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References
For further distinctions between Criminal and Civil law see infra, p. 17.
For an explanation of judicial precedent, see infra, p. 13.
On injunctions see infra, p. 107.
More properly known as the ‘Appellate Committee of the House of Lords’. Interestingly, the British Government announced in June 2003 that intends to create a new type of Supreme Court, where most senior judges, who are proposed to be called ‘Justices of the Supreme Court’, would sit outside the House of Lords. This new Supreme Court will therefore replace the current House of Lords and the Judicial Committee of the Privy Council. The Government’s suggestion has met with considerable opposition, e.g. see the Law Lords’ response in The Times, 5 November 2003. However, the Constitutional Reform Bill was introduced in the House of Lords in February 2004 who passed a delaying amendment, which means that the Bill is referred to a select committee for further consideration before it can be introduced to the House of Commons.
As from April 2005 some of the Court’s procedures have been amended by the provisions of the Criminal Justice Act 2003.
Section 1, Employment Rights (Dispute Resolution) Act 1998.
Sections 9(1) and 9(2), of the Supreme Court Act 1981.
Section 5(1), County Courts Act 1984.
See for example Sir John Donaldson M.R.’s comments in Attorney-General v. Newspaper Publishing plc. [1987] 3 All E.R.532, C.A.
Attorney-General v. Times Newspapers Ltd. [1974] A.C.273, H.L.
R v. Powll (1994) 98 Cr.App.R224.
R v. New Statesman (Editor) (1928) 44 T.L.R.301.
Re Hooker [1993] C.O.D. 190.
R v. Samuda (1989) 11 Cr.App.R.471, C.A. But see the factors that Courts would take into consideration in the case of journalists in X Ltd. v. Morgan-Grampian (Publishers) Ltd. [1990] 2 All E.R.1 H.L.
Dean v. Dean [1987] 1 F.L.R.517, C.A.
A writ of sequestration is a very drastic remedy whereby the property of the person’s committing the contempt is placed temporarily at the disposal of certain officials (sequestrators) who manage the property and receive any rents and profits from it until the contempt is purged. Sequestrators cannot sell the property, and this remedy is not available in the case of criminal contempt. In practice this remedy is only used in extreme cases; Director of Public Prosecutions v. Channel Four Television Co. Ltd. [1993] 2 All E.R.517.
M. v. Home Office [1993] 3 All E.R.537.
Practice Statement [1966] 3 All E.R.77.
It must be borne in mind however, that the House of Lord is bound by decisions made by the European Court of Justice. However, the E.C.J. is not bound by its own previous decisions, since the doctrine of precedent is not in existence in most other European countries; previous decisions are only of persuasive character in these Courts. However, it is clear that the E.C.J. lacks jurisdiction to make findings of fact, and no national Court is bound by E.C.J.’s conclusions on these; Arsenal Football Club Plc v. Reed (No. 2) [2003] 1 All E.R.137.
Williams v. Glasbrook Bros. [1947] 2 All E.R.884.
However, it must be noted, that there are exceptions to this general rule: (i) Where there are conflicting previous decisions of the Court of Appeal, the Court may choose which one to follow, see Starmark Enterprises Ltd v. C.P.L. Distribution Ltd. [2002] Ch.306 C.A., and Great Peace Shipping Ltd. v. Tsavliris Salvage (International) Ltd. [2003] Q.B.679. (ii) Where the Court of Appeal is satisfied that its previous decision was given per incuriam, i.e. by carelessness or mistake-in error, see Young v. Bristol Aeroplane Co. Ltd. [1944] K.B.718, C.A. (iii) Where a previous decision has been ‘indirectly’ overruled by a subsequent House of Lords decision, or the Judicial Committee of the Privy Council, National Westminster Bank Plc v. Spectrum Plus Ltd. [2004] 3 W.L.R.503. For further explanation of these issues, see Rakhit v. Carty [1990] 2 All E.R.202 C.A., Wellcome Trust Ltd. v. Hammad [1998] 1 All E.R.622 C.A., and R. v. Simpson (Ian McDonald) [2004] Q.B.118.
De Lasala v. De Lasala [1980] A.C.546.
Again this general rule on Divisional Courts’ previous decisions is subject to similar exceptions as those previously mentioned supra, footnote 43. Generally, however, there is no difference in the application of stare decisis between the Civil and Criminal Divisions of the Court of Appeal; R. v. Spencer [1985] Q.B.771 C.A.
So, for example, an arbitrator is empowered, in certain circumstances, to (i) order either/both parties to provide security for costs, s.38, Arbitration Act 1996, and (ii) dismiss the claim, respectively, s.41(3), Arbitration Act 1996.
Section 15(1).
Section 15(3).
Section 15(2).
Scott v. Avery (1856) 5 H.L.C.811, H.L., where the arbitration clause made the issuance of an award a condition precedent to the commencement of an action before the Courts.
Since such clauses do not oust the jurisdiction of the Courts but only ‘technicalities and strict constructions’; per Denning, M.R., in Eagle Star Insurance Co. Ltd. v. Yuval Insurance Co. Ltd. [1978] 1 Lloyd’s Rep.357, 362.
The Court will pay particular attention on whether ‘the arbitration agreement is null and void, inoperative or incapable of being performed’, s.9(4), Arbitration Act 1996. In the case of a ‘domestic arbitration’ only, the Court would additionally consider whether ‘there are sufficient other reasons for not requiring the parties to abide by the arbitration agreement’, s.86(2)(b). It must be noted, however, that this latter section, as well as all other sections included in Part II of the Arbitration Act 1996 are not likely to be brought into force. For the reasoning of this exclusion from enforceability, see Philip Alexander Securities and Futures Ltd. v. Bamberger, The Times, 22 July, 1996.
Halki Shipping Corporation v. Sopex Oils Ltd. [1998] 1 Lloyd’s Rep.465.
Section 5(1). However, under s.5(2)(a) such written agreements need not be signed, thus allowing for the use of modern technology, such as e-mail. Indeed, s.5(6) defines ‘anything written or in writing’ as including ‘its being recorded by any means’.
Section 46. As to the law applicable to contracts, see infra, p. 120.
Since Part II of the Arbitration Act 1996 is not likely to be brought into force; Philip Alexander Securities and Futures Ltd. v. Bamberger, The Times, 22 July, 1996.
Section 69(3).
As to methods of enforcement of civil judgments, see infra, p.48.
Given effect by s.66(4) of the Arbitration Act 1996.
For more information on the classification of criminal offences, see infra p.49.
In effect an ex parte application to the Court is an application from one litigant without notice to the other litigant parties. See further infra, p.44.
For a brief outline of the legislation process see infra, p.20.
For example, in general insurance law it is accepted that the normal agency law principles apply in so far as payment of the insurance premium is concerned. It is the insured as principal, and not his insurance broker, who is liable to the insurer for such payment. It is not the insurance broker because he is an agent of the insured. However, in marine insurance the practice has been that the broker is responsible to the insurer for payment or non-payment of the premium to the insurer, s.53(1) of Marine Insurance Act 1906.
Cf. Antoine Kortas, Case C-319/97, [1999] 3 C.M.L.R.962, O.J. 1999 C 204, 17/07/1999, p.18, where the E.C.J. held that a Directive can have direct effect.
It is also possible to have a ‘private member’s bill’, i.e. one introduced by a Member of Parliament who is not a member of the Government If the bill receives support from the House of Commons it may be adopted by the Government and go through the normal legislative process; e.g. the Abolition of the Death penalty Act 1965, recent proposal to ban hunting with dogs, etc. There are also two other types of Bills; Local and Personal. Local authorities or other public bodies may seek to promote a private Bill in Parliament. If the Bill receives Parliamentary approval the Bill becomes an Act of Parliament These local Bills usually deal with large construction projects connected with docks, ports, railways, tramways, waterworks etc. Personal Bills are comparatively rare and relate to private individuals; usually in respect of naturalisation, divorce, peerage, etc.
For further sources of European Union Law see supra, p.19.
See for example, A.V. Dicey’s Introduction to the Study of the Law of the Constitution, Roger E. Michener (editor), 1982, Liberty Fund Inc.
There are some Constitutional conventions which are recorded however, e.g. in the case of the Commonwealth there used to be resolutions of Imperial Conferences wherein some Conventions were recorded or created. It must be noted that conventions are not unique to Britain and they arise even in countries which have a formal (written) constitution, as the Canadian Reference case indicates; Reference Re Amendment of the Constitution of Canada (1982) 125 D.L.R. (3rd) 1, Supreme Court of Canada.
Although, a change of domicile after execution would not necessarily revoke a will; section 3, Wills Act 1837.
For the criteria taken into consideration by the Courts see Banks v. Goodfellow (1870) L.R.5 Q.B.549. Also, sections 2 and 3 of the Mental Capacity Act 2005.
Parker v. Felgate (1883) 8 P.D. 171.
Section 17 of the Administration of Justice Act 1982, does not specify a document, form, or anything else. Therefore, it might be acceptable if the will is written on a non-paper based form, e.g. in Goods of Barnes, The (1926) 43 T.L.R.71, the will was written on an eggshell!
Any mark made by the testator and intended to be a signature would be sufficient; Goods of Chalcraft, The [1948] P.222.
Section 15, Wills Act 1837 (as amended by section 1 of the Wills Act 1968).
Section 20, Wills Act 1837. Note that any ‘writing declaring an intention to revoke’ which is executed like a will is sufficient; Re Spracklan’s Estate [1938] 2 All E.R.345, where the Court considered that a letter written by the testatrix, duly attested and sent to her bank requesting the bank to destroy her will which the bank held for safe-keeping, fulfilled the requirements for revocation of her will.
Section 20, Wills Act 1837. Note that it is not sufficient to throw the will in a waste-bin; Cheese v. Lovejoy (1877) 2 P.D.251. The destruction of the will may be made by the testator himself, or by someone other than the testator, but such act must be done in the testator’s presence and at the testator’s direction.
Section 18, Wills Act 1837 (as amended by the Administration of Justice Act 1982).
Section 18A, Wills Act 1837 (as amended by the Administration of Justice Act 1982). See further section 3, Law Reform (Succession) Act 1995.
For a brief explanation, see infra, p.27.
Under the Adoption Act 1976, adopted children are treated as the deceased’s issue. Furthermore, it is irrelevant whether the parents of a child were or were not to married to each other, Family Law Reform Act 1987.
See further section 46, Administration of Estates Act 1925.
The rules followed for the grant of representation are contained in the Non-Contentious Probate Rules 1987 (as amended by the Non-Contentious Probate (Amendment) Rules 1991).
This should be any newspaper which circulates in the district in which the deceased’s estate lies, or it could be the London Gazette. It must be understood that this advertising should be placed in order to protect the representatives from liability against any disappointed beneficiary or creditor, Knatchbull v. Fearnhead (1837) 3 My.& Cr. 122.
Section 4, Inheritance (Provision for Family and Dependants) Act 1975. Note that no application can be made before the grant of representation.
Sections 1(1)(a) and 1(1)(b) respectively, Inheritance (Provision for Family and Dependants) Act 1975.
Section 1(1)(ba), inserted by s.2 of the Law Reform (Succession) Act 1995, Inheritance (Provision for Family and Dependants) Act 1975.
Sections 1(1)(c) and 25(1) respectively, Inheritance (Provision for Family and Dependants) Act 1975.
Section 1(1)(d), Inheritance (Provision for Family and Dependants) Act 1975. See also Re Leach [1988] Ch.226.
Bishop v. Plumley [1991] 1 W.L.R.582.
Section 1(1)(e), Inheritance (Provision for Family and Dependants) Act 1975.
Under s.3, Inheritance (Provision for Family and Dependants) Act 1975.
These are technical legal terms and therefore they do not bear the ordinary English meaning. ‘Fee’ indicates an estate capable of passing to one’s heirs on death,’ simple’ means that this passing is to the general heirs (as opposed to a certain class of heirs), ‘absolute’ means that it is a straightforward transfer without preconditions attached, and ‘in possession’ means that the person having this estate is entitled to physical possession. There has recently been introduced a new form of tenure which enables owners of interdependent units, e.g. flats, to be owned on a virtual freehold basis. It also deals with the provision of services and upkeep of common areas. See further the Commonhold and Leasehold Reform Act 2002, and the Commonhold Regulations 2004 (S.I.2004, No. 1829). Similar systems of tenure operate in Australia, and the U.S.A.
Section 1, The Law of Property Act 1925.
Law of Property Act 1925.
According to section 55(1)(x) of the Administration of Estates Act 1925, personal chattels mean ‘carriages, horses, stable furniture and effects (not used for business purposes), motor cars and accessories (not used for business purposes), garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewellery, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors and consumable stores’.
Section 52, Law of Property Act 1925.
Section 136, Law of Property Act 1925.
This is mainly because the legal owner can sell the property by defeating any equitable rights/interests attaching to it. This is called overreaching in English law, and very briefly, can only take place when the buyer of the property is a bona-fide purchaser of the legal estate for value without notice; Pilcher v. Rawlins (1872) 7 Ch.App.259.
Section 52, The Law of Property Act 1925.
In Walsh v. Lonsdale, (1882) 21 Ch.D.9, D entered into an agreement in writing to grant to C a lease for seven years. The agreement provided for rent payable in advance, and it was not made by deed, as the law required. C became in arrears with payment of rent. The Court held that although law would not recognise the seven-year lease ever existed between the parties, in equity, however, the agreement for the lease was as good as a lease. Therefore, C was held liable to pay for the rent arrears.
But not all crimes need to include the element of mens rea. There are some crimes which when committed give rise to’ strict liability’, for example, offences under the Road Traffic Act. Invariably, but not always; Pharmaceutical Society v. Storkwain (1986) 1 W.L.R.903, most of these offences of strict liability are imposed/created by statutes.
These Rules contain the requirements which form the basis for the defence of insanity and they derived from the the House of Lords case of R v. M’Naghten (1843) 10 C1.& Fin.200.
For example, Kay v. Butterworth [1945] 173 L.T.191, where the driver of a vehicle was found guilty of driving since he had continued to drive when he knew he was feeling drowsy.
R. v. Miller [1983] A.C.161; the defendant was a squatter and had fallen asleep while smoking a cigarette. He awoke to find that his bed was on fire and instead of attempting to put out the fire he moved to another room. The House of Lords held that he should bear responsibility for the result of his failure.
Winzar v. Chief Constable of Kent, The Times, 28 March 1983; the police removed the accused from a hospital to a police car parked in the highway. The accused was charged with being found drunk in the highway. See also R. v. Larsonneur (1933) 24 C.A.R.74.
Indeed, this is, according to Lord Bridge, a ‘necessity, which frequently arises, to explain to a jury that intention is something quite distinct from motive or desire’; R. v. Moloney [1985] 1 All E.R. 1025.
R. v. Moloney [1985] 1 All E.R. 1025.
This is usually referred to as’ subjective recklessness’; R. v. Cunningham [1957] 2 All E.R. 412.
R. v. Caldwell [1981] 1 All E.R.961.
R. v. Pike [1961] Crim.L.R.547.
Blyth v. Birmingham Waterworks Co. (1856) 11 Exch.781.
Thus, a learner driver’s driving would be considered careless if he/she failed to measure up to the standard of the reasonably experienced driver; McCrone v. Riding [1938] 1 All E.R. 157.
Thus, if a person carries some substance thinking that it is drugs but customs officers discover it and the substance turns out not to be drugs, such person would be attempting a crime; R v. Shivpuri (1986) 2 W.L.R.988.
Race Relations Board v. Applin [1975] A.C.259.
R. v. M’Naghten (1843) 10 Cl.& Fin.200.
Bratty v. Attorney-General for Northern Ireland [1963] A.C.386 H.L.; R. v. Burgess (1991) 2 W.L.R.1206.
So it cannot be raised as a defence by a driver who falls asleep at the wheel of his car and injures/kills another road user, Kay v. Butterworth [1945] 173 L.T.191.
Ross v. H.M. Advocate (1991) S.L.T.564.
And a sober person of reasonable firmness, sharing relevant characteristics with the defendant, would have responded as the defendant did; R. v. Howe [1987] A.C.417.
R. v. Graham [1982] 1 W.L.R.294.
R. v. Gotts (1992) 1 All E.R.832.
Cf. R. v. Purdy (1946) 10 J. of Crim. L.182.
R. v. Dudley and Stephens (1884) 14 Q.B.D.273; three men and a cabin boy had been on a lifeboat without food for 20 days, their ship having been wrecked The two men killed the cabin boy with a knife and lived off his flesh and blood for the following 4 days. On their trial for murder they alleged that the cabin boy was in the worst state and was likely to have died first, and put forward the defence of necessity, i.e. had they not lived off the boy’s flesh they would probably all have died. The Court did not accept the defence of necessity. Cf. A (Children) (Conjoined Twins: Surgical Separation), Re, [2001] 2 W.L.R. 480 C.A., where the surgical operation on conjoined twins would result in death of one and survival of the other, was considered. The Court was of the view that the operation would not constitute murder since, inter alia, the three components of the doctrine of necessity were satisfied, namely that (a) the act was required to avoid inevitable and irreparable evil; (b) no more would be done than was reasonably necessary for the purpose to be achieved, and (c) the evil to be inflicted was not disproportionate to the evil avoided.
R. v. Duffy [1967] 1 Q.B.63.
R. v. Bird [1985] Crim.L.R.388.
It might be justifiable for a person to make and possess a petrol bomb where this is done to protect his family or property against an imminent attack; Attorney General’s Reference (No.2 of 1983) [1984] A.C.456.
These are contracts which do not require any formality, thus, they may be made orally, in writing, or indeed, in any other way. See further infra, p.75.
Section 1, Employment Rights Act 1996. Matters that need be included are outlined in ss.1–3 of the Act.
Section 86(1), Employment Rights Act 1996.
For example, an employer’s unilateral change of an employee’s terms of employment would amount to such dismissal; s.95(1)(a), Employment Rights Act 1996.
Section 86(6), Employment Rights Act 1996.
On remedies for breach of contract, see infra, p. 104.
Section 94, Employment Rights Act 1996.
Section 111, Employment Rights Act 1996.
Section 109(1), Employment Rights Act 1996.
Section 109(2), Employment Rights Act 1996. ‘Continuous employment’ is computed in accordance with ss.210-219 of the Act.
Section 98(4), Employment Rights Act 1996.
Section 164(1), Employment Rights Act 1996.
Section 109(1), Employment Rights Act 1996.
Calculated in accordance with ss.210-219 of the Employment Rights Act 1996.
Section 141, Employment Rights Act 1996.
Section 188(1X1A), Trade Union and Labour Relations (Consolidation) Act 1992. Section 194 of the Act imposes criminal liability for failing to consult as prescribed.
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(2006). The English Legal System. In: Principles of Law Relating to International Trade. Springer, Boston, MA. https://doi.org/10.1007/0-387-30699-4_1
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