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[Clerk]: All rise.
Peters: May it please the court, my name is Matthew Peters and I'm senior counsel for the appellant, Mr. Eric Pollard, in this case. I will be assisted by my learner Junior, Miss Claire Hennessy. Counsel for the respondent in this case are Miss Jennifer Green and Mr. David Thomas. Is your Lordship familiar with the facts of this case?
Judge: A brief summary please, counsel.
Peters: Of course. The facts are as follows: the respondent, a Mrs. Windsor, is an owner of a village shop and as a promotion she intended to advertise boxes of shortbread at a discounted price. She posted an ad in the newspaper stating such. This ad specified that purchasers could either express their interest to shop itself, or email her. Mr. Pollard decided to send an email to Mrs. Windsor with the intention to buy six boxes of shortbread. Unfortunately, before reading this email, Mrs. Windsor had a change of heart and made arrangements with the local newspaper to release the next day a statement saying that she had retracted the offer.
The key issue in this case, my Lord, we would submit is whether the correspondence between the two parties constitutes a binding contract. In this case, I will be addressing the first point of appeal, namely that the advertisement in the newspaper was in fact an offer and not an invitation to treat, as the respondents are proposing.
I shall, in support of this, be making two key submissions. Firstly, that the requirements of a unilateral offer are satisfied by the advertisement in this case. And secondly, that the statement of the quantity of goods in the ad prevented any possibility that the offeror would be bound to supply more goods than she possessed.
My Lord, might I proceed with my first submission?
Judge: Please do.
***
Peters: In conclusion, my Lord, it is the submission of the appellant that the ad in the newspaper is sufficiently certain that it can amount to an offer which is capable of immediate acceptance. My learned Junior, Miss. Hennessy, will now address your Lordship on the question as to the point in time at which the offer was accepted and a binding contract was formed. Those are my submissions my Lord. Unless I can assist you any further.
Judge: Thank you.
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Hennessy: My Lord, as you’ve heard my name is Miss. Hennessy, and I shall be addressing the second point of appeal on behalf of the appellant, Mr. Pollard. Namely that the offer was accepted and a binding contract formed prior to any purported revocation of the offer by Mrs. Windsor. I have two submissions to make which can be found in my skeleton argument, which I believe is before your Lordship.
May I proceed of my first submission?
Judge: Please do.
***
Hennessy: My Lord, you have heard from my learned Senior that the authorities favour the construction of the advertisement in the newspaper as an offer, and that reliance has been placed, in particular, on the attitude of the parties themselves towards the situation to support this conclusion. Your Lordship has also heard my submissions concerning the point at time in which the offer was accepted by Mr. Pollard and - irrespective of whether this has to be taken at the time the email was sent, when it arrived or the resumption of trading hours - all these events preceded the notification of revocation to Mr. Pollard. Accordingly, I would invite your Lordship to find in favour of the appellant by upholding the appeal and overturning the decision of the trial judge. Unless your Lordship has any further questions, that concludes the case of the appellant.
Judge: Thank you.
***
Green: If it pleases your Lordship, my name is Miss Green and I appear on behalf of Mrs. Windsor, the respondent, with my learned junior Mr. Thomas. I shall be addressing the first point of appeal, namely that the advertisement in the newspaper is nothing more than an invitation to treat and therefore is not capable of giving rise to a binding contract.
If I could refer your Lordship to my skeleton argument, I would like, with your Lordship’s permission, of course, to amend this, to remove the second submission concerning the formation of a bilateral contract, as this point was not raised by my learned friend opposite. In response to the submissions made to your Lordship by the respondent, I would like to replace this with a submission that deals with the specific quantity of the goods stated in the advertisement.
***
Green: In conclusion, my Lord, it is the submission of the respondent that the advertisement in the newspaper is nothing more than an invitation to treat. That is, an expression of willingness to be open to receive offers. However, if your Lordship is not persuaded by my submissions on this point, my learned Junior will seek to convince your lordship that even if the advertisement was an offer, it was revoked by the respondent prior to any purported acceptance by the appellant. Unless I can assist your Lordship further, I bring my submissions to a close.
Judge: Thank you.
***
Thomas: My Lord, the second point of the appeal concerns the timing of the purported offer and its revocation. I shall be making two submissions to your Lordship as outlined on my skeleton argument. If I might proceed with the first of these?
Judge: Please do.
***
Thomas: In conclusion, my Lord, it is the primary submission of the respondent that there was no contract between the parties because the advertisement placed in the newspaper by the respondent, Mrs. Windsor, was merely an invitation to treat, and that although Mr. Pollard's actions amount to an offer, this was at no time accepted by the respondent.
If your Lordship is not minded to accept this interpretation of the situation, it is the alternative submission of the respondent that the offer was revoked as Mrs. Windsor called the retraction of the offer to be published prior to any purported acceptance by the appellant.
In light of these submissions, I would invite your Lordship to dismiss the appeal and uphold the decision of the trial judge that there was no contract between the parties. Unless I may assist your Lordship any further, this concludes the submissions of the respondent.
Judge: Thank you.
***
Green: In support of my submission, I would like to draw your Lordship’s attention to the case of Partridge and Crittenden, which was reported in the second volume of the All England Reports in 1968 at page 421. Would your Lordship benefit from a summary of the facts of the case?
Judge: A brief summary please, Counsel.
Green: The case involved the sale of bramble finches which were advertised in a magazine at a stated price. The advertiser was charged with the offense of offering for sale wild, live birds, contrary to the Protection of Birds Act 1954. The advertiser was acquitted of this charge as the court held that such an advertisement was an invitation to treat and not an offer. Applying this principle to the facts of the case in hand…
***
Green: In support of my submission, I would like to draw your Lordship’s attention to the case of Partridge versus Crittenden 1968, 2AllER 421. In this case, a magazine advertisement was held to be an invitation to treat.
***
Thomas: Furthermore, there is authority which suggests that the range of situations in which acceptance takes place are so varied that no single principle can be applied to all situations. If I can direct your Lordship to the words of Lord Wilberforce in the Brinkibon case to which I referred your Lordship earlier on page 42. [pause]
Paragraph C.
[pause]
The sentence beginning, “No universal rule…”
Judge: Yes, I have it.
Thomas: Lord Wilberforce states that, “no universal rule can cover all such cases. They must be resolved by reference to the intentions of the parties, by sound business practice, and in some cases, by a judgment where the risks should lie.”
***
Thomas: Furthermore, there is authority which suggests that the range of situations in which acceptance takes place are so varied that no single principle can be applied to all situations. If I can direct your Lordship to the words of Lord Wilberforce in the Brinkibon case, at page 42. “No universal rule can come up –”
Judge: Where is this, Counsel?
Thomas: Page 42. “… they must be resolved by reference -”
Judge: I'm still not with you, Counsel. Could you give me some precise indication of where I could find this quotation?
Thomas: I'm sorry, my Lord. I'm on page 42, halfway down the page.
Judge: Yes, I have it now, please go on.
***
Hennessy: I refer your Lordship to the case of Fisher and Bell, which was reported in the first volume of the Queen's Bench Reports in 1961, at page 395. Your lordship will find this case at tab three of the bundle.
[pause]
And I would like to direct your Lordship in particular to the words of Lord Chief Justice Parker on page 397 of the judgment, which is at page 17 of the bundle. It's halfway down the page, paragraph C, sentence commencing, "In my opinion..."
Judge: Yes, I have it.
***
Peters: My learned friend opposite will doubtless remind your Lordship that is accepted that advertisements for the sale of goods, whether in newspapers, shop windows, or by any other means, are not offers to sell those goods, but are merely invitations to treat. And what I mean by that term is expressions of willingness to embark on negotiations which may lead to an offer being issued.
However, it is the submission of the appellant that this situation that is the subject of this appeal is an exception to that general rule and that the ad here placed in the newspaper by Mrs. Windsor could amount to an offer as it was sufficiently clear, detailed and certain so that it was capable of immediate acceptance.
In support of this particular submission, I would like to refer your Lordship to the case of Fisher and Bell, which was reported in the first volume of the Queen's Bench Reports for 1961 at page 395. Is your Lordship familiar with the facts of the case?
Judge: Yes.
Peters: My Lord, it was held in this particular case that the display of goods in a shop window, accompanied by the price, would not amount to an offer. This can however be distinguished from the instant situation as the ad here involves far more information than the mere identification of the item and its price.
Here, there is a description of the goods, a statement of the usual price and the discounted price. The advertisement goes on to specify the number of boxes available and, crucially, the actions required from those who wish to purchase the shortbread. This is far removed from the display of a knife with a price label, so much so that one is moved to ask: what more information could a potential purchaser possibly require?
***
Judge: You've sought to distinguish Fisher and Bell in an effort to persuade me that the advertisement is an offer and not an invitation to treat. I'm surprised that you've not yet sought to demonstrate that the situation is analogous to the unilateral offer in Carlill. Are you planning to address that case?
Peters: My Lord, I had planned to address that authority in my second submission, but certainly I can deal with it now. It was my intention to move on to establish that the newspaper advertisement was a unilateral offer. That is, an offer made to the world at large that can be accepted by those who comply with conditions specified by the offeror.
The instant case does have much in common with Carlill and Carbolic Smoke Ball co., as your Lordship suggests. Would your Lordship like to be reminded of the facts of that case?
Judge: No, thank you.
***
Judge: You've sought to distinguish Fisher and Bell in an effort to persuade me that the advertisement is an offer and not an invitation to treat. I'm surprised that you've not yet sought to demonstrate that the situation is analogous to the unilateral offer in Carlill. Are you planning to address that case?
Peters: My Lord, I shall be dealing with that issue in my next submission.
***
Judge: You place great reliance on the approach taken to communications within working hours in the Brimnes. This case was concerned with communication of revocation, not a communication of acceptance of an offer, which is the situation before us. Why do you feel that the principle can be applied to acceptance?
Hennessy: My Lord, may I take a moment to consult with my learned Senior?
Judge: Yes, you may.
[Whispering between Junior and Senior counsel for the appellant]
Hennessy: My Lord, it is the submission of the appellants that the important issue in the Brimnes was the timing of non-instantaneous communications, such as Telex or email. It is immaterial whether this was communication of revocation, as it was in the Brimnes, or communication of acceptance, as it is in the case before us.
***
Judge: You place great reliance on the approach taken to communications within working hours in the Brimnes. But this case was concerned with communication of revocation, not communication of acceptance of an offer, which is the case before us. Why do you feel that the principle can be applied to acceptance?
Hennessy [rambling, hesitant]: Well, the case of the Brimnes was a case dealing with communication of revocation, that's right. But it is a case of long-standing authority and it hasn't been overruled, so it is the one that your Lordship can rely on, you know it is true that the facts of the case concerning the agreement for the hire of a ship are quite far removed from the facts of the present case regarding shortbread, but that is no reason, I submit, why the principle cannot be applied. It is my submission that the principle is of a general application and therefore it should be applied in this case.
***
Judge: Counsel, in my view, the Mondial Shipping case is on all fours with this appeal. Could you take a moment to address how that case impacts on the matter at hand?
Thomas: Apologies, my Lord, I'm not familiar with that authority, so I’m unable to assist your Lordship on this point. Might I return to my submissions?
Judge: Please do.
***
Judge: Do you feel that the inclusion of a statement of the quantity of boxes of shortbread for sale differentiates this case from most other advertisements?
Green: I'm afraid that I don't understand your Lordship’s question. Could you ephrase it for me?
Judge: Well, senior counsel for the appellant has raised an argument that there is limited stock available and that point is made clear in the advertisements and you've not addressed that point. My question, really, is to explore your views on the matter.
Green: Sorry, my Lord. Are you asking me whether the advertisement is more likely to be treated as an offer because there is a specified quantity of the stock stated, which means that the offeror cannot be bound to supply what he does not have?
Judge: Yes, Counsel. That's exactly my point.
Green: I'm obliged to your Lordship. With regard to the quantity of boxes the issue seems to be...
***
Green: My Lord, moving on to my next submission, it seems that my learned friend opposite has become somewhat confused about the finding of the case, upon which she places such reliance. It is the submission of the respondent that the ratio of the case is far narrower than that suggested by senior counsel for the appellant.
***
Green: Your Honour, moving on to my next argument, I think that they have misunderstood the nature of the case on which they place such reliance. I feel that the ratio of the case is much narrower than they have misled you into believing, by the counsel over there.
***
Thomas: In conclusion, my Lord, it is the primary submission of the respondent that there was no contract between the parties because the advertisement placed in the newspaper by the respondent, Mrs. Windsor, was merely an invitation to treat and although Mr. Pollard's actions amount to an offer, this was at no time accepted by the respondent.
If your Lordship is not minded to accept this interpretation of the situation, it is the alternative submission of the respondents that the offer was revoked as Mrs. Windsor, caused the retraction of the offer to be published prior to any purported acceptance by the appellant.
In light of these submissions, I would invite your Lordship to dismiss the appeal and uphold the decision of the trial judge: that there was no contract between the parties. Unless I may assist your Lordship any further, this concludes the submissions of the respondent.
Judge: Thank you.
***
Thomas [fast, monotone]: In conclusion my Lord, it is the primary submission of the respondent that there was no contract between the parties because the advertisement placed in the newspaper by the respondent, Mrs. Windsor was merely an invitation to treat and that although Mr. Pollard's actions amount to an offer, this was at no time accepted by the respondent.
[He takes a noisy slurp of water]
If your Lordship is not minded to accept this interpretation of the situation, it is the alternative submission of the respondents that the offer was revoked, as Mrs. Windsor caused a retraction of the offer to be published prior to any purported acceptance by the appellant. In light of these submissions -
Judge: Is the courtroom too warm for your liking counsel?
Thomas [getting louder]: I would invite your lordship to dismiss the appeal and uphold the decision of the trial judge that there was no contract between the parties. That concludes our submissions.
Judge [disapprovingly]: Thank you.
***
Student A:
Yeah well, when I first started mooting, I was really, really nervous, obviously. When the judge first said my name - said “Mr. Peters” - my mind just went blank, really. But as I started to speak and as I started to get used to him asking me questions and being able to follow my material, it started going much better. And as the moots went on it just became more and more enjoyable really. But you still get nervous. No matter how many times you do it you still get a few butterflies in your stomach before every moot. It's just something you've got to get used to because that's half the fun really.
Student B:
Mooting is beneficial not only because it helps on your CV but it also helps in your career at university. It means that you have to a lot more work; the work in preparation for a moot is almost like an entire week's work at university. You have to read the cases in a lot more depth than you would for just an essay. And when you're standing up there talking to the judge they ask you such detailed questions and take a different angle than you'd take a tutorial or just through work on your own. It really gives you a good grounding in the subject.
Student C:
Mooting has helped me make career choices because it's one of the only ways that you can get a taste of advocacy at university level. And through doing moots you can see whether that's something that you enjoy doing and an avenue you want to pursue as part of your career. It also means that you can start to develop your style while at university because after you moot you get feedback either from academics or from judges.
Student D:
My view of mooting has changed since I began to moot myself. Initially, I was concerned that I'd have to live up to a certain style that often I'd seen others do. And I've learned as I've begun to moot myself that I don't have to try and impersonate another person, that I can develop my own style. And I think that's really useful because a certain level of sincerity comes across in your own style when you're presenting a case to the judge.