On completion of this module students should be able to:
(1) Undertake legal research;
(2) Complete an assignment on a legal topic of sufficient academic rigour of approximately 3800 words;
(3) Critique the subject matter of the assignment; and
(4) Offer conclusions based upon the research.
Indicative Content:
(1) Develop and present a research question.
(2) Prepare an annotated bibliography
(3) Reference material according to a prescribed referencing style.
(4) Present an extended essay in a prescribed format.
Students will be assessed as follows:
(1) A 200 word
proposal containing the research question is worth 10 marks of the overall mark.
(2) The 3800 word
research paper
is worth 90% of the overall mark.
The breakdown of marks for the research paper is as follows:
(a) Accurate statement of the law and difficulty of chosen subject 35 marks
(b) Referencing/bibliography/range of sources 20 marks
(c) Clarity of thought/conclusions drawn from research 20 marks
(d) Punctuation/grammar/spelling/format/presentation 15 marks
LLB Year 3 Module: Deferred or Repeat Independent Studies from Semester I 2020/2021 Supervisor: Margaret Davis Note to Students: 1. M. Davis is not obliged or required to provide supervision for any students who have either deferred or are repeating the Independent Studies Module 2. Nonetheless, as indicated to those students M.Davis is willing, from her own time and as a measure of goodwill, to provide supervision and assistance, particularly to those who deferred the Module 3. This supervision will be strictly at set dates as indicated below 4. Students are asked to respect this and note that M.Davis will not be able to engage in emails or supervision/formative feedback outside of these dates 5. Students are permitted to change their subject matter if they wish to do so, again in line with the dates and parameters set out below. 6. Students are NOT required to engage with M.Davis in this respect. They are entitled to work at their own pace and should bear in mind that their submission will not be officially due until August 2021 [during assigned repeat weeks]. Dates – 1. Subject Matter – A change of subject matter must be sanctioned by Friday 12th February 2021 - Week 3 at 5.15pm. Subject matters already covered and therefore excluded are – Children in Direct Provision – Right to Privacy – Right to Silence – Anonymity of Defendants in Sexual Offence Cases – Invasion of Dwelling Act, 2011 – Employer Liability for Remote Working – Mandatory Vaccines for Children – Mental Health and Unlawful Detention – Cyber-bullying – Defence of Insanity – Position of Single Father in Foreign Jurisdictions – Presumption of Innocence – Whistle-blower Legislation – Guardian Ad Litem & Voice of the Child – Defamation – Minimum Sentences – Male Domestic Violence – Commercial Leases – Mandatory Sentencing. Students are asked to think thoroughly through their subject matter before proposing it. 2. Formal Proposal – submitted by Friday 19th February 2021, 5.15pm. 3. !,000 word draft to be submitted by Friday 12th March 2021, 5.15pm. 4. Full draft to be submitted by Friday 9th April 2021, 5.15pm Again, students are reminded of the point made in number 6 above. Should a student wish to engage with M.Davis then submissions will be through Moodle (except for approval of change of subject matter – M.Davis will ask at the end of Probate lectures if anyone wants to discuss a change of subject matter, so there is no need to email). Good luck & stay positive – and again, you have until August to do this!! Analysis of the rules curtailing the restitution of economic loss, is there a change coming? Restitution or the law of unjust enrichment has not yet been prominently featured in Irish law, as with many aspects of the law of unjust enrichment in Ireland the unjust factor of mistake has rarely been the focus of detailed consideration. Keane J recognised that unjust enrichment exists as a distinctive legal concept, separate from both contract and tort[footnoteRef:1]. This thinking was matching with the trend of recognising the law in the common law world. The principle against unjust enrichment recognised a stable pattern of analysis was derived and consisted of whether the defendant was enriched, was it at the expense of this plaintiff, was it unjust and does the defendant have a defence. The Irish courts have traditionally taken a restrictive approach in defining what constitutes an actionable mistake for the purposes of the law of unjust enrichment. Early cases permitted recovery only in cases of what were known as liability mistakes, or where the mistake was said to be fundamental as seen in the case in the National Bank Ltd v Joseph O’Connor and Bowmaker (Ireland) Ltd.[footnoteRef:2]. This case concerned drafts obtained by fraud of teller and handed over to a third party with a lack of proper enquiry by that third party. The title of moneys was obtained by fraud and a mistake of fact, the main question was whether the mistake must be inter partes. The Courts held that the plaintiff was entitled to recover the moneys as there was a mutual mistake which rendered the contract void. In addition, the restrictive definitions of what constitutes an actionable mistake, restitution for mistake was also inhibited by further restriction. The European Convention on Human Rights Act 2003 section 3 obliges bodies that being individual or in some instances companies to act in a manner compatible with state obligations under the convention and provides for damages remedy in event of a breach. It also limits the courts in relation to the amount of damages available to be awarded[footnoteRef:3]. Irish law similar to that of other jurisdictions, has been plagued with problems caused by these traditional restrictions on the mistake cause of action. However, there have been some recent developments which signal a renaissance of the law of restitution. Notwithstanding that, cases on the law of restitution appear to have fallen into desuetude, in this regard It is important to focus on cases that do not involve equitable reliefs such as those involving a constructive trust where the court did not proceed on the explicit basis of providing relief pursuant to the law of restitution. [1: The Lord Mayor, Aldermen and Burgesses of the City of Dublin v Building and Allied Trade Union [1996] 1 I.R 468] [2: [1969] 103 I.L.T.R 73] [3: European Convention of Human Rights Act 2003 s.3(ii-iv)] The aim of the law is to provide a structure whereby a person who has been unjustly enriched at the downfall of another is obliged to make restitution in favour of that other person. It does not compensate for loss, rather it is aimed at the reversal of enrichment. A pillar of the legislation surrounding restitution is section 3 of the European Convention for the protection of Human Rights and Fundamental Freedom which obliges public bodies to act in a manner compatible with the states obligations under the Convention providing for damages remedy in the event of a breach. Although those damages remedies are limited by the legislation in place. The exclusion of courts from the ambit definition can be seen as problematic as it can lead to illogical situations where a tribunal will be bound by convention obligations under s.3, but the court hearing an appeal on the tribunals finding will not be so bound. This essay will discuss the law relating to restitution for mistake by reference to existing Irish jurisprudence which to date has been ignored. In addition, with specific case law which focus on some important features of the law. Namely unjust factors and the absence of basis on a claim of restitution. The two decisions of the High Court in Bank of Ireland Mortgage Bank v Murray[footnoteRef:4] and the decision of Quinn J. in Promontoria (Aran) Ltd v Sheehy[footnoteRef:5] alongside two key lines of case law in relation to eviction cases will make up the body of the essay ultimately scrutinising the area of law and offering suggestions regarding the future development of Restitution in Ireland. [4: [2019] IEHC 234] [5: [2019] IEHC 613] Irish Law has been bedevilled by problems caused by traditional restrictions on the mistake cause of action. However, whereas these problems have largely been ironed out in other jurisdictions as a result of judicial and academic analysis, no similar process has occurred in Ireland. As a result, Irish law is in a state of disarray. One example of this confusion is the assumption in many recent Irish decisions that the mistake of law rule has been abrogated in Ireland, following Kleinwort Benson Ltd v Lincoln City Council’s[footnoteRef:6] House of Lords decision which saw money paid under interest rate swap agreements declared to be ultra virus and void. However, this assumption overlooks a line of Irish authority, including binding Supreme Court authority, which treats the mistake of law rule as extant. The result is a body of jurisprudence that borders on being incoherent. In spite of the fact that cases on the law of restitution seemingly have fallen into relative desuetude recently in Ireland, it has an established provenance in the Irish common law. The decision of the Supreme Court in East Cork Foods Ltd v O’Dwyer Steel Company Ltd[footnoteRef:7] is a landmark decision in terms of the development of the law of unjust enrichment in Ireland. The backdrop of the case concerned a claim for personal injuries incurred by the plaintiff in an industrial accident. The plaintiff was awarded compensation, however there was an appeal regarding the respective liability of the defendants, the supreme court held the first defendant 100% liable which prompted the second defendant to seek its money back. The supreme court refused to order the first defendant to pay the second an amount represented by reference to the defendant’s profit on the money received but to which it was not entitled to. Henchy J. recognised the existence of the law of restitution as a doctrine for providing a remedy where a person had wrongfully received or retained money from another. Accordingly, whilst the outcome of the case might appear uncontroversial through a modern lens, it is a highly significant case in terms of the development of the law of restitution in Irish law as it was the first time the Supreme Court rejected the implied contract fallacy. [6: [1999] 2 A.C. 349 HL] [7: [1978] 1 I.R. 103] in Bank of Ireland Mortgage Bank v Murray[footnoteRef:8] the plaintiff bank claimed repayment of a debt of around €194,000 against a husband and wife. The bank's claim was for breach of contract, and alternatively for money had and received, or conversion. The evidence established that the bank had advanced the funds, and that they were paid into the husband and wife's joint account. The evidence also established that the husband did not sign the loan agreement, or the deed which was intended to create a charge over the family home as security for the monies lent. The bank did not contend that the wife acted as agent for her husband when she signed the loan agreement and charge. Accordingly, the husband had no contractual liability to the bank. The primary factual elements of the claim in restitution which is the enrichment by the defendant at the expense of the plaintiff were accordingly established. The husband’s enrichments were held to be unjust. The next issue was whether the husband could establish a defence to the bank's claim for restitution. Baker J. considered two potential defences: the defence of change of position, and the defence that the husband had not knowingly received the money advanced by the bank. Baker J. stressed that the key question is whether the recipient of the payment has changed his position or engaged in expenditure which would make it unfair, in all the circumstances, to require him to make restitution in whole or in part.[footnoteRef:9] [8: [2019] IEHC 234] [9: Ibid (171-173)] There is little by way of analysis in