the elements overall fully capture the content of the rule. The order in which
they are set out as Elements 1-n does not affect this. One can swap the
numbers and the elements are still a correct statement of the rule.
There is, however, a qualification to this general rule that the order of the
elements does not matter. In a practical as distinct from an analytical sense,
some arrangements of the elements will serve a lawyer’s purpose better than
others. There are two aspects, which overlap considerably:
(1)
Understanding and Remembering Law. Arranging the elements in some
functional order assists understanding and remembering the rule. For example,
in Figure 4.3 three of the elements of trespass to land are labelled “Element (1)
Land,” “Element (2) Possession” and “Element (3) Interference”. It is easy to
envisage a piece of land, a plaintiff possessing this land and the defendant
interfering with it because there is a natural flow or progression. By contrast,
the natural flow would be absent if the Element (1) consisted of “Interference”.
(2)
Checking Law Against Facts. One of several advantages of the elements
is that they constitute a checklist to use when applying law to facts. For this
purpose, a lawyer can gain some advantage from the order in which they put
the elements. This advantage accrues where one element is dependent on
another. For example, in the tort of trespass to land, the element ‘possession’
is dependent on the element ‘land’. Assume now that a lawyer is checking the
elements of trespass to land against the facts of their client’s case. Assume
also that the element ‘possession’ was listed before the element ‘land’. In this
case in order to see if the element ‘possession’ was satisfied it would be
necessary to jump ahead and examine the element ‘land’. This is clumsy.
Moreover, there is a larger problem in these cases if there is some ambiguity in
the dependent or independent element. Where one has to jump ahead to a later
element to check an earlier element against the facts it is easy to miss the
ambiguity or to locate it in the wrong element. Thus for both of these reasons
it is better to position an independent element before a dependent element. It is
far easier to look back to an element that you have properly considered than to
look forward to an element that you have not considered at all.
Citing Elements
If you are writing a text about a legal rule it is a good idea to set out early in the
discussion a list of the elements and consequences of the rule. Once having set
out the elements it is likely that you will want to refer back to an element in the
later part of the text. This can be made easier and simpler if when you list the
elements you follow the practice illustrated in Figure 4.3 above, where each
element of trespass to land was given both a number and a label. On this basis
the elements were -
Element (1) Land, Element (2) Possession, Element (3)
Interference, Element (4) Intention, Element (5) Permission
and
Element (6)
Defences.
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