bluuebunny/crossref_metadata_2025 huggingface dataset:
5. The authority of an agent
Authors: Baskind Eric , Osborne Greg , Roach Lee
Published: September 2022

This chapter places the authority of an agent as a central concept of the law of agency, identifying two principal types of authority, namely actual authority (both express and implied, and the various forms of implied authority, such as customary authority and incidental authority) and apparent authority. There is a third form, known as usual authority, but, as will be seen, the reasoning behind the cases that established this form of authority is highly suspect. All three forms of authority are discussed. Determining the existence and type of authority is vital as the legal consequences of an agent breaching their authority can be severe. The principal may not be bound by the agent’s actions and the agent may instead be personally liable. In addition, the agent may lose the commission/remuneration to which they were entitled, and may be found liable for breach of contract and/or breach of warranty of authority.
10. An introduction to the sale of goods
Authors: Baskind Eric , Osborne Greg , Roach Lee
Published: September 2022

This chapter discusses the law relating to the sale of goods, which lies at the heart of commercial law and regulates sales of different kinds from domestic retail to cross-border internet transactions. Sale of goods law also lies at the heart of other aspects of commercial law, such as the law of agency, where agents are often appointed solely for the purpose of selling their principal’s goods. Contracts for finance and for insurance are further examples of transactions that often depend on the sale of goods for their entire purpose. It must be noted that a contract of sale is still a contract, even if it has special features. Therefore, all elements for establishing the contract must be present, these being offer, acceptance, consideration, certainty, and the intention to create legal relations.
14. Delivery and payment
Authors: Baskind Eric , Osborne Greg , Roach Lee
Published: September 2022

This chapter considers the duty of the seller to deliver the goods and the duty of the buyer to accept the goods and to pay the price. Payment and delivery are concurrent conditions in a contract of sale. This means that the seller must be ready and willing to deliver the goods, and the buyer must be ready and willing to pay for them in accordance with the terms of the contract. The parties to the contract can make whatever agreement they want in respect of delivery and payment and, in practice, will often do so in relation to the time, place, and manner of the delivery and the payment. Where the parties have not agreed on these matters, the Sale of Goods Act 1979 (SGA 1979) lays down certain rules, which are discussed in detail in the chapter. Similar rules apply to consumer sales under the Consumer Rights Act 2015.
15. Statutory implied terms and statutory rights
Authors: Baskind Eric , Osborne Greg , Roach Lee
Published: September 2022

This chapter discusses the common law rule of caveat emptor, which today has been largely eroded by the original Sale of Goods Act 1893 (SGA 1893) that introduced the statutory implied terms of quality and fitness for purpose. It is shown here that the principle of caveat emptor is still alive and well in relation to purely private sales because the terms implied by the Sale of Goods Act 1979 (SGA 1979) in relation to the quality and fitness for purpose of the goods only apply to sales made in the course of a business. Sale of goods contracts are still, therefore, governed by the principle of caveat emptor to some extent, although this is subject to other enactments. This chapter also discusses the Consumer Rights Act 2015 (CRA 2015) which came into force on 1 October 2015.
22. Marine cargo insurance
Authors: Baskind Eric , Osborne Greg , Roach Lee
Published: September 2022

This chapter commences with a brief overview of the nature of contracts of insurance generally, introducing the concepts of utmost good faith and fair presentation, indemnity, and proximate cause of loss, leaving more detailed explanations of these concepts to the on-line chapter on insurance. It then takes the terms of a typical marine cargo insurance policy, the Institute Cargo Clauses, and examines them in some detail, including the extent of risk coverage provided, including excluded causes of loss, when risk attaches to the insured property and when cover under the policy ends. In the process it provides examples of the way in which the insuring provisions of a contract interact with the issue of causation of loss in `all risks’ and other policies.
2. The UK’s corporate law and governance system
Authors: Roach Lee
Published: September 2022

This chapter discusses the various sources of company law and corporate governance. The main sources of company law are legislation, case law, the constitution of the company, contract, European Union law, and human rights law. Legislation is the principal form of UK company law, with the Companies Act 2006 being the most important piece of company law legislation. However, companies are, to a degree, permitted to create their own internal rules through their constitution. Companies can also create their own law by drafting their own standard terms for use in contracts. Meanwhile, corporate governance best practice principles are found in a series of reports and codes, with the three principal codes being the UK Corporate Governance Code, the Wates Corporate Governance Principles, and the UK Stewardship Code 2020. Both of the codes operate on a comply-or-explain basis, under which certain persons must comply with the code or explain their reasons for non-compliance.
4. Corporate personality
Authors: Roach Lee
Published: September 2022

This chapter looks at one of, if not the, defining characteristic of the company, namely its corporate personality. At its most basic level, the doctrine of corporate personality simply provides that the company is a person. As such, it can do many things that humans are able to do, including own property, enter into contracts, and be subject to legal rights, duties, and obligations. However, the artificial nature of corporate personality, and the fact that it can be abused, means that a significant body of law has developed in this area. The law provides for several ways in which a company’s corporate personality can be set aside. These include statutory provisions and the common law. Moreover, individuals may contract away the protection of corporate personality and render themselves personally liable.
6. Corporate capacity and liability
Authors: Roach Lee
Published: September 2022

This chapter focuses on the complex rules regarding who can act on behalf of the company, and how liability can be imposed on the company for the actions of others. A company can enter into a contract by affixing its common seal to the contract, by complying with the rules in ss 44(2)–(8) of the Companies Act 2006 (CA 2006), or by a person acting under the company’s express or implied authority. Section 39 of the CA 2006 provides that a contract cannot be invalidated on the ground that the contract is outside the scope of the company’s capacity. Meanwhile, section 40 of the CA 2006 provides that the power of the directors to bind the company, or authorize others to do so, is free of any limitation under the company’s constitution. The chapter then considers the four methods of liability: personal liability, strict liability, vicarious liability, and liability imposed via attribution.
9. The role and powers of the directors
Authors: Roach Lee
Published: September 2022

This chapter describes the directors’ role, including the powers of the directors, the division of power between the directors and the members, and how the directors exercise their powers. In smaller companies, directors will manage the company and will delegate little, if any, of their powers. In larger companies, the directors will set the strategic direction of the company and will delegate much of their managerial powers to sub-board level managers. The powers of the directors are a matter for the company’s articles, with most articles providing that the directors are responsible for managing the company and that it may exercise all the company’s powers. Moreover, a company’s articles usually provide the directors with the ability to delegate their powers to others. The principal method by which the directors exercises their managerial powers is via board meetings.
11. Directors’ duties II: conflicts of interest
Authors: Roach Lee
Published: September 2022

This chapter focuses on those duties relating to conflicts of interests, before moving on to look at transactions involving directors that require member approval. Section 175 of the CA 2006 provides that a director must avoid a situation in which they have, or can have, an interest that conflicts with that of the company. Section 176 provides that a director must not accept, from a third party, a benefit conferred by reason of their being a director or by doing anything as a director. Meanwhile, section 177 provides that a director who is interested in a proposed transaction or arrangement with the company must disclose the nature and extent of that interest to the other directors. Member approval is required if a director is interested in a ‘substantial property transaction’ involving the company or if a director is to enter into a loan, quasi-loan, or credit transaction with the company.
13. Membership
Authors: Roach Lee
Published: September 2022

This chapter discusses the concept of membership. Section 112 of the Companies Act 2006 (CA 2006) provides that a person is a member if they have agreed to become a member and their name is entered into the register of members. In relation to a newly created company, the subscribers to the company’s memorandum will become members, even if their names are not entered into the register of members. Accordingly, a person’s membership is terminated when their name is removed from the register of members. Every company must keep a register of its members, although private companies can elect to keep the required information on the central register maintained by Companies House. In order to help improve the transparency of company ownership, certain companies are required to keep a register of interests disclosed and a register of persons with significant control.
17. The maintenance of capital
Authors: Roach Lee
Published: September 2022

This chapter addresses what is known as the capital maintenance doctrine—a series of rules designed to protect the company’s creditors by ensuring that capital is maintained and not returned to the company’s members. Any limited company can reduce its share capital by passing a special resolution followed by court confirmation. A private company can reduce its share capital by passing a special resolution supported by a solvency statement. On the other hand, public companies are generally prohibited from providing financial assistance to others to acquire their shares. Meanwhile, a company can generally only pay a dividend out of distributable profits. The typical three-stage process for paying dividends is that the directors recommend an amount to be distributed by way of dividend; the company declares the dividend by passing an ordinary resolution; and the dividend is paid out.
18. Public offers of shares
Authors: Roach Lee
Published: September 2022

This chapter studies the sources of securities regulation, the rules relating to offering shares to the public, the various UK stock exchanges, and the process by which securities are listed. There are several types of public offer, including offers for subscription, offers for sale, placings, and rights issues. The London Stock Exchange is the principal UK stock exchange, and its two principal markets are the Main Market and the Alternative Investment Market. The principal domestic rules relating to public offers of shares are found in the Financial Services and Markets Act 2000, the Listing Rules, the Prospectus Rules, and the Disclosure and Transparency Rules. Companies that offer securities to the public or seek to admit securities to a UK regulated market must first publish a prospectus. Meanwhile, listed companies must comply with a range of continuing obligations for as long as their securities remain listed.
19. Corporate transparency
Authors: Roach Lee
Published: September 2022

This chapter describes the UK’s corporate transparency regime, including the statutory registers, the annual accounts and reports, the role of the auditor, and other notable disclosure obligations. Companies are required to keep a number of statutory registers, but private companies may instead elect to have Companies House keep the relevant information on its central register. Meanwhile, all companies are generally required to prepare accounts for each financial year, and these are known as ‘individual accounts’. Parent companies, in addition to preparing individual accounts, must also prepare group accounts. The annual reports consist of the strategic report, the directors’ report, the auditor’s report, and the directors’ remuneration report. The role of a statutory auditor, which must be independent of the company, is to report on whether the company’s accounts represent a fair and true view of the company’s finances.
20. Debt capital and security
Authors: Roach Lee
Published: September 2022

This chapter discusses why companies borrow money, the various sources of debt capital, and the rules relating to secured and unsecured borrowing. An obvious reason why a company might borrow is because it is struggling financially, and so other forms of capital will prove insufficient to meet the company’s debts or liabilities. In such a case, debt capital may be the only obtainable form of capital. Like shares, debt securities are tradeable financial instruments that a company can issue in order to raise finance. The principal form of security is a charge, which can be either fixed or floating. When determining whether a charge is fixed or floating, the courts will focus not on how the charge is labelled, but on the rights and obligations which the parties intended to grant each other. A failure to register the charge will render the charge void against a liquidator, administrator, or creditor.
5. Exclusion and limitation clauses
Authors: Baskind Eric
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter, which focuses on clauses designed to exclude or limit a party’s liability, first considers exclusion or limitation clauses in the UK under common law rules, the Unfair Contract Terms Act 1977, and the Consumer Rights Act 2015. It explains the distinction between an exclusion clause and a limitation clause before discussing the two main methods of controlling exclusion clauses adopted by the courts. The chapter examines the exclusion or restriction of the statutory implied terms under the Sale of Goods Act 1979, the Supply of Goods (Implied Terms) Act 1973, and the Supply of Goods and Services Act 1982. Finally, it considers the rules introduced by the Consumer Rights Act 2015 in relation to consumer transactions.
9. Remedies of the unpaid seller
Authors: Baskind Eric
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter considers the remedies that are available to a seller against the buyer for breach of contract and the position when the buyer refuses delivery of the goods. These are real remedies and personal remedies, which are set out in Parts V and VI of the Sale of Goods Act 1979. An example of a real remedy is a lien over the goods, whereas two examples of a personal remedy are an action for the price and damages for non-acceptance of the goods.
1. Exam Skills for Success in Human Rights and Civil Liberties Law
Authors: Foster Dr Steve
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts, and advice on gaining extra marks. Concentrate Q&A Human Rights & Civil Liberties offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; all making your answer stand out from the crowd. This chapter briefly sets out the book’s purpose, which is to assist students preparing for an examination in human rights and civil liberties, and also offers some suggestions regarding coursework and taking exams.
7. Due Process, Liberty and Security of the Person, and the Right to a Fair Trial
Authors: Foster Dr Steve
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts, and advice on gaining extra marks. Concentrate Q&A Human Rights & Civil Liberties offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; all making your answer stand out from the crowd. This chapter covers due process, liberty, and security of the person, and the right to a fair trial, including articles 5, 6, and 7 of the ECHR and their application to matters such as prison discipline, police powers, and the fight against terrorism.
11. Freedom of Religion, Association, and Peaceful Assembly
Authors: Foster Dr Steve
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts, and advice on gaining extra marks. Concentrate Q&A Human Rights & Civil Liberties; offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; all making your answer stand out from the crowd. This chapter covers freedom of religion, freedom of association, and the right to peaceful assembly, including the scope of those rights, their protection in domestic law and under the ECHR and their application to matters such as religious practices, trade unions, and political organisations, and the right to demonstrate.
Concentrate Questions and Answers Family Law
Authors: Gaffney-Rhys Ruth
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. Concentrate Q&A Family Law offers expert advice on what to expect from your family law exam, how best to prepare, and guidance on what examiners are really looking for. Written by an experienced examiner, it provides: clear commentary with each question and answer; diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical family law exam questions; structure a good answer; avoid common mistakes; show the examiner what you know; make your answer stand out; and find relevant further reading. After an introduction on exam skills for success in family law, chapters cover: marriage, civil partnerships, and cohabitation; void, voidable and non-marriage; divorce and judicial separation; domestic abuse; family property; financial remedies and child support; parenthood and parental responsibility; children’s rights and private law; international relocation and abduction; public law and adoption; mixed topic questions and skills for success in coursework assessments.
2. The Formation and Recognition of Adult Relationships: Marriage, Civil Partnerships, and Cohabitation
Authors: Gaffney-Rhys Ruth
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter considers the formation and recognition of adult relationships, i.e. marriage, same-sex marriage, civil partnerships, and cohabitation. The questions included in this chapter cover: the right to marry contained in article 12 of the European Convention on Human Rights; forced marriage; the difference between opposite-sex marriage, same-sex marriage, and civil partnerships, and the difference between marriage and cohabitation.
3. Void, Voidable, and Non-Marriages
Authors: Gaffney-Rhys Ruth
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter focuses on nullity and void, voidable, and non-marriages. The first question requires students to analyse the difference between void and voidable marriages, the grounds for which are contained in ss 11 and 12 of the Matrimonial Causes Act 1973. The second is an essay question that considers the concept of non-marriage or non-existent marriage, which is regulated by case law. The third question is a problem question that examines void and voidable marriages and covers issues such as bigamy, prohibited degrees of relationship, gender recognition, and lack of consummation. The final question asks candidates whether the concept of voidable marriage should be abolished.
5. Domestic Abuse
Authors: Gaffney-Rhys Ruth
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter focuses on domestic abuse and considers the civil and criminal law. The first question is a problem question concerning non-molestation orders under the Family Law Act 1996 and injunctions under the Protection from Harassment Act 1997. The second question is an essay focusing on occupation orders, whilst the third is a problem question on the criminal law.
9. The Law Relating to Children: Children’s Rights and Private Law
Authors: Gaffney-Rhys Ruth
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter considers children’s rights and private law relating to children. The first essay question focuses on the rights of the child to make his or her own decisions and to participate in private law proceedings, whilst the second examines how the law ensures that children have a relationship with both parents after separation. The third question is a problem scenario that requires discussion of orders under s. 8 of the Children Act 1989, the welfare principle, and the welfare checklist. The final problem question concerns inherent jurisdiction and the right of a child to refuse medical treatment.
11. The Law Relating to Children: Public Law and Adoption
Authors: Gaffney-Rhys Ruth
Published: September 2022

The Concentrate Questions and Answers series offers the best preparation for tackling exam and assignment questions. Each book includes key debates, typical questions, diagram answer plans, suggested answers, author commentary, and tips to gain extra marks. This chapter deals with the public law relating to children, contained in Parts III, IV, and V of the Children Act 1989, and the law relating to adoption, under the Adoption and Children Act 2002. The questions contained in this chapter are a mixture of essay and problem questions that focus on: emergency protection for children, i.e. police protection, emergency protection orders, and local authority enquires; care, supervision, and education supervision orders; the difference between adoption and special guardianship orders and finally, the requirements and procedures for adoption.
1. Criminal Law Process
Authors: Horder Jeremy
Published: September 2022

This chapter discusses the process of criminal law. The focus is on the importance of the exercise of official discretion, on the criminal law in action, and on the role of bureaucracy in criminal law. There is also an outline of sentencing powers. Patterns of decision-making by criminal justice officials are one of four key pillars of criminal law and justice, along with criminal law principles, rules, and standards. We will see how these patterns are structured by crime-management and bureaucratic–administrative techniques designed to reduce the number of contested trials and issues, and hence take pressure off the criminal justice system as a whole.
4. Criminal Law Fabric
Authors: Horder Jeremy
Published: September 2022

This chapter analyses the fabric of criminal law—rules, standards, and principles—giving examples of how each of these are used to construct the criminal law. A particular highlight, in the discussion of rules, is the importance of secondary legislation in creating offences, especially offences regulating business activity. The chapter also considers the values that the criminal law should respect, such as human rights, moral autonomy, and lifestyle autonomy. To that end, the chapter explains the harm principle, and the arguments for and against punishing ‘immoral’ behaviour. There is also an analysis of important principles of criminal offence construction and interpretation, such as the principle of strict construction and the authoritarian principle.
11. Financial Crime
Authors: Horder Jeremy
Published: September 2022

This chapter examines one major example of financial crime: fraud. The importance of financial crime, and of vigorous prosecution policies in relation to it, should not be underestimated. Fraud accounts for no less than one-third of all crimes captured by the Crime Survey for England and Wales. There were 4.3 million fraud offences recorded in the year ending in June 2020. An understanding of fraud, and in particular the way that it reflects corporate activity, is essential to the study of criminal law. The law is now mainly governed by the Fraud Act 2006. The 2006 Act sought to eliminate (a) the law’s reliance on sometimes technical distinctions between different kinds of outcome produced by fraud, and (b) the law’s reliance on ‘deception’ as an element of the wrong. A key is question is whether, in doing this, the 2006 Act made the law too broad in scope.
13. Inchoate Offences
Authors: Horder Jeremy
Published: September 2022

This chapter begins by explaining the concept of an inchoate or ‘incomplete’ offence. Such an offence may occur when D does all that he or she can do to commit the crime (such as shooting at the victim), but simply fails to bring about the outcome. Alternatively, such an offence may occur when D is still at the stage of preparation for committing the offence, but has come so close to committing it that it would be right to call the acts in question an ‘attempt’ in themselves. The chapter then discusses the justifications for penalizing attempts at crimes, the elements of criminal attempt, the justifications for an offence of conspiracy, the elements of criminal conspiracy, encouraging or assisting crime, voluntary renunciation of criminal purpose, the relationship between substantive and inchoate crimes, and the place of inchoate liability.
1. Introduction
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This introductory chapter provides a background on alternative dispute resolution (ADR), which refers to the full range of alternatives to litigation that might be available to a lawyer and client for resolving a civil dispute. In 1998, ADR was formally acknowledged by the Civil Procedure Rules (CPR) as being potentially relevant to all civil actions. Indeed, there is strong government support for the use of ADR in providing cost-effective options for civil dispute resolution. Over the last few decades there has been fast and increasing growth in the use and variety of forms of ADR. ADR options offer many potential advantages in terms of saving time and costs, providing confidentiality, and increasing client control. However, ADR also has some potential disadvantages, especially if it is not used appropriately, and some of the strategic opportunities available in litigation may be lost.
9. Recovery of ADR Costs in Litigation
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter addresses the recovery of alternative dispute resolution (ADR) costs in litigation. The court have power to make an order that the costs of interim applications in connection with ADR should be borne by one party if that party has acted unreasonably, otherwise the usual order will be ‘costs in the case’. If the parties embark on an ADR process and make a clear agreement as to their respective liabilities for the costs of that process, the court will not look behind it. Meanwhile, if the parties make no agreement about the costs of an ADR process, the court can determine liability for the costs of the ADR process. If the parties reach agreement on the main issues by an ADR process and agree that ADR costs should be determined by the court, the court is likely to make no order for costs (meaning each party will bear their own costs) unless it can determine, without trying the case, who would have won at trial.
11. Styles, Strategies, and Tactics in Negotiation
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter describes the styles, strategies, and tactics that may be used in negotiation. A proper understanding and use of style, strategy, and tactics is a very important part of securing the best possible outcome for a client. As such, specific strategy and tactics should be planned in advance for each case so that they can be implemented to best effect. The main strategies are co-operative, competitive, collaborative, and pragmatic, each of which has strengths and weaknesses. A wide range of tactics can also be used, relating to information, offers, demands, structure, and presentation. Tactics can and should be used to support any strategy. In addition to using strategy and tactics effectively, lawyers should use their understanding to identify and address the strategy and tactics used by their opponent.
13. The Negotiation Process
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter explores the negotiation process. Good communication skills are very important for effective negotiation. Each negotiator should make clear any limits on authority, and whether any settlement will be subject to client approval. Indeed, agenda setting and opening are important in gaining control of a negotiation. It is normal to move through each issue reasonably systematically, making best use of information, analysis, and presentation. It is also important to deal with concessions, offers, and demands effectively to get the best outcome for the client. The negotiator should be able to identify the problems that can arise in a negotiation process and the techniques that may be used to overcome them. If a negotiation is successful, an oral contract is reached; the terms should then be clarified and recorded. Even if the negotiation is not successful, progress may be made with regard to the case.
14. Mediation: General Principles
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter studies the general principles of mediation, which is a form of neutrally assisted negotiation. The negotiations take place with the help of a neutral third party, within a structured process, in a formal setting, during a defined period of time, all of which help to create an impetus for settlement. The mediator then works to facilitate a settlement between the parties. There is no determination of liability in mediation, and any settlement that is reached is not necessarily based on the underlying legal rights or obligations of the parties. Instead, the parties, with the assistance of the mediator, can reach a solution which is tailored to their real needs and interests. The chapter identifies three styles of mediation: facilitative mediation, evaluative mediation, and transformative mediation. Ultimately, the European Code of Conduct for Mediators, which has been adopted by the Civil Mediation Council (CMC), provides a useful benchmark for determining the minimum rules of professional conduct that should be expected from a mediator.
17. Reaching a Settlement
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter focuses on key aspects of the final stage of the negotiation or mediation process: reaching a settlement. An agreement reached through mediation or negotiation is essentially a contract. As such, contractual principles will apply, and oral or email exchanges may be binding. To avoid problems, it is important to be clear about process. It is also necessary to check the coverage and detail of a potential settlement fully. A potential agreement may be undermined by a failure to agree detail as the settlement process goes forward, or due to tactics in the final stages. Ultimately, it is very important to finalize the terms of an agreement at the end of the settlement process, perhaps building in terms to assist enforcement or implementation.
18. Court Mediation Schemes and Other Schemes
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter examines Court Mediation Schemes and other schemes. Time-limited, fixed-cost mediations can take place through Court Mediation Schemes and the Civil Mediation Online Directory. Some courts also operate judicial mediation schemes. There are many industry- and sector-specific schemes, and mediation is now being employed in some criminal cases to achieve restorative justice. Mediation can be used effectively in multi-party or complex disputes, although modifications may need to be made to the process to take account of the multiplicity of parties and/or issues. It can also be used in public sector and regulatory disputes. There is a move towards mandatory information mediation assessment meetings at which the parties are required to consider but not undertake mediation.
20. Conciliation
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter assesses conciliation, which is a voluntary process whereby a neutral third party facilitates negotiations between the parties to a dispute and assists them to reach a settlement. In England and Wales, conciliation tends to be court-driven and it is most often used in family and employment cases. In employment cases, the parties must attempt mandatory Early Conciliation with the Advisory, Conciliation and Arbitration Service (ACAS) before a claim is issued in the Employment Tribunal, and conciliation can also be undertaken by ACAS after a claim has been lodged if Early Conciliation did not result in a settlement. In-court conciliation also takes place in family cases in disputes relating to children and money on the breakdown of the relationship between the parties. In addition, a number of independent conciliation schemes exist to help consumers solve disputes in relation to goods or services.
21. Complaints, Grievances, and Ombudsmen
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter addresses complaints, grievances, and ombudsman schemes, which are designed to provide effective and speedy relief where problems arise between a customer and an organization. It has become increasingly common for government agencies, companies, and organizations to have internal complaints and grievance procedures to look into and respond to any problems raised by their customers of a formal nature. It is seen to be good for customer relations for problems to be investigated by someone within the organization and for the problem to be resolved with the customer quickly and before it escalates into a contentious dispute. Efficient and effective complaints and grievance procedures also form part of an organization's quality control or quality assurance procedures, which are aimed at ensuring that high levels of service are maintained, with any weaknesses being addressed swiftly before other customers are affected by similar problems. Meanwhile, ombudsmen act like umpires in complaints brought against public or private organizations.
24. Expert or Neutral Determination
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter studies expert or neutral determination. Expert determination differs from early neutral or expert evaluation because the parties will appoint an expert to make a decision or formal determination on the issues referred to the expert. The expert can only make a decision within the boundaries laid down by the parties. In this sense, expert determination is a determinative process, rather than a facilitative process (mediation) or an advisory evaluative process (neutral evaluation). Expert determination differs from evaluation because the expert is asked to do more than produce a non-binding evaluation, opinion, or recommendation in relation to the issues in dispute, but rather to determine those issues. The decision is usually final and binding on the parties, and it can only be challenged in court proceedings in very limited circumstances.
26. Arbitration
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter discusses arbitration, which is an adjudicative dispute resolution process. It is based on an agreement between the parties to refer a dispute or difference between them to impartial arbitrators for a decision. As a consequence of the contractual basis of arbitration, it is not every dispute that can go to arbitration. The chapter considers the requirements for an effective reference to arbitration, but it should be noted that the agreement to arbitrate may be made before or after the relevant dispute has arisen. This means that there may be a pre-existing arbitration agreement which, when a dispute arises, one of the parties wishes to evade. There is a strong public policy in favour of upholding arbitration agreements; this is supported by the idea that an arbitration clause in a contract is separable from the rest of the substantive contract. Arbitrations in England and Wales are governed by the Arbitration Act 1996, which lays down a highly developed set of procedures for arbitrations.
27. Arbitral Tribunals
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter examines how arbitrations are commenced with a notice of arbitration and the appointment of arbitral tribunals. Typically, arbitral tribunals will have either a sole arbitrator or a panel of three arbitrators. There are a number of variations on this theme. Examples include tribunals with a chairperson or an umpire, and the use of judge-arbitrators. The chapter then describes the contractual basis of the appointment of arbitrators, and the procedures dealing with the removal, resignation, or death of an arbitrator. The Arbitration Act 1996 seeks to give effect to the parties' agreements (between themselves or with the arbitrators) if it becomes necessary for an arbitrator to resign or be removed, but there are fall-back provisions allowing applications to the court because it is recognized that agreement may not be possible given the possibly contentious nature of these situations.
31. High Court Jurisdiction in Arbitration Claims
Authors: Blake Susan , Browne Julie , Sime Stuart
Published: September 2022

This chapter addresses High Court jurisdiction in arbitration claims. Intervention by the courts in arbitrations is restricted to those situations allowed by the Arbitration Act 1996. These include situations where the judicial system can offer support to the arbitral process to make it effective and to correct obvious injustices. Applications in support of the arbitral process include applications relating to the appointment of arbitrators and procedural orders to secure evidence for use in arbitrations. Ultimately, judicial review of arbitral awards is strictly restricted. The main provisions deal with serious irregularities and appeals on points of law. Appeals to the Court of Appeal are (with minor exceptions) only available with the permission of the High Court judge.
1. The Company and its Incorporation
Authors: Worthington Sarah , Agnew Sinéad
Published: September 2022

This chapter discusses rescue and insolvency procedures. Companies experiencing financial difficulty have various options to effect either the timely rescue of viable commercial enterprises or the orderly and competent management of affairs before ceasing operations. This chapter considers: the Insolvency Act 1986 Pt 1A moratorium; company voluntary arrangements; administration; receivership and administrative receivership; distribution of assets subject to the receivership; liquidation or winding up; investigating and reporting the affairs of the company; dissolution of the company; and restoration to the register.
4. Shareholders as an Organ of the Company
Authors: Worthington Sarah , Agnew Sinéad
Published: September 2022

This chapter discusses how the company acts as a legal person. It covers: contractual liability; corporate capacity; agency and authority in corporate contracting; contracts and the execution of documents; pre-incorporation contracts; corporate gifts; tort liability; criminal liability; whether and in what circumstances knowledge should be imputed to a company or other corporate body; and when attribution can be denied by the company.
6. Corporate Governance
Authors: Worthington Sarah , Agnew Sinéad
Published: September 2022

This chapter discusses the role of the directors and the board of directors as an organ of the company. It covers: the appointment of directors; eligibility for appointment as a director; defective appointments and the validity of acts of directors; publicity and the appointment of directors; acting as a board of directors; removal of directors; directors acting after their office is vacated; the rights of directors on termination of appointment; and directors’ disqualification.
11. Raising Equity Capital From Shareholders
Authors: Worthington Sarah , Agnew Sinéad
Published: September 2022

This chapter considers the legal nature of shares, class rights and dealings in shares. It covers: the legal nature of a share; class rights and variation of class rights; transfer of shares; competing claims to shares; disclosure of substantial interests in shares; and valuation of shares.
12. Distributions to Shareholders and Capital Maintenance
Authors: Worthington Sarah , Agnew Sinéad
Published: September 2022

This chapter deals with raising capital from shareholders (equity capital). It considers: attracting capital and protecting both shareholders and creditors; terminology associated with legal capital; the minimum capital requirements for company formation; limiting access to shares; offers to the public to purchase shares and remedies for misleading offers; and collecting in the company’s capital (issue of shares at a discount, issue of shares at a premium and issue of shares in exchange for property).
15. Reconstructions, Mergers and Takeovers
Authors: Worthington Sarah , Agnew Sinéad
Published: September 2022

This chapter considers public disclosure, market regulation and the public investigation of companies. The ‘price’ that companies are required to pay for the privilege of incorporation (separate personality) and limited liability is compulsory publicity about their affairs. The Companies Acts’ disclosure rules are largely based on this philosophy. This chapter discusses general disclosure obligations; public regulation of securities markets; transparency obligations; disclosure and public offerings of shares; market abuse and market manipulation; and public investigation of companies.
3. Express and implied terms
Authors: Russell Roseanne
Published: September 2022

The Q&A series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents sample exam questions about express and implied terms. Through a mixture of problem questions and essays, students are guided through some of the key issues on the topic of express and implied terms including the different sources of employment law, when terms of collective agreements may be incorporated into the contract of employment, the rules regarding custom and practice, and discussion of important implied terms such as the implied term of trust and confidence. Students are also introduced to the current key debates in the area and provided with suggestions for additional reading for those who want to take things further.
5. Continuity of employment
Authors: Russell Roseanne
Published: September 2022

The Q&A series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary, and illustrative diagrams and flowcharts. This chapter presents sample exam questions about continuity of employment. Through a mixture of problem questions and essays, students are guided through some of the key issues on the topic of continuity of employment including the qualifying periods of employment for important statutory rights, determining the start and end dates of employment, the effect of absences on employment continuity, and TUPE transfers. Students are also introduced to the current key debates in the area and provided with suggestions for additional reading for those who want to take things further.