bluuebunny/crossref_metadata_2025 huggingface dataset:
8. Parliament
Authors: Stanton John , Prescott Craig
Published: September 2020

This chapter discusses the functions, structure, and procedures of Parliament. Parliament’s main functions are to be the forum for debate on the main issues of the day; to represent citizens; to enact legislation; and to hold the government to account. Parliament has three elements: the House of Commons, the House of Lords, and the monarch. The chapter focuses on the two Houses, often referred to as ‘chambers’. The main output of Parliament is legislation. There are two forms of legislation. Primary legislation, referred to as Acts of Parliament, which are the exercise of Parliament’s legal supremacy to change the law, either by making new law or amending or abolishing existing law. Parliament also has the power to delegate its law-making power to others, usually to the government, allowing them to make delegated legislation according to the terms set out by Parliament.
12. Judicial review: irrationality and proportionality
Authors: Stanton John , Prescott Craig
Published: September 2020

This chapter explores irrationality, the second ground for judicial review identified by Lord Diplock in Council of Civil Service Unions and Others v Minister for the Civil Service. It examines the meaning of this principle, its foundation upon the test of unreasonableness, and the approach that the courts have adopted since that case. Irrationality, and the notion of unreasonableness upon which it is based, is a particularly vague and ambiguous term, with a range of possible interpretations and meanings. This has meant that the courts have often considered judicial review claims, brought on the basis of irrationality, with varying degrees of caution, often employing the necessary tests with notable stringency. In part as a result of this, and in part also due to the increasing influence of European legal practices on the UK system, the test of proportionality has developed as a substantive ground for judicial review, often overlapping and sometimes conflicting with application of the irrationality doctrine.
13. Judicial review: procedural impropriety
Authors: Stanton John , Prescott Craig
Published: September 2020

This chapter explores procedural impropriety, the final of the three grounds for judicial review outlined by Lord Diplock in Council of Civil Service Unions and Others v Minister for the Civil Service. Procedural impropriety has the following elements. The first is a failure to comply with any procedural requirements set out in statute. Secondly, there is a broader heading of failing to act ‘fairly’, the core of which are the rules of natural justice. These rules can be summarized as the right to be heard and the right to a fair hearing. However, a clear understanding of procedural impropriety, and in particular the idea of fairness, still remains elusive.
14. Administrative justice: tribunals, ombudsmen, and public inquiries
Authors: Stanton John , Prescott Craig
Published: September 2020

This chapter discusses the concept of administrative justice. The complexity and scale of modern government means that it is inevitable that sometimes things will go wrong. Public bodies make hundreds of thousands of decisions each year. Sometimes, the pressures of making thousands of decisions on finite resources mean that public bodies may not treat members of the public appropriately and not fulfil the aims of good government. When things go wrong, some will wish to challenge decisions made by the public authorities. Although such disputes are usually resolved by the courts applying the principles of judicial review, alternatives such as statutory tribunals, the ombudsman, and public inquiry provide other ways to challenge decisions made by public bodies. These three procedures form the basis of the system of administrative justice.
10. Duress
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines contracts induced by duress, which is a vitiating factor. It explains that duress involves one party coercing or pressuring the other party into making a contract and its most important feature is that it generally involves pressure applied by means of an illegitimate threat. It discusses the different types of duress—duress to the person, duress of goods, and focusing in more detail on economic duress and its various requirements. It explores the controversial question of whether relief should be extended to cases of lawful act duress such as threats not to contract.
12. Unconscionable bargains
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the concept of unconscionable bargains and the conditions under which it operates as a vitiating factor. It discusses the history of the court’s jurisdiction to give relief in cases of unconscionable bargains and explains the current scope of relief, considering the elements in modern case law on unconscionable bargains.
14. Frustration
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the doctrine of frustration, which can only be invoked where the parties have not allocated the risk of the relevant event in their bargain, such as by means of a force majeure clause. It explains that issues of frustration arise where circumstances change radically after the contract has been entered into, which show that an assumption held by both parties at the time of contracting no longer applies. It analyses the effects of frustration at common law and discusses the current test for frustration. This chapter also considers the provisions of the Law Reform (Frustrated Contracts) Act 1943.
18. Remedies III: other non-compensatory or exceptional remedies
Authors: O’Sullivan Janet
Published: September 2020

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines non-compensatory remedies for breach of contract. It analyses why a non-compensatory remedy can be desirable and discusses the four types of non-compensatory remedies. These include restitution for total failure of basis, forfeiture of deposits, negotiation damages (or the user principle), disgorgement, and punitive damages.
4. The interpretation of statutes
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie , Kotecha Birju
Published: September 2020

This chapter explains the significance of statutory interpretation and how problems of interpretation arise. The chapter considers in detail the courts’ approach to interpretation, and traditional rules such as the literal rule, the golden rule, and the mischief rule are all analysed with examples from the case law. In modern times the courts employ a more purposive approach to interpretation, and there is coverage of how this approach works in practice. In particular, the chapter outlines a range of intrinsic and extrinsic aids to interpretation that the courts can rely on in interpreting an Act of Parliament. Among others, these aids include the long title, cross-headings, marginal or side notes, dictionaries, pre-parliamentary materials, statutes on the same subject matter, and, most notably, Hansard. The chapter concludes with an overview of the rules of language, namely ejusdem generis, noscitur a sociis, and expressio unius est exclusio alterius.
8. The judiciary
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie , Kotecha Birju
Published: September 2020

This chapter describes and discusses the different types of judge, and their roles, within the English legal system. This includes the Lord Chancellor, Supreme Court Justices, Appeal Court judges, circuit judges, district judges, coroners, and lay magistrates. The qualifications for appointment are outlined and the system of judicial appointments is discussed, including the role of the Judicial Appointments Commission. The chapter includes a day in the life of a district judge to give some context to the every-day work of the judiciary. There is also comment supplied upon the issues of diversity of membership of the judiciary and the importance of independence of the judiciary.
10. The jury
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie , Kotecha Birju
Published: September 2020

The jury consists of twelve randomly selected members of the public, who decide guilt or innocence in the most serious criminal trials in the Crown Court. This ensures that the general public are represented in the criminal justice system. This chapter explains the rules on eligibility for, and disqualification or excusal from, jury service. It considers issues such as the power of the jury to acquit in defiance of the evidence (‘jury equity’); the confidentiality of jury deliberations and the implications of that for appeals; the ethnic composition of a jury; the rights of both prosecution and defence to challenge jurors; jury vetting; whether juries should be excluded from certain trials, such as those involving serious fraud or where there is evidence of jury ‘tampering’; whether the accused should be able to ‘waive’ their right to jury trial; and the impact of social media on jury trials. It concludes by examining the relative advantages and disadvantages of jury trials.
15. The civil process
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie , Kotecha Birju
Published: September 2020

This chapter is a general introduction to civil litigation and the civil courts. It describes the process by which a civil claim is dealt with in the County Court or in the High Court. It provides an overview of the major case management powers possessed by the civil courts and discusses how these powers must be exercised to further the overriding objective of the Civil Procedure Rules 1998 (as amended) to deal with matters justly and at proportionate cost. A brief history of the development of the civil court rules is included and the Woolf and Jackson Reports are discussed. Some of the basic principles of civil evidence are discusses and the methods of enforcement of civil judgments are set out.
17. Tribunals
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie , Kotecha Birju
Published: September 2020

Tribunals have operated for over 200 years. They are essentially specialised courts dealing in specific areas of legal dispute such as employment, housing, immigration, mental health, social benefits, and tax. This chapter explains the development of tribunals from the late eighteenth century to the present day. It examines the major reforms that have taken place in the twenty-first century, resulting in most tribunals being re-organised into ‘chambers’ within the First-tier Tribunal and the Upper Tribunal. The chapter explains the composition of tribunals and the rules on appointment of tribunal members, including lay members. It explains the ways in which tribunal decisions may be challenged, either by way of an appeal to another tribunal or to the mainstream courts, or through judicial review. The chapter examines the advantages of tribunals over mainstream courts but also considers whether, through a process known as ‘legalism’, tribunals are becoming too much like the mainstream courts.
18. Criminal and civil appeals
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie , Kotecha Birju
Published: September 2020

This chapter introduces readers to the appeals process in criminal and civil cases. It explores the grounds upon which appeals may be based in criminal cases, including the concepts of ‘fresh evidence’ and ‘lurking doubt’ and considers appeals by way of case stated, applications for judicial review of decisions, and Attorney General’s references. If a criminal appeal has been dismissed, the Criminal Cases Review Commission (CCRC), which was set up to examine potential miscarriages of justice, may refer a case back to the appeal court in certain circumstances. The chapter highlights some of the criticisms of the CCRC’s role and effectiveness. The avenues of appeal in civil cases are also discussed, including leapfrog appeals and second appeals.
4. Principle of supremacy of EU law
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the Court of Justice’s (CJ) case law on the supremacy of European Union (EU) law over national laws of Member States, analyses the question of priorities between directly effective EU law and domestic law, and also looks at this problem from the perspective of the national courts, including issues of human rights protection. It argues that the CJ’s introduction of the notion of supremacy, as part of EU law constituting a ‘new legal order’, was instrumental in providing a view of the Union as a body which went beyond what was normal for an international law organization. The chapter also describes how Member States developed their own constitutional rules as a response to EU law.
6. General principles of law
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the development of the general principles by the Court of Justice (CJ) to support the protection of human rights in the European Union (EU) law within the scope of EU law. It analyses the relationship of the general principles derived from the CJ’s jurisprudence to the European Convention on Human Rights (ECHR) and the European Union Charter of Fundamental Rights (EUCFR), which includes substantive rights and procedural rights, as well as the principles of proportionality and legal certainty. It discusses the possible accession of the EU to the ECHR and the implications of Opinion 2/13. It suggests that although the protection of human rights has been more visible since the Lisbon Treaty and there are now more avenues to such protection, it is debatable whether the scope and level of protection has increased.
7. Framework for enforcement
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter outlines the framework for enforcement of European Union (EU) law, and describes the various actions that may be brought before the Court of Justice (CJ). In interpreting the relevant provisions of the Treaty on the Functioning of the European Union (TFEU), the CJ has played a key role in the enforcement of EU law especially with its insistence on the effective protection of individuals’ Union rights. The chapter also explains the significance of judicial review in the EU legal order by focusing on the jurisdiction of the CJ in the appeal cases originating from the General Court (GC). Finally, the chapter outlines how questions of infringement of EU law can also be raised in the national legal system.
13. Union liability in tort: action for damages
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the action for damages related to European Union (EU) liability in tort. It discusses the scope and the elements of non-contractual liability and liability for wrongful acts or omissions under Article 340(2) of the Treaty on the Functioning of the European Union (TFEU). The chapter also explains the relationship of Article 340 TFEU with Articles 263 and 265 TFEU. It considers the restrictive rules in relation to assessment of damages and causation. The chapter highlights the need for European Courts to balance the conflicting interests of permitting flexibility in decision-making and protecting individuals who may suffer as a result of such action.
14. Introduction to the internal market
Authors: Costa Marios , Peers Steve
Published: September 2020

The creation of the internal market is one of the central purposes of the European Union (EU). This chapter examines the common themes that affect the four freedoms which constitute the internal market in the EU: the free movement of goods, of people and of capital; and the freedom to provide services. It analyses the relationship between these four freedoms and highlights the role of the Court of Justice (CJ) in defining the freedoms’ scope, particularly as regards the social aspect of these freedoms. The chapter also suggests that these freedoms have operated to limit Member States’ regulatory freedom in wide-ranging policy fields.
15. Harmonisation
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the effectiveness of harmonisation in removing barriers to the four freedoms of the internal market in the European Union (EU). It explains the degree of variation amongst negative, positive, total and minimum harmonisation. It considers the relationship between mutual recognition and harmonisation and discusses concerns regarding the freedom of Member States to take individual action in harmonised fields and Member State competence. It evaluates the scope of the EU’s power to enact harmonising measures in the context of the internal market and the extent to which the Union effectively has a general power to regulate. The chapter also discusses the relevant procedures of Articles 114 and 115 of the Treaty on the Functioning of the European Union (TFEU).
20. Economic rights: workers, establishment and services
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines the provisions of European Union (EU) law concerning economic rights provided by Articles 45, 49 and 56 of the Treaty on the Functioning of the European Union (TFEU), concerning workers, establishment and services respectively. It discusses the Court of Justice’s (CJ) interpretation and its impact on Member States’ ability to regulate the right to trade within their own territory, as well as regulatory competition between Member States. The chapter discusses the harmonization of qualifications (including the Qualifications Directive), the free movement of lawyers and the Services Directive.
25. Discrimination
Authors: Costa Marios , Peers Steve
Published: September 2020

This chapter examines European Union (EU) law on discrimination, including the definition of ‘discrimination’ and the limited possibilities of justifying it. The chapter provides an overview of EU provisions on gender equality and discusses equal pay for equal work under Article 157 of the Treaty on the Functioning of the European Union (TFEU). It also explains the principles of equal treatment in self-employment, social security matters and occupational pension schemes, and also discusses the provisions of Directives 2004/113 (sex equality outside employment), Directive 2000/43 (race equality) and Directive 2000/78 (non-discrimination on grounds of age, disability, religion and sexual orientation).
3. Transfer of powers, competences, and law-making
Authors: Foster Nigel
Published: September 2020

This chapter examines the division of competence and the transfer of powers from member states to the European Union (EU) in relation to the law-making process. It explains that the transfer of powers is designed to provide EU institutions with law-making powers to enable the EU to carry out its duties. The chapter highlights shifting dynamics in the policy-making procedures of the EU, particularly the balance between the legitimacy of the European Parliament and the legislative superiority of the Council of Ministers. It also discusses the participation of the institutions in the legislative process and the law-making principles and procedures.
5. Supremacy of EU law
Authors: Foster Nigel
Published: September 2020

This chapter focuses on the supremacy of European Union (EU) law over the law of the member states and the relationship with international law. It suggests that the reasons and logic for the supremacy of the EU law have been developed through the decisions and interpretation of the European Court of Justice (CJEU) and provides relevant cases to illustrate the views of the CJEU on the superiority of EU law. It also considers the transfer and division of competences. This chapter also describes the reception and implementation of EU law in several member states, including Germany, Italy, France, the Czech Republic, Denmark, and Spain.
6. The preliminary ruling (Article 267 TFEU)
Authors: Foster Nigel
Published: September 2020

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the Court of Justice (CJEU). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties. This ensures legal unity.
7. Treaty enforcement actions against member states
Authors: Foster Nigel
Published: September 2020

This chapter examines the enforcement of legal actions against member states in violation of the provisions of the Treaty on the Functioning of the European Union (TFEU). This is termed the procedural law. It explains what constitutes a breach of TFEU provisions and the process of identifying and reporting violations. It provides examples of the procedures involved in breaches of Articles 258, 260, 259, and 278–279 of the TFEU. This chapter also considers the actions brought by one member state against another, suspensory orders, and interim measures, and describes alternative actions that can help secure compliance by member states.
15. The relationship of the UK with the European Union and Brexit
Authors: Foster Nigel
Published: September 2020

This chapter charts the long association of the UK with the EU. It considers all aspects of this relationship including pre membership, entry to the EC (EU), the first UK EU referendum in 1975 and the relationship over five decades. It considers how EU law was granted supremacy over UK law and how the courts viewed this. It considers the period up to and, including the 2016 UK EU referendum on exiting or remaining in the EU and the immediate consequences of that. Finally, and now most importantly, it looks at the negotiations and means by which the UK legally exited the EU on 31 January and the movement into the next stage of that relationship: the future trade relationship with the EU.
1. Tort: law and system
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. In civil law, tort provides remedy for a party who has suffered the breach of a protected interest. Tort law protects a wide range of interests. Currently, negligence is the greatest source of litigation with respect to tort. Torts of trespass to the person protect physical safety while trespass to property governs the ownership of property. The tort of defamation provides remedies for threats to one’s reputation. Another tort-related area deals with the protection of privacy from media intrusion. This chapter discusses the range of activity to which tort law applies and the types of harm for which it provides compensation. It also considers the main interests protected by the law of tort, how the law of tort differs from other branches of the law, and the role of policy and the human rights dimension in the law of tort.
4. Negligence: causation
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. In addition to duty of care and breach of that duty, the third essential element to bring a successful action in negligence is causation of damage. In other words, the claimant must prove on the balance of probabilities that the breach caused his damage. The defendant cannot be made liable for the harm suffered by the claimant if he is not responsible, or partly responsible, for such harm—even if he has been negligent. The question of causation can be divided into two issues: causation in fact and causation in law (also known as remoteness). The primary means of establishing factual causation is the ‘but for’ test. Reasonable foreseeability of damage of the relevant type (Wagon Mound) is required to establish that the claimant’s injury is not too remote. The chain of causation may be broken by unreasonable or unforeseeable acts or events (novus actus interveniens).
5. Negligence: duty of care problem areas
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The tort of negligence originated as a remedy for property damage and physical injury. However, recovery of compensation for psychiatric injury and pure economic loss, in cases where they were not caused by physical injury or property damage, has proved difficult. Duty of care for psychiatric injury is contingent upon whether the claimant is a primary or secondary victim. This chapter discusses the policy reasons for limiting duty of care for psychiatric injury, the mechanisms by which the law limits duty of care for psychiatric injury, the meaning of ‘pure economic loss’, and the development of the Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) principle of liability for negligent statements. The chapter also examines the ‘thin skull’ rule, which applies to psychiatric injury in the same way as to physical injury.
9. Vicarious liability
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. In general, liability is based on the personal fault of the wrongdoer himself. A person is liable only for his own acts, and a defendant will usually be free of any liability unless he has negligently or intentionally caused the harm or damage to the claimant. However, a person who has no fault or personal blame may also be held liable for the damage caused by the tort of another. This is known as vicarious liability, which is most common in the workplace and imposes liability without the need to prove that the defendant is at fault.
12. Nuisance
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Manufacturers and producers are liable for personal injury or damage to property caused by a defective product. The claimant will not only recover in contract for personal injury and property damage caused by the defective product, but he will also be compensated for the cost of replacing the product itself. The Consumer Protection Act 1987 of the UK involves a strict liability regime for defective products on a variety of potential defendants. This discusses the limitations of the tort system in providing compensation to a victim of harm caused by a defective product, and analyses the scope and limitations of the Consumer Protection Act 1987.
13. Rylands v Fletcher
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Rylands v Fletcher was an 1868 case that gave birth to a rule imposing strict liability for damage caused by the escape of dangerous things from land. The tort in Rylands v Fletcher differs from nuisance because it does not consider the involvement of the defendant in a continuous activity or an ongoing state of affairs. What distinguishes Rylands v Fletcher from actions in negligence is that there is no need for the existence of a duty of care and its breach, along with the questionable place of personal injury as an actionable type of damage. This chapter examines the tort in Rylands v Fletcher and the nature of the rule that arose from it. It also considers recent case law developments concerning Rylands v Fletcher and their impact on the current state of the law. Finally, the chapter evaluates the defences pertaining to Rylands v Fletcher.
15. Defences to defamation
Authors: Brennan Carol , Bermingham Vera
Published: September 2020

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Defences to defamation protect freedom of speech in English law. Some of the defences are ‘absolute’ while others are ‘qualified’. Absolute defence means that regardless of how careless the defendant has been in publishing the statement or whether he has been motivated by malice, he is completely protected. Qualified defence applies to a wider range of situations, but fails if the claimant can show that the statement was made ‘maliciously’. This chapter looks at the amendments to the existing defences to defamation contained in the Defamation Act 2013 and the introduction of new defences to protect operators of websites that host user-generated content are also examined.
1. An Introduction to Equity
Authors: Virgo Graham
Published: September 2020

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.
8. Resulting Trusts
Authors: Virgo Graham
Published: September 2020

This chapter examines the nature of the resulting trust. It explains that a trust is called resulting when the beneficial interest in the property returns to the person who transferred the property in the first place. It discusses the theoretical foundation of the resulting trust and its categories, which include presumed and automatic resulting trusts. This chapter examines the consequences of a total or partial failure of express trust and the Quistclose trust which arises where property is transferred for a purpose which has failed, and suggests that there is no need to expand the resulting trust to encompass claims in unjust enrichment and following the rescission of a contract.
11. Beneficiaries
Authors: Virgo Graham
Published: September 2020

This chapter examines the nature of the rights of the beneficiaries of a trust, particularly where there is an express trust. It explains that the beneficiary gains equitable rights once a private trust has been validly created and they can enforce these rights against the trustee. It emphasizes that the nature of the right that is enforceable by the beneficiary depends on the nature of the trust that has been established and that the rights of beneficiaries under resulting and constructive trusts are limited. This chapter also considers the formality requirements for the disposition of equitable interests and when it is possible for the beneficiaries to terminate the trust.
1. Introduction
Authors: Davies Paul
Published: September 2020

This chapter analyses the organisational structure created by company law for the conduct of business through its five core features: recognition of the company as an entity distinct from all its shareholders; limited liability for shareholders; specialised management, separate from the shareholders; the lock-in of the shareholders’ contributions coupled with ease of transfer of the shareholder interest; and free allocation of rights of control over the company to the members of the company. At the same time, the chapter identifies the agency problems created by this structure, the regulation of which is discussed in the following chapters. The chapter also briefly sketches the multiple sources of company law.
3. Governance and The Shareholders As A Class
Authors: Davies Paul
Published: September 2020

This chapter examines in more detail the role company law allocates to shareholders. The first part of the chapter analyses the rationales for requiring some corporate decisions not to be fully delegated to the board. Mandatory involvement of the shareholders is limited to a small number of corporate decisions. In the absence of a statutory requirement for shareholder input into the decision, the chapter examines how easy it is for shareholders who wish to involve themselves in corporate decision-making to do so, whether in the case of particular decisions or by removing directors of whose management they disapprove. The second part of the chapter discusses the recent development of regulatory pressures on institutional shareholders to ‘engage’ with the companies in which they invest. This is a development associated above all with the Stewardship Code and is based on the notion that shareholders have a bigger contribution to make to the management of large companies than the Companies Act assumes to be the case.
6. Directors’ Duties
Authors: Davies Paul
Published: September 2020

This chapter examines the law on directors’ duties, as restated in the Companies Act 2006, other than the core duty of loyalty which is discussed in Chapter 2. It covers the duty of care, the duty to act within powers, the duty to exercise independent judgement, and, most importantly, the application of fiduciary duties to various types of conflict of interest. Many of the most interesting doctrinal questions about company law arise in this area and it is righly placed at the center of many company law courses. However, it may that other sets of rules, discussed in earlier chapters, are more important in practice in the regulation of internal company relations. In addition to the substantive law, the remedies available in respect of breaches are analysed, as is the freedom of shareholders to waive breaches of duty, both after and before the event.
9. The Social Function of Corporate Law
Authors: Davies Paul
Published: September 2020

Since the financial crisis of 2007–09, the shareholder orientation of company law has come under increasing question. This chapter first sets out the social benefits potentially provided by a shareholder orientation and analyses the strategies available within the current company law framework to promote these potential benefits. It then moves on to consider more radical critiques of shareholder orientation. The first questions the capacity of non-shareholders to protect themselves via contract, outside company law. This issue is analysed mainly from the standpoint of employee contracting and employee representation within the corporate structure. The second section promotes the idea that companies should state a corporate purpose beyond profit making.
4. Uncertain and Incomplete Agreements
Authors: McKendrick Ewan
Published: September 2020

The parties to agreements sometimes express themselves in terms that are vague, incomplete, or uncertain. The courts have experienced considerable difficulty in deciding whether or not an agreement has been expressed in a form that is sufficiently certain for them to enforce. On the one hand, judges generally do not wish to be seen to be making the contract for the parties, and on the other hand, are reluctant to deny legal effect to an agreement that the parties have apparently accepted as valid and binding. The result has been a degree of tension in the case-law. This chapter examines two groups of cases. The first group consists of cases in which it was held that the agreement was too uncertain or too vague to be enforced, while the second comprises a number of cases in which the courts have concluded that the agreement was valid and binding.
5. Consideration and Promissory Estoppel
Authors: McKendrick Ewan
Published: September 2020

The doctrine of consideration is one feature of English contract law that readily distinguishes it from the law of contract in civilian jurisdictions. Its essence is that a promisee cannot enforce a promise unless he has given or promised to give something in exchange for the promise, or unless the promisor has obtained (or been promised) something in return. In other words, there must have been a bargain between the parties. This chapter analyses the current scope of the doctrine of consideration, particularly the rule that consideration must be sufficient but need not be adequate; the pre-existing duty rule and the question whether a promise to pay, or part payment of a debt, is good consideration for the discharge of the entire deb; and the rule that past consideration is not good consideration. It also examines the role of promissory estoppel in contract cases. An estoppel gives (at least limited) effect to a promise that would otherwise be unenforceable, thus the effect of an estoppel may be to supplement, or even supplant, the doctrine of consideration. The chapter concludes with a brief discussion of the future of the doctrine of consideration and, in particular, draws on the critique of consideration developed by Professor Atiyah.
9. Incorporation of Terms
Authors: McKendrick Ewan
Published: September 2020

This chapter discusses the incorporation of terms into a contract. Three principal options are available to ensure the incorporation of terms, the first of which is to make sure that the other party to the contract signs the document that contains all the relevant terms. A party is generally bound by terms he has signed, whether or not he has read them. The second option is to take reasonable steps to bring the terms to the notice of the other party. In order to be effective the notice must have been given at or before the time of contracting, in a document that was intended to have contractual effect, and reasonable steps must have been taken to bring the terms to the attention of the other party. The third option is incorporation by course of dealing or by custom. In order to constitute a ‘course of dealing’ there must have been a series of transactions between the parties that was both ‘consistent’ and ‘regular’.
17. Misrepresentation
Authors: McKendrick Ewan
Published: September 2020

A misrepresentation induces a party to enter into a contract but typically is not part of the contract itself. The chapter examines the different types of misrepresentation (fraudulent, negligent, or innocent) and the remedies that the law provides in respect of a misrepresentation. The chapter focuses on the liability for misrepresentation. Section 2 begins by examining the definition of a misrepresentation. Section 3 considers the extent to which English law recognizes the existence of a duty of disclosure. Section 4 discusses the concept of rescission while Section 5 explores how misrepresentation gives rise to a claim for damages, with a particular focus on section 2 of the Misrepresentation Act 1967. Section 6 examines the possibility of excluding liability for misrepresentation.
20. Unconscionability and Inequality of Bargaining Power
Authors: McKendrick Ewan
Published: September 2020

This chapter considers a group of cases in which the courts have been asked to grant relief on the basis that the contract concluded between the parties was, in some way, unfair, outlining examples drawn both from the common law (including equity) and from statutes. The rise and fall of a doctrine of inequality of bargaining power is also noted. It then considers the arguments in favour of drawing these disparate cases together into one general doctrine, and concludes by drawing on some academic reflections on the case-law and the role of fairness in the law of contract more generally.
1. Introduction
Authors: Barnard Catherine , Peers Steve
Published: September 2020

This introductory chapter begins with a consideration of what purpose EU regulation serves and why the EU should regulate. This is a way of introducing students to the main themes of the book. These can be introduced in the form of two questions: ‘What should the EU be doing?’ and ‘How should the EU go about doing it?’ The first question is linked to the concept of ‘output legitimacy’, that is, the EU proving its value to the public by showing that it is effective in contributing to the achievement of objectives which have wide public support (e.g. economic growth and job creation). The second question is linked to the concept of ‘input legitimacy’, that is, how fair and democratic is the process by which the EU takes decisions.
5. Legislating in the European Union
Authors: Bradley Kieran
Published: September 2020

This chapter discusses the procedures for the adoption of legislative and other normative measures in the EU. It touches on a wide variety of subjects: forms of legal act; law-making competences and choice of procedure; the delegation of normative powers; and the application of the constitutional principles of conferral, subsidiarity, and proportionality. A number of more abstract matters are also covered, such as the hierarchy of norms and the ‘democratic deficit’.
9. Fundamental rights in the European Union
Authors: Spaventa Eleanor
Published: September 2020

This chapter examines fundamental rights in the EU. It begins by analysing the historical background and the development of the case law on fundamental rights. It then examines the main Treaty provisions relating to fundamental rights protection, before turning to the Charter of Fundamental Rights of the EU. Finally, it looks at the relationship between the EU and the European Convention on Human Rights (ECHR), including the extent to which the European Court of Human Rights agrees to scrutinize EU acts. It also considers the plan for the EU to accede to the ECHR.
11. The internal market and the philosophies of market integration
Authors: Snell Jukka
Published: September 2020

This chapter examines the nature of the European market, which the Treaties today call the ‘internal market’. It begins by setting out the three models of market integration - host country control, harmonized model, and home country control - each of which represents a very different approach to, or philosophy of, economic integration. It then considers how the nature of European market integration has changed in the course of the history of the EU. It argues that the original common market paradigm set out in the Spaak Report and incorporated into the Treaty of Rome gradually gave way to the single market paradigm first initiated by the European Court of Justice and subsequently embraced by the political institutions. Finally, the chapter investigates the principal tool the Treaty has created for the achievement of the internal market, namely Article 114 TFEU.
13. Free movement of natural persons and citizenship of the Union
Authors: Barnard Catherine
Published: September 2020

This chapter discusses EU law on the free movement of persons. It shows how the EU judiciary and legislature have responded to some of the challenges raised by EU migration. It highlights the following themes: the erosion of the requirement of an interstate element; how little it takes to establish an obstacle to free movement and thus a breach by the state of EU law; the need for the state to establish a justification in order to preserve state interests, but notes that what the state can do to protect that interest is severely curtailed by the principles of human rights and proportionality. It shows that the Court views cases on the free movement of natural persons through a citizenship lens and thus is more willing to embrace a human rights dimension than it would be in cases on free movement of legal persons.
14. Free movement of legal persons and the provision of services
Authors: Barnard Catherine , Snell Jukka
Published: September 2020

This chapter discusses EU rules which apply to a legal person’s establishment rights under Article 49 TFEU and its rights to provide services under Article 56 and 57 TFEU. It begins by discussing the Treaty provisions on freedom of establishment and free movement of services. It then considers some key pieces of secondary legislation adopted in the field of freedom of establishment and free movement of services - legislation intended to facilitate the operation of the freedoms in respect of legal persons.
15. Free movement of capital
Authors: Flynn Leo
Published: September 2020

This chapter discusses EU law on the free movement of capital. It first considers the development of the current rules on capital, focusing on their material scope, direct effect, and role in relation to third countries. It then explains how the concept of restrictions, which is a feature of all internal market freedoms, operates in relation to capital. Next, it deals with the power of Member States to limit capital flows between different parts of the Union, as well as into and out of the Union. Finally, it examines the effects of case law regarding capital movement in relation to philanthropic and charitable activities, in order to see how the free movement of capital affects the ability of Member States to design the instruments by which they organize the delivery of services they consider are in the public interest.
17. Competition law
Authors: Jones Alison , Townley Christopher
Published: September 2020

This chapter examines the two core competition rules that govern anti-competitive agreements (Article 101 TFEU) and abuse of a dominant position (Article 102 TFEU). It begins with an overview of EU competition law. It then discusses the enforcement and consequences of infringement; who Articles 101 and 102 TFEU apply to and when they apply. It also identifies anti-competitive agreements and conduct.
19. Labour and equality law
Authors: Rönnmar Mia
Published: September 2020

This chapter discusses a number of key EU labour and equality law issues. These include restructuring of enterprises; information, consultation, and worker participation; how national collective labour law is affected by the four freedoms; flexible work and working conditions; the EU and national labour law in times of economic crisis; and gender equality, comprehensive equality, and protection against discrimination on other grounds.