University of the East England - Essay Example

?In the Court of Appeal On the Appeal Between: OF THE EAST OF ENGLAND -And- EDWARDS ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­___________________________________________________ ARGUMENT on behalf of Edwards (“the Respondent”) _____________________________________________________ My Lady, As has already been mentioned, my name is… And, I stand as a junior counsel for the respondent. My Lady, I have two submissions to make 1. According the Unfair terms S. 2 (1 – 2 ) of UCTA 1977 – In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. Therefore, the University cannot exclude itself for any liability as a result of negligence, based on the provisions of term (c) of the tenancy agreement since it does not satisfy the requirements of liability, specifically, Schedule 2(a), which requires that for reasonableness to be satisfied, both parties ought to have bargaining positions relative to each other with regards to the availability of any alternative means via which the requirements of the customer could have been met. This is supported by Phillips v Hyland [1987] 1 WLR 659. Ms. Edwards did not have bargaining power relative to that of the University of East England. With regards to other alternatives, she did not have any other since the University of East England offer was the cheapest, which Ms. Edwards could not find anywhere and as such it seems she was under some sort of pressure. According to Schedule (d), for term c to be deemed reasonable, it must be satisfied that at the time of the contract, compliance to that term would have been practical. This is supported by Smith v Eric S Bush [1990] UKHL 1 2. On the basis of the provisions of S.11 (4) (a), the extent to which the term in question allows a party to the contract to cover himself by insurance. This is supported by Phillips v Hyland [1987] 1 WLR 659. This was not the case with Ms. Edwards; the university did not offer her an option for insurance having opted to totally exclude itself from liability. If it pleases you My Lady, I will start with my first submission My Lady, the appeal before you is for the determination of whether a judge in a trial court erred in law in his decision in favor of the respondent, Ms. Edwards. The Appellant, the University of East England argue that, the trial judge erred in law in his determination that a term in a tenancy contract between the University of East England and Ms. Edwards , specifically term (c), which states, c) In the agreement, the University dissolves itself from taking any responsibility in case of damage to a student’s property within its premises, was “unreasonable”. According to the Appellant, the University of East England, that term, (c), of the tenancy contract satisfies the thresholds for reasonableness on the basis of Section 2(1-2) of the UCTA 1977. We contest this notion and affirms that, the trial did not make in error in law on the basis of Section 2(1-2), which states, In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. We argue that, the University cannot exclude itself from liability arising from any loss or damage caused by negligence based on term (c) of the tenancy contract since it does not satisfy the requirements of reasonableness. My Lady, Schedule 2(a) of the UCTA 1977, requires that, for a term in a contract to be deemed reasonable, both parties ought to have bargaining positions relative to each other with regards to the availability of any alternative means via which the requirements of the customer could have been met. This was held in Phillips v Hyland [1987] 1 WLR 659, where, Lord Justice Slade, Mr. Justice Neill and Sir John Megaw, held in their ruling that, the term acting as an exclusion clause in a n agreement between The claimant (Phillips) and a JCB excavator from Hampstead Plant Hire, was unreasonable because it did not satisfy Schedule 2(a) elements, particularly, at the time of the contract, the claimant had little or no time to familiarize himself with the term, was forced into a take or leave situation, and as such had no choice but to accept the contract. In light of the fact of this appeal, it is worth noting that, Ms. Edwards did not have bargaining power relative to that of the University of East England and was put in a in which she did not have any other choice but to accept the contract since the University of East England offer was the cheapest, which Ms. Edwards could not find anywhere. My Lady, in similar context, we submit that, in light of the provisions in Schedule 2 (d), which states that, for term (c) to be deemed reasonable, it must be satisfied that at the time of the contract, compliance to that term would have been practical. This submission was made in Smith v Eric S Bush [1990] UKHL 1, where, the Lord Griffith in his ruling, provided 4 points, which may be considered in determining reasonableness of a term or clause in a contract. These points included the issue of practicality with respect to compliance and non-compliance with the term. He stated that in determining reasonableness of a term, courts ought to consider how practical is it for a party to a contract to obtain independent legal advice with regards to the term, how difficult is it to undertake the task for which liability exclusion is being sought and what the practical consequences of ruling that a term is unreasonable. On the basis of this we argue that term (c) is unreasonable since it does not satisfy the requirements of practicality as depicted by Lord Griffith in Smith v Eric S Bush [1990] UKHL 1. It was not practical for Ms. Edwards to seek legal advice with regards to the term and that it is not difficult for the University of East England to compensate Ms. Edwards Mp3 player. If Your Ladyship has no more questions, I will now move on to my second submission. My Lady, Section 11 (4)(a) of the UCTA requires that, for a term to be deemed reasonable, courts must satisfy the extent to which the term in question allows a party to a contract to cover himself by insurance. This was the case in Phillips v Hyland [1987] 1 WLR 659, in which Lord Justice Slade, Mr. Justice Neill and Sir John Megaw, held in their ruling that, the term acting as an exclusion clause in a n agreement between The claimant (Phillips) and a JCB excavator from Hampstead Plant Hire, was unreasonable because it did not satisfy the requirements of Section 11 (4) (a) by stating in the fourth point of their ruling that, the claimant was given little opportunity to arrange for his own insurance. The term in the tenancy agreement meant to exclude the University of East England form any liability arising from loss and damages due to negligence, did not offer Ms. Edwards any opportunity to organize for her own insurance. My Lady, it is on the basis of the reasons above and those given by my senior counsel that would wish to urge Your Ladyship to dismiss the appeal with costs. If Your Ladyship has no more questions, that concludes the case for the respondent. Read More