consider frustration. There are two main reasons why frustration sets in, either the
subject matter dies i.e. Cassey or The non-availability of a party, due to death, illness, or
other exceptional circumstances. When there is the impossibility of the act in this case
no party is in breach of the unilateral contract and is expressed in the case Taylor v
Caldwell [1863] 3 B & S 826, where both parties were excused from their obligations
under their contract. The terms and condition of the contract specified that the dog must
answer to the name Cassie, if Cassie dies then it is impossible for Cassie to answer to
the name, hence the terms and condition will not be met.

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Bibliography

Abbot, K., Wardman, K. & Pendlebury, N., 2002.Business Law. England. 7th ed .London:
Continuum

Guest, S.Geary, A. & Morrison, W.Penner, J., 2004.Jurisprudence and legal theory. England:
The university of London Press.

Keenan, D., 2002. Smith and Keenans business law : London Pitman Publishing

Law Teacher, 2009. Contract law agreements. [Online] (Sep 2009)

Available at: www.lawteacher.net/contract-law/lecture.../agreement-lecture.php
[Accessed 26 November 2009]

Law Teacher, 2009. Formation of a contract. [Online] (Oct 2009)

Available at: www.lawteacher.net/PDF/Agreement%20Lecture.pdf
[Accessed 25 November 2009]

Law Teacher, 2009. TERMINATION OF OFFER. [Online] (Oct 2009)

Availableat: http://www.ecclesbourne.derbyshire.sch.uk/.../TERMINATION%20OF
%20OFFER.doc
[Accessed 25 November 2009]

Mortimer, T., 2009. Business Law.2nd ed. England: Pearson Education Limited

Riches, S. Allen, V., S.V., 2009.Keenan & Riches’Business Law. 9 th ed .England: Ashford
Colour Ltd.

Slapper, G.Kelley, D., G.D., 2001.The English Legal System.5th ed .England: Cavendish
Publishing Limited.

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Wikipedia, 2009. Contract. [Online] (Oct 2009)

Available at: en.wikipedia.org/wiki/Revocation
[Accessed 1 December 2009]

Wikipedia, 2009. Revocation. [Online] (Oct 2009)

Available at: en.wikipedia.org/wiki/Revocation
[Accessed 1 December 2009]

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