K-P
K
keeping n. (of property) See THEFT.
keeping term See TERM.
keeping the peace Behaving in such a way as not to cause or
threaten a breach
of the peace, i.e. a disturbance of public order. Magistrates'
courts have very wide
powers to *bind over people to keep the peace or to make them enter
into
*recognizances (either personally or through a surety) to pay a sum
of money into
court if they fail to keep the peace. The order may be made against
a defendant on a
criminal charge or merely upon complaint by a member of the public
(if there is
some evidence that a *breach of the peace may occur). A person may
be bound over
for any sum of money or any period of time; if he refuses to be
bound over or to
enter into the recognizance, he may be sentenced immediately to
imprisonment
(even if he has committed no criminal offence).
kerb crawling The offence by a man of *soliciting a woman for
prostitution in a
street or public place either from a motor vehicle or having just
alighted from one,
when the soliciting is persistent or likely to cause annoyance to
the woman or
nuisance to other people in the vicinity.
kidnapping n. Carrying a person away, without his consent, by means
of force,
threats, or fraud. Kidnapping is a common-law offence punishable
with a maximum
sentence of life imprisonment. A man may be guilty of kidnapping
his wife.
Disputes between parents about the right to their children are
dealt with in family
proceedings. A parent with care of the child may obtain a warrant
for the arrest of
the other parent if he or she takes the child away. Failure to
comply with an order
for the return of the child amounts to contempt of court. See
alsoABDUCTION;
HOSTAGE.
kleptomania n. A mental disorder leading to the *irresistible
impulse to steal.
knock-out agreement An agreement by dealers not to bid against each
other at
an auction. Such an agreement is illegal (see AUCTION RING).
knowhow n. Technical information often exploited in conjunction
with a *patent.
EU regulation 240/96 governs the terms that mayor may not be
included in a
knowhow licence agreement. See TECHNOLOGY TRANSFER.
knowing receipt If a stranger receives trust property knowing it to
be in breach
of trust, he will be liable to account to the beneficiaries for
that property or for the
proceeds of it (see TRACING TRUST PROPERTY).
L
laches n. [from Norman French lasches, slackness, negligence]
Neglect and
unreasonable delay in enforcing an equitable right. If a claimant
with full
knowledge of the facts takes an unnecessarily long time to bring an
action (e.g. to
set aside a contract obtained by fraud) the court will not assist
him; hence the
maxim "the law will not help those who sleep on their rights" and
"equity aids the
vigilant". The defence of laches is only allowed if there is no
statutory limitation
period. If there is such a period, the claimant can bring an action
at any time up to
the expiry of the time stated. See ACQUIESCENCE; WAIVER.
Lady Day See QUARTER DAYS.
land n. Those parts of the surface of the earth that are capable in
law of being
owned and are within the court's jurisdiction. Generally, ownership
of land includes
the *airspace above it and the subsoil below. For the purposes of
land law, the Law
of Property Act 1925defines land as including mines and minerals
(whether or not
owned separately from the surface), buildings, and most interests
in land. Chattels
fixed to the land so that they become part of it are also treated
in law as land, under
the maxim quicquid plantatur solo, solo cedit (see FIXTURE).
land certificate A document issued by the Land Registry to the
proprietor of
registered land as proof of his ownership of it. See LAND
REGISTRATION.
land charge An interest in *unregistered land that imposes an
obligation on the
landowner in favour of some other person (the chargee). If validly
created and
registered where appropriate under the Land Charges Act 1972 at the
*Land Charges
Department (see REGISTRATION OF ENCUMBRANCES), land charges will
normally bind
purchasers of the land. Important examples of land charges created
by act of the
parties include mortgages not protected by deposit of title deeds,
binding contracts
for sale (including options and rights of pre-emption),
*restrictive covenants that
affect freehold land, and equitable *easements. Some land charges
arise under
statute; for example, a spouse's right to occupy the matrimonial
home under the
Matrimonial Homes Act 1983 (a Class F land charge) and the Inland
Revenue charge
for unpaid inheritance tax (a Class D land charge). Local land
charges, which arise
in favour of local authorities from the exercise of their statutory
powers, are
registered by the local authority itself and apply to *registered
land as well as to
unregistered land.
Land Charges Department A department of the Land Registry,
maintained
under the Land Charges Act 1972 to keep registers of certain
interests affecting the
rights of persons owning *unregistered land (called estate owners).
For the
interests capable of being registered, see REGISTRATION OF
ENCUMBRANCES. Registration
of land charges against the name of the estate owner constitutes
notice to everyone
of their existence and generally renders them binding upon
purchasers of any
interest or estate in the land affected. A person contemplating
taking such an
interest may apply to the Department for an *official search
certificate, which will
reveal all interests registered against the estate owner's
name.
landlord n. A person who grants a lease or tenancy. He need not be
the outright
owner of the tenanted premises (he may, for example, be a lessee
himself or even a
licensee). A landlord may be an individual, a local authority, a
trustee, a personal
representative, or a corporation (such as a company). A landlord
may provide services
to the tenant, such as heating, lighting, and porterage. There are
statutory controls
on the amount that a landlord can charge for such services and
procedures for
consultation with the tenants. The person who receives the rent is
obliged to reveal
the landlord's identity on the tenant's request. When there is a
change of ownership
the new landlord must inform the tenant within two months or when
rent is next
due, whichever is the later. The kind of security of tenure a
tenant has is affected
by who his landlord is. See ASSURED TENANCY; PROTECTED TENANCY;
SECURE TENANCY;
RESTRICTED CONTRACT.
land registration The system of registering, at local branch
offices of HM Land
Registry, certain legal estates or interests in land. Under the
Land Registration Act
1925 compulsory registration was to be introduced in a specified
area by Order in
Council; registration has now been extended to the whole of England
and Wales, and
over 90% of all land in England and Wales is now registered land.
There is, however,
no obligation on existing owners to register, but most transactions
in land,
including sale, gift, legal mortgage, etc., now trigger
registration by the new or
existing owner. If he fails to do so he does not acquire the legal
estate and therefore
runs the risk that the vendor or landlord may sell to someone else
who can acquire
a better title by registration. Existing owners or tenants under a
lease having at
least 21 years to run may register their titles if they wish.
Upon registration of a title the Land Registry allocates a title
number. Evidence of
title is provided by the issue of a land certificate to the owner
(who is known as
the registered proprietor) or, if the land is in mortgage, a charge
certificate to
the mortgagee. The certificate represents the registered title,
which is in three parts,
comprising;
(1) The property register. This describes the land and any
additional rights
incidental to it, such as rights of way over adjoining land. The
filed plan shows the
location of the land, usually with a general indication of the
position of the
boundaries. Registration of precise boundaries is possible under a
special procedure
involving notice to adjoining owners and hearing their
objections.
(2)The proprietorship register. This names the registered
proprietor(s) of the land
and notes any restriction on their powers to dispose of it (for
example, *restrictions,
*inhibitions, *cautions, etc.). The register also states the nature
of the title, which
may be *absolute, *qualified, *possessory, or *good
leasehold.
(3)The charges register. This details interests adverse to the
proprietor, such as
mortgages, restrictive covenants, or easements to which the land is
subject.
The land certificate fulfils a similar function to title deeds to
unregistered land,
but if a more up-to-date record of the state of the registered
title is required (for
example, by a prospective purchaser or mortgagee), the Land
Registry will issue
*office copies or a certificate of *official search on application
by the registered
proprietor or any person with his authority to inspect the
register. A registered
proprietor's title is guaranteed by the state subject to
*overriding interests, which
are not registrable in the charges register. The extent of the
guarantee depends on
the nature of the title. The register can be rectified by the court
in certain
circumstances to correct a mistake; compensation is generally paid
by the
government to a party who suffers loss as a result.
Land Registry A statutory body established under the Land
Registration Act 1925
to maintain registers of certain legal estates in land. See also
LAND REGISTRATION.
Lands Tribunal A tribunal established by the Lands Tribunal Act
1949 to decide
disputes concerning compensation for the compulsory acquisition of
land and
similar questions involving land valuation. It also determines
disputes as to the
value of land or buildings for inheritance-tax purposes. Its
members, who must be
legally qualified or experienced in valuation, are appointed by the
Lord Chancellor,
and it is subject to the supervision of the *Council on
Tribunals,
lapse n. The cancellation of a bequest when the beneficiary dies
before the
testator. Thus, in general, if A's will leaves property to B but B
predeceases A, the
bequest does not take effect. The property becomes part of A's
residuary estate and
is distributed to his residuary beneficiaries. This rule is subject
to the following
exceptions.
(1) When property is bequeathed to two or more persons as joint
tenants, those who
survive the testator take the property.
(2)The Wills Act 1837 provides that when property is bequeathed to
a child or
remoter descendant of the testator who predeceases him but leaves
descendants of
his own who are alive at the testator's death, those descendants
take the property
(subject to a contrary intention being expressed in the will). A
similar rule applies
when property is left in tail (*entailed interest).
(3)Some gifts to charities that cease to exist before the
testator's death may be
applied *cy-pres.
(4)Most importantly, the testator may stipulate what is to happen
to the gift if the
beneficiary predeceases him.
lapse of offer The termination of an *offer as a result of the
passage of time,
death, or the nonfulfilment of a condition. An offer made subject
to a specified
time limit lapses after that time has passed; all other offers
lapse after a reasonable
time. Death of the offeree causes an offer to lapse, but death of
the offeror does not
always do so. The offer remains available for acceptance if the
death is unknown to
the offeree and the resulting contract could be performed by the
offeror's personal
representatives. An offer lapses if one or more conditions are not
fulfilled. An offer
to buy goods, for example, is made on the assumption that they will
remain in the
same condition until acceptance; it lapses if that ceases to be the
case. See also
REJECTION OF OFFER; REVOCATION OF OFFER.
larceny n. Formerly (before 1969), *theft. Larceny was more limited
than theft and
required an asportation (carrying away of the property).
latent ambiguity See AMBIGUITY.
latent defect See DEFECT.
law n. 1. The enforceable body of rules that govern any society.
See also COMMON
LAW; NATURAL LAW. 2. One of the rules making up the body of law,
such as an *Act of
Parliament.
Law Commission A body established by the Law Commissions Act 1965
to take
and keep the law under review with a view to systematically
developing and
reforming it. In particular, it considers the codification of the
law, the elimination
of anomalies, the repeal of obsolete and unnecessary enactments, a
reduction in the
number of separate enactments, and simplification and modernization
generally.
The Commission consists of a chairman and four other members,
appointed by the
Lord Chancellor from among the holders of judicial office,
barristers, solicitors, and
academic lawyers. There is a separate Commission for
Scotland.
Law Lords See LORDS OF APPEAL IN ORDINARY.
law merchant The international practice of merchants relating to
commercial
and maritime matters. In early times it influenced Admiralty law
and the law
administered in local courts. Parts of the law merchant were
absorbed into the
common law of England (e.g. that relating to negotiable instruments
and the
transfer of bills of lading).
law officers of the Crown The *Attorney General, *Solicitor
General, *Lord
Advocate, Solicitor General for Scotland, and Attorney General for
Northern Ireland.
law of nations See INTERNATIONAL LAw.
law of the sea The rules of international law governing rights over
the seas. The
seas are divided into several different areas. (1) The internal
waters of a state (e.g.
rivers, lakes, ports, and harbours). A state may usually apply its
laws to any
merchant ship within its internal waters. It may also apply
navigation or health
regulations to foreign warships in such waters and exclude foreign
warships from
its ports. (2)The *territorial waters. (3) The *high seas, beyond
the territorial waters,
which are open to all nations for such purposes as navigation,
fishing, laying of
submarine cables, and over-flying. Ships on the high seas are
usually subject only to
international law (for example, in relation to acts of piracy) and
the law of the
flagstate (usually dependent on registration in that state). There
is also a limited
right of *hot pursuit. (4)The *continental shelf, which - although
geographically
part of the high seas - is subject to specific rules.
The law of the sea is contained in customary international law and
in the four
Geneva Conventions of 1958. Since 1982,when the United Nations
Convention on the
Law of the Sea came into force, there is a comprehensive code
governing the whole
of this law, which includes some completely new rules. To date
(2001), 135 countries
have established their consent to be bound by this Convention; the
UK acceded to
the treaty on 25 July 1997. In addition, many nations have
subscribed to the related
1994Agreement Regarding the United Nations Convention on the Law of
the Sea.
Even though some states chose not to ratify the 1982 Convention,
many of the
Convention's principles have now passed into the corpus of
customary international
law.
Law Reform Committee A body established by the Lord Chancellor to
consider
particular areas of law that may need reform.
law reports Reports of cases decided by the courts, comprising a
statement of the
facts of every case and the reasons the court gave for judgment.
The earliest reports
were contained in the Year Books, which were published annually
between 1283 and
1535.Their authors were anonymous and may have been student
lawyers. The Year
Books were superseded by personalized reports, i.e. reports written
privately by
lawyers (e.g.Chief Justice Coke) who appended their names to them.
In 1865was
established the Incorporated Council of Law Reporting, a
semiofficial body that
publishes TheWeekly Law Reports (formerly Weekly Notes). These are
reports of
important cases selected by the Council, written by lawyers, and
approved by the
judges involved. There are in addition still a number of
commercially published
reports, e.g. the All England Law Reports, but the Court of Appeal
and the House of
Lords will cite the reports of the Incorporated Council in
preference to other
reports where there is a choice.
law sittings See SITTINGS.
Law Society The professional body for solicitors in England and
Wales,
incorporated by royal charter in 1831. The Society exists both to
further the
professional interests of solicitors and to discharge important
statutory functions in
relation to the admission to practice, the conduct, and discipline
of solicitors. It
issues annual *practising certificates to solicitors, without which
they may not
practise, and through its disciplinary committee may strike a
solicitor's name off
the roll or take other disciplinary action, subject to an appeal
to the High Court. The
Society is responsible for the examination of intending solicitors
and organizes
educational and training courses both through the College of Law
and recognized
universities.
lay days (lying days) The number of days specified in a
charterparty to enable
the charterer to load or discharge cargo. They begin to run as soon
as the ship is an
arrived ship, i.e. has reached the berth or mooring specified in
the charterparty. If
only a port is specified, the ship must have reached a position
within that port at
which it is at the immediate and effective disposition of the
charterer (the Reid
test). The charterparty may provide for the payment of dispatch
money when the
charterer saves days in loading or discharging the cargo. Unless
the charterparty
provides otherwise (e.g.by restricting them to good-weather working
days), lay days
are running days,i.e. they run consecutively, without any break.
See also DEMURRAGE.
laying an information Giving a magistrate a concise statement
(an
information), verbally or in writing, of an alleged offence and the
suspected
offender, so that he can take steps to obtain the appearance of the
suspect in court.
Information can be laid by any member of the public, although it is
usually done by
the police. If an arrest warrant is required, the information must
be in writing and
on oath. Objections cannot normally be made to information laid, on
the grounds of
formal defects or discrepancies between it and the prosecution's
subsequent
evidence. But if the defect is fundamental to the charge the
information will be
dismissed, and if the defendant was misled by a discrepancy, he may
be granted an
adjournment of the trial.
LCJ See LORD CHIEF JUSTICE.
leader n. A *Queen's Counselor any barrister who is the senior of
two counsel
appearing for the same party.
Leader of HM Opposition The leader in the House of Commons of the
party in
opposition to the government that has the greatest numerical
strength in the
House. By statute a salary is payable to him (in addition to his
salary as an MP); any
doubt as to his identity is resolved by the Speaker.
Leader of the House See HOUSE OF COMMONS; HOUSE OF LORDS.
lead evidence To call or adduce evidence.
leading case A case, the legal reasoning in which establishes an
important
principle of law. See PRECEDENT.
leading question A question asked of a witness in a manner that
suggests the
answer sought by the questioner (e.g. "You threw the brick through
the window,
didn't you?") or that assumes the existence of disputed facts to
which the witness is
to testify. Leading questions may not be asked during
*examination-in-chief (except
relating to formal matters, such as the witness's name and address)
but may
normally be asked in *cross-examination.
leapfrog procedure 1. (Houseof Lords) The procedure for appealing
direct to
the House of Lords from the High Court or a Divisional Court,
bypassing the Court
of Appeal. The procedure is only allowed in exceptional cases. All
parties must
consent and the case must raise a point of law of public
importance, which either
relates wholly or partly to the interpretation of a statute or of a
statutory
instrument or is one in respect of which the trial judge is bound
by a previous
decision of the Court of Appeal or the House of Lords. The trial
judge must certify
that he is satisfied as to the importance of the case and the House
of Lords must
give permission to appeal in this way. 2. (Court of Appeal) The
procedure by which
a High Court judge or the Master of the Rolls may transfer an
appeal from a
decision of a district judge or master to the Court of Appeal.
Under the Access to
Justice Act 1999and the *Civil Procedure Rules, which substantially
revised
*appellate jurisdiction in the civil courts, such an appeal would
normally be to a
circuit judge or a High Court judge. However, if the appeal is
considered to raise an
important point of principle or practice, or if there is some other
compelling reason
for the Court of Appeal to hear it, it may be transferred.
lease n. A contract under which an owner of property (the *Iandlord
or lessor)
grants another person (the *tenant or lessee) exclusive possession
of the property
for an agreed period, usually (but not necessarily) in return for
rent and sometimes
for a capital sum known as a *premium. Unless it satisfies the
conditions for a
*parollease, a lease must be made by a formal document (a *deed),
which is itself
called a lease. If this is not done, however, there may still be an
*agreement for a
lease. The lessee must have exclusive possession, i.e. the right to
control the property
and to exclude everyone else from it (subject to any rights of
entry or re-entry
reserved to the landlord). If possession is not exclusive, there is
no lease but there
may be a *licence. A lease must be for a definite period, which may
be a *fixed term
or by way of a *periodic tenancy. See also EQUITABLE LEASE; LEGAL
LEASE.
The deed that creates the lease sets out the terms, which include
the parties. the
property, the length of the lease, the rent, and other obligations
(covenants),
particularly concerning repairs, insurance, and parting with
possession. Certain
covenants are implied in all leases (though the lease may vary or
exclude them). In
the case of the lessor these are; (1) not to derogate from his
grant (i.e. he must not do
anything that would make the property unfit for the purpose for
which it was let);
(2) *quiet enjoyment; and, in certain cases, (3) to ensure that the
premises are *fit
for habitation. In the case of the tenant, the implied covenants
are: (1) to pay the
rent; (2) to pay all ordinary rates and taxes; (3) not to commit
*waste; and (4) to use
the property in a tenant-like manner, i.e. to do the sort of small
maintenance jobs
that any reasonable tenant would be expected to do (he is not,
however, responsible
for *fair wear and tear or other disrepair that is not his fault).
See alsoASSIGNMENT;
COVENANT TO REPAIR.
leasehold adj. Held under a *Iease, i.e. for a period of fixed
minimum duration. See
TERM OF YEARS ABSOLUTE.
leasehold ownership Ownership of property under a *Iease. The
period of
ownership depends on the terms of the lease; it may vary from a
very short time,
such as a week, to a very long period, such as 999 years. The
tenant's ownership is
also restricted by the terms of the lease. Under the Leasehold
Reform Act 1967,
holders of long leases (over 21 years) for houses may have a
statutory right to
purchase the freehold or extend the existing lease by 50 years (see
ENFRANCHISEMENT
OF TENANCY). The Leasehold Reform Act 1993 granted a similar right
to leaseholders
of flats.
leasehold valuation tribunal A body that handles disputes over
service charges
and over the purchase of leasehold property by tenants holding long
leases; it also
appoints managers of leasehold properties when the landlords'
managers are not
acceptable. Leasehold valuation tribunals started operating in
1997.
leave n. Permission given by the court to take some procedural step
in litigation.
Situations in which permission is required include *service out of
the jurisdiction
and appeals to higher civil courts (see APPELLATE JURISDICTION).
Some items of evidence
may be admissible only upon permission being granted by the trial
judge.
leave to defend An order of the High Court on a summons for
*summary
judgment, granting the defendant leave to continue with his defence
to the action.
The leave may be conditional (e.g. subject to the defendant paying
the whole or
part of the claimant's claim into court) or unconditional.
legacy n. A gift of personal property effected by will (compare
DEVISE). A general
legacy is a gift of property not identifiable with a specific asset
or fund; for
example, a simple legacy of "£1000to A" or "my shares to B". A
specific legacy is a
particular identifiable object, for example a named painting. It is
liable to
*ademption but is otherwise payable by the deceased's personal
representatives in
priority to general legacies. A demonstrative legacy is payable
from a specified
fund; for example, "£500 from the £1000kept under my bed". Such a
legacy is not
adeemed if the testator disposes of the fund during his lifetime
and is payable in
priority to general legacies. Pecuniary legacies (i.e. gifts of
cash) carry interest from
one year after the testator's death. A residuary legacy is one that
disposes of the
whole of the testator's personal property after payment of debts
and specific,
demonstrative, and general legacies.
legal aid scheme A scheme under the Legal Aid Act 1988whereby the
payment
of legal costs was made out of public funds for those unable to
meet the costs
themselves, provided that the person qualified under the financial
and merits tests
laid down under the scheme. There were separate provisions for
civil and criminal
cases. Civil legal aid had two components: legal advice and
assistance (sometimes
known as the *green form scheme) and legal aid. Under the former,
payment was
made to qualified lawyers under the scheme who provided legal
advice and help
preliminary to litigation. Under legal aid, payment was made for
the provision of
legal advice and assistance at all stages of litigation, including
appeals. In criminal
cases, the court determined whether or not legal aid was granted
and made a legal
aid order if it considered legal aid desirable in the interest of
justice.
The legal aid scheme was replaced in April 2000 by the *Community
Legal Service.
Under this new scheme of legal aid and assistance, the green form
scheme was
replaced by the legal help scheme and legal aid was replaced by
full representation;
there are, in addition, intermediate levels of service.
legal assignment See ASSIGNMENT.
legal easement See EASEMENT.
legal estate Ownership of land or an interest in land either in
*ree simple
absolute in possession or for a *term of years absolute. Under the
Law of Property
Act 1925 these are the only forms of ownership that can exist as
legal estates in
land. All other forms, e.g. life interests and entailed interests,
are equitable only.
legal fiction See FICTION.
legal fraud See CONSTRUCTIVE FRAUD.
legal help See COMMUNITY LEGAL SERVICE; GREEN FORM.
legal lease A contract or grant that creates an estate in land for
a *term of years
absolute. A legal lease must normally be created by deed; however,
there are no
formal requirements for the creation of a legal lease for a term
that takes effect in
possession and does not exceed three years at a full market rent
without a
premium. Under the Law of Property Act 1925,the *assignment of a
legal lease of
whatever duration must be effected by deed, otherwise it may only
take effect as a
contract to assign the term. A legal lease for more than 21 years
must be registered
at the Land Registry (see LAND REGISTRATION). Compare EQUITABLE
LEASE.
legal memory The period over which the law's recollection extends.
Its
commencement was arbitrarily fixed at 1189by the Statute of
Westminster I 1275.
Time before legal memory is referred to as time immemorial. Compare
LIVING
MEMORY.
legal mortgage See MORTGAGE.
legal person A natural person (i.e. a human being) or a *juristic
person.
legal rights 1. Rights recognized by the common law courts, as
distinct from
*equitable rights or interests recognized by the Court of Chancery.
In their
developed form, legal rights affect everyone whether or not they
know (or ought
to know) of their existence (hence the expression "legal rights
bind the world").
2. Generally, all rights recognized by the law (both common law and
equity) as
having legal existence and effect, as distinguished from moral
rights.
legal separation See JUDICIAL SEPARATION ORDER.
Legal Services Commission See COMMUNITY LEGAL SERVICE.
Legal Services Ombudsman An official, appointed by the Lord
Chancellor
under the Legal Services Ombudsman (Jurisdiction) Order 1990,who is
responsible
for hearing complaints against solicitors, barristers, and licensed
conveyancers made
by their professional bodies.
legal year The period made up, in any year, of the four court
*sittings.
legatee n. The person to whom a *legacy is given.
legislation n. 1. The whole or any part of a country's written law.
In the UK the
term is normally confined to *Acts of Parliament, but in its
broadest sense it also
includes law made under powers conferred by Act of Parliament (see
DELEGATED
LEGISLATION), law made by virtue of the *royal prerogative. and
Measures (see CHURCH
OF ENGLAND). 2. The process of making written law.
legislature n. The body having primary power to make written law.
In the UK it
consists of Parliament, i.e. the Crown, the House of Commons, and
the House of
Lords.
legitimacy n. The legal status of a child born to parents who were
married at the
time of his conception or birth (or both). (See also LEGITIMATION.)
There is a
presumption of legitimacy in all cases when the mother is married,
so that
children of the marriage are presumed to be the offspring of the
mother's husband.
This may be rebutted, however, either by showing that the husband
was impotent
or absent on the date on which the child must have been conceived
or by *blood
tests showing that he could not be the father. Children born of a
voidable marriage
annulled since 1949are legitimate; those born of such a marriage
annulled between
1937and 1949are legitimate only if the grounds of nullity were that
the other
spouse was of unsound mind or epileptic or suffering from a
communicable
venereal disease. Since 1959, children born of a void marriage are
treated as
legitimate if at the time of their conception or insemination at
least one of their
parents reasonably thought the marriage was valid and the father
was domiciled in
England at the time of the child's birth. The Family Law Reform Act
1987 provides
that a child conceived, by a party to a marriage, through
artificial insemination by a
donor, is to be treated as a legitimate child of that
marriage.
Under certain conditions (specified in the Family Law Act 1986) a
person may seek
a court declaration of his legitimacy. See also ILLEGITIMACY.
legitimate aim A prerequisite for interference with a *qualified
right as set out
in the European Convention on Human Rights; a signatory state
will be able to
interfere with a qualified right only if that interference is
designed to pursue a
legitimate aim and the interference is a proportionate one (see
PROPORTIONALITY).
Legitimate aims include national security, public order, the
prevention of crime, etc.
legitimation n. The process of replacing the status of illegitimacy
by that of
legitimacy. A living child may be legitimated if his parents marry
one another,
provided that the father is domiciled in England or Wales at the
date of the
marriage. Evidence that the husband recognized the child as his own
may be
sufficient to establish his paternity for purposes of legitimation.
Legitimation takes
effect from the date of the marriage and the child is treated
thereafter as if he had
been born legitimate. Under the Family Law Act 1986,a person may
seek a court
declaration that he is a legitimated person.
lessee n. The person to whom a *lease is granted. See
alsoTENANT.
lessor n. The person by whom a *lease is granted. See
alsoLANDLORD.
letter of attorney See POWER OF ATTORNEY.
letter of credence (/ettre de cniiance) A formal document by which
the head of
an accredited state presents its newly appointed diplomatic agent
to the head of
state of the host country.
letter of credit A document whereby a bank, at the request of a
customer,
undertakes to pay money to a third party (the beneficiary) on
presentation of
documents specified in the letter (e.g. bills of lading and
policies of insurance). The
obligation of the bank to pay is independent of the underlying
contract of sale and
so is not affected by any defects in the goods supplied under the
contract of sale. A
contract of sale of goods may require the buyer to open an
irrevocable letter of
credit in favour of the seller. This cannot be revoked by the
issuing bank or the
purchaser of the goods before its expiry date, without the consent
of the
beneficiary. A confirmed letter of credit is one in which the
negotiating bank
guarantees payment to the beneficiary should it not be honoured by
the issuing
bank.
letter of request (rogatory letter, letter rogatory) A letter
issued to a foreign
court requesting a judge to take evidence from a specific person
within that court's
jurisdiction. The resulting *deposition may be read at a subsequent
court hearing.
letters of administration Authority granted by the court to a
specified person
to act as an *administrator of a deceased person's estate when the
deceased dies
intestate. Letters of administration cum testamento annexo (with
the will annexed)
are granted when the deceased's will does not appoint executors or
when the
executors named do not prove the will. In certain circumstances,
letters of
administration may be granted for limited purposes to persons not
entitled to deal
with the whole estate (see AD COLLIGENDA BONA; DURANTE ABSENTIA).
See also DE BONIS
NON ADMINISTRATIS.
lex causae [Latin: the law of the case] In *private international
law, the system of
law (usually foreign) applicable to the case in dispute, as opposed
to the *lex fori.
lex domicilii [Latin] The law of *domicile. In *private
international law, the law of
the country of domicile determines such matters as capacity to make
a will in
respect of personal property, the validity of such a will,
succession to personal
property, consent to marriage, and the proper law of a marriage
contract or
settlement (see PROPER LAW OF A CONTRACT).
lex fori [Latin] The law of the *forum. In *private international
law, the law of the
forum governs matters of procedure, the mode of trial, most matters
relating to
evidence, the nature of the remedy available, and most matters of
*limitation of
actions based on time bars.
lex loci actus [Latin] The law of the place where a legal act takes
place. In *private
international law, this law governs such questions as whether or
not property in a
bill of exchange or promissory note passes to the transferee and
the formal validity
of an assignment of an intangible movable (e.g. a share in a trust
fund). See also LEX
LOCI CELEBRATIONIS; LEX LOCI CONTRACTUS.
lex loci celebrationis [Latin] The law of the place of celebration
of a marriage. In
*private international law, this law governs such questions as the
formalities
required for a marriage (subject to four special exceptions),
whether or not such a
marriage is monogamous or polygamous, and possibly what law governs
impotence
or wilful refusal to consummate a marriage.
lex loci contractus [Latin] The law of the place where a contract
was made. In
*private international law, this law governs such matters as the
formal
requirements of a contract and the capacity to incur liability as a
party to a bill of
exchange. Most other matters relating to contracts are governed by
the *proper law
of the contract.
lex loci delicti commissi [Latin] The law of the place in which a
delict (tort) is
committed. In *private international law as applied in most
countries in Europe,
this law governs liability for torts. In some cases, however, it
may be difficult to
establish where the tort was committed (for example, when goods
negligently
manufactured in one country are distributed in another) or the
place may be a
matter of mere chance (for example, when an aeroplane crashes and
lands). For these
reasons, England does not accept the theory that liability in tort
is governed by the
lex loci delicti.
lex loci situs [Latin] The law of the place where an object is
situated. In *private
international law, this law usually governs such matters as
succession to, title to, and
the right to possession of immovables and the essential validity of
trusts of
immovables (for example, what estates can be created and whether or
not gifts to
charities are valid).
lex loci solutionis [Latin] The law of the place where a contract
is to be
performed or a debt is to be paid. In *private international law as
applied in
England, the lex loci solutionis governs the due date for payment
of a *bill of
exchange but does not usually govern matters relating to the law of
contract.
liability n. 1. An amount owed. 2. A legal duty or obligation. See
BUSINESS LIABILITY;
OCCUPIER'S LIABILITY; PARENTS' LIABILITY; PRODUCTS LIABILITY;
STRICT LIABILITY; VICARIOUS
LIABILITY.
libel n. A defamatory statement made in permanent form, such as
writing,
pictures, or film (see DEFAMATION). Radio and television
broadcasts, public
performance of plays, and statements posted on the Internet are
treated as being
made in permanent form for the purposes of the law of defamation. A
libel is
actionable in tort without proof that its publication has caused
special damage
(actual financial or material loss) to the person defamed. Libel
can also be a crime
(criminal libel). Proof of publication of the statement to third
parties is not
necessary in criminal libel and truth is a defence only if the
statement was
published for the public benefit.
liberty and freedom from arbitrary detention A right set out in
Article 5 of
the European Convention on Human Rights and now part of UK law as
a
consequence of the *Human Rights Act 1998. All detentions must be
prescribed by
law and detentions must only be for one of the specified purposes
set out in Article
5. Those detained must promptly be given reasons for their
detention and then at
regular intervals have access to a court to test the lawfulness of
their continued
detention. Those remanded in custody pending a criminal trial must
be released on
bail unless their detention is justified and they shall be entitled
to trial within a
reasonable time. There is an enforceable right to compensation for
unlawful
detention.
licence n. 1. Formal authority to do something that would otherwise
be unlawful.
Examples include a *driving licence, a licence for selling
intoxicating liquor (see
LICENSING OF PREMISES), and a licence by the owner of a patent to
manufacture the
patented goods. 2. (in land law) Permission to enter or occupy a
person's land for an
agreed purpose. A licence does not usually confer a right to
exclusive possession of
the land, nor any estate or interest in it: it is a personal
arrangement between the
licensor and the licensee. A bare licence (i.e. gratuitous
permission to enter or
occupy the licensor's land) can be revoked at any time and cannot
be assigned by the
licensee to a third party (see BARE LICENSEE). A contractual
licence cannot be revoked
during the period the parties intended it to last. Neither type is
by itself binding on
third parties acquiring the land from the licensor. However, if the
licence is
coupled with a grant of property or of an interest in land, the
licence may be
irrevocable and binding on the licensor's successors in title. For
example, if A grants
to B the right to catch and remove fish from water on his land, a
licence to enter
A's land to take up this *profit a prendreis necessarily implied
and will be
irrevocable for the duration of the profit. The profit, as a legal
interest over A's
land, will bind A's successors in title, as will the licence that
is irretrievably bound
up with it. A bare or contractual licence may become irrevocable by
the licensor or
binding on a third party acquiring the land from the licensor if
the circumstances
give rise to a proprietary *estoppel or a *constructive
trust.
licensed conveyancer A person, other than a solicitor, who is
qualified to
practise *conveyancing. Entry to this profession, which was created
in 1985in
response to recommendations by the *Farrand Committee, is by
examination; the
level of competence required, ethics, and professional conduct are
regulated by the
Council for Licensed Conveyancers. The Solicitors Act 1974 makes it
an offence for
an "unqualified person" (i.e. a non-solicitor) to undertake
conveyancing for reward,
but from May 1987, the Administration of Justice Act 1985made an
exception in the
case of licensed conveyancers.
licensee n. 1. A person who has been granted a licence, most
commonly used of
one who has been granted a licence by a magistrates' court to sell
intoxicating
liquor (see LICENSING OF PREMISES) or one who has been granted a
licence to use
intellectual property, such as *patents. 2. A person with
permission to do what
would otherwise be unlawful. In relation to land, a licensee is one
who enters land
with the express or implied permission of the occupier. See
LICENCE; OCCUPIER'S
LIABILITY.
licensing of premises The granting of a justices' licence
authorizing the sale by
retail of *intoxicating liquor either for consumption on or off the
premises (an onlicence)
or for consumption off those premises only (an off-licence).
Licensing
justices deal with the grant, renewal, and transfer of licences at
a general annual
licensing meeting (the brewster sessions) in the first fortnight of
every February
and at regular licensing sessions thereafter.
lie in grant To be capable of being transferred by deed. Land and
interests in it lie
in grant; property that can be transferred by physical delivery
lies in livery.
lie in livery See LIE IN GRANT.
lien n. [via Old French from Latin ligamen, a binding] n. The right
of one person to
retain possession of goods owned by another until the possessor's
claims against the
owner have been satisfied. The lien may be general, when the goods
are held as
security for all outstanding debts of the owner, or particular,
when only the claims
of the possessor in respect of the goods held must be satisfied.
Thus an unpaid seller
may in some contracts be entitled to retain the goods until he
receives the price (see
alsoUNPAID VENDOR'S LIEN), a carrier may have a lien over goods he
is transporting,
and a repairer over goods he is repairing. Whether a lien arises or
not depends on
the terms of the contract and usual trade practice. A lien may be
waived and can be
lost, for example when an owner in possession sells goods to a
buyer ignorant of a
third party's lien. This type of lien is a possessory lien, but
sometimes actual
possession of the goods is not necessary. In an equitable lien, for
example, the claim
exists independently of possession. If a purchaser of the property
involved is given
notice of the lien it binds him; otherwise he will not be bound.
Similarly a maritime
lien, which binds a ship or cargo in connection with some maritime
liability, does
not depend on possession and can be enforced by arrest and sale
(unless security is
given). The lien accordingly travels with the ship or cargo when
possession changes,
and is good against a bona fide purchaser without notice. Examples
of maritime liens
are the lien of a salvor, that of seamen for their wages and of
masters for their
wages and outgoings, that of a bottomry or respondentia bondholder
(see
HYPOTHECATION), and that over a ship at fault in a collision in
which property has
been damaged. A maritime lien is enforceable by proceedings *in
rem. See also
SOLICITOR'S LIEN.
life assurance *Insurance providing for the payment of a sum on the
occurrence
of an event that is in some way dependent upon a human life. In
endowment
assurance the insurer is liable to pay a fixed sum either at the
end of a fixed period
or at death if the insured should die in the meantime. Whole-life
assurance
provides for the payment of a fixed sum on the death of the
insured. Term (or
temporary) assurance provides for a fixed sum to be paid in the
event of the death
of the insured within a specified period.
life estate See LIFE INTEREST.
life imprisonment Punishment of a criminal by imprisonment for the
rest of his
life. The only crime that always carries a sentence of life
imprisonment is murder,
but there are many crimes (e.g.arson, manslaughter, wounding with
intent, and
rape) that carry a maximum penalty of life imprisonment, which is
imposed in
serious cases, and the Crime (Sentences) Act 1997 provides for a
mandatory sentence
of life imprisonment for those convicted for a second time for
certain of these
crimes (see REPEAT OFFENDER). In practice the imprisonment may
often not be for life:
the Home Secretary may order the release of a life prisoner on
licence, on the advice
of the Parole Board (see PAROLE) and after consulting the Lord
Chief Justice (and, if
possible, the trial judge). The Crime (Sentences) Act 1997provides
that the Parole
Board has responsibility for the release of juveniles convicted of
murder, rather
than the Home Secretary. When imposing life imprisonment for
murder, the judge
may make a recommendation that the defendant should serve a minimum
term
(number of years), which is usually not less than 12 years and
up to 35 years. This
recommendation is not legally binding on the Horne Secretary, but
in practice he
will almost always follow it. Judges are also empowered to make a
private
representation to the Home Secretary, when imposing a life
sentence, pointing out
any special mitigating factors that might induco him to release the
prisoner at an
early date.
life interest (life estate) An interest in proporry subsisting only
during the
lifetime of the person to whom it was granted (e.g, "to A for
life") or of some other
person (e.g. "to A during the life of B"). The latt~r type is
called an "estate (or
interest) pur autre vie.Under the Law of Property Act 1925a life
interest in land
cannot exist as a legal estate, only as an *equitable interest.
Until 1997the creation
of a life interest in land created a settlement, governed by the
Settled Land Act 1925.
Since that date it creates a *trust of land, governed by the Trusts
of Land and
Appointment of Trustees Act 1996.See SETTLED LA.ND.
life peerage A nonhereditary peerage of the rank of baron or
baroness created by
the Crown by letters patent under the Life Peerages Act 1958. The
purpose of the
Act was to strengthen the composition of the House of Lords, and
there is no limit
to the number of peerages that may be created. The peerage of a
Lord of Appeal in
Ordinary is also for life but is not customarily included among
life peerages.
life policy A policy providing a formal embodiment of a contract of
"life
assurance. The benefit of a life policy can be assigned to a third
party.
life tenant See TENANT FOR LIFE.
lifting the veil The act of disregarding the veil of *incorporation
that separates
the personality of a corporation from the persoualities of its
members. This
exceptional course is occasionally sanctioned by statute, for
example in relation to
*wrongful trading or *fraudulent trading and inaccurate use of
company names,
when it may result in members of a limited conipany losing their
limited liability. It
is also employed by the courts, for example if incorporation has
been used to
perpetrate fraud or gives rise to unreal distinctions between a
company and its
subsidiary companies, but never so as to defeat limited liability.
Very occasionally
the courts openly disregard corporate personality but more often
they evade its
inconvenient consequences by deciding that the acts were performed
by the
corporation acting as agent or trustee for the company members, to
whom
therefore they should be attributed.
limitation of actions Statutory rules limiting the time within
which civil
actions can be brought. Actions in simple contract and tort must be
brought within
six years of the accrual of the *cause of action (in the case of
contracts, within six
years of the date of the contract). In actions in respect of land
and of contracts
made by deed the period is 12 years from the accrual of the cause
of action. Time
does not run against a party under a disability until the
disability ceases.
Special rules apply in the following cases. (1) If the claim is for
damages for
personal injury or death caused by negligence, nuisance, or breach
of duty, the limit
is three years from the accrual of the cause of action or (if
later) from the date
when the claimant knew of the relevant circumstances, but the court
has a
discretion to extend the period. (2) In other tort actions for
negligence the period is
six years from when the cause of action accrued or (if later) three
years from the
date when the claimant knew or should have known the material facts
about the
damage, but no action may be brought more than 15 years after the
date of the
defendant's alleged negligence. Changes in ownership of the
property damaged do
not extend the period. Each owner can sue but once time has started
to run against
one owner, it continues to run against his successors. (3) In
strict liability actions for
defective products (see PRODUCTS LIABILITY), the period is three
years from accrual of
the cause of action or (if later) the date when the claimant knew
or should have
known the material facts, but not later than ten years from when
the product was
put into circulation.
The present law is contained in the Limitation Act 1980,the Latent
Damage Act
1986,and the Consumer Protection Act 1987.
limited administration (special administration) The administration
of a
deceased person's estate for restricted purposes specified by the
court in the *lett~rs
of administration. Examples of such grants include grants *ad
colligenda bonaand
*durante absentiaand grants for the administration of an estate
during the minority
of a child appointed as executor by the will.
limited company A type of company incorporated by registration
under the
Companies Act whose members have a limited liability towards their
company. Most
companies are in this category. In a company limited by *shares,
members must pay
the nominal value (see AUTHORIZED CAPITAL) of their shares either
upon *allotment or
subsequently (see CALL). In a company limited by guarantee (a
guarantee company)
members must pay an agreed nominal amount (the guarantee), usually
£1-£5, to
their company in the event of a winding-up. The guarantee fund is
intended to be
for the benefit of company creditors when the company is wound up
and members'
liability to contribute to it cannot be reduced or extinguished by
the company.
Because payment of the guarantee is postponed guarantee companies
often lack a
working capital and are therefore more appropriate for charitable
or social purposes
than for trading.
The name of a limited company must end with the words "Limited" (or
"Ltd.") iII
the case of a private company and "public limited company" (or
"pic") in the case of
a public company (or their Welsh equivalents; see WELSH COMPANY) as
a warning to
creditors of the limit upon members' liability. See also CHANGE OF
NAME. Compare
UNLIMITED COMPANY.
limited executor A person appointed by a will to deal only with
specified
property, not the whole of the deceased's estate. Compare LIMITED
ADMINISTRATION.
limited liability partnership A legally recognized entity defined
under the
Limited Liability Partnership Act 2000,which is capable of entering
into contracts in
its own right and is correspondingly liable for debts under those
contracts. Any two
or more persons associated for carrying on a lawful business with a
view to profit:
may set up such a partnership under the Act. This type of business
organization i~
intended to combine the flexibility of a traditional *partnership
with the corporate
notion of limited liability. Under the provisions of the Act there
is power to apply
sections from both the Partnership Act 1890and the Companies Act
1985,as
appropriate, when dealing with the internal relations of the
partners and limited
liability, respectively. Persons intending to set up a limited
liability partnership
must register it with the *Companies Registry. There are also
several disclosure
requirements that are similar in nature to those required by
companies.
limited owner A *tenant for life or a *statutory owner of land
comprised in a
settlement.
limited owner's charge An equitable charge on land securing
repayment to a
*limited owner of inheritance tax paid by him to the Inland Revenue
on the
acquisition of his interest. The tax is normally payable out of the
trust property but
if the limited owner pays it personally (e.g. to avoid having to
sell land when the
trust money is insufficient to cover the tax) the charge arises to
secure his
reimbursement. The charge is registrable (see REGISTRATION OF
ENCUMBRANCES).
limited partnership See PARTNERSHIP.
Lincoln's Inn An *lnn of Court situated between Carey Street and
Holborn. The
records of the Inn, the Black Books, survive in a continuous series
from 1422 to the
present. By tradition, barristers practising in the *Chancery
Division of the High
Court normally belong to Lincoln's Inn.
linked transaction (under the Consumer Credit Act 1974) A
transaction (except
one for the provision of security) that is linked to, but not part
of, a *regulated
agreement (the principal agreement) and is entered into by a debtor
or hirer with
any other person. A linked transaction may comply with a term of
the principal
agreement (e.g. if the principal agreement requires that the goods
be insured with
X) or it may be financed by the principal agreement if the latter
is a "debtorcreditor-
supplier agreement. Alternatively it may be suggested by a creditor
or
owner to the debtor or hirer. The latter then enters into the
linked transaction
either to induce the creditor or owner to enter into the principal
agreement, or for
some other purpose related to the principal agreement, or - when
the principal
agreement is a *restricted-use credit agreement - for a purpose
related to a
transaction financed by the principal agreement.
liquidated damages See DAMAGES.
liquidated demand A demand for a fixed sum, e.g. a debt of £50.
Such a demand
is distinguished from a claim for unliquidated *damages, which is
the subject of a
discretionary assessment by the court.
liquidation n. See WINDING-UP.
liquidation committee A committee set up by creditors of a company
being
wound up in order to consent to the "liquidator exercising certain
of his powers.
When the company is unable to pay its debts, the committee is
usually composed of
creditors only; otherwise it consists of both creditors and
*contributories. See also
COMPULSORY WINDING-UP; VOLUNTARY WINDING-UP.
liquidator n. A person who conducts the *winding-up of a company.
Unless he is
the "official receiver, he must be a qualified *insolvency
practitioner. See also
COMPULSORY WINDING-UP; LIQUIDATION COMMITTEE; PROVISIONAL
LIQUIDATOR; VOLUNTARY
WINDING-UP.
lis alibi pendens [Latin] A suit pending elsewhere. The fact that
there is already
litigation pending between the same parties in respect of the same
subject matter
in another jurisdiction may give the defendant a ground on which he
can obtain a
*stay of proceedings. However, he must show that the continuance of
the English
action would cause an injustice to him and would not cause
injustice to the
claimant.
lis mota [Latin] A court action that has been set in motion.
lis pendens [Latin] A "pending action.
listed building A building of special architectural or historic
interest specified on
a list compiled or approved by the Secretary of State. Listed
buildings are graded
according to their importance. It may be demolished or altered in
character only
with listed-building consent granted by the local planning
authority (see TOWN AND
COUNTRY PLANNING) or the Secretary of State. See also BUILDING
PRESERVATION NOTICE;
CONSERVATION AREA.
listed company A company that has satisfied the listing rules of
the "Stock
Exchange and whose shares may therefore be quoted and traded on the
Listed
Market. Listed companies are subject to continuing obligations of
disclosure to the
Stock Exchange.
Listed Market See STOCK EXCHANGE.
lists pl. n. Calendars of cases awaiting trial. A court may
maintain several lists
comprising different types of case. Thus in the High Court there is
the Queen's
Bench nonjury list, the jury list, the "short cause list, etc. A
case enters the list after
it has been allocated for trial.
literal rule See INTERPRETATION OF STATUTES.
litigant n. A person who is a party to a court action. A litigant
may present his
case personally to the court. If he does so, he may be assisted by
a friend who can
take notes and advise but cannot assist in the actual presentation
of the case (a
McKenzie friend). Alternatively, a litigant may be represented by a
"barrister or,
where appropriate, a "solicitor. A successful litigant can usually
claim his legal
"costs from his opponent. If the litigant did not have legal
representation he may
claim costs for the work he has done himself that would otherwise
have been
carried out by a lawyer.
litigation n. 1. The taking of legal action by a "litigant. 2. The
field of law that is
concerned with all contentious matters.
litigation friend An adult responsible for the conduct and cost of
legal
proceedings instituted on behalf of, or against, a child or a
mentally disordered
person. Before the introduction of the Civil Procedure Rules in
1999 such a person
was called a next friend. See also OFFICIAL SOLICITOR.
lives in being See RULE AGAINST PERPETUITIES.
livestock See CLASSIFICATION OF ANIMALS.
living apart The condition required to establish "desertion or
separation as
evidence that a marriage has irretrievably broken down (see
DIVORCE). A couple may
be living apart for divorce purposes even when living under the
same roof, if they
are living in separate households. In order to satisfy this test,
all form of common
life between the parties must have ceased.
living instrument See INSTRUMENT.
living memory The period over which the recollection of living
people extends.
Compare LEGAL MEMORY.
living on immoral earnings Using money obtained from prostitution
for one'S
livelihood or upkeep. It is an offence punishable by up to seven
years' imprisonment
for a man (but not for a woman) to knowingly live on the proceeds
of female
prostitution. The offence is normally committed by a man who lives
with a
prostitute and is wholly or mainly kept by her or by a man who runs
a "brothel or
in any other way forces or helps a prostitute to commit
prostitution. In all these
cases he is assumed to be knowingly living on her immoral earnings
unless he can
prove that he is not. The offence also covers supplying goods or
services that relate
only to prostitution (e.g.advertising for pay the names and
addresses of prostitutes
or driving them and their clients to places where they might have
intercourse). The
offence does not include selling ordinary items to prostitutes
or renting them
accommodation (unless this is used only for prostitution or a
higher rent is charged
because they are prostitutes). It is also an offence for either a
man or a woman to
knowingly live on the proceeds of male prostitution, and it is an
offence for one
woman to force another into prostitution or to aid her prostitution
for financial
gain.
living together See COHABITATION.
U See LORD JUSTICE OF APPEAL.
Lloyd's A society of *underwriters that was incorporated by Act of
Parliament in
1871. Originally Lloyd's only provided marine insurance but they
now also provide
other kinds. The *insurance is undertaken by syndicates of private
underwriters
(names), each of which is managed by a professional underwriter;
since 1992 limited
companies have been allowed to become names. Each name underwrites
a
percentage of the business written by the syndicate and has to
deposit a substantial
sum with the corporation before being admitted as an underwriter.
The public deals
with the underwriters only through Lloyd's brokers.
loan capital Money raised by a company issuing *debentures. The
aggregate
amount borrowed by the company with each issue is sometimes
referred to as
stock.
loan creditor A creditor of a company, such as a person who holds
redeemable
*loan capital issued by the company. For the purposes of tax law,
loan creditors
(other than banks) are participators in *close companies.
local Act See ACT OF PARLIAMENT.
local authority A body of councillors elected by the inhabitants of
a local
government area (see FRANCHISE) to exercise local government
functions. In England
(except *Greater London and the metropolitan county areas) county
areas are
governed either by *county councils and *district councils (in a
two-tier system) or
by *unitary authorities (single-tier system); this mixed system of
local government
was introduced between 1996 and 1998,which resulted in the
reorganization of some
local government areas. There are in addition *parish councils for
parishes with 200
or more electors. In Wales the local authorities are the county
council, the county
borough council, and the *community council. The Welsh county and
county
borough councils are unitary authorities.
All councillors are elected for four years. County councillors are
elected every
fourth year counting from 1981, and parish and community
councillors every fourth
year from 1979. Metropolitan district councillors are elected by
thirds, one in each
year other than a former county council year, and other district
councillors
according to whether their council has opted for this method or for
simultaneous
election in every fourth year from 1979. A candidate for election
to any local
authority must be over 21 and a commonwealth citizen or citizen of
the Republic of
Ireland, must have sufficient local connection (e.g. residence,
local employment, or
voting rights), and must not be disqualified (e.g.by reason of
being a bankrupt or
holding paid employment under the authority).
Localauthorities and children. Local authorities have statutory
responsibilities for
children in their area. The Children Act 1989 requires local
authorities to provide
services for *children in need so that wherever possible they may
be brought up by
their own families, thus avoiding the need for instituting care
proceedings. The Act
specifies certain services that local authorities must provide.
These include:
appropriate day care provision for under fives and after school and
holiday activities
for children of school age; advice, guidance, and counselling; home
help; transport or
assistance with travel expenses in order to use any of the services
provided and
assistance with holidays; and family centres for all children in
their area. Local
authorities are also under a duty to provide accommodation for
children whose
parents are unable to do so (see VOLUNTARY ACCOMMODATION). An
important objective
of the Children Act is to promote the provision of these services
as positive help for
children in need. Emphasis is placed on the need for local
authorities and families to
work in partnership and often on the basis of written agreements.
Local authorities
also have a duty to investigate when they suspect that children in
their area are
being ill treated or neglected. If their suspicions are confirmed
they must apply for
a *care order, an *emergency protection order, or a *supervision
order, as
appropriate (see also SECTION 47 ENQUIRIES). In relation to
adoption, local authorities
are obliged to maintain an *adoption service and to report to the
court in respect of
non-agency adoption applications.
local government A form of government in which responsibility for
the
regulation of certain matters within particular localities (*local
government areas) is
delegated by statute to locally elected councillors (see LOCAL
AUTHORITY).
local government area An area constituting a unit for local
government
purposes. The local government areas in England (except *Greater
London) are the
*county, the *district, and the *parish. In certain parts of
England *unitary
authorities replaced nonmetropolitan county and district councils
between 1996and
1998,which resulted in the reorganization of some local government
areas. In Wales
the areas are the county, the county borough, and the *community;
counties and
county boroughs, which are administered by unitary authorities,
replaced the twotier
system of counties and districts in April 1996.
local government boundary commissions Two bodies established by
the
Local Government Act 1972 to undertake regular reviews of local
government areas
in England and Wales, respectively, and to propose alterations
designed to improve
the effectiveness and convenience of local government. Under the
Local Government
Act 1992 they were replaced by the *Local Government Commission for
England and
the Local Boundary Commission for Wales.
Local Government Commissioners See COMMISSIONS FOR LOCAL
ADMINISTRATION.
Local Government Commission for England A body, established under
the
Local Government Act 1992,consisting of a Chairman and Chief
Executive appointed
by the Secretary of State for the Environment; the Chairman is
empowered to
appoint staff. The Commission was charged with the review of *local
government
areas in accordance with the directions of the Secretary of State.
It can recommend
structural changes - the replacement in any nonmetropolitan area of
the two
principal tiers of local government with a single tier (see UNITARY
AUTHORITY);
boundary changes; and electoral changes, such as changes in the
number of
councillors of the council for that area and the name of the
area.
local land charge See LAND CHARGE; REGISTRATION OF
ENCUMBRANCES.
local land charges register See REGISTRATION OF ENCUMBRANCES.
local laws Laws applying in only one locality, such as the area of
a local authority
(see BYELAW). In 1996 the Law Commission published a four-volume
Chronological
Table of Local Legislation to help those wanting to find out
whether a local Act has
been passed that affects them or their property. The table lists
all 26,500or so local
Acts passed since 1797and states whether or not they are in
force and how they
have been amended.
local lottery See LOTTERY.
lock-out agreement A contract between a potential purchaser and the
vendor of
a property in which the vendor agrees that for a fixed period, such
as two weeks, he
will take the house off the market and not accept any other offers.
Meanwhile the
purchaser moves towards a quick *exchange of contracts, with the
aim of securing
the sale within that period. If the vendor breaches the agreement
by accepting
another offer, he can be sued for *breach of contract. Many vendors
will not accept
such agreements and some lawyers have argued they are
unenforceable.
locus sigilli [Latin: place of the seal) See DEED.
locus standi [Latin: a place to stand] The right to bring an action
or challenge
some decision. Questions of locus standi most often arise in
proceedings for *judicial
review.
lodger n. A person who is given occupation of part of a house in
return for rent,
where the premises remain under the close control of the owner. A
lodger normally
has a mere *licence rather than a tenancy.
loitering n. See sus LAW.
London See CITY OF LONDON; GREATER LONDON.
London Assembly A component of the *Greater London Authority,
created by
the Greater London Authority Act 1999, consisting of 25 members, of
whom 14 are
*Constituency Members and 11are *London Members. The principal
functions of
the Assembly are to review and investigate actions and decisions of
the *Mayor of
London and to submit proposals to the Mayor. It may amend the
Mayor's budget and
it provides members to serve on the Metropolitan Police Authority,
the London Fire
and Emergency Planning Authority, and the London Development
Agency.
London borough See GREATER LONDON.
London Development Agency A body created by the Greater London
Authority
Act 1999to further the economic development of London, by promoting
business
efficiency and investment.
London Members Members of the *London Assembly who jointly
represent the
"Londonwide" constituency. The 11London Members are elected every
four years in
May by voters in London, at the same time as *Constituency Members
and the
*Mayor of London are elected.
long tenancy For statutory purposes, a *fixed-term tenancy for a
period
exceeding 21 years. Where the rent is less than two-thirds of the
property's rateable
value, the tenancy is excluded from being an *assured tenancy.
However, it will
qualify for special protection if it would have been a *protected
tenancy had the
rent not been a low one. This allows the tenant to continue the
tenancy beyond the
fixed term. In such cases, if the landlord wishes to terminate the
tenancy at the end
of the fixed term, he must serve a statutory notice at least 6
months, but not more
than 12 months, before the end of the tenancy. In this notice he
can either propose a
*statutory tenancy (the terms of which must be agreed with the
tenant or settled
by a court) or he can claim the right to resume possession of the
premises. In the
latter case he must have statutory grounds for possession, which
correspond to
those required for possession of a protected tenancy. If the tenant
contests this
notice, the landlord must apply for a court order for possession.
If this is refused,
the tenant will be entitled to a statutory tenancy. Long tenancies
made after the
coming into force of the Housing Act 1988are not protected in this
way because no
new protected tenancies can be made after that date. See
alsoENFRANCHISEMENT OF
TENANCY.
long title See ACT OF PARLIAMENT.
Long Vacation A *vacation of the Supreme Court lasting from 1
August to 30
September. During the Long Vacation only certain kinds of urgent
business (called
vacation business) can be transacted. It was formerly the rule in
the High Court
that statements of case could not be served during the Long
Vacation, but this rule
has now been abolished.
Lord Advocate The chief law officer of the Crown in Scotland,
corresponding to
the *Attorney General in England. He has ultimate responsibility
for criminal
prosecutions in Scotland, being assisted by a Solicitor General,
advocates depute, and
*procurators fiscal. He is normally a supporter of the ruling party
and resigns his
office upon a change of government, but he is not always a Member
of Parliament.
Lord Chancellor The head of the judiciary, a government minister
(in charge of
the Lord Chancellor's Department), and Speaker of the House of
Lords. He thus
combines judicial, executive, and legislative functions. He is
entitled to preside over
the House when it sits as a final court of appeal; he appoints
magistrates, makes
recommendations for higher judicial appointments, and oversees such
matters as the
administration of the courts, the Community Legal Service, law
reform, data
protection, and human rights. As Speaker, he normally presides from
the Woolsack
over legislative proceedings but is free to vacate his seat and
take part in debates
and divisions. He is appointed by the Crown on the advice of the
Prime Minister and
(since 1974) may be a Roman Catholic. Conduct
Lord Chancellor's Advisory Committee on Legal Education and
Conduct
A committee established by the Courts and Legal Services Act 1990
to assist in the
maintenance and development of standards in the education,
training, and conduct
of those offering legal services. It consists of a senior member of
the judiciary as
chairman, practising and academic lawyers, and lay members.
Lord Chief Justice (LCJ) The chief judge of the *Queen's Bench
Division of the
High Court. He ranks second only to the Lord Chancellor in the
judicial hierarchy. It
was formerly the practice to appoint the Attorney General when a
vacancy in the
office occurred but this practice has now been abandoned and recent
LC]s have been
either *Lords Justices of Appeal or *Lords of Appeal in Ordinary on
appointment.
The LC]is ex officio a member of the Court of Appeal and is
President of its
Criminal Division.
Lord Justice of Appeal (U) An ordinary judge of the *Court of
Appeal. The Lord
(and Lady) Justices (LJJ) are normally appointed from those holding
the post of a
High Court judge or those possessing a ten-year High Court
qualification under the
Courts and Legal Services Act 1990.They become members of the Privy
Council on
appointment.
Lords, House of See HOUSE OF LORDS.
Lords of Appeal in Ordinary (Law Lords) Up to 11 persons, holders
of high
judicial office or practising barristers of at least 15 years'
standing, who are
appointed to life peerages under the Appellate Jurisdiction Act
1876 to carry out the
judicial functions of the *House of Lords.
loss leader A product or service offered for sale by an
organization at a loss in
order to attract customers. The Competition Act 1998 prohibits
*predatory pricing
by dominant companies, as does Article 82 of the Treaty of Rome.
Nondominant
companies, however, are largely free to set their own resale
pricing policy. See also
RESALE PRICE MAINTENANCE.
loss of amenity Loss or reduction of a claimant's mental or
physical capacity to
do the things he used to do, suffered as a result of personal
injuries. In actions for
personal injuries the claimant may recover damages for loss of the
amenities of life,
in addition to his financial losses and an award for *pain and
suffering. Thus loss of
the ability to play games or a musical instrument, if these were
the claimant's
hobbies, will be taken into account in fixing damages. The
assessment is based on an
objective view of the value of the loss of these amenities to the
claimant.
loss of services An action in tort (per quod servitium amisit)
could formerly be
brought against someone who had caused a parent to be deprived of
the services of
a child or a master to be deprived of the services of a menial
servant. Both forms of
action were abolished by the Administration of Justice Act
1982.
lost modern grant A legal fiction by which a court will uphold a
claim to an
easement over another's land by presuming it to have been created
by a formal
*grant (i.e. a deed) that has been lost, if the claimant can show
20 years'
uninterrupted exercise of the easement as of right (i.e. other than
as a *licensee).
The claim can be defeated only by proof that the grant could not
have been made at
any time during the period of use; for example, if the *servient
tenement was at all
relevant times owned by someone with no power to grant easements.
The doctrine
may only be pleaded if something prevents the plea of common law
*prescription.
lottery n. A game of chance in which the participants buy numbered
tickets and
the prizes are distributed by drawing lots. Under the Lotteries and
Amusements Act
1976, lotteries are usually illegal (see also GAMING) unless they
are: (1) on behalf of
registered charities or sports, (2) restricted to members of a
private club, (3) local
lotteries; promoted in accordance with schemes approved by local
authorities and
registered with the Gaming Board, or (4)small lotteries that take
place as part of an
entertainment (e.g. in a bazaar or at a dance). The National
Lottery was established
by statute (the National Lottery Act 1993).
lump-sum award The form in which damages are given by a court. The
award
covers both past losses (up to the time of judgment) and losses
likely to be suffered
in the future. The general rule is that only one award of damages
may be made,
unless the wrong is a continuing one (such as continuing trespass
or nuisance).
However, *interim payments can be ordered pending the final
estimation of
damages, and in actions for personal injuries in which the claimant
may develop
some serious disease or suffer some serious deterioration in his
condition,
*provisional damages may be given. This enables the claimant to
come back for
further damages at a future date if the disease or deterioration
occurs. Settlements
of personal injury cases out of court can include periodic payments
as well as a
lump sum as part of a *structured settlement.
M
Maastricht Treaty The Treaty on European Union, which was signed
at
Maastricht (in the Netherlands) in February 1992and came into force
on 1 November
1993.The Treaty amended the founding treaties of the three
*European
Communities by establishing a *European Union based on these
Communities. It
required the defining and eventual implementation of a common
foreign and
security policy (CFSP), cooperation in justice and home affairs,
and - under certain
conditions - the introduction of a single currency (see EUROPEAN
MONETARY UNION). It
also introduced the principle of *subsidiarity and increased the
powers of the
*European Parliament. It has since been amended by the *Amsterdam
Treaty.
machinery and plant The machines, parts of machines, and all other
apparatus
used for carrying on a business, but excluding stock in trade.
Capital expenditure on
machinery and plant is eligible for *capital allowances.
McKenzie friend [from the case McKenzie v McKenzie (1971)1 A person
who sits
beside an unrepresented *litigant in court and assists him by
prompting, taking
notes, and quietly giving advice.
McNaghten Rules (M'Naghten Rules) See INSANITY.
magistrate n. A *justice of the peace sitting in a *magistrates'
court. Most
magistrates are lay persons and have no formal legal
qualifications: they receive no
payment for their services but give their time voluntarily. There
are also, however,
*district judges (magistrates' court) (formerly called stipendiary
magistrates) in
London and other major cities.
magistrates' clerk See CLERK TO THE JUSTICES.
magistrates' court A court consisting of between two and seven
*magistrates or
a single *district judge (magistrates' court) (formerly called
stipendiary magistrate)
exercising the jurisdiction conferred by the Magistrates' Courts
Act 1980and other
statutes. The principal function of magistrates' courts is to
provide the forum in
which all criminal prosecutions are initiated. In the case of an
*indictable offence or
an *offence triable either way for which the defendant elects
*trial on indictment,
the court sits as *examining justices to consider whether or not
there is sufficient
evidence to justify committing the defendant to the *Crown Court.
For a *summary
offence or an offence triable either way in which the defendant
elects *summary
trial, the court sits as a court of summary jurisdiction, i.e. as a
criminal court of
trial without a jury in which justices, assisted by the *clerk to
the justices, decide all
questions of law and fact.
Magistrates' courts also have a limited jurisdiction in civil
matters relating to debt
and matrimonial proceedings. Each magistrates' court sits for a
petty-sessionsarea
and its jurisdiction is generally confined to that area, although
it may in some cases
extend beyond. A magistrates' court may sit on any day of the year,
including (if the
court thinks fit) Christmas Day, Good Friday, or any Sunday, but in
practice it is
unusual for magistrates' courts to sit on public holidays or at
weekends.
Magna Carta The Great Charter of Runnymede, acceded to by King John
in 1215
after armed rebellion by his barons. It guaranteed the freedom of
the church,
restricted taxes and fines, and promised justice to all. Confirmed
frequently by
subsequent feudal kings, it has since been largely repealed as
having only symbolic
significance.
main purpose rule See REPUGNANCY.
main residence For the purposes of *enfrancllisement of a tenancy,
a dwelling in
which the tenant has lived for at least the last three years or for
periods amounting
to three years in the last ten years. Whether or not the dwelling
has in fact been his
main residence is also considered in each case. For the purposes of
*capital gains tax
there is an exemption for gains on the disposal of owner-occupied
homes. If an
individual has more than one residence he may Dominate the one that
he wishes to
qualify for exemption.
maintenance n. The provision of food, clothing, and other basic
necessities of life.
A husband or wife is obliged to maintain his or her spouse (see
FAILURE TO MAINTAIN).
Parents are bound at common law to maintain their minor children,
and since the
Family Law Reform Act 1987and the Child Support Act 1991 both
parents, whether
married or not, have a legal responsibility to support their
children financially if
they can afford to do so (see CHILD SUPPORT MAINTliNANCE). Neglect
or refusal to
provide this maintenance is a criminal offence.
Before 1881it was common for settlements to include a power for the
trustees to
maintain and educate minors. Since then, a statutory power has
existed enabling
trustees to pay money for the maintenance, education, or benefit of
a minor; this
-power is subject to an)' contrary prcvtston in the
settlement.
The obligation after a divorce of one spouse to support another or
of a parent to
support a child of the family is often referred to as maintenance;
this is more
correctly known as financial provision or *financial relief.
maintenance agreement An agreement between spouses concerning
their
financial obligations to one another. Maintenance agreements are
governed by the
provisions of the Matrimonial Causes Act 1973. Any clause that
attempts to deny the
right of either spouse to apply to a court for financial relief
will be void, and the
county courts and High Court (and, to a more limited extent, the
magistrates'
courts) have wide powers to vary the terms of maintenance
agreements (see also
MARRIAGE SETTLEMENT). When one party has died the other spouse may
apply to the
court, under the special provisions for *dependants, to have the
terms of the
agreement altered, but only if it was in writing.
maintenance and champerty The promotion or support of litigation by
a third
party who has no legitimate interest in the proceedings
(maintenance) and the
support of litigation by a third party in return for a share of the
proceeds
(champerty, an aggravated form of maintenance). The old crimes and
torts of
maintenance and champerty were abolished by statute in 1967 but a
champertous
agreement may still be treated as contrary to public policy and so
unlawful. An
agreement by a lawyer to receive payment in the form of a share of
the client's
damages (if successful) is regarded as champertous in England, but
a modified form
of "no win, no fee" agreement was legalized by the Courts and Legal
Services Act
1990, although it is authorized only for certain categories of
cases (see CONDITIONAL
FEE AGREEMENT).
maintenance order A court order providing for payment of sums for
the
maintenance of a spouse or a child of the family. Strictly speaking
the term now
applies only to <maintenance agreements incorporated into a
court order; orders in
the magistrates' courts or High Court on the ground of *failure to
maintain and
orders in the divorce courts for maintenance are now called
*financial provision
orders. Power to order payment by direct debit or standing order
was introduced by
the Maintenance Enforcement Act 1991.
Spouses may try to evade their financial obligations to each other
or their
children by emigrating. In such cases the Domestic Proceedings and
Magistrates'
Courts Act 1978and the Maintenance Orders (Reciprocal Enforcement)
Act 1972grant
powers to obtain maintenance from emigrant spouses in certain
designated
("convention") countries. For these purposes maintenance orders
include any order
providing for periodical payments to a person whom the payer is
liable to maintain,
including children of unmarried parents. The Child Support Act
1991has greatly
curtailed the power of the court to make, vary, or revise
maintenance orders;
application solely for *child support maintenance must now usually
be made to the
Child Support Agency rather than the court.
maintenance pending suit A court order for temporary periodical
payments
during the hearing of a petition for divorce, nullity, or judicial
separation.
majority (full age) n. The age of 18 years. The state of being
below that age is a
state of minority (see INFANT). The age of majority was originally
21 years, but was
reduced to 18 by the Family Law Reform Act 1969. This majority
applies for the
purposes of any relevant legal rule and for the interpretation of
any relevant
statute, whenever it was made. It does not apply, however, to
deeds, wills, and other
private documents made before 1969,in which reference is made to
majority or
minority.
majority rule The principle by which the majority of company
members has the
power to control the company through voting at a company meeting.
There are
various ways to safeguard the minority (see MINORITY PROTECTION).
The rule does not
apply when the actions taken by those in control of the company
(e.g. *directors)
require more than a simple majority vote to authorize them; for
example, altering
the *articles of association, which requires approval by 75% of
shareholders who
attend a *general meeting and who are entitled to vote (see
ORDINARY RESOLUTION;
SPECIAL RESOLUTION). See alsoFRAUD ON THE MINORITY.
majority verdict The verdict of a *jury reached by a majority. The
verdict need
not be unanimous if there are no fewer than 11 jurors and 10 of
them agree on the
verdict or if there are 10 jurors and 9 of them agree on the
verdict. The jury must
be given at least two hours in which to reach a unanimous verdict
and the foreman
of the jury must state in open court the number of jurors who
respectively agreed
to and dissented from the majority verdict. Majority verdicts can
be taken in both
criminal and civil cases.
making off without payment Leaving without paying for goods or
services
received and with the intention of avoiding payment, when payment
on the spot is
expected. This is now an offence punishable by up to two years'
imprisonment, but
it must be proved that the person who made off knew that payment on
the spot
was expected. It will usually cover such behaviour as walking out
of a restaurant
after having had a meal, without paying (even if there was
originally no intention
not to pay for the meal, and therefore no theft, and no *deception
when the meal
was ordered); taking a taxi and disappearing without paying; and
collecting any
items from a shop that has repaired or cleaned them, without
paying. See also
SHOPLIFTING.
male issue Direct descendants through the male line, e.g. sons and
sons of sons
(but not sons of daughters).
malfeasance n. An unlawful act. Compare MISFEASANCE;
NONFEASANCE.
malice n. 1. (in criminal law) A state of mind (see MENS REA)
usually taken to be
equivalent to *intention or *recklessness: it does not require any
hostile attitude.
Malice is said to be transferred when someone intends to commit a
crime against
one person but in fact commits the same crime against someone else
(for example,
if he intends to shoot X but misses, and instead kills Y). Malice
is universal (or
general) when the accused has no particular victim in mind (for
example, if he
shoots into a crowd intending to kill anyone). In both cases this
constitutes mens
rea. 2. (in tort) A constituent element of certain torts. In the
English law of tort, the
general rule is that a malicious motive cannot make conduct
unlawful if it would
otherwise be lawful. For example, a right to take water from under
one's own land
can lawfully be exercised solely in order to cause damage to a
neighbour. However,
in some cases malice can be relevant. An action for *malicious
prosecution requires
proof that the prosecution was instigated maliciously, i.e. without
reasonable and
probable cause. In *defamation, a malicious motive invalidates the
defences of fair
comment and qualified privilege. Malice is also relevant to
liability for *conspiracy
to injure someone.
malice aforethought The *mens rea (state of mind) required for a
person to be
guilty of murder. It is unnecessary for there to be any element of
hostility (see
MALICE) or for the intention to kill to be "forethought" (i.e.
premeditated). The term
covers (1) intention to kill (direct express malice aforethought),
(2)intention to
cause *grievous bodily harm (direct implied malice aforethought),
(3) realizing
while doing a particular act that death would almost certainly or
very probably
result (indirect express malice), and (4) realizing that grievous
bodily harm would
very probably result from the act, e.g. shooting at someone without
intending to kill
him, but realizing that he may at least suffer a serious injury
(indirect implied
malice). The prosecution must prove one of these four types of
malice aforethought
to secure a conviction of murder.
malicious damage Formerly (before 1971), *criminal damage.
malicious falsehood (injurious falsehood) A false statement, made
maliciously,
that causes damage to another. The oldest forms of this tort are
*slander of title
and *slander of goods, but other false and malicious statements
(e.g. that a
businessman has ceased to trade) can also give rise to an action in
tort. Usually
actual damage must be proved. Malicious falsehood can overlap with
*defamation,
but mainly protects property and business interests.
malicious prosecution The malicious institution of legal
proceedings against a
person. Malicious prosecution is only actionable in tort if the
proceedings were
initiated both maliciously and without reasonable and probable
cause and they were
unsuccessful. No one who has been convicted of a criminal charge
can sue for
malicious prosecution. Making unjustified threats of infringement
of trade mark or
other *intellectual property rights is also a statutory offence;
the person accused of
this can apply to the court for a *declaration that they do not
infringe these rights.
malicious wounding See WOUNDING.
management order A court order to appoint a manager for which
certain
tenants of flats have the right to apply if the court is satisfied
that mismanagement
has taken place. There are proposals for this right to be extended
to tenants even
where there is no mismanagement if at least two-thirds of the
tenants in a block of
flats wish to create a private limited company (an RTM company) to
manage the
block instead of the landlord.
managing director A *director to whom management powers have
been
delegated, either absolutely or subject to supervision, by the
other directors of the
company under the terms of the articles of association. Managing
directors are
agents of the company and have wide authority to act on its
behalf.
managing trustee See CUSTODIAN TRUSTEE.
mandate n. 1. (in private law) An authority given by one person
(the mandator) to
another to take some course of action. A mandate is commonly
revocable until acted
upon and is terminated by the death of the mandator. A cheque is a
mandate from
the customer to his bank to pay the sum in question and to debit
his account. 2. (in
international law) The system by which dependent territories (such
as the former
German colonies in Africa) were placed under the supervision (but
not the
sovereignty) of mandatory powers by the League of Nations after
World War 1.
After World War II, all remaining mandated territories became
*trust territories
under the United Nations with the exception of South-West Africa
(now Namibia)
and a strategic trust area consisting of a number of Pacific
Islands north of the
equator, which were administered by the USA. The mandate over
Namibia was
terminated by the General Assembly of the UN in 1966,which placed
the territory
under the direct responsibility of the United Nations; it became an
independent
state in 1990. The Pacific Islands territories are also now
independent states.
mandatory injunction See INJUNCTION.
mandatory order A *prerogative order from the High Court
instructing an
inferior tribunal, public official, corporation, etc., to perform a
specified public duty
relating to its responsibilities (see also JUDICIAL REVIEW); for
example, an instruction to
a statutory tribunal to hear a particular dispute. Formerly called
mandamus (from
Latin: we command), it was renamed in 1999 under Part 54.1of the
Civil Procedure
Rules.
Manor of Northstead See CHILTERN HUNDREDS, STEWARDSHIP OF
THE.
mansion house See PRINCIPAL MANSION HOUSE.
manslaughter n. Homicide that does not amount to the crime of
murder but is
nevertheless neither lawful nor accidental. Manslaughter may be
committed in
several ways. It may arise if the accused is charged with murder
and had the mens
rea required for murder (see MALICE AFORETHOUGHT), but mitigating
circumstances
(*diminished responsibility, a *suicide pact, or *provocation)
reduce the offence to
manslaughter; this is known as voluntary manslaughter. It may also
be committed
when there was no mens rea for murder in one of two situations: (1)
if the accused
committed an act of *gross negligence or (2) if the act, although
not negligent, was
criminally illegal and also involved an element of danger to the
victim: For example,
it would be manslaughter to knock some bricks off a bridge into the
path of a train
(*criminal damage), killing the driver, even if one had no idea
that there was a train
in the area. Such cases are known as involuntary manslaughter.
There are
generally four types of involuntary manslaughter, although the
distinction between
them remains unclear: negligent manslaughter, constructive
manslaughter,
reckless manslaughter, and corporate manslaughter. The maximum
punishment
for manslaughter is life imprisonment, although this is rarely
imposed; however, the
Crime (Sentences) Act 1997 provides for a mandatory life sentence
for those
convicted of manslaughter for a second time (see REPEAT OFFENDER).
Most cases of
*causing death by dangerous driving and *causing death by
careless driving are
usually not charged as manslaughter but as special statutory
offences under the
Road Traffic Act 1991. However, in certain circumstances causing
death by dangerous
driving may amount to reckless manslaughter.
mansuetae naturae See CLASSIFICATION OF ANIMALS.
Mareva injunction See FREEZING INJUNCTION.
margin of appreciation A concept created by the European Court of
Human
Rights to allow a certain amount of freedom for each signatory
state to regulate its
own activities and its application of the *European Convention on
Human Rights
without being subject to review by the Court. This freedom is not
available to
national courts when considering Convention issues arising within
their own
countries. However, in some cases the domestic courts, when
reviewing decisions of
public authorities under the Convention, may defer on democratic
grounds to those
elected bodies (see DISCRETIONARY AREA OF JUDGMENT).
marine insurance A form of *insurance in which the insurer
undertakes to
indemnify the insured against loss of the ship (hull insurance),
the cargo, any sums
paid in freight (freight insurance), or any liability to a third
party occurring during
a sea voyage. A marine insurance contract may be extended to losses
on inland
waters or to risks on land that may be incidental to a sea voyage.
The risks listed in
marine insurance policies include *perils of the seas, fire, war
perils, pirates,
seizures, restraints, jettisons, and *barratry, and the cover may
be for a particular
voyage, or for a specified time, or both (see TIME POLICY). In
marine insurance a
distinction is made between an *actual total loss and a
*constructive total loss;
partial loss is subject to *average. The law relating to marine
insurance is codified
by the Marine Insurance Act 1906.Under this Act marine insurance
contracts that
are by way of being wagering or *gaming contracts are void; these
include contracts
in which the insured has no insurable interest as defined in the
Act.
mariner's will See PRNILEGED WILL.
marital breakdown The deterioration of a marriage to such an extent
that the
court will grant a *divorce. The breakdown must be irretrievable.
Under the
Matrimonial Causes Act 1973 this can be evidenced only by
*adultery, *desertion,
*living apart, or *unreasonable behaviour.
marital privileges Privileges protecting information given by one
spouse to the
other from disclosure in court. In general, the privilege has now
been abolished in
both civil and criminal proceedings. However, in civil proceedings
a person may still
not be compelled to disclose a statement made by his (or her)
spouse with a view to
effecting a reconciliation between them. Nor may someone be
compelled to give
evidence that could incriminate his (or her) spouse, subject to
some exceptions.
maritime lien See LIEN.
market n. A facility for the sale and purchase of goods. The
concept of an
available market is important in deciding the amount of damages for
breach of
contracts of sale of goods: it assumes that goods of the contract
description can be
sold at a market price fixed by supply and demand. The disappointed
buyer or seller
will usually, upon breach, make a substitute purchase or sale on
the market and his
damages will be the difference between the contract price and the
market price. See
also MARKET OVERT.
market maker See STOCK EXCHANGE.
market overt An open, public, and legally constituted market or
fair. When goods
were sold in market overt according to the usage of the market, the
buyer acquired
a good title to the goods, provided he bought them in good faith
and without notice
of any defect in the seller's title. This was one of the exceptions
to the general
principle of *nemo dat quod non habet,but it was abolished from 3
January 1995by
the Sale of Goods (Amendment) Act 1994.
market testing Testing a particular service to see which supplier -
in-house or
external - offers the best combination of value for money and
quality of service for
the user. Launched in 1991, it affects all public services,
including the health-care,
magistrates', and prison services. Under the Local Government Act
1999, certain
authorities are designated as *best value authorities, including
the police and fire
authorities. Under the Act, these authorities must have regard to
economy,
efficiency, and effectiveness when exercising their
functions.
marriage n. 1. The relationship between husband and wife. 2. A
ceremony, civil or
religious, that creates the legal status of husband and wife and
the legal obligations
arising from that status (see MARRIAGE CEREMONY). All marriages
must be registered
by an authorized marriage registrar. The minimum age for marriage
is 16 with
parental consent (18 without), and capacity to marry in general is
governed by the
law of *domicile of both parties before the marriage. Relationships
within which
marriage is prohibited are specified in the Marriage Act 1949, as
amended by the
Marriage (Prohibited Degrees of Relationship) Act 1986 (see
PROHIBITED DEGREES OF
RELATIONSHIPS). Parties to a marriage must be respectively male and
female as
determined at birth (sex-change operations have no legal effect),
must not be already
married to someone else (see BIGAMY; POLYGAMY), and must enter into
the marriage
freely. See also MARRIAGE BY CERTIFICATE.
marriage articles The clauses setting out the terms of a *marriage
settlement.
marriage brokage contract A contract in which one person
undertakes, for
financial gain, to arrange a marriage for another. Such contracts
are void because
they contravene *public policy.
marriage by certificate Marriage authorized by a certificate issued
by the
Superintendent Registrar of Births, Deaths, and Marriages. All
marriages other than
those solemnized in the Church of England must be authorized by a
certificate (or
certificate and licence - see MARRIAGE BY CERTIFICATE AND LICENCE);
marriages
solemnized in the Church of England may be authorized either by a
certificate or by
a religious procedure (e.g. *banns, common licence. or special
licence - see MARRIAGE
BY RELIGIOUS LICENCE). Notice must be given of the intended
marriage to the
Superintendent Registrar of the district(s) in which the parties
have lived for seven
days previously, together with a declaration that there are no
lawful obstacles to the
marriage and that all necessary consents have been obtained. This
notice is made
public for 21 days, to give members of the public the opportunity
to point out the
existence of a lawful obstacle, after which the Registrar must
issue a certificate. The
marriage must take place within three months from the day the
notice was entered
in the notice book.
marriage by certificate and licence Marriage authorized by a
certificate and
licence issued by the Superintendent Registrar. The main difference
between this
procedure and that of *marriage by certificate alone is its speed -
the marriage may
take place any time after 24 hours have elapsed from the day of
giving notice. This
procedure may also be used when only one party has been resident in
the district
(although the minimum period of residence is 15 days), and the
notice of intended
marriage need not be publicly displayed. The procedure costs
more than marriage by
certificate.
marriage by Registrar-General's licence Marriage authorized by a
licence
issued by the Registrar-General of Births, Deaths, and Marriages.
Marriage outside a
register office or registered building may now take place in
certain other licensed
venues, such as stately homes.
marriage by religious licence A marriage in the Church of England
based on
the grant of an ecclesiastical licence, rather than on publication
of *ba=s. A
common licence may be granted if one of the parties swears an
affidavit that he
believes there is no lawful impediment, that at least one of the
parties has been
resident in the parish for at least 15 days previously (or usually
worships at the
church), and that (in the case of a minor) the consent of each
parent with *parental
responsibility (or a person in whose favour a residence order is
made) has been
obtained. If no caveat is issued against the grant of a licence,
the ecclesiastical judge
will grant a licence and the marriage may take place immediately.
The Archbishop
of Canterbury may also grant a special licence authorizing a
marriage at any time
of the day or night in any church, chapel, or other convenient
place (even if
unconsecrated).
marriage ceremony The ceremony creating the status of marriage.
There are
four main types of marriage ceremony (excluding marriage in
military chapels). In a
civil marriage, the ceremony takes place in a register office or
other registered
venue, with open doors, in the presence of the Superintendent
Registrar (who
conducts the ceremony), a registrar (who supervises registration
formalities), and at
least two witnesses. Under the Marriage Act 1983, housebound and
detained persons
may get married where they reside.
In a Church of England marriage, the ceremony usually takes place
in church and
is celebrated by a clergyman in the presence of at least two
witnesses according to
the rite of the Book of Common Prayer (or any alternative
authorized form of
service). A clergyman may refuse to solemnize the marriage of
anyone whose
former marriage has been dissolved if the former spouse is still
living, or whose
marriage would have been void for *affinity of the parties before
the passing of the
Marriage (Prohibited Degrees of Relationship) Act 1986. The
marriage ceremony in
Quaker and Jewish marriages is governed by the rules of those
religions and need
not be celebrated in a registered building, or by an authorized
person, or in public.
All other religious marriage ceremonies must be celebrated in a
registered building
designated as a place of meeting for religious worship, with open
doors, and in the
presence of at least two witnesses and a registrar or previously
notified authorized
person.
marriage settlement A *settlement made between the parties to a
marriage. A
settlement made before the marriage ceremony is called an
antenuptial
settlement; that made after the marriage is a postnuptial
settlement. The
purpose of a marriage settlement is to provide an income for one
spouse or the
children, while securing the capital for the other spouse. The
courts have power
when giving decrees of divorce, nullity, or judicial separation
either to order
property owned by one spouse to be settled for the benefit of the
other spouse and
children or to vary the terms of any existing ante- or postnuptial
settlement. This
power is often used to retain the use of the matrimonial home until
the children
are independent, as well as to retain the parents' financial
investment.
marshalling of assets A process in which the claims of different
creditors are
directed towards different funds of the same debtor in an attempt
to reach a fair
result. When there are two creditors and two funds, and one has a
claim exclusively
on one fund but the other can claim against either fund, the rule
of marshalling
requires the latter to claim against the fund from which the former
is excluded.
The aim is, so far as possible, to allocate the assets so as to
satisfy all the creditors.
marshalling of securities An application of *marshalling of assets.
If A
mortgages two properties to B and then mortgages one of the
properties in addition
to C (who mayor may not know of B's mortgage) B,as first mortgagee,
may obtain
his money from whichever mortgaged property he chooses. However, if
he chooses
to obtain his money from the property mortgaged to C, C may if
necessary obtain
his money from the other property. This right cannot be exercised
when a
purchaser has obtained the property without knowing of the facts
giving rise to the
right to marshal.
Martens clause A clause that was included in the Hague Conventions
of 1899 and
1907 by the Russian delegate, Friedrich von Martens (1845-1909),
and has since then
been included in many other treaties. It states that anything not
proscribed by the
regulations of the treaty will be subject to the international law
and will therefore
not necessarily be permissible; it also allows the regulations of
the treaty to keep
pace with the consequences of modern developments in warfare.
martial law Government by the military authorities when the normal
machinery
of government has broken down as a result of invasion, civil war,
or large-scale
insurrection. The constitution of the UK does not provide for a
declaration (with
specified consequences) of martial law; it is no more than a
situation capable of
arising. While the military authorities are restoring order, their
conduct could not
be called into question by the ordinary courts of law. After the
restoration of order,
the legality of their actions would be theoretically capable of
examination, but the
standards that would be applied by the courts are unknown. Martial
law should not
be confused with military law (see SERVICE LAW); any courts held by
the military
authorities to try civilians during a state of martial law would
not enjoy the status
of courts martiaL
master n. 1. One of the *Masters of the Supreme Court or the
Masters of
the Bench (see BENCHERS). 2. The person having command or charge of
a vesseL
3. Formerly, an *employer. See alsoEMPLOYER AND EMPLOYEE.
Master of the Rolls (MR) The judge who is president of the Civil
Division of the
*Court of AppeaL The office is an ancient one and was originally
held by the keeper
of the public records. Later the holder was a judge of the Court of
Chancery and
assistant to the Lord Chancellor, with his own court, the Rolls
Court. Since 1881 he
has been a judge of the Court of Appeal only, but retains important
duties in
relation to public records. He also admits solicitors to
practice.
Masters of the Bench See BENCHERS.
Masters of the Supreme Court Inferior judicial officers of the
*Queen's Bench
and *Chancery Divisions of the High Court. Their principal function
is to supervise
*interim (interlocutory) proceedings in litigation and (especially
in the Chancery
Division) to take accounts. By convention, Chancery Masters are
usually solicitors and
Queen's Bench Masters are usually barristers. In the provinces a
comparable
jurisdiction is exercised by *district judges of the High Court.
See also DISTRICT
REGISTRY.
matching broker See STOCK EXCHANGE.
material facts See STATEMENT OF CASE.
maternity leave See MATERNITY RIGHTS.
maternity pay See MATERNITY RIGHTS.
maternity rights The rights a woman has against her employer when
she is
absent from work wholly or partly because of her pregnancy or
confinement. The
current law is contained in the Employment Rights Act 1996 as
supplemented by the
Maternity and Parental Leave Regulations 1999. The provisions with
respect to
maternity pay are governed by the Social Security Contributions and
Benefits Act
1992 and its supporting regulations. It is possible for an employer
to agree
contractually to more generous maternity leave provisions than the
statutory
minimum. There are currently seven statutory rights:
(1) All pregnant employees are entitled to reasonable time off
work, with pay, for
antenatal care, but an employer is entitled to ask for evidence of
appointments. An
employee who is unreasonably refused time off may complain to an
*employment
tribunal.
(2)An employee is entitled not to be dismissed because of pregnancy
or any reason
connected with it. She is treated as having been unfairly dismissed
if the principal
reason for the dismissal is that she is pregnant, or that she has
given birth, or that
she has taken maternity leave.
(3) A pregnant employee who meets certain qualifying conditions
based on her
length of service and average earnings is entitled to receive
statutory maternity
pay from her employer for up to 18 weeks (to be increased to 26
weeks from April
2003). To qualify for statutory maternity pay a pregnant employee
must have been
working for the same employer continuously for at least 26 weeks
ending in the
15th week before the week the baby is due, must have been paying
national
insurance, and must leave work between the 11th and 6th week before
the expected
date of confinement. If she can satisfy these conditions, she will
receive 90% of
salary for six weeks followed by a fixed statutory rate for the
remaining 12 weeks
(set at £75 from April 2002 and £100from April 2003). An employee
who does not
qualify for statutory maternity pay but who earns at least £30 per
week on average
may be entitled to claim the state maternity allowance from the
Benefits Agency.
Employers can recover 92% of such payments by setting the amount
against their
national insurance payments. They can require the employee to
provide them with
evidence of the baby's birth.
(4) An employee who continues to be employed by her employer until
the beginning
of the 11th week before the expected week of confinement is
entitled to maternity
leave. All pregnant employees are entitled to at least 18 weeks'
maternity leave (to
be increased to 26 weeks from April 2003). Additional maternity
leave of up to 29
weeks from the actual birth of a child is also available to
employees who have
completed a minimum of one year's service by the 11th week before
the expected
week of confinement. An employee must inform her employer, at least
21 days
before her absence begins (or as soon as reasonably practicable),
that she intends to
be absent because of maternity leave and that she intends to return
to work (if she
wishes to exercise that right); this notice must also state the
expected week of
confinement, for which she may be required by her employer to
produce evidence.
Women entitled to additional maternity leave in effect enjoy a
maximum of 40
weeks' maternity leave, but this maximum can only be achieved by
taking 11 weeks
before and 29 weeks after the expected week of confinement.
(5) An employee entitled to maternity leave is also entitled to
return to work with
her employer after taking such leave, either in the job in which
she was employed
or in suitable alternative employment, provided that the employer
employs more
than five people. If a woman wishes to return to work before her
statutory
maternity leave period has expired she may do so providing she
informs her
employer 21 days in advance of her proposed return. If the employer
refuses to
allow her to return, the employee is treated as having been
continuously employed
up to the intended date of her return and as having been dismissed
on that date for
the reason for which she was not allowed to return. If she
complains to an
employment tribunal that she has been unfairly dismissed (see
*unfair dismissal),
the dismissal will be treated as fair if the employer shows that it
was not reasonably
practicable to allow her to return, that the dismissal would have
been reasonable if
she had not been absent, or that in any event she would properly
have been made
redundant during her absence.
(6)Throughout the maternity leave period the employee is entitled
to continue to
benefit from all contractual terms of her employment with the
exception of
remuneration (money payment). These entitlements may include such
things as
pension contributions from her employer, company car and personal
petrol
allowance, and private health insurance. The maternity leave period
begins either on
the date that the employee notifies her employer that she intends
to begin her leave
(she must give 21 days' notice, or as much notice as is reasonably
practicable) or the
first day on which she is absent from work because of pregnancy or
childbirth, if
this date is earlier than the notified date (in which case the
employer must be
notified of the reason for the absence as soon as is reasonably
practicable and this
must be in writing if the employer requests it).
(7) Pregnant women, and women who have recently given birth or who
are
breastfeeding, have the right to be offered any suitable
alternative work, rather
than being suspended on maternity-related health and safety
grounds. If there is no
suitable alternative work available and the employee is suspended
because of her
condition, then she is entitled to receive the same remuneration
that she would have
received had she not been suspended.
matrimonial causes See MATRIMONIAL PROCEEDINGS.
matrimonial home The home in which a husband and wife have lived
together.
When only one of the spouses owns the matrimonial home the Family
Law Act 1996
gives the nonowner certain *matrimonial home rights, which may be
enforced by
court order (see OCCUPATION ORDER). These rights include a right to
live in the
matrimonial home while still married. They will bind third parties
(such as banks
and building societies) if they are registered as a Class F land
charge (in the case of
previously unregistered land) or if they are protected by a notice
(in the case of
registered land) - see REGISTRATlON OF ENCUMBRANCES. In Scotland
similar rights have
been granted (for a limited period only) to unmarried cohabitants,
under the
Matrimonial Homes (Financial Provision) (Scotland) Act 1981. When
the legal estate is
registered under the Land Registration Act and the wife is in
actual occupation, she
may also be protected against eviction by a third party if she has
an interest in the
land, even though she has not registered a notice or caution. Such
an interest may
be acquired by virtue of her contributions to the mortgage payments
or, sometimes,
to household expenses, as well as by making improvements in the
matrimonial
home.
Upon divorce, nullity, or separation the court has wide powers to
make orders
transferring the matrimonial home from one party to the other or
altering their
rights in it, in particular to provide for dependent children.
County courts and
magistrates' courts have powers to grant matrimonial injunctions
excluding a
spouse from the matrimonial home (see BATTERED SPOUSE OR
COHABITANT) as well as
making an order for sale of the matrimonial home in order to
redistribute
resources.
matrimonial home rights The rights of a spouse who is not a
co-owner of the
*matrimonial home to live in the home. A spouse who is in
occupation of the home
has a right not to be evicted from it, and a spouse who is not in
occupation has a
right to enter and occupy the home. See also OCCUPATION
ORDER.
matrimonial injunctions See BATTERED SPOUSE OR COHABITANT.
matrimonial offence Misbehaviour, such as adultery, desertion, or
cruelty, by a
party to a marriage. Formerly (before 1969), proof of matrimonial
offences provided
grounds for divorce and was important in applications in
magistrates' courts for
financial relief during the marriage.
matrimonial order Formerly, an order made by magistrates under the
1960
Matrimonial Proceedings and Magistrates' Courts Act for periodical
payments,
custody of children, or noncohabitation clauses. However, both the
grounds on
which magistrates may exercise jurisdiction and the type of orders
they may make
are now governed by the 1978 Domestic Proceedings and Magistrates'
Courts Act.
matrimonial proceedings (matrimonial causes) Proceedings for
*divorce,
*judicial separation, or *nullity of marriage. All matrimonial
proceedings must be
heard in a divorce county court or the Divorce Registry in London.
The proceedings
may be transferred from the county court to the High Court, and
vice versa, at the
court's discretion. See also FAMILY PROCEEDINGS.
maturity n. The time at which a *bill of exchange becomes due for
payment.
When a bill is payable at a fixed period after date, after sight,
or after the
happening of a specified event, the date of payment is determined
by excluding the
day from which the time is to begin to run and including the day of
payment.
When a bill is payable at a fixed period after sight. the time
begins to run from the
date of *acceptance if the bill is accepted and from the date of
noting or *protest if
the bill is noted or protested for nonacceptance.
maxims of equity Short pithy statements used to denote the general
principles
that are supposed to run through *equity. Although often inaccurate
and subject to
exceptions, they are commonly used to justify particular decisions
and express some
of the basic principles that have guided the development of equity.
The main
maxims are as follows:
equity acts *in personam;
equity acts on the conscience;
equity aids the vigilant;
equity will not suffer a wrong without a remedy (i.e. equity will
not allow a person
whom it considers as having a good claim to be denied the right to
sue);
equity follows the law (i.e. equity follows the rules of common law
unless there is a
good reason to the contrary);
equity looks at the intent not at the form (i.e. equity looks to
the reality of what
was intended rather than the way in which it is expressed);
where the equities are equal, the earlier in time prevails (i.e.
where rights are equal
in worth or value, the earlier right created takes precedence over
the later);
he who seeks equity must do equity;
he who comes to equity must come with *clean hands (see EQUITABLE
REMEDIES);
*equality is equity:
equity looks on that as done which ought to be done (see
CONVERSION);
equity imputes an intent to fulfil an obligation (see
SATISFACTION);
equity will not assist a volunteer (see VOLUNTARY
SETTLEMENT).
Mayor of London The head of the *Greater London Authority, elected
every four
years by the voters in London; the office was created under the
Greater London
Authority Act 1999. The responsibilities of the Mayor include the
promotion of
cultural, economic, and social development and improvement of the
London
environment by use of strategies to reduce air pollution and
waste.
Mayor's and City of London Court A court formed in 1922 by
the
amalgamation of the Mayor's Court and the City of London Court. It
had an
unlimited civil jurisdiction over matters arising within the City.
The Court was
abolished by the Courts Act 1971, but the name is retained by the
*county court for
the City of London, which has normal county court
jurisdiction.
Measure n. See CHURCH OF ENGLAND.
measure of damages The principle that determines the amount of
*damages
awarded for a tort or a breach of contract.
mediation n. 1. A form of *alternative dispute resolution in which
an
independent third party (mediator) assists the parties involved in
a dispute or
negotiation to achieve a mutually acceptable resolution of the
points of conflict. The
mediator, who may be a lawyer or a specially trained nonlawyer, has
no decisionmaking
powers and cannot force the parties to accept a settlement. In
family law,
for example, mediators assist spouses to resolve disputes that have
arisen as a
consequence of the breakdown of their marriage by reaching
agreement or reducing
conflict over future arrangements for children or their finances.
Mediation, which is
designed to avoid the need to take cases to court, is likely to be
extended to many
other areas of the law since the publication of Lord Woolf's Access
to Justice(Final
Report) 1996and the introduction of the *Civil Procedure Rules, in
which it is
actively encouraged. 2. (in international law) A method for the
peaceful settlement
of an international dispute in which a third party, acting with the
agreement of the
disputing states, actively participates in the negotiating process
by offering
substantive suggestions concerning terms of settlement and, in
general, by trying to
reconcile the opposing claims and appeasing any feeling of
resentment between the
parties involved. See also CONCILIATION; GOOD OFFICES.
Member of Parliament (MP) See HOUSE OF COMMONS.
Members' interests Interests of Members of Parliament that might
affect their
conduct as MPs;for example, employments, company directorships,
shareholdings,
substantial property holdings, and financial sponsorships. By a
1975resolution of the
House, these must be registered for public information. After
various allegations of
Members not disclosing financial rewards received from outside
parties in return
for asking questions in the House ("cash for questions"), the rules
on disclosure were
tightened in 1996,when the Code of Conduct for Members of
Parliament with a
Guide to the Rules Relating to the Conduct of Members were
published.
memorandum in writing Under former provisions of the Law of
Property Act
1925,written evidence of a contract for the sale or other
disposition of land or of
any interest in it. The Act provided that such a contract could not
be enforced
unless it, or some memorandum or note evidencing the parties'
agreement
(identifying the parties, the property, the price, and other
essentials), was in writing
and signed by the party to be held liable on the contract. In
practice, a contract
would usually be in writing, but a signed memorandum showing
that the parties
had been bound from the time of an earlier oral agreement was
equally acceptable
as evidence to support any claim to enforce the contract.
However, the Law of Property (Miscellaneous Provisions) Act 1989now
insists that
such a contract can only be made in writing that sets out in one
document (or
incorporates by reference to other existing documents) all the
terms the parties
have expressly agreed; the contract must be signed by both parties.
A mere
memorandum or note evidencing the terms of the agreement will no
longer suffice
unless it is incorporated in the contract by reference.
memorandum of association A constitutional document of a
*registered
company that must be drawn up by the person(s) wishing to set it
up. Under the
Companies Act 1985 certain compulsory clauses must be inserted into
the
memorandum. These clauses deal with and outline the company's
identity (names
clause); its registered address (registered office clause); the
amount of its
authorized share *capital (capital clause); the purpose(s) for
which the company has
been formed (objects clause); and (if applicable) whether it is a
*limited company
or a *public company. The Companies Act 1985 contains specimen
examples of such
clauses for different types of company. The memorandum is said to
be the "superior
constitutional document" of the company; in the event of a conflict
between it and
the "articles of association, the memorandum prevails.
menace n. See THREAT.
mensa et thoro See AMENSA ET THORO.
mens rea [Latin: a guilty mind] The state of mind that the
prosecution must prove
a defendant to have had at the time of committing a crime in order
to secure a
conviction. Mensrea varies from crime to crime; it is either
defined in the statute
creating the crime or established by *precedent. Common examples of
mens rea are
*intention to bring about a particular consequence, *recklessness
as to whether
such consequences may come about, and (for a few crimes)
*negligence. Some crimes
require knowledge of certain circumstances as part of the mens rea
(for example, the
crime of receiving stolen goods requires the knowledge that they
were stolen). Some
crimes require no mens rea; these are known as crimes of *strict
liability. Whenever
mens rea is required, the prosecution must prove that it existed at
the same time as
the *actus reus of the crime (coincidence of actus reus and mens
rea). A defendant
cannot plead ignorance of the law, nor is a good *motive a defence.
He may,
however, bring evidence to show that he had no mens rea for the
crime he is charged
with; alternatively, he may admit that he had mens rea, but raise a
general defence
(e.g. duress) or a particular defence allowed in relation to the
crime.
mental disorder For the purposes of the Mental Health Act
1983,mental illness,
incomplete or *arrested development of mind, *psychopathic
disorder, and any
other disorder or disability of mind. A person suffering (or
appearing to be
suffering) from mental disorder can be detained in hospital either
for assessment or
for treatment. Detention for assessment normally takes place on an
application for
his admission made by his nearest relative or an approved social
worker. This is
supported in either case by the recommendation of two doctors that
it is desirable
in the interests of the patient's own health and safety or for the
protection of
others. The application authorizes detention for up to 28 days. In
a case of
emergency, however, detention may be for up to 72 hours on an
application
supported by one doctor only and made by an approved social worker
or the
patient's nearest relative. The procedure for detention for
treatment is the same as
the normal procedure for detention for assessment. The application
authorizes
detention for SIX months, renewable for a further six months,
initially, and then for
periods of one year on a report to the hospital managers by the
doctor in charge.
DIscharge of a person detained may be effected by the managers or
the doctor in
charge and, within certain limits, the nearest relative; in the
case of detention for
treatment, discharge may also be directed by a "Mental Health
Review Tribunal The
National Health Service and Community Care Act 1990provided for
more care in the
community for patients who previously may have been treated in
secure hospitals.
See also HOSPITAL ORDER; SPECIAL HOSPITAL.
Mental Health Act Commission A regulatory body established in 1983
to
monitor the operation of the Mental Health Act 1983. Its members,
appointed by the
Secretary of State for Health, include psychiatrists, nurses,
lawyers, members of
other clinical professions, and lay people. Commissioners are
responsible for
regularly visiting patients detained under the Act, reviewing
psychiatric care,
investigating certain complaints, and advising ministers.
Mental Health Review Tribunal A tribunal, constituted under the
Mental
Health Act 1983,to which applications may be made for the discharge
from hospital
of a person detained there for assessment or treatment of *mental
disorder or
under a *hospital order or a *guardianship order. When a patient is
subject to a
restriction order or direction an application may only be made
after his first six
months of det~ntion. Such tribunals include legally and medically
qualified
members appointed by the Lord Chancellor and are under the
supervision of the
"Council on Tribunals.
mental impairment See ARRESTED DEVELOPMENT.
MEP Member of the European Parliament. See EUROPEAN
PARLIAMENT.
me~cantile agent A commercial *agent who has authority either to
sell goods, to
consign goods for the purpose of sale, to buy goods, or to raise
money on the
secunty of goods on behalf of his principal.
mercenary n. A person who is paid to serve with armed forces other
than those of
the state of which he is a national. British officers undertaking
such service (e.g. in
Oman) were commonly known as contract officers. See alsoFOREIGN
ENLISTMENT.
merchantable quality An *implied condition now replaced by
*satisfactory
quality.
merchant shipping registration See SHIP.
mercy n. See PREROGATIVE OF MERCY.
mere equity A right affecting property that is less significant
than an *equitable
right or a *legal right; it does not affect anyone except the
parties to the
transaction in which it is contained. An example is the right to
rectify a document.
merger n. 1. An amalgamation between companies of similar size in
which either
the members of the merging companies exchange their shares for
shares in a new
company or the members of some of the merging companies exchange
their shares
for shares in another merging company. It is usually effected by a
*takeover bid
Under current EU mergers law, mergers with a Community dimension,
i.e. a
combined Community-wide turnover of at least 250M euros and a
combined
worldwide turnover of over 500M euros, must be notified to the EU
Mergers
Secretariat, However, If each of the merging companies derives
two-thirds of its EU
business from one and the same member state, the merger does not
have to be
notified. Compare TAKEOVER. 2. The extinguishing of a lesser
interest in land when it
comes into the same ownership as a greater one. For example, if a
freehold owner
acquires the unexpired leasehold estate, the latter may merge into
the freehold.
Whether or not merger occurs depends on the circumstances of the
transaction
(thus a leasehold that is subject to a subsisting mortgage will not
normally merge
with the freehold) and the intention of the parties.
mesne profits Money that a landlord can claim from a tenant who
continues to
occupy property after his tenancy ends, the amount being equivalent
to the current
market rent of the property. This may be more than the rent that
the tenant was
paying before the tenancy ended. If the landlord continues to
accept the original
rent from the tenant at the end of the tenancy, a new tenancy may
be created.
messuage n. A house and its associated garden, outbuildings, and
orchard.
Michaelmas Day See QUARTER DAYS.
micro-state n. A state with an area of less than 500 square miles
and a population
under 100,000. Examples of micro-states include Andorra, Antigua
and Barbuda,
Grenada, and Monaco, all of which have been admitted to membership
of the United
Nations. Although the UN membership of such small states was
contentious,
ultimately the principle of universality of membership of states,
whatever their size,
prev<l.iled over the i.ssue of whether ()I nnt they were capable
of fulfilling their
obligations as members. See also RECOGNITION.
Middle Temple One of the four *Inns of Court, situated in the
Temple between
the Strand and the Embankment. The earliest recorded claim for its
existence is
1404.
Midsummer Day See QUARTER DAYS.
military court A *court martial or the *Court of Chivalry.
military law See SERVICE LAw. Compare MARTIAL LAW.
Military Staff Committee A committee established under Article 47
of the
United Nations Charter. Articles 43-47 of the Charter (within
*Chapter VII) envisage,
through the Military Staff Committee, advance military cooperation
for UN
collective military security. This body is to advise the Security
Council on all
questions relating to armed forces placed at the disposal of the
latter. It consists of
the chiefs of staff of the permanent members of the Security
Council, although
other members of the United Nations may be invited to sit with it
when the
efficient disch<l.rge of the Committee's responsibilities so
requires.
Due to deadlock, principally among the permanent members of the
Security
Council, the Committee declared that it could wake no further
progress on the
matter of military cooperation for UN collective security measures.
Although the
Committee still formally exists it has had no real function to
perform since its
establishment in October 1945. See also COLLECTIVE SECURITY;
ENFORCEMENT ACTION.
military stores Any chattel belonging to the Crown that is issued,
or stored for
the purpose of being issued when required, for military purposes.
Compare NAVAL
PROPERTY.
military testament See PRIVILEGED WILL.
minerals pl. n. See MINING LEASE.
minimum term See LIFE IMPRISONMENT.
minimum wage The lowest rate of remuneration that an employer may
pay. The
National Minimum Wage's adult hourly rate from October 2001 is
£4.10; this will
increase to £4.20 in October 2002. The youth rate for
18~21-year-olds is (from October
2001) £3.50 per hour.
mining lease A lease granting a tenant the right to extract
minerals from the
land for a specified period in return for a rent (which may vary in
accordance with
the amount or value of minerals extracted). The Settled Land Act
1925 allows the
tenant for life of settled land to grant mining leases for up to
100 years whether or
not he is liable for any *waste committed by him, and whether or
not the mine is
already open. As a general rule, and subject to any contrary
intention expressed in
the settlement. the tenant for life is entitled to three-quarters
of the rent, but if he
is liable for waste in respect of minerals, he is only entitled to
one-quarter of the
rent. In either case, the balance must be paid as <capital money
to the trustees of
the settlement. The Act defines minerals for these purposes as all
substances in or
under the land that can be extracted by underground or surface
working.
minister n. A person (by *constitutional convention a member of
either House of
Parliament) appointed to government office by the Crown on the
advice of the
Prime Minister. He may be a senior minister in charge of a
department (normally
styled Secretary of State but sometimes Minister), a senior
minister without specific
departmental responsibilities le.g. the lord Privy Seal or a
Minister without
Portfolio), or a junior minister assisting in departmental business
(a Minister of
State or a Parliamentary Secretary or Under-Secretary). In the
Treasury the
ministerial ranks are *Chancellor of the Exchequer, Chief
Secretary, Financial
Secretary, and Ministers of State.
ministerial responsibility The responsibility to Parliament of the
Cabinet
collectively and of individual ministers for their own decisions
and the conduct of
their departments. A minister must defend his decisions without
sheltering behind
his civil servants; if he cannot, political pressure may force his
resignation.
mini-trial n. See ALTERNATIVE DISPUTE RESOLUTION.
minor n. See INFANT.
minor interests Interests in *registered land that cannot be
created or
transferred by registered disposition, are not *overriding
interests, and could be
overridden by a registered proprietor unless protected by
registration. Such
interests include the equitable interests of beneficiaries under a
settlement and all
charges that would be registrable at the Land Charges Department if
the land had
been unregistered (see REGISTRATION Of ENCUMBRANCES). Minor
interests are protected
by registration of a notice, caution, inhibition, or restriction as
appropriate.
minority n. The state of being an *infant (or minor). Compare
MAJORITY.
minority clauses Clauses in treaties between states that make
special provision
for *ethnic minorities. For example, in the Greco-Bulgarian
convention of 1919 there
was a minority clause that allowed for free migration of minorities
between the
signatory powers.
minority protection Remedies evolved to safeguard a minority of
company
members from the abuse of *majority rule. They include *just and
equitable
winding-up, applying for relief on the basis of *unfair prejudice,
bringing a
*derivative action or a *representative action, and seeking an
*investigation of the
company.
minutes pl. n. Records of company business transacted at general
meetings, board
meetings, and meetings of managers. Registered companies are
required to keep
such records. Minutes of general meetings can be inspected by
company members at
the registered office.
miscarriage n. 1. A failure of justice or a failure in the
administration of
justice. 2. A spontaneous *abortion, i.e. one that is not
induced.
mischief rule See INTERPRETATION OF STATUTES.
misconduct n. Incorrect or erroneous conduct. See WILFUL
MISCONDUCT.
misdemeanour n. Formerly (i.e. before 1967), any of the less
serious offences, as
opposed to *felony.
misdescription n. A misleading or inaccurate physical or legal
description of
property in a contract for its sale. When a vendor cannot convey
property
corresponding to its description in the contract for sale, a breach
of contract results,
which at the very least gives the purchaser a right to
damages.
If the misdescription is substantial (i.e. it is reasonable to
suppose that it
constitutes the basis for the purchaser entering into the contract
in the first place),
the vendor will be unable to enforce the contract against the
purchaser. When there
is an innocent misdescription, which is not substantial, the
contract may be enforced
by the vendor, but subject to a suitable reduction in the
contractually agreed price,
even if the purchaser would prefer to rescind the contract (see
RESCISSION).
Alternatively, the purchaser might prefer to compel the vendor to
convey what title.
he can (despite the misdescription) and receive compensation in
addition. If the
misdescription operates in the purchaser's favour, the vendor has
no right to claim
any compensation from him.
Under the Property Misdescription Act 1991, *estate agents and
property
developers are prohibited from making false or misleading
statements about
property in the course of their business. Misdescription in this
case relates to what
purports to be fact and not to mere expressions of opinion.
Compare
MISREPRESENTATION.
misdirection n. An incorrect direction by a judge to a *jury on a
matter of law.
In such cases the Court of Appeal may quash the conviction.
misfeasance n. 1. The negligent or otherwise improper performance
of a lawful
act. 2. (in company law) An act by an officer of a company in the
nature of a breach
of trust or breach of duty, particularly relating to the company's
assets. Compare
MALFEASANCE; NONFEASANCE.
misfeasance summons An application to the court by a creditor,
contributory,
liquidator, or the official receiver during the course of winding
up a company. The
court is asked to examine the conduct of company officers and
others who are
suspected of a breach of a *fiduciary or other duty towards the
company and it can
order them to make restitution to the company.
misjoinder of parties An incorrect *joinder of parties in an
action. In modern
practice this does not cause the action to abate but it can be
rectified by
*amendment.
misleading advertising Advertising that deceives or is likely to
deceive those to
whom it is addressed or whom it reaches and, because of its
deceptive nature, is
likely to affect consumers' behaviour or injures or is likely to
injure a competitor.
EU directive 84/450 requires EU member states to harmonize laws in
this area.
mispleading n. The omission of an essential allegation in a claim
form or other
statement of case. In modern practice, it can usually be rectified
by *amendment.
misprision n. Failure to report an offence. The former crime of
misprision of
felony has now been replaced by the crime of *compounding an
offence. However,
the common-law offence of misprision of treason still exists; this
occurs if a person
knows or reasonably suspects that someone has committed treason but
does not
inform the proper authorities within a reasonable time. The
punishment for this
offence is forfeiture by the offender of all his property during
his lifetime.
misrepresentation n. An untrue statement of fact, made by one party
to the
other in the course of negotiating a contract, that induces the
other party to enter
into the contract. The person making the misrepresentation is
called the
representor, and the person to whom it is made is the representee.
A false
statement of law, opinion, or intention does not constitute a
misrepresentation; nor
does a statement of fact known by the representee to be untrue.
Moreover, unless
the representee relies on the statement so that it becomes an
inducement (though
not necessarily the only inducement) to enter into the contract, it
is not a
misrepresentation. The remedies for misrepresentation vary
according to the degree
of culpability of the representor, If he is guilty of fraudulent
misrepresentation
(i.e. if he did not honestly believe in the truth of his statement,
which is not the
same as saying that he knew it to be false) the representee may,
subject to certain
limitations, set the contract aside by *rescission and may also sue
for damages. If he
is guilty of negligent misrepresentation (i.e. if he believed in
his statement but
had no reasonable grounds for doing so) the representee was
formerly entitled only
to rescission but may now (under the Misrepresentation Act 1967 or
by an action in
tort for negligence) also obtain *damages. If the representor has
committed merely
an innocent misrepresentation (one he reasonably believed to be
true) the
representee is restricted to rescission, subject to the discretion
of the court under
the 1967Act to award him damages in lieu. A representee entitled to
rescind a
contract for misrepresentation may decide instead to *affirm it.
See also
MISDESCRIPTION; NONDISCLOSURE.
mistake n. A misunderstanding or erroneous belief about a matter of
fact
(mistake of fact) or a matter of law (mistake of law). In civil
cases, mistake is
particularly important in the law of contract. Mistakes of law have
no effect on the
validity of agreements, and neither do many mistakes of fact. When
a mistake of
fact does do so, it may render the agreement void under common-law
rules (in
which case it is referred to as an operative mistake) or it may
make it voidable, i.e.
liable, subject to certain limitations, to be set aside by
*rescission under more
lenient rules of equity.
When both parties to an agreement are under a misunderstanding, the
mistake
may be classified as either a common mistake (i.e. a single mistake
shared by both)
or a mutual mistake (i.e. each misunderstanding the other). In the
case of common
mistake, there is full *consensus ad idem and the mistake renders
the contract void
only if it robs it of all substance. The principal (and almost the
only) example is
when the subject matter of the contract has, unknown to both
parties, ceased to
exist (res extincta). A common mistake about some particular
attribute of the
subject matter (e.g. that it is an original, not a copy) is not an
operative mistake
However, a common mistake relating to any really fundamental
matter will render
a contract voidable. In the case of mutual mistake there is no real
consensus, but
the contract is nevertheless valid if only one interpretation of
what was agreed can
be deduced from the parties' words and conduct. Otherwise, the
mistake is operative
and the contract void. When only one party to a contract is under
a
misunderstanding, his mistake may be called a unilateral mistake
and it makes the
contract void if it relates to the fundamental nature of the offer
and the other
party knew or ought to have known of it. Otherwise, the contract is
valid so far as
the law of mistake is concerned, though the circumstances may be
such as to make
it voidable for *misrepresentation.
A deed or other signed document (whether or not constituting a
contract) that
does not correctly record what both parties intended may be
rectified by the courts.
When one signatory to a document was fundamentally mistaken as to
the character
or effect of the transaction it embodies, he may (unless he was
careless) plead his
mistake as a defence to any action based on the document (see NON
EST FACTUM).
In criminal cases, a mistake or accident may mean that a person
lacked *mensrea.
It has become clear in recent years that a person has a defence if
he would have had
a common-law defence, such as *consent, *provocation, or one of the
*general
defences, had the facts been as he mistakenly supposed them to be.
If someone
commits a crime in ignorance that the law forbids it, he is usually
guilty (ignorantia
juris non excusat: ignorance of the law is no excuse).
If a defendant makes a mistake as to the civil law that prevents
him having the
mens rea required to be guilty of the crime, he will normally be
acquitted of the
crime, even if his mistake is unreasonable (for example, if he
damages someone
else's property in the belief that it is his own, and this belief
is caused by a mistake
as to the law of property). See alsoGENERAL DEFENCES;
INTOXICATION.
mistakes in judgment See SLIP RULE.
mistrial n. A trial that is vitiated by some fundamental
defect.
mitigation n. 1. Reduction in the severity of some penalty. Before
*sentence is
passed on someone convicted of a crime, the defence may make a plea
in mitigation,
putting forward reasons for making the sentence less severe than it
might
otherwise be. These might include personal or family circumstances
of the offender,
and the defence may also dispute facts raised by the prosecutiori
to indicate
aggravating circumstances. In raising mitigating factors, *hearsay
evidence and
documentary evidence of *character are accepted. 2. Reduction in
the loss or injury
resulting from a tort or a breach of contract. The injured party is
under a duty to
take all reasonable steps to mitigate his loss when claiming
*damages.
mixed action A form of court action combining a claim relating to
real property
with a claim for damages.
mixed fund A fund of money derived from the sale of both real and
personal
property.
mixed property *Property that has some of the attributes of both
real and
personal property. *Emblements are an example.
mock auction An auction during which (1) any lot is sold to someone
at a price
lower than his highest bid for it; (2) part of the price is repaid
or credited to the
bidder; (3) the right to bid is restricted to those who have bought
or agreed to buy
one or more articles; or (4) articles are given away or offered as
gifts. Under the
Mock Auction Act 1961 it is an offence to promote or conduct a mock
auction of
plate, plated articles, linen, china, glass, books, pictures,
prints, furniture, jewellery,
articles of household or personal use, ornaments, or any musical or
scientific
instrument.
molestation n. Behaviour that has the effect or intention of
annoying or
pestering one's spouse (or cohabitant) or children. Such an act
need not involve
violence or physical assault; harassment (for example by
threatening letters or
telephone calls) may constitute molestation. Under the Family Law
Act 1996, spouses
(and in some cases unmarried cohabitants) can apply for a court
injunction to
prevent molestation (see NONMOLESTATION ORDER). Magistrates' courts
have similar
powers under the 1978 Domestic Proceedings and Magistrates' Courts
Act, but only if
there is violence and only in relation to married couples. There
are procedures for
protecting children in an emergency (see EMERGENCY PROTECTION
ORDER). See also
BATTERED CHILD; BATTERED SPOUSE OR COHABITANT; STALKING.
money Bill A Bill that, in the opinion of the Speaker of the House
of Commons,
contains only provisions dealing with taxation, the Consolidated
Fund, public money,
the raising or replacement of loans by the state, and matters
incidental to these
subjects. Such a Bill can become an Act without the House of Lords'
consent (see ACT
OF PARLIAMENT).
money had and received A former ground for court action that
occurred when
the defendant was in possession of money that should have belonged
to the claimant
(for example, when money had been paid to an agent who then failed
to pass it on
to his principal).
money laundering Legitimizing money from organized or other crime
by paying
it through normal business channels. EU measures exist to control,
on an EU-wide
basis, the laundering of money, especially that resulting from
organized crime.
moneylender n. A person whose business it is to lend money. The
Moneylenders
Acts 1900-27 contained provisions for the control of moneylenders,
including the
form of their contracts. Under the Acts, the term "moneylender" did
not include
pawnbrokers, friendly or building societies, corporate bodies with
special powers to
lend money, those carrying on a banking or insurance business, or
businesses whose
primary object is not the lending of money. The more extensive
provisions of the
Consumer Credit Act 1974 have replaced the provisions of the
Moneylenders Acts.
monism n. The theory that national and international law form part
of one legal
structure, in which international law is supreme. It is opposed to
dualism, which
holds that they are separate systems operating in different
fields.
monopoly n. A situation in which a substantial proportion of a
particular type of
business is transacted by a single enterprise or trader. The Fair
Trading Act 1973
contains provisions assigning functions in respect of monopolies to
the *Director
General of Fair Trading and the Competition Commission. It defines
a monopoly
situation, in relation to the supply of goods and services and the
export of goods, as
one in which a single enterprise, connected group of companies, or
trade association
has one-quarter of the relevant business. When the Competition
Commission finds
that a monopoly situation exists and operates against the public
interest, the
Minister has powers to remedy or prevent the adverse effects.
Sometimes
monopolies involving more than one company (complex monopolies)
are
investigated. The Director General of Fair Trading may also
investigate joint *abuses
of a dominant position that breach Chapter 11 of the Competition
Act 1998 and thus
has a choice as to which provisions are used to investigate
monopolies.
month n. A calendar month or a lunar month (28 days). The common
law adopted
the lunar month, but the Interpretation Act 1978 provides that the
word is to be
presumed to mean calendar month in Acts of Parliament, and the Law
of Property
Act 1925 provides similarly for deeds and other written
documents.
moot n. A mock trial, often held in university law schools and at
the Inns of Court,
for students as practice for future advocacy. A hypothetical case
is presented to
students for preparation and then argued before the judge(s) at the
moot. This
practice originates in the formal moots held in the medieval Inns
of Court, which
were considered an essential part of legal education.
moral law The body of laws to which individuals feel themselves
subject, often
through their religious beliefs. See alsoCANON LAW; NATURAL
LAW.
mortgage n. An interest in property created as a form of security
for a loan or
payment of a debt and terminated on payment of the loan or debt.
The borrower,
who offers the security, is the mortgagor; the lender, who provides
the money, is
the mortgagee. Virtually any property may be mortgaged (though land
is the most
common); exceptions include the salaries of public officials. The
name is derived
from Old French (literally: dead pledge), since at common law
failure to repay on the
due date of redemption (which in most mortgages is set very early)
formerly
resulted in the mortgagor losing all his rights over the property.
By the rules of
equity the mortgagor is now allowed to redeem his property at any
time on
payment of the loan together with interest and costs (see EQUITY OF
REDEMPTION). The
mortgagee has a right to take possession of the mortgaged property
as soon as the
mortgage is made, irrespective of whether the mortgagor has
defaulted. However,
this right (1) must only be used for the purpose of protecting or
enforcing the
security, (2) may be excluded by agreement, or (3) is subject to a
power in the court
to adjourn proceedings for possession, to suspend the execution of
an order for
possession, or to postpone the date for delivery of possession,
where the mortgaged
property is a dwelling house (Administration of Justice Act 1970as
amended). This
right is normally used as a preliminary to an exercise of the
mortgagee's power of
sale. In face of continued nonpayment of the loan, the mortgagee
may sell the
mortgaged property under a *power of sale, appoint a *receiver, or
obtain a decree
of *foreclosure.
Under the Law of Property Act 1925 the only valid legal mortgages
are (1) a lease
subject to *cesser on redemption and (2) a deed expressed to be a
charge by way of
legal mortgage (see CHARGE). All other mortgages are equitable
interests only (see
EQUITABLE MORTGAGE). All mortgages of registered land are noted in
the charges
register on application by the mortgagee (see LAND REGISTRATION),
and a *charge
certificate is issued to him. When mortgaged land is unregistered,
a first legal
mortgagee keeps the title deeds. A subsequent legal mortgagee and
any equitable
mortgagee who does not have the title deeds should protect his
interests by
registration (see PUISNE MORTGAGE; REGISTRATION OF ENCUMBRANCES).
See also PRIORITY OF
MORTGAGES.
mortgage action A court action brought by a mortgagee for
possession of the
mortgaged property or payment of all money due to him, when the
mortgagor has
failed to pay the amounts due under the mortgage.
mortgagee n. See MORTGAGE.
mortgage interest relief Tax relief on the interest payments made
to a lender
on a loan for the purchase of the taxpayer's only or *main
residence. which was
available until 5 April 2000; after that date, the relief was
withdrawn. It applied to
the interest on a loan of up to £30,000; from 1998 until 5 April
2000 the rate of relief
was 15%.
mortgagor n. See MORTGAGE.
motion n. Formerly, an application made orally and in open court to
a judge for an
order. This term has been rendered obsolete by the *Civil Procedure
Rules; motions
are now referred to as applications.
motive n. The purpose behind a course of action. Motive is not
normally relevant
in deciding guilt or innocence (for example, killing to save
someone from suffering
is still murder or manslaughter), although it may be of some
relevance in the crime
of *Iibel. Nor is a bad motive relevant in deciding legal guilt.
However, a good
motive may be invoked as a reason for mitigating a punishment upon
conviction,
and a bad motive may provide circumstantial evidence that the
defendant
committed the crime he is charged with.
motor car See MOTOR VEHICLE.
motor cycle See MOTOR VEHICLE.
motoring offences See OFFENCES RELATING TO ROAD TRAFFIC.
motor insurance See THIRD-PARTY INSURANCE.
Motor Insurers' Bureau A body set up by the insurance industry, by
agreement
with the Department of Transport. It provides cover if someone has
been injured or
killed in a motor accident and in respect of a liability required
by the Road Traffic
Act to be covered by a contract of insurance when either (1) a
judgment against the
party liable is unsatisfied, for example because the party is (in
breach of the Road
Traffic Act) uninsured, or (2) the wrongdoer cannot be
identified.
motor vehicle For the purposes of the Road Traffic Acts, any
mechanically
propelled vehicle intended or adapted for use on the roads. This
includes motor cars
(vehicles of not more than 3 tonnes in unladen weight, designed to
carry loads or up
to seven passengers) and motor cycles(vehicles of not more than 8
cwt in unladen
weight and having less than four wheels). A car from which the
engine has been
removed may still be considered to be mechanically propelled if the
removal is
temporary, but if so many parts have been removed that it cannot be
restored to
use at a reasonable expense, it ceases to be mechanically
propelled. A dumper used
for carrying materials at a building site is not intended for use
on roads, even if it is
in fact used on a road near the building site; and a go-kart is not
intended nor
adapted for use on the roads (even though it is capable of being
used on the roads).
See also CONVEYANCE.
motorway driving Contravention of the regulations relating to
driving on a
motorway, as outlined in the Highway Code, is an offence punishable
by
*endorsement (carrying 3 points under the *totting-up system) and
discretionary
*disqualification.
MOT test An annual test originally ordered by the Ministry of
Transport (now
Department of Transport, Local Government, and the Regions) to be
carried out on
all motor vehicles over a certain age to ensure that they comply
with certain legal
requirements relating to vehicle maintenance. The test covers
brakes, steering, lights
and indicators, windscreen wipers and washers, the exhaust system,
horn, tyres (and
to some extent, the wheels), bodywork and suspension (insofar as
they affect the
brakes and steering), and seat belts. It is an offence to put on
the road a motor
vehicle that has been registered for over three years (five
years in Northern Ireland)
without a valid test certificate. A certificate is issued for 12
months and must be
renewed annually; a vehicle that is subject to a test cannot be
licensed without a
test certificate (see ROAD TAX). It is not an endorsable offence
not to have an MOT
certificate, but this may invalidate the motorist's insurance and
result in a charge of
*driving without insurance. An MOTcertificate does not indicate
that the vehicle is
roadworthy in all respects and is not a defence to charges brought
under the
"vehicle construction and maintenance regulations.
movables pl. n. Tangible items of property other than land and
goods fixed to the
land (i.e. immovables).
IVIP (Member of Parliament) See HOUSE OF COMMONS.
IVIR See MASTER OF THE ROLLS.
multiple admissibility The principle of the law of evidence that if
evidence is
admissible for one purpose it may not be rejected solely because it
is inadmissible
for some other purpose. However, the *trier of fact may have to be
directed not to
consider the evidence when deciding those issues in respect of
which it is
inadmissible.
multiple agreement (under the Consumer Credit Act 1974) An
agreement the
terms of which are such that (1) part of it falls within one
category of agreement
mentioned in rhe Act and another part within a different category
of agreement,
which mayor may not be mentioned in the Act; or (2) a part or the
whole of it is
placed within two or more categories of agreement mentioned in the
Act. When
part of an agreement falls within a category mentioned in the Act,
that part is
treated for the purposes of the Act as a separate agreement. When
an agreement
falls within two or more categories, it is treated as an agreement
in each of the
categories in question.
multi-track n. The track to which a civil case is allocated (see
ALLOCATION) when the
claim is more complex and/or for a higher amount (exceeding
£15,000) than those
catered for in the *fast track, With the exception of personal
injury claims not
exceeding £50,000, the jurisdiction for which is retained by the
county court, these
actions will be based in the High Court. Unlike the *small claims
track and the fast
track, the multi-track uses tools of *case management rather than
standard
procedure to process. Those tools include the use of *case
management conferences
and *pre-trial reviews.
municipal law The national, or internal, law of a state, as opposed
to
international law. See also DOCTRINE OF INCORPORATION; PRNATE LAW;
PUBLIC LAW.
muniments pl. n. Documents that prove a person's title to land.
They include the
relevant *title deeds, certificates of *official search, and other
documents tracing
ownership of the land through to the present owner.
munitions of war Vessels, aircraft, fighting vehicles, arms,
ammunition,
explosive devices, or any other articles, materials, or devices
intended or adapted for
Use in war.
murder n. Homicide that is neither accidental nor lawful and does
not fall into the
categories of *manslaughter or *infanticide. The mens rea for
murder is
traditionally known as *malice aforethought and the punishment
(since 1965) is *life
imprisonment. Murder is subject to the special defences of
*diminished
responsibility, *suicide pact, and *provocation. Under the Crime
(Sentences) Act 1997
a second conviction for attempted murder carries a mandatory
sentence of life
imprisonment (see REPEAT OFFENDER).
mute adj. See STANDING MUTE.
mutiny n. An offence against service Jaw committed by any member of
HM forces
who combines with one or more other members (whether or not
civilians are also
involved) to overthrow or resist lawful authority in those forces
or any forces
cooperating with them. If a civilian is involved, his conduct will
be a matter for the
ordinary criminal law. The offence is also committed if the aim of
the combination
is to disobey lawful authority in a manner subversive of
discipline, or for the
purpose of avoiding any duty connected with operations against the
enemy, or
generally to impede the performance of any duty in HM forces or any
cooperating
forces.
mutual mistake See MISTAKE.
mutual wills Wills conferring reciprocal benefits, made by two or
more persons
who have agreed that the wills are not to be revoked. The court
will enforce the
agreement by declaring that the survivor holds the relevant
property on
*constructive trust to give effect to the mutual will. For example,
Hand W by
agreement make wills leaving property to each other absolutely,
each providing that
if the other dies first the property goes instead to X. If after
H's death W makes a
fresh will in favour of Y,the court will on Ws death nonetheless
give effect to the
interest left to X under the original mutual will. The fresh will
is admitted to
probate, but the *personal representatives of the survivor can only
take the relevant
property subject to a constructive trust in favour of X. The
property that forms the
subject matter of the trust is to be determined by construing the
agreement
contained in the mutual wills.
N
naked agreement See CONSIDERATION.
naked trust See BARE TRUST.
name n. See BUSINESS NAME; CHANGE OF NAME; COMPANY NAME;
SURNAME.
name and arms clause A clause in a settlement providing that the
beneficiary
forfeits his entitlement unless he uses a specified surname and, if
appropriate, coat
of arms at all times. The clause is valid only if it is
sufficiently precise.
National Assembly for Wales See WELSH ASSEMBLY.
national conditions of sale One of a number of sets of standard
conditions of
sale used by solicitors in drawing up closed contracts for the sale
of land. Another
set of conditions is made available by the Law Society. Compare
OPEN CONTRACT;
STATUTORY FORM OF CONDITIONS OF SALE.
National Crime Squad A body of police officers organized on a
national basis to
tackle serious and organized crime. It was set up under the Police
Act 1997, in
conjunction with the *Criminal Records Agency and the authorization
of intrusive
*surveillance operations.
National Health Service (NHS) A service established for England and
Wales in
1948 as a result of the National Health Service Act 1946 and
reorganized in 1974,1982,
1990(as a result of the National Health Service and Community Care
Act 1990), and
in 1999(under the Health Act 1999). It is concerned with the
provision of hospital,
specialist, general practitioner (medical, dental, ophthalmic, and
pharmaceutical),
nursing, ambulance, and related services, under the ultimate
responsibility of the
Secretary of State for Health. The 1990Act introduced major changes
and divided
the service into those bodies responsible for the acquisition of
care (contractors)
and those responsible for the provision of care (providers). In
England the Health
Service is administered by the National Health Service Executive
headed by a Chief
Executive, under which there are (since 31 March 1996) eight
regional offices, which
took over the functions of the Regional Health Authorities (RHAs),
i.e. overall
planning responsibility for their regions and allocation of
resources to health
authorities within these regions. In April 1996 the role of the
contractors was taken
over by new *Health Authorities, which assumed the functions of the
District
Health Authorities (DHAs), responsible for assessing and acquiring
services required
for their districts by awarding contracts to such providers as *NHS
Trusts; and the
Family Health Service Authorities, which awarded contracts for
services provided
by general practitioners, dentists, and pharmacists. An element of
competition was
introduced by the 1990Act in that a DHA could place contracts for
any, or all, of the
health care required for its own district either with local
services or with the
services provided outside its area.
General practitioner services were reorganized in a similar way
with some GPs
(fundholders) holding their own budgets and having the power to
purchase the
services they required for their own patients from whichever
provider gave them
the service they needed. However, the Health Act 1999ended
GPfundholding and
created *Primary Care Trusts. See also COMMISSION FOR HEALTH
IMPROVEMENT
national insurance A scheme of state-administered social
security benefits (e.g.
income support, incapacity benefit, and retirement pensions). These
were
inaugurated by the National Insurance Act 1946 and are now given
effect by the
Social Security Acts 1975-96.A separate industrial injuries
insurance scheme was
established by the National Insurance (Industrial Injuries) Act
1946,but the Social
Security Acts now govern the payment of *industrial injuries
disablement benefit.
Entitlement to social security or disablement benefits is
determined by adjudication
officers; appeals from their decisions may be made to a *Social
Security Appeal
Tribunal.
nationality n. The state of being a citizen or subject of a
particular country. See
BRITISH CITIZENSHIP; BRITISH DEPENDENT TERRITORIES CITIZENSHIP;
BRITISH OVERSEAS
CITIZENSHIP; BRITISH SUBJECT; BRITISH NATIONAL (OVERSEAS).
nationalized industries Industries that have by statute been taken
into public
ownership as <corporations. They are administered by
ministerially appointed
boards (rather than by government departments). The minister
controls and is
accountable to Parliament for matters of general policy, but the
day-to-day affairs of
the industries are managed by the boards alone and are not subject
to detailed
parliamentary scrutiny. Nationalized industries in the UKhave been
progressively
returned to the private sector through <privatization, mainly by
being floated on
the Stock Exchange as *public companies.
national treatment standard The doctrine that a state is only bound
to treat
aliens and their property in the same way as it would treat its own
citizens. Opposed
to the *international minimum standard, it is seen by its
proponents (originally
l.atin American countries) as counteracting the attempts of
economically and
politically powerful Western states to use international law to
impose their will on
less well-developed states. Its effect, however, has been to expose
foreign nationals to
objectionable standards in states that regularly maltreat their own
nationals.
natural child 1. An illegitimate child (see ILLEGITIMACY). Until
1969a gift by will to
one's "children" was presumed to exclude natural (illegitimate)
children, but there is
now a presumption that it does include them. 2. A child of one's
body, as opposed to
an adopted child.
naturalization n. The legal process by which a person acquires a
new nationality.
In the UK, *British citizenship or *British Dependent Territories
citizenship is
acquired by means of a certificate of naturalization. This is
granted by the Secretary
of State to an applicant who has satisfied statutory requirements
as to residence and
other matters and taken an *oath of allegiance.
natural justice Rules of fair play, originally developed by the
courts of equity to
control the decisions of inferior courts and then gradually
extended (particularly in
the 20th century) to apply equally to the decisions of
administrative and domestic
tribunals and of any authority exercising an *administrative power
that affects a
person's status, rights, or liabilities. Any decision reached in
contravention of natural
justice is void as *ultra vires. There are two principal rules. The
first is the rule
against bias (i.e. against departure from the standard of
even-handed justice
required of those who occupy judicial office) - nemo judex in causa
sua (or in
propria causa) (no man may be a judge in his own cause). This means
that any
decision, however fair it may seem, is invalid if made by a person
with any financial
or other interest in the outcome or any known bias that might have
affected his
impartiality. The second rule is known as audi alteram partem (hear
the other side).
It states that a decision cannot stand unless the person directly
affected by it was
given a fair opportunity both to state his case and to know and
answer the other
side's case.
natural law The permanent underlying basis of all law. The
philosophers of
ancient Greece, where the idea of natural law originated,
considered that there was a
kind of perfect justice given to man by nature and that man's laws
should conform
to this as closely as possible. Theories of natural law have been
an important part of
jurisprudence throughout legal history. Natural law is
distinguished from positive
law, which is the body of law imposed by the state. Natural law is
both anterior and
superior to positive law.
natural person A human being. Compare JURISTIC PERSON.
natural rights 1. (in *naturallaw) a. Rights conferred on all
individuals by the
natural law. b. The fundamental rights found in civilized nations
to which all men
are entitled without interference by the state. This concept of
natural law was
particularly popular in the 18th century. It has had great
influence in the legal
history of the USA, as seen, for example, in the Virginian
Declaration of Rights: "All
men are by nature equally free and independent and have certain
inherent natural
rights of which when they enter a society they cannot by any
compact deprive or
divest their posterity". See also HUMAN RIGHTS. 2. (in land law)
Rights automatically
belonging to a landowner, violation of which constitutes an
actionable *nuisance.
The most obvious and important of these is the landowner's right to
enjoy his land
in its natural state and not to have support for it eroded by the
activities of his
neighbours (for example through excavation or quarrying
operations). This right
relates to the land rather than to buildings on it, although
damages for infringing
the natural right of support may reflect the damage done to
buildings on the land
affected by the neighbours' activities. A natural right to water
may exist if it flows
naturally through the landowner's property via a defined channel.
Compare
EASEMENT.
naval court A court formerly convened under the Merchant Shipping
Act 1894
either by the captain of one of HM ships on foreign station or by a
consular officer.
Its purpose was to inquire into the abandonment or loss of any
British ship, any
complaint by an officer or seaman of such a ship, or any other
matter requiring
investigation in the interests of the owners of the ship or its
cargo. It reported to
the Department of Trade and Industry and had limited disciplinary
powers. A naval
court consisted of three to five members, each of whom was either a
naval officer,
the master of a British merchant ship, a consular officer, or a
British merchant (each
of the first three of these categories being represented if
possible).
Inquiries into the fitness or conduct of an officer are now
governed by the
Merchant Shipping Act 1995, at the instigation of the Secretary of
State. Inquiries
are held in public and are conducted by a lawyer or judge, assisted
by one or more
assessors appointed by the Lord Chancellor. The person appointed to
hear the
inquiry is required to announce his decision at the end of the
inquiry and to make a
report to the Secretary of State. The inquiry may cancel or suspend
any certificate
of competence issued to the officer concerned, or censure him, if
satisfied that he
did not act to the standards required of him.
naval law See SERVICE LAw.
naval property Any chattel belonging to the Crown that is issued,
or stored for
the purpose of being issued when required, for naval purposes.
Compare MILITARY
STORES.
navigation n. 1. The science of directing the course of a vessel or
aircraft. Loss
occasioned by improper navigation may arise even though a vessel IS
moored. 2. A
right to navigate inland waters.
necessaries pl. n. Goods or services suitable to the condition in
life ~nd actual
requirements of a minor or a person subject to incapaCIty,.e.g.
ssseutial clothmg.
Although such a person's legal *capacity to contract IS limited, he
must pay a
reasonable price for necessaries sold and delivered to him.
necessary in a democratic society An expression set out in a number
of the
articles of the *European Convention on Human Rights: it makes that
particular
right a *qualified right and provides a signatory state with a
defence of
*proportionality.
necessity n. Pressure of circumstances compelling one to ~ommit an
illegal act.
The extent to which English law accepts a defence of necessity to a
criminal charge
is unclear (compare DURESS; SELF-DEFENCE). There have, however,
been acquittals on this
basis when (1) a prisoner escaped from a burning gaol; and (2) the
crew ?f a ShIP
jettisoned the cargo (not belonging to them) to save the ShIP from
sinking. The
House of Lords has also recently ruled that a surgeon may have a
defence of
necessity if he operates in order to save life. Necessity is not,
however, a defence to
charges of theft Or murder (for example when ship-wrecked victims
kill and eat one
of their number) and it is not usually a defence to dnvmg offences.
The definitions
of some statutory offences incorporate such expressions as
"unlawfully" or "without
lawful authority or excuse" and so should admit necessity defences.
Other statu.tory
provisions (1) authorize police and fire officers, if necessary, to
?rea~( II~tO premises
when a fire has broken out and do everything necessary to
extinguish It; and (2)
provide qualified exemption from compliance with traffic lights for
fire engines,
ambulances, and police vehicles. . .
Necessity is in some circumstances a defence to an action in tort,
but It IS
probably limited to action taken to protect life or property in an
emergency not
caused by the defendant's negligence. The steps taken in the
emergency must be
reasonable.
negative clearance The procedure by which the European
C?mmission
determines that an agreement notified to it under the competrtion
rules of the
Treaty of Rome does not infringe the rules (see COMPETITION LAW).
Alternatively, for
agreements that infringe the rules, "block exemption may be
gTante~. Most
notifications contain an application for both negative clearance
and, If the
Commission determines that the rules apply, a block
exemption.
negative pregnant An evasive reply to an allegation in a statement
of case,
which - while being a literal response - in fact evades the true
matter at Issue'.For
example, if A denies that he received £1000from B,. this IS a
negative pre¥nant If he
in fact received a lesser amount and the matter at Issue was that
he received money
from B. Compare AFFIRMATIVE PREGNANT.
negative resolution See DELEGATED LEGISLATION.
neglect n. It is a criminal offence for a parent or gu~r~ian to
neglect their child in
a way that is likely to cause unnecessary suffering or injury to
health, when the
parent is aware of (or reckless as to) the likely consequences of
the neglect. Neglect
may also be evidence of *negligence and may gIve nse to a charge of
manslaughter
if the neglected person dies.
negligence n. 1. Carelessness amounting to the culpable breach of a
duty: failure
to do something that a reasonable man (i.e. an average
responsible citizen) would do,
or doing something that a reasonable man would not do. In cases of
professional
negligence, involving someone with a special skill, that person is
expected to show
the skill of an average member of his profession. Negligence may be
an element in a
few crimes, e.g. *careless and inconsiderate driving, and various
regulatory offences,
which are usually punished by fine. The main example of a serious
crime that may
be committed by negligence is *manslaughter (in one of its forms).
When negligence
is a basis of criminal liability, it is no defence to show that one
was doing one's best
if one's conduct still falls below that of the reasonable man in
the circumstances. See
also GROSS NEGLIGENCE. 2. A tort consisting of the breach of a
*duty of care resulting
in damage to the claimant. Negligence in the sense of carelessness
does not give rise
to civil liability unless the defendant's failure to conform to the
standards of the
reasonable man was a breach of a duty of care owed to the claimant,
which has
caused damage to him. Negligence can be used to bring a civil
action when there is
no contract under which proceedings can be brought. Normally it is
easier to sue for
*breach of contract, but this is only possible when a contract
exists. Generally, fewer
heads of damage can be claimed in negligence than in breach of
contract, but the
rules limiting the time within which actions can be brought (see
LIMITATION OF
ACTIONS) may be more advantageous for actions in tort for
negligence than for
actions in contract. See also CONTRIBUTORY NEGLIGENCE; RES IPSA
LOQUITUR.
negligent misstatement (negligent misrepresentation.
carelessstatement)
A false statement of fact made honestly but carelessly. A statement
of opinion may
be treated as a statement of fact if it carries the implication
that the person making
it has reasonable grounds for his opinion. A negligent misstatement
is only
actionable in tort if there has been breach of a duty to take care
in making the
statement that has caused damage to the claimant. There is no
general *duty of care
in making statements, particularly in relation to statements on
financial matters.
Responsibility for negligent misstatements is imposed only if they
were made in
circumstances that made it reasonable to rely on them. If a
negligent misstatement
induces the person to whom it was made to enter into a contract
with the maker of
the statement, the statement may be actionable as a term of the
contract if the
parties intended it to be a term or it may give rise to damages or
*rescission under
the Misrepresentation Act 1967(see also MISREPRESENTATION).
negotiable instrument A document that constitutes an obligation to
pay a sum
of money and is transferable by delivery so that the holder for the
time can sue
upon it in his own name. The transferee can enforce the obligation
even if the
transferor's title is defective, provided that he accepted the
document in good faith
and for value and had no notice of the defect. The most important
classes of
negotiable instruments are *bills of exchange (including cheques)
and *promissory
notes.
negotiation n. (in international law) A diplomatic procedure by
which
representatives of states, either by direct personal contact or
through
correspondence, engage in discussing matters of mutual concern and
attempt to
resolve disputes that have arisen in relations between
themselves.
negotiation of a bill The transfer of a *bill of exchange from one
person to
another so that the transferee becomes the holder. A bill payable
to bearer is
negotiated by *delivery; a bill payable to order is negotiated by
the *endorsement of
the holder completed by delivery. The issue of a bill to the payee
is not a
negotiation.
nemo dat quod non habet [Latin: no one can give what he has not
got] The basic
rule that a person who does not own property (e.g.a thief) cannot
confer it on
another except with the true owner's authority (i.e. as his agent).
Exceptions to this
rule include sales under statutory powers and cases in which the
doctrine of
*estoppel prevents the true owner from denying the authority of the
seller to sell.
nemo debet bis vexari [Latin: no man ought to be twice vexed] No
person should
be twice sued or prosecuted upon the same set of facts if there has
been a final
decision of a competent court. The maxim reflects the policy
underlying the
doctrine of *estoppel per rem judicatam and *issue estoppel.
nemo est heres viventis [Latin: no one is the heir of a living
person] A maxim
stating that a person's *heir can be ascertained only at the time
of his death, since
until then his heir apparent may die or be disinherited. Thus an
heir apparent has
no legal or equitable interest in property he expects to inherit
until it actually
devolves upon him.
nemo judex in causa sua (nernojudex in propria causa) See NATURAL
JUSTICE.
nemo tenetur seipsum accusare [Latin; no one is bound to
incriminate himself]
A maxim reflecting the policy underlying the *privilege against
self-incrimination.
nervous shock A recognizable psychiatric illness caused by shock,
as distinct from
normal grief, sorrow, or anxiety. Those involved in an accident,
who are known as
primary victims, can recover damages for shock. Recovery by others
(e.g. relatives of
the accident victims), known as secondary victims, is strictly
limited.
neutrality n. The legal status of a state that adopts a position of
impartiality
toward two other states who are at war with each other. The
impartial state accords
recognition of the state of belligerency between the two warring
parties and this, in
turn, creates rights and duties that fall upon all concerned.
neutralization n. The guarantee of the independence and political
and territorial
integrity of (usually) a small power by a collective agreement of
great powers,
subject to the condition that it will not take up arms against
another state, except
in self-defence, or enter into any treaty that may compromise its
neutrality.
new trial (retrial) A second trial of a case ordered by an
appellate court. In civil
cases the Court of Appeal may order a new trial on grounds
including misconduct
by the judge (such as a serious misdirection), serious procedural
irregularity, or (in
rare cases) because fresh evidence has come to light. In criminal
cases new trials are
rarely ordered, but the former requirement that the appeal had to
be based upon
the admission of fresh evidence has been abolished. See also VENIRE
DE NOVO.
next friend See LITIGATION FRIEND.
next of kin A person's closest blood relations. Parents and
children (including
those of unmarried parents) are treated as being closer than
grandparents,
grandchildren, or siblings.
NGO See NONGOVERNMENTAL ORGANIZATION.
NHS See NATIONAL HEALTH SERVICE.
NHS Trust A self-governing body within the *National Health Service
that
operates a local hospital. NHS Trusts, which are independent of
*Health Authority
control, have their own budgets and are responsible for their own
policies and
priorities.
nisi adj. [Latin) Not final or absolute. See also DECREE
NISI.
no case to answer A submission by the defending party in a court
action that
the claimant's or prosecution's case is not sufficient for the
defendant to need to
make any reply, either because of insufficient legal grounds or
because of
insufficient factual evidence. If the submission succeeds, judgment
is entered for
the defence.
no-fault compensation A scheme based on the principle that injured
persons
should receive compensation for their injuries without having to
prove fault against
any individual. The term is American in origin, and in the USAand
Canada it usually
refers to compensation schemes for injuries occurring in highway
accidents. New
Zealand introduced a comprehensive no-fault compensation scheme for
personal
injuries caused by accident in 1974,which replaced actions in tort
for personal
injuries, but the scope of the original scheme has since been
reduced. In the UK,
industrial disablement benefit is a form of no-fault
compensation.
noise n. See NUISANCE; NUISANCE NEIGHBOURS.
nolle prosequi [Latin: to be unwilling to prosecute) A procedure by
which the
*Attorney General may terminate criminal proceedings. The entry of
a nolle prosequi
automatically terminates criminal proceedings on *indictment, but
the leave of the
court is required in the case of a *summary trial. The procedure is
most commonly
employed when the accused cannot be produced in court to plead or
stand his trial
owing to physical or mental incapacity that is expected to be
permanent. It is also
sometimes used when the Attorney General considers that a
prosecution is not in
the public interest. His decision is not subject to any control by
the courts. Unlike
an acquittal, a nolle prosequi does not bar a further
prosecution.
nominal capital See AUTHORIZED CAPITAL.
nominal damages A token sum of *damages awarded when a legal right
has
been infringed but no substantial loss has been caused.
nomination n. 1. The naming of a person for a vacant post or office
or as a
candidate in a parliamentary or local-government election. 2. The
naming by a
member of a friendly society of a person to take his interest in
the society on his
death, without the need for a formal will. The member must be 16 or
over and the
nomination must be made in writing; it may be revoked at any time
by the member
himself and is, in any event, revoked on his marriage.
nominee shareholder A company member who holds the shares
registered in
his name for the benefit of another. The identity of the person
with the true
interest may be subject to disclosure and to investigation under
the Companies Act.
nonage n. The period during which someone is under the age of
majority (18
years). See INFANT.
noncohabitation order An order made by magistrates relieving a wife
of the
duty of living with her husband. Since 1978noncohabitation orders
have been
abolished, but orders made before 1978may still be of relevance in
*divorce
proceedings.
noncommercial agreement A *consumer-credit agreement or a
*consumer-hire
agreement that is made by a creditor or owner but not in the course
of a business
carried on by him. Such an agreement is outside certain of the
provisions of the
Consumer Credit Act 1974.
noncontentious business Any business of a solicitor that is not
*contentious
business, i.e. it is business of a nonlitigious character.
nondisclosure n. 1. (concealment) (in contract law) The failure by
one party,
during negotiations for a contract, to disclose to the other a fact
known to him that
would influence the other in deciding whether or not to enter into
the contract. A
full duty of disclosure exists only in the case of contracts
*uberrimae fidei, which are
usually contracts of insurance. If the person to be insured tells
an untruth, the
contract will (like any other) be voidable for *misrepresentation;
if this person also
suppresses a material fact, it will be voidable for nondisclosure.
In the case of other
contracts, there is no general duty to volunteer information and
mere silence cannot
constitute misrepresentation. There is, however, a very limited
duty of disclosure. A
person who does volunteer information must not tell only a partial
truth and must
correct any statement that subsequently becomes to his knowledge
untrue; breach
of this duty will render the contract voidable for
misrepresentation. 2. (in court
procedure) Failure of a party to include a document that should
have been disclosed
in his list of documents (see DISCLOSURE AND INSPECTION OF
DOCUMENTS). The other
party may seek an order for specific disclosureof the document or
an order
requiring the party making disclosure to verify his list of
documents by *affidavit.
nondiscrimination notice Notice served by the Commission for Racial
Equality
or by the Equal Opportunities Commission requiring an offender who
has practised
illegal *racial discrimination or *sex discrimination not to commit
such acts.
non est factum [Latin, from non est factum suum, it is not his
deed] A plea that an
agreement (originally a deed) mentioned in the statement of case
was not the act of
the defendant. It can be used as a defence to actions based on
*mistakes in
documents when the defendant was fundamentally mistaken as to the
character or
effect of the transaction embodied in the document.
nonfeasance n. Failure to perform an act required by law. Until
1961, a highway
authority guilty of nonfeasance by failing to carry out repair and
maintenance was
not liable for injuries caused because of this. It was, however,
liable for
*misfeasance. The defence of nonfeasance was then abolished by
statute, but an
authority can plead instead the statutory defence that it took all
reasonable care to
secure that the highway was not dangerous.
nongovernmental organization (NGO) A private international
organization
that acts as a mechanism for cooperation among private national
groups in both
municipal and international affairs, particularly in economic,
social, cultural,
humanitarian, and technical fields. Under Article 71 of the United
Nations Charter,
the Economic and Social Council is empowered to make suitable
arrangements for
consultation with NGOs on matters within its competence.
nonjoinder n. A plea in *abatement alleging that the claimant had
failed to join
all necessary parties in the action. In modern practice this does
not cause the action
to abate but it can be rectified by *amendment.
nonjury list A list of cases for trial by judge alone in the High
Court. See also LISTS.
nonmolestation order A wide-ranging order under the Family Law Act
1996
restraining a person (the respondent) from attacking or going near
someone
associated with the respondent (such as a cohabitant, spouse, or
parent) or from
otherwise doing what the court orders him not to do. See also
BATTERED SPOUSE OR
COHABITANT; MOLESTATION.
nonprovable debt A debt that cannot be claimed in the course of
*bankruptcy
proceedings. Examples are *statute-barred debts and debts that
cannot be fixed or
estimated. Compare PRoVABLE DEBT.
nonresident parent A parent who is not living with his or her child
and who
may be liable to pay *child support maintenance. Nonresident
parents were
formerly known as absent parents.
nonsuit n. 1. The withdrawal by a judge of a case from a jury with
a verdict being
entered in favour of the accused. 2. Formerly, a claimant's
withdrawal from a civil
court action.
non-user n. The failure to exercise a right over land, which may be
extinguished if
the non-user continues for a sufficient period. See LIMITATION OF
ACTIONS.
Northern Ireland Assembly A body established under the Northern
Ireland Act
1998. It consists of 108 elected members and has limited primary
legislative powers
in such areas as agriculture, the environment, economic
development, health,
education, and social security. See DEVOLUTION.
notary (notary public) n. A legal practitioner, usually a
solicitor, who attests or
certifies deeds and other documents and notes or *protests
dishonoured bills of
exchange. Ecclesiastical notaries are usually diocesan registrars
and the legal
secretaries of bishops; general notaries may practise anywhere in
England and
Wales; and district notaries practise in a limited area. Diplomatic
and consular
officials may exercise notarial functions outside the UK.
not guilty 1. A denial of the charges by an accused person in
court. If there is
more than one charge, the accused may plead guilty to some and not
guilty to
others. 2. A *verdict finding that an accused person has not
committed the offence
with which he was charged. However, he may, at the same time, be
found guilty of
other offences. See also ACQUITTAL; INSANITY.
notice n. 1. Knowledge of a fact. A person is said to have *actual
notice of
anything that he actually knows; *constructive notice of anything
that he ought
reasonably to know (for example, any fact that he would have
discovered if he had
made any inquiry that a reasonable man would have made); and
*imputed notice of
anything of which any agent of his has actual or constructive
notice. 2. (in
employment law) Formal notification, given by either of the parties
to a contract of
employment, that the contract is to be terminated after a specified
period. The
period of notice to which each party is entitled is governed by the
contract, subject
to statutory minimum periods if the employee has been continuously
employed in
the business (see CONTINUOUS EMPLOYMENT) for more than four weeks.
An employee
who has been so employed for up to two years is entitled to a
week's notice; one
employed for a longer period is entitled to one week's notice for
each year's
continuous employment up to 12 years. Thus an employee who has been
employed
for 20 years must be given a statutory minimum of 12 weeks' notice,
although his
employment contract may entitle him to a longer period, which takes
priority. An
employee with four weeks' continuous employment must give at least
one week's
notice of his resignation. An employee whose conduct justifies
immediate dismissal
is treated as waiving his right to notice, as is an employer whose
conduct amounts
to *constructive dismissal. A fixed-term contract cannot be
terminated by notice
unless the contract expressly provides for this. 3. (in land law)
An entry against a
registered title that may be lodged by a person with a right or
interest in the land
comprised in the title. The rights and interests that may be
protected by a notice
are listed in the Land Registration Act 1925,and a notice must
always specify the
right or interest it seeks to protect. A notice differs from a
*caution or an
*inhibition in that dealings with the land affected may still take
place, but they will
have effect subject to the right or interest protected by the
notice. 4. (in
*Community legislation) A nonbinding document. Notices are often
issued by the
European Commission to explain further details of a competition
regulation, for
example in relation to exclusive distribution and purchasing
agreements,
cooperation agreements, subcontracting agreements, agency
agreements, and the
distinction between cooperative and concentrative *joint ventures.
Notices are not
binding on the Commission, whereas regulations are; however, in
practice it would
be very rare for the Commission to depart from policies set out in
a notice.
notice of abandonment See ABANDONMENT; CONSTRUCTIVE TOTAL
LOSS.
notice of discontinuance Notice served by a claimant (or by a
defendant in
respect of a *counterclaim) voluntarily giving up all or part of a
claim. In general, a
claimant may discontinue by filing a notice of discontinuance with
the court and
serving copies on all parties. Discontinuance does not require the
permission of the
court except in the following circumstances: (1) when an interim
injunction has
been granted; (2)when an undertaking to the court has been given;
(3)when the
claimant has received an interim payment; or (4)when there is more
than one
claimant.
notice of dishonour A notice that must be given by the holder of a
*bill of
exchange to the drawer and to each endorser when the bill has been
dishonoured;
any drawer or endorser to whom notice is not given is discharged.
The notice must
identify the bill and state that it has been dishonoured by
nonacceptance or
nonpayment. The notice must be given within a reasonable time of
the <dishonour
(to which strict rules apply). Certain excuses are recognized for
failure to give notice
or delay.
notice of intended prosecution A written notice issued to someone
charged
with any of certain specified driving offences stating that he or
she will be
prosecuted. These offences are: *speeding, "dangerous driving,
*careless and
inconsiderate driving, *ignoring traffic signals, and leaving a car
in a dangerous
position (see OBSTRUCTION). If the offender was not warned when he
committed the
offence that he might be prosecuted for it, he cannot normally be
subsequently
prosecuted unless he is served with either a summons or a notice of
intended
prosecution within 14 days of committing the offence. If he is
prosecuted
nonetheless, he may appeal against his conviction. If the notice
was posted by
registered or recorded mail so that it would normally have arrived
within the 14
days, the motorist cannot plead that he did not receive it within
that time. It is not
necessary to serve a notice of intended prosecution when: (1) an
accident happened at
the time of the alleged offence owing to the presence on the road
of the car
involved in the alleged offence; (2) it was not possible to find
out the name and
address of the accused (or registered owner) in time; or (3) the
motorist is charged
with *causing death by dangerous or careless driving or *drunken
driving.
notice to produce Notice by one party to a civil action requiring
another to
produce documents in his possession at the trial. If he fails to do
so, *secondary
evidence of the documents may be given. If there has been
*disclosure and
inspection of documents, the person making disclosure is deemed to
be on notice to
produce the documents that he stated were in his possession,
custody, or power.
notice to quit The formal notification from a landlord to a tenant
(or vice versa
terminating the tenancy on a specified date. The notice must be
clear and
unambiguous and it must terminate the tenancy in relation to the
whole of the
rented property: a notice to quit part of the property can be valid
only if
specifically allowed by the tenancy. When the tenant lives in the
rented property,
the notice to quit must be in a statutory form that tells the
tenant his legal rights.
Otherwise no particular form is required for a notice to
quit.
The period of notice varies according to the kind of tenancy and
any agreement
between the parties. In the case of periodic tenancies for which no
period has been
agreed the following periods apply: a yearly or longer tenancy -
six months; a
monthly tenancy - one month; a quarterly tenancy - one quarter; a
weekly tenancy
- one week. The notice must be given so that it expires at the end
of one of the
periods of the tenancy, for example in a yearly tenancy beginning
on 1 January, the
notice must expire on 31 December. If tenants have statutory
protection this can
affect the length of the notice to quit. Thus residential tenants
must be given at
least four weeks' notice, tenants of *agricultural holdings must be
given a year's
notice, and tenants of *business tenancies are entitled to at least
six months' notice.
In these cases a tenant may be entitled to continue in occupation
of the rented
property even after the notice to quit has expired. If the landlord
treats the tenancy
as continuing after the notice to quit has expired, a new tenancy
may be created.
notice to treat A notice required to be given, under the Compulsory
Purchase Act
1965, by an acquiring authority to all persons interested in or
having power to sell
and conveyor release land proposed to be compulsorily acquired (see
COMPULSORY
PURCHASE). The notice must give particulars of the land concerned,
demand
particulars of the recipient's estate and interest in the land and
of his claim in
respect of it, and state that the acquiring authority is willing to
negotiate for the
purchase of the land and regarding compensation payable for
damage.
noting a bill See PROTEST.
not negotiable Words marked on a crossed cheque indicating that a
transferee
for value of the cheque gets no better title to it than his
transferor had. Since the
Cheques Act 1992most banks have printed cheques that are not
negotiable. A bill of
exchange so marked is not transferable.
not proven A "verdict used in Scottish courts when the
prosecution's case has not
reached a sufficient standard of proof to establish the accused
person's guilt, but
there is some doubt about his innocence. The effect is the same as
a not guilty
verdict: the accused is released and cannot be tried again for the
same offence.
nova causa interveniens See NOVUS ACTUS INTERVENIENS.
novation n. The substitution of a new contract for one already
existing. The new
contract may be between the same parties or it may involve the
introduction of a
new party, as in the case of the substitution of debtors. If A owes
B £100and Bowes
C £100, novation would occur if all three agreed that the existing
debts were to be
extinguished and that A is to pay C a new debt of £100. Novation
should be
distinguished from *assignment of a commercial agreement, in which
no new
agreement is needed and the benefit of a contract is transferred to
the assignee.
novus actus interveniens (nova causa interveniens) [Latin: a new
intervening
act (or cause)] An act or event that breaks the causal connection
between a wrong or
crime committed by the defendant and subsequent happenings and
therefore
relieves the defendant from responsibility for these happenings.
See CAUSATION.
no win, no fee See CONDITIONAL FEE AGREEMENT; MAINTENANCE AND
CHAMPERTY.
nudum pactum [Latin: naked agreement] See CONSIDERATION.
nuisance n. An activity or state of affairs that interferes with
the use or
enjoyment of land or rights over land (private nuisance) or with
the health, safety,
or comfort of the public at large (public nuisance). Private
nuisance is a tort,
protecting occupiers of land from damage to the land, buildings, or
vegetation or
from unreasonable interference with their comfort or convenience by
excessive
noise, dust, fumes, smells, etc. An action is only available to
persons who have
property rights (e.g. owners, lessees) or exclusive occupation.
Thus, for example,
lodgers and members of a property owner's family cannot sue in
private nuisance.
Physical damage is actionable when the damage is of a type that is
reasonably
foreseeable and provided it does not arise solely because the
claimant has put his
land to a hypersensitive use. Interference with comfort is
actionable when it is
considered unreasonable as judged by a number of factors, the most
important of
which is the nature of the locality. The main remedies are damages
and an
injunction. Alternatively there is a limited right to abate
(i.e.remove) the nuisance.
Public nuisance is a crime. At common law it includes such
activities as
*obstruction of the highway, carrying on an offensive trade, and
selling food unfit
for human consumption. The Attorney General or a local authority
may bring a civil
action for an injunction on behalf of the public but a private
citizen may obtain
damages in tort only if he can prove some special damage over and
above that
suffered by the public at large.
Statutory nuisances are created by provisions dealing with noise,
public health,
and the prevention of pollution and permit a local authority to
control
neighbourhood nuisances by the issue of an *abatement notice.
The Protection from Harassment Act 1997enables individuals to be
prevented
from harassing their neighbours (see NUISANCE NEIGHBOURS).
nuisance neighbours People who disturb the lives of those living
nearby by
interfering with their *quiet enjoyment of their homes. The
Protection from
Harassment Act 1997provides enhanced protection for those suffering
*nuisance
(including noise) from their neighbours. Restraining orders can be
obtained, which
require the offender to do what the court orders (e.g. not to
communicate, go near,
or harass their neighbours); in some circumstances *eviction may be
ordered.
Offenders threatening violence can be jailed for up to five years
and/or be subjected
to an unlimited fine; even if the harassment does not give rise to
fear for safety, the
offender faces up to six months in jail and/or a fine of up to
£5000.
nulla poena sine lege [Latin: no punishment without a law] The
principle that a
person can only be punished for a crime if the *punishment is
prescribed by law.
The punishment may be specified by a statute as a term of
imprisonment or fine or
it may be based on common-law principles. With the exception of
treason and
murder, for which the punishment is fixed, all statutory
punishments are expressed
in terms of the maximum possible punishment; judges have discretion
to impose a
lesser punishment according to the circumstances. At common law
punishment is
said to be at large, i.e. the amount of the fine or length of the
prison sentence is
entirely at the judge's discretion. In many cases, however, there
are now statutes
specifying the maximum punishment for common-law offences.
Magistrates' courts
are subject to shorter maxima than Crown courts; they are also
usually subject to a
minimum sentence of five days in cases of imprisonment.
nullity of marriage The invalidity of a marriage due to some defect
existing at
the time the marriage was celebrated (or, sometimes, arising
afterwards). A marriage
may be null in the sense that it is void, i.e. it was never in
the eyes of the law a
valid marriage (and the "spouses" are legally merely cohabitants).
It may
alternatively be voidable, i.e, valid until made void by a court
decree of
*annulment, which (since 1971) does not end the m,lrnage
retrospectIvely (so that,
for example, the children of a marriage that is annulled will not
be regarded as
illegitimate). The form of decree, however, always states that the
ma~riage."is and
has been null and void". The main grounds for nullity are: close
relationship, lack of
age, lack of consent, and nonconsummation (see CoNSUMMATION OF
AMARRIAGE). When
granting a decree of nullity the court has wide discretionary
powers to make orders
for *financial provision or *property adjustment. See also
LEGITIMACY.
nul/urn crimen sine lege [Latin: no crime without a law] The
principle that
conduct does not constitute crime unless it has previously been
declared to be so by
the law; it is sometimes known as the principle of legality. Some
serious offences
are well-defined common-law offences (although the details relating
to their
definition may often be unclear until ruled upon by the judges);
many regulatory
offences (e.g. those involving road traffic and the nlanufacture of
products) are
constantly being created by statute. The principle is violated by
the power
occasionally attributed to judges to create new offences in order
to punish morally
harmful conduct (such as *conspiracy to outrage public
decency).
nunc pro tunc [Latin: now instead of then] A phrase used of a
judgment that is
entered in such a way as to have legal effect from an earlier
date.
nuncupative will An oral statement directing how property is to be
distributed
after death, Except in the case of *privileged wills and *donatio
mortis causa, such
statements have no effect in English law.
O
oath n. A pronouncement swearing the truth of a statement or
promise, usually by
an appeal to God to witness its truth. An oath is required by law
for various
purposes, in particular for *affidavits and giving evidence in
court. The usual
witness's oath is: "I swear by Almighty God that the evidence which
1 shall give
shall be the truth, the whole truth and nothing but the truth".
Those who object to
swearing an oath, on the grounds that to do so is contrary to their
religious beliefs
or that they have no religious beliefs, may instead *affirm.
oath of allegiance An oath to be faithful and bear true allegiance
to the Crown.
It is taken by members of both Houses at the opening of every new
Parliament, by
certain officers of the Crown on their appointment, and by those
who become
British citizens, British Dependent Territories citizens, British
Overseas citizens or
British subjects by registration, or British citizens or British
Dependent Territories
citizens by naturalization.
obiter dictum [Latin: a remark in passing) Something said by a
judge while giving
judgment that was not essential to the decision in the case. It
does not form part of
the *ratio decidendi of the case and therefore creates no binding
jJtecedent, but may
be cited as *persuasive authority in later cases.
objection in point of law A form of pleading by a defendant in his
defence that
raises an issue of law. When such an objection is raised the court
may order the
issue to be tried as a *preliminary point of law.
objection to indictment A procedure in which the accused in a
*trial on
indictment attempts to prove some objection to the indictment on
legal grounds
(e.g. that it contravenes, or fails to comply with, an enactment).
The objection is
raised by application to quash the indictment.
objects clause See MEMORANDUM OF ASSOCIATION; ULTRA VIRES.
objects of a power Persons in whose favour a *power of appointment
may be
exercised, i.e. potential appointees.
obligation n. 1. A legal duty. 2. A *bond by deed.
obliteration n. The deletion of words in a will. An obliteration is
valid only if the
words deleted are indecipherable or if the alteration is properly
signed and
witnessed.
obscene publications Material that tends to deprave or corrupt.
Under the
Obscene Publications Acts 1959 and 1964 it is an offence to publish
an obscene article
or to have an obscene article for publication for gain. For the
purposes of the Acts,
obscenity is not limited to pornographic or sexually corrupting
material: a book
advocating drug taking or violence, for instance, may be obscene.
Whether or not
particular material is obscene is a question of fact in each case,
to be decided by the
jury, and expert evidence is not usually permitted. Material that
merely tends to
shock or disgust is not obscene. The intention or motive of the
author in writing or
depicting the material is irrelevant.
"Publishing" an obscene article includes distributing, circulating,
giving, hiring, or
lending the article, offering it for sale or hire (the latter does
not include displaying
such material in a shop, which is merely an invitation to treat
and not an offer), or
transmitting it through the telephone system by means of a modem.
An "article"
may be material that is to be looked at or played over, rather than
read, and can also
include, for instance, a negative of a film or any article used to
reproduce material
to be read or looked at. This offence is one of *strict liability,
but there is a defence
of lack of knowledge, if the defendant can show he had not examined
the article
and had no reason to suspect that publishing it would constitute an
offence. There
is also a special defence of public good, which applies when the
defendant shows
that publication of the article was justified as being in the
interests of science,
literature, art, or learning. The offence of possessing an obscene
article in the
expectation that it will be published for financial gain is also
subject to the defences
of lack of knowledge and public good. If a magistrate suspects that
obscene articles
are kept in any premises for this purpose, he may issue a warrant
authorizing the
police to search for and seize the articles. If they prove to be
obscene, the magistrate
may order them to be forfeited.
The Acts do not apply to material published by means of television
or
broadcasting, but they do apply to cinema screening and theatre
performances,
subject to the rule that prosecutions in such cases require the
consent of the
Director of Public Prosecutions or the Attorney General,
respectively. These offences,
too, are subject to the public good defence.
There are also various special offences relating to obscenity, e.g.
publishing
obscene advertisements, sending unasked for material describing
sexual techniques,
or sending through the post any "indecent or obscene article" (the
latter offence is
limited to sexual obscenity, but also includes material that is
merely indecent). It is
an offence to take, make, distribute, or possess indecent
photographs or pseudophotographs
of a child; a "pseudo-photograph" is an image, created by
computer
graphics or any other means, that resembles a photograph and can
include
electronically stored data that can be converted into such images.
These offences are
*arrestable offences, which may be tried either summarily or on
*indictment and
attract a sentence of up to six months' imprisonment and/or a fine
on level 5.
obscene telephone calls It is a *summary offence to make an
obscene,
offensive, or annoying telephone call. The maximum punishment is
three months'
imprisonment and/or a *fine on level 5.
obstructing a police officer The offence of hindering a police
officer who is in
the course of doing his duty. "Obstruction" includes any
intentional interference, e.g.
by physical force, threats, telling lies or giving misleading
information, refusing to
cooperate in removing an obstruction, or warning a person who has
committed a
crime so that he can escape detection (e.g.warning a speeding
driver that there is a
police trap ahead). It is not, however, an offence merely not to
answer, or to advise
someone not to answer, police questions that he does not have to
answer. A police
officer is acting in the course of his duty if he is preventing or
detecting crime (in
particular, breaches of the peace) or obeying the orders of his
superiors. However, he
is not acting in the course of his duty when he is merely assisting
the public in
some way unconnected with crime. When the obstruction amounts to an
*assault,
the offence is punishable by imprisonment and/or a fine. One may be
guilty of this
offence even if the police officer was in plain clothes. There is
no power of arrest
unless accompanied by a breach of the peace.
obstruction n. The offence of causing or allowing a motor vehicle,
trailer, or
other object to stand on a road in such a way that it is likely to
impede other road
users or to use a vehicle on the road in a similar way (e.g.by
driving unreasonably
slowly). It is unnecessary to show that any other vehicle or person
has in fact been
obstructed. This offence is punishable by a fine. It is also an
offence to leave a motor
vehi· 1eon a road in such a position or in such circumstances that
it is likely to cause
danger to other road users. This offence requires a "notice of
intended prosecution
and is punishable by a fine, *endorsement (which carries 3 penalty
points under the
*totting-up system), and discretionary *disqualification.
obstruction of recovery of premises See RECOVERY OF PREMISES.
occupation n. 1. (in land law) The physical possession and control
of land. Under
the Land Registration Act 1925 the proprietary rights of a person
in actual
occupation may be an "overriding interest binding a purchaser of
registered land,
unless inquiry is made of that person and the rights are not
disclosed. Under the
Family Law Act 1996,spouses have rights of occupation in the
*matrimonial home
by virtue of marriage, which may be capable of protection as *land
charges. 2. (in
international law) The act of taking control of territory belonging
either to no one
(peaceful occupation) or to a foreign state in the course of a war
(belligerent
occupation). Peaceful occupation is one of the methods of legally
acquiring
territory, provided the occupier can show a standard of control
superior to that of
any other claimant. Denmark acquired Greenland in this way, and the
UK acquired
Rockall. A belligerent occupant cannot acquire or annex the
occupied territory
during the course of the war. Certain provisions for the protection
of enemy
civilians in the Hague and Geneva Conventions are applied to those
parts of the
enemy territory that have been effectively occupied. A belligerent
occupier must
retain in force the ordinary penal laws and tribunals of the
occupied power, but
may alter them or impose new laws to ensure the security and
orderly government
of the occupying forces and administration. The government in exile
is also
regarded as continuing to represent the occupied state in
international law without
any special *recognition being necessary. See also CESSION;
SUCCESSION.
occupation order Any of various orders under the Family Law Act
1996 relating
to occupation of the *matrimonial home in cases of domestic
violence. The orders
can enforce the rights of co-owning spouses or spouses with
*matrimonial home
rights to occupy the home and provide for the exclusion of the
respondent from the
home or from any part of it. The orders can also extend similar
rights to nonowning
ex-spouses, whether or not they are actually in occupation, and
also - under certain
circumstances - to cohabitants or ex-cohabitants. See alsoBATTERED
SPOUSE OR
COHABITANT.
occupier n. A person in possession of land or buildings as owner,
tenant, or
trespasser. If he is a trespasser he may obtain a right to lawful
occupation if the
owner accepts money from him as rent, in which case a tenancy may
be created, or
through *adverse possession for a sufficient period.
occupier's liability The liability of an occupier of land or
premises to persons on
the land for the condition of the premises and things done there.
The occupier for
this purpose is the person or persons exercising control over the
premises. At
common law the extent of an occupier's liability varied according
to whether the
person on the land entered under a contract, as an *invitee, as a
"Iicensee, or as a
trespasser. The common law rules have been replaced by statutes.
The English
statutes distinguish between visitors and other persons on land.
The Occupiers'
Liability Act 1957 imposes on an occupier a *common duty of care to
all his visitors
(i.e. those who enter by his invitation or with his permission) to
see that they will be
reasonably safe in using the premises for the purpose for which
they were invited
or permitted to be there. Under the Occupiers' Liability Act
1984,an occupier only
owes a duty to persons other than visitors (i.e. trespassers and
persons who enter
lawfully but without the occupier's permission) if the occupier is
aware or has
reasonable grounds to know of a danger on the premises and that a
person may be
in the vicinity of the danger and the risk is one against which he
may reasonably be
expected to offer some protection. The duty, if any, is confined to
taking such care
as is reasonable in all the circumstances to see that the danger
does not cause death
or personal injury to the person concerned. The duty may be
discharged by taking
such steps as are reasonable to give warning of the danger or to
discourage persons
from incurring the risk.
In Scotland, the Occupiers' Liability (Scotland) Act 1960 requires
an occupier to
show to all persons entering the premises such care as is
reasonable in all the
circumstances of the case.
occupying tenant A person in possession of premises in accordance
with his
rights under a lease or tenancy agreement. or as a *statutory
tenant, assured .
agricultural occupier, or a *protected occupier, or under his
rights as a tenant WIth
a *restricted contract.
offence n. A *crime. The modern tendency is to refer to crimes as
offences.
Offences may be classified as *indictable or *summary and as
*arrestable or
nonarrestable.
offences against international law and order Crimes that affe~t the
p~oper
functioning of international society. Some authorities regard
so-called mternatlO~al
crimes as crimes of individuals that all or most states are bound
by treaty to pumsh
in accordance with national laws passed for that purpose. Examples
of this type of
crime are *piracy, *hijacking, and *war crimes. The International
Law Commission
has formulated Draft Articles on State Responsibility, which
attempt to defme
international crimes for which individual states are liable. It
gives as examples: (1) a
serious breach of an international obligation essential to
safeguard international
peace (e.g. aggression) or peoples' rights to self-determination
(e.g. colonial .
domination by force); (2) a widespread and serious breach of
obligations essential to
safeguard individuals (e.g. slavery, *genocide, or apartheid) or
the environment (e.g.
massive pollution).
offences against property Crimes that affect another person's
rights of
ownership (or in some cases possession or control). The main
offences against
property are *theft, offences of *deception and *making off without
payment,
*criminal damage, *arson, *forgery, and *forcible entry. Some
offences against
property, such as *burglary, *robbery, and *blackmail, may also
contain elements of
*offences against the person.
offences against public order Crimes that affect the smooth running
of
orderly society. The main offences against public order are *riot,
*violent disorder,
*affray, *threatening behaviour, stirring up *racial hatred, public
*nuisance, and
*obstruction of highways. See also RAVE; TRESPASS.
offences against the person Crimes that involve the use or threat
of physical
force against another person. The main offences against the person
are *homicide,
*infanticide, illegal *abortion, *causing death by dangerous
driving, and *causing
death by careless driving (fatal offences against the person); and
*torture, *rape,
*wounding, causing or inflicting *grievous bodily harm, *assault,
aggravated
assault, *battery, *kidnapping, and offences involving *indecency
(nonfatal offences
against the person). See also POISON.
offences against the state Crimes that affect the security of the
state as a
whole. The main offences against the state are <treason and
*misprision of treason,
*sedition (and incitement to *mutiny), offences involving *official
secrets, and acts
of *terrorism.
offences relating to road traffic Crimes that are associated with
driving
vehicles on public roads and related acts. The main offences in
this category are
*careless and inconsiderate driving, *causing death by careless
driving, *dangerous
driving, *causing death by dangerous driving, "drunken driving,
*driving while
disqualified, *driving without insurance, *driving without a
licence, *speeding,
*ignoring traffic signals, *parking offences, and *obstruction.
Some road traffic
offences require *notice of intended prosecution. Road traffic
offences carry various
penalties or combinations of penalties, such as fines, *endorsement
of driving
licence, *disqualification from driving, and in some circumstances
imprisonment.
The court may also make a *driving-test order. Many road traffic
offences (especially
the minor ones) are offences of *strict liability. See alsoDRIVING
LICENCE; MOT TEST;
ROAD TRAFFIC ACCIDENTS; ROAD TAX; SEAT BELT; VEHICLE CONSTRUCTION
AND MAINTENANCE.
offences triable either way Crimes that may be tried either as an
*indictable
offence or a *summary offence. These include offences of deception,
theft, bigamy,
and sexual intercourse with a girl under the age of 16.
When an offence is triable either way, the magistrates' court must
decide, on
hearing the initial facts of the case, if it should be tried on
indictment rather than
summarily (for example, because it appears to be a serious case).
Even if they decide
that they can deal with the matter adequately themselves, they must
give the
defendant the choice of opting for trial upon indictment before a
jury. There are
three exceptional cases, however. (1) If the prosecution is being
conducted by or on
behalf of the Attorney General, Solicitor General, or Director of
Public Prosecutions,
and they apply for trial on indictment, the case must be tried on
indictment. (2) If
the case concerns criminal damage or any offences connected with
criminal damage
(except arson), and the damage appears to be less than £400, the
case must be tried
summarily. (3) If the defendant is a child or young person, he must
be tried
summarily unless: (a)he is charged with homicide; (b) he is charged
jointly with
someone over 17,and it would be better if they were tried together;
or (c)he is aged
between 14 and 17 and charged with an offence punishable by 14
years'
imprisonment or more, and the court thinks that he should be
sentenced to a long
period of detention.
offender n. One who has committed a *crime. See also FIRST
OFFENDER; FUGITIVE
OFFENDER; JUVENILE OFFENDER; REPEAT OFFENDER.
offensive weapon Any object that is made, adapted, or intended to
be used to
cause physical injury to a person. Examples of objects made to
cause injury are
revolvers, coshes, and daggers; objects adapted to cause injury
include bottles
deliberately broken to attack someone with and sawn-off shotguns.
In theory any
object may be intended to be used to cause injury, but articles
commonly intended
for such use include sheath knives (or any household knife), pieces
of wood, and
stones.
It is an offence under the Prevention of Crime Act 1953 to have an
offensive
weapon in one's possession in a public place. This offence is
punishable summarily
by up to six months' imprisonment and/or a *fine at level 5 on the
standard scale or
on indictment with up to two years' imprisonment and/or a fine, and
the court may
order the weapon to be forfeited. There are special exceptions for
those (such as
soldiers or police officers) who carry offensive weapons in the
course of duty a~d in
cases of "reasonable excuse", but the defendant must prove that he
comes within
these categories. Self-defence is not usually a reasonable excuse
unless there is an
imminent and particular threat.
It is also an offence (finable only), under the Criminal Justice
Act 1988, to possess
in a public place a bladed or sharply pointed article (other than a
folding penknife
with a blade of three inches or less). Here, it is a defence to
prove that the article
was for use at work, for religious reasons (e.g. a Sikh's dagger),
or part of a national
costume, or that there was authority or good reason for its
possession. The 1988 Act
also gives the Home Secretary power to prohibit the manufacture,
sale, hire, and
importation of certain offensive weapons.
See alsoFIREARM; WEAPON OF OFFENCE; PROHIBITED WEAPON.
offer n. An indication of willingness to do or refrain from doing
something that is
capable of being converted by *acceptance into a legally binding
*contract. It is
made by an offeror to an offeree and is capable of acceptance only
by a~ offeree
who knows of its existence. Thus, a person giving information
cannot claim a
reward if he did not know that a reward was being offered. An offer
must be
distinguished from an invitation to treat, which is an invitation
to others to make
offers, as by displaying goods in a shop window; and a declaration
of intention,.
which is a mere statement of intent to invite offers in the future,
as by advertising
an auction. See also LAPSE OF OFFER; REJECTION OF OFFER; REVOCATION
OF OFFER.
office copy An exact copy of an official document, supplied and
marked as such
by the office that holds or issues the original. Office copies are
generally admissible
in evidence to the same extent as the original. Thus office copies
of entries recorded
at HM Land Registry are used in *conveyancing as evidence of title
to registered
land, and an office copy grant of probate may be used to prove an
executor's right
to receive or deal with the deceased's assets.
Office for the Supervision of Solicitors (055) The body that deals
with
complaints about solicitors; it was previously called the
Solicitors Complaints
Bureau.
Office of Fair Trading See DIRECTOR GENERAL OF FAIR TRADING.
Official Custodian for Charities A corporation sole created by the
Charities Act
1960 for the purpose of acting as a custodian trustee of property
held for charitable
purposes. It is now governed by the Charities Act 1993and is
currently a member of
the Charity Commission staff.
Official Journal (OJ) The official organ of the European Union,
usually published
every day and in each of the official languages of the ED.It is
currently divided into
two parts. One part (designated L)contains *Community legislation
and bears
references in the style "OJ [1997] L 23". The other (designated C)
contains proposals of
the European Commission, reports of proceedings in the European
Parliament,
notices concerning matters in the European Court, and other matters
of general
information; it carries references in the style "OJ [1997] C 23".
There is a daily
supplement containing publication of notices of public works and
supply contracts
and invitations to tender (see PUBLIC PROCUREMENT). The OJ can be
bought from The
Stationery Office and is published daily on the Internet.
Official Petitioner The *Director of Public Prosecutions when
acting in respect
of an application for a criminal bankruptcy order under the Powers
of Criminal
Courts Act 1973. The power to issue such orders was abolished by
the Criminal
Justice Act 1988.
official receiver The person appointed by the Department of Trade
and Industry
who acts in *bankruptcy matters as interim receiver and manager of
the estate of
the debtor, presides at the first meeting of creditors, and takes
part in the debtor's
public examination. In the *compulsory winding-up of a company, he
often becomes
*provisionalliquidator when a winding-up order is made.
official referee Until 1972, a judicial officer of the "Supreme
Court to whom
certain matters could be referred, usually cases involving
prolonged examination of
accounts or large numbers of small items (such as building claims).
The office was
abolished by the Courts Act 1971 but the functions previously
discharged by official
referees can now be discharged by *circuit judges nominated by the
Lord Chancellor
to take official referees' business. The official referee's court
is now known as the
Technology and Construction Court and official referees as judges
of the
Technology and Construction Court
official search A search, in response to an applicant's
*requisition, into the
registers of local land charges, the Land Charges Department, or HM
Land Registry
(as appropriate) in order to disclose any registered matter
relevant to the requisition,
A certificate is issued by the registrar giving details of
encumbrances that the
search has revealed. In the case of the land charges register, a
purchaser is not
bound by any encumbrance that a proper search fails to reveal, the
official search
certificate being conclusive according to its tenor. If an entry is
made in the land
charges register after the date of the certificate and before
completion of the
purchase (other than in pursuance of a *priority notice entered on
the register on
or before the date of the certificate), it will not affect the
purchaser if the purchase
is completed within 15 working days after the issue of the
certificate.
In the case of registered land, a purchaser seeking to become the
registered
proprietor is only bound by what is on the register and by
*overriding interests.
When a purchaser has applied for an official search of the
register, his subsequent
application to register the document effecting the purchase of the
property
concerned takes precedence over any entry made by a third party in
the register
during the priority period (30 days from the time the application
for the search was
delivered). Should an official search fail to reveal a registered
interest, the newly
registered owner is bound by that interest, but may be entitled to
a statutory
idemnity. A local land charge search certificate is valid only at
the time it is issued
and a purchaser is bound by any local charge registered
subsequently. Since
December 1990 HM Land Registry has been open to public inspection:
it is therefore
possible to discover, on payment of a fee, whether any specific
property has been or
is about to be registered. The registers of local land charges and
the Land Charges
Department are also open to public inspection.
official secrets For the purpose of the Official Secrets Acts
1911-89, information
that is categorized as a secret code or password or is intended to
be (or might be)
useful to an enemy. It is an offence to make a sketch, plan, model,
or note that
might be useful to an enemy. It is also an offence to obtain,
record, or communicate
to anyone else a secret official code or password or any
information or document
that is intended to be useful to an enemy. It is also an offence to
enter, approach,
inspect, or pass over (e.g.in an aircraft) any prohibited place.
Such places include
naval, military, or air-force establishments; national munitions
factories or depots,
and any places belonging to or used by the Crown that an enemy
would want to
know about. For all three offences the prosecution must prove
that the act was
done for a purpose that prejudices the safety or interests of the
sta~e. Even if no
particular prejudicial act can be proved, someone may be convicted
If It appears
from the circumstances of the case, his conduct, or his known and
proven character
that his purpose was prejudicial to the interests of the state.
There is also a . .
presumption (which may be disproved by the defenda~t) that aI~.y
~ct done within ,
the scope of the three offences without lawful authonty IS
prejudicial to the state s
interests. All three offences are punishable by up to 14 years'
imprisonment.
It is also an offence under the Official Secrets Act 1911, section
2, for the holder of
a Crown office who has any document or information as a result of
his position to
pass it on to an unauthorized person, keep it, or use it in any
other way th~t .
prejudices the state's interests. The information need not be
secret or co~f1dentlal
and the defendant need not have realized that harm might result
from hIS act. The
offence is punishable by up to two years' imprisonment, and anyone
who receiv.es
the information knowing or suspecting that it was given in breach
of the Acts 1S.
liable to the same punishment. lt is also an offence to attempt to
commit, or incite,
or aid and abet any of the above offences and to do any act of
preparation for any
of these offences. All such acts are subject to the same penalties
as the offence they
relate to. Thus, for example, buying paper in order to sketch a
military installation
is a preparatory act carrying a sentence of up to 14 years'
imprisonment. .
The Official Secrets Act 1989 replaces section 2 of the 1911 Act
(above) WIth
provisions protecting more limited classes of information from
~isclosure.A
member or former member of the security and intelligence services,
or a person
notified that he is subject to this provision, commits an offence,
p~nishabl~ with up
to two years' imprisonment and/or a fine, if without lawful
~uthontyhe d1scloses. or
purports to disclose any information, document, or other article
relatl~~ to secunty
or intelligence. Similarly, Crown servants and "government
contractors are
prohibited from making disclosures that damage security services'
operations,
endanger UKinterests abroad, or result in the commission of an
offence and from
negligently failing to prevent such disclosures. Other offences
relate to th~
disclosure by an ordinary citizen of protected information
commumcated III
confidence by a Crown servant.
See also SABOTAGE; SPYING; TREASON.
Official Solicitor An officer of the Supreme Court who, when
directed by the
court, acts as *1itigation friend (next friend) or childrens'
guardian for those under a
disability who have no one else to act for them; he may also be
called upon to
intervene and protect the interests of children. He can be
appointed *judicial
trustee in proceedings relating to disputed trusts.
OJ See OFFICIAL JOURNAL.
Old Bailey See CENTRAL CRIMINAL COURT.
oligopoly n. Control of a market by a small number of suppliers,
which mayor
may not lead to the operation of a *cartel. Compare MONOPOLY.
Ombudsman n. See COMMISSIONS FOR LOCAL ADMINISTRATION; HOUSING
OMBUDSMAN;
LEGAL SERVICES OMBUDSMAN; PARLIAMENTARY COMMISSIONER FOR
ADMINISTRATION. See also
Appendix L
omission n. A failure to act. lt is not usually a crime to fail to
act; for example, it
is not usually a crime to stand by and watch a child who has fallen
into a river
drown. Sometimes, however, there is a duty on a person to act,
either because of the
terms of a contractual duty, or because he is a parent or guardian
of a minor, or
because he has voluntarily assumed a duty (e.g.looking after a
disabled relative), or
through a statutory imposition of such a duty. In such cases,
omission may
constitute a crime. Usually this will be a crime of *negligence
(e.g. manslaughter, if
the victim dies because of the defendant's omission]; if it is a
deliberate omission
with a particular intention (e.g. the intention of starving someone
to death) it will
amount to murder. See also NEGLECT.
Similarly, there is no general liability in the law of tort for
failing to act, but
there are some situations where the law imposes a duty to take
action to prevent
harm to others. Thus occupiers of premises are under a duty to see
that their
visitors are reasonably safe (see OCCUPIER'S LIABILITY).
omnia praesumuntur rite et solemniter esse acta See
PRESUMPTION.
onus of proof See BURDEN OF PROOF.
open contract A contract for the sale of land in which the only
express terms are
the identity of the parties, the property, and the price. An open
contract is valid if it
is in writing or, for contracts made before the Law of Property
(Miscellaneous
Provisions) Act 1989 came into force, it is evidenced by writing
(see MEMORANDUM IN
WRITING) or *part performance. Other necessary terms are implied,
including: (1) a
condition that the vendor must convey an unencumbered freehold
title, although
the purchaser is bound by any defect of which he knew and which
cannot be
removed; (2) the vendor must within a reasonable time produce at
his own expense
an abstract of title beginning with a *root of title at least 15
years old or, in the case
of registered land, the documents specified by the Land
Registration Act 1925; (3)a
condition that the vendor will convey as *beneficial owner; (4) the
purchaser must
deliver any *requisitions on or objections to the title within a
reasonable time after
receiving the abstract; (5) the conveyance must be prepared by the
purchaser at his
own expense; (6) the vendor must give vacant possession on
completion; (7)the
transaction must be completed within a reasonable time: if it is
not, the vendor is
entitled to interest on the unpaid price and the purchaser to the
income of the
property from the time when completion should have occurred.
In the case of contracts made by correspondence, statutory
conditions set out in
regulations made under the Law of Property Act 1925 apply (see
STATUTORY FORM OF
CONDITIONS OF SALE). A vendor cannot insist on preparing the
conveyance himself (a
contractual term to this effect is void), but apart from this the
implied and
statutory conditions may be dispensed with, varied, or supplemented
by agreement
between the parties. In practice, the forms of contract generally
used specify the
parties' rights and obligations much more precisely.
opening speech 1. A speech made by the prosecution counsel at the
beginning of
a criminal trial, briefly outlining the case against the accused
and summarizing the
evidence that the prosecution intends to call to prove its case. 2.
The speech made
by counsel for the claimant at the beginning of a civil
trial.
open procedure See PUBLIC PROCUREMENT.
open space An area in a *conservation area so designated by the
Secretary of
State for the Environment and consequently requiring "special
attention" for
planning purposes.
operative mistake See MISTAKE.
operative part See DEED.
operative words The part of a conveyance that effects the essence
of the
transaction; for example, the words "the Vendor hereby conveys
Blackacre to the
Purchaser in fee simple". No specific form of words is necessary
provided that the
intention is clear.
opinio juris [Latin, from opinio juris sive necessitatis (whether
the opinion of law is
compulsory)] An essential element of *custom, one of the four
sources of
*internationallaw as outlined in the Statute of the *lnternational
Court of Justice.
Opinio juris requires that custom should be regarded as state
practice amounting to
a legal obligation, which distinguishes it from mere usage.
opinion n. 1. A judgment by the House of Lords. 2. (counsel's
opinion) A
barrister's advice on a particular question. 3. Advice on a case
given by an *Advocate
General before a final judgment of the *European Court of
Justice.
opinion evidence Evidence of the opinions or beliefs of a witness,
as opposed to
evidence of facts about which he can give admissible evidence. At
common law,
opinion evidence is in general inadmissible but this rule is
subject to many
exceptions. Thus a nonexpert witness may testify as to age, speed
of vehicles,
handwriting, or identity. Expert witnesses (e.g. doctors) may give
their opinions on
any matter falling within their expertise. At common law, a witness
could not give
his opinion on an ultimate issue (i.e. the question that the court
had to decide) but
this rule, which was not very strictly applied in practice, was
relaxed in respect of
civil cases by the Civil Evidence Act 1972.See also HEARSAY
EVIDENCE.
option n. A right to do or not to do something, usually within a
specified time. An
enforceable option may be acquired by contract (i.e. for
consideration) or by deed to
accept or reject an *offer within a specified period. An option to
acquire land or an
interest in it on specified terms will only bind third parties if
it is registered (see
REGISTRATION OF ENCUMBRANCES). If an option to buy does not specify
the price it will
only be valid if it specifies a means for determining the price,
e.g. by a valuation to
be made by a specified third party who is or will be under a duty
to act. Thus an
option to buy at a price to be agreed is void for
uncertainty.
On the London *Stock Exchange, options to sell or to buy quoted
securities are
purchased for a certain sum of money, which is forfeited if they
are not taken up.
An option to sell is known as a put option, that to buy is a call
option, and an
option to either sell or buy is a double option. Under the
Companies Act 1985,
directors, shadow directors, and the spouses or children of either
are prohibited
from buying or selling options in the shares of their own
company.
optional clause A clause of the Statute of the *International Court
of Justice
(Article 36(2)) that gives states the opportunity of signing a
declaration by WhICh
they recognize as compulsory, in relation to any other state
accepting the same
obligation, the jurisdiction of the Court in all legal disputes
concerning certain
specified matters. Despite acceptance of the optional clause, it is
common for states
to append to their acceptance *reservations of their own making.
These either
concern specific topics that they will not allow the Court to
settle or the
reservations may, more sweepingly, exclude all matters that states
consider to be
within their domestic jurisdiction.
option to purchase A right to compel the owner of land to sell it
to the option
holder on agreed terms. The option constitutes an offer by its
grantor that remains
open in accordance with the terms of the option, enabling the
grantee to accept it.
This right binds third parties if entered as an *estate contract on
the land charges
register if the land is unregistered, or by the appropriate entry
on the charges
register in registered land. See REGISTRATION OF
ENCUMBRANCES.
oral agreement A contract made by word of mouth, as opposed to one
made in
writing. See also IMPLIED CONTRACT.
oral evidence Spoken evidence given by a witness in court, usually
on *oath. A
witness's evidence must usually relate what he knows through the
use of his own
senses. However, under the Civil Evidence Act 1995 *hearsay
evidence in civil cases is
now permitted.
orality n. The principle that evidence must be given orally and
subject to *crossexamination
unless *affidavit evidence is admissible.
order n. 1. A direction or command of a court. In this sense it is
often used
synonymously with *judgment. 2. The document bearing the seal of
the court
recording its judgment in a case. 3. A subdivision of the *Rules of
the Supreme
Court and the County Court Rules.
order for account An order in civil cases that the amount of money
due from
one party to another may be investigated. The order may be made
before trial.
Accounts are usually taken by a master or a referee and are most
frequently
ordered in partnership and trust matters.
order of discharge A court order resulting in the *discharge of a
bankrupt.
Orders in Council Government orders of a legislative character made
by the
Crown and members of the Privy Council either under statutory
powers conferred
on Her Majesty in Council (see DELEGATED LEGISLATION; STATUTORY
INSTRUMENT) or in
exercise of the *royal prerogative. Compare ORDERS OF
COUNCIL.
Orders of Council Orders of a legislative nature made by the Privy
Council under
statutory powers conferred on the Council alone. They relate mainly
to the
regulation of certain professions and professional bodies. See
DELEGATED LEGISLATION.
Compare ORDERS IN COUNCIL.
ordinance n. One of the forms taken by legislation under the *royal
prerogative,
normally legislation relating to UKdependencies.
ordinary resolution A decision reached by a simple majority (i.e.
of more than
50%) of company members voting in person or by proxy. It is
appropriate where no
other type of resolution is expressly required by the Companies
Acts or the *articles
of association. Compare EXTRAORDINARY RESOLUTION; SPECIAL
RESOLUTION.
ordinary share See SHARE.
original evidence 1. Evidence of a statement made by a person other
than the
testifying witness, which is offered to prove that the statement
was actually made
rather than to prove its truth. Thus, if in an action for slander a
witness testifies
that he heard the defendant defame the claimant, his testimony is
original evidence
and not *hearsay evidence. 2. See DIRECT EVIDENCE.
originating summons A form of originating *process in the High
Court now
rendered obsolete by the Civil Procedure Rules. Under the Rules, it
has been replaced
by the *Part 8 claim form.
origin system A system for protecting products in which each is
identified by
means of an appellation of origin, which is similar to a trade mark
but may only
be used for a product from a particular region. The regulations,
which cover many
products, were agreed in March 1996.The scheme stops manufacturers,
etc., from
other regions from using local names, such as Stilton cheese,
Newcastle Brown Ale,
and Jersey Royal potatoes.
OSS See OFFICE FOR THE SUPERVlSION OF SOLICITORS.
ouster n. The act of wrongfully dispossessing someone of any kind
of
*hereditament, such as freehold property. See ADVERSE
POSSESSION.
ouster of jurisdiction The exclusion of judicial proceedings in
respect of any
dispute. There is a presumption that statutes and other documents
(e.g. contracts) do
not oust the jurisdiction of the courts. See INTERPRETATION OF
STATUTES.
outer Bar (utter Bar) Junior barristers, COllectively, who sit
outside the bar of the
court, as opposed to *Queen's Counsel, who sit within it.
outraging public decency See CONSPIRACY.
outstanding term See SATISFIED TERM.
outworker n. See TELEWORKING.
overcrowding n. For statutory purposes a dwelling is overcrowded
when two or
more people of opposite sexes over the age of ten, and not married
to one another
or cohabiting, are obliged, because of lack of space, to sleep in
the same room. There
is also a test for overcrowding based on the number of people
living in the dwelling
compared with the number of rooms and the floor area of those
rooms. Local
authorities have a duty to prevent overcrowding and can take action
against an
owner-occupier, a landlord, or a tenant.
overreaching n. The process by which interests in land are
converted on sale of
the land into corresponding interests in the *capital money arising
from the sale.
Under the Settled Land Act 1925 the tenant for life always has the
right to sell the
settled land and overreach other interests, including interests in
remainder and in
reversion, with certain statutory exceptions (including the
*principal mansion
house).
Where land is held on a *trust of land, the law of Property Act
1925provides that
a purchaser of the land shall take free of the beneficiaries'
interests, provided that
the purchase money is paid to at least two trustees or a trust
corporation. A
mortgagee exercising his *power of sale is able to overreach the
mortgagor's estate
and *equity of redemption and convey the land free from the
equitable right: the
mortgagor's rights are transferred to the purchase money, the
mortgagee being
trustee of any such funds remaining after paying off the mortgage
debt.
Overreaching in general affects only equitable rights.
overriding interests Certain rights and interests in registered
land, listed in the
Land Registration Act 1925, that cannot be protected by
registration but, unless
overreached, will bind the registered proprietor and any third
party acquiring the
land or any interest in it. The list includes legal *easements and
*profits Ii prendre,
rights of persons in actual occupation, rights acquired under the
Limitation Acts (see
LIMITATION OF ACTIONS), and leases granted for terms of up to 21
years.
overrule vb. To set aside the decision of a court in an earlier
case. Because of the
doctrine of *precedent, a court can generally only overrule
decisions of courts lower
than itself. The setting aside of the judgment of a lower court on
appeal is called a
reversal.
oversea company A *foreign company with an established place of
business in
Great Britain. Such companies are obliged to comply with certain
formalities, such
as filing their constitution or charter at the *Companies Registry
and giving details
of their directors and of who is authorized to accept service of
legal proceedings and
notices in the UK.
overseas divorce A divorce, annulment, or legal separation obtained
overseas.
There are different rules for the recognition of overseas divorces
in the UK,
according to whether or not they are obtained through judicial
proceedings. An
overseas divorce obtained through proceedings is recognized if: it
is effective under
the law of the country in which it was obtained; and either party
to the marriage
was habitually resident in, domiciled in, or a national of the
country where it was
obtained. An overseas divorce obtained otherwise than through
proceedings is
recognized if: it is effective under the law of the country where
it was obtained;
both parties were domiciled in that country, or one party was
domiciled in that
country and the other party was domiciled in another country that
recognizes the
divorce as valid; and neither party was habitually resident in the
UKin the year
preceding the divorce. See also EXTRAJUDICIAL DIVORCE.
owner-occupier n. A person who has legal ownership of a dwelling in
which he
lives or in which he lived before letting it on an *assured or
*regulated tenancy. For
statutory purposes, the term includes a tenant under a *long
tenancy.
ownership n. The exclusive right to use, possess, and dispose of
property, subject
only to the rights of persons having a superior interest and to any
restrictions on
the owner's rights imposed by agreement with or by act of third
parties or by
operation of law. Ownership may be corporeal, i.e. of a material
thing, which may
itself be a *movable or an *immovable; or it may be incorporeal,
i.e. of something
intangible, such as of a copyright or patent. Ownership involves
enjoyment of a
number of rights over the property. The owner can alienate (i.e.
sell or give away)
some of these rights while still retaining others; for example, an
owner of land may
grant a right of way or a patent owner may grant a licence to
manufacture the
patented goods. Ownership may be held by different persons for
different interests,
for example when a freehold owner grants a lease or when land is
settled on
persons with interests in succession to one another (see SETTLED
LAND). More than one
person can own the same property at the same time. They may be
either joint
owners with a single title to the property (see JOINT TENANCY); or
owners in common,
each having a distinct title in the property that he can dispose of
independently (see
TENANCY IN COMMON).
A person may be both the legal and beneficial owner, or the legal
ownership of
property may be separate from the beneficial (equitable) ownership
(i.e. the right to
enjoy the property), as when a trustee owns the legal estate in
land for the benefit
of another.
A legally valid transaction may confer specific rights to use,
possess, or deal with
property without conferring ownership of it; for example, a
contract may appoint a
person as the owner's agent for the sale of specified land.
See alsoESTATE.
P
P. Abbreviation for President (of the *Family Division of the High
Court).
PACE Acronym for the Police and Criminal Evidence Act 1984.
pact n. See TREAIT.
pacta sunt servanda [Latin] Agreements are to be kept; treaties
should be
observed. Pacta sunt servandais the bedrock of the customary
international law of
treaties and, according to some authorities, the very foundation of
international law.
.Without such an acceptance, treaties would become worthless.
pacta tertiis nee noeent nee prosunt [Latin] Treaties do not create
either
obligations or rights for third states without their consent.
paedophile n. A person who is sexually attracted to children (of
either sex). Sexual
activity with any children under the age of 16 is illegal. See also
CHILD ABUSE; SEXUAL
OFFENCE.
paid-up capital The amount actually paid to a company for shares
allotted or
issued to a shareholder. If a shareholder makes a full payment of
the purchase price
of the share, the amount received is referred to as fully paid-up
capital. If the
company permits the shareholder to make only partial payment of the
total
purchase price, such shares are referred to as partly paid-up
shares, with the
remaining balance recorded in the company's accounts as an amount
that the
company may *call upon in the future (uncalled capital).
pain and suffering The psychological consequences of personal
injuries, in terms
of pain, shock, consciousness that one's life expectancy has been
shortened,
embarrassment caused by disfigurement, etc. Damages are assessed on
the extent to
which the claimant actually experiences these feelings.
palatine courts Originally, courts of the counties palatine of
Durham, Lancaster,
and Chester. In modern times, only the Chancery courts of Durham
and Lancaster
survived, but their jurisdiction was transferred to the High Court
by the Courts Act
1971. See also VICE CHANCELLOR.
Panel on Takeovers and Mergers See CIIT CODE ON TAKEOVERS AND
MERGERS.
paperless trading See ELECTRONIC DATA INTERCHANGE.
parallel import A product bought in one state and imported into
another by the
purchaser, often to take advantage of price differences between
states; such
products are also known as grey market goods. Parallel importation
usually takes
place outside supplier-authorized official distribution networks.
Within the EU
measures taken to prevent parallel imports in the Single Market
will infringe
*Article 81 of the Treaty of Rome (see EXPORT BANS). While it is
permitted to restrict
an exclusive distributor from soliciting sales outside his
exclusive area, absolute
territorial protection may not be given, either by contract terms
or by conduct or
oral arrangements.
paramount adj. (in land law) Superior; having or denoting a better
right or title.
paramount clause See BILL OF LADING.
parcels pl. n. 1. Plots of land. 2. See DEED.
pardon n. The withdrawal of a sentence or punishment by the
sovereign under the
*prerogative of mercy. Once a pardon is granted, the accused cannot
be tried and if
he has already been convicted, he cannot be punished. The
responsibility is upon
him, however, to plead the pardon as a bar to prosecution or
punishment; if he does
not do so as soon as possible, he may be held to have waived it. A
person may also be
granted a reprieve, i.e. the temporary suspension of a punishment
(for example, if
he becomes insane after sentence is passed).
parent n. The mother or father of a child. The term also includes
adoptive parents
(see ADOPTION) but does not usually include *step-parents. At
common law parents
have parental rights over their children while they are minors,
which include the
right to physical control of the child, to control their education
and determine their
religion, to consent to medical treatment, to administer their
property, to represent
them in legal proceedings, and to discipline them reasonably. They
also have
parental duties, notably to maintain and educate their children,
which can be
legally enforced. Both parents exercise parental rights jointly,
except in the case of
illegitimate children, over whom the mother has exclusive parental
rights unless the
father has applied for *parental responsibility (he does, however,
have a legal duty
to maintain the child: see CHILD SUPPORT MAINTENANCE). Parental
rights decline as the
child grows older; in any dispute over their enforcement the
*welfare of the child is
the paramount consideration. See also PARENTS' LIABILIIT; SECTION 8
ORDERS; SECTION 30
ORDER.
parental leave Time off work given to parents. The statutory
provisions are
contained in the Maternity and Parental Leave Regulations 1999,
which set down key
elements regarding such time off, although employers and employees
are free to
agree an improved contractual scheme.
In order to exercise the right to parental leave the employee must
have been
employed for a minimum of one year, must have or expect to have
responsibility
for the child, and must take any leave for the purpose of caring
for the child. Up to
13 weeks' parental leave is available in respect of any individual
child; it must be
taken before the child is five years old. Adoptive leave (for
employees who adopt a
child) is available on the same basis, with the proviso that the
leave must be taken
within five years of the placement of the child (or before the
child's 18th birthday,
whichever is earlier). In the case of a disabled child, leave may
be taken any time up
to the child's 18th birthday; there are proposals to extend the
period of this leave
from 13 to 18 weeks.
In the absence of any contractual agreement on the operation of
parental leave,
the statutory provisions lay down default provisions. These state
that leave must be
taken in blocks of a week or more and that the maximum annual leave
allowance is
four weeks in respect of any individual child.
In order to exercise this right employees must give employers a
minimum of 21
days' notice. Employers may postpone the leave but only if their
business would be
unduly disrupted. Fathers and prospective adoptive parents who want
to guarantee
that they can be present at the birth or placement of their child
may book time off
work without postponement. No notice is required to be given by
employees
returning to work, and on return employees are entitled to work in
their same job.
Currently parental leave is unpaid, but this (and parental leave in
general) is
currently under review. However, from March 2003 working fathers
are to receive
the right to two weeks' paid paternity leave at the same flat rate
as statutory
maternity pay (see MATERNIIT RIGHTS). Proposals are also underway
to introduce paid
adoptive leave as from 2003. In addition to the introduction of
parental leave in 1999,
provisions were introduced allowing for employees to take time off
for domestic
emergencies. Employees are entitled to a reasonable amount of
unpaid time off in
order to take action that is necessary in the following
situations:
(1) To provide assistance on an occasion when a dependant falls
ill, gives birth, or is
injured or assaulted.
(2)To make arrangements for the provision of care for a dependant
who is ill or
injured, or in consequence of the death of a dependant.
(3)Because of the unexpected disruption or termination of
arrangements for the
care of a dependant.
(4)To deal with an incident that involves a child of the employee
and occurs
unexpectedly in a period during which an educational establishment
the child
attends is responsible for him.
parental order See SECTION 30 ORDER.
parental responsibility All the rights, duties, powers, and
responsibilities that
by law a parent of a child has in relation to the child and his or
her property. The
concept was introduced by the Children Act 1989,replacing *custody.
Parental
responsibility is automatically conferred on both parents if
married, and on the
mother alone if not. An unmarried father can acquire parental
responsibility either
by agreement with the mother or by applying to court for a
*parental
responsibility order. In determining whether to grant such an order
the court must
treat the child's welfare as its paramount consideration. Both
parents retain parental
responsibility on divorce. Other persons may acquire parental
responsibility by
virtue of being granted other orders. For example, anyone in whose
favour a
residence order (see SECTION 8 ORDERS) is made acquires parental
responsibility for the
duration of that order, and a *care order or an *emergency
protection order confer
parental responsibility on the relevant local authority. In all
these cases, parental
responsibility is shared with the parents. See also
STEP-PARENT.
parental responsibility agreement A formal agreement between the
mother
and unmarried father of a child conferring *parental responsibility
on the father.
The agreement must be made on a set form, be signed and witnessed,
and be
registered in the Principal Registry of the Family Division in
London. Once made, the
agreement cannot be revoked by either party. Only a court may bring
a parental
responsibility agreement to an end - on the application of either
party with
parental responsibility or by the child himself if he has been
given permission by
the court to apply.
parental responsibility order An order made by a court conferring
*parental
responsibility on an unmarried father. In determining whether or
not to make such
an order, the court must treat the child's welfare as its paramount
consideration.
Courts will usually grant a parental responsibility order to a
father who is able to
demonstrate some degree of commitment and attachment to his child.
A parental
responsibility order may be revoked by a court.
parent company See SUBSIDIARY COMPANY.
parenting order An order, introduced by the Crime and Disorder Act
1998, that
requires the parent or guardian of a child under the age of 16 to
comply, for a
period not exceeding 12 months, with such requirements as the court
considers
necessary for preventing offences being committed by this child.
Parents whose
children have been made the subject of a *child safety order may be
required to
attend courses that will assist them with their parenting skills.
The rationale behind
the introduction of such orders was that inadequate parental
supervision is thought
to be strongly associated with youth offending.
parents' liability Parents are not liable for their children's
torts, but they may be
liable for their own negligence in failing to supervise or train
young children,
where the absence of supervision or training has led a child to
cause damage to
others. In the case of older children, a parent can be vicariously
liable for the torts
of a child employed as a servant or agent on ordinary principles of
*vicarious
liability. There is no fixed age determining a child's liability
for its own torts. A
child may, however, be too young to form the intention necessary
for a particular
tort. In cases in which the negligence or contributory negligence
of a child is in
question, the test applied is whether the child's conduct measured
up to the
standard of care to be expected from an average child of that
age.
Parents are not legally responsible for their children's crimes,
although they may
have to pay their *fines.
parent with care See CHILD SUPPORT MAINTENANCE.
parish n. A *local government area in England (outside Greater
London) consisting
of a division of a *district (though not all districts are so
divided). All parishes have
meetings and many have an elected parish council, which is a *local
authority with a
number of minor local governmental functions (e.g. the provision of
allotments, bus
shelters, and recreation grounds). A parish council may by
resolution call its area a
town, itself a town council, and its chairman the town mayor. The
Local Government
and Rating Act 1997(effective from 19 May 1997) gives extra powers
to parish
councils in relation to rights of transport and crime
prevention.
Paris Treaty The treaty, signed in Paris on 18 April 1951, that
formed the
*European Coal and Steel Community. Many of its provisions are
similar to those of
the later *Treaty of Rome, establishing the EEC, for example in the
fields of
*competition law and *state aid.
parking offences Offences relating to parking a motor vehicle.
These include
parking a vehicle within the limits of a pedestrian crossing or
wherever signs or
kerb markings indicate that parking is prohibited or restricted and
failing to
comply with the regulations associated with the use of parking
meters. If the
accused can show that road markings or signs indicating parking
restrictions were
absent or deficient, he may be acquitted. Parking offences are
punishable by fine
only; they are not subject to endorsement. See also
OBSTRUCTION.
parlementaire n. [from French parlementer, to discuss terms;
parley] An agent
employed by a commander of a belligerent force in the field whose
function is to go
in person within the enemy lines for the purpose of communicating
or negotiating
openly and directly with the enemy commander.
Parliament n. The legislature of the UK,consisting of the
sovereign, the House of
Lords, and the House of Commons. Under the Parliament Act 1911, the
maximum
duration of any particular Parliament is five years, after which
its functions expire.
In practice, a Parliament's life always ends by its earlier
dissolution by the
sovereign under the *royal prerogative; this proclamation also
summons its
successor. The date of dissolution is chosen by the Prime Minister.
The life of a
Parliament is divided into sessions, normally of one year each,
which are ended when
Parliament is prorogued (also under the prerogative) by a royal
commission. Each
House divides a session into sittings, normally of a day's
duration, which end when a
motion for adjournment is passed. The functions of Parliament are
the enactment
of legislation (see ACT OF PARLIAMENT), the sanctioning of
taxation and public
expenditure, and the scrutiny and criticism of government policy
and
administration. See alsoSOVEREIGNTY OF PARLIAMENT.
Parliamentary Commissioner for Administration (Parliamentary
Ombudsman) An independent official appointed under the
Parliamentary
Commissioner Act 1967 (as amended by the Parliamentary and Health
Service
Commissioners Act 1987) to investigate complaints by individuals or
corporate bodies
of injustice arising from maladministration by a government
department or by
certain nondepartmental public bodies, such as the Arts Council of
England and the
*Housing Corporation. Appointment of the Commissioner is by the
Crown on the
Prime Minister's advice. The Commissioner may investigate
complaints only if they
are submitted to him in writing through a Member of Parliament;
investigation is
entirely at his discretion. If he upholds a complaint and it is not
remedied, he
reports this to Parliament. Complaints of maladministration by
devolved bodies in
Wales and Scotland are investigated by the Welsh Administration
Ombudsman and
the Scottish Parliamentary Commissioner for Administration,
respectively. See also
HEALTH SERVICE COMMISSIONERS.
parliamentary committees See COMMITTEE OF THE WHOLE HOUSE;
GRAND
COMMITTEES, SCOTTISH AND WELSH; JOINT COMMITTEE ON STATUTORY
INSTRUMENTS; STANDING
COMMITTEE; SELECT COMMITTEE.
parliamentary counsel Civil servants (barristers or solicitors) who
draft
government Bills, government amendments to Bills, and any
procedural motions
required in connection with the passing of Bills. In 1996 proposals
to contract out
this activity to private practice lawyers were considered.
Parliamentary Ombudsman See PARLIAMENTARY COMMISSIONER FOR
ADMINISTRATION.
parliamentary papers Papers published on the authority of either
House of
Parliament. They include Bills, the Official Reports of
Parliamentary Debates (see
HANSARD), and reports of parliamentary committees.
parliamentary privilege Special rights and immunities enjoyed by
the Houses
of Parliament and their members to enable them to carry out their
functions
effectively and without external interference. They are conferred
mainly by the
common law but partly by statute; they can be extended by statute
but not by the
resolution of either House.
The Commons have five main privileges. (1) The right of collective
access to the
sovereign through the Speaker. (2) The right of individual members
to be free from
civil (but not criminal) arrest. Since the abolition of
imprisonment for debt, this
privilege has been of only minor significance, but it would still
shield a member
against (for example) imprisonment for disobeying a court order in
civil
proceedings. (3) The individual right to freedom of speech. This
substantial privilege
means that a member cannot be made liable either civilly (e.g. for
defamation) or
criminally (e.g, for breach of the Official Secrets Acts) for
anything said by him in
the course of debates or other parliamentary proceedings. Under the
Parliamentary
Papers Act 1840 members are also not liable for statements repeated
in reports
published on the authority of the House. (4) The collective right
to exclusive control
of its own proceedings, so that it can (for example) exclude the
public, prohibit
reporting, and expel any member whom it may consider unfit to sit.
(5) The
collective right to punish for any breach of privilege or other
contempt. Examples
of breaches of privilege are initiating defamation proceedings in
respect of
privileged words and the reporting of secret proceedings. Other
contempts include
any conduct prejudicial to the proper functioning or dignity of the
House, e.g. by
refusing to give evidence to a committee, bribing members, or
insulting the House.
Members may be punished for contempt by expulsion, suspension, or
imprisonment;
others by reprimand or imprisonment. Imprisonment is terminated by
prorogation.
Whether or not particular conduct amounts to a contempt, and if so
what
punishment (if any) is appropriate, is considered by the Committee
of Privileges,
whose report the House is free to accept or reject after
debate.
The privileges of the Lords are similar, except that members have
an individual
right of access to the sovereign and the House can fine for
contempt and imprison
for a fixed term, which is not affected by prorogation.
parol contract See SIMPLE CONTRACT.
parole (release on licence) n. The conditional *release of a
prisoner from prison.
Under the Criminal Justice Act 1991, anyone sentenced to
imprisonment for between
12 months and 4 years must be released on licence after serving
one-half of the
sentence; those imprisoned for 4 years or more must be paroled
after serving twothirds
of their sentence and may be considered for parole after serving
half of the
sentence. Local review committees in each area consider all cases
and advise the
Home Secretary, who may either release the prisoner himself or
refer his case to the
Parole Board. This Board includes a past or present judge, a
psychiatrist, a person
experienced in caring for discharged prisoners, and a person
trained in the
treatment of offenders. The Board considers reports and evidence
relating to the
prisoner (whom it may interview) and defines the conditions under
which he may be
released. Under the Crime (Sentences) Act 1997, the Parole Board
(rather than the
Home Secretary) has responsibility for the release of juveniles
convicted of murder.
Parole remains in force until the prisoner would have served
three-quarters of his
sentence had he not been released. The Home Secretary may recall
him to prison at
any time, either on the recommendation of the Parole Board or
whenever he thinks
it necessary to do so without consulting the Board (but the
prisoner has the right to
appeal to the Parole Board).
If a prisoner on parole commits an offence during the period of his
original
sentence, he may have to serve any part of the original sentence
still outstanding. In
such cases limitations are imposed on his right to be considered
again for parole.
parol evidence Evidence given orally, as opposed to *documentary
evidence.
parol evidence rule The rule that parol evidence (i.e, oral
evidence) cannot be
given to contradict, alter, or vary a written document (such as a
judicial record or a
contract) unless there are allegations of fraud or mistake. In
civil cases there is no
longer a strict adherence to this rule.
parol lease A lease that is made either orally or in writing, but
not by deed, and
fulfils certain conditions. These are that it takes effect
immediately it is made; it is
for a period less than three years; and it is at the full market
rent. *Periodic
tenancies usually fulfil these conditions. Parol leases are the
exception to the general
rule that leases are not legally enforceable unless they are made
by deed.
Part 8 claim form A form of originating *process used in cases in
which the
issues are likely to be ones of law or the interpretation of
documents. It should not
be used when disputed questions of fact are involved, for which
proceedings begun
by normal claim form are more appropriate. A Part 8 claim form must
state that
Part 8 of the Civil Procedure Rules applies and must set out the
question the
claimant wants the court to decide or the remedy that he seeks. Any
evidence relied
upon must be filed and served with the claim form. Part 8 claims
are allocated as
<multi-track proceedings.
Part 20 claim A claim other than a claim by the claimant against
the defendant.
It includes (1) a *counterclaim by the defendant against the
claimant; (2)a
counterclaim by the defendant against a third party (i.e. a person
who is not a party
to the current proceedings), normally with the claimant; and (3) a
claim by the
defendant for an *indemnity or a *contribution from either a third
party or from a
party to the current proceedings. If the defendant to a claim
alleges that a third
party is liable to indemnify him or contribute to any judgment, or
is someone that
they seek to counterclaim against in addition to the claimant, he
must bring that
party into the proceedings by issuing a Part 20 claim form. Once
done, the third
party becomes known as the Part 20 defendant.
A defendant can issue a Part 20 claim form without requiring
permission of the
court if it is issued before or at the time of the filing of his
defence. Directions in
such a case will be dealt with as part of the normal system of
*case management
appropriate to the track to which the case has been allocated. If
the time in which
the defence must be filed has expired, permission is required from
the court. This is
normally sought by the use of an application notice filed at court
and supported by
evidence of reasons why the third party be introduced into the
proceedings. If
granted, the court will issue directions at that time. In any
event, the court will
consider further directions as to the future conduct of the
proceedings when the
time for filing the defence to the Part 20 claim by the third party
or co-defendant
has expired.
Part 36 offers and payments Under the "Civil Procedure Rules,
offers and
payments made by parties in the pre-trial period in an attempt to
encourage a
settlement out of court. A Part 36 payment (formerly called payment
into court)
is made into the court; it can only be made once legal proceedings
have started and
only in respect of money claims. A Part 36 offer (formerly called a
Calderbank
letter or offer) can be made in the period before the start of
proceedings or - in
respect of nonmonetary claims - after proceedings have started.
Both procedures
place pressure on the other party to the litigation to
settle.
In the case of a Part 36 payment, the other party is notified of
the payment and
that it may accept or reject the payment as a settlement. In the
event of a rejection
and the litigation proceeding to trial, the amount awarded is
compared with the
amount paid in. If the amount awarded is less than the sum
previously paid into
court, costs since the time of payment in will be awarded against
the successful
claimant. Part 36 offers have a similar purpose and effect in that
the court will
consider the contents of the offer when it considers the issue of
costs, after finding
liability and settling the amount of damages.
partial loss (in marine insurance) Any loss of the subject matter
of an insurance
policy other than an *actual total loss or a *constructive total
loss. In the case of a
partial loss there is a lesser measure of indemnity than in the
case of a total loss. See
also AVERAGE.
partibility n. (of chattels) See PARTITION OF CHATTELS.
participator n. See CLOSE COMPANY.
particular average See AVERAGE.
particular lien See LIEN.
particulars pI. n. Details of an allegation of fact made in civil
proceedings. Details
of a claim (the particulars of claim) can be included in the *claim
form or served
separately on the defendant. When an allegation is ambiguous or
pleaded in
insufficient detail, the opposing party may make in writing
(through the court) a
request for further information (formerly called request for
further and better
particulars). The principal function of this procedure is to
prevent *surprise.
parties pI. n. 1. Persons who are involved together in some
transaction, e.g. the
parties to a deed or a contract. 2. Persons who are involved
together in litigation,
either civil or criminal. See alsoJOINDER OF PARTIES.
partition n. 1. The division of a territory into two or more units,
each under a
different government. 2. The division of supreme power over a
territory between
different governments (e.g. federal and state). 3. The formal
separation, effected by
deed, of land held in common ownership into parts, so that each
co-owner takes his
part solely, beneficially, and free from any rights of the others.
Partition of land
cannot be enforced without the consent of all the co-owners. 4. The
transfer to
different companies of parts of a trade or undertaking (or two or
more trades or
undertakings) of a company. This is usually by means of a
distribution agreement or
a demerger under the Income and Corporation Taxes Act 1988. Compare
PARTITION OF
CHATTELS.
partition of chattels The division between co-owners of chattels
held in
undivided shares, so that each takes his part of the goods solely
and absolutely. If
chattels are partible ii.e.capable of being divided), the court may
order partition
under the Law of Property Act 1925 on the application of a
co-owner.
partnership n. An association of two or more people formed for the
purpose of
carrying on a business with a view to profit. Partnerships are
governed by the
Partnership Act 1890. Unlike an incorporated *company, a
partnership does not have
a legal personality of its own and therefore partners are liable
for the debts of the
firm. On leaving the firm they remain liable for debts already
incurred; they cease
to be liable for future debts if proper notice of retirement has
been published. A
limited partnership is governed by the Limited Partnership Act
1907. It consists of
general partners, who are fully liable for partnership debts, and
limited partners,
who are liable to the extent of their investment. Limited partners
lose their limits
of liability if they take part in management. A partnership at will
is one for which
no fixed duration has been agreed. Any partner may end the
partnership at any
time provided that he gives notice of his intention to do so to all
the other partners,
subject to any restriction in the partnership deed. See also
LIMITED LIABILITY
PARTNERSHIP.
part performance A doctrine of equity that a contract required to
be evidenced
in writing will still be enforceable even if it is not so evidenced
provided that one of
the parties does certain acts by which the contract is partly
performed. For an act to
bring the doctrine into play (i.e. a sufficient act of part
performance) that act must
be performed by the person alleging the contract to exist and must
relate
unequivocally to the contract; an example would be taking
possession of property
alleged to have been sold (under a contract entered into before 21
September 1989) to
the person who takes possession. It is unclear whether mere payment
of money is a
sufficient act of part performance.
This doctrine applied primarily to contracts for the sale of land.
However, such
contracts entered into on or after 21 September 1989are required,
under the Law of
Property (Miscellaneous Provisions) Act 1989, to be in writing (not
merely evidenced
in writing) if they are to be valid. Acts of part performance will
not, as such,
validate an unwritten land contract, although they may, in
particular circumstances,
give rise to a proprietary *estoppel or a *constructive
trust.
party wall A wall or fence in premises that is shared with another
owner or
tenant in adjacent premises. The Party Wall Act 1996,which came
into force on 1
July 1997, imposes obligations on owners carrying out works on
party walls or
fences. They must notify the adjoining owner or tenant in advance
if they intend to
repair a party wall or fence or build on a boundary; any damage
that occurs as a
result of the work must be repaired.
passing off Conducting one's business in such a way as to mislead
the public into
thinking that one's goods or services are those of another
business. The commonest
form of passing off is marketing goods with a design, packaging, or
trade name that
is very similar to that of someone else's goods. It is not
necessary to prove an
intention to deceive: innocent passing off is actionable.
passport n. A document, issued under the *royal prerogative by the
Home Office
through its executive agency the Passport Agency, that provides
prima facie
evidence of the holder's nationality. It is not required by law for
leaving the UK,but
it is required for entry into most other countries. Within the
European Union, ED
nationals are sent through quicker channels of entry although they
are still subject
to occasional passport checks, despite the Schengen Agreement
reached by most EU
states to abolish internal border checks, which came into force on
26 March 1995,
and the creation of the *Single Market in the ED,which came into
force on 1
January 1993.Concerns such as drug smuggling have made member
states of the ED
reluctant to abandon internal controls. lts issue is purely
discretionary and the
government may withdraw or revoke a passport at will. Under the
Immigration Act
1988,a person seeking entry into the UKon the basis of his right of
abode there
must either produce an appropriate passport or a certificate
showing such an
entitlement, issued by or on behalf of the UK government. The
British Visitor's
Passport has been abolished and only a full British passport is
adequate for foreign
travel. Children need their own passports. However, children
included on a parental
passport before 5 October 1998may continue to travel abroad on that
passport
either until reaching the age of 16 or until the passport is
submitted for an
amendment. The English courts have power to order the surrender of
a foreign
passport to protect the interest of children who might otherwise be
removed
unlawfully from the UK by a foreign parent. Similar powers to order
surrender of a
UKpassport are contained in the Family Law Act 1986.
past consideratlon See CONSIDERATION.
pasture n. A *profit Ii prendreor *common conferring rights of
grazing over
another's land or on common land, which may be limited to
particular types of
animal, to fixed numbers of animals, or (in the case of a common)
to as many
animals as the land will support.
patent n. The grant of an exclusive right to exploit an invention.
In the UK
patents are granted by the Crown through the Patent Office, which
is an executive
agency of the Department of Trade and Industry. An applicant for a
patent (usually
the inventor or his employer) must show that the invention is new,
is not obvious,
and is capable of industrial application. An expert known as a
patent agent often
prepares the application, which must describe the invention in
considerable detail.
The Patent Office publishes these details if it grants a patent. A
patent remains valid
for 20 years from the date of application (the priority date)
provided that the
person to whom it has been granted (the patentee) continues to pay
the
appropriate fees. During this time, the patentee may assign his
patent or grant
licences to use it. Such transactions are registered in a public
register at the Patent
Office. If anyone infringes his monopoly, the patentee may sue for
an *injunction
and *damages or an *account of profits. However, a patent from the
Patent Office
gives exclusive rights in the UKonly: the inventor must obtain a
patent from the
European Patent Office in Munich and patents in other foreign
countries if he
wishes to protect the invention elsewhere.
patent agent See PATENT.
patent ambiguity See AMBIGUITY.
patent defect See DEFECT.
patentee n. A person who has been granted a *patent.
Patents County Court A *county court designated by the Lord
Chancellor under
the Copyright, Design and Patents Act 1988 to exercise a special
jurisdiction in cases
relating to patents and designs. The Patents County Court provides
a cheaper and
quicker forum for patent and design cases than the *Patents Court
of the High
Court. Patents agents and solicitors, as well as barristers, have
*rights of audience
there.
Patents Court Collectively, the "Patents County Court and the
Patents Court of
the High Court. The latter forms part of the "Chancery Division of
the High Court,
having jurisdiction over matters arising under the Patents Acts
1949-77, the
Registered Designs Acts 1949-61, and the Defence Contracts Act
1958,as well as the
inherent jurisdiction of the High Court. Two "puisne judges of the
Chancery
Division with special experience of patent law are assigned to hear
cases, but they
will be assisted by special scientific advisers.
paternity leave See PARENTAL LEAVE.
patrial n. See IMMIGRATION.
pawn (pledge) n. An item of goods transferred by the owner (the
pawnor) to
another (the pawnee) as security for a debt. (The word is also used
for the transfer
itself.) A pawn involves a *bailment and the pawnor remains owner
of the goods;
the pawnee is liable for failure to take reasonable care of them.
If the pawnor fails
to repay the loan at the agreed time, the pawnee has the right at
common law to
sell the pawn; he must account to the pawnor for any surplus after
discharging his
debt. Pawnbrokers are dealers licensed to lend money at a specified
rate of interest
on the security of a pawn. Pawnbroking is regulated by provisions
of the Consumer
Credit Act 1974(replacing the Pawnbrokers Acts 1872 and 1960) with
regard to such
matters as pawn receipts, rates of interest, redemption period and
procedure,
consequences of failure to redeem, and realization of the pawn.
Under the Act, a
pawn can be redeemed at any time within six months, or longer if
agreed by both
parties. At the end of the redemption period ownership of the pawn
passes to the
pawnbroker if the redemption period is six months and the value of
the debt is £25
or less. If it is more than £25 the pawnbroker may sell the pawn
after giving the
pawnor notice, but the pawnor may still redeem the pawn at any time
until it is
sold. The pawnbroker must account to the pawnor for any surplus
from the
proceeds of sale after discharging his debt but he may claim any
balance of the debt
if the proceeds are insufficient.
Pay As You Earn (PAYE) A system for collecting *income tax in which
the
employer deducts tax direct from the employee's pay. The Inland
Revenue gives
every employee a code number, which the employer uses, together
with tax tables,
to work out how much tax to deduct (see PAYE WEEK NUMBER). The
employer is then
responsible for paying the tax to the Inland Revenue by the 19th
day of each month.
PAVE See PAY AS YOU EARN.
PAVE week number One of a series of consecutive numbers given to
successive
seven-day periods within the tax year, used by employers in the
calculation of tax
due under *Pay As You Earn. Thus, Week 1 is the period 6-12 April
inclusive, Week 2
is 13-19 April, and so on. The employer uses the week number in
conjunction with
the employee's tax code to determine his tax-free pay for the
current tax year to
date. This in turn is used to calculate the tax due. The week
number relates to the
period in which the pay day occurs, not necessarily the period in
which the pay was
earned.
payment by post The payment of a debt by the posting of notes, a
cheque, or
some other negotiable instrument. If the letter is lost in the
post, the debt is not
discharged unless the creditor has expressly or by implication
requested payment by
post and the debtor has sent a properly addressed letter.
payment in due course Payment made at or after the *maturity of a
*bill of
exchange to the holder of the bill by a payer in good faith and
without notice that
the holder's title to the bill is defective. A bill is discharged
by payment in due
course by or on behalf of the drawee or acceptor. When a bill is
paid by the drawer
or endorser it is not discharged and the party paying may have
rights on it.
payment into court The payment by a defendant, into an account
maintained by
the court, of a sum in satisfaction of any or all of the claims
made against him.
Under the *Civil Procedure Rules, this is now referred to as Part
36 payment. See
PART 36 OFFERS AND PAYMENTS.
payroll giving scheme A scheme for employees to give donations to
charities by
direct deduction from their pay. The employees receive tax relief
on donations, and
the government adds a further 10%to such gifts for three years from
April 2000.
The employer deducts the donation direct from the employee's wages
or salary and
pays it to the charity of the employee's choice through an
agency.
pay statement See ITEMIZED PAY STATEMENT.
PC See PRIVY COUNCIL.
PCT See PRIMARY CARE TRUST.
peaceful assembly See FREEDOM OF ASSOCIATION.
peaceful enjoyment of possessions A right set out in Article 1 of
the First
Protocol to the European Convention on Human Rights and now part of
UK law as a
consequence of the *Human Rights Act 1998. This right is a
*qualified right; as such,
the public interest can be used to justify an interference with it
providing that this
is prescribed by law, designed for a legitimate purpose, and
proportionate. Therefore
the state may deprive individuals of their possessions and control
to the use of
property providing that this is prescribed by law, in the public
interest, and
proportionate.
pecuniary legacy See LEGACY.
penal notice See CONTEMPT OF COURT.
penal statute A statute that creates a criminal.offence or provides
for any.
penalty (e.g.a forfeiture) enforceable in civil proceedings. It is
subject to strict
construction (see INTERPRETATION OF STATUTES).
penalty n. 1. A *punishment for a crime. A penalty must be clearly
stated before
it can be enforced. When statute creates an offence and specifies a
penalty without
saying how the offence is to be tried, there may be an implication
that it is to be
imposed by a magistrates' court. Article 7 of the European
Convention on Human
Rights forbids the use of retrospective criminal penalties, and
this prohibition is
now part of UK law as a consequence of the *Human Rights Act 1998.
2. A sum
specified in a contract as payable on its breach but not
constituting a genuine
estimate of the likely loss. See DAMAGES.
penalty points See TOTTING UP.
pendente lite [Latin] Until trial. When a will or the right to
administer an estate
is being disputed, the court may if necessary appoint an
administrator pendentelite
to deal with the estate until the proceedings have been
resolved.
pending action Proceedings in court that relate to land or to some
interest in it.
The claimant should register the pending action as a land charge
(see REGISTRATION OF
ENCUMBRANCES) as soon as the proceedings begin. If he fails to do
this a purchaser
acquiring the land without knowing of the action will not be bound
by the
outcome.
pension n. Income paid to a person who has reached the state
*retirement age
(retirement pension) or who has retired from employment and
benefits from a
company or personal pension scheme. From April 2001 the state
retirement pension
was £75.50 per week for a single person and £115.90 for a married
couple. The *State
Earnings Related Pension Scheme (SERPS) can boost state pensions
for employees
with sufficient national insurance contributions. Those moving
abroad receive only
a frozen state pension. Contributions to a company pension scheme
are made net of
tax within Inland Revenue limits but only (for newer pensions) on
income up to an
earnings cap of £91,800 (in 2000-01). Employees may, up to that
limit, pay up to 15%
of their salary into a company pension scheme (including any
*additional voluntary
contributions) and may take a maximum pension of two-thirds their
final salary on
retirement. Maximum contributions for the self-employed and others
in personal
pension schemes are subject to the earnings cap for company
pensions but vary
according to age, ranging from 17.5% of net relevant earnings for
those aged 35 or
less at the beginning of the tax year to 40% for those aged 61 and
over. Pensions paid
are taxable in the hands of the recipient, although a proportion of
the fund
accumulated can be taken as a tax-free lump sum on retirement. The
balance is used
to purchase a compulsory *annuity. See also STAKEHOLDER
PENSION.
pension earmarking A provision for financial relief on granting a
divorce or
judicial separation that, when the pension of one spouse (the main
earner) becomes
payable, part of its benefits will be paid to the other spouse.
Thus on the death of
the main earner, all payments will cease. See also PENSION SHARING
ORDER.
pension sharing order An order that may be made by the court on
granting a
divorce, whereby the spouse with little or no pension either
becomes a member of
the main earner's pension scheme in her or his own right or,
alternatively, receives a
transfer of a designated percentage of this scheme into her or his
own pension
arrangement. Unlike *pension earmarking, pension sharing does not
apply to
*judicial separation.
PEP See PERSONAL EQUITY PLAN.
peppercorn rent An insignificant rent reserved for the purpose
of showing that
a lease or tenancy is granted for valuable *consideration.
per autre vie See ESTATE PUR AUTRE VIE.
per capita [Latin: by heads] For each person. Distribution of an
estate or fund per
capita is an equal distribution in the specified shares among all
those entitled to it.
Compare PER STIRPES.
per curiam (per cur.) [Latin] By the court. A proposition per
curiam is one made by
the judge (or, if there is more than one judge, assented to by
all).
peremptory challenge See CHALLENGE TO JURY.
peremptory norm See JUs COGENS.
peremptory pleas See PLEAS IN BAR.
perfect and imperfect rights Legally recognized rights. Perfect
rights are
enforceable through court action but imperfect rights are
not.
perfect trust See EXECUTED TRUST.
performance bond See BOND.
performance of contract The carrying out of obligations under a
contract.
Performance by both parties discharges the contract completely;
performance by
one party discharges him alone. The rules relating to performance
distinguish
between a divisible contract and an indivisible (or entire)
contract In a divisible
contract the obligations of the parties are independent of each
other, so that one
party can demand performance by the other without rendering
performance
himself. Thus a landlord, though liable to be sued by his tenant
for not carrying out
a repairing covenant, is not prevented by his own default from
enforcing the
tenant's covenant to pay rent. Most contracts, however, are
indivisible, i.e. the
obligations of the parties are interdependent. Neither party can
demand
performance unless he himself either has performed or is ready and
willing to do so.
At common law, complete and precise performance was originally
required, so that
a party who rendered anything short of this (for example, a builder
who carried out
the contract work, but defectively in some respects) could recover
nothing for his
efforts. This extreme position was subsequently modified by the
doctrine of
substantial performance. A party who has substantially performed
his obligations
can now recover the contract price, reduced by damages awarded to
the other party
in respect of the defects.
A tender of performance is the equivalent of performance, so that a
seller who
tenders the correct goods is discharged from the contract (and
entitled to damages
for breach) if the buyer rejects them. Vicarious performance (e.g.
by a
subcontractor) is good performance, except when personal
performance is
demanded by the contract. See also PART PERFORMANCE; SPECIFIC
PERFORMANCE.
performers' rights The rights of performers, such as musicians, in
the live
performance of their works, to prevent others recording their
performances. The
rights are also infringed if anyone broadcasts a qualifying
performance under the
Copyright, Designs and Patents Act 1988without consent or imports a
recording of
such a performance knowing that it was an illicit recording. The
right is owned by
the performer, although in commercial practice many performers
enter into
exclusive recording contracts in relation to their works, which
give recording rights
to a record company; in this case the company obtains *copyright in
the sound
recording and the performer loses his rights for the duration of
the contract. The
Copyright Term Directive 93/98 harmonized EU law in this area.
Performers' rights
must be protected under national law; the right must exist for 50
years from the
end of the calendar year in which the performance takes
place.
perils of the seas One of the heads of risk included in a marine
insurance policy.
It covers the insured against loss caused by fortuitous accidents
or casualties of the
seas, e.g. such events as unusual violence of wind or waves,
striking submerged
rocks, and collisions with other ships. The ordinary action of wind
and waves in
causing wear and tear is not, however, regarded as a peril of the
seas.
per incuriam [Latin] Through lack of care. A decision of a court is
made per
incuriam if it fails to apply a relevant statutory provision or
ignores a binding
precedent. In criminal cases a decision made per incuriam will
usually result in the
conviction being quashed.
periodic tenancy A tenancy in which rent is payable at fixed
intervals, usually
weekly, monthly, quarterly, or yearly. The tenancy continues
automatically from one
period to another until terminated by *notice to quit. Periodic
tenancies can be
created by express agreement, orally or in writing. Alternatively
they can be created
by implication when rent is accepted by the owner of the land from
the person who
occupies it. This may arise, for example, when a tenant under a
*fixed-term tenancy
remains in possession at the end of his tenancy and the landlord
continues to accept
rent from him. The length of notice required to terminate the
tenancy is usually
the same as one of the periods of the tenancy.
perished goods Under the Sale of Goods Act 1979, goods under a
contract of sale
that have been either totally destroyed or so damaged that they no
longer fit the
contract description. The Act provides that a contract is void if
it relates to specific
goods that, unknown to the seller, have perished before it is made.
If the goods
perish after the contract is made, this event will make the
contract void unless the
risk has by then passed to the buyer (see TRANSFER OF RISK). These
two propositions
give statutory recognition to common-law rules relating to *mistake
and
*frustration of contract, respectively.
perjury n. The offence of giving false evidence or evidence that
one does not
believe to be true (even if it is in fact the truth). It is
punishable by up to seven
years' imprisonment and/or a fine. The offence may be committed by
any witness
who has taken the oath or affirmed, by the defendant at any stage
of the trial, and
by an interpreter. Perjury is only committed, however, in judicial
proceedings, which
include any proceedings before a court, tribunal, or someone with
the power to hear
evidence on oath (e.g. Commissioners of Income Tax hearing appeals
against tax
assessments). The evidence given must be relevant to the
proceedings and must be
given with knowledge that it is false or recklessly.
The Perjury Act 1911 also creates various offences related to
perjury. These include
making a false statement on oath in nonjudicial proceedings and
making a false
statement or declaration relating to marriage (e.g. to obtain a
licence to marry or
make an entry in a register of marriage) or to the registration of
a birth or death.
These offences are punishable by up to seven years' imprisonment on
indictment.
The offences of making a false statement in a statutory declaration
or in any
account, balance sheet, or document required to be made by Act of
Parliament are
punishable by up to two years' imprisonment.
See also SUBORNATION.
Permanent Court of Arbitration A standing panel of jurists
established in 1900
under the 1899 *Hague Convention for the pacific settlement of
disputes. Despite
the name, it is neither permanent nor is it a court. Rather, it is
a mechanism for
promoting the creation of arbitration tribunals as required.
Although resort to the
Court is infrequent, it is by no means redundant: its facilities
have been used, for
example, by the Iran-United States Claims Tribunal, established in
1981.
permissive waste A kind of *waste that occurs when a tenant fails
to maintain
the property he leases and allows it to deteriorate.
per my et per tout [Norman French: by the half(?) and by all (the
meaning of my
is uncertain)] Denoting the unity of possession that is an
essential characteristic of
joint ownership of land. See also JOINT TENANCY.
perpetual injunction See INJUNCTION.
perpetual trusts See RULE AGAINST PERPETUAL TRUSTS.
perpetuating testimony A procedure for the recording of evidence in
civil cases
in which there is a danger that it might be lost (e.g.because of
the death of a
witness) before it can be used in a future action. It is rarely
ordered.
perpetuity n. See RULE AGAINST PERPETUITIES.
per quod consortium amisit [Latin: by which he lost the benefit of
her society]
See CONSORTIUM.
per quod servifium amisif [Latin: by which he lost services] See
LOSS OF SERVICES.
persistent offender Formerly, a person whose previous criminal
record made
him liable to be given an extended sentence of imprisonment.
Compare REPEAT
OFFENDER.
personal Act See ACT OF PARLIAMENT.
personal chattel See CHATTEL.
personal contract See DERECOGNITION.
personal-credit agreement An agreement made between an individual
(the
debtor) and any other person (the creditor) by which the creditor
provides the
debtor with credit of any amount. Personal-credit agreements (a
concept under the
Consumer Credit Act 1974) exclude loans, etc., to companies. See
also CONSUMER-CREDIT
AGREEMENT.
personal eql.lity plan (PEP) A scheme to encourage individuals to
invest in EU
quoted companies and in qualifying equity-based investment trusts,
which was
introduced in January 1987. From 6 April 1999 no new subscriptions
can be made to
PEPs,but existing PEPs can continue after this date. The PEP is
managed by an
authorized investment manager; tax credits on dividends (paid
before 5 April 2004)
and income tax deducted at source are reclaimed by the manager.
There were
formerly two types of PEP,general and single-company, but in April
2001 this
distinction was abolished. In addition. from 6 April 2001, the
restriction of
investments to EU companies is abolished, allowing investors to
transfer their PEP
funds to formerly "nonqualifying" companies. No income tax or
capital gains tax is
payable on income or gains generated by the PEP, unless interest of
over £180on
cash deposited in the PEP is withdrawn in anyone year. PEPs are
being replaced by
*Individual Savings Accounts (ISAs).
personal property (personalty) All *property that does not comprise
land or
incorporeal *hereditaments.
personal protection order An order formerly made under the
Domestic
Proceedings and Magistrates' Courts Act 1978for the protection
against violence of a
spouse or a child of the family. Such protection is now provided by
a
*nonmolestation order under the Family Law Act 1996.
personal representative A person entitled to deal with a deceased
person's
estate in accordance with his will or under the rules relating to
intestacy. Personal
representatives include *executors and *administrators of all
descriptions.
personal service The *service of a document in litigation effected
by leaving a
copy of the document with the person to be served. It is often
wrongly supposed
that it is necessary to touch the person to be served with the
document, but it is in
fact sufficient to leave it in his presence having informed him of
its nature. Most
documents required to be served personally can now be served by
post.
personalty n. See PERSONAL PROPERTY.
personal union An arrangement in which two or more states share a
single head
of state. A personal union does not create a single international
person; rather, each
state retains its separate legal personality. For example, in
1603James VI of Scotland
became monarch of England (styled as James I) but continued to be
monarch of
Scotland (styled as James VI).
persona non grata [Latin: an unacceptable or unwelcome person] A
*diplomatic
agent who is unacceptable to the receiving state. The sending state
should recall
such an agent; if this fails to occur, the host state may ignore
the presence of the
agent or expel him from its territory.
per stirpes [Latin: by the roots] According to descent. When
property in an estate
or fund is distributed per stirpes, beneficiaries a generation
removed from the
primary class of beneficiaries receive between them the share
attributable to their
ancestor. For example, a will may leave property to A and B in
equal shares with
provision that if either predeceases the testator, the deceased
beneficiary's children
take his share in equal shares per stirpes. If, on the testator's
death, both A and B
have already died, A leaving two children and B three, A's children
will each receive
a quarter of the property, and B's children one-sixth each. Compare
PER CAPITA.
persuading to murder The statutory offence, which is punishable by
a
maximum sentence of life imprisonment, of persuading or encouraging
any person
to murder anyone else. This offence is committed even by a
foreigner temporarily
in England who persuades someone to commit a murder abroad (such a
person
would not normally be guilty of *incitement), and thus applies to
the activities of
international terrorist organizations (see TERRORISM).
persuasive authority A decision or other pronouncement of law that,
under the
doctrine of *precedent, a court may but need not apply when
deciding the case
before it. Persuasive authorities include decisions of courts of
equal or lesser
standing, decisions of courts outside the English legal system
(particularly, courts of
Commonwealth countries having systems based on the common law),
*obiter dicta,
and the opinions of eminent textbook writers.
perverse verdict A *verdict of a jury that is either entirely
against the weight of
the evidence or contrary to the judge's direction on a question of
law.
perverting the course of justice Carrying out an act that tends or
is intended
to obstruct or defeat the administration of public justice. Common
examples are
inventing false evidence to mislead a court (in either civil or
criminal proceedings)
or an arbitration tribunal, making false statements to the
police, stealing or
destroying evidence, threatening witnesses, and attempting to
influence jurors. The
common-law offence of perverting the course of justice overlaps
with certain forms
of *contempt of court and with the separate offence of tampering
with witnesses.
It is not an offence, however, to offer money to someone to
persuade him not to
proceed with an action in the civil courts; nor is it an offence to
offer to pay
reasonable compensation to the victim of a crime, if he will agree
not to take
criminal proceedings. However, once he has made a statement to the
police in
connection with possible proceedings, it is an offence to attempt
to induce him to
withdraw or alter his statement.
petition n. A written application for a legal remedy or relief that
is only available
if statute or rules of procedure permit it. Examples are a petition
for *divorce, a
*bankruptcy petition, an *election petition, or a petition for
winding up a company
(see COMPULSORY WINDING-UP).
petition of right See CROWN PROCEEDINGS.
petroleum revenue tax A tax levied on the profits from sales of oil
and gas
extracted in the UK or on the continental shelf. The rate of tax
(from 1 July 1993) is
50%,and the tax is abolished for new oilfields that get development
consent on or
after 16 March 1993.
petty sessions A court of summary jurisdiction now known as a
*magistrates'
court. The term was formerly used to denote a meeting of two or
more *justices of
the peace other than a general or *quarter sessions. A
petty-sessions area is a
geographical area for certain purposes of magistrates' court
administration.
philanthropic purposes Purposes that are narrower than *benevolent
purposes
but wider than charitable purposes. See CHARITABLE TRUST.
picketing n. Attendance by employees and their trade union
representatives at or
near a place of work for the purpose of persuading others to work
or not to work,
or to exchange information, in contemplation or furtherance of a
*trade dispute.
There is no specific legal right to picket, nor any prohibition on
picketing, but there
is a concept of lawful picketing in the Trade Union and Labour
Relations
(Consolidation) Act 1992.Pickets have no immunity from prosecution
for
committing criminal offences and they have no right to compel
others to stop or to
listen to the pickets' views. However, employees and their trade
union
representatives picketing their own place of work are immune from
civil legal
action for inducing others to break commercial or employment
contracts with the
employer involved in the dispute. Such immunity extends to persons
engaged in
secondary picketing in certain circumstances. Secondarypicketing
occurs when the
premises of an employer who is not an immediate party to the
dispute are picketed.
Persons picketing customers or suppliers of the employer in dispute
have immunity,
provided that they are likely to achieve their principal purpose of
disrupting their
own employer's trade with the employer in dispute. Thus in a
dispute between an
employer (A) and his workers, A's own employees may picket A's
premises and
employees of A's supplier (B) may picket B's premises (to prevent
supplies reaching
A), with the benefit of immunity from certain types of civil legal
action.
When an employer tries to avoid the impact of the dispute by
transferring
business to his associated employer, the latter and his customers
and suppliers may
be picketed. Again, the pickets will have immunity if they are
likely to achieve their
principal purpose of disrupting the supply of goods or services
transferred. All
pickets lose their immunity if the action is taken without being
first authorized by
a ballot of the members of the union involved, or if the reason for
the action is that
the employer is employing a person who is not a trade union
member.
"Flying pickets", who are neither employees nor trade union
representatives of
employees at the workplace picketed, have no immunity. The courts
will grant
injunctions to stop or prevent unlawful picketing. A *code of
practice on picketing
is published by the Department for Work and Pensions.
It is arguable that the incorporation of the European Convention on
Human
Rights into the English law via the *Human Rights Act 1998 will
impact on the law
affecting picketing. Article 10, the right of *freedom of
expression, and Article 11,
the right to freedom of peaceful assembly (see FREEDOM OF
ASSOCIATION), could be used
to challenge some of the existing restrictions laid down in Engish
law. As picketing
is a form of public demonstration (in an industrial context) the
imposition of
restrictions could raise the civil-liberties aspects of such
restrictions sufficiently to
amount to breaches of either or both of these Articles. The common
law may
therefore be compelled, in the fullness of time, to develop a
peaceful right of
assembly in respect to the public highway.
piracy n. 1. (piracyjure gentium) Any illegal act of violence,
detention, or robbery
committed on a private ship for personal gain or revenge, against
another ship,
people, or property on the high seas. Piracy may also be committed
on or against an
aircraft. Piracy also includes operating a pirate ship or aircraft
and inciting or
assisting any other act of piracy. However, acts committed for
political purposes are
not piracy; nor are any acts committed by a warship or government
ship or aircraft.
Piracy is an international crime and all nations may exercise
jurisdiction over
pirates, regardless of the nationality of the ship or aircraft or
the pirates. A ship or
aircraft involved in piracy is also subject to seizure by any
state. British courts have
traditionally exercised such jurisdiction, and the power to do so
is confirmed in the
Tokyo Convention Act 1967.
English municipal law has created certain offences of piracy that
are not covered
by international law, but they are not subject to the jurisdiction
of the English
courts unless committed on board a British ship or within British
territorial waters.
Examples of such offences are revolt by the crew of a ship against
their master and
hijacking of the ship by the crew. These offences, if tried as
piracy, are subject to
life imprisonment (the death penalty for piracy accompanied by acts
endangering
life, or by an assault with intent to murder, has been abolished;
see CAPITAL
PUNISHMENT).
2. (in marine insurance) One of the risks covered by a marine
insurance policy,
which extends beyond the criminal offence to include a revolt by
the crew or
passengers and plundering generally.
3. Infringement of *copyright, *trade marks, or other *intellectual
property rights.
The owner's usual remedy is to obtain an *injunction to end the
infringement,
although piracy is often also a criminal offence.
piscary (fishery) n. A *profit a prendreor *common conferring the
right to take
fish from water on another's land.
place of safety order See EMERGENCY PROTECTION ORDER.
plaint n. Formerly, a statement in writing of a cause of action,
used to initiate
actions in the county courts. Under the Civil Procedure Rules, it
has been replaced by
the *claim form.
plaintiff n. See CLAIMANT.
planning permission See TOWN AND COUNTRY PLANNING••
plant n. See MACHINERY AND PLANT.
pic (public limited company) See LIMITED COMPANY; PUBLIC
COMPANY.
plea n. 1. A formal statement in court by or on behalf of an
accused person as a
response to the charge made against him. See also GUILTY; NOT
GUILTY; PLEAS IN BAR.
2. A defendant's answer to a claimant's declaration in an action at
common law.
plea bargaining An agreement between the prosecution and the
defence by
which the accused changes his plea from not guilty to guilty in
return for an offer
by the prosecution (for example, to drop a more serious charge
against the accused)
or when the judge has informally let it be known that he will
minimize the
sentence if the accused pleads guilty. Any negotiations taking
place between the
judge and defence counsel must be in the presence of the
prosecuting counsel: the
accused is not a party to the negotiations. The accused must be
allowed to make up
his own mind freely about the proposals.
plead vb. To make a *plea.
pleading n. In colloquial usage, the claim form, defence, or any
other document
used in civil proceedings. The *Civil Procedure Rules have rendered
this term
obsolete, and it no longer has any formal meaning; pleadings are
now called
*statements of case. However, it continues to be used informally by
both lawyers
and lay people.
pleading guilty by post A procedure that allows a person to plead
guilty to
certain minor offences by letter without appearing at the court.
The procedure
applies only to *summary offences punishable with a maximum of
three months'
imprisonment. The accused may send details of any mitigating
circumstances and
these are read out to the court. The court cannot sentence a person
who has pleaded
guilty by post to imprisonment in his absence or disqualify him
from driving
without warning him of the possibility and giving him the
opportunity to appear.
pleading in the alternative In civil cases, the process of
including in a
statement of case two or more inconsistent allegations and inviting
the court to
grant relief in respect of whichever allegation it finds to be
well-founded.
pleas in bar (peremptory pleas) Pleas in *trials on indictment
setting out some
special ground for not proceeding with the indictment. There are
four such pleas:
*autrefois acqUit, *autrefois convict, pardon, and special
liability to repair a road or
bridge.
plebiscite n. A public referendum or vote by the population of a
territory to
determine its choice of a sovereign or a *cession of territory to
another state.
pledge n. See PAWN.
plene administravit [Latin: he has fully administered] The defence
of a personal
representative who has completed administration of a deceased's
estate to a
creditor's action to recover a debt of which he had no knowledge.
Unless the
creditor can prove that the personal representative still holds
assets of the estate, he
will obtain a judgment enforceable only against any such assets
coming into the
personal representative's hands in the future.
plough bote See ESTOVERS.
poaching n. Taking game without permission from private land or
from land on
which the killing of game is restricted. Wild animals cannot
usually be stolen; there
are, however, various statutory offences to cover poaching that do
not amount to
theft. For example, the Deer Act 1980 creates offences relating to
taking, killing, or
injuring deer or trespassing on land with the intention of
committing any of these
acts. Conviction may involve *forfeiture of the game taken or of
the equipment and
vehicles used in poaching. There are also special offences relating
to taking or
destroying fish in private waters or in waters with a private right
of fishery. There
is special legislation dealing with the poaching of endangered
species.
poison n. A substance that, if ingested, is capable of endangering
life or injuring
health. It is an offence (punishable by up to five years'
imprisonment) to cause
someone to consume a poison or any other noxious substance (which
can include
drugs or alcohol administered in such quantities as to be harmful)
with the
intention of injuring or annoying them, even if no injury results.
It is also an
offence (punishable by up to ten years' imprisonment) to cause
someone to consume
such substances so that their life is endangered or they suffer
grievous bodily harm
as a result, even if this was not intended. Administering poison
with the intention of
killing someone or causing them serious harm may amount to an
attempt to
murder or to cause *grievous bodily harm. In both cases the attempt
will be
punishable with a maximum sentence of life imprisonment.
The sale of poisons is controlled by various statutes, principally
the Medicines Act
1968 and Poisons Act 1972.
police authorities See POLICE FORCE.
Police Complaints Authority An independent body established under
the Police
and Criminal Evidence Act 1984 to supervise the investigation of
complaints against
the police. The Authority considers reports by chief constables on
the results of such
investigations and has power to direct that disciplinary charges be
preferred. It may
also direct that the charges be heard by a disciplinary tribunal
consisting of the
chief constable and two members of the Authority.
police court A *magistrates' court.
police force A body of police officers maintained for a police area
by a police
authority. In England and Wales there are five police authorities
(Devon and
Cornwall, Dyfed Powys, Greater Manchester, South Wales, and Thames
Valley).
London has the Metropolitan Police Authority, and Northern Ireland
has the Police
Authority for Northern Ireland. Police authorities consist of local
councillors,
magistrates, and independent members. They are responsible for
maintaining
adequate and efficient forces and (except in London), subject to
the Home
Secretary's approval, for appointing chief constables. (The London
forces have
Commissioners, and the appointment of the Commissioner of Police of
the
Metropolis is technically by the Crown.) Police authorities, do
not, however, exercise
operational or managerial control, although they are responsible
for ensuring that
authorities comply with their statutory duties of *best value.
Appointments to a
police force, and the direction of its operations, are matters for
the chief constable
or Commissioner, and its detailed management is largely determined
by regulations
made by the Home Secretary.
police officer A person who, whatever his rank within a police
force, holds the
ancient office of constable, i.e. one who has undertaken to serve
the Crown as an
officer of the peace. His office is, in law, independent. He is not
technically a Crown
servant, since the Crown neither appoints him nor pays him, nor is
he a local
authority employee. See POLICE FORCE.
police protection order An order of the court enabling the
police to remove a
child to suitable accommodation if there is reasonable cause to
believe that the child
would otherwise be likely to suffer significant harm. No child may
be kept in police
protection for more than 72 hours and the police do not acquire
*parental
responsibility as a result of the order. See also SECTION 47
ENQUIRY.
political asylum Refuge granted to a person on political grounds. A
person
subject to UKimmigration control (see IMMIGRATION) is allowed to
enter and remain
in the UK if he would be liable to persecution for reasons of race,
religion,
nationality, or political opinion if he was returned to the country
from which he
came. See alsoASYLUM.
political offence An offence committed for a political purpose or
inspired by a
political motive, for which the alleged offender cannot be
extradited (see
EXTRADITION) or surrendered as a *fugitive offender. The act could
be a combination
of a politically motivated but criminally implemented act, or it
may be more
narrowly political, or it may be criminal activity that resulted
from an attempt to
escape a political system or discriminatory persecution. In all
cases, however, the
offence results from a dispute between the fugitive and the state
that applies for
extradition on some issue connected with the political control or
government of the
country.
poll tax See COMMUNITY CHARGE.
pollution n. Any action rendering the environment impure. Statutes
relating
wholly or partly to air pollution include the Clean Air Acts
1956and 1968, the
Health and Safety at Work Act 1974, the Control of Pollution Act
1974,the
Environmental Protection Act 1990, and the Environment Act 1995,
which control
the emission of smoke into the atmosphere, the emission of noxious
or offensive
substances, and the composition of petrol and other fuels. Water
pollution
generally is governed by the Control of Pollution Act 1974and the
Environmental
Protection Act 1990, under which it is an offence (among other
things) to allow
polluting matter to enter rivers or other inland waters or to
impede their flow so as
to aggravate pollution due to other causes. Control of pollution by
oil is covered by
the Prevention of Oil Pollution Act 1971. Pollution by the deposit
of waste on land is
governed primarily by the Control of Pollution Act 1974,which
permits household,
commercial, and industrial waste to be deposited only on licensed
sites. Local
authorities are required by the Act to collect and dispose of
household waste free of
charge; for the purposes of refuse disposal by their residents,
they are also, by the
Refuse Disposal (Amenity) Act 1978, obliged to provide free refuse
dumps.
polygamy n. The practice of having more than one spouse. English
law considers a
marriage actually polygamous if there is in fact more than one
spouse, and
potentially polygamous if there is only one spouse but the marriage
was
contracted under a system of law that permits polygamy. No
polygamous marriage
may be validly contracted in England. If it is celebrated abroad,
however, it will be
recognized if at the time it was celebrated neither spouse was
domiciled in England;
if either spouse was at that time domiciled in England the marriage
will be void. For
the purposes of the Social Security Contributions and Benefits Act
1992a
polygamous marriage is to be treated as valid at any time while it
is monogamous in
fact.
port n. A place or town with access to the sea to which ships may
conveniently
come and at which they may load and unload. In charterparties and
marine
insurance policies, the word is construed in this commercial sense,
as understood in
the shipping business. For pilotage or revenue purposes, a port may
extend over a
larger geographical area than the commercial port.
portion n. Funds or other property given or left to a child by his
parent or
someone standing in loco parentis and intended to make permanent
provision for
him or to establish him in life (e.g.a sum provided to set the
child up in business).
Sums provided for the child's maintenance or education or to
supplement his
income do not qualify. A portion may be brought into *hotchpot and
may be
presumed to adeem a legacy (see ADEMPTION) unless there is evidence
that the testator
intended the portion to be disregarded on his death
positive discrimination Actively favouring one sex or category of
people over
others because they are considered to be disadvantaged. Positive
discrimination is
usually illegal as it is in itself discrimination, but actions that
encourage a particular
group are permitted. Thus job advertisements which state that
applications from
women and ethnic minorities are welcome are legal, but choosing a
candidate for a
post solely on the grounds of racial origin or sex will not be
permitted in most
circumstances.
positive law See NATURAL LAW.
possession n Actual control of property combined with the intention
to use it,
rightly or wrongly, as one's own. In the case of land, possession
may be actual, when
the owner has entered onto the land, or possession in law, when he
has the right to
enter but has not yet done so. Possession includes receipt of rent
and profits, or the
right to receive them. See also QUIET POSSESSION.
possessory lien See LIEN.
possessory title Ownership of land that can only be proved by
evidence of the
requisite period of *adverse possession or possession coupled with
a defective
documentary title. A proprietor of registered land having only
possessory title is not
protected against any adverse estate, interest, or right subsisting
or capable of
arising up to the time when the title was first registered.
possibility n. (in land law) An interest in land that depends on
the occurrence of
an uncertain future event. A bare possibility, such as a spes
successionis, i.e. a
person's expectation of inheriting land under the will of a
testator who is still alive
(i.e. depending on the testator dying without having revoked the
will), confers no
legal or equitable interest. A possibility coupled with an interest
(e.g. B's rights
under a conveyance "to A for life, and if C is living at A's death
then to B") can be
transferred by will or by deed. See also POSSIBILITY OF REVERTER;
TENANT IN TAIL AFTER
POSSIBILITY OF ISSUE EXTINCT.
possibility of reverter The interest of a person who has conveyed
land to
another until the occurrence of some specified event (which may
never happen). The
*determinable interest thus created will end automatically should
this future event
occur, and the legal estate will revert to the grantor. Thus, when
A conveys land to B
until he marries, A has a possibility of reverter when B marries
(although if B dies
unmarried, the possibility of reverter is lost). See SETTLED
LAND.
post-mortem n. [Latin: after death] See AUTOPSY.
postnuptial settlement See MARRIAGE SETTLEMENT.
power n. A legal discretion (as opposed to a *duty) to carry out or
refrain from
carrying out any act. When powers affect the rights of others
(e.g.the powers of
*trustees and *administrative powers), their exercise can be
challenged in the
courts. An act that goes beyond the scope of a power as specified
in the instrument
creating it (e.g.a trust deed or statute) is invalid; so, too, is
any act carried out in
abuse of a power (e.g.when it is exercised after taking irrelevant
considerations into
account, for improper motives, or capriciously). See also ULTRA
VIRES.
power in the nature of a trust See TRUST POWER.
power of appointment A right given to someone to dispose of
property that is
not his, within bounds established by the owner of the property (it
is sometimes
called a mere or bare power; compare TRUST POWER). The owner of the
property (the
donor of the power) gives a power to another (the donee of the
power, or
appointor) to appoint (give) the property to a person (the
appointee) chosen by the
appointor. The power may be general (under which all appointment
may be made
to anyone, including the donee or the appointor himself), special
(an appointment
may be made only within a class chosen by the donor), or hybrid (an
appointment
may be made to virtually anyone except a small class). The
appointees have very
limited rights - much more limited than those of beneficiaries
under a trust. An
appointment is void if it is made to someone not within the class
chosen or if it is a
*fraud on a power.
power of arrest (in cases of domestic violence) A power attached
to, for example,
a *nonmolestation order or an *occupation order, which enables a
police constable
to arrest without warraJ]t;J person whom he bas reasonable cause
for suspecting of
being in breach of the order to which it is attached, even though
that person might
not be committing a criminal offence.
power of attorney (letter of attorney) A formal instrument by which
one
person empowers another to act on his behalf, either generally or
in specific
circumstances. A power to execute a *deed must itself be given by a
deed.
power of sale 1. The right of a mortgagee to sell mortgaged
property if the
mortgagor has not repaid his loan by the contractual date of
redemption. This
power arises when the contractual date (stated in the mortgage
document and
usually very early in the period of the mortgage) has passed, but
may only be
exercised if interest due under the mortgage is two months in
arrears, if there has
been a breach of certain terms in the mortgage by thl, mortgagor,
or if notice has
been served on the mortgagor to repay the loan and the loan (or
part of it) has not
been repaid within three months of the notice. If the mortgagee
sells the property
under the power of sale, he owes a duty to the mortgagor to act
with reasonable
care and hold on trust any money surplus to that needed to pay his
mortgage debt
for the mortgagor's benefit. Certain types of mortgagee (such as
building societies
and local authorities) have a statutory duty to take care to obtain
the best price that
can reasonably be obtained through the exercise of the power of
sale. 2. The right
of a *tenant for life under the Settled Land Act 1925 to sell the
settled land for the
best price in money that can be obtained. Such a sale *overreaches
the interests of
the subsequent beneficiaries.
power of search The legal right to search people Or property.
Private people have
no powers of search, but various statutes, notably the Police and
Criminal Evidence
Act 1984,confer such powers on police or other officials, often on
the authority of a
search warrant issued by a magistrate or a High Court judge. The
1984 Act
empowers the police to stop and search any person or vehicle found
in a *public
place for stolen or prohibited articles and to detain a person or
vehicle for such a
search. (An article is "prohibited" if it is either an *offensive
weapon or made or
adapted for use in connection with *burglary, *theft, taking a
*conveyance, or
obtaining property by *deception.) Before such a search the police
officer must state
his station and object. If out of uniform, he must produce evidence
of his status. He
must always give his grounds for the search if asked and must
record details of it. A
magistrate may issue a search warrant to an officer if he is
satisfied that there are
reasonable grounds for believing that a serious arrestable offence
(see DETENTION) has
been committed and material evidence is to be found on the
premises. Under the
Theft Act 1968,for example, police may obtain a warrant to search
for stolen goods
when there are reasonable grounds for believing that they are in
someone's
possession or on his premises. Under certain circumstances the
police are given
powers of search without requiring either a warrant or any superior
authorization;
for example, under the Misuse of Drugs Act 1971 (see CONTROLLED
DRUGS) and the
Terrorism Act 2000 (see TERRORISM). The police also have a general
power, when
arresting someone for an *arrestable offence, to enter and search
any place in which
the suspect is believed to be. Statutes sometimes give powers of
search to public
officials, e.g. customs officers, Department of Trade and Industry
officials, or Inland
Revenue officers.
Police powers of stop and search were extended under the Criminal
Justice and
Public Order Act 1994. Where a senior police officer reasonably
believes that an
incident involving serious violence may take place in his area he
may issue an
authorization (valid for 24 hours, extendable for up to 6 hours)
for persons and
vehicles (which can include caravans, ships, aircraft, and
hovercraft and their
passengers) to be stopped and searched if he thinks it expedient to
do so to prevent
violence. A constable in uniform may stop and search any person for
the purpose of
seeing whether that person is carrying an offensive weapon or an
instrument that
has a blade or a sharp point. Failure to stop is a *summary offence
punishable by
one month's imprisonment and/or a *fine on level 3. Failure to
cooperate might
amount to *obstructing a police officer in the execution of his
duty. Similar powers
are available to senior police officers to authorize searches for
periods of 28 days to
prevent acts of *terrorism connected with the affairs of Northern
Ireland or
international terrorism. Both failure to stop and wilful
obstruction of a constable
are *summary offences for the purpose of this power and are
punishable by six
months' imprisonment and/or a *fine on level 5.
practice n. 1. The mode of proceeding to enforce a legal right. It
is virtually
synonymous with *procedure, but is sometimes used to denote
informal rules of
procedure as distinct from those derived from rules of court. 2. A
book on practice
and procedure, such as the *Civil Procedure Rules.
Practice Directions Published statements, usually issued by the
head of the court
or division to which they relate, indicating the procedure to be
followed in
particular matters or the court's intended policy in certain cases.
Unlike *rules of
court, they have no statutory authority. They are normally
published in the law
reports. Masters' Practice Directions, issued by the Queen's Bench
Masters, concern
the administration of the *Queen's Bench Division.
practice master See CENTRAL OFFICE.
practising certificate An annual certificate issued by the *Law
Society to a
solicitor entitling him to practise. The fee chargeable includes
the premium of an
insurance policy indemnifying the solicitor against the
consequences of professional
negligence. Barristers obtain a practising certificate from the
*Bar Council after
they have successfully completed a twelve-month pupillage and
have attended
further education courses required by the Bar CounciL
praecipe n. [Latin: command] 1. A court document on which a party
writes the
particulars of a document that he wishes to have prepared or
issued. In county
court procedure, this document is now called a request. 2.
Formerly, a writ
requiring the sheriff to command the defendant either to do a
certain thing or to
show cause why he had not done it.
pre-action protocols Protocols introduced as a result of the
recommendations of
Lord Woolf's Access to Justice (Final Report) 1996 to speE;d up the
early parts of the
litigation process. Pre-action protocols encourage greater contact
between the
parties at the earliest possible opportunity in order to encourage
better and earlier
exchange of information with a view to fair and early settlement of
claims. Two
protocols only have been drawn up, one in clinical negligence
actions and the other
in personal injury actions. Pre-action protocols can be enforced by
the court and are
seen as an aspect of the courts' new responsibility of "case
management under the
*Civil Procedure Rules.
preamble n. The part of a statute that sets out its purposes and
effects. It follows
immediately after the long title and date of royal assent.
Preambles are now
virtually confined to statutes originating in private Bills.
precarious possession Possession of property at the will of another
person.
precatory trust See PRECATORY WORDS.
precatory words Words that accompany a gift of property in a
document,
hoping, desiring, or requesting that the donee will dispose of the
property in a
particular way. It is often difficult to decide whether there is
sufficient certainty of
intention to create a trust (precatory trust) or whether the
property is an absolute
gift to the recipient. The courts have tended to construe gifts so
as not to create a
trust, unless there is no doubt that a trust was intended, although
some recent cases
have indicated a reversal of this trend, especially where the
settlor has not taken
legal advice.
precedent n. A judgment or decision of a court, normally recorded
in a *law
report, used as an authority for reaching the same deciston in
subsequent cases. In
English law, judgments and decisions can represent authoritative
precedent (which
is generally binding and must be followed) or persuasive precedent
(which need
not be followed). It is that part of the judgment that represents
the legal reasoning
(or *ratio decidendi) of a case that is binding, but only if the
legal reasoning is from a
superior court and, in general, from the same court in an earlier
case. Accordingly,
ratio decidendis of the *House of Lords are binding upon the *Court
of Appeal and
all lower courts and are normally followed by the House of Lords
itself. The ratio
decidendis of the Court of Appeal are binding on all lOwer courts
and, subject to
some exceptions, on the Court of Appeal itself. Ratio decidendis of
the High Court are
binding on inferior courts, but not on itself. The ratio decidendis
of inferior courts do
not create any binding precedent.
precept n. A lawful demand or direction, particularly a demand from
a rating
authority to another authority to levy rates for the bE;nefit of
the former. For
example, a district council's rates include an amount that it
collects as a result of a
precept from its county counciL
predatory pricing The practice, undertaken largely by dominant
businesses, of
pricing goods or services at such a low level that competitors are
forced to leave the
market. While small companies are entitled to price as they wish,
provided this is
not in collusion with other companies, dominant businesses must
comply with
*Article 82 of the Treaty of Rome and the Competition Act 1998;
predatory pricing
may be an *abuse of a dominant position contrary to these
provisions. Companies
can be fined for engaging in predatory pricing.
predecessor n. (in land law) A person through whom an owner's title
to land is
traced. Examples are a previous owner who sold, bequeathed, or
settled the land and
a mortgagee who exercised his power of sale.
pre-emption n. The right of first refusal to purchase land in the
event that the
grantor of the right should decide to sell. For example, if A makes
a covenant that
for five years he will not sell his land other than to Bat £5000, A
cannot be forced to
sell (compare OPTION TO PURCHASE) but B's right of pre-emption
prevents him from
selling other than on the stated terms for five years. A right of
pre-emption is valid
only if it is sufficiently precise. There is some confusion with
respect to registration
of such a right: if it is capable of registration it will bind
third parties only if
registered (see REGISTRATION OF ENCUMBRANCES).
pre-emptive right 1. The right of some shareholders under the
Companies Act
1985 to be offered a proportion of certain classes of newly issued
securities before
they are offered to anyone else and upon terms at least as
favourable. (See also RIGHTS
ISSUE.) 2. The right conferred by the articles of association upon
shareholders in
some private companies to be offered, on specified terms, first
refusal of the shares
of any shareholder wishing to transfer his holding.
preference n. 1. The favouring by an insolvent debtor of a
particular creditor (for
example by paying one creditor in full when there is no prospect of
paying the
others). If the debtor subsequently becomes bankrupt (in the case
of an individual)
or goes into insolvent liquidation (in the case of a company), and
was motivated by a
desire to improve the position of the creditor, the court can order
that the position
be restored to what it would have been had that creditor not been
given preference.
The court can also make orders when the debtor has given property
away or sold it
at an undervalue. 2. A floating *charge created within one year
before the
commencement of *winding-up in favour of an existing creditor. It
is invalid if the
company was insolvent at the time it was created unless the
creditor provided some
fresh benefit to the company at that time, e.g. by way of loan or
goods supplied. If
the charge was created in favour of a person connected with the
company, the
period is two years and it is not necessary to show that the
company was insolvent
at the time of its creation.
preference share SeeSHARE.
preferential debts The debts of a company on *winding-up or of an
individual
on bankruptcy that have priority over unsecured debts and those
secured only by
floating *charge. They are defined in the Insolvency Act 1986 and
include various
debts to government departments and to employees.
preferment n. 1. The submission of a statement or information. 2.
The act of
bringing a *bill of indictment before an appropriate court.
pregnancy n. (in employment law) See DISMISSAL: MATERNITY
RIGHTS.
pregnancy per alium [Latin: by another] Pregnancy of a woman at the
time of
her marriage by someone other than her husband. If the husband
was unaware of
the true facts of the pregnancy, the marriage is voidable.
prehearing assessment See EMPLOYMENT TRIBUNAL.
pre-incorporation contract A contract purporting to be made by a
person
acting as agent for a company not yet formed. Under the Companies
Act 1985, that
person is personally liable on the contract.
prejudice n. Preconceived judgment. See UNFAIR PREJUDICE; WITHOUT
PREJUDICE.
preliminary inquiries A set of inquiries presented by an intending
purchaser of
land or property to the intending vendor at an early stage in the
transaction.
Sometimes known as precontract inquiries, they relate to the state
and condition
of the property rather than to the title. Printed standard forms of
inquiries are
available. A vendor who gives false or misleading replies can be
liable for
misrepresentation, but a vendor's replies may be (and often are)
noncommittal and
evasive. Alternatively, a vendor may be required to complete a
Seller's Property
Information Form (see CONVEYANCING).
preliminary investigation (preliminary inquiry) The procedure in
a
magistrates' court to decide whether or not there is a sufficient
case to commit an
accused person for trial by the Crown Court. See COMMITTAL FOR
TRIAL.
preliminary point of law A question of law ordered to be tried
before the facts
of the case are determined. Orders of this kind are normally made
if the point of
law will be decisive in the litigation or will result in a
substantial saving of *costs.
premises pl. n. 1. Land or buildings; a parcel of land. 2. See
DEED.
premium n. 1. The sum payable (usually annually) by the insured to
the insurer
under a contract of *insurance. Since October 1994 household and
motor insurance
premiums have been subject to a duty known as insurance premium tax
(5% in
2001). 2. A lump sum that is sometimes paid by a tenant at the time
of the grant,
assignment, or renewal of his lease or tenancy. It was illegal to
demand a premium
in respect of a *protected tenancy but this does not apply to
*assured tenancies. 3.
See CAPITAL.
prenuptial agreement An agreement entered into before marriage,
usually to
limit the claims one spouse can make on divorce from the other.
Prenuptial
agreements are common in the United States but are of dubious
validity in the UK.
preparatory hearing A hearing before a judge of the Crown Court,
before the
jury are sworn, in a case of serious or complex fraud for the
purpose of identifying
issues likely to arise in the case and assisting in their
comprehension and
management. See also SERIOUS FRAUD OFFICE.
prerogative of mercy The power of the Crown, on the Home
Secretary's advice,
to pardon a criminal offence absolutely (and thereby relieving the
defendant of all
the consequences of conviction), to commute a sentence to a milder
form, or to
remit a sentence in part.
prerogative orders Orders issued by the High Court for the
supervision of
inferior courts, tribunals, and other bodies exercising judicial or
quasi-judicial
functions. They comprise *quashing orders, *mandatory orders, and
*prohibition
orders. Until 1938 they were prerogative writs, but since the
Administration of
Justice Act 1938 the only remaining prerogative writ is *habeas
corpus.
prescribed by law A prerequisite for interference with any right in
the
European Convention of Human Rights: any such interference will be
unlawful if it
is not prescribed by law (or "in accordance with the law"). To be
"prescribed by law"
there must be a legal regime governing the interference in
question. Moreover, that
law must be both adequately accessible (in that citizens must be
able to understand
whether or not the law applies in a given case) and formulated with
sufficient
precision to enable citizens to regulate their conduct.
prescribed limit The maximum amount of alcohol a person is legally
allowed to
have in his blood if he is driving or in charge of a motor vehicle
on a road or public
place (see DRUNKEN DRIVING). The level is currently fixed at 80
milligrams of alcohol
per 100 millilitres of blood.
prescription n. 1. (in land law) The acquisition for the benefit of
one's own land
(the dominant tenement) of an *easement or *profit aprendreover
another's land
(the servient tenement) by uninterrupted use over a long period. A
person claiming
a right by prescription must show that his use did not have the
servient owner's
permission and was not kept secret or exercised by force. Under the
Prescription Act
1832 most easements may be acquired by prescription over 20 years,
the period being
extended when the servient owner is under a disability (e.g.a child
or person of
unsound mind), although 40 years' use establishes an absolute and
indefeasible right.
The periods are 30 and 60 years in the case of profits. An absolute
easement of light
is acquired after 20 years' use. Rights can also be acquired at
common law under the
doctrine of *Iost modern grant, or by proof of continuous use since
time
immemorial, i.e. since 1189. 2. (in international law) The
acquisition of title to
territory through an uncontested exercise of sovereignty over an
extended period of
time. Prescription presupposes a prior sovereign authority whose
control and
administration over the territory in question has lapsed through
(1) failure to
occupy, (2) failure to administer, (3)abandonment or neglect, (4) a
wrongful original
claim, or (5) failure to contest a new claim.
presentment n. The act of presenting a *bill of exchange to the
person upon
whom it is drawn for his *acceptance or for payment. When a bill is
payable after
sight, presentment for acceptance is necessary in order to fix its
*maturity. Bills
must normally be presented for payment; otherwise the drawer and
endorsers are
discharged. There are rules as to the time and place of
presentment.
presents pl. n. See DEED.
preserved county A *county that remains in existence for certain
legal purposes,
such as licensing legislation, although it has been abolished as a
*local government
area after local government reorganization. See also LOCAL
GOVERNMENT COMMISSION
FOR ENGLAND.
presiding judge A *puisne judge appointed by the Lord Chancellor to
supervise
the work of a circuit (see CIRCUIT SYSTEM). Each circuit has two
presiding judges with
the exception of the South-Eastern circuit, which has the Lord
Chief Justice and two
puisne judges. There is a Senior Presiding Judge for England and
Wales.
pressing social need A concept that has been used by the European
Court of
Human Rights as the basis for assessing whether or not an
interference with a
*qualified right is necessary in a democratic society.
presumption n. A supposition that the law allows or requires to be
made. Some
presumptions relate to people, e.g. the presumption of innocence
and of sanity (see
entries below). Others concern events, e.g. the presumption of
legality (omnia
praesumuntur rite et solemniter esse acta: all things are
presumed to have been
done correctly and solemnly). Most relate to the interpretation of
written
documents, particularly statutes (see INTERPRETATION OF STATUTES).
Almost every
presumption is a rebuttable presumption, i.e. it holds good only in
the absence of
contrary evidence. Thus, the presumption of innocence is destroyed
by positive
proof of guilt. An irrebuttable presumption is one that the law
does not allow to
be contradicted by evidence, as, for example, the presumption that
a child below the
age of 10 is incapable of committing a crime (see DOLI CAPAX). See
alsoEQUITABLE
PRESUMPTIONS.
presumption of advancement See ADVANCEMENT.
presumption of death A common-law presumption that someone has
died. The
presumption will be made if a spouse has been missing for at least
seven years (with
nothing to indicate that he or she is still alive) or by proof of
other reasonable
grounds (e.g. that the spouse was on a ship that sank). The courts
are empowered to
grant a decree of presumption of death and dissolution of marriage,
enabling
the other spouse to remarry; the remarriage will be valid even if
the first spouse
later reappears.
presumption of due execution If on the face of it a will appears to
be duly
executed, a court will not inquire further into the circumstances
of its execution,
but will presume that all formalities were properly observed,
unless there is positive
and reliable evidence to the contrary.
presumption of innocence The legal presumption that every person
charged
with a criminal offence is innocent until proved guilty. Although
this is termed a
"presumption" it is in fact a fundamental principle underlying the
criminal law,
which has been reinforced by the Human Rights Act 1998(see FAIR
TRIAL). See BURDEN
OF PROOF.
presumption of legality See PRESUMPTION.
presumption of legitimacy See LEGITIMACY.
presumption of negligence See RES IPSA LOQUITUR.
presumption of sanity The legal presumption that every person
charged with a
criminal offence was sane (and therefore responsible in law) at the
time he is alleged
to have committed the crime. See INSANITY.
presumption of survivorship See COMMORIENTES.
presumptive evidence See PRIMA FACIE EVIDENCE.
pre-trial review A hearing for the preliminary consideration of an
action or
matter. The hearing is before a judge, who is required to consider
the course of the
proceedings and give all necessary directions for their future
conduct. The judge
also has power to enter judgment at the pre-trial review in some
circumstances, e.g.
if the defendant does not file a defence or appear at the
hearing.
previous convictions (in the law of evidence) In general, evidence
that a party or
witness has been convicted of a criminal offence on some previous
occasion is
inadmissible in both civil and criminal cases as part of the
opposing party's own
case, unless it is admissible *similar-fact evidence or, in civil
cases, unless it is
relevant to any issue in the proceedings. However, a witness (other
than an accused
person) may be cross-examined about his previous convictions in
order to impeach
(discredit) him. Under the terms of the Criminal Evidence Act 1898,
the accused may
only be cross-examined about his previous convictions if (1) they
are relevant to
show that he is guilty of the offence with which he is charged
(i.e. they would be
admissible similar-fact evidence if they were tendered as part of
the prosecution's
own case); (2) the accused has attempted to establish his own good
character or has
cast imputations upon the character of the prosecutor or his
witnesses; or (3) the
accused has given evidence against any other person charged in the
same
proceedings. If a witness is asked about a previous conviction and
denies the
conviction, *evidence in rebuttal may be given. See also
CREDIT.
previous statements (in the law of evidence) If a witness has on
some previous
occasion made a statement that is inconsistent with his present
testimony, this may
be put to him in *cross-examination in order to impeach (discredit)
him; if he denies
having made the statement, it may be proved by *secondary evidence.
Evidence of
the previous consistent statements of a witness is not in general
admissible. lt may,
however, be given in order to rebut the suggestion that his present
testimony is a
recent fabrication or when it concerns the *complaint of the victim
of a sexual
offence. See also CREDIT.
price n. In a contract of sale, the money *consideration given in
exchange for the
transfer of ownership. In a contract of *sale of goods the price
may be fixed by the
contract, it may be left to be fixed in a manner agreed by the
contract, or it may be
determined by the course of dealing between the parties. If the
price is not
determined in any of the above ways, the buyer must pay a
reasonable price. Under
the Consumer Protection Act 1987, it is a criminal offence to give
a misleading
indication of the price of goods, services, accommodation, or
facilities; for example,
when the consumer might reasonably expect the price indicated to
cover matters
for which an additional charge is in fact made.
prima facie [from Latin prima facies, first appearance] At first
appearance; on the
face of things.
prima facie case A case that has been supported by sufficient
evidence for it to
be taken as proved in the absence of adequate evidence to the
contrary.
prima facie evidence 1. (presumptive evidence) Evidence that is
sufficient to
discharge any evidential *burden of proof borne by a party and that
may be
sufficient to discharge the persuasive burden of proof if no
evidence in rebuttal is
tendered. 2. Evidence of a fact that is of sufficient weight to
justify a reasonable
inference of its existence but does not amount to conclusive
evidence of that fact.
Primary Care Trust (PCT) One of a group of bodies within the
*National Health
Service, established under the Health Act 1999for providing, or
arranging for the
provision of, general medical services in local areas. Each PCTis
established by an
order made by the Secretary of State. PCTs replaced the GP
fundholding system.
primary evidence Evidence, such as the original of a document, that
by its
nature does not suggest that better evidence is available. Even if
an item of primary
evidence is inadmissible (e.g. because it is the subject of a
private *privilege), the
same fact may, in most cases, be proved by *secondary
evidence.
primary facts Facts found by the trial court to be established on
the basis of the
testimony of witnesses and the production of real or documentary
evidence.
Appellate courts are generally unwilling to change the trial
court's findings
concerning primary facts, but may reverse its decisions concerning
the inferences to
be drawn from them.
Prime Minister The head of the UKgovernment, who is appointed by
the Crown
to select and preside over the *Cabinet and bears ultimate
responsibility for the
policy and machinery of government. The Prime Minister also advises
the Crown on
such matters as the dissolution of Parliament, the creation of
peerages, and the
making of senior appointments (e.g.the Ombudsman). Like the
Cabinet, the office
derives from *constitutional convention, which requires that the
person appointed
is the leader of the party with the greatest number of Members of
Parliament.
principal n. 1. (in criminal law) The person who actually carries
out a crime.
(Formerly, the actual perpetrator was known as the principal in the
first degree
and a person who aided and abetted was called principal in the
second degree, but
the former is now known as the principal and the latter as the
secondary party.) A
person can be a principal even if he does not carry out the act
himself; for example,
if he acts through an innocent agent, such as a child, or if he is
legally responsible .
for the acts of another (e.g. because of *vicarious liability). See
also ACCESSORY. 2. (in
the law of agency) The person on whose behalf an *agent acts. 3.
(in finance) The
sum of money lent or invested, as distinguished from the
interest.
principal mansion house The main house (other than a farmhouse or a
house
Whose accompanying garden, park, and grounds occupy less than 25
acres) comprised
in a settlement of land. Under the Settled Land Act 1925, if the
terms of the
settlement so provide, the tenant for life cannot sell the
principal mansion house
without the consent of the trustees or the court. Consent is
necessary under a
settlement made before 1926 unless its terms dispense With the
requirement.
principle of legality See NULLUM CRIMEN SINE LEGE.
priority n. See PRIORITY OF ASSIGNMENT; PRIORITY OF MORTGAGES;
PRIORITY OF TIME.
-priority neighbourhood An area declared such by a housing
authority, being
broadly similar to a *housing action area. A priority neighbourhood
is declared
when it is not practicable either to constitute the area itself a
housing action area or
a general improvement area or to include it in one. Priority
neighbourhoods are
typically areas surrounding or adjoining housing action areas or
general
improvement areas.
priority notice 1. A notice lodged at HM Land Registry that
prevents, for 14 days,
anyone other than the person lodging the notice from registering
title to the land
concerned or any dealing in it. Provided that he lodges his
application for
registration of his own title or dealing within the period of
protection, he will not
be bound by any other encumbrances lodged for registration before
his own. In
practice, dealings (i.e. transfers, mortgages, etc.) in land that
is already registered are
usually protected by the applicant's certificate of *official
search rather than by
separate registration of a priority notice. 2. In the case of
unregistered land, a
notice Iodzed at the Land Charges Department of the intended
registration of a
charge. The priority notice is lodged at least 15 days before the
intended charge is to
take effect, and the subsequent registration of the charge will be
effective from the
time the charge was created, provided the application for
registration is presented
within 30 days after the priority notice. Thus when A is about to
convey land to B,
who is to give a restrictive covenant in A's favour, A may lodge a
priority notice
before completing the transaction and register the covenant
afterwards. This will
ensure that the covenant will bind any purchaser or mortgagee from
Bwhose
interest may arise before A can register the covenant as a
charge.
priority of assignment The order in which two or more *assignments
of a
chose in action takes effect. This order is determined according to
the date of
receipt of the notice of assignment by the legal owner of the
property assigned.
priority of mortgages The order in which two or more mortgages of
the same
property take effect. If there are several mortgages of the same
property, and its
value is less than the amount due on the mortgages, the respective
claims of the
mortgagees must be determined. Before 1926,priority often depended
on the date
order in which the mortgages were created. Since 1925 the order of
priority in the
case of *registered land is according to the date order in which
the respective
mortgages are registered. A first mortgagee of *unregistered land
usually retains
the title deeds and has priority over others except prior mortgages
that are
registered as a land charge in the Land Charges Registry. Otherwise
the order is
governed by the order of registration. Priority of equitable
interests is determined
by the date at which notice is received by the trustees. See also
CONSOLIDATION OF
MORTGAGES; TACKING.
priority of time When there are two or more competing equitable
interests, the
equitable maxim qui prior est tempore potior est jure (he who is
earlier in time is
stronger in law) applies. This means that the first in time
prevails over the others.
For example, where a property is subject to two mortgages, the one
granted first
has priority (see PRIORITY OF MORTGAGES). However, the priority can
be affected by the
existence of a purchaser for value without notice, fraud, estoppel,
gross negligence,
registration, and overreaching.
privacy n. The right to be left alone. The right to a private life
as set out in Article
8 of the European Convention on Human Rights is now part of UK law
as a
consequence of the *Human Rights Act 1998. The right includes
privacy of
communications (telephone calls, correspondence, etc); privacy of
the home and
office; environmental protection; the protection of physical
integrity; and protection
from unjustified prosecution and conviction of those engaged in
consensual
nonviolent sexual activities. This right is a *qualified right; as
such, the public
interest can be used to justify an interference with it providing
that this is
prescribed by law, designed for a legitimate purpose, and
proportionate. Public
authorities have a limited but positive duty to protect privacy
from interference by
third parties.
private Act See ACT OF PARLIAMENT.
private Bill See BILL.
private carrier See CARRIER.
private company A residuary type of *registered company defined
under the
Companies Act 1985as any company that is not a *public company.
This form of
company is prohibited from offering its shares to the public at
large. Although not
a strict requirement under the Act, it is common to find such
companies placing
restrictions on the *transfer of shares and confining them to other
(often family)
members. Unlike a public company, a private company can consist of
only one
"company member (single-member company), and many of the other
restrictions
that apply to public companies (such as those relating to
*financial assistance) may
be relaxed provided that the company complies with a specified
procedure under
the Act.
private defence Action taken in reasonable defence of one's person
or property.
It can be pleaded as a defence to an action in tort. The right of
private defence
includes the defence of one's family and, probably, of any other
person from
unlawful force.
private international law (conflict of laws) The part of the
national law of a
country that establishes rules for dealing with cases involving a
foreign element (i.e.
contact with some system of foreign law). For example, if a
contract is made in
England but is to be fulfilled abroad, it will be necessary to
decide which law
governs the validity of the contract. This is known as the question
of choice of law.
Generally, under the Rome Convention (1980; in force from 1 April
1991), the parties'
choice of law in a written contract is respected; rules are set
down in the
Convention stating which laws apply if the parties to the contract
have not made a
choice. Sometimes the courts must also decide whether or not they
have jurisdiction
to hear the case and whether or not to recognize a *foreign
judgment (such as a
divorce obtained abroad).
Private international law must not be confused with public
*internationallaw.
private law The part of the law that deals with such aspects of
relationships
between individuals that are of no direct concern to the state. It
includes the law of
property and of trusts, family law, the law of contract, mercantile
law, and the law
of tort. Compare PUBLIC LAW.
private life See PRIVACY.
private member's Bill See BILL.
private nuisance See NUISANCE.
privatization n. A programme of denationalization - removing the
provision of
public utility services from the public sector into the private
sector under the
auspices of public companies with public shareholders. The
shareholders mayor may
not include the government, but increasingly do not. See
alsoNATIONALIZED INDUSTRIES.
privilege n. 1. A special right or immunity in connection with
legal proceedings
conferred upon a person by virtue of his rank or office. For
example, Members of
Parliament enjoy certain privileges in relation to arrest, which,
however, do not
extend to arrest in connection with indictable offences (see
PARLIAMENTARY PRIVILEGE).
See also ABSOLUTE PRIVILEGE; QUALIFIED PRIVILEGE. 2. (in the law of
evidence) The right
of a witness when testifying to refuse to answer certain types of
question or of a
party when disclosing documents (see DISCLOSURE AND INSPECTION OF
DOCUMENTS) to
refuse to produce certain types of document on the ground of some
special interest
recognized by law. Privileges are divided into two groups:
public-interest privilege
and private privilege. The Crown has always been able to claim
public-interest
privilege in relation to secrets of the state and other matters
whose confidentiality
is essential to the functioning of the public service (see CROWN
PRIVILEGE). It is now
recognized that a similar privilege may be claimed by private
parties when some
overriding public interest is involved. Private privileges include
the privilege
against self-incrimination, according to which a witness may not be
asked a
question the answer to which might tend to incriminate him; legal
professional
privilege, which protects confidential communications between
lawyers and their
clients and between lawyers and third parties with a view to
advising their clients;
and a privilege attaching to *without prejudice communications in
the course of
litigation. Under EU law there is no professional privilege between
a lawyer working
for a company and members of that company, only between a lawyer
not employed
by the company concerned and the company. See alsoMARITAL
PRIVILEGES.
privileged communication 1. A confidential official communication
that may
be withheld from production in court proceedings because disclosure
of its contents
would be against the public interest. 2. A communication between
parties in a
confidential relationship, such as husband and wife or s solicitor
and client, evidence
of which may not be given without the consent of the party to whom
the privilege
belongs. Communications between patient and doctor are not
privileged. 3. (in the
tort of *defamation) A communication protected by absolute or
qualified privilege.
No action for defamation may be brought for a communication that is
protected by
*absolute privilege. A communication covered by *qualified
privilege is protected
unle it was made maliciously.
privileged will A will that is valid even though it does not comply
with the
formal requirements of the Wills Act 1837(e.g.in being written but
not witnessed
or in being oral) or is made by a minor. The right to make a
privileged will is
conferred by the 1837 Act (as extended by the Wills (Soldiers and
Sailors) Act 1918) on
any soldier in actual military service (a soldier's will or
military testament) and
any mariner or seaman at sea (a mariner's will). It also applies to
airmen on actual
military service and, on normal principles of statutory
interpretation, to females as
well as to males (for example, a female secretary aboard an ocean
liner has been held
to be a mariner at sea). Actual military service has been very
widely interpreted. It
is not confined to service as a combatant during time of war, but
extends to service
in any other capacity (e.g.as an auxiliary or a trainee) and to
service when war is
merely imminent. Service with an occupying force after a war is
also included, as is
service in support of the civil power against terrorists (e.g.in
Northern Ireland). At
sea has received a similarly wide interpretation. A member of the
naval forces is
treated as being at sea if he is in an equivalent position to a
soldier or airman on
actual military service (e.g. if he is on shore leave during
wartime).
privilege of witness See PRIVILEGE.
privity n. The relationship that exists between people as a result
of their
participation in some transaction or event; for example, *privity
of contract and
*privity of estate.
privity of contract The relationship that exists between the
parties to a contract.
The common law doctrine of privity of contract established that
only the parties to
the contract, i.e. those that provided *consideration, could sue or
be sued under the
contract. Third parties could not derive rights from, nor have
obligations imposed
on them by, someone else's contract. This position has now been
modified by the
Contracts (Rights of Third Parties) Act 1999. By the provisions of
the Act, a person
can enforce a term of a contract to which he is not a party
provided that the term
purports to confer a benefit on him or the contract expressly
provides for such
enforcement.
privity of estate The relationship between landlord and tenant
under the same
lease; as long as the relationship subsists, the landlord and
tenant may enforce their
respective obligations against one another even though they were
not original
parties to the lease. Thus when A grants a lease to Bwho
subsequently assigns his
interest to C, while A conveys his reversion to D, D may enforce
against C the
tenant's covenants given by A although there is no contract between
D and C. There
is no privity between different leasehold estates. For example if A
grants a lease to B
who sublets to C,A cannot sue C to enforce positive obligations in
either the lease or
the sublease, although he may be able to enforce *restrictive
covenants contained in
the headlease, against C.
Privy Council (PC) A body, headed by the President of the Council,
that formerly
advised the Crown on government policy but has been superseded
in that role by
the *Cabinet. Its functions are now mainly formal (e.g. a few
members are
summoned to make *Orders in Council), but it has limited statutory
powers of
legislation (see ORDERS OF COUNCIL) and it also advises the
sovereign, through
committees, on certain judicial matters (see JUDICIAL COMMITTEE OF
THE PRIVY COUNCIL)
and other matters of a nonpolitical nature (e.g.the grant of
university charters).
There are about 350 Privy Counsellors, who include members of the
royal family, all
Cabinet ministers, the Speaker and other holders of high
nonpolitical office, and
persons honoured for public services. A Privy Counsellor is
addressed as "RIght
Honourable".
prize court A municipal court that, in accordance with
*internationall~w,deals
with questions relating to prize, i.e. ships, aircraft, or goods
captured durmg .
wartime at sea or in port by the naval or air forces of a
belligerent power. Prize law
entitles the belligerent state to expropriate not only enemy
vessels and goods but
also neutral property suspected of carrying *contraband or running
a *blockade.
The Supreme Court of Judicature (Consolidation) Ac~ 1925
constituted the HIgh
Court a prize court; jurisdiction in prize was vested m the
Probate, DIVorce and
Admiralty Division until its transfer in 1970 to the Admiralty
Court (part of ~he
Queen's Bench Division). Prize appeals go to the Judicial Committee
of the Pnvy
Council.
probate n. A certificate issued by the Family Division of the High
Cour~, on the
application of *executors appointed by a will, to the effect that
the WIll IS valid a~d
that the executors are authorized to administer the deceased's
estate. When there IS
no apparent doubt about the will's validity, probat~ is granted in
common form on
the executors filing an *affidavit. Probate granted in common form
can be revoked
by the court at any time on the application of an interested party
who. proves that
the will is invalid. When the will is disputed, probate in solemn
form IS granted,
but only if the court decides that the will is valid after hearing
the evidence on the
disputed issues in a *probate action. All parties who knew of the
probate action and
of their interest in the estate are bound by the court's order,
whether or not they
were parties to the action.
probate action Proceedings in court to determine, for example,
whether or not a
disputed will is valid or to seek revocation of a previous gran~
~f. probate. .
Contentious probate business is dealt with by the Chancery DIVISIOn
of the HIgh
Court. A will may be challenged on the grounds that it was not
properly executed
(see EXECUTION OF WILL), that the testator lacked testamentary
capacity, or that It has
been revoked.
Probate. Divorce and Admiralty Division A division of the *High
Court of
Justice created by the Judicature Acts 1873-75 to take over the
jur!sdict.ion formerly
exercised by the Court of Probate. the Court for Divorce and
Mat~ImOll!al ~a~~es,
and the High Court of Admiralty. The Division was renamed the
Family DIVISIOn by
the Administration of Justice Act 1970: the Admiralty jurisdiction
was transferred to
the *Queen's Bench Division and the contentious probate
jurisdiction to the
*Chancery Division.
probation hostel Premises for the accommodation of persons who may
be
required to reside there by *community rehabilitation orders.
probation officer An officer whose duties include supervising
persons bound by
(for example) *community rehabilitation orders, *supervision
or?ers, or .
*community punishment orders. A probation officer advises, assists,
and befriends
these and others (e.g. persons who have been released from prison
or are on bail) and
inquires into the circumstances of offenders in order to assist the
court to
determine how best to deal with them.
probation order See COMMUNITY REHABILITATION ORDER.
procedure n. (in court proceedings) The formal manner in which
legal proceedings
are conducted. See also ADJECTIVE LAW; PRACTICE; RULES OF
COURT.
process n. 1. (in court procedure) A document issued by a court to
require the
attendance of the parties or the performance of some initial step
in the proceedings
by a defendant. When it is used to initiate the proceedings it may
be called the
originating process. Most of the confusing process procedures have
now been
abolished and replaced under the *Civil Procedure Rules;
proceedings are now
usually initiated by the issue of a *claim form. 2. See ABUSE OF
PROCESS.
proces-verbal [French] An informal record or memorandum of
international
understandings arrived at in negotiations. It is frequently a
preliminary step in
concluding a *treaty.
procurator fiscal In Scotland, an officer of the sheriff court
(roughly equivalent
to the English county court). Appointed by the *Lord Advocate, he
must be a
qualified advocate or solicitor. His duties include initiating
preliminary
investigations into criminal cases in his district, taking written
statements
(precognitions) from witnesses, conducting the prosecution, and
conducting inquiries
into sudden or suspicious deaths.
Procurator General See TREASURY SOLICITOR.
procurement n. Persuading or inviting a woman to have sexual
intercourse. The
following are offences of procurement; the sexual intercourse
sought may be
marital intercourse. (1) Procuring a woman to have sexual
intercourse with oneself
or anyone else, anywhere in the world, by means of threats or false
pretences. (2)
Procuring a girl under the age of 21 to have sexual intercourse
with a third person
anywhere in the world. (3)Procuring a severely mentally retarded
woman (who is
incapable of guarding herself against exploitation) to have sexual
intercourse
anywhere in the world. These three offences are committed only if
sexual
intercourse takes place. (4)Procuring a woman to become a
prostitute or to leave the
UK with the intention that she should join or frequent a brothel.
All these offences
are punishable by up to two years' imprisonment.
procuring breach of contract (inducing breach of contract) The tort
of
intentionally persuading or inducing someone to break a contract
made by him with
a third party. It is actionable by the party who suffers loss from
the breach. Thus a
theatre manager may sue the person who induces a singer to break
her contract to
perform at his theatre. In some circumstances a defence of
*justification is
available. The tort also covers indirect procurement of breach of
contract (i.e. by
inducing persons not parties to the contract to procure the breach)
and interference
with the performance of a subsisting contract without actually
causing a breach.
These forms of the tort, however, are only actionable if unlawful
means are used to
procure the breach or interference. The operation of the tort in
*trade disputes is
limited by statute. See alsoINTERFERING WITH TRADE OR
BUSINESS.
procuring disclosure of personal data An offence committed by
someone
who obtains personal information about an individual that is stored
on a computer
when he knows or believes that he is not a person to whom the data
user is
registered to disclose this data (see DATA PROTECTION). Other
offences are committed
when the data procured in this way is offered for sale or sold. In
each case the
offences were created by the Criminal Justice and Public Order Act
1994.
production of documents The act of a party in making available
documents in
his possession, custody. or power either for inspection by the
other ~arty (see
DISCLOSURE AND INSPECTION OF DOCUMENTS) or for use as evidence at
tnal in accordance
with a *notice to produce.
products liability The liability of manufacturers and other persons
for defective
products. Under the Consumer Protection Act 1987,passed to conform
WIth the
requirements of European Community law, the producer of a def~ctlve
product that
causes death or personal injury or damage to property IS stnctly
liable for the
damage. A claim may only be made for damage to property if the
property was for
private use or consumption and the value of the damage caused
exceeds. £275.A
product is defective if its safety is not. such as persons
generally are en~ltled to
expect. The persons liable for a defective product are: (1) the
producer (:.e. the
manufacturer, including producers of component parts and raw
matenals), (2) a
person who holds himself out to be producer by p~tting his name or
trade ma:k on
the product, (3)a person who imports the product into the European
Commumty,
and (4)a supplier who fails, when reasonably requested to do so by
the person
injured, to identify the producer or importer of the prodU<~t.
'.
There are several defences to liability under the Act, e.g.
contnb~tory negligence,
that the defendant did not supply the product or did not supply It
m the course of
business; that the defect did not exist at the relevant time; and
that the state of
scientific and technical knowledge at the relevant time was not
such that a .
producer of such products could be expected to have discovere~ the
de.fect Actions
must be started within three years from the date when the claimant
fl:-St had a
cause of action or (if later) first knew or should have known the
mate.nal f~cts,.but
not later than ten years from when the product was put i~to
circulation. Liability
under the Act may not be excluded by any contract or notice.
Compensation for defective products can also be obtained under the
general
principles of contract and tort. The purchaser of a defective
product may sue the
seller for *breach of contract in failing to supply a product that
conforms to the
contract (including its *implied conditions). An action in .tort
can be bro~ght by
anyone whose person or property is damaged by a defective product
against the
person whose *negligence caused the damage; ~his person may be the
manufacturer
or someone else, such as a distributor or a repairer.
profit-and-Ioss account A document presenting in su.mmary form a
true and
fair view of the company's profit or loss as at the end of ItS
financial year. It must
show the items listed in one of the four formats set out in the
Companies Act 1985.
Its function is to show as profit or loss the difference between
revenue generated
and the expenditure incurred in the period covered by the account
See also
ACCOUNTS.
profit aprendre The right to take soil, minerals, or produce (such
as wood, turf,
or fish) from another's land (the servient tenement) or to. graze
ammals on It It may
exist as a legal or equitable interest. The right may be enjoyed
exclusively by one
person (a several profit) or by one person in common with others
(a.common). A
profit may exist in gross(i.e.existing independently of any
?wnershlp of land by
the person entitled) and may be exercisable without any limit on
the a~ounto~
produce taken. It may be sold, bequeathed or otherwise dealt with.
Profits existing
for the benefit of the owner's land (the dominant tenement) are
generally
exercisable only to the extent to which the dominant tenement can
benefit They
may ')e "appurtenant, when the nature of the right depends on the
terms of the
gram, or pur cause de vicinage (Norman French: because of
vicinity), in respect of
cattle grazing the dominant tenement and straying onto the unfenced
adjacent
servient tenement. Profits may be created by express or implied
grant or by statute;
profits appurtenant may also arise by *prescription (or presumed
grant). They may
be extinguished (1) by an express release; (2) by the owner
occupying the servient
tenement; or (3) by implied release (e.g. through abandonment which
may be
presumed through long "non-user, through changes to the dominant
tenement that
make enjoyment of the right unnecessary or impossible, or through
an irreversible
alteration of the servient tenement).
prohibited degrees of relationships Family relationships within
which
marriage is prohibited (and, if celebrated, is void) although
sexual intercourse within
such a relationship may not amount to *incest. A man, for example,
may not marry
his grandmother, aunt, or niece; a woman may not marry her
grandfather, uncle, or
nephew. Since 1986, there are fewer relationships of *affinity
within which marriage
is prohibited. For example, a man may now marry his mother-in-law
provided his
former wife and his former wife's father are both dead.
prohibited steps order See SECTION 8 ORDERS.
prohibited weapon A weapon suitable only for use by the armed
forces and
having no normal function in civilian life. Prohibited weapons
include automatic
firearms, weapons designed or adapted to discharge a poisonous
liquid or gas, and
ammunition containing poisonous substances. It is an offence
(punishable with up to
two years' imprisonment) to produce, sell, buy, or possess any
prohibited weapon
without the permission of the Defence Council. See alsoFIREARM;
OFFENSiVE WEAPON.
prohibition notice A notice under the Health and Safety at Work Act
1974
specifying activities that, in the opinion of an inspector, involve
a risk of serious
personal injury and prohibiting them until specified safeguards
have been adopted.
Compare IMPROVEMENT NOTICE.
prohibition order A remedy in which the High Court orders an
ecclesiastical or
inferior court, tribunal, or administrative authority not to carry
out an *ultra vires
act (for example, hearing a case that is outside its jurisdiction).
It is available in cases
in Which, had the act been carried out, the remedy would have been
a *quashing
order and it is governed by broadly similar rules.
prohibitory injunction See INJUNCTION.
prolixity n. Excessive length or repetitiveness in statements of
case, affidavits, or
other documents. Modern rules of procedure discourage prolixity;
prolix documents
may be struck out or the costs of them disallowed.
promise n. An undertaking given by one person (the promisor) to
another (the
promisee) to do or refrain from doing something. It is legally
binding only if
contained in a *contract or made by *deed.
promissory estoppel See ESTOPPEL.
promissory note An unconditional promise in writing, made by one
person to
another and signed by the maker, engaging to pay a specified sum of
money to (or
to the order of) a specified person or to the bearer, either on
demand or at a fixed
or determinable future time. Promissory notes are *negotiable
instruments and
many of the provisions in the Bills of Exchange Act 1882 apply
with necessary
modifications to promissory notes. Promissory notes are not
presented for
acceptance and the party primarily liable is the maker of a note. A
bank note is a
promissory note issued by a bank; the sum of money mentioned on the
note is
payable to the bearer on demand.
promoter n. 1. A person engaged in the formation or *flotation of a
company. A
promoter stands in a *fiduciary relationship to the company; his
functions may
include drafting a *prospectus, negotiating preliminary agreements.
instructing
solicitors, and obtaining directors. Solicitors, bankers, and other
professionals
involved in the company, but acting merely in their professional
role, are not
regarded as promoters. 2. One who introduces a private *Bill.
proof n. 1. The means by which the existence or nonexistence of a
fact is
established to the satisfaction of the court, including testimony,
documentary
evidence, presumptions. and judicial notice. Since most facts with
which a court is
concerned are not capable of being tested empirically, proof in the
legal sense is
quite different from proof in the context of mathematics or
science. The
uncorroborated evidence of one credible witness is sufficient proof
for most
purposes in the law. See STANDARD OF PROOF. 2. (Informal) The
written statement of a
prospective witness obtained by a solicitor. A witness is said not
to have come up to
proof if he fails to testify in accordance with his proof.
proof beyond reasonable doubt The *standard of proof required in
criminal
proceedings. If the jury has any reasonable (even if unlikely)
doubts about the guilt
of the accused, it may not convict him. lt is often paraphrased by
the judge
instructing the jury that they must be "satisfied so that they are
sure" of the guilt
of the accused. It is disputed whether this standard is ever
applicable in civil
proceedings (e.g.when there is an allegation of fraud): it is
generally held that it is
not. See also BURDEN OF PROOF.
proof of age The age of a person may be proved by *direct evidence,
such as the
testimony of someone present at the person's birth, and in some
cases from his
appearance. It is usually proved by producing a birth certificate,
under the
exception to the hearsay rule relating to statements in *public
documents, and
evidence that the person in question is the one referred to in the
birth certificate.
proof of birth Birth is usually proved by the production of a birth
certificate,
which is admissible under the exception to the hearsay rule
relating to statements
in *public documents, coupled with evidence identifying the person
in question
with the person referred to in the birth certificate.
proof of handwriting Handwriting may be proved by the testimony of
the
person whose handwriting it is or by that of someone who saw him
execute the
document in question. It may also be proved by the opinion of
someone familiar
with the handwriting of the alleged writer or by comparison with a
proved example
of the writer's handwriting. Expert testimony is also
admissible.
proof of marriage Legally valid evidence that a *marriage was
celebrated. This
will usually be shown by possession of a marriage certificate and
proof of identity,
but may also be shown by other forms of evidence.
proper law of a contract The system of law that is applied in
*private
international law to a contract with foreign elements. Which system
governs the
contract will depend on the intention of the parties to the
contract, to be
determined in each case by considering the terms of the contract,
and all the
surrounding facts. I~ the parties have expressly agreed which law
should govern the
contract, that law WIll normally be applied by virtue of the Rome
Convention (1980'
m force from 1AJ?riI19~1). If, as is usual, they have not expressly
agreed, the courts
try to Infer their mtention fro~ all the circumstances; if it
cannot be inferred, they
WIll apply ~,he system of law WIth WhICh the contract has "its
closest and most real
connection", In the UK the Rome Convention is implemented by the
Contracts
Applicable Law Act 1990.
property n. Anything that can be owned. A distinction is made
between real
p~operty (land and incorporeal *hereditaments) and personal
property (all other
kinds of property) and between tangible property (that which has a
physical
existence, ~.g. chattels and land) and intangible property (*choses
in action,
mcludI~g intellectual property, and incorporeal hereditaments). For
purposes of the
law of theft, property includes all real, personal, and intangible
property, although
lan~ can only be stolen under certain specified conditions. For
purposes of the law
of criminal damage, property does not include intangible
property.
p.roperty adjustment order An order made by the court in
proceedings for
dIv~rce, separation, or nullity that affects rights of ownership of
property belonging
to either spouse. Such orders include the transfer of property from
one spouse to
another, settling property for the benefit of the other spouse or
children, varying
marnage settlements, or extinguishing rights under such
settlements. The courts
have exceptionally wide discretion in making property adjustment
orders, and each
case WII.I depend on ItS own f~cts. The general aim of the
discretion, and factors to
be considered, are identical WIth those listed in relation to
*financial provision
orders; two other factors to be consid:red are the need to provide
adequate housing
for both spouses, and especially for mmor children. and the need to
allow each
spouse a share in the capital value of the family assets,
especially the *matrimonial
home. The co~rts have power to order the sale of the matrimonial
home or to make
the home subject .to a de~erred trust for sale, e.g. until the
children grow up. As in
the case of financial prOVISIOn orders, the court must achieve a
*clean break
~here:er poss.i~le. Property adjustment orders are often awarded in
addition to
financial p~ovlS1on orders and may only be made on or after the
granting of the
decree of divorce, separation, or nullity.
property in goods A right of *ownership in chattels.
property register See LAND REGISTRATION.
proponent n. The party who bears the evidential, and in some cases
the persuasive
*burden of proof in relation to an issue in litigation. '
proportienallty ri. 1. A principle of the European Union ensuring
that a
legislative measure IS introduced at EU level only when it is
appropriate to have a
measure at that level, and that when local legislation is all that
is needed, this will
be encouraged. See also SUBSIDIARITY. 2. A central provision of the
*European
Convention on Human Rights. lt applies particularly to the
*qualified rights and
wh:re the expression "necessary in a democratic society" is
contained within the
article. Whether or not such a right has been violated will depend
on whether the
interference with the ri~ht is p:-oportionate to the legitimate aim
pursued by that
interference, Thus even If a policy that interferes with a
Convention right might be
aImed. at securmg a legitimate purpose (e.g.the prevention of
crime), this will not in
~tself justify the violation if the means adopted to secure the
purpose are excessive
m the CIrcumstances.
propositus n. [Latin] 1. The person immediately concerned with
an issue ",2. An
ancestor through whom descent is traced. 3. A testator when making
hIS WIll.
propounder n. A person in a *probate action who claims that a
disputed will is
valid.
proprietary estoppel See ESTOPPEL.
proprietor n. One who owns land. In the case of registered land,
the registered
proprietor is the person entitled to the *legal estate and is
recorded as such in the
proprietorship register (see LAND. REGISTRATlON). The ~wners of
eqm~able interests are
protected by registration of their *mmor interests in the
appropnate manner.
proprietorship register See LAND REGISTRATION.
prorogation n. See PARLIAMENT.
proscribed organization An organization or association declared to
be forbidden
by the Home Secretary under the Terrorism Act 2000, because It
appears to be
concerned with terrorist activities (see TERRORISM).
prosecution n. The pursuit of legal proceedings, particuI~rly
crimin~l proceedings.
(The term is also used for the p~rty instituting the proceedmgs.)
Criminal
prosecutions on indictment are m the name of the Crown and
summary
prosecutions are in the name of an individual, usually a polrce
officer, although a
private individual may bring a prosecutIOn (most pn~ate
prosecutI~ns are f~r
assault). The *Attorney General can intervene III a pnvate
prosecution and either
take it over or abandon it. Many government departments and other
authorities
have power to prosecute; for example, the Inland Revenue, t~e
Department for
Work and Pensions, and local authorities. Under the Prosecution of
Offenders Act
1985,the duty of conducting prosecutions falls. principa~ly upon
the *Cro~ .
Prosecution Service, which exercises the functions previously
vested III the DI:ector
of Public Prosecutions, its head. It also takes over the conduct
of.most proceedings
instituted by the police. The *Attorney General's consent. I~
required before
prosecution for some offences, e.g. in cases involving official
secrets.
prosecutor n. The person who institutes criminal proceedings on
behalf of the
Crown. See PROSECUTlON.
prospectus n. A document inviting the public to invest in shares or
debentures of
a public company (see FLOTATION). The prospectu~ of a *listed
company (called the .
listing particulars) must contain the information required by the
St?ck Exchange,
the prospectus of an unlisted company must comply with the
FinanCIal Services Act
1986.
prostitution n. The offering of her body by a woman for sexual
intercourse or
other sexual activities in return for payment. Prostitution itself
is not a crime, but
various activities related to it are (see BROTHEL; KERB CRAWLING;
LIVING ON IMMORAL
EARNINGS' PROCUREMENT; SOLICITING). Advertising details of
prostitutes may amount to
a *conspiracy at common law or an <obscene public~tion. Certain
offences
concerned with brothels and living on immoral earmngs also apply to
male
prostitution.
protected child A child whom someone wishes to adopt and over whom
a lo.c~l
authority must exercise supervision. Under the 1976 Ado~tIOn Act,
such supervIsIO~
is only required when the child was not placed f?r adoption byan
adoption agency,
in agency cases, the agency itself will be responsible for
supervision.
protected goods (under the Consumer Credit Act 1974)Goods that are
the subject
matter of a regulated *hire purchase or *conditional sale agreement
of which the
debtor is in breach, but under which he has already paid to the
creditor one-third or
more of the total price of the goods, which remain in the ownership
of the creditor.
The creditor may not recover possession of the goods except on an
order of the
court, which may allow the debtor further time to pay. The
restriction does not
apply if the debtor has terminated the agreement.
protected occupancy The right of an agricultural worker to occupy a
*tied
cottage with statutory protection similar to that of a *protected
tenancy. Protected
occupancies have been replaced by *assured agricultural occupancies
by the Housing
Act 1988,but protected occupancies already in existence continue to
have the same
protection as before.
protected person A head of state (or a member of a corporate head
of state),
head of government, or minister for foreign affairs, or any member
of his family
accompanying him; or a representative or official of a state or of
an
intergovernmental international organization who is entitled under
international
law to special protection from personal injury or any member of his
family who is
also a member of his household. The Internationally Protected
Persons Act 1978
incorporates into English law the provisions of the 1974 New York
Convention on
Crimes against Internationally Protected Persons. The Act gives
jurisdiction to
English courts to try those charged with committing certain serious
acts against
protected persons (e.g. rape, assault, causing actual bodily harm,
wounding or
inflicting grievous bodily harm, kidnapping, and certain attacks on
premises), even if
the alleged acts were committed outside the UK. It also creates
offences of
threatening to commit any of the above acts anywhere in the world,
and extends
jurisdiction to various types of attempts and assistance. It is no
defence to any of
these offences that the defendant did not know that the victim was
a protected
person.
protected shorthold tenancy See ASSURED SHORTHOLD TENANCY.
protected site A site for which planning permission has been
granted for one or
more mobile homes to be set up.
protected state A state that, although nominally sovereign, is
under the
protection of another state. Usually the protected state allows the
protector full
control over its external affairs but retains control over its
internal affairs.
Examples are the Kingdom of Bhutan under the protection of India
and the State of
Brunei under British protection. A protected state is sometimes
called a
protectorate.
protected tenancy A contractual residential tenancy in which the
tenant has the
right to a *fair rent and *security of tenure. Protected tenancies
have been replaced
by *assured tenancies under the Housing Act 1988,but protected
tenancies already
in existence continue to have the same protection as before. To
qualify as a
protected tenancy, the premises must be let as a separate dwelling
that is within
certain rateable value limits and must have been created before the
Housing Act
1988 came into force (15 January 1989). There are some exceptions,
including lettings
to students, holiday lettings, local authority housing, and
lettings in which the rent
includes payment for board or attendance. If a landlord wishes to
terminate a
protected tenancy he must first terminate the contractual tenancy
in the usual way
(see NOTICE TO QUIT). A *statutory tenancy then comes into
existence and the landlord
can obtain possession only by a court order. To do this he must
have suitable
grounds, such as nonpayment of rent, provision of suitable
alternative .
accommodation for the tenant, or if the landlord needs the property
for himself or
one of his family to live in.
There were formerly two kinds of protected tenancy: controlled and
regulated. All
controlled tenancies have now been converted into *regulated
te~ancles. (See .
CONVERTED TENANCY.) Furnished tenancies have the same protection as
unfurmshed
tenancies, but they are more likely to fall within one of the
exceptions to
protection. See alsoASSURED SHORTHOLD TENANCY; SECURE TENANCY;
RESTRICTED CONTRACT.
protection and indemnity association (or club) An a~so~ia~ion of
shipowners
formed to meet, out of funds contributed by its members,
liabilities that anse from
maritime activities and are not covered by insurance.
protectionism n. The practice of protecting states or EU interests
by im?os~ng .
trade barriers and customs duties to prevent imports from abroad.
ProtectlOmsm IS
the opposite of free trade. As a party to the *General Agreement on
Tariffs and
Trade and the *World Trade Organization, the EU seeks to ensure
free trade not
only between the members of the EU and the *European E~on.omic Area
but also
with other countries, although not to the same extent as within the
ED.
protective award An award made by an employment tribunal ordering
an
employer to continue to pay wages for a "protec~ion period" to
emp~oyees who have
been made redundant in breach of the consultatlOn reqmrements Iaid
down in the
Trade Union and Labour Relations (Consolidation) Act 1992 (see
REDUNDANCY). When an
employer is proposing to dismiss as redundant 20 or more employees
at one .
establishment within a period of 90 days or less, he must consult
~th ~ppropnate
representatives of the affected employees. Consultations must bel?m
within good.
time, in any event 90 days before the first dismissal takes effect
(If the employer IS
proposing to dismiss 100 or more emp.loyees within the 90 days) or
at least 30 days
beforehand (if the employer is proposmg to dismiss betw~en 20 and
99.employees).
Failure to comply with these requirements gives a recognized trade
union. an
elected employee representative, or an affected employee a nght to
apply to an
*employment tribunal. In the absence of special circumstances
rendenng It not
reasonably practicable to comply with these requirements, th:
employment tribunal
is empowered to make such a protective award. It has discretion
regardmg the
duration of the protected period, subject to a maximum of 90 days.
Th~ Act ~lves
the tribunal guidance that the protected p~riod should be just and
:qUltable m all
the circumstances having regard to the seriousness of the employer
s default. Each
employee covered by the award is entitled to one week's pay for
each week of the
protected period. If the employer fails to make a~y or all of the
payments due for
this period, the individual employee may complain, within three
months, to an
employment tribunal, which may order payment.
protective trust (alimentary trust) A trust for a period no lo~ger
t~an the
beneficiary's life, the period ending if certain events (commonly
including the
bankruptcy of the beneficiary) take place. At the o~curr~nce of
such an event, the
income of the property is applied at the absolute dlscre~lOn of the
trustees ~or the
beneficiary or his family, the beneficiary no longer having any
right to receive the
income himself.
protector of settlement The first person entitled, un~er a *st~ict
sett~em~nt of
land, to a life interest preceding the *entailed interest or (If
there IS no prior lI~e
interest) the settlor. Under the Fines and Recoveries Act 1833, a
person entItled m
<remainder to an entailed interest can only bar the entail
completely, so as to create
a fee simple in remainder, if the protector's consent is given by
deed on or before
execution of the disentailing deed. Without the protector's consent
only the tenant
in tail and his issue are barred; when they die out the land passes
to the person next
entitled in remainder or in reversion (in pre-1926 terminology, a
base fee).
protest n. 1. An express indication that an act is not to carry an
implication that
might otherwise attach to it. For example, when a payment is made
under protest,
the payer does not agree that he is liable for the payment. 2. A
procedure by which
a *notary provides formal evidence of the *dishonour of a bill of
exchange. When a
*foreign bill has been dishonoured by nonacceptance or nonpayment
it is handed to
the notary, who usually presents it again. If it is still
dishonoured, the notary
attaches a slip showing the answer received and other particulars -
a process called
noting. The protest, in the form of a formal document, may then be
drawn up at a
later time.
protocol n. 1. The original draft of a document. 2. An
international agreement of
a less formal nature than a *treaty. It is often used to amend
treaties. It may also be
an instrument subsidiary or ancillary to a *convention, in which
case it may deal
with points of interpretation and reservations. 3. A code of
procedure. 4. Minutes
of a meeting setting out matters of agreement.
provable debt A debt in respect of which a creditor can claim a
share of a
bankrupt's assets. A provable debt must either be incurred by the
bankrupt before a
*bankruptcy order is made against him or arise after the order is
made as a result
of an obligation that existed beforehand. Compare NONPROVABLE
DEBT.
proving a will Obtaining *probate of a will or *letters of
administration cum
testamento annexo.
provisional damages Damages given in personal injury cases when the
injuries
sustained may cause in the future some serious disease or other
serious
deterioration in the claimant's physical or mental condition. The
court has the
power to make an immediate award of damages on the basis of the
claimant's
present condition and order that he can come back within a
specified time for a
further award if the disease or condition develops.
provisional liquidator A person appointed by the court to conduct
the
*compulsory winding-up of a company pending the appointment of a
*liquidator.
Either the *official receiver or a qualified *insolvency
practitioner may be
appointed.
provisional orders Orders made by government ministers but
requiring
confirmation by Act of Parliament (a Provisional Order Confirmation
Act) before
becoming law. They do not, therefore, constitute *delegated
legislation. Provisional
orders were formerly used extensively, primarily to confer powers
on local
authorities, but have been largely superseded by *special procedure
orders.
proviso n. A clause in a statute, deed, or other legal document
introducing a
qualification or condition to some other provision, frequently the
one immediately
preceding the proviso itself.
In criminal appellate procedure, applying the proviso occurs when
the Court of
Appeal uses the power conferred by the proviso to section 2 of the
Criminal Appeal
Act 1968. This empowers the court to dismiss an appeal if it
considers that no
miscarriage of justice has occurred, even though it believes that
the point raised in
the appeal might be decided in favour of the appellant.
provocation n. Conduct or words causing someone to lose his
self-control.
Provocation is not recognized as a *general defence to a criminal
charge in English
law, though what otherwise would have been murder may be reduced
to
manslaughter if provocation is shown (it is not, however, a defence
to a charge of
attempted murder).
The test for provocation is whether the acts or words involved did
in fact make
the defendant lose his self-control and if so, whether they would
also have made a
reasonable man in the defendant's position do the same. This is a
question of fact
for the jury to decide in each case. A reasonable man for these
purposes must be a
person of the same sex and age as the defendant and sharing any
characteristics of
the defendant that might affect the seriousness of the provocation.
For example, a
sexually impotent defendant might be more easily provoked by taunts
about his
impotence than an ordinary man. The jury would therefore have to
consider how a
reasonable impotent man would have reacted. However, such
characteristics as
intoxication from alcohol or drugs cannot be attributed to the
reasonable man. See
also BATTERED SPOUSE OR COHABITANT.
proxy n. A person (not necessarily a company member) appointed by a
company
member to attend and vote instead of him at a company meeting.
Directors often
offer themselves as proxies by sending out proxy forms with the
notice of the
meeting. When this is done at company expense, forms must be sent
to all company
members alike. In the case of a *listed company, the form must
enable members to
direct the proxy whether to vote for or against the resolution; in
other cases, it may
specify that the proxy is to use his discretion. Usually a proxy
can vote only upon a
poll (see VOTING). In private companies the proxy can speak at the
meeting.
psychopathic disorder For the purposes of the Mental Health Act
1983,a form
of *mental disorder consisting of a persistent disorder or
disability of mind (which
mayor may not include significant impairment of intelligence) that
results in
abnormally aggressive or seriously irresponsible conduct and
requires, or is
susceptible to, medical treatment.
Public Accounts Committee A nondepartmental select committee of the
House
of Commons, established in 1861 to examine government expenditure
and report on
any irregularity or other matter to which it considers that
attention should be
drawn. It has 15 members and its chairman is customarily a member
of the
Opposition.
public Act See ACT OF PARLIAMENT.
publication n. 1. (in the law of *defamation) The communication of
defamatory
words to a person or persons other than the one defamed. In the
English law of tort,
publication to at least one other person must be proved.
Communication between
husband and wife does not amount to publication, but communication
by the
defendant to the spouse of the claimant is sufficient. Dictation of
a defamatory
statement to a secretary or typist is publication. Publication to
persons other than
the one defamed is not required in Scottish law or in criminal
libel. 2. (in copyright
law) The issuing of reproductions of a work or edition to the
public. Protection
under the Copyright, Designs and Patents Act 1988 may depend on
whether the work
has been published 3. For the purposes of the Obscene Publications
Acts, see OBSCENE
PUBLICATIONS.
public Bill See BILL.
public body Any body, corporate or otherwise, that performs its
duties and
exercises its powers for the public benefit, as opposed to private
gain. Under the
l.ocal ~,:,ernment Act 1972, public bodies include local
authorities, trustees,
comnussionor-; and those who have duties to provide cemetaries and
markets and
act for the improvement of any place, or who have powers to issue
or levy
*precepts.
public company A type of registered company that can offer its
shares to the
public (compare PRIVATE COMPANY). Its memorandum of association
must state that it
ISa public co~pany, that. its name er:ds with the words "public
limited company" (or
plc), and that :ts "authorized capital ISat least the authorized
minimum (£50,000). It
cannot do busmess until It has allotted shares with a nominal value
corresponding
With the authorized minimum. It cannot allot shares except upon
payment of onequarter
of the~r nommal value plus any *share premium. £12,500 is therefore
its
rmmmum capital, It thus may not have much wealth or substance,
although many
assume the c~ntrary. Under the Companies Act 1985 an undertaking to
do work or
perform services ISnot ~n acceptable *consideration for shares in a
public company,
and other non-cash considerations are subject to independent
valuation and must be
transferred to the company within five years of *allotment. See
also FLOTATION; STOCK
EXCHANGE.
public corporation A corporation established to perform a public
function,
frequently commercial bU~ not nec~ssarilyso (it may be social
advisory, or of any
other character). Thus bodies established to manage nationalized
industries are
public corporations, as are such bodies as English Nature. A public
corporation is
normally a stat~tory corpo~ation, i.e. established by Act of
Parliament; exceptions
mclu*de the British Broadcastmg Corporation, which was established
by royal charter.
The prrvatization programme that has been in operation in the UK
since the 1980s
has reduced the number of public corporations as their functions
have been taken
over by ~ublic companies and the government has divested itself,
either wholly or
su?~t~ntlally, of the statutor~ an? financial commitment to the
provision of public
utilities (such as telecommumcatIOns, water, electricity, and gas).
As these
corporations have been privatized, *regulatoryagencies have been
established as
watchdog bodies.
public document A document concerned with a public matter, made
under a
public duty to inquire into all the circumstances recorded and
meant for public
inspection. Statements in public documents are admissible as an
exception to the
rule agamst "hearsay evidence.
public duties Certain public officers, including magistrates,
councillors, school
and college governors, and members of health authorities, are
entitled under the
Employment Rights Act 1996 to time off work to fulfil their
official duties. An
employee entitled to time off work for public duties does not have
a statutory right
to be paid fo: hIS periods of absence. No specific right to time
off for jury service is
g~ven, but failure to attend jury service is contempt of court,
therefore an implied
nght to tune off probably exists.
public exa~ination In *bankruptcy proceedings, an investigation
into the
conduct, dealmgs, and property of a debtor. It takes place in a
court and the debtor
IScompelled to attend and answer questions on oath. The *official
receiver has a
discretion whether or not to apply to the court for a public
examination after a
bankruptcy order is made. He must apply (unless the court directs
otherwise) if the
creditors request it.
public general Act See ACT OF PARLIAMENT.
public good A special defence to some charges under the Obscene
Publications
Act. See OBSCENE PUBLICATIONS.
public house Under the Local Government Act 1966,any premises
licensed for the
sale of intoxicating liquor for consumption on the premises, this
(apart from any
ancillary or incidental trade or business) being the only trade
carried on there.
public law The part of the law that deals with the constitution and
functions of
the organs of central and local government, the relationship
between individuals
and the state, and relationships between individuals that are of
direct concern to the
state. It includes constitutional law, administrative law, tax law,
and criminal law.
Compare PRIVATE LAw.
public limited company (pic) See LIMITED COMPANY; PUBLIC
COMPANY.
public mischief Conduct damaging the interests of the community;
for example,
making bogus telephone calls to the police. Until 1975 this was
regarded as a crime
but it is now no longer so regarded, nor is conspiracy to effect a
public mischief.
There is, however, a special statutory offence of *wasting police
time (but not, for
example, the time of ambulancemen or firemen). See also BOMB HOAX;
SENDING
DISTRESSING LETTERS.
public morals The basic moral structure of society. Judges have
occasionally said
that they retain a general overriding discretion to punish as
crimes behaviour that
is destructive of public morals but it is not at all clear to what
extent they should
do so, although some crimes, such as incest, are presumably based
on moral factors.
The abolition of the crimes of homosexual conduct and suicide was
based on the
assumption that matters of morals that do not directly affect other
people should
not be the subject of criminal legislation. See also CORRUPTION OF
PUBLIC MORALS.
public nuisance See NUISANCE.
public office Employment in the *Civil Service or in any other
capacity in which
remuneration is provided by Parliament or the Consolidated Fund.
Public office also
includes employment of an officer to whom the Overseas Service Act
1958applies
and employment funded by the Church Commissioners, the Agricultural
Research
Council, the Crown Estate Commissioners, and the Metropolitan
Police Fund.
public or general rights See DECLARATION CONCERNING PUBLIC OR
GENERAL RIGHTS.
public place A place to which the public has access. The main
offences relating to
public places are: (1) being found drunk or being drunk and
disorderly in a public
place; (2) carrying a *firearm, *offensive weapon, or bladed
article in a public place;
(3) *soliciting in a public place; and (4) displaying support for a
*proscribed
organization in a public place. See also OFFENCES AGAINST PUBLIC
ORDER.
public policy The interests of the community. If a contract is (on
common-law
principles) contrary to public policy, this will normally make it
an *illegal contract.
In a few cases, however, such a contract is void but not illegal,
and is treated slightly
more leniently (for example, by *severance). Contracts that are
illegal because they
contravene public policy include any contract to commit a crime or
a tort or to
defraud the revenue, any contract that prejudices national safety
or the
administration of justice, and any *immoral contract. Contracts
that are merely void
include contracts in *restraint of trade and in *restraint of
marriage and *marriage
brokage contracts.
public procurement Obtaining goods or services for the use of the
public sector.
Procurement in this sector is often formalized, and contracts for
public works,
supplies, or services, which can be large, are advertised for
formal tender. In the
1970s the EU,finding that most public contracts in the EU were
placed with local
suppliers, issued directives requiring that large public supply and
works contracts
must be advertised throughout the EUand be open to all who meet
the
requirements set out in them. These directives have been amended
and revised and
now ~xt.end to cover services and utility contracts. Three
alternative procedures for
submitting tenders are set out in the directives; of these, the
open procedure is
generally regarded as the fairest and is the one that must most
often be used. The
basic principle for all three procedures is that if the value of a
contract for public
works, ~upplies, or services (or of a contract for utilities
whether in the public sector
or not) IS over a certain minimum financial level, the contract
must be advertised in
the EU's Official Journal and suppliers from all EU states are
entitled to put in
tenders. The company winning the contract must be chosen fairly in
accordance
with formulae set down in the relevant directive. When the
procedure is not
followed, there is a right to claim damages under separate remedies
directives.
public prosecutor See DIRECTOR OF PUBLIC PROSECUTIONS.
public trust A trust for the benefit of the public, which mayor may
not be a
*charitable trust.
Public Trustee A public officer, appointed under the Public Trustee
Act 1906,who
is a *corporation sole and who may act as a "custodian trustee, a
*judicial trustee,
or an ordinary trustee. The Public Trustee cannot accept certain
trusts, e.g. those
exclusively for charitable or religious purposes, those governed by
foreign law, or
those involving the management of a business. He has a duty to
administer small
estates unless there is some good reason for his refusal.
puisne adj. [from Old French puisne, later born) Inferior; of
lesser rank.
puisne jUdge Any ordinary judge of the High Court. Puisne judges
are referred to
as (for example) "Mr Justice Smith", even though they are knighted
upon
appointment. They must be barristers of at least ten years'
standing.
puisne mortgage A legal mortgage of unregistered land in which the
mortgagee
does.not keep the title deeds of the land as security. Usually a
first mortgagee
retams the deeds; thus subsequent mortgages will be puisne and
should be protected
by registration (see REGISTRATION OF ENCUMBRANCES).
punishment n. A penalty imposed on a defendant duly convicted of a
crime by an
authorized court. The punishment is declared in the *sentence of
the court. The two
basic principles governing punishment are *nullum crimen sine
legeand *nulla poena
sine lege. The powers of the court to punish offenders also depend
on whether the
crime is an *indictable offence or a *summary offence.
There are a number of different theories of punishment, and
different aims and
purposes underly the legal provisions of the English criminal
system. The concept of
retribution implies that a criminal merits his just punishment
because he has done
something morally or socially evil. Another aspect of retribution
implies that the
punishment should be related to the harm done by the crime, rather
than to the
moral guilt of the criminal. The utilitarian school, by contrast,
believes that all
punishment is evil, insofar as it adversely affects human
happiness. It can only be
justified, therefore, if it prevents greater unhappiness or harm.
This is the basis of
the theory of deterrence, in which the punishment is aimed at
deterring the
criminal from repeating his offences or deterring others from
committing similar
acts. Custodial sentences may be required to protect the public
from further harm,
particularly when the crimes involve violence. Sometimes these
sentences are also
justified as an expression of public condemnation and outrage.
Recent thinking
replaces the concept of retribution by the belief that sentences
should be designed
to assist in the rehabilitation of the criminal. To some extent
these concepts are
accepted in relation to young offenders, and are also reflected in
the system of
*parole (see also SPENT CONVICTION). Legislators and judges have to
bear in mind these
concepts in laying down and applying sentences. They must also be
aware of
society's need for a humane system of criminal justice.
Clearly the extent to which crimes should be punished without proof
of
*intention or *recklessness (e.g.crimes of *negligence and *strict
liability) depends
on which theory of punishment one adopts. Parliament has created a
large number
of so-called regulatory offences (e.g. road traffic offences and
offences relating to
production of food), which usually do not involve moral guilt and
are often
punished despite the absence of *mens rea. It is also a matter of
considerable
controversy whether or not the criminal law should punish morally
objectionable
conduct that does not obviously harm anyone (e.g. obscene
publications and various
sex-related offences).
The European Convention on Human Rights (signed 1950) forbids the
use of
"inhuman or degrading" punishment; this prohibition is now part of
UK law as a
consequence of the *Human Rights Act 1998 (see DEGRADING TREATMENT
OR
PUNISHMENT; INHUMAN TREATMENT OR PUNISHMENT). Similarly, the
prohibition on the use
of arbitrary punishment, as set out in Article 7 of the Convention,
is now
incorporated into the Human Rights Act. This provision makes
unlawful the use of
criminal penalties that are not prescribed by law.
punitive damages See EXEMPLARY DAMAGES.
pur autre vie See ESTATE PUR AUTRE VIE.
pur cause de vicinage See PROFIT A PRENDRE; COMMON.
purchaser n. 1. (in land law) Any person who acquires land
otherwise than by
mere operation of law. Thus a purchaser may be a mortgagee or one
to whom land
is given or bequeathed as well as one who buys land for money or
other
consideration. A tenant in tail (whose interest devolves upon him
automatically on
his ancestor's death) is not a purchaser, nor is one who acquires
title by *adverse
possession. 2. A *buyer.
purchaser for value without notice One who acquires land either in
return
for money or other consideration having monetary value or under a
marriage
settlement and who does not know and has no reason to know of an
encumbrance
that adversely affects the land. Such a purchaser is not bound by
certain equitable
encumbrances, such as restrictive covenants created before 1926 or
the rights of
beneficiaries under a trust in unregistered land. However, in order
to take free of
encumbrances, such a purchaser must act in good faith (bona fide),
and, in any event,
most equitable encumbrances are capable of registration (see
REGISTRATION OF
ENCUMBRANCES) and a purchaser is deemed to know of any interest
that is registered.
Some encumbrances in registered land may be *overriding interests
and will bind a
purchaser whether he knows of them or not. Legal encumbrances (such
as legal
easements) always bind a purchaser of the land whether or not he
knows of their
existence.
purpose trust A trust that is not for the benefit of a human
beneficiary and is
not a *charitable trust. Such trusts are normally invalid as there
is no one to
enforce them; exceptions that are valid include trusts for the
benefit of individual
animals, for the maintenance of individual graves, and for the
saying of masses. The
courts, however, may be willing to construe what appears to be a
purpose trust (e.g.
a trust for a sports ground to be used by employees of a firm) as a
trust for human
beneficiaries, and thus valid.
putative father A man alleged to be the father of an illegitimate
child. If the
court accepts the mother's allegations, the man is declared the
putative father and
may be ordered to make periodical payments for the maintenance of
the child by
the Child Support Agency (see CHILD SUPPORT MAINTENANCE) or to pay
a lump sum by
the court. The putative father's name may also be entered on the
child's birth
certificate. See also ILLEGITIMACY.