Jonathan Morgan

NUISANCE AND THE UNRULY TENANT

This article considers various legal aspects arising from the problem of “nuisance neighbours” and in particular the recent cases of Hussain v. Lancaster C.C. and Lippiatt v. South Gloucs. C . The central argument is that the restrictive approach to the liability of landlords for nuisances of their tenants ( Smith v. Scott ) is incompatible with Sedleigh-Denfield v. O’Callaghan . There is also consideration of the special position of local authority landlords (given recent developments in the tort of negligence, including Osman v. U.K .), the scope of the tort of private nuisance, and a survey of statutory remedies which might be used in addition to those in tort.

CONTRACTING FOR SELF-DENIAL: ON ENFORCING “NO ORAL MODIFICATION” CLAUSES

“No oral modification” (NOM) clauses should be enforced in English law. Parties should be permitted to impose formality requirements upon themselves. Entire agreement clauses are (rightly) enforced and this provides a compelling parallel. The reasoning of two Court of Appeal decisions holding NOM clauses unenforceable is critically analysed. The extent to which NOM clauses should be defeasible by estoppel and unfair terms legislation is considered.

REPUDIATORY BREACH: INABILITY, ELECTION AND DISCHARGE

STUDENTS – and indeed judges – of the law of contract have been sorely tried by White & Carter (Councils) Ltd. v McGregor [1962] A.C. 413. Mercifully, other propositions about the breach and discharge of contracts seem elementary.

THE PENALTY CLAUSE DOCTRINE: UNLOVABLE BUT UNTOUCHABLE

BARRY Beavis fought the law of contract and the law won. To the disappointment of motorists nationwide, he failed to show that an £85 shopping centre parking fine was an unenforceable penalty at common law (or under the Unfair Terms in Consumer Contracts Regulations 1999). Ironically, he lends his name notwithstanding to a leading case which confirmed the existence of the penalty doctrine (a joined commercial challenge also failed on the facts): ParkingEye Ltd. v Beavis; Cavendish Square Holding v El Makdessi [2015] UKSC 67; [2015] 3 W.L.R. 1373.

LIABILITY FOR INDEPENDENT CONTRACTORS IN CONTRACT AND TORT: DUTIES TO ENSURE THAT CARE IS TAKEN

This is the accepted manuscript. The final version is available at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9624403&fileId=S0008197315000045.

Strict Liability for Police Nonfeasance? The Kinghan Report on the Riot (Damages) Act 1886

The Riot (Damages) Act 1886 imposes a no‐fault obligation on police forces to compensate owners of property damaged in rioting. Following the riots across England in 2011 an independent Home Office review, the Kinghan Report, concluded that the fundamental principle of the Act should be retained, while the machinery should be modernised. The Report conceives of the Act as a useful, if highly unusual, compensation scheme that may ease socio‐economic problems in riot‐prone areas. This article questions that position. Strict liability offers potential advantages in contentious claims against public authorities, providing an incentive for the police to perform their duty to keep the peace while averting the questioning of police decision‐making that claims in negligence would inevitably require. The best alternative to negligence liability might not be ‘no liability’ (the general position now at common law), or liability based on ‘serious fault’ (as the Law Commission proposed in 2008), but liability without fault.