University of Essex
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School of Law
Guide to writing
Undergraduate essays
2013-2014
Alan Moran
THIS IS IMPORTANT – READ AND
USE!
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Introduction
At Oxford, I studied mathematics. No need for words there. The
tools I used then were numbers, letters and symbols. They were
lifeless things without meaning or sound – the necessary tools of the
scientist but not of the lawyer. But when I was called to the Bar, I
had to become proficient with words . . . I had to practise
continually. As a pianist practises the piano, so the lawyer should
practise the use of words, both in writing and by word of mouth.
Lord Denning
Our clients are entitled to assume we know the law – so they tend to
judge the quality of our legal advice as much through presentation
and efficiency as through objective assessment of whether it is right
or commercial. This means that every document and every letter
must be perfect. Even minor mistakes will compromise our
professionalism – a missing word here or a superfluous comma there
can change the entire meaning of a clause.
Freshfields’ Graduate Recruitment website
This guide is to enable undergraduate students of law to present their essays
according to the conventions of legal academic writing and to the requirements
of the teaching staff of the Department of Law. We suppose that most first year
students will not be familiar with the conventions of legal academic writing and
that international students may need guidance in the use of English in the law.
All students, however, are expected to write legal academic English and to
conform to this Guide in their written work.
Do not think that we are just being pedantic in expecting you to learn and
observe the conventions of legal academic writing; it is a necessary part of
learning and applying lawerly skills, especially those of paying attention to detail
and closely following instructions. It is vital that you develop your writing skills
to a high level because employers tell us all the time that the standard of written
presentation of letters of application and CVs is low. They say that letters and
CVs which are not properly presented and have errors of English go in the bin.
In many areas of writing, precision in expression is vital; academic journals (not
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just legal ones) have very detailed style guides which must be adhered to
precisely. A director at the College of Law recently said that correct and accurate
use of English is crucial since competition for places of further study and for jobs
is more intense than ever before, and using English correctly marks out good
students or candidates and so enhances their chances of success. The extract
from Freshfields’ website is typical of what all employers require in this regard –
perfection.
We require you to follow the conventions set out in this guide. You
must learn the conventions to be followed in basic matters such as how to set out
your essay, how to write footnotes, how properly to cite cases and statutes, and
how to use quotations. Also, each year a number of essays display a variety of
errors in writing and presentation. Not all essays show the same errors and
some show very few; but certain errors appear repeatedly or are very marked. In
addition to setting out our requirements for essay writing – our house style using this guide will encourage good writing practice and help you to avoid
errors. If you develop good habits at an early stage, your subsequent
performance in your course and your prospects for your future will be enhanced.
In any job of graduate level, you will be expected to write letters, reports and so
on, and you will be judged by how well you write such things. Poor use of
English will get you noticed for the wrong reasons.
A lawyer should be able, amongst other things, to communicate effectively
and persuasively. Language is the tool of the job, and that job cannot be done
properly if the tool is not used correctly. It is hard to be effective and persuasive
if the use of English is weak. Few of us can avoid the occasional grammatical
slip or some infelicity of expression, but every effort should be made to avoid
errors which are so marked that they distract the reader or cause doubt as to
meaning. It is notable that in certain recent case reports judges have remarked
that not only is the drafting style of documents poor but mistakes and
ambiguities in drafting actually give rise to litigation. One of our aims is to
produce graduates from this Department who can write well.
One of the other aims of a law degree course is to learn to ‘think like a
lawyer’. That aim is more likely to be fulfilled if, from the outset, you adopt the
conventions of legal academic expression. ‘Thinking like a lawyer’ needs to be
accompanied by ‘communicating like a lawyer’ (where you are communicating
with other lawyers, that is). The lawyer is not composing literature; the style of
expression should be clear, objective, detached and concise. Thinking like a
lawyer also means learning and using certain methods of analysis and
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exposition. The Department’s Legal Skills course for first years is not something
distinct from other courses but what is taught there should be applied in all other
courses, and not only in your first years but in subsequent years. Adoption of
the conventions of legal academic expression is necessary and also shows
commitment to and interest in the degree course you have chosen to follow.
There is, of course, room for individuality within the conventions.
Not all of you intend to become lawyers but the skills, including writing
skills, you will learn as a law undergraduate are highly valued in any job. They
are, to use the jargon, ‘transferable skills’.
It ought to be the case that those marking essays should be able to concentrate
on the content and not be distracted by weaknesses in style and grammar.
A. WHAT YOU SHOULD DO
1.
Basic requirements of presentation
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do not write out the question
text must be double spaced
margins must be wide enough for comments
font size must not be less than 12 point
footnotes must be placed at the foot of the page
pages must be numbered at the top right-hand corner (assuming you
are printing on one side only of the paper)
it is a convention to start the first line of the opening paragraph
justified up to the left edge, and for the first line of all subsequent
paragraphs to be indented. You can see this done in the Introduction
to this guide.
citations, references and quotations, and bibliographies must be
written as set out in this guide
dates must be given according to British English convention,
i.e. 1 January 2004 (the reverse usage, January 1, is American)
page references must be given in full,
e.g. 234-238, not 234-8
numbers up to ninety-nine, except statute sections, must be in words,
not numerals
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e.g. ‘two years’, ‘all three parties’, ‘fifty-two sections’ (percentages are,
however, written thus: ‘25 per cent’)
 read the rubric (the instructions) carefully and follow the
requirements. This may sound obvious but it is very common for
students in essays (and examinations) to fail to follow the rubric
(especially, in examinations, to fail to answer both parts of a two-part
question: in a final year examination this year, this mistake caused a
candidate to get a 2:2 instead of a 2:1). If it says, for example, ‘include
a bibliography’, it is unimpressive to fail to do so. Check if there are
mark penalties for failing to follow the rubric.
2.
Sources of material for your essay
Be guided by the lecture synopsis, including the reading references given
there, and your notes taken in lectures and tutorials as to the area of study
(but do not cite your notes in footnotes or mention them in a bibliography).
You should, however, supplement these with your own further reading from
the sources. Lawyers talk of primary and secondary sources.
Primary sources are statutes, cases and official reports (such as Law
Commission reports).
Secondary sources are textbooks and articles in legal academic journals such
as The Conveyancer and Property Lawyer. Secondary sources are the result of
research by academics such as the members of staff of this Department. In
the law, research does not mean what it means in science where discoveries
are made; rather, it means exposition and analysis of, and commentary on the
primary sources. In all areas of law, there are one or two leading textbooks
which are of such high authority that the exposition in them of the law may
be used by judges in their efforts to state what the law is. Comment and
analysis in other textbooks and in articles in the journals provoke critical
evaluation of the law. Your bibliography, where one is required, should list
those secondary sources you have used (but not statutes and cases – see 10
below). Do not overlook reference works such as Halsbury’s Laws.
3.
Essay structure
Plan the essay so that it has a beginning, a middle and an end.
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The beginning should be a short introduction which identifies in broad
terms the legal issues raised by the question. A single paragraph may be
enough.
In the case of a problem question, the middle or body of the essay identifies
and addresses points intended to be raised by the particular facts. The set
methodology is:
(i)
(ii)
(iii)
identify the points raised by the facts
state what law applies to those points (the law may be case law, or
statute, or a mixture of the two, and may also involve reference to
leading textbooks and articles)
apply the law to the points
The third part of the methodology - application - frequently makes the
difference between a mediocre essay (or examination answer) and one of
upper second quality. Anyone can learn the law - that is not enough. It is the
ability to use the law, to apply it, which matters. Application means using
the relevant law to answer a question, to solve a problem. It may be (but not
always) that the question deliberately omits certain information which would
be needed fully to answer a point. It is expected that students realize this and
offer alternative solutions according to whether the complete facts would
point to one or another.
Such is the methodology used by judges in giving their judgments, as any
reading of a case report will show. The judges state the facts of the case (the
equivalent of the problem question). They then state the relevant law and
apply that law to the facts. They come to a judgment accordingly.
In the case of essay questions which are not problem questions, the middle
of the essay should identify the particular points arising and say how the law
deals with those points by reference to what judges and commentators say
about them. It is likely that there is some element of debate or controversy on
a point, and that debate or controversy should be mentioned.
The end or conclusion of an essay sets out the essence of what has been
said and draws together the points made. You may also add your own
comment on the issues but only if based upon arguments given in the body.
The conclusion may be quite short.
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In the body of your essay, use paragraphs. These should be used to make
a point. Try to link paragraphs together.
An essay question may consist of two or more parts or sections. You will
then need to adapt the basic structure indicated above to such an essay. You
should write an overall introduction, answer the several parts, and finish
with a conclusion. Note that not all parts may need the same amount of
attention. There is no objection to setting out your essay according to the
sections of the question, and this may be the obvious and logical way to
proceed. Thus, where a question has, say, six parts (a) to (f), your essay may
be set out in the same way as opposed to being a continuous narrative.
Where a question has two parts, you have to make a judgment as to how
much space to devote to each part; do not assume that both parts deserve
equal attention.
It is most important to remember never to make any statement which is
not supported with authority. Every statement or assertion must be
accompanied by a reference to a statute, a judge’s judgment, a commentator’s
article or to a leading textbook, but not to lecture or tutorial notes (as
students sometimes have done). (See 11 below.)
4.
Case names
Case names must be written in italics when work is word processed. This
includes case names given in footnotes as well as in the text of the essay. Do
not underline case names or set them in bold.
The Oxford Guide to Style recommends the first example shown below
which uses italics for the actual names but with the ‘v’ (for ‘versus’) written in
roman and without a point (full stop). Different legal publishers have their
own preferred styles, examples of which are given. Any is acceptable – the
important point is to be consistent.
Parker v British Airways Board
Parker v. British Airways Board
Parker v British Airways Board
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5.
Case citations
There is no place for individuality in this – follow the conventions, otherwise
the citation does not do its job which is to make it easy to find the case. Just
as it is vital to be precise with website addresses, so it is with citations. A
marker should be able to check a reference immediately.
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Give the full name of the case in the text, and put the citation as a
footnote at the first mention of the case – the citation is not necessary
after the first mention.
Do not split the reference by putting the year after the case name and
the rest of the citation in the footnote.
After the first mention of a leading case, it may be referred to by its
commonly accepted short form, e.g. Parker.
In citations, it is now usual to dispense with points (full stops),
e.g. [1982] QB 1004.
When quoting from a case, give the citation in a footnote with the
page number, or paragraph number in neutral citations, after a
comma, e.g.
[1982] QB 1004, at 1010
[2003] EWCA Civ 401, at [18]
(Some publishers omit the ‘at’ – it is a matter of preference,
though The Oxford Guide to Style recommends its omission.)
It is not sufficient, when quoting from a judgment, to give only the case
citation. You must pinpoint the precise location in the judgment of the
quotation by giving the page or paragraph as shown.
When quoting from a judgment, the judge’s name may be given in the text,
e.g. ‘As Donaldson LJ said, ‘ . . . ’, with a footnote as mentioned.
Alternatively, the quotation may be given in the text with a footnote reference
thus:
[1982] QB 1004, at 1010 per Donaldson LJ
Do not, as a rule, cite case references from electronic databases such as
Westlaw where a law report for that case is available. Database reports are
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not always accurate; they should only be used when the case is so recent that
a law report is not yet available.
6.
References to statutes
The first mention of a statute should give the name in full, e.g. Law of
Property Act 1925. The definite article is not part of the name and should not
be capitalized: write,
the Law of Property Act 1925
not The Law of Property Act 1925
After the first mention of an Act which is well known and which is referred to
several times in your essay, its name can be abbreviated, e.g. LPA 1925, or,
where there is no other by the same name, without the year, e.g. TLATA
(which is sometimes seen as TOLATA: both are acceptable – just be
consistent).
Do not underline or set in bold the names of statutes or put them in italics.
Do not give any book reference for a statute: some students cite, e.g. ‘Law of
Property Act 1925, s 53(1)(b)’ and then give a footnote reference for a statute
book. This is wrong. Statutes do not have such references.
When referring to sections, abbreviate ‘section’ to ‘s’ and ‘sections’ to ‘ss’. The
Oxford Guide to Style suggests no point after the ‘s’. When the word ‘section’
starts a sentence, write it in full (with a capital letter ‘S’, of course),
e.g. ‘Section 5 of the Act says . . . ‘
Write the word ‘section’ when it is not followed by the number, e.g. ‘ . . . but
this section has been held . . . ‘
Section numbers, subsections and paragraph letters should be set out
according to convention, which is, a space after ‘s’ but no spaces after,
e.g. s 53(1)(b)
There are two ways of referring to a statutory provision:
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Law of Property Act 1925, s. 53(1)(b)
s 53(1)(b) of the Law of Property Act 1925
either is normal, but be precise. Note the comma after the name of the Act in
the first way.
7.
References to textbooks and articles
As with cases, there are conventions for setting out these. In the first place,
avoid blatant inaccuracies; e.g. a student has been known to make reference
to the fourth edition of Mark Thompson’s Modern Land Law when the current
edition was the second! Such carelessness is unacceptable.
The method recommended by The Oxford Guide to Style for giving full
textbook references is as follows:
 to give the author’s name, in roman, as it appears on the title page
of the book, and followed by a comma
 the title in italics and followed by a comma
 the edition
 in parentheses, the place of publication, a colon, the publisher, a
comma, and the year
e.g. Mark P Thompson, Modern Land Law, 2nd edn. (New York: Oxford
University Press, 2002)
(Remember to cancel the ‘I’ icon on the toolbar before typing the comma
which follows the title.) In footnotes, however, the part in parentheses is
omitted: Mark P Thompson, Modern Land Law, 2nd edn. Then put the page
number.
After the first mention, use an intelligible abbreviation, e.g. Thompson.
Clearly, if more than one work by the same writer is used, you must include
the work, e.g. Thompson, Modern Land Law. When quoting from a book, you
must give the page number after the reference, whether first or later, e.g.
Thompson, p 86. The trend now is to repeat a reference this way, and to
avoid ‘op. cit.’, ‘ibid.’ and the like.
However, a textbook reference should be set out in a bibliography with
the author’s or authors’ first names after their surnames thus:
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Thompson, Mark P, [and the rest as above]
Gray, Kevin, and Gray, Susan Francis, Elements of Land Law, 4th edn.
(New York: Oxford University Press, 2004)
When setting out your bibliography, the full reference as recommended by
The Oxford Guide to Style must be given – see 10 below.
References for articles start similarly, then with the title of the article in
italics followed by the journal reference:
M. Haley, Licences of Commercial Premises: a return to Form? [2002]
J.B.L. 310
Take the trouble to know the meaning and correct usage of reference
terms such as ‘ibid.’, ‘op. cit.’, ‘loc. cit.’, ‘ante’ and ‘supra’. Note that overuse
of these tends to suggest immature and spurious academicism. (In fact, the
journal Modern Law Review, in its style guide for contributors, requires the use
of equivalent English terms rather than Latin ones, i.e. ‘above’, not supra,
‘below’, not infra.)
8.
It is a convention in legal writing to have one ‘e’ in ‘judgment’.
A judgment is a decision of the court. A judgement is a moral or comparative
evaluation, and so is personal. Judges give the judgment of the court; they do
not offer a personal judgement of the case.
9.
Quotations and Paraphrasing
Remember that when you quote, you must quote exactly. Short quotations
are set in single quotation marks and are run on in the text, e.g.
. . . but Herle J retorted that the judges would not ‘undo the law for a
cartload of hay’.
Longer quotations should be displayed by being indented, two spaces below
and with the font size one point less than the text. No quotation marks are
used. E.g.
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‘Lord Birkenhead, who piloted the earlier legislation through Parliament,
described its policy in the following terms. He said:
Its general principle is to assimilate the law of real and personal estate and to
free the purchaser from the obligation to enquire into the title of him from
whom he purchases, any more than he would have to do if he were buying a
share or a parcel of stock.
He sought to achieve what was probably an unattainable goal . . . ‘
Of course, any quotation must be footnoted giving the source. If, in part of a
quotation, you have to deviate from the original, put that part in square
brackets, e.g. ‘[Parliament] is therefore taken to withhold . . .’ where the
original said ‘it’ and not ‘Parliament’.
Paraphrasing means putting someone’s ideas in your own words. So,
instead of an actual quotation from a book or article by, say, Mark Thompson,
you write, ‘As Thompson argues . . . ‘ and say what Thompson argues in
your own words. You will probably stick closely to Thompson’s own words,
and you must still cite the book and page or the article in the prescribed way.
10.
Bibliographies
Rubrics often require that you give a bibliography. This is to show what
research you have done for your answer. You should refer to more than one
major textbook, and, perhaps, to articles.
Do not:
 give the names of cases or of statutes or of statute books in your
bibliography; it should be clear from the essay to what extent you
have referred to cases and statutes.
 cite ‘Nutcase’, ‘Nutshell’ books and the like – these are not academic
research material
A bibliography should set out the full reference for a book, but unlike the
reference in a footnote, the author’s surname is given first, followed by a
comma and the forenames and/or initials according to how the author’s name
appears on the title page book of the book. The order should be alphabetical
according to surname, e.g.
Sparkes, Peter, A New Land Law, 2nd edn. (Portland, OR: 2003)
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Thompson, Mark P, Modern Land Law, 2nd edn. (New York: Oxford
University Press, 2002)
If there are two authors, give their names in order as they appear on the title
page of the book, e.g.
MacKenzie, Judith-Anne, and Phillips, Mary, Textbook on Land Law, (New
York: Oxford University Press, 2004)
When you have typed the title in italics, remember, as mentioned above, to
cancel the ‘I’ icon on the toolbar before you type the comma which follows
the title.
Divide the bibliography into parts with subheadings for textbooks,
articles, and reference works (such as Halsbury’s Laws).
11. Support every statement with authority
This is fundamental to legal thinking. A statement unsupported by authority
is nothing more than a personal opinion, and a personal opinion simpliciter
has no value and no place in legal writing. A personal opinion is not the same
as the reasoned opinion of a person, a cogent argument, developed from due
consideration of the stated authorities. It would, for example, be insufficient
to say (as was said in one essay) of an issue, ‘the law in this area is
inconsistent’; that may be true and it may generally be known to be true; but
the truth of the statement must be demonstrated by citing contrasting cases
which reveal the inconsistency. It is only in this way that markers of essays
(and examination scripts) can see that you know and understand the law.
Authority may, of course, according to the context, be from case law, statute,
and from a leading article or textbook.
12.
Use examples from cases, not from imagination
Sometimes, students illustrate their answers with imaginary examples. For
instance, in an essay on Fixtures and Fittings, past students have mentioned
items they have thought of, whereas only items the subject of a case must be
used. Only take examples from actual cases and give the correct citation.
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13.
Reading through your work
After writing an essay, wait a day or two, and then read it through as though
it were someone else’s that you were reading critically. This should help to
avoid many errors. There are provisions for others to help by reading
through your work though this must be acknowledged in the prescribed way.
14.
Hand in your work in time
Why lose marks unnecessarily? There is now zero tolerance of late
submission of assessed work. So, the result of late submission can mean no
mark at all instead of a good mark.
B. WHAT YOU SHOULD NOT DO
1.
You should not the use the first person
Legal academic writing should be detached and objective. Judges, of course,
do use the first person in their judgments, but they generally preserve the
necessary detachment and objectivity, avoiding tending to emotion. (For a
dryly amusing anecdote, see Re Baden (No2) [1973] 1 Ch 9 at 18 per Sachs LJ.)
The judge is giving a speech which is then written up; also, use by judges of
the first person helps to distinguish their speeches from those of their
brethren.
The use of the first person is not the accepted convention in legal academic
writing. (You may see exceptions but these are not models to be followed.)
Do not write, ‘I think’ or ‘to my mind‘ or ‘I would argue‘. It is no better to
write, ‘in this writer’s opinion’. Find a different construction such as, ‘It
follows that . . . ‘.
Students sometimes ask for guidance on how to avoid using the first
person in writing essays. Text books and articles in journals (and, for that
matter, newspaper articles) are written in the third person.
The best way of learning how to avoid the first person is to follow the
examples to be found in the text books and articles. Two examples taken at
random from Modern Land Law by Mark P Thompson may help. At page 181
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in the second edition, there is a section headed, ‘Acts by the Vendor’. The
first sentence of this section says that a certain argument has been put, and a
reference is given for the source of that argument (footnote 123). The second
and third sentences expound that argument. The fourth sentence begins, ‘It is
suggested that this view . . . ‘ In this way, Thompson avoids saying, ‘I think
that this view . . . ‘ He goes on to state his view. Note that a further sentence
begins, ‘It is thought that . . . ‘
These are obvious ways of avoiding the first person. A more subtle way is
used on page 135. In the section headed, ‘Miscellaneous Rights’, Thompson
lists some very old rights. He then writes, ‘This collection of somewhat
arcane and archaic rights is ripe for abolition.’ He avoids writing, ‘I think this
collection of . . . ‘ In this sentence, Thompson expresses his opinion in an
indirect way: thus, he uses a qualifier, ‘somewhat’ (though that had better
been avoided), and he uses two adjectives, ‘arcane’ and ‘archaic’. Finally, he
makes an assertion: that this collection ‘is ripe for abolition’. This assertion,
however, is followed by comment supported with authority; the paragraph
goes on to set the assertion in the context of the ECHR and the Land
Registration Act 2002.
2.
Do not address the reader
Never address the reader, e.g. ‘. . . but you cannot be sure that . . .’
3.
Avoid using a comma when there should be a semi-colon or a comma
and a conjunction
This is a very common error but there is no excuse for it. For example, ‘This
is normally the case, however there can be . . . ‘. Clauses in compound
sentences should be separated by a comma and a conjunction, or by a semicolon, e.g.
This is normally the case; however, there can be . . .
or
This is normally the case, but there can be . . .
Note also that such words as ‘however’, ‘nevertheless’, and ‘accordingly’
should be followed by a comma.
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4.
Avoid starting a sentence and then failing to give it a main clause
e.g. ‘Although there is only very old authority for the proposition that cases
involving such a duty should be treated as giving rise to a trust.’
Clearly, ‘trust’ should be followed by a comma and a further clause, the main
clause of the sentence, otherwise what is written is both ungrammatical and
nonsense. This error suggests a failure to read through and check the text
(see para.13 above).
5.
Do not mix tenses
e.g. ‘his lordship said’ followed soon after by ‘his lordship says’ – be
consistent
6.
Avoid mixing number
e.g. ‘object was considered to be fixtures’ or ‘one of the tests that are carried
out are’. Hopefully, it is clear why these are incorrect!
7.
Avoiding qualifiers
This is a matter of judgment. Do not write, ‘this case is rather important’: it is
or it is not! But you can write, ‘in rather similar vein, Eveleigh LJ said’.
Words such as ‘rather’ and ‘fairly’ can tend to imprecision of thought in a
legal context; use them judiciously and sparingly.
8.
Avoid contractions
It is still not acceptable in legal academic writing to write, ‘don’t’, wasn’t’,
‘isn’t’ and suchlike. Use the full form, ‘do not’, ‘was not’ and ‘is not’.
9.
Do not plagiarise
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Plagiarism is the presentation of the writing of others without
acknowledgement, so that it appears to be your own work. A paragraph and
even a couple of lines copied from a textbook without acknowledgement is
plagiarism and you will be subject to academic discipline as a result.
Downloading and cutting and pasting material from the internet is also
plagiarism. Plagiarism is dishonest. It is cheating.
This is a serious academic offence which may have grave consequences. Do
not think it will not be spotted – it will! Do not do it!
Also, for those students who intend to be solicitors or barristers, we have to
notify the Law Society or the Bar Council (as the case may be) of any
academic offence committed by an applicant. So plagiarism could
prejudice your career prospects.
C. THREE OTHER POINTS
1.
The problem of the personal pronoun
Unlike most languages, English does not use masculine and feminine genders
grammatically as, for example, in French (le bureau, la porte), and English has
no way of avoiding a gender-specific possessive personal pronoun. It has
always been the convention to use a masculine pronoun which includes the
feminine where the context allows, e.g. ‘every judge has to be mindful of his
duty in this regard’. Other languages may use similar constructions, but in
the U.S.A. and Britain, there is an opinion that this is ‘sexist’, though such an
opinion seems not to be widespread elsewhere. (For example, Russian uses
the same construction as English but the idea that this was sexist was never
current in the Soviet Union.) This ‘Anglo-American’ opinion arguably fails to
recognize that the use of ‘his’ in such a context is purely grammatical rather
than exclusive of the female gender. There may be an alternative
construction which avoids the use of the masculine such as using the plural,
e.g. ‘judges have to be mindful of their duty in this regard’. Other efforts,
however, do violence to grammar: there is a tendency to use the plural
pronoun where the singular should be found, e.g. ‘every judge has to be
mindful of their duty in this regard’, but this, whilst commonly to be found
and in some places recommended, is clearly ungrammatical. Leading
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reference works try to stay neutral but concede that no satisfactory alternative
to the traditional convention has been found. Until some acceptable
alternative form is found, the standard convention of using a masculine
personal pronoun can be used. This may, however, be anathema to some.
Whatever you do, at least be consistent, and do not mix pronouns thus: ‘they’
closely followed by ‘he’, and do not write ‘he/she’ which becomes tiresome.
2.
Subjective and Objective tests
In some essays, there has been confusion about what these tests are. A legal
test is used to determine the meaning of something. The test is said to be
subjective when that ’something’ is looked at from the point of view of the
parties, for example, where it is said that a document called a licence (as
opposed to a lease) must be a licence because that is what the parties called it.
The test is objective when the matter is considered by the court without
regard for the view of the parties, as where, following the example given, the
court determines that the document is a lease because the court finds that, in
law, that is what it is despite the label ‘licence’ having been put upon it by the
parties. The objective test was described by one judge thus: ‘if the parties
have a dog, it is a dog, and the parties cannot turn it into a cat by calling it
one’.
3.
Style
Individual style, as opposed to style conventions as set out above, is a
difficult matter. There is room for individuality but not for eccentricity. Law
is a technical subject with its own terminology or ‘jargon’, just as, say, science
subjects have theirs. To get a ‘feel’ for style, read articles and judgments and
see how authors and judges write (though not all judges write well!).
Your prose style should not be affected; do not use obscure and complex
words or make it consciously ‘legalistic’. On the other hand, it should not be
so informal that it seems casual. Use straightforward language which clearly
and concisely conveys your meaning. If you have ever read David Copperfield
by Charles Dickens, you will remember that Mr. Micawber loved using highflown language and so is a figure of fun. There is much to be said now for
using Old English words where Latin- or French-based words would
formerly have been used. There is no reason, for example, why, where
19
appropriate, we should not use ‘end’ rather than ‘terminate’, ‘use’ rather than
‘employ’.
Here are some tips:
 do not make sentences too long
 do not make paragraphs too long
 avoid waffle and padding
 avoid colloquialisms
 avoid tiresome lead-ins, e.g. ‘It is interesting to note that . . ‘, ‘It
may perhaps be said that . . .’, and the like
 avoid legalistic verbiage such as ‘aforementioned’, ‘aforesaid’
D. RESOURCES
The following reference works are recommended:
Burchfield, R. W. (ed.), The New Fowler’s Modern English Usage, 3rd edn. (Oxford:
Oxford University Press, 1998)
MHRA Style Guide (London: Modern Humanities Research Association, 2002) –
available free of charge online at www.mhra.org.uk
Pearsall, Judy (ed.), Concise Oxford Dictionary, 10th revised edn. (New York:
Oxford University Press, 2002) – this includes the very useful Appendix 8: Guide to
good English
Ritter, R. M. (ed.), The Oxford Guide to Style (Oxford: Oxford University Press,
2002) – includes a special section on legal style
E. A FINAL POINT
When you have written an essay, ask yourself two questions:


if I were in a law firm, on a placement or in a training contract, or in any
other job, is this piece of work of a standard that I would be happy and
confident to put in front of my boss or a client?
is this the best that I can do?
F. WORKED EXAMPLE
20
What follows is the Land Law assessed essay question that was set in the Spring
Term 2005 and suggested answer to demonstrate what we expect. It is not held
out as a perfect answer (though it is pretty good!) but rather as a guide to style
and presentation.
The question:
Answer both parts
1.
Harold, Ian and Joseph, three wealthy law students, bought a house
together in September 2002, with the intention that they should live there
until they had completed their studies. They made equal contributions to
the purchase price, and the house was conveyed into their joint names,
with no express provision as to beneficial ownership. For some time they
lived happily together, but in June 2003 Harold left the house after failing
his first year examinations. He never returned, and in September 2003
Kenneth, another student, arrived at the house, producing documents to
show that Harold had sold him his share in the property.
Ian took an instant dislike to Kenneth, and the situation in the house
rapidly deteriorated. Ian decided to move out, and asked Joseph and
Kenneth if they wanted to buy his share in the house. They both said that
they would do so, and the three agreed that they would sort out the final
details of the transaction after the winter vacation. Returning to the house
in January 2004, Ian was involved in a car accident and was killed
instantly. He left a will leaving all his property to his only relative, his
brother Lewis.
Joseph has decided that he now wants the house to be sold, but Kenneth
has objected to this, saying that he intends to live there for at least the
next ten years, until he is settled in his career.
Advise Joseph, Kenneth and Lewis of their interests (if any) in the house.
Will Joseph be able to sell the house, despite Kenneth’s wishes?
How would your answer differ if, instead of dying accidentally, Ian had
been killed by Joseph following an argument?
2.
‘The law of co-ownership of real property continues to discriminate in
favour of co-owners who are married’.
To what extent is this true?
21
Suggested answer (word count: 1487)
Q1
This question concerns the devolution of the interests of three co-owners. Some
of the facts do not give rise to difficulty since the law gives no room for doubt as
to the position. There are some points, however, which are arguable and to
which, therefore, no conclusive answer may be given.
Harold, Ian and Joseph took the house as joint tenants of the legal title:
s 1(6), Law of Property Act 1925. How the beneficial interests were held is
important since if they held as joint tenants, the right of survivorship would
apply whereas if they were tenants in common it would not. Where there is no
express provision as to beneficial ownership (which would have been conclusive:
Goodman v Gallant1), it is necessary to see whether the ‘four unities’, possession,
interest, title, and time, are all present. If they are, it is presumed (unless there is
rebutting evidence) that a joint tenancy exists. The facts indicate that all four
unities were present and there is no suggestion of any rebutting evidence. In the
circumstances, however, a tenancy in common would have been more
appropriate.
1
[1986] 1 All ER 311
22
Harold left and sold his share to Kenneth. This was an act of severance of
the first type mentioned in Williams v Hensman,2 and meant that the beneficial
interests were then held as a tenancy in common as between Kenneth and Ian
and Joseph, though a joint tenancy continued between Ian and Joseph. There
was no change in the holding of the legal title.
Then there were negotiations between Ian and Joseph and Kenneth to buy
out Ian’s notional one-third share. It appears that these negotiations were not
conclusive, and so the question arises whether there was mutual agreement to
sever the joint tenancy of Ian and Joseph, the second method in Williams v
Hensman. Gray and Gray3 acknowledge that mutual agreement may be difficult
to distinguish from mutual conduct, but affirm that there is a difference. The
facts indicate mutual agreement, and though Burgess v Rawnsley4 suggests this
could effect severance, Gray and Gray say that ‘[c]aution is required, however, in
relation to the severing quality of a mere ‘agreement in principle’ if there is
evidence that the parties reserved the right to alter their respective bargaining
positions in the light of later developments.’5 Subject to evidence to the contrary,
the position here appears to be that there was no severance: Gore and Snell v
2
3
4
5
(1861) 1 John & H 546
Elements of Land Law 4th edn, p 1067
[1975] Ch 429
Elements of land Law 4th edn, p 1067
23
Carpenter.6 If there was no severance, Ian’s will was ineffective as the right of
survivorship operated in favour of Joseph; if there was, his will was effective to
pass his share to Lewis. Ian’s death left Harold and Joseph holding the legal title
on trust for Kenneth and Joseph, assuming there was no severance as between
Ian and Joseph, which appears more likely.
There is now a dispute between Joseph and Kenneth as to sale. Any
interested person may apply to the court for an order for a sale of land: s 14,
Trusts of Land and Appointment of Trustees Act 1996. In deciding whether to
order sale, the court has regard to the criteria in s 15. Before TOLATA, an order
for sale might be made under s 30, Law of Property Act 1925, and the case law on
s 30 may still guide judges in the exercise of their discretion. The court considers
the original purpose of the trust, and, if that still subsists, sale may not be
ordered: Re Buchanan-Wollaston’s Conveyance.7 Here, only Joseph of the original
three students now occupies the house, and Kenneth’s wishes are different from
the original purpose of the trust. There is, therefore, a strong argument that sale
should be ordered: Jones v Challenger.8 Accordingly, Joseph most likely could
force a sale of the house, despite Kenneth’s wishes. Kenneth should be advised
of the strength of Joseph’s case to persuade him to accede to this without the
expense of proceedings. For the reasons given above, it is unlikely that Lewis
6
7
8
(1990) 60 P & CR 456 at 461-462
[1939] Ch 738
[1961] 1 QB 176
24
has any interest in the house. If he had, a sale is still likely: there is no suggestion
that Lewis occupies the house and he had no part in the original purpose of its
purchase. In the event of Harold not being found to execute a transfer, the court
would be asked to make appropriate directions.
Where one of two beneficial joint tenants kills the other, public policy
requires that the killer should not profit by operation of the right of survivorship:
Forfeiture Act 1982. Assuming no severance of Ian and Joseph’s joint tenancy,
such policy would deprive Joseph of any benefit by treating the homicide as a
severing event which leaves Joseph as a trustee of the legal title but holding the
share he would have acquired from Ian on trust for Ian’s estate: Re K.9 Only in
exceptional cases where the justice of the case requires it may the forfeiture rule
be dispensed with at the court’s discretion: Re K and Dunbar v Plant.10
Q2
There are various ways in which unmarried couples are treated differently by the
law from married couples. In the area of real property, the difference in
treatment becomes apparent on breakdown of the relationship. The property
rights of married couples, on separation or divorce, will be determined by the
court which, under the matrimonial legislation, has discretion to adjust these
9
10
[1985] Ch 85 at 100
[1998] Ch 412
25
rights as it thinks fit. Unmarried couples by definition cannot refer to this
legislation, and disputes about property law can only be determined by the
much less flexible rules of resulting and constructive trusts, and perhaps
proprietary estoppel, to establish a beneficial interest in the property (save that
homosexual partners may now have recourse to the Civil Partnership Act 2004).
Under the law of resulting trusts, a claimant is essentially entitled to get
back what he or she put into the property by way of a contribution to the
purchase price. Contributions to the support of the household will not form the
basis of an interest in property: Burns v Burns.11 As Gray and Gray put it, ‘[t]o
this day English law recognises no distinct regime of family property . . . The
reward for generalised, and usually unquantifiable, contributions of domestic
performance is to be found – if at all – only in the law of constructive trusts.’12
The restrictive approach of the House of Lords in Lloyd’s Bank plc v
Rosset,13 means that an agreement to share a home is not the same as agreeing on
the beneficial interests in it. Rosset does show, however, that whilst the property
interests of married couples can be dealt with in separation or divorce
proceedings, even married couples are faced with the same application of
property and trust law rules in proceedings brought by a mortgagee.
11
12
13
[1984] Ch 317
Elements of Land Law 4th edn, p 885
[1991] 1 AC 107
26
Otherwise, the position as shown in Burns v Burns and in Rosset confirms that
‘there is a major difference between the position of unmarried and married
couples, when their relationships come to an end’.14
There is evidence of a more realistic approach by the courts: following
Grant v Edwards15, Midland Bank plc v Cooke16 and Oxley v Hiscock 17 , a view of the
whole relationship and the dealings of the parties may now be taken. Oxley v
Hiscock is especially useful in reviewing the previous case law and seeking to
make progress towards a more just and realistic handling of such cases. In that
case, Chadwick LJ felt able not to restrict himself to resulting trust rules based on
Miss Oxley’s undoubted financial contribution but to use this as a basis for
finding a constructive trust. Since it will be very unusual for a cohabitant to
make no financial contribution whatever, situations such as the facts in Burns v
Burns will be rare though it is hard to see how, even now, similar facts could lead
to a different result.
Dillon LJ said in Springette v Defoe,18 that ‘[t]he court does not as yet sit, as
under a palm tree, to exercise a general discretion to do what the man in the
14
15
16
17
18
Judith-Anne McKenzie & Mary Phillips, Textbook on Land Law, 10th edn, p 377
[1986] Ch 638
[1995] 4 All ER 562
[2004] 3 WLR 715
[1992] 2 FLR 388 at 393
27
street . . . might regard as fair’. Perhaps now it does, and this raises the perennial
question whether such fairness undermines certainty
Bibliography
Gray, Kevin and Gray, Susan Francis, Elements of Land Law, 4th edn. (New York:
Oxford University Press, 2005)
McKenzie, Judith-Anne and Phillips, Mary, Textbook on Land Law, 10th edn. (New
York: Oxford University Press, 2004
Thompson, Mark P, Modern Land Law, 2nd edn. (New York: Oxford University
Press, 2002)
www.oup.com/uk/booksites/law
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