legal drafting & interpretation, may 2010

8/7/2019 Legal Drafting & Interpretation, May 2010

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QUESTION 1

Soldo Gregg comes to see you in your office with his mother, JennaGregg, and friend Alexander Georges of 22 Isles Street in San Souci andinstructs you as follows:

(i) I live at 103 Mockingbird Drive in Sans Souci.

(ii) The house in which I live I give to my son, Mark, also knownas Keith.

(iii) I am the owner of two life insurance policies with CaribbeanLife Insurance Company. The one for $30,000 I leave for mydaughter, Keisha, and the other for $20,000 for my daughter,Krystle.

(iv) My pension benefits if my mom is alive when I die, to beshared equally among my three children, Mark, Keisha and Krystleand my mom. If my mom dies before, her share goes to Krystle. Iam an engineer with the Ministry of the Environment.

(v) My car to Keith.

(vi) Anything left over to my children.

(vii) I am divorced.

(viii) My mom lives with me.

(ix) I want my friend Alexander to be my executor.

(x) I have the following accounts:

(i) One in the Colonial International Bank in the Broad StreetBranch; and

(ii) One in the First Home Bank in the San Souci branch.

(xi) I give the full amount in the Colonial International Bank toMark and the amount in the First Home Bank to my two daughtersin equal shares.

Draft a will to give effect to the above.

TURN OVER______________________________________________________EDLS Legal Drafting & Interpretation May 2010 Examinations


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QUESTION 2

In January 2010, the Court of Appeal of Virgo Islands ruled that theregistration of The Caribbean General Workers Union was void and of no effectbecause the registration was not gazetted. This judgment has affected all otherunions in Virgo Islands and they are all operating illegally. Since these entitieshave no legal existence, they have no authority to collect dues, hold a pensionfund and trust for workers or transact any business.

The union leaders are in turmoil and have brought this matter to theattention of the Minister of Labour. The Minister of Labour has instructed theAttorney General to draft an Act to regularise the unions and their operations.

(a) Draft the Long Title and Short Title to this Act.

(b) Draft the substantive provision to give effect to the instructions fromthe Minister.

QUESTION 3

Six months ago, at around 3:00 a.m. the police stopped a car that Arni Bestwas driving and found in it a screwdriver, a flashlight and a crowbar. Arniwas arrested, charged and eventually convicted under section 9 of the

Penal Code for having in his possession instruments for housebreaking.

In determining the meaning of instruments for housebreaking, the courtconsidered certain remarks of the Minister as set out in the HansardReports of 2008 and which were made by the Minister when the Code wasbeing debated in Parliament. The court accepted those remarks as bearingon the meaning of instruments for housebreaking.

Arni wishes to appeal the conviction and has sought your advice. There isdisagreement in your firm as to whether to advise Arni to appeal. Those infavour state that the court ought to have construed the Code literally, callingin aid only those things found within the four corners of the Code and thatthe Ministers statement should not have been taken into consideration.

What is your opinion? Give reasons.

TURN OVER______________________________________________________EDLS Legal Drafting & Interpretation May 2010 Examinations


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QUESTION 4

The Summary Procedure Act provides in section 10 as follows:

"10(1) A Magistrate shall at the conclusion of the hearing orwithin eight weeks thereafter at a subsequent sittinggive his decision in the matter either by dismissing thecomplaint or by making such order against thedefendant as the justice of the case requires.

(2) Where the Magistrate ceases to hold office, he maydetermine the case by lodging his written decisionwith a person appointed by the Chief Justice withinthe same period of eight weeks and the personappointed shall read the decision at the earliestopportunity, after notice to the parties concerned."

Nancy was charged with a summary offence. The matter which was heardby Magistrate Deadpoke concluded on July 9, 2009. Magistrate Deadpoke gavehis decision on December 10, 2009 when he convicted Nancy and sentenced herto two years in prison.

Nancy has instructed you to advise her on the likelihood of a successfulappeal.

Advise Nancy.

QUESTION 5

Mary Souza, mother of Serena Souza who resides in New York, hasconsulted you with respect to the sale of Serenas house in Queens Gardens, therenting of Serenas cottage at Sea Sands Villas and negotiating a mortgage onthe cottage to assist in defraying Serenas medical costs. Serena was injured in atrain accident in Washington and is unable to travel to your territory to instructyou herself. Mary has the title deeds for Serenas properties.

(a) What information would you need from Serena in order to draft theproper document to enable Mary to act for Serena?

(b) Draft the document.

TURN OVER

______________________________________________________EDLS Legal Drafting & Interpretation May 2010 Examinations


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QUESTION 6

In its 2008 Report, the Criminal Law Reform Committee had in relation tojury service recognised and affirmed the rule of conduct that deliberations of

jurors ought to be treated as private and confidential.

In recent years, however, the sacrosanctity of jury deliberations had beeneroded by a number of publications that revealed jury room discussions.

In December 2009, section 8 of the Contempt of Court Act was amendedas follows:

8. Information from jurors.

It is a contempt of court to obtain, disclose or solicit any

information from jurors, particulars of statements made,opinions expressed, arguments advanced or votes cast bymembers of a jury in the course of their deliberations in any

proceedings.

In March 2010, TheObserver, one of the daily newspapers, published anarticle containing certain statements and opinions by a juror concerning theverdict that had been delivered by the jury in a sensational extortion trial onwhich that juror had sat.

The journalist had obtained the information not from the juror directly butfrom the transcripts of a researcher who had conducted interviews with jurors forresearch and educational purposes.

Contempt proceedings brought against TheObserver under section 8 ofthe Contempt of Court Act for publishing the information were successful. TheObserver wishes to appeal. They contend that the disclosure under section 8must be in relation to information directly obtained from a juror and not from anindependent source.

Advise The Observeras to the likelihood of a successful appeal.

TURN OVER



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QUESTION 7

On September 15, 2009, there was a tornado in your territory. The severedamage caused by the tornado nearly crippled the economy. On December 10,

2009, the Government passed the Mortgage (Tornado Relief) Act, 2009.

The Act provides:

1. (1) This Act may be cited as the Mortgage (TornadoRelief) Act, 2009.

(2) This Act is deemed to have come into force on 1September, 2009.

2. It shall not be lawful for any mortgagee under a

mortgage during the continuance of this Act to call inthe mortgage or to take any steps for exercising anyright of foreclosure or sale, or for otherwise enforcingthe security or for recovering the principal moneysecured.

3. This Act shall continue in force until 31 December, 2010.

Maidon executed a legal mortgage with Real Life Mortgage CompanyLimited in 2006. On December 1, 2009 Real Life Mortgage Company Limitedissued a Writ to enforce their security by foreclosure or sale. The matter waspartially heard in February 2010 and adjourned to April 2010.

At the adjourned hearing, counsel for Maidon submitted that, havingregard to the Mortgage (Tornado Relief) Act, 2009, Real Life Mortgage CompanyLimited was barred from enforcing its security. Counsel for Real Life MortgageCompany Limited submitted that the Act did not apply to a case whereproceedings were instituted before the statute was passed.

As judge of the court what would your decision be? Give reasons.

TURN OVER



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QUESTION 8

Zia Shucks engaged Common Man Designs, an architectural firm, todesign an environmentally-sound home for her in Porgy Swamp.

The contract which Common Man gave Zia for execution contains thefollowing clause

Disputes under this contract shall be resolved by a panelappointed by the architect consisting of three neutral persons,two attorneys certified in construction law and one attorneycertified in environmental law.

The clause is ambiguous.

(a) Identify and explain the nature of the ambiguity.

(b) Redraft the clause to eliminate any ambiguity.

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legal drafting & interpretation, may 2010

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