In-Class Test Correction (L2, L3, M1) : General linguistic remarks

Vocabulary:

Independence

Base (concrete) ¹ basis (abstract) ê the plural form in both cases is: bases

The legal basis / the base of the bed

To rise (intransitif): For example E. Hemingway’s novel “The Sun Also Rises”

To raise (transifif): to raise a defence

To claim ¹ to pretend

Previous (adj.) ¹ A Precedent (n.)

Dans la mesure où: insofar as…

Allege / alleged / allegedly

Statue ¹ Status ¹ Statute

Les dispositions de la loi: the provisions of the statute

To lay down: the act lays down that / to lay down a rule

To set out: (presenter / exposer): the information is set out in the table below

THE UK and THE EU BUT UK Law / EU Law

Jurisdiction:

To have jurisdiction over certain matters = to be competent to hear certain claims

A jurisdiction is a territory where a legal system applies

To bind lower courts: the Court of appeal’s precedent binds lower courts / is binding on lower courts.

To bind (bound, bound) ê to be bound.

(The contract binds the parties / The contract is binding on the parties)

Address: to address an issue

High-profile cases

To complain (v.) / A complaint (n.)

To exhaust all possibilities of appeal

The court of last resort

To obtain redress

Prévoir: to foresee (anticipate)

Etre chargé de: To be in charge of + V-ing

To be on an equal footing with / to be on a par with (être au meme niveau que…)

Prior to = before

Current  ¹ actual

In the case at hand / in the instant case

Cases lie from the Crown Court to the Court of Appeal

To take a case to court / to make a claim / to assert a claim in tort

To bring a case before the Court of appeal (NOT in front of)

Scope: this falls within the scope of the law

Surrogacy:

Expense ¹ expenses

To cover / pay for the expenses incurred during the pregnancy

To meet someone’s needs / to provide for someone’s needs

To give full effect to surrogacy

A complex situation can arise / to give rise to complex situation. (The Human Fertilization and Embryology Act 2008 gave rise to problematic situations)

Legislation: further legislation is required

The Child’s welfare
To give up the child for adoption

Surrogate / surrogacy

Faire appel à: to have recourse to surrogacy (also: “to resort to a surrogate mother” but “resort” has a negative connotation)

To make a profit ¹ to benefit from ¹ to take advantage of

Un tiers: a third party

Nouveau-né: a newborn (n.) / a newborn child (adj.)

Etre en âge de: to be of age ¹ to be under age

Family Law:

“Reservé à”: Civil partnership is only available to / only open to / (only limited to)

To conclude a pre-nuptial agreement / to enter into a pre-nuptial agreement.

Two years’ separation

Discrimination:

Discrimination is uncountable

Information is uncountable

To benefit of the same rights as / to enjoy the same rights as…

To put someone with a protected characteristic at a disadvantage

To get fired / sacked  / to be given the sack (inf.) = to be dismissed (to be given one’s cards) / to be made redundant (eco.)

Contract law:

A bilateral contract, a unilateral contract

Grammar:

Prepositions:

To set limits on something

To impose something on someone

In comparison with

As opposed to

Divided into 3 divisions: / Divide ¹ devise

The High Court is composed of 3 divisions…

Syntax:

To give something to someone / to give someone something

Whereas / Unlike:

Ø  Whereas + Groupe verbal

Ø  Unlike + Groupe nominal

Before + v-ing / After + v-ing / Instead of + v-ing

Contribute to + V-ing

To make someone do something = To have someone do something

= To get someone to do something.

The only one of these structures to have a passive form is “to make someone do something”. It becomes: to be made to so something

Sequence of tenses:

If + Present ê Future

If + Preterit ê Present Conditional (If I had …. I would)

If + Past Perfect ê Past Conditional

M1 In-class test correction (GROUP 2 and GROUP 52)

M1 In-class Test Correction : Group 2

I.                    Complete the following sentences:

1.       In order to establish someone’s liability in Tort, the claimant has to prove on the balance of probabilities that the defendant owed him a duty of care, the breach of which is the direct cause of the harm sustained.

2.       While in a business context intention to form a contract is presumed, in a domestic contexte the intention of the parties to be bound by contract is reversed, although it is rabuttable which menas that the parties may provide evidence that they intenses their agreement to be binding.

3.       Unlike a bilateral contract, a unilateral contract is an agreement whereby the promisor undertakes to do something if a certain act is performed, but there is no obligation for the promise to undertake performance.

4.       Although consideration must be sufficient, it does not have to be adequate that is to say that it does it have to be of equal monetary value to the original promise.

5.       Goods displayed in a shop window or at auctions cannot be considered as an offer but only as an invitation to treat.

 

II.                  Text:

1.       The parties to the litigation are, on the one hand, a former Miss India UK (i.e. the claimant), and on the other hand three defendants, namely the producer, the broadcaster and another housemate of the Big Brother TV show.

The claimant brought an action for defamation against the three defendants on account of the broadcasts of two Big Brother episodes, and also issued a claim for breach of contract against the producer of Big Brother. That is called pleading in the alternative.

Given that county courts have no jurisdiction over defamation cases, the case at hand was thus necessarily heard by the Queen’s Bench Division of the High Court.  

 

The claimant, however, did not obtain redress.

 

Concerning the first broadcast, the court ruled that contrary to claimant’s assertion, the housemate’s comments did not have a bearing on the claimant’s social or intellectual status. These comments had also been condemned by the broadcaster and producer. As for the second broadcast, the court deemed that the racist nature of S’s remark actually undermined S’s own status and credibility in the eyes of viewers more than it affected the claimant’s reputation.

2.       Defences:

Pursuant to the Document handed out in class concerning the Defamation Act 2013, the defences available to a defendant are:

 

-          Truth (section 2) and Honest Opinion (section 3)

-          Publications on a matter of public interest (section 4). This defence replaces the common law defence known as The Reynolds Privilege.

-          Qualified Privilege (section 6)

-          (Section 5 provides a new defence for website operators who comply with the Defamation (Operators of Websites) Regulations 2013.

 

Note that since the reform, defamation is not actionable per se. The claimant must prove his reputation has suffered serious harm.

Similarly, defamation cases are generally not tried by jury any longer.

 

Please read below the Updated Factsheet of the Glossaire on Defamation:

Defamation can be defined as the publication of a statement, which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. To establish defamation, three elements must be proved: the statement made is defamatory, it refers to the claimant and it is communicated to at least one person other than the claimant.

 

Defamation takes the form of two separate torts: slander and libel. Slander occurs when the defamatory act is in temporary form and libel when it is in permanent form. Slander requires special damage being proved. Whereas previously libel was actionable per se, the claimant must now show serious harm. Libel can be prosecuted as an offence. A defamation case was formerly tried by a judge and a jury in the High Court. Now defamation trials are without a jury unless the court orders otherwise. The jury will assess the quantum of damages, which can be nominal, aggravated or contemptuous.

There are four specialised defences: true and honest opinion (replaces common law defences of justification and fair comment respectively), absolute or qualified privilege, responsible publication on matters of public interest (new defence introduced in the Defamation Act 2013, which replaces the Reynold’s defence) and offer of amends under statutory provisions. If the claimant manages to prove malice, the defendant’s defence fails. In the 2010s, the tort of defamation has been more particularly relevant concerning the freedom of speech in relation to the press. There have been calls for a blanket protection for the press relative to political discussion and information. The courts try to strike a balance between the duty and interest of members of the public to know a fact and the defendant’s right to privacy.

• serious harm: level of the injury sufficient to justify legal action in court under the tort of defamation; fr: ≈ dommage/préjudice particulier
• special damage: to establish his claim in slander, the claimant needs to show that he was actually harmed by the defamatory statements; fr: ≈ dommage/préjudice avéré
• true and honest opinion: statutory defence which determines whether the opinion could be held by an honest person, based on the known facts at the time of writing; fr: ≈ exception de commentaire honnête
• the claimant’s claim stands: fr: la demande en justice du demandeur est recevable

• to be privileged: fr: jouir de l’immunité
• to be sued for defamation: fr: être poursuivi en diffamation

• to dismiss someone's claim: fr: débouter quelqu'un de sa demande

• to make an offer of amends: fr: faire amende honorable
• to tarnish/harm someone’s reputation: fr: porter atteinte à la reputation de quelqu’un

3.       Students’ own answers.

M1 In-class test correction: Group 52

I: Sentence Completion:

1.     Unless there is consideration … a contract will be not be considered as legally enforceable or binding on the parties. 

2.     While in a business context intention to form a contract… is presumed, in a family (/domestic) context the presumption is reversed so that the parties must prove they intend to be bound.

3.     Unlike a bilateral contract, … a unilateral contract is an agreement where only one party promises to do something, in the event that a certain act or promise is performed.

4.     Although a promise of a gift is not a contract in English law, a deed, that is to say a written promise that derives its validity from being intended, witnessed and signed, is a form of binding agreement.

5.     A qualified acceptance… cannot be considered as acceptance but as a counter offer, which causes the original offer to be revoked.

II: Document:

1.     The parties to the litigation are Richard Fowles (claimant) and referee David Evans and the Welsh Rugby Union (defendants). 

The claimant is a rugby front row player who sustained severe injury as a result of the referee’s negligence. Indeed, the referee should have made sure that the scrums were not contested but passive. The referee failed to do so, and as a consequence the scrum collapsed a number of times, eventually causing Fowles’s serious injury.

The claim is therefore a claim in tort as Fowles brought an action for negligence. Fowles alleges that as referee, Evans owed players a duty of care, that he had breached his duty of care and that this breach is the direct cause of the injury he sustained. In other words, Fowles would not have sustained his injuries but for Evans’s negligence.

2.     At first instance, given its complexity and the amount of money at stake, the case was heard by the Queen’s Bench Division of the High Court, as it has jurisdiction over tort cases. (Develop on the High Court: see Glossaire)

The WRU is involved in the case because of the principle of “vicarious liability”, according to which employers are responsible for harm caused by their employees during the course of their work.

3.     The underlined sentence refers both to the classic defence of consent available to defendants in tort cases, as well as its exception (i. e.) “Sciens is non volent”. The defence of consent applies for example to cases related to sport where the defendant contends that the claimant agreed to the risks inherent to the sport practiced (e.g. rugby). “Sciens is non volent” on the other hand means that being aware of the risks may not mean consenting to the risks.

In the case at hand, Fowles may have agreed to the risks entailed by the game when played by the rules. He did not agree on the other hand to the risks that arose from a foul or from the fact that the referee failed to apply the rules. (The scrum in that game should not have been contested, which means that the players should not have been allowed to both front rows to engage and thrust forward.)

Liam Neeson wishes you a happy St Patrick's Day

M1: In-class exam correction

Correction M1 in-class exam (Nov. 2014)

A motion to suppress is a motion usually filed by the defendant before trial / during the preliminary hearing to remove incriminating evidence against him on the basis that it has been obtained illegally, that is to say in violation of the Fourth Amendment to the U.S. Supreme Court.

Unless it grants cert, the USSC will probably not agree to review a case, as a writ of certiorari is the most common route to bring a case to the attention of the Supreme Court Justices.

The role of the Grand Jury is to examine whether or not there is probable cause that is to say sufficient evidence against the defendant to indict him.

To reverse and remand is a phrase which means that the higher court comes to a decision opposite to that of the lower court and sends the case back to the lower court for further proceedings.

The purpose of a dissenting opinion is to put forward arguments that contradict the majority opinion showing that the losing party obtained the support of some Justices, and that lawyers will be able to refer to in future cases.

A motion to dismiss is a motion usually filed by the defence before trial in order to have the case dismissed on account of a procedural mistake. 

A writ of certiorari is one of the three ways along with a writ of appeal and a writ of habeas corpus, to petition the USSC to review a case.

An information is a document in which the prosecution establishes the charges against the defendant in order to indict him. / An information is a document drafted by the prosecution in order to indict a defendant.

During the preliminary hearing, the prosecution will attempt to establish that it has probable cause to believe that the defendant is guilty and that the latter should stand trial.

Pursuant to the adversarial system, the defendant has the privilege of cross-examining witnesses for the prosecution and also to bring his / her own witnesses to challenge incriminating testimonies and provide exculpatory evidence.

Text: United States v. Jones

1. The parties in this case are Jones, (the respondent), who was originally convicted of drug trafficking, and the U.S. who petitioned the USSC on a writ of certiorari.
2. The USSC has jurisdiction because the case raises a Fourth Amendment issue, that is to say a Constitutional issue. Indeed, while Jones challenges the way evidence contributing to his conviction had been obtained in violation of the Fourth Amendment to the U.S. Constitution, the U.S. Government, on the other hand, contends that Jones had a lesser expectation of privacy in his vehicle and that the installation of the tracking device on his car did not constitute a search, and therefore did not require a valid warrant.
3. At first instance, the case was heard by the District of Columbia district Court. (It was heard in federal court because DC is a federal enclave.) On account of the fact that the GPS tracking device had been installed without a valid warrant, the Court dismissed the information obtained while Jones’s car was stationed at the defendant’s residence. However, it held admissible all other evidence obtained thanks to the tracking device. Jones appealed his conviction on the grounds that the warrantless installation of a GPS tracking device infringed on his right to privacy guaranteed by the Fourth Amendment. The DC (federal) circuit court allowed the appealed and reversed the lower court’s ruling. Finally, the U.S. Government petitioned the U.S.S.C. to review the case and determine or not whether the use of data collected by the tracking device while Jones’s car was not at the defendant’s home could be used in court against him. It considers that Jones had a reduced expectation of privacy in this car, and therefore that the installation of a tracking device was not a search as defined by the Fourth Amendment.
4. The U.S.S.C had to consider whether Jones had a reasonable expectation of privacy in his car. Indeed, the search of a suspect’s car performed at a random checkpoint is one of the few exceptions to the warrant requirement. The case at hand, however, does not fall within this exception. Besides, the Supreme Court, ruled that supposing that Jones had a reduced expectation of privacy in his car, this vehicle nonetheless remained his property, the protection of which – the Court reminded  – is the very purpose / the original purpose of the Fourth Amendment. Consequently, the Supreme Court held that the installation of a tracking device on Jones’s property (even where he had a lesser expectation of privacy) was tantamount to a search.

The Court refused to consider whether or not the search was indeed a reasonable one, because the U.S. government had not raised this point before the Circuit Court.

5. Students’ own answers.

Text: California v. Carney

1. The two parties in this case are the State of California, bringing a prosecution against Carney, i.e. the defendant, who stands accused of exchanging marijuana for sex.

 2. Carney’s offence being a state offence / Since Carney’s offence contravenes California Law, Carney was tried in state court. At first instance, the case was heard by the California Superior Court. On appeal, the case was then heard by California Court of Appeals and by California Supreme Court. The trial court and the court of appeals both found Carney guilty, but the California Supreme Court reversed Carney’s conviction, arguing that conviction had been found on evidence that should have been held inadmissible in court. The case raising a Constitutional question, the USSC agreed to review the case on a writ of Certiorary filed by the State of California.

3. The party who filed a motion to suppress is Carney, the defendant. Carney argued that the evidence against him had been obtained in violation of his Fourth Amendment right, so that he could escape conviction.

Plea of nolo contendere: see booklet.

4. Reversing the California Supreme Court decision, the USSC held that Carney’s expectation of privacy in his motor home was actually reduced, and that consequently the police did not require a warrant before seizing evidence incriminating Carney. Carney’s attempt to distinguish between a vehicle and a motor home was deemed irrelevant. The evidence should thus be held admissible and Carney should be convicted.

5. See the summary of the Fourth Amendment studied in class.

M1 Walden v. Fiore (2013) Case Summary

Walden v. Fiore (2013)

Case Summary

I. Which courts had jurisdiction and what were their respective rulings?

1.    The Nevada Federal District Court:

The Nevada Federal District Court ruled that because the seizure took place in and aimed at Georgia, the Nevada Court was deprived of personal jurisdiction.

Or: The Nevada Federal District court ruled that it did not have personal jurisdiction over the case, because the seizure took place in Georgia and aimed at Georgia.

2.    The Ninth Circuit U.S. Court of Appeals:

The Ninth Circuit reversed the decision, on the basis that Walden had drafted a false probable cause affidavit with the knowledge that his action would harm Nevada residents.

3.    The U.S.S.C

Walden filed a petition for a writ of certiorari to the USSC to determine whether or not the Nevada District court could exercise personal jurisdiction over the case and whether or not it was the appropriate venue.

II. Brief outline of the Facts:

Walden and Fiore are professional gamblers returning from San Juan, Puerto Rico to their home in Las Vegas, Nevada, via Altlanta, Georgia.

At Atlanta Airport, Fiore and Gipson were controlled by Anthony Walden and DEA Agents / were subjected to a ramped-up security screening.

Grammar: To be subject to ≠ to be subjected to

A drug-sniffing dog / a drug-detection dog was alerted to Gipson’s bag / reacted to Gipson’s bag and a substantial amount of cash ($97,000) was found in Fiore’s and Gipson’s carry-on bags, which their claimed constituted personal gambling winnings.

On suspicion that the money resulted from illicit drug activity, the agents seized the cash, promising to return it once Fiore and Walden had produced paperwork proving it had been acquired legitimately.

Once they had returned to Vegas / Upon returning to Vegas, Fiore and Gipson did so, but Walden nonetheless submitted a false probable cause affidavit to the U.S. Attorney for the Northern District of Georgia to initiate a forfeiture action. 

Approximately seven months after the seizure, an Assistant U.S. Attorney determined that the government lacked probable cause to seize / forfeit Fiore and Gipson’s money, and returned it to them.

Gipson and Fiore then decided to sue Walden / initiate a tort action against Walden, alleging the seizure constituted a violation of their Fourth Amendment rights.  

III. What did the plaintiffs allege in their suit against the defendant?

Fiore and Gipson argue that the Nevada District court has personal jurisdiction over the case as the defendant, Walden, intentionally targeted them, as individuals, to suffer in Nevada (although Walden himself is from Georgia and his action took place in Georgia). The harm caused by Walden’s false affidavit occurred in Nevada, and so Nevada should have personal jurisdiction.

They contend that when defendants know that the plaintiffs will feel the effects of the defendants’ actions in a different jurisdiction, states’ sovereignty requires that the state where the plaintiff feels the injury be able to assert personal jurisdiction over the defendant.

They believe that Walden’s intentional conduct towards residents of Nevada tie him to the state.

Vocabulary: to tie a defendant to a state

Walden’s arguments:

On the other hand, one of Walden’s arguments consisted in saying that the Ninth Circuit’s decision to grant Nevada personal jurisdiction would have drastic consequences for federal law-enforcement officers (and federal employees) that were required to interact with people from all over the United-States in the course of their work. Indeed, pursuant to the Ninth’s circuit standard, federal law-enforcement officers could be potentially sued by plaintiffs in states where they had no dealings whatsoever.

IV. What was the decision handed down here? When can a court exercise personal jurisdiction over the parties to a civil action?

The issue the United States Supreme Court will consider in Walden v. Fiore is twofold. It will both examine:

a.    Whether a state can exercise personal jurisdiction over a defendant whose sole contact with the state is his knowledge that the plaintiff had connections to the state.

b.    Supposing that Nevada may exercise jurisdiction over the case, it must then decide whether Nevada is a proper venue.

While Walden claims that because the action that gave rise to the claim took place in Georgia, Nevada is not the proper venue, Fiore, on the other hand, purports that because Walden’s action targeted Nevada residents, Nevada is the proper venue.

The court’s decision stems from / proceeds from / results from its interpretation of the test articulated in Calder v Jones, according to which personal jurisdiction is determined by three conditions:

1.    Whether the defendant committed an intentional act

2.    Whether the act was aimed at the forum state

3.    Whether the harm caused would be experienced in the forum state.

The Supreme Court ruled that the Nevada District Court lacked personal jurisdiction over the case, because Walden did not have “minimal contacts” / “minimum contacts” with the forum State. Indeed, the defendant did not purposefully directed his conduct at the forum, but only at its residents. 

In Calder, on the other hand, California had personal jurisdiction over defendants from Florida because California was “the focal point” of both the story the defendants had presented in their article (at the origin of the case) and of the harm suffered.

A defendant’s contacts with a state are to be distinguished from his / her contacts with the state’s plaintiffs.

Summary in “Plain English” (from Scotusblog):

It is a basic principle of jurisdiction that you cannot force somebody to travel to a far-off place to litigate a case if they have no connection to that place.  If you want to sue somebody in a particular state, you need to show that they have made contact with the state — either by committing an act in that state, or at least by intentionally reaching out to the state somehow.  But you cannot sue them simply because you live in the state and you have been hurt.  Because Officer Walden confiscated the plaintiffs’ money in Georgia and kept it in Georgia, they could not sue him in Nevada when they returned home.

Sources for this summary include The Cornell University Law School website and Scotusblog.com