This week I had to deal with a fictitious problem question on mistake. Presented here is the precise question and my advice.

The Problem:
Mrs. Caring advertised in a ladies magazine for a well-qualified nurse to assist her in looking after her baby son, Albert. She received a visit from someone in nurses’ uniform who, she thought, introduced herself as Miss Nappybucket, a well-qualified nurse known to Mrs. Caring by reputation. In fact, the visitor was Miss Nappyrash, who was completely unqualified but hoped to learn the job as she went along. Mrs. Caring was rather deaf and misheard the name given by her visitor. Mrs. Caring offered the visitor a two-year contract at a salary of £ 20,000 per annum. Miss Nappyrash accepted, and Mrs. Caring paid her two months salary in advance. Miss Nappyrash then produced a form which she said it was necessary for Mrs. Caring to sign in connection with the payment of National Insurance contributions. Mrs. Caring signed what she thought was the form, not noticing that Miss Nappyrash had hidden another form underneath, which Mrs. Caring in fact signed. The form was a guarantee of Miss Nappyrash’s overdraft with Floyd’s Bank.

Mrs. Caring has discovered her mistake concerning Miss Nappyrash’s identity and terminated the contract with her. She wishes to recover the two months salary paid in advance. Meanwhile, she has received a letter from Floyd’s Bank demanding payment of sums due under the guarantee of Miss Nappyrash’s overdraft.

Advise Mrs. Caring.

My advice:

The case in question requires Mrs Caring to plead under unilateral mistake of identity for her contract with Nappyrash and non est factum, namely 'it is not my deed', for the guarantee she signed. A plea of unilateral mistake of identity involves the claimant proving that he/she made a mistake of “identity” which caused him/her to contract; that it was not a subjective mistake, and to satisfy an objective appreciation of the parties' face to face dealings and circumstances. The existence of an operative/actionable mistake of identity will render the contract ‘void’, although ‘voidable’ for misrepresentation. The rule non est factum is restrictive. A successful plea under this rule renders the document void ab initio.

A contract may be oral or written and culminates in an offer by one party that is accepted by the other. Whether the contract is ‘in writing’ is a crucial question, so as to attract the presumption upheld by the majority in the Shogun Finance Limited v Hudson^[1] case that if the mistake is sufficient to constitute an actionable mistake of identity, the consequence is that the contract is void. Construed narrowly, this is confined to dealings which are “exclusively conducted in writing”, and where there is “some form of personal contact”, the presumption in the “face-to-face” cases should be applied.^[2]

The minority speeches delivered by Lords Nicholls and Millett in Shogun suggest a general result in the contract being not void for mistake but only voidable for the fraudulent misrepresentation of identity. They approved the approach used in the face-to-face cases and proposed to extend it to all contracts: “a person is presumed to intend to contract with the person with whom he is actually dealing, whatever be the mode of communication”.^[3] As long as there is in fact an offer and acceptance between the parties, and one party has not intercepted a communication directed at another person,^[4] there will normally be a contract (although voidable for fraud) whether the transaction is negotiated orally or in writing.^[5] In their speech they further suggest that the presumption may be in practice, or even in law, irrebuttable, approving the approach of Lord Denning in Lewis v Averay^[6], which appeared to deny that a contract can ever be void for mistake.

The three distinct elements of misrepresentation are that the representation must be an unambiguous false statement of fact or law, it must be addressed to the party misled, and it must be an inducement to entry into the contract and possibly it must also be material. In Derry v Peek, ^[7] Lord Herschell established three propositions. The first is that there must be proof of fraud and nothing short of that is sufficient. The second is that fraud is proved when it is shown that a false representation has been made (i) knowingly or (ii) without belief in its truth or (iii) recklessly, careless whether it be true or false. Unreasonableness is evidence of dishonesty and does not of itself constitute fraud (Angus v Clifford ^[8]). Thirdly, if fraud is proved the motive of the person guilty of it is immaterial.

Inducement to entry into the contract requires a reasonable person test. If the misrepresentation would have induced a reasonable person to enter into the contract, then the court will presume that it did induce the representee to enter into the contract and the onus of proof is then placed on the representor to show that the representee did not in fact rely on the representation (County NatWest v Barton^[9])

Where the contract is in writing, there is a heavy burden on a party seeking to displace the normal and objective meaning of the written document and a greater degree of objectivity in its interpretation is needed. The rule in L' Estrange v Graucob^[10] holds that in general a person is bound by their signature to a document, whether or not they have read or understood the document. In the unlikely event of a fundamental mistake about the nature of the document, the plea of non est factum, namely that 'it is not my deed' may sometimes be available. The rule applies in circumstances where a person had signed a document believing it to be something totally different from what it actually was. Inducement to sign a contractual document by fraud or misrepresentation, means that the transaction will only be voidable.

A successful plea under non est factum renders a document void. For this two factors have to be established: (1) the signer was not careless in signing and (2) there is a radical difference between the document which was signed and what the signer thought he was signing.

A case where there was no positive mistake but mere ignorance is the case of Gillman v Gillman^[11] and where the requirement of care disqualifies a claimant who signs a document in blank leaving another to fill in the details (United Dominion’s Trust Ltd v Western^[12]). The decision of the House of Lords in Saunders v Anglia Building Society^[13] is the leading case and demonstrates the difficulty of applying a defence of non est factum.

In 3-party cases where the contest is between two innocent parties, the claimant’s carelessness is directly relevant to the question of who should bear the loss. Waddams (1999) provides a helpful example: A is induced to sign an irrevocable guarantee of a loan to B for £ 10,000 with interest at 25%, having been told by B that the document is an application for a library card. If C advances £ 1,000 to B in good faith of the document without knowledge of A’s mistake, C should be protected to the extent of the advance. But there is no reason to allow C, after knowledge of the fraud, to advance the remaining £ 9,000 (thereby inflating A’s liability under the guarantee). This, according to Chen-Wishart (2007), is consistent with the defence of change of position in the law of unjust enrichment where A’s claim to avoid the guarantee for mistake should be subject to C’s innocent change of position in respect of the £ 1,000. No further sums advanced qualify once C knows of A’s mistake.

In light of the authorities cited hereinbefore, the facts of the present case are evaluated here.

Mrs. Caring advertised in a ladies magazine for a well-qualified nurse to assist her in looking after her baby son, Albert. Subsequently she received a visitor named Miss Nappyrash and offered the visitor a two-year contract at a salary of £ 20,000 per annum, which she accepted.

It is well to state at once an important point with regard to contracts which seems to be well established. It is of paramount importance that contracts should be observed, and that if parties honestly comply with the essentials of the formation of contracts, they are bound by them.^[14]

Questions that arise are whether (1) Mrs. Caring’s clear and unequivocal offer matched an equally clear and unequivocal acceptance to form a contract^[15] and (2) there was “some form of personal contact”.

On the facts it cannot be construed that the dealings between Mrs. Caring and Nappyrash were conducted in writing so as to constitute to an actionable mistake of identity. Conversely the present case is one that involved face-to-face dealing. The law as it stands is found in Shogun^[16] and holds that where there is some form of personal contract, the presumption in the “face-to-face” cases should be applied.^[17]

Thus, although Mrs. Caring entered into the contract believing that the visitor was Miss Nappybucket, a well-qualified nurse known to her by reputation, it will be presumed that she intended to contract with Nappyrash with whom she was actually dealing, identified by sight and hearing.^[18] In such a case there will normally be a contract. Rebuttal will only be possible in wholly exceptional cases (e.g. Where the fraudster impersonates a person known to the mistaken party whose senses are impaired). Furthermore, there is no indication of Nappyrash physically intercepting a communication that was sent to another person in the concerned offer and acceptance process. This in Shogun was construed to be different from cases where A directs his communication B, but (because of the mistake of identity) intends it for C (e.g. Bolton v Jones^[19]).

Nappyrash introduced herself by her own name and on this point it is clear that she as the user of the name intended to identify herself by the name, as the specific individual who she is. Even so, completely unqualified and hoping to learn the job as she went along, she did not have to wear a nurse's uniform in visiting Mrs. Caring, but she represented herself as a nurse on the occasion in question. Nappyrash was not a nurse and by wearing a nurse's uniform she has made a false representation of her status. The advertisement sought to contract with a well-qualified nurse and nothing less to assist Mrs. Caring in looking after her baby son. Hence, to contract with a nurse was a materiality. It is possible that a reasonable person seeking a qualified maternity nurse would be induced to enter into contract with a visitor in nurses’ uniform. A uniform represents and symbolizes a person with a particular and identifiable group of people with specific skills. Therefore the court is likely to presume that Nappyrash in wearing a nurses’ uniform did induce Mrs. Caring to enter into the contract. It is then upon Nappyrash to prove that Mrs. Caring did not in fact rely on her representation.

For the knowledge which it is existed here Nappyrash made a false representation by wearing a nurses' uniform which in itself proves fraud. Once fraud is proven her motive is immaterial^[20] and she can be found to have misrepresented herself.

The present contract is thus voidable for misrepresentation. The representee, in this case Mrs. Caring, can elect either to rescind or to affirm the contract. If Mrs. Caring decides to rescind by way of ‘Rescission for misrepresentation’, the contract can be set aside for all purposes, both retrospectively and prospectively to restore, as far as possible, the parties to the position which they were in before they entered into the contract, and hence the two months salary paid to Nappyrash in advance is fully recoverable.

Mrs. Caring’s signature on the gurarantee form is certainly an entry into a completely separate and written contract. As a general rule whether or not she read or understood the document, she is bound by her signature. The words in a written/formal document are capable of (objective) interpretation, and courts are reluctant to allow a party to adduce evidence of the negotiations, or of her own understanding about the document, to add to, vary or contradict the written terms.^[21] No doubt a guarantee is very different from a National Insurance Contributions form which she thought she had signed. Mrs. Caring may be able to rely on the only exemption to the strict rule in L' Estrange v Graucob^[22] which is the defence of non est factum. The doctrine of non est factum (‘this is not my deed’) can void a contract and any transfer of rights under it. It is very restrictively available and for a successful plea under the rule, Mrs. Caring must prove that (1) she was not careless in signing and (2) there is a radical difference between the document which was signed and what she thought she was signing.

Although in point of fact, the present case satisfies the second limb of the test, that there is a clear and radical difference between the form she thought she was signing and the guarantee form she in fact signed, Mrs. Caring must meet the first requirement of the test, that she was not careless in signing. The only impairment Mrs. Caring claimed to have suffered from was that she was rather deaf. However, being rather deaf alone it is unlikely to meet the very high threshold of the impairment of the claimant set in other successful cases.

In Saunders v Angilia^[23] it was held that non est factum cannot normally be relied upon by literate persons of full capacity and holds that it applies to ‘those who are permanently or temporarily unable through no fault of their own to have without explanation any real understanding of the purport of a particular document, whether that be from defective education, illness or innate incapacity’, or from being tricked. The present case, so far as the facts are concerned, exactly resembles the case of Saunders v Anglia^[24] in which the court rejected relief for the widow for her carelessness in not reading the document that she signed. It seems but reasonable that the requirement of care would disqualify Mrs. Caring for relief under a defence of non est factum. 

In a three party case like that of the present, the relief is much weaker and the Court is likely to balance against protection of the innocent third party. The bank that relies on the document as a good-faith creditor ought to be protected and Lord Wilberforce in Saunders v Anglia^[25] said that:

“A party who has induced another to contract by misrepresentation should not be better off than an innocent third party to whom he has sold the property acquired under the contract”.^[26]

Shewed that where Waddam’s (1999) hypothetical example resembles the present and is consistent with the defence of change of position in the law of unjust enrichment, Mrs. Caring’s claim to avoid the guarantee for mistake should be subject to the Bank’s innocent change of position in respect of sums overdrawn by Nappyrash; no further sums advanced qualify once the Bank knows of Mrs. Caring’s mistake.

On the facts, the contract with Nappyrash is voidable for misrepresentation and Mrs. Caring will be allowed to rescind the contract. A defence of non est factum is likely to be rejected for the guarantee signed. Mrs. Caring is liable for the sums overdrawn by Nappyrash until the mistake is brought to the bank’s notice.

End of file.

This week I submitted some work on the relative merits of objective and subjective approaches to determining recklessness.You may or may not understand it and you may or may not like it, but this is what it is.

Recklessness is the taking of an unjustified risk. A person may be reckless as to consequence or circumstance. It is distinct from negligence and intention and has had uncertain history in judicial interpretation. The focus of the paper is to evaluate the relative merits of actual foresight (subjective) and foreseeability (objective) approaches to determining recklessness.

Recklessness is the taking of an unjustified criminal risk and is regarded as the lesser category of mental attitude than that of the highest category of culpability (intention).^[1]

The law on recklessness, as it stands, is found in the majority rational of the House of Lords decision delivered by Lord Bingham of Cornhill in R v G and another [2003]. In R v G the objective test was overruled and the subjective test set in R v Cunningham [1957] was followed.

In the case of Cunningham, the defendant stole money from a gas meter and in doing so, he tore the meter from the wall and left the gas pipes exposed. Coal gas then seeped into the basement of the house next door and affected a woman living there. At trial, the defendant was charged and convicted of "unlawfully and maliciously administering a noxious thing so as to endanger life" under s23 Offences Against the Person Act (1861). On appeal, his conviction was quashed and it was held that:

“In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it)”.

Under this ‘subjective’ approach, the definition of recklessness, both as to consequences and circumstances, imposes a double test: (1) whether the defendant foresaw the possibility of the consequences occurring; and (2) whether it was unjustifiable or unreasonable to take the risk (Clarkson and Keating, 2007).

Owing to Cunningham, the test for recklessness became widely accepted as a subjective test requiring foresight in fairness to the defendant (e.g. R. v Stephenson [1979]; and R. v Parker (Daryl) [1977]).

The subjective test was also the standard in earlier cases (see R. v Pembliton [1874] which is the very first case to use the term ‘reckless’) and this predisposition towards a subjective approach can be encapsulated in Ashworth’s central idea of individual autonomy and choice as the basis for desert and punishment. From these premises is born the dominant subjective approach to criminal law, and the ‘general’, ‘positive fault requirements’ of intention, foresight, knowledge and belief (Ashworth, 1991). Criminal responsibility should be based upon a concept of guilt, which means on actual mental states, hence the term ‘subjective’. (Ashworth, 1991, p 132).

In favouring a subjectivist approach, Lord Bingham in R v G states that it is neither moral nor just to convict a defendant on the strength of what someone else would have apprehended if the defendant himself had no such apprehension. There are, of course, inherent problems in seeking a fault element. Lord Diplock’s objectivist enquiry (now rather archaic) on this issue in R. v Caldwell [1981] states:

“the only person who knows what the accused's mental processes were at the time of committing the crime is the accused himself and probably not even he can recall them accurately when the rage or excitement under which he acted has passed.”

In Caldwell the defendant had been employed by a hotel, but was subsequently dismissed by the owner and as a consequence of this, the defendant had a grievance against him. One night, Caldwell got very drunk and set fire to the hotel, where guests were living at the time, but luckily the fire was discovered in time and so no serious harm was done to any people, or to the hotel. Caldwell denied the charge of causing criminal damage with intent to endanger life or being reckless as to whether life would be endangered (under s1(2) Criminal Damage Act [1971] ) on account of the fact that he was so drunk at the time, that the thought there might be people in the hotel had never crossed his mind. Despite this, the jury found him guilty and he was sentenced to three years imprisonment.

On appeal to the House of Lords, Lord Diplock applied a wider test for recklessness and held that a person would be reckless under the Criminal Damage Act (1971), if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged, and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and he nonetheless gone on to take it.

In R v Lawrence [1982], which was decided on the same day as Caldwell, it was decided that the objective test was the one to be used for the charge of reckless driving contrary to s.1 Road Traffic Act (1972). So was the approach in R. v Pigg [1982] and a few other attempted rape cases.

In Elliott v C (a minor) [1983], the defendant, a 14-year-old girl of low intelligence had run away from home and was staying in a shed. Feeling cold, she poured some white spirit on the floor and set light to it to make a fire, with the result being that the shed was destroyed. Bound by the precedent, regarding the objective test, set in Caldwell, the court upheld the defendant's conviction for aggravated criminal damage, despite the minor not having anything like the characteristics of a ‘reasonable man’.

Caldwell/Lawrence is the first case to alter the law on recklessness by applying an objectivist test. Lord Diplock in his judgement held that recklessness should be given its ordinary dictionary meaning and that it is not a practicable distinction for the jury to have to distinguish between the defendant who is aware of a risk and one who is not.

In the objective model, the risk of the defendant’s actions is seen through the eyes of a ‘reasonable man’, rather than through the eyes of the defendant, as is the case with subjective recklessness. This new approach is thus distinct and post Caldwell/Lawrence competes with the subjective approach within the law on recklessness. The test is wider within the notion of the moral fault (see Ashworth’s discussion on the narrow conception of moral fault in advertent recklessness) as it embraces the hypothesis that people ought to come up to a general standard of behaviour, in fairness to the rest of society.

Seeing everyone in the society through the eyes of a prudent and reasonable man is however a departure from the orthodox positive fault requirement. Adopting an objectivist test to recklessness blurs the vital link between responsibility and criminal liability which is one of the hallmarks of a free society.^[2] In a liberal society where political freedom is valued people must be free from criminal liability and punishment unless they “voluntarily” break the law^[3] in the sense of doing something that they can properly acknowledge as wrongdoing.^[4]

Responsibility defined by the capacity and character theory, knowledge, reason, and control (which include the capacity to make choices)^[5] are the necessary attributes of capacity theory and the precise elements traded-off in an objectivist approach. In Elliott, for example, a minor was convicted for aggravated criminal damage, despite her incapacity. This outcome in the case of Elliot was described as an injustice as a direct result of the objective test.^[6]

Caldwell/Lawrence test was thus seen radical. The case of Caldwell sparked controversy and evoked scholarly outrage (see Williams, 1981; Smith, 1987) for its role in redefining recklessness.

A few years into the case of Lawrence, reckless driving was reclassified as dangerous driving in the Road Traffic Act 1988 and the authority in Lawrence was abandoned. The law in R. Pigg [1982] was abandoned in later cases favouring a subjective approach to recklessness as per Sexual Offences (Amendment) Act (1976). This was confirmed in the later case of R v Satnam [1983]. Objective mental test for serious sexual offences under the Sexual Offences Act 2003 (where the concept of recklessness is subsumed within a general test of ‘reasonable belief’ as to consent)^[7] is retained and in force.

Law Commission in the Draft Criminal Law Bill 1993^[8] has endorsed this ‘subjective’ approach. The Draft Offences Against the Person Bill 1998, cl. 14(2) of which, in favour of the subjective approach, states:

“A person acts recklessly with respect to a result if he is aware of a risk that it will occur and it is unreasonable to take that risk having regard to the circumstances as he knows or believes them to be.”

More recently, Lord Bingham in R v G overruled the objective test on footing that it is not clearly blameworthy to do something involving a risk of injury to another if one genuinely does not perceive the risk. He said that such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.

The requirement of the Cunningham test, that it be unjustifiable to take the risk was unaffected. This, according to Ashworth, is an objective element: courts have rarely discussed it, but it exerts a significant background influence. It does not depend on the defendant’s view of the matter. For example, in Dodman^[9] it was stated that it was irrelevant that the defendant did not know his conduct was wrongful and some writers argue that the concept of recklessness is an inherently political one^[10]. This is true inasmuch as a value judgment is involved, a point that can always be made when employing a value-ridden concept such as ‘reasonableness’^[11]. The advantage, however, of employing such a concept and leaving the second limb of the Cunningham test to members of the jury is that they can reflect the ever-shifting notions of social utility.

Recklessness is the taking of an unjustified criminal risk and is distinct from negligence and intention. It is the lesser category of mental status to that of intention. Early tests for recklessness were based on foresight, the subjective approach. One of the greatest merits of the subjective test is that it is based upon a concept of guilt on actual mental states. This was overturned to an objective test in the case of Caldwell. The objective model is based on foreseeability and requires the risk of the defendant’s actions be seen through the eyes of a ‘reasonable man’. Notably the test lacked any incapacity exemptions causing injustice. The authority in Caldwell/Lawrence began fading and as a direct result of R v G, is no longer valid. Law as it stands now is found in Cunningham. The test for recklessness is a subjective test in favour of the defendants.

In a liberal society where political freedom is valued people must be free from criminal liability and punishment unless they break the law by doing something that they can properly acknowledge as wrongdoing.

This week at Law School I had to work along with 3 other members as judges in deliberating a claim for Judicial review exercise. The Decisions which form the subject were provided by the school while Claimants and Defendants were learned colleagues from the class.

The decisions which form the subject of the claim for Judicial Review: The (fictional) University Students (Work Placement) Act establishes a scheme whereby university students can apply for a three-month work placement position in government departments. At the Second Reading of this legislation the Secretary of State for Education told the House of Commons that its purpose was

"to give persons of outstanding ability and potential, experience of working in the public service, in the hope ultimately of attracting such persons to work in the public sector when they finish their studies."

Section 1 of the Act provides that "No student shall be eligible for consideration for a work placement unless they have already attained 120 credits worth of first class marks in modules taken on a degree programme at a British University." No definition of "degree programme" is given in the Act.

Section 2 of the Act provides that "Those appointed must be suited in terms of expertise, attitude, and conduct, to undertake a placement in the particular department  in which they are to work."

(A) Laura is a British citizen in the final year of her law degree at a British university. Prior to studying law she undertook one year of a degree in politics, where she attained 100 credits of first class marks. In her law exams she has obtained 20 credits of first class marks. Her application for a work placement at the Department of Justice is rejected. The Department concluded that Laura had not fulfilled the requirement set out in section 1 of the Act, that she should have obtained 120 credits worth of first class marks in "modules taken on a degree programme" since she had only obtained 20 credits of first class marks in her law degree programme and only 100 credits in her politics degree programme.

(B) Ahmad is an Iranian citizen in the final year of his studies for a physics degree at a British university. He has obtained first class marks in all 240 credits worth of modules he has taken so far, and recently won a nation-wide prize for the "Best undergraduate project in the field of physics". In rejecting his application for a work placement in the science section of the Department of Education, the Department stated that bearing in mind the purposes of the Act as well as considerations of national security, it was not their policy to offer work placements to non-EU nationals.

Judgement
A 4 memeber group had to collectively deliberate on a decision. The bit that I had to provide in writing is with regard to some aspects on Ahmed and is as follows. A consolidated view of all 4 judges and a comprehensive decision is to be offered in due course:

Implied Repeal:
Defendants have rightfully suggested that the stand on alien employment under Alien’s Restriction Amendment 1919 Act was relaxed by the enactment of the Alien Employments Act (AEA) in 1955. Claimant’s citation of European Communities order of 1991 that was amended to allow European nationals to work in the UK civil service has no bearing on Ahmad as Iran falls outside of the Jurisdiction of European Union.

USWPA does not make specific provisions on hiring or non-hiring of aliens and as such there is neither an inconsistency nor a conflict of the Acts in question. The work placement scheme proposed within the USWPA cannot therefore be held to mean removal or alteration of restrictions on alien employment covered under the Alien Employments Act (AEA) of 1955. The Acts in question cannot be stretched to force a public body to employ an alien. The claim for implied repeal does not apply in this case and is herewith dismissed.

Relevant Considerations:
Cited by the Claimants, in the case of Tesco Stores Ltd v Secretary of State for the Environment (1995) 1 WLR 759 Lord Keith held that although a public body may have a large amount of discretion over how much weight is given to a particular consideration, if the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, the decision cannot stand and the public body is required to think again. Following Vasilou v Secretary of State for Transport (1991) claimants further argue that a failure by a Minister or his department to take into account palpably important considerations on one side of the argument makes a decision unlawful and that Ahmad’s top achievements have not been given a cursory consideration.

With regard to consideration, in Tesco case it was held that if a planning obligation has some connection with a proposed development it is a "material consideration" when considering whether planning permission should be granted and regard must be had to it. The term ‘material’ in the course of judgment by Sir Thomas Bingham’s in Tesco meant ‘relevant’. What is a relevant consideration is for the courts to decide. In analogy to Tesco case, the ‘relevant considerations’ in the present case are (a) qualifications under Section 1 of the USWAPA and (b) suitability requirements under Section 2 of USWAPA.

As Submitted in Tesco case a relevant consideration must be given some weight, even it was very little, and it was wrong for a public body to accept that an offer was a material consideration but it would give it no weight at all. It was further held that if the planning authority ignores a relevant consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd. Vv Secretary of State for the Environment [1991] J. P. L. 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight is based on rational planning grounds, then the planning authority is entitled to ignore it.

Defendants cite that according to Lord Keith in Tesco case it is for the decision maker to attribute weight as it thinks fit and that courts must not interfere unless in the Wednesbury sense. It is correct if in the present case if little or some weight was given to the relevant consideration. In such a circumstance it is not for the courts to decide how much weight is to be given to a relevant consideration unless in the Wednesbury unreasonableness. This does not hold in the case in question. In rejecting Ahmed’s application DOE makes no mention on any relevant considerations. This is to say that (a) qualifications under Section 1 of the USWAPA and (b) suitability requirements under Section 2 of USWAPA were given no weight at all. The need to review the amount of weight given and condition of Wednesbury unreasonableness to be satisfied for interference are hence unnecessary on the facts of the case. Consequently a light touch approach under Wednesbury unreasonableness is unavailable.

If DOE’s decision to give Ahmad’s qualification and suitability no weight is based on rational assessment for employment, as applied in Tesco, then DOE is entitled to ignore it. However this is not the case. DOE’s statement in rejecting Ahmad’s application makes no mention of a short fall in qualification or suitability but has given regard to national security considerations. Either because DOE has thought that national security precludes it from taking into account relevant considerations or that it has forgotten about it. Having examined the terms of DOE decision latter to Ahmed, We disagree with the defendant’s claim that DOE in this instance has acted in full fairness. In direct contrast DOE has failed to have regard to a relevant consideration. As a result Ahmad has been wrongly treated. DOE’s decision is thus unlawful and is required to think again.

Human Rights Act:
In rejecting Ahmad’s application for a work placement DOE stated that it was not their policy to offer work placements to non-EU nationals. DOE’s decision, according to the statement was based on their view of the purposes of the Act as well as considerations of national security. Claimants have asserted that DOE did not make efforts to act in line with Article 14 of ECHR while defendants argue that DOE’s rejection of application for employment on the basis of nationality was not an infringement of convention rights.

In considering Art. 14, as in the case of Wandsworth LBC v Michalak [2003] 1 W.L.R. 617,  the court should ask itself four questions: Firstly, that did the facts of the case fall within the remit of one of the substantive Convention rights; secondly, if so, was there a difference in treatment between the complainant and other comparators; thirdly, were the chosen comparators in a sufficiently analogous situation to the complainant, and fourthly, was there some objective and reasonable justification for that difference in treatment.

We note that Art 14 provides protection against discrimination based on sex, race, colour, language, religion, nationality and other criteria but its scope is limited only to discrimination with respect to rights under the convention. The convention does not guarantee or offer specific right to work and thus the Claimant’s enjoyment of a specific right couldn’t have resulted in discrimination due to the nationality. Non parasitic but free standing provisions against discrimination, under Protocol 12 of the convention have now extended to include any legal right. The UK agrees in principle that such an extension is a necessary provision but has not signed the protocol for it being too broad. Yet again right to work does not fall under Prot. 12 as work is not a guaranteed legal right.

Ahmad’s claim under Art. 14 is dismissed on the grounds that the case does not fall within the remit of the convention which is an essential test and we are inclined to agree with the defendants that the Claimant’s rights have neither been infringed based on nationality nor have DOE acted unlawfully under HRA.

Several lectures per day, multiple supervisions per week and dealing with many exercises leaves me on my toe, may it be the weekend or otherwise. Almost every passing day I now deal with a legal problem or an exercise. Following is a recent exercise in which I was asked to advise a person named Rob in a hypothetical legal problem.

The Problem.
Rob, a wealthy philanthropist, placed an advertisement in the “Herald” newspaper offering to sponsor, at the rate of £1 per mile, anyone willing to walk to Manchester in aid of the Contract Lecturers’ Benevolent Fund, a charity.

Elizabeth, who was already walking to Manchester in order to improve her fitness, heard about Rob’s advertisement and decided to claim the sponsorship money on arrival in Manchester. Richard read the advertisement and decided to set out for Manchester, having first sent an email to Rob informing him that he intended to claim the sponsorship money. When Rob received Richard’s email he placed a second advertisement in the “Herald” revoking his offer, which Yvonne, a friend of Richard told him about when he was half-way to Manchester. Meanwhile, Stewart, who had read Rob’s first advertisement, set out for Manchester having decided to claim the sponsorship money, but did not hear of Rob’s second advertisement.

Elizabeth heard of Rob’s second advertisement before she reached Manchester and gave up her walk before reaching Manchester, but claimed to be entitled to £1 per mile for every mile she had covered. Richard completed the walk and claimed the sponsorship money, as did Stewart when he completed the walk.

Advise Rob.

My Advise:
The case in question requires establishing the existence of a contract between Rob and each of the three candidates Elizabeth, Richard and Stewart, constituting a promise to pay. The existence of a contract can be ascertained by rules of offer and acceptance, where an offer is a statement by one party of a willingness to enter into a contract on stated terms and an acceptance is an unqualified expression of assent to the terms proposed by the offeror. To claim the sponsorship money candidates must prove ‘reliance on the offer’ and ‘performance of the act – the acceptance’ which is necessary for a contract and disprove that the promise to pay was in aid of the charity.

The intention to create legal relations, according to Professor Simpson as cited in Mckendrick (2008), was first introduced by Carlill in her claim in Carlill v Carbolic Smoke Ball Co. (1893) 1 Q.B. 256. It is in this case that the offer and acceptance was used to establish regal relations. Different to intention to create legal relations is ‘intention of the parties’. Intention of the parties is the guiding principle which courts apply in deciding the proper interpretation of the contract. Should a contractual dispute arise out of disagreement over the proper interpretation of a particular phrase in a contract, courts give effect to the intention of the parties; in some cases it is influenced by the court’s view of the ‘desirability’ of the contract term which it is called upon to interpret (see Carlill v Carbolic Smoke Ball Co.; and Bank of Credit and Commerce International SA v. Ali (2001) 151 N.L.J. 1852; or in light of what is reasonable Hillas & Co., Ltd. v Arcos, Ltd (1931) 40 Ll. L. Rep. 206.

Use of offer and acceptance analysis in establishing legal relations is seen in a number of cases including Βutler Machine Tool Co v Ex-cell-o Corp (1979) 1 W.L.R. 401 and Blackpool and Fylde Aero Club Ltd v. Blackpool Borough Council (1990) 1 W.L.R. 1195. More recently Judge Seymour QC in Tesco Stores Ltd v. Costain Construction Ltd (2003) EWHC 1487 said: “The notions of offer and acceptance are…of the highest importance in any consideration of the issues whether the parties intended to be legally bound by those terms.”

Lindley LJ in Carlill v Carbolic Smoke Ball Co. held that words of all advertisements offering rewards are offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the condition accepts the offer. It was held that a promise is binding, so far as the element of "reliance" or "detriment" to the promisee, or "benefit" to the promisor can be identified.

In a unilateral contract the acceptance of the offer to enter into contract, and the consideration for it, is the performance of the act. An ‘acceptance’ is an unqualified expression of assent to the terms proposed by the offeror. A purported acceptance which does not accept all the terms and conditions proposed by the offeror but which in fact introduces new terms is not an acceptance or rejection but a counter-offer that cannot subsequently be accepted by the offeree (see  Hyde v. Wrench (1840) 3 Beav 334). Also doing the required act in ignorance of the offer does not amount to acceptance and the authority in this is R v Clarke (1927); Williams v. Carwardine (1833) 110 E.R. 590; and Taylor v Allon (1966) 1 Q.B. 304. In Williams v. Carwardine it was held that once the offer has been communicated to the other party, a person who knows of the offer may do the act required for acceptance with some motive other than that of accepting the offer.

Under the law of England, to be a party in an agreement means to provide a consideration. The doctrine of consideration does not require that the consideration moves to the promisor. In the case of Bolton v. Madden (1873) L.R. 9 Q.B. 55 it was held that the rule is satisfied in the case where the promisee agrees to confer a benefit on a third party at the request of the promisor. More recently s. 1(1)(b) of Contracts (Rights of Third Parties) Act 1999 confers on a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if the term purports to confer a benefit on him. Furthermore s. 1(5) of the Rights of Third Parties Act reads: “there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).”

Performance as the determinant for acceptance and the consideration for the contract gives rise to the so-called “Walk to York” problem where it is disputed whether the offeror can effectively withdraw his offer when an offeree has begun to perform the act but has not yet completed it. In Errington v. Errington (1952) 1 K.B. 290 a father and his son and daughter-in-law entered into a unilateral contract and after the father’s death, the widow, his successor in title brought an action against the daughter-in-law for possession of the house and in analysing the nature of the relationship Denning LJ said “...father’s promise was a unilateral contract – a promise of the house in return for their act of paying the instalments. It could not be revoked by him once the couple entered on performance of the act, but it would cease to bind him if they left it incomplete and unperformed”. Goff LJ in Daulia Ltd v. Four Millbank Nominees Ltd (1978) 2 All E.R. 557 said that in a unilateral contract the offeror is entitled to require full performance of the condition and once the offeree has embarked on performance it is too late for the offeror to revoke his offer.

Whether or not an act performed in the past can amount to consideration is answered by Lord Scarman in Pao On v. Lau Yiu (1979) 3 W.L.R. 435. As cited in Mckendrick (2008), in Pao On v. Lau Yiu it was held that an act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise. In order to apply the doctrine of past consideration, the act must have been done at the promisor’s request, the parties must have understood that the act was to be remunerated either by payment or the conferment of some other benefit, and payment, or the conferment of a benefit, must have been legally enforceable had it been promised in advance.

In light of the string of authorities cited above, the facts of the case in question are evaluated here. Rob placed an advertisement in the “Herald” newspaper offering to sponsor, at the rate of £ 1 per mile, anyone willing to walk to Manchester in aid of the Contract Lecturers’ Benevolet Fund. On the words of the advertisement, it is a conditional offer to walk for a cause where the condition is that the offeree must be willing to walk to Manchester and to confer the benefit to the Contract Lecturers’ Benevolet Fund (hereinafter referred to as ‘charity’). The condition thus means that anyone of the public who comes forward to perform the act must be willing to perform in aid of the cause, the charity. More on the ‘condition’ later, establishing a contract is viewed as a priority now.

To begin by establishing possible contracts between each of the three claimants Elizabeth, Richard and Stewart and Rob the offeror is simply to dismiss those who did not make it to a contract. What is left will then be examined.

Elizabeth who was already walking to Manchester in order to improve her fitness heard about Rob’s advertisement and embarked on performing the act. To qualify for her walk up to the point she first heard about the offer (hereinafter referred to as partE1), the act must have been done on Rob’s request and both Rob and Elizabeth must have understood her walk was to be remunerated. In the absence of a promise in advance, an enforceable contract, Elizabeth’s walk for partE1 may not constitute a contract. For the part of her walk to Manchester on reliance of Rob’s offer (hereinafter referred to as partE2) the circumstances were different. Elizabeth’s motive to walk, although for her own fitness, is immaterial so long as she was relying on the offer. Although Rob placed an advertisement revoking his offer, in partE2 Elizabeth had already embarked on performance; Elezabeth’s options for a contract remained unaltered as at that time. Had Elizabeth completed her walk to Manchester as required by Rob, irrespective of her motive and Rob’s attempt to revoke the offer, she would have a contract for the partE2. Nonetheless this is not the case; on hearing of Rob’s second advertisement, Elizabeth gave up her walk to Manchester. The consequence is nudum pactum – that there is no consideration. Furthermore, Rob is entitled to require full performance of the condition which he imposed and short of that he is not bound. Consequently Elizabeth does not have a contract.

Richard read Rob’s advertisement and decided to set out for Manchester. This is while in a unilateral contract the acceptance of the offer to enter into contract and the consideration for it, is the performance of the act. Richard’s email to Rob stating his intention to claim the sponsorship money in this case has no legal effect. In order to accept the offer, he must perform the condition in its entirety, and that is to walk to Manchester. Subsequent to Richard’s email, Rob placed a second advertisement revoking his offer. On the facts, Richard has already embarked on performance and it is too late for Rob to revoke his offer; the contract is made. Yvonne had no legal position in the option-for-contract Richard had with Rob at the time. Richard completed his walk to Manchester and it is deemed sufficient consideration and acceptance of the offer causing his contract to be binding.
 
Walking to Manchester is the act requested by Rob and Steward embarked on performance, having read Rob’s advertisement. Rob’s second advertisement to revoke the offer is second to Stewart’s action. Besides, Stewart completed his walk to Manchester in its entirety and that amounts to a consideration and acceptance of the offer.

Both Richard and Stewart relied on the promise and began performing the act prior to Rob’s second advertisement revoking the offer. Subsequently Richard and Stewart completed the performance of the act; they are thus in contract with Rob.

I now come to the remaining issues. Richard’s email informing Rob of his intention to claim the sponsorship money is a departure from Rob’s offer in which the offeree had to confer the benefit to the charity. In a bilateral contract such a communication will at best be a counter-offer which Rob could not have accepted. The case is about a unilateral contract where performance of the act is the contract. As examined already Richard performed the act and entered into the contract, as did Stewart when he completed the act.

The walk to Manchester is the consideration for the contract. The offer was to walk in aid of the charity and the walk performed by Richard and Stewart sufficed for their individual enforceable contract. It is not required that the consideration move to the promisor. Both Richard and Steward, by accepting Rob’s offer by conduct, agreed to confer the benefit in aid of the charity, a third party to the contract. Since a term in the contract purports to confer a benefit to the charity, the charity in its own right can enforce that term. The fact that the law confers a right of action is sufficient to displace the requirement for the third party to provide consideration. In an action for breach of contract the Charity has all remedies available (and the rules relating to damages, injunctions, specific performance and other relief accordingly) just as it had been a party to the contract.

If in an event Richard and Stewart lodge claims for the sponsorship money for themselves in court, Rob’s advertisement is likely to come under scrutiny. Should a contractual dispute arise of out a disagreement over the interpretation, it is not for the parties but for the courts to interpret. The offer in Rob’s advertisement makes an express statement that the walk is in aid of the charity. Courts are likely to identify this with ease. In any case the intentions of the parties are clear except that of Richard and Stewart who seem to have entered into an enforceable contract by their own misreading.

On these facts Rob is not obliged to pay any of the claimants namely Stewart, Richard, and Elizabeth but the charity can recover.

The most recent and poignant image from the Maldives is that of the improvised explosion at the crowded park in Male’ the capital on September 29, 2007, in which 12 tourists were injured.  Not only did the incident shatter the tranquillity for which the Maldives is famed for but also pushed the country into crisis. Tourist destinations a subjected to many different types of crisis. Knowing what type of crisis is one and measuring the damaging effects of it is another.

Theobald (2005) in his book on Global Tourism, he presented crisis types in tourist destinations, which obviously is very interesting and can easily be adapted.

What is more fascinating though is the Australia’s National Tourism Incident Response Plan (April 2005). It has 3 main elements as monitoring the incident, day-to-day management, and ways of looking at possible remedies for recovery. In Australia, the Australian Standing Committee on Tourism (ASCOT) becomes the Central Incident Management Group (CIMG) during times of activation. Activation is handled in accordance with the Activation Decision Flowchart. An impressive tool that is also engaged is ‘Incident Response Filter Matrix’ which works out weighted t-score on brand Australia, internet travel patterns, industry profitability, industry’s ability to recover and governments financial support. The weighted t-score is then fed into an activation system that colour codes into Blue (low risk, 0-20), Green (guarded risk, 21-40), Amber (medium risk, 41-70) and Red (high risk, 71-100). When in Blue the events are reviewed regularly and when in Red, timely reports are prepared for stakeholders, Media and communications strategy put in place and policy and research groups to implement their action plans.

Hellenic Center for Investment (ELKE) which came into place in 1996, brings about investment opportunities for the diversity and growth of Greece. On March 21, Miss Helen Dysella - Tourism Sector Manager delivered a speech to us at the Alpine Center for Hospitality & Tourism, in Glyfada.

She noted that Greece is among the top 15 destinations in the world, with over 15.5 million visitors in 2005 and in 2004 most visitors were British, German, Russian and Australians. The visitor figures are forecasted to grow by 10% per annum and at present tourism contributes to 18% of the country’s GDP. This in essence means that tourism is an important ingredient to Greece’s economy.

When looking at promoting tourism in a Poros, there are some complications as follows:

• Ministry of Economics & Ministry of Tourism decide the grouping criteria [A, B or C] that could mean a potential difference in investment incentives and tax reliefs for tourism development in different islands. Where investment regulations are concerned Poros is presently recognised in zone A which offers least benefits and incentives for investors.
• There is however another law that postulate that islands with less than 3000 population (which Poros neatly fits into) would qualify to be re-set into a more attractive zone (i.e. zone B or C).

Whether or not Poros qualifies for a re-set into a more attracting zone is however ambiguous until the new ‘Plan of Greece’ is released, which is hoped to be out anytime now.

Among other notable issues that Greece as a whole, faces at present are:

• The legislation prevents building holiday homes. When this is under consideration, I asked Helen if ‘Strata Title Schemes’ are of thought. Strata title was first introduced in 1961 in the state of New South Wales, Australia to better cope with apartment blocks. Previously, the only adequate method of dividing ownership was company title, which suffered from a number of defects such as the difficulty of instituting mortgages.
• Helen mentioned that in efforts to capture the growth in Chinese travellers, Greece is looking at starting a new flight between the mainland China and Greece, but a critical question is if Greece is willing to ease the visa process that is presently very messy.

There is hope that the new plan will hold solutions for many gaps in planning. While everyone waits to be surprised by a new plan, it is important to understand that Greece embraces a very slow and cumbersome planning and waiting attitude. Ever since 1980 when Greece introduced a protectionist approach, things have been rather slow. Noteworthy is that bureaucracy and lack of knowledge also inhibit progress.

Greece is ideal for outdoor sports and recreation activities. The coastline of Greece is apparently bigger than the whole of Europe. Good diving all year round, and no sharks to be afraid of.

Given that the Greek shipping industry is the biggest in the world its no surprise that someone from every family works in a ship.

Pre-Olympics (before 2004) Greece was known for sun, sea and history. Post-Olympics, Greece was re-branded. ‘Wonderful Greece’ and ‘Live you myth in Greece’ were among some.

The visiting speaker provided the SWOT analysis as below. This is a good base to begin with but, as you would appreciate, this needs to be developed further, during the study.

Strengths:
Close to Europe, rich history and culture, over 3000 beautiful islands, and an environment for sports and recreational activities.

Weakness:
Non-existence of long-term strategies, promotional materials with very old photos that misrepresent … some of the photos are nearly 20 years old, and non-availability of qualified and certified guides.

Opportunities:
Olympic games were successful, possibilities for thematic tourism.

Threats:
The existence of other and much new destinations with similar possibilities brand image.

It is Greece, for a week, for my fellow students and me. On the 20th I visited the Alphine Centre for Hospitality & Tourism, in Glyfada, where I listened to an experienced local tour operator. The tour operator provided an insight into what some of the Greek islands have on offer. Among the activities the islands of Greece offer are turtle watching, canyonning and whale watching, bird watching, and rock climbing.

The island of 'Prespes' is rich in flora & fauna and hence is fit for bird watching but the speaker offered an honest view that a 2 minute tv advertisement is a result of months of hard work by film crew that devote time, effort and money in capturing great scenes; that when the tourist arrives, it is disappointing not to find the very scenes for real.

'Zakynthos' offer tourist to watch turtles, but finding turtles have been a bit difficult. At present, when a turtle is spotted by one boat, the message is echoed to all boats that rush  tourists to the same point to show the turtle. The speaker calls plurality of these events, environment (un)conscience.

'Krete' is good for canyonning and also whale watching. Non-dangerous but difficult caves and canyons mean strength. Another is the permanent population of sperm whales in save and warm sea allowing the opportunity for visitors to scuba dive along with the whales. However, (un)qualified and (un)certified guides implicate matters. For instance, insurance policies necessitate tourists to book their holidays only via overseas, more bigger tour operators that control the entire holiday process. This inhibits repatriation of profits to foreign operators.

'Kalymnos' Island has perfect weather and long season for rock climbing. Lack of financial resources in marketing and promotions has led brochures and websites to use beach photos that are less likely to attract climbers.

Sadly the island of 'Poros' has no image or identity. What could Poros be good for? Of course I recognise that this is the very reason why we are here so eventually things will begin to make sense.

Poros is a small Greek island-pair in the southern part of the Saronic Gulf. The island has a good road network and adequate touristic infrastructure, what makes it a popular resort for short holidays, as it is easily accessible from Athens; not surprisingly, there is a transient population of Athenian weekenders and international visitors including a liberal helping of sailing fans.

Nonetheless, the island has experienced a significant decline in tourism (in terms of visitors in recent years after the construction of the new mainland airport, and many tour operators have stopped working with the island.

The tourism board of Athens-Attica and its nearby islands (including Poros, Salamina and Hydra) through a consultancy and research company, has approached the College regarding the need to develop destination and promotion strategies specifically for the island of Poros to rejuvenate tourism activity. MA in Tourism students along with three lecturers are therefore setting off on a live project to the island of Poros in Greece for the week ending March 2007.

Working in consultancy groups, this project necessitates us conducting:

1. A destination audit of Poros, including the perspectives of different stakeholders involved in tourism on the island and current marketing initiatives.
2. A feasibility study into potential developments in the area, covering issues such as transport, the environment, thematic sports, heritage, the visitor superstructure and local participation issues.
3. For one tourism product, proposing feasible product development strategies and potential promotional strategies.
4. Detailing the financial considerations of proposals along with any potential sources of assistance.

Benchmarking against other innovative projects elsewhere in Europe is of course a must for this live project.

In partial preparation, Professor Tony Travis as a high profiled tourism planner for the last 40 years, presented to us various other European proposals that he was involved in.

I am anxiously looking forward to experience the destination to myself and to kick start this challenging assignment.

Working in pre-appointed groups, I am required to present a case study focusing on strategic change in the context of Virgin - Entering the Indian Skies. Through use of appropriate illustrative material and audio/visual aids, the presentation to encompass thorough analysis of the organisation under review with recommendations for future strategies to secure opportunities or anticipate threats. Each group is also required to submit one joint written report detailing findings.

The assignment develops the 'transferable' skills of Communication Skills and Working with Others. Its learning Outcomes are:

1. Evaluate current thinking in organisational decision-making in unstable, dynamic environments.
   
2. Evaluate various techniques to understand the internal and external environments.
   
3. Analyse key challenges facing organisational decision-makers.
   
4. Analyse and evaluate strategy options for organisational decision-makers.
   
5. Analyse contemporary management practices used to realise business strategies.

• Require individuals to critically evaluate
  
• Tell the leader not to state their position
  
• Have other groups working simultaneously on decision
  
• Use independent sources to appraise the process issues
  
• Establish a 'devils advocate'
  
• Do not understimate the competition
  
• Encourage reflection and evaluation

Today while I was walking along the corridor my eyeballs jumped over some quotes as below.

When starting your study or your assignment consider Lau Tzu’s wise words: “A journey of a thousand mile begins with a single step.” – Lau Tzu –

“I love deadlines. I like the whooshing sound they make as they fly by.” – Dauglas Adams, English humorist & science fiction novelist –

“What we have to learn to do, we learn by doing.” – Aristotle –

It was an absolute honour to have listened to Prof. Wheeler who filled the guest speaker slot today. Prof. Brian Wheeler is a Professor of Tourism at Breda College, The Netherlands. His speech was on the topic of ‘eco-ego/sustainable tourism – a muddled model’. Just as he did very well, back in October 2006, he critically challenged our understanding and knowledge on the hypothesis of sustainability.

Through these sessions, he provided excellent knowledge, disciplined my thinking structure whilst also transforming my vision. Something that keeps flashing in my mind, still is one of the many opening remarks he made as below:

“There are three sides to every story! yours, mine and the truth…” (Evans, 2004) in his book ‘The Kid Stays in the Picture’

As I am out here doing masters, I sometimes ask myself what it is that I am doing. Of course I know that it is education, but what is the definition of education?

What I thought was the best way to begin my search for answers was from the free encyclopedia (http://en.wikipedia.org/). It said that the word's broader meaning covers a range of experiences, from formal learning to the building of understanding and knowledge through day to day experiences. Ultimately, it could be and has been said that all that we experience serves as a form of education.

I also asked what education is, from a friend of mine in a doctoral program in Surrey and he said to me that apparently he had been told that it is "Learning more and more about less and less". From where he stands, this is also correct isn't it?

Somewhat separately, today, the lecturer introduced us to the '4 Realms of the Experience' by Pine & Gilmore (1999) in their book, The Experience Economy: Work Is Theater & Every Business a Stage . The 4 realms of the experience as the lecturer explained were Esthetics (the American spelling, the British spelling is (a)sthetics, Education (active absorption), Escapism (active immersion), and Entertainment (massive absorption). Now, rather than me killing myself in correlating this to education, I leave it upon who so ever has  interest, to apply it.

But realise this. While me and my other colleagues were waiting for the lecturer, near the lecture room, what I saw at a glance from a nearby notice board was the best ever definition of education; for a second I couldn’t trust my eyes that I was really reading something from the notice board. It said:

"Education is what survives when what has been learned has been forgotten." (Skinner, 1904-1990).

With four modules in less than 6 months I was with the impression that semester one was tough. Guess what, with two modules and the research project in semester two, it emerges as the toughest yet.

Dynamics of Tourism is the module today and Michelle Callanan who is head of tourism, kicked off the 3 hour lecture at 11h. Apparently Dynamics of Tourism focuses on the macro-environment, its impact on commercial providers and the response of providers. In other words, it focuses on tourism from a global context.

The lecture was set around delivering a range of perspectives within both academic and the industry. Michelle recommended two very important books as Tourism Business Frontiers: consumers, products and industry and Tourism Management Dynamics: trends, management and tools and I am looking forward to reading them soon.

Tourism is ever changing and a quote that was also introduced, read:

Tourism businesses will undergo major changes in the 'unstable and unstoppable world of tourism' (Burns, 2006), as a result of new uncertainties and risks, emerging markets, new consumers, changes in industry structures, liberalization, yet increased in security/safety.

It is only now that I have been able to reflect on my busiest ever Thursday. Ahead of the live project in Greece this March, a briefing session was organised for 14h in Rm403, under short notice and it read to me that the briefing is in Rm 403 at 9h. At the lecture room, to my surprise, I only saw new faces with the exception of the lecturer Richard whom I met in an outdoor team building exercise in semester one.

Interaction with the students near me I soon realized that I was among BA (Hons) Business Enterprise. I wasn’t worried though cos it was also the begining of a session for them and that there were many others who weren’t familiar to the rest. The new module was on 'Business Negotiations; wowww, what an awesome subject to learn. So how did it benefit me? Negotiation is a life skill and has great many applications in the real world, but I guess only time will tell how well I benefited from it.

With University fees on specialist negotiations programmes being around fifteen to eighteen thousand quids, I never thought I will be lucky enough to ever be present in such a session. On this occation, it worked for my advantage and I am grateful for it.

Today was the day one of semester two. It is also the first week of a 13 study-week journey ahead and with workshops directly following tutorial inputs, this is rigorous like most modules in the past. Needless to mention, assessment mechanism is quite a thing with 50% marks for an assignment [25% for the report and another 25% for the presentation], and the other 50% for a written exam at the end of 13th week testing ones theoretical knowledge.

Today the three hour lecture on 'Strategic Risk Management' provided an introduction to the subject and taught aspects on analysing the internal and external environment.

The internal strategic environment: various techniques used; stakeholder analysis; organisational culture profiling; resource auditing; core competences and resource capability; identification of key organisational strengths and weaknesses, were introduced.

In exploring the external environment: the operating and the remote spheres of the external environment, techniques and models for analysis: PEST analysis; Porter's 5 Forces; market structure analysis; benchmarking; forecasting models, competitor profiling analysis, scenario analysis, portfolio planning; external stakeholder analysis were also presented.

Yet identifying risks or otherwise key organisational opportunities and threats are another. While studies in strategic management has evolved from 1960s to what it is today, strategic risk management is farely new. Henceforth there arent many books written on the subject. The little that is availble are in journal artical formats.