TMA 03 Queries and Information

TMA 03 Queries and information

TMA 03 – maximum 1250 words – any words over this limit will not be considered and no marks given.

Q1 750 words 60 marks

Q2 350 words 30 marks

Q3 150 words 10 marks

Look at the learning outcomes and the advice for each question:

Q1 Explain the tribunal system in England and Wales. Discuss whether tribunals are effective in the delivery of justice.

Learning outcomes :

Knowledge - You must show you can explain and demonstrate an understanding of the tribunal system andthat you can discuss whether tribunals are effective in providing justice.

Skills - Present and structure information clearly and make accurate use of the English language

and legal terminology

-Reference and cite relevant material, including case law and statute law

Think about how you will allocate the words available – use your essay plan to help you with this (NB don’t include the essay plan in your tma. The advice is :

When you explain tribunals in England and Wales you need to explain the roleand the characteristics of a tribunal. Include some examples of tribunals.
The second part of the question requires you to discuss the effectiveness of tribunals. To do this you may want to consider the strengths and weaknesses of the tribunal system. This should help you to assess their effectiveness in providing justice.

Look back at the advice on how to construct an essay in Unit 7 – it should have an introduction, main body and a conclusion. Look at the feedback provided in TMA 02 on answering essay questions.

Q2. Question 2 A problem question.

Ernest was rushing to work this morning. He was driving too close to the car in front, which was driven by Isabella. Isabella had to break hard when a child stepped out in front of her car. Ernest was slow to react as he was on his mobile phone and he drove straight into the back of Isabella’s car.

Explain whether Ernest is likely to be held civilly liable for the damage to Isabella’s car.

You only have 350 words so you need to use them carefully.

Learning outcomes

Knowledge - explain and apply the concept of civil liability

Skills - Interpret, describe and apply legal principles and authority in a logical and coherent

Way

-Present and structure information clearly and make accurate use of the English language

and legal terminology

-Reference and cite relevant material, including case law and statute law

Q2 advice is that you must:

-apply the concepts of civil liability to the factual situation - a set of hypothetical facts.

-Use your knowledge and understanding of civil liability to explain the legal position that arises from the facts.

-Use Unit 14 for relevant materials

-Do not discuss criminal liability.

You must considerwhether Ernest is likely to be liable for the damage he causes to Isabella’s car.

You must apply the test for negligence in relation to civil liability.

You must show that you understand and can explain the concept of civil liability.

You must analyse the factual situation and apply the law to Ernest’s actions and reach a reasoned conclusion.

You must:

- state the law that enables you to answer the question

-work out how the law would operate in relation to the question

-reach a conclusion that answers the question.

This is a problem question and you should review the guidance on answering problem questions in Unit 10.

Question 3

Reflect on your preparation for this TMA and identify one example of what you need to improve upon in preparation for TMA 04. Explain what steps you will take to ensure that the area for improvement is achieved in TMA04 and explain how you will prioritise these steps.

Learning outcome:

Knowledge - demonstrate and apply reflective practice

Skills - present and structure information clearly and make accurate use of the English language and legal terminology

-reference and cite relevant material.

Key issues: - only 150 words so think carefully to make sure you answer all parts of the question.

- identify 1 example (if you provide more you will not gain any more marks and it will impact on the words available for the rest of the answer).

- think about how you prepare for your TMAs

-think about the process of preparing for TMA 03 - what went well/ not so well?

-identify what steps you will take to help you improve in your preparation for TMA 04

-how you will prioritise them.

Finally:

-Make sure you address the questions asked.

-Every sentence in your TMA must another contribute to your overall answer.

-Think carefully about references – in-text and in your reference list. If you are unsure, ask me.

-Check your TMA before submission so that you can correct any spelling, punctuation,sentence construction or grammar mistakes.

Any queries, or problems, please contact me. If you think you may have difficulty submitting by the deadline – Wednesday 22nd March – please contact me.

Can you give me some guidance on how to approach answering the question with an example?

Legal problem questions usually present you with a hypothetical scenario. The scenarios normally contain a series of often unfortunate events (you are often left thinking ‘how can one person be so unlucky…’!). These events give rise to legal issues and you will be instructed to consider how the law applies to them.

These questions are designed to get you thinking about how the law works so, for example, if you were presented with a scenario similar to the problem question when dealing with a client, you would know how to apply the law. For instance, we might ask you to consider a scenario where A changes the price tag on a packet of biscuits in a shop so he does not have to pay the full price. You will be asked to apply the law of theft to consider whether A is committing an offence. Is it theft if the person has not physically stolen the biscuits but paid a price for them? This is the sort of legal issue we might include within a problem question, but it is also something which happens in everyday life.

One way of answering a problem-style question is to write your answer in three parts: an introduction, a main body and a conclusion. If you adopt this approach, your introduction and conclusion are likely to be relatively short, because your answer should focus primarily on how the law that you have summarised applies to the facts of the question. You should not reiterate the facts of the case of a problem question at length at the start of the assignment, a simple, short summary is sufficient - but you will discuss relevant facts each time you apply the law to them so the key is to avoid unnecessary repetition of facts.

The skill in being able to answer problem questions effectively is being able to unpick the issues within the scenario and accurately apply the law to them, backed up with the use of appropriate legislation or case law. Some common issues students may have in answering problem questions can include:

Not understanding the area of law;
Not understanding what legislation or case law applies to the scenarios presented;
Not understanding what the scenarios relate to;
Not fully grasping all the issues presented.

Everyone might encounter these sorts of issues, but a good understanding of the module materials, including knowledge of legislation and case law, will mean these issues are easily overcome. Often there are clues within problem questions to help you answer some parts to it. For example, the scenario might be similar to a specific case you have read, therefore, knowledge and understanding of the case can lead you to the answer.

Although problem questions may appear difficult at the start, once you read over the scenario a few times, things often become much clearer. Students tend to find answering problem questions enjoyable, because they get you thinking deeply about how the law works or how it could apply to everyday issues.

Answering Problem Questions

This section is a step-by step guide to answering problem questions.

Stage 1

Start with the facts. Read the problem carefully to make sure you have a clear understanding of the scenario. If you wish, and you have sufficient words available, a brief, one sentence summary is sufficient.

Stage 2

What is it that the person in the question wants to know?

Stage 3

Identify what laws (e.g. Acts of Parliament, common law, case law) are relevant to the scenarios presented. Brief explanation of the key parts eg law of negligence.

Stage 4

Work out your reasons for your view and what legal principles and rules you will use / are relevant.

Stage 5

Apply the law to the facts. Assess what you think the decision would be on the issues presented. Support your arguments with legal principles, giving consideration to counter arguments.

Stage 6

Avoid going off at a tangent!

Referencing

Students new to study at university level can be worried about referencing. The style used at the Open University may be new to you, or you may not fully understand what needs to be referenced and what does not. Many students new to university study are often surprised to learn that it is not only direct quotes from authors which need to be referenced! It is important to learn how to reference correctly, but it may take you some time to understand the correct format. You will need to dedicate some time to learning how to reference correctly – once you get it right you will always know how to do it.

References in the body of your assignment are called in text citations. Examples of in text citations to show you how they should be presented in your assignment. The examples are for illustration purposes only.

All your in text citations should also then appear in your reference list at the end of your assignment, giving the full details of your sources. An example of a reference list can be found in the OU Law School Undergraduate Assessment Guide:

The W101 Module Team will provide you with an example of a reference list for each TMA.

By referencing you are showing how you are using other people’s work and that you understand how it fits in with your answer. Anyone reading your work will be able to find the source of information easily. Being careful and consistent in doing this is the best way to write assignments that are ‘your own work’ but which include ideas from the module materials.

Here is an example of what a student’s response to this problem question might be. Don’t worry that you are not familiar with the law – the key is to look at how the student has approached answering the problem question. Some of the reasons why this is an example of a ‘good’ answer are:

They demonstrate a writing style that is appropriate for communication in academic law, one that is relatively formal and which uses language in an accurate and precise manner.
Academic writing should be objective so should be written in the third person not the first person.
The answer is written close to the word count.
The answer uses examples from statute and case law to support the points it is making.
The answer identifies the relevant law and applies it to the facts in the scenario.
The answer has a clear structure and leads the reader to a logical conclusion.

Scenario

Charlotte is a 29-year-old singer who has been writing and recording music since her late teens. She has released a number of songs on the internet; the first of which was a dreary nondescript song entitled 'First Love'. Most recently Charlotte has gained a significant following after releasing a song she wrote, entitled 'Melancholy', on a UK video website. This was picked up by a local DJ and has since been played on national radio. The subject of the song is vague, but speaks of extreme sadness and pain. Due to the number of internet hits and the airplay that 'Melancholy' gets, there has been significant media interest in Charlotte since the song was released. She has just signed a contract with UK record label Tepid for the release of an album. Signing the contract eventually took place after a lengthy process of negotiation between Charlotte's lawyers and Tepid.

Yesterday, an interview with her recently estranged fiancé David was published in a national newspaper. In the interview David explains the motivation and emotion behind Charlotte's songs. He identifies her childhood sweetheart Paul as the subject of 'First Love'. He alleges that 'Melancholy' was written to help Charlotte overcome domestic abuse she suffered at the hands of Paul when she was just 18 years old. He also alleges that she suffers from anorexia as a result of this. The newspaper has printed extracts from alleged correspondence between Charlotte's lawyers and Tepid which refer to health issues needing to be resolved prior to entering into the contract to release an album. Charlotte has tweeted that the claims made are devastating and denies the allegations made in the interview, although further tweets from some of Charlotte and Paul's old school friends suggest that there is some truth to David's allegations about Paul, one of which says, “Yeah, he always was a bully”. Photos of Charlotte and Paul taken during their school days have since been posted on the internet, along with speculation about her continuing health issues.

Five years ago Paul married, and photos of his wife, Sarah, jogging in her local park, with members of a local weight-loss group, appear alongside David's interview in the newspaper. Paul and Sarah have two small children. Sarah joined the group after having their second child in an effort to regain her pre-pregnancy figure. Sarah is extremely upset and embarrassed by the pictures and the suggestion in the story about Charlotte's anorexia, as she believes it implies that she is being pressured to lose weight by Paul.

Advise Charlotte and Sarah. In your answer you will need to cover both the common law right of confidence under Coco v A N Clark (Engineers) Ltd (1969) RPC 41 and after Campbell v Mirror Group Newspapers (MGN) Ltd [2002] All ER (D) 448, and human rights law.

Word count 1000 words

Answer

To decide whether Charlotte and Sarah have a claim against the newspaper the following will be considered, the common law claim of breach of confidence, Article 8 of the European Convention of Human Rights 1950 (ECHR) and the evolved law of breach of confidence after the implementation of the Human Rights Act 1998.

The common law breach of confidence was commonly used before the implementation of the Human Rights Act 1998. In the case of Coco v A N Clark (Engineers) Ltd (1969) RPC 41, three elements where established to decide if there was a case of breach of confidence. (‘OU’), 2018a, 6.1)

The first element states that the information must have the necessary quality of confidence about it. In regard to the case of Charlotte, the information about her anorexia would definitely be classed as private. The details of the domestic abuse could be seen as confidential if Charlotte had kept this information to a limited few.

The second element states that the information must have been imparted in circumstances importing an obligation of confidence. Charlotte would have informed her lawyers who then informed the record label about the anorexia in the utmost confidence. As David was once very close to Charlotte, if she had told him about the abuse this would have again been told in confidence. The newspaper would have been aware information was private and confidential.

The third element indicates here must have been an unauthorised use of the information to the detriment of the party communicating it. The newspaper has published this information without Charlotte’s authorisation. This has been of detriment to Charlotte, she has tweeted she is devastated and it could also impact on her health. (‘OU’), 2018a, 6.4)

There are some exceptions where confidence is not protected. In the case of Attorney General v Guardian Newspapers [1990] 1 AC 109, Lord Goff sets out these exceptions, one may be applicable to Charlotte’s case. This is information that has already entered the public domain. The newspaper could argue that as her songs that have been played nationally and are allegedly about the domestic abuse, this could amount to the information being in the public domain.

Under the ECHR 1950, people could claim a breach of privacy using Article 8. Article 8 protects private life and correspondence. Private life covers physical integrity, including abuse and medical treatment. The newspaper published information about the alleged physical abuse without authorisation, therefore it is a breach of Article 8. The interception of correspondence is protected as demonstrated in Foxley v United Kingdom [2000] BPIR 1009. Somehow the newspaper gained access to private letters between Charlotte’s lawyers and the record label and publishing the information, again breaching Article 8.