The following is an example of a previous moot problem attempted in finals of the OUP:

IN THE HOUSE OF LORDS

R
-v-
Torch

Agreed Facts
Mr Fortune was an assistant chief investigating officer of Customs and Excise. He was in the process of divorcing his wife, Christina, when he was informed that she had been having an affair with the appellant, Torch, for a number of years. Fortune arranged for a listening device to be installed on Christina’s home telephone line (she no longer lived with Fortune). The device was installed solely for Fortune’s own private purposes in relation to the divorce proceedings and his superiors had no knowledge of it.

On the evening of 5 November 1999, an industrial garage maintained by Fortune for the purpose of storing his collection of vintage cars was set alight, causing extensive damage to both the garage and the cars. Fortune was notified immediately. On 6 November, whilst at work, Fortune was monitoring Christina’s telephone line by way of the listening device. At about 10.30 am, a conversation between Christina and the appellant became audible, and Fortune decided to record it. During the course of the conversation the appellant indicated that he had set fire to Fortune’s garage in accordance with Christina’s instructions. Fortune later prepared a transcript of the tape recording and handed that transcript and the original tape over to the police.

The police arrested and interviewed Christina. The appellant was then arrested and interviewed in the presence of his solicitor. At the outset of the interview, one of the interviewing officers told the appellant that the police were in possession of a transcript and tape recording of a telephone conversation between the appellant and Christina Fortune that had commenced at 10.30 am on 6 November. As a result, the appellant made a number of admissions that amounted to confessions. Consequently, he was charged with, inter alia, conspiracy to commit arson.

The proceedings below
The case was set down for trial in the Crown Court before a judge and a jury. In a voir dire, counsel for the appellant made an application to exclude all the evidence obtained as a result of the telephone intercept. The Crown, whilst accepting that the intercept had been illegally obtained, opposed that application. Having considered the submissions, the trial judge, in ruling that all the evidence was admissible, concluded (i) that, although the intercept had been obtained illegally in breach of s 1 of the Interception of Communications Act 1985, nothing in s 9(2)(a) of that Act prohibited the admission of the evidence, because Fortune was not acting as an officer of the Crown at the time that the intercept was made; (ii) that, in relation specifically to the confession evidence, given that the admissions were not made as a result of trickery or a deliberate misrepresentation of the evidence, the evidence was not liable to be excluded under s 76 of the Police and Criminal Evidence Act 1984; (iii) that, for the purposes of s 78 of the Police and Criminal Evidence Act 1984, neither the introduction of the evidence nor the circumstances in which it was obtained were such as to render the appellant’s trial unfair. The appellant did not give evidence and was convicted. He appealed against his conviction with the leave of the single judge.

The Court of Appeal, in upholding the decision of the trial judge, dismissed the appeal, but certified that a point of law of general public importance was involved in the decision and granted the appellant leave to appeal to the House of Lords. The case was thereafter presented to the House of Lords and set down for hearing.

The appeal
The Court of Appeal certified the following question of law of general public importance, namely:

1. 'Is it the law that material obtained illegally through the public telecommunications system by means of an unauthorised telephone tap by a person committing an offence under s 1 of the Interception of Communications Act 1985 is admissible in evidence?'
2. 'If material were obtained in contravention of a statutory prohibition on interception, and such material was inadmissible, but that material was used by the police in interview to obtain a confession, should the judge exercise his discretion, at common law or under s 78 of the Police and Criminal Evidence Act 1984, in order to exclude that confession?'

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The authorities and points sheet is typically exchanged between teams 3 days prior to the moot, and contains a skeletal review of the arguments attempted the authorities referred to. There is a maximum of 6 authorities to be used, and the majority should be cases. Depending on your judge, reputable text books may or may not be accepted.

Here is an example of a successful Authorities and Points sheet:

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Cases used: McCutcheon v David MacBrayne Ltd [1964] 1 WLR 125 ; Chapelton v Barry UDC [1940] 1 KB 532 ; Kendall v Lillico [1969] 2 AC 31. ; Granville Oil and Chemicals Ltd v Davies Turner and Co Ltd [2003] EWCA Civ 570 ; Schroeder Music Publishing Co Ltd v Macaulay [1974] 3 All ER 616

References: The Law of Contract Sweet & Maxwell 11^th Ed. ; Halsbury’s Vol. 41 ; Law of Contract Cheshire, Fifoot, and Furmston’s 14^th Ed.

Argument 1 – The contract was made on the same terms as in the salon, with the clause in question incorporated.

1. The clause was incorporated into the original contract by virtue that it was sufficiently noted to Massinger. Not only was the existence of the clause noted, but also its content and implications presented by Wax to Massinger, which gave rise to several jokes. Unlike McCutcheon v David MacBrayne [1964] 1 WLR 125 and Chapelton v Barry UDC [1940] 1 KB 532 notice was very clear and fully explained in this case.
2. They have operated under the previous contract at The Beauty Box for just under a year, enough to establish a course of dealing which would signify that the terms of the original contract are implied in any future contract between the two, given there is no express mention of variation (and in this case, there is none). Particularly, any past exclusion clause would become part of any subsequent contract of the same nature. This is the rule in Kendall v Lillico [1969] 2 AC 31.

Argument 2 – The clause survives the test of reasonableness

-          For both the first two requirements we can see an implication that the amount of pressure the customer undergoes is directly related to how unreasonable the clause is. unequal power is not enough. her freedom to contract with any other salon, and the abundance of salons, significantly compensate her for that. She had not been induced into agreeing, rather she joked about it and affirmed her acceptance of the clause by revisiting The Beauty Box for a almost a year.

-          The third requirement:  term’s existence, contents, and implications were all discussed with Massinger as the storyline indicates Wax discussed the purpose of the clause. Massinger, by joking with Wax about customers loosing their eyes and being scarred for life, indicates her full understanding of the implications.

-          The fourth requirement: At the time of the contract we can safely say that there was no reason for Massinger to believe that the treatment would not be of unsatisfactory quality, given she has received high quality treatment for almost a year.

-          The fifth requirement: In this case Massinger used a special tint for her image, one that was placed under the care of Wax. Given that Massinger’s needs were highly specific and required a different process, the exclusion cause would be even more reasonable.

Argument 3 – lack of business environment makes UCta 1977 irrelevant

1. It ‘applies as between contracting parties where one of them deals as consumer or on the other's written standard terms of business.’
2. Where a term aims ‘to exclude or restrict liability for breach of duty arising in the course of any business or from the occupation of any premises used for business purposes of the occupier’, it is not valid, however it is very apparent that the final dealing did not take place at a premises used for business purposes and its very likely that the relationship atmosphere was not a business oriented one. Massinger had to plea and this suggests extreme informality.