The OUP and BPP National Mooting Competition 2011-2012

Please direct any queries to mooting.uk@oup.com Details of Round One Circulated: Friday 14 October 2011 IMPORTANT PLEASE READ INSTRUCTIONS CAREFULLY y Round One should be completed and the results returned to mooting.uk@oup.com or posted to The OUP and BPP National Mooting Competition 2011-2012, Higher Education Department, Oxford University Press, Great Clarendon Street, Oxford, OX2 6DP by the winning team by Friday 9 December 2011. y y Please use the score sheet provided for returning the results. The rules of the competition are attached with these instructions and are also available on the website. Even if you have taken part in the competition before please do ensure you familiarize yourself with these rules. y Teams should send their skeleton arguments and case lists to their opponents as provided for in the rules. Please only send to OUP if there is a dispute. The method of exchange should be agreed in advance to avoid confusion. y Should any team be in breach of the rules, the judge and if necessary OUP should be informed before the moot begins, so that this can be taken into account if the judge considers appropriate. y Please refer to the accompanying email attachments for the details of the round one draw and the contact details for your opposing team. All contact details should be treated confidentially and for the purposes of this round of the competition only. y The home team shall be responsible for hosting the moot in accordance with the rules. The home teams are those institutions listed first in each draw.

Page 1 of 6, October 2011

Round One draw 2010-2011

Appellant Respondent

Birkbeck College, University of London University of Buckingham University of Surrey University of Northampton University of Cambridge University of Hertfordshire Northumbria University LSE University of Sunderland University of Portsmouth Durham University Reading University University of Nottingham Plymouth University University of Southampton Nottingham Trent Law School University of Leicester Sheffield Hallam University University of Westminster University of Lincoln College of Law, Manchester (GDL) Queen Mary, University of London University of Sussex University of Hull Oxford Brookes University Kent University University of Wolverhampton Aberystwyth University On standby: Anglia Ruskin, Cambridge Campus

v v v v v v v v v v v v v v v

University of Manchester University of Exeter, Exeter Campus University of Sheffield University of Derby University of Chester Cardiff University University of York University of Gloucestershire University of Greenwich University of East Anglia Manchester Metropolitan University University of Warwick Birmingham City University City University London Liverpool John Moores University v v Brunel University Newcastle University

v v v v v v v v

Edge Hill University University of Birmingham University of Oxford University of Winchester King's College, London University of Exeter, Cornwall Campus London South Bank University Aston University v University of Strathclyde

v v

University of Leeds University of Dundee

Page 2 of 6, October 2011

The moot problem for Round One has been devised for the competition by Per Laleng.
(not to be reproduced without prior permission of OUP)

Note from Per Laleng to all mooters in this round regarding the following moot problem - you are advised to ignore Probate issues.

IN THE COURT OF APPEAL B E T W E E N:Norma Jones Appellant v South East Securities Ltd Respondent

In the 1980s, Norma and Olga Jones, two sisters then in their early 60s, purchased their former council house under the Right to Buy scheme. The purchase was partly financed via a mortgage with the Holifix Building Society who obtained a first charge on the property. The purchase price was 30,000. The sisters, who had both retired at age 60, each had a small company pension in addition to various state benefits and pensions. They contributed equally to the monthly mortgage payments, household bills and expenses out of their separate bank accounts although, being the oldest of the two, Olga insisted that all bills should be in her name. Olga dealt with the monthly paperwork and informed Norma of her required monthly contribution to the various outgoings. Norma went along with this arrangement as she not only assumed that Olga carried out all the correct calculations, but over a twenty year period no major disagreements or arrears had arisen. In addition, Norma did not enjoy discussing financial matters with Olga because they often ended up arguing when discussing money, and so she went along with this, as she put it, for the sake of an easy life . In the Autumn of 2007, Olga informed Norma that she, Olga, wished to take out a loan from the Respondent company, South East Securities Ltd ( SES ). Over the course of 2007, SES had been leafleting the former council estate offering Fast and Easy loans at competitive rates . Olga explained to Norma that although she had initially approached SES about the possibility of borrowing 500 with a view to buying Christmas presents for their extended family, she had been told by a representative from SES that the minimum loan in her situation was Page 3 of 6, October 2011

5000. She further explained that in order to obtain this loan, the representative had said that she would have to provide evidence that there was sufficient household income to meet the monthly repayments. The representative had undertaken a quick calculation based on Olga and Norma s various sources of income (of which Olga was aware), and had confirmed that he was satisfied that the level of their joint income was such that there would be no problem in advancing 5000 by way of loan. He also explained that the reason why he needed to know about their joint income was that as this would be an unsecured loan, that meant that there would be no charge on their joint property. Norma was resistant to the idea because she did not want any further debts at her stage of life. Olga reassured Norma that she, Olga, would take responsibility for paying back the monthly installments and that it was well within her means. Norma started to protest, but decided against it as she could not bear the thought of another further furious argument about money. Olga produced a partially completed loan application form and pointed to the boxes that Norma should fill in. These included providing details of all sources of income and a box for her signature. Above the signature box was a statement that read I confirm that I have read the terms and conditions overleaf and I understand that I am entering into a joint loan agreement with SES and the other parties named on this application. Norma did not read this statement, nor any of the other terms and conditions. Olga had already completed the sections relevant to her including the box setting out that the cheque should be sent to Olga Jones. The purpose of the loan was expressed to be for household improvements and general expenses. A cheque for 5000 duly arrived and Olga banked it. Olga did not pay Norma any of the 5000. Olga made monthly repayments for about a year when it became apparent that she could not afford the monthly repayments. She stopped opening the letters and stopped paying but did not tell Norma about this. The capital was accruing interest at the contractual rate of 28% per annum; which rate was not unusual for this type of loan at the relevant time. In the early part of 2009 Olga died and her share of the joint property passed to Norma. Norma then discovered that Olga had not been paying making the monthly repayments, but assumed that as the bills were addressed to her deceased sister, she could safely ignore the intermittent demands for payment. In 2010, SES issued proceedings against Norma on the basis that she was jointly liable for the unsecured debt. SES calculated that as there was probably substantial equity in Norma s home, it was likely that a forced sale or a second charge on the home would eventually meet the debt which had by then risen to a figure in excess of 10,000 plus additional charges. Norma defended the claim on alternative bases: first that she did not know that it was a joint loan agreement as she had assumed she was only providing evidence of her income to Page 4 of 6, October 2011

assist her sister s application for a loan. Second, that if it was a joint loan agreement, it had been obtained by undue influence of which SES had constructive notice and should therefore be set aside. Mr Justice Vanmean held: 1. Although Norma Jones may not have understood the full legal implications of the document she was signing, a reasonable person would have understood that providing details of personal income in support of an application for a loan would have some legal consequences. In any case, the agreement was a joint loan to which Norma Jones was bound by reason of her signature. L Estrange v Graucob [1934] 2 KB 394 applied. 2. Although Olga was the stronger party in the ascendancy who had exercised inappropriate pressure on her sister to agree to the arrangement; or in the alternative, the sisters relationship was one of trust and confidence, the transaction was not one which required an explanation as it was a joint loan. CIBC Mortgages v Pitt [1994] 1 AC 200 and Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44 applied. In the circumstances, the agreement had not been obtained by reason of undue influence and could not therefore be set aside. 3. In all the circumstances of the case, the appropriate and fair remedy was to grant SES an equitable lien over Norma Jones property equivalent to the debt but to grant Norma Jones a licence to remain in the property for life. The Appellant appeals to the Court of Appeal on the grounds that:A. The Common Law rule in relation to signature was displaced in circumstances where the transaction was of an unconscionable nature and/or where there was evidence of misrepresentation or undue influence on the part of a third party such as Olga which affected Norma s ability to understand the nature of the transaction into which she was entering. B. Further or in the alternative, whether the undue influence as found by the judge was actual or presumed, the transaction required an explanation in all the circumstances. The judge had misdirected himself by holding that a joint loan by itself meant that the transaction did not require an explanation in the circumstances of this case. In the absence of that explanation, the Respondent had constructive notice of the undue influence and the transaction should be set aside.
- ends -

Per Laleng 2011

Page 5 of 6, October 2011

In the event of there being an odd number of teams going through to the next round there may be space for the highest runner-up in the round to go through. A note of scores from each round should also be kept in the case of a dispute or query. Home teams please provide the score sheet, and the guidance notes for judges, to the judge.

y y

y y

Home teams please provide the guidance notes for clerks to the clerk. The judge should be referred to the guidance on judging contained at pp 131 133 and 215 - 218 of Snape & Watt: How to Moot: A Student Guide to Mooting, second edition (2010) Oxford University Press: 978-0-19-957167-3.

The judge should give the score sheet to the WINNING TEAM who should return it along with the results summary sheet to OUP by Friday 9 December 2011.

Please bear in mind that if you are hosting this round and your opposing team are coming some distance it would be in the spirit of the competition to offer some light refreshments at some point during the moot.

The OUP and BPP National Mooting Competition 2011-2012 Higher Education Department Oxford University Press Great Clarendon Street Oxford OX2 6DP

Page 6 of 6, October 2011