bluuebunny/crossref_metadata_2025 huggingface dataset:
38. Relative grounds for refusal
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter focuses on ‘relative grounds’ for denying an application to register a trade mark as set out in section 5 of the Trade Marks Act 1994 and Article 8 of the European Union Trade Marks Regulation (EUTMR). It identifies ‘earlier trade marks’ and ‘earlier rights’ before turning to the tests which allow a prior mark to oppose the registration of a subsequent one. First, it reviews the so-called double identity ground, where an identical (later) mark is applied for, in the context of identical products. Second, it considers when likelihood of confusion may be established. Third, it surveys three situations referred to collectively as ‘dilution’, where the later mark may mentally evoke the earlier one in a way that is not confusing, yet still wrongful. It also explains the ‘advertising function’ of a trade mark, along with requirements relating to reputation and ‘due cause’. Finally, the chapter discusses relevant provisions governing unregistered trade marks, copyright, design right, and registered design right in the UK.
48. Litigation
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter introduces some of the more important aspects of intellectual property litigation. It begins by considering who can bring proceedings and who can be sued with respect to infringement before discussing how evidence is obtained and preserved, with particular reference to disclosure orders and search orders. In addition, the chapter looks at presumptions that alter the normal burden of proof; unjustified threats of infringement; special courts and tribunals that deal with the technical nature of intellectual property litigation; parallel proceedings and the problems that they raise; the use of experts in litigation; and jurisdictional issues and conflicts of law. Finally, it examines alternative dispute resolution as an approach to resolving disputes concerning intellectual property.
10. Article 7: Freedom from retroactive criminal offences and punishment
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

This chapter discusses Article 7 of the European Convention on Human Rights, which incorporates the principle of legality, by which, in the context of criminal law, a person should only be convicted and punished on a basis of law. Article 7 prohibits the retroactive application of criminal offences and of sentences imposed for them. The guarantee in Article 7 is an essential element of the rule of law, and has as its object and purpose the provision of effective safeguards against arbitrary conviction and punishment. An exception is allowed for offences that were contrary to general principles of law recognized by civilized nations.
12. Article 9: Freedom of thought, conscience, and religion
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla , Cumper Peter
Published: August 2018

This chapter discusses Article 9 of the European Convention on Human Rights, which covers forms of both religious and non-religious belief. Few articles of the Convention have generated as much controversy as Article 9, from complaints about curbs on religious dress and displays of religious symbols to conflicts over faith at the workplace. In the past two decades, the Court has made important strides in formulating its own guidelines in relation to freedom of thought, conscience, and religion.
13. Article 10: Freedom of expression
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

This chapter discusses Article 10 of the European Convention on Human Rights, which guarantees freedom of expression. It first delineates the boundaries of protection of Article 10. It then turns to different categories of expression; specific issues relating to the press and media licensing; the standard ‘prescribed by law’; legitimate aims; the notion of ‘duties and responsibilities’ of the bearers of expression rights; and some distinct methodologies advanced by the Court to deal with defamation cases.
15. Article 12: The right to marry and to found a family
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

This chapter discusses Article 12 of the European Convention on Human Rights, which protects the right to marry and to found a family, subject to a wide power on the part of states to regulate the exercise of the right. National law may regulate the form and capacity to marry, but procedural or substantive limitations must not remove the essence of the right. The right to marry does not extend to same-sex marriage and there is no right to divorce. However, transsexuals are guaranteed the right to marry persons of their now opposite sex.
17. Article 14 (Freedom from discrimination in respect of protected convention rights) and protocol 12 (non-discrimination in respect of ‘any right set forth by law’)
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

This chapter discusses Article 14 of the European Convention on Human Rights, which addresses discrimination. Article 14 is a ‘parasitic’ provision, i.e. it only applies to ‘rights and freedoms set forth’ in the Convention and its Protocols. In other words it only prohibits discrimination within the ambit of these rights and freedoms—contrast Protocol 12 to the Convention, which is also discussed in this chapter, which prohibits discrimination generally. The importance of Article 14 is evident in the growing number of cases over the past decade, including important judgments and decisions concerning discrimination based on sexual orientation and allegations of racial discrimination.
5. Proprietary estoppel
Authors: Clements Richard , Abass Ademola
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter on proprietary estoppel discusses the following: the principle of estoppels; the key elements of proprietary estoppel; the importance of the principle of unconscionability; the need for a clear representation or acquiescence; the different types of detriment; the flexibility of an equitable remedy; and the similarities and differences between a proprietary estoppel and a constructive trust. Estoppel seems to offer an exception to the normal rules of legal formality—ie transactions involving land require writing—and so provides a classic example of equity moderating the harshness of the law.
9. Charitable trusts
Authors: Clements Richard , Abass Ademola
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter on charitable trusts discusses the following: the legal and tax advantages of charitable status; the role of the Charity Commission; the legal definition of charity; the four heads of charity: poverty, education, religion, and other purposes beneficial to the community, such as help for the old and sick, animal welfare and recreation; the additional categories of charity introduced by the Charities Act 2011, the difference between the different public benefit requirements for different types of charity; and the basis of the cy-près doctrine.
13. Variation of trust
Authors: Clements Richard , Abass Ademola
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. Variation means changing the terms of the trust. The trustees and beneficiaries are bound by the terms of the trust and to disregard these terms is a breach of trust. If the trust is drafted correctly then it should have enough flexibility to deal with future events. This chapter discusses the powers to vary a trust; when the court may consent for beneficiaries under the Variation of Trusts Act 1958; and also the meaning of benefit.
Family Law 2018
Authors: Sendall Jane
Published: August 2018

Family Law takes a highly practical, student-centred approach to the essential law and procedure at the heart of family law. Providing a comprehensive guide to the subject, it focuses on relationship breakdown, money and property, children, and domestic abuse. A concise writing style and short chapters ensure focused learning, while chapter summaries and self-test questions help students to consolidate their knowledge and identify areas for further study. Throughout the book case studies and examples are used, demonstrating how family law applies in practice and helping to prepare students for their future careers. The book also features diagrams and flowcharts throughout, helping to improve understanding of complex processes or areas of difficulty. Topics that are covered include: family law practice and the first interview; public funding; alternative dispute resolution in family law; judicial separation and nullity; divorce; defences to divorce; jurisdiction; procedure for a matrimonial order; the Civil Partnership Act 2004; dissolution of a civil partnership; financial orders following divorce or dissolution; financial orders; pre-marital agreements; procedure for financial orders; variation, collection, and enforcement of financial orders; protecting assets and the family home in financial order proceedings; separation and maintenance agreements; child support; pensions in financial proceedings; and taxation in family law.
12. Financial Orders
Authors: Sendall Jane
Published: August 2018

This chapter discusses the principal forms of financial orders under the Matrimonial Causes Act 1973, their scope, and how they are used. These include lump sum orders, property adjustment orders, orders concerning the family home, periodical payments orders, and interim orders.
24. Introduction to the Children Act 1989
Authors: Sendall Jane
Published: August 2018

This chapter examines the Children Act 1989 (CA 1989) and the main principles upon which Children Act proceedings are conducted. It discusses the content of the ‘welfare principle’ and the ‘welfare checklist’ under CA 1989, and explains the principles of ‘no order’ and ‘no delay’.
33. Protection under the Family Law Act 1996: Non-Molestation Orders
Authors: Sendall Jane
Published: August 2018

This chapter discusses the following: the law regarding domestic abuse; practical issues arising from acting for clients facing domestic abuse; the availability of remedies under the Family Law Act 1996; funding for orders under the Family Law Act 1996; the concept of ‘associated persons’; non-molestation orders under the Family Law Act 1996; and remedies for clients escaping a forced marriage.
36. Protection under the Family Law Act 1996: Procedure
Authors: Sendall Jane
Published: August 2018

This chapter discusses the procedure for obtaining orders under the Family Law Act 1996 without notice, on notice, and when enforcing orders. Proceedings are commenced using a Form FL401 and a statement in support. Proceedings can be commenced in either the county court or family proceedings court. Funding is available for those eligible for CLS funding. The respondent should be personally served with the FL401 and the statement in support unless the application is to be made without notice. Police should be contacted if a non-molestation order is breached and if an occupation order has a power of arrest attached to it.
Land Law
Authors: Bevan Chris
Published: August 2018

Land Law maintains a critical emphasis and encourages the reader to consider and understand the law in context (both within society and the academic world), not just in the abstract. Topics covered include: the principles of registered land, unregistered land, adverse possession, co-ownership, and interest in the family home. It also looks at licences and proprietary estoppel, leases, the law of easements and profits, covenants in freehold land, and the law of mortgages. Finally, it looks at land law and human rights.
3. Unregistered Land
Authors: Bevan Chris
Published: August 2018

This chapter focuses on unregistered land. Unregistered land continues to play a residual role in contemporary land law. Although its influence is dwindling, there will remain a core clutch of land for which, for the foreseeable future, there will be no trigger for compulsory registration and it will therefore remain unregistered. An appreciation of the principles of unregistered land gives students better insight into and a more informed angle on the principles of registered land and their effectiveness. Almost 100 years after the 1925 raft of legislation, much of which was designed to facilitate land registration, unregistered land principles retain a significance. The chapter considers how dealings with unregistered land known as ‘title deeds conveyancing’ operate.
8. International Organizations
Authors: Akande Dapo
Published: August 2018

This chapter examines the legal framework governing international organizations. It begins with an examination of the history, role, and nature of international organizations. It is argued that although the constituent instruments and practices of each organization differ, there are common legal principles which apply to international organizations. The chapter focuses on the identification and exploration of those common legal principles. There is an examination of the manner in which international organizations acquire legal personality in international and domestic law and the consequences of that legal personality. There is also discussion of the manner in which treaties establishing international organizations are interpreted and how this differs from ordinary treaty interpretation. The legal and decision-making competences of international organizations are considered as are the responsibility of international organizations and their privileges and immunities. Finally, the chapter examines the structure and powers of what is the leading international organization—the United Nations (UN).
10. Jurisdiction
Authors: Staker Christopher
Published: August 2018

This chapter focuses on the principles of international law that govern the right of States to apply their laws to conduct and events occurring within or outside their own territories; the resolution of disputes arising from overlapping jurisdictional claims; and the problems of enforcing national laws. The discussions cover the meaning of ‘jurisdiction’; the significance of the principles of jurisdiction; doctrinal analysis of jurisdiction; the territorial principle; the national principle; the protective principle; the universal principle; treaty-based extensions of jurisdiction; controversial bases of prescriptive jurisdiction; types of jurisdiction; limitations upon jurisdiction; inadequacies of the traditional approach; and the fundamental principle governing enforcement jurisdiction.
13. The Relationship between International and National Law
Authors: Denza Eileen
Published: August 2018

This chapter examines the relationship between international and national law. It discusses the approach of international courts and tribunals; the approach of national parliaments and national courts; and some problems that arise in national courts. While prospects for a harmonized approach to the relationship between international and national law are dim, conflict can be avoided through the close involvement of international lawyers in the treaty-making and ratification process; attention at the time of ratification to implementation questions; the teaching of international law as part of the professional training of judges; and expert assistance to national courts when international law questions arise.
20. The Use of Force and the International Legal Order
Authors: Gray Christine
Published: August 2018

This chapter examines the law on the use of force. It discusses the UN Charter scheme; the Prohibition of the Use of Force in Article 2(4) of the UN Charter; intervention, civil wars, and invitation; self-defence; the use of force under Chapter VII of the UN Charter; UN peacekeeping; and regional action under Chapter VIII of the UN Charter. The UN Charter provisions on the use of force by States, Article 2(4) on the prohibition of force, and Article 51 on self-defence, have all caused fundamental divisions between States. There is disagreement as to whether the prohibition on force should be interpreted strictly or whether it allows humanitarian intervention, as in Kosovo. There is also disagreement over the scope of the right of self-defence. The response to the 9/11 terrorist attacks has led to a fundamental reappraisal of the law in this area.
22. International Environmental Law
Authors: Redgwell Catherine
Published: August 2018

The development of international environmental law is typically divided into three periods. The first demonstrates little genuine environmental awareness but rather views environmental benefits as incidental to largely economic concerns such as the exploitation of living natural resources. The second demonstrates a significant rise in the number of treaties directed to pollution abatement and to species and habitat conservation. Here an overt environmental focus is evident, yet the approach is still largely reactive and piecemeal. The final phase, which characterizes current international environmental law, demonstrates a precautionary approach to environmental problems of global magnitude such as biodiversity conservation and climate change. Concern transcends individual States, with certain global problems now considered the common concern of humankind. This chapter defines international environmental law, its key sources and actors, and difficulties of enforcement, before embarking on a sectoral examination of the extensive treaty law applicable in this field.
13. Justice in the Modern Administrative State
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the role of a range of accountability methods to scrutinize the executive’s use of power. This includes the work of the Parliamentary Commissioner for Administration, who is now also known as the Parliamentary Ombudsman, the role of tribunals in contrast to courts, of public inquiries and of alternative dispute resolution mechanisms too. It also examines the limitations of each of these methods, and how they may complement each other to provide different forms of scrutiny.
14. The Role of the Courts, Judicial Review, and Human Rights
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The court is tasked with checking the legality of government action, which is mainly done through the process known as judicial review. Judicial review is a special form of court process that calls the executive to account for its exercise of power. This chapter discusses the history of judicial review; the grounds of review; the judicial review of delegated legislation; judicial review and the constitution; the difference between judicial review and appeal; the role of the courts and the Human Rights Act 1998; the judicial review procedure; and the extent to which judicial review can act as a check on executive power.
15. The Parties to a Judicial Review: Who Can Make a Claim for Judicial Review and Against Whom Can a Claim for Judicial Review be Made?
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the bodies subject to judicial review and who can make claims for judicial review. An action for judicial review can be brought only against a body exercising a public function. If public authorities are carrying out a private function, they are not subject to judicial review unless there is a public law element. Private bodies are, generally, not subject to judicial review unless it can be shown that they are carrying out a public function, such as administering a statutory scheme. If the judicial review concerns human rights, then the claim must be brought against a public authority. The Human Rights Act 1998 creates two kinds of public authorities: core public authorities and functional public authorities. Core public authorities are public authorities, such as government departments and the police force. Functional public authorities have private and public functions, but only their public functions are subject to the Act. The rules of standing in judicial review cases determine whether individuals or groups are permitted to challenge a decision of a public body. An individual or organization may bring a claim for judicial review only with the permission of the courts, which means that standing restricts the people and organizations that may bring a judicial review claim.
16. Illegality
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter examines ‘illegality’ as a ground for judicial review. Central to judicial review is the idea of ultra vires, which is the principle that public authorities have to act within their legal powers, and that if they act or fail to act consistently with their legal powers, they will be acting unlawfully. Case law on the exercise of discretionary powers by public authorities is discussed. The issue of jurisdiction is also considered, in particular, the distinction between errors of law and errors of fact.
17. Irrationality and Proportionality
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which discusses the circumstances for judicial review of a public authority’s decision on the grounds that it is irrational, first explains the history of irrationality and ‘Wednesbury unreasonableness’, to provide some background to the topic and to chart its development. It then considers cases in which the courts have discussed different versions of the irrationality test, discusses the difference between irrationality and proportionality, and examines the development of proportionality and its use in judicial review cases. The chapter distinguishes between proportionality and merits review, and discusses the use of judicial deference by the courts. Proportionality, and not irrationality, is the test used to determine whether a public authority has acted unlawfully when its decision is challenged by judicial review under section 6 of the Human Rights Act 1998. The irrationality test is used in non Human Rights Act judicial review cases but the courts have also used the proportionality test in cases involving common law rights. The chapter concludes by considering the discussion in the case law and the scholarship as to whether the irrationality test should be replaced by the test of proportionality across both types of case: traditional judicial review cases and those involving a human rights issue.
19. Remedies
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the remedies granted by the court. If a claimant successfully establishes that the public authority has acted in contravention of one of the grounds of review, then the court may grant a remedy. The purpose of a remedy is to tell the public authority what it has to do to comply with the judgment and to ensure, as far as possible, that it obeys the courts’ decision. There are two main types of remedies available in judicial review cases: ordinary remedies (injunction, declaration, and damages) and prerogative remedies (quashing order, prohibiting order, and mandatory order). The chapter also discusses situations that may cause the court to refuse a remedy and the courts’ powers to grant a remedy under the Human Rights Act 1998.
5. Secondary participation: parties to a crime
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter focuses on accessories to a crime or those who assist or encourage another to commit a crime. It discusses the conditions for liability under actus reus and mens rea, and explains that an accessory can be held liable for a crime and given the same punishment. The chapter explains accessorial liability for offences which go beyond the joint venture, and defences to secondary participation, evaluating whether victims can also be considered as accessories. The chapter provides examples of relevant cases including the case of Jogee, which, following recommendations of reform from the Law Commission and others, made significant changes to accessorial liability in joint ventures.
10. Non-fatal offences against the person
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter discusses the provisions of criminal law for non-fatal offences against the person in Great Britain, which include assault, battery, malicious wounding, grievous bodily harm, and racially and religiously aggravated assaults. It examines the distinction between these major offences against the person and discusses the actus reus and mens rea elements of them. The chapter evaluates the use of the consent and lawful chastisement in legal defence, analyses the relevant provisions of the Harassment Act 1997 and reviews some recent reform proposals. It also provides examples of related cases and comments on the bases of court decisions on each of them.
14. Property offences 3
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter examines the most frequently committed property offences in Great Britain, focusing on burglary, aggravated burglary and criminal damage. It also discusses blackmail, a less frequent but equally serious offence. The general principles of these offences are explored and their actus reus and mens rea elements are discussed. The chapter explains the key provisions of the Theft Act 1968 and identifies the types of legal defence that can be successfully employed for these offences. It considers racially and religiously aggravated criminal damage, criminal damage endangering life, and arson. The chapter also provides examples of several relevant cases and analyses the bases of court decisions in each of them.
13. Substantive Grounds of Judicial Review
Authors: Loveland Ian
Published: August 2018

This chapter discusses the substantive grounds of judicial review: illegality, irrationality, and proportionality. Illegality covers the following: excess of power; the relevant/irrelevant considerations doctrine; unlawful delegation of power; unlawful fettering of power; and the estoppel doctrine. Irrationality is also concerned with the substantive content of a government decision, but focuses on the political or moral rather than (in the strict sense) legal character of the decision. Proportionality review can be defined as a constitutional device that requires the courts to accept that the boundaries of moral consensus within which government bodies are confined are discernibly less broad in substantive terms than those that apply in respect of irrationality-based review.
16. Locus Standi
Authors: Loveland Ian
Published: August 2018

This chapter focuses on the concept of locus standi, perhaps the most important way in which administrative law deals with the question of how to balance the protection of individual citizens’ rights and interests with the desire to ensure that government decision-making remains within legal limits and that government bodies (including the courts) are protected from vexatious litigants. It is organised as follows. The first section addresses the law that existed prior to the introduction of the Order 53 reforms in 1977 whilst the second covers the short period between the introduction of those reforms and the House of Lords’ decision in IRC v National Federation of Self-Employed and Small Businesses. The third section runs from the mid-1980s to the present day.
Trusts & Equity
Authors: Watt Gary
Published: August 2018

This book provides a detailed and conceptual analysis of trusts and equity; concentrating on those areas of the subject that are most relevant in the contemporary arena, such as the commercial context. It utilizes expertise in teaching, writing, and researching to enliven the text with helpful analogies and memorable references to extra-legal sources such as history, literature, and film. In this way, the book also stimulates students to engage critically with concepts. This new edition includes coverage of significant recent cases, including decisions of the Supreme Court on the nature of a trust in relation to third parties (Akers v. Samba Financial Group [2017]), the right to recover wealth transferred between parties to an illegal scheme (Patel v. Mirza [2016]) and on the distinction between contractual debt and constructive trust (Bailey v. Angove’s PTY Ltd [2016]). Further reading and discussion of anticipated reforms has been updated throughout in light of the latest legal developments.
1. Foundations
Authors: Watt Gary
Published: August 2018

This chapter focuses on the historical and conceptual foundations of trusts and equity, first examining the history of the relationship between law and equity, including the historical origins of the trust. It then explains the idea of equity and how it is intertwined with the common law, and compares the trust with concepts such as gifts and contracts. The chapter shows that the trust arose in response to equity's special concern to ensure that legal rights are not used in bad conscience, but later developed into a sophisticated institution governed by established rules. It looks at the reform of the Court of Chancery and considers trust property, equitable rights under a trust, separation of legal and equitable title, and the paradox of property and obligation.
The Principles of Equity & Trusts
Authors: Virgo Graham
Published: August 2018

The Principles of Equity & Trusts offers a new approach to this dynamic area of law. This book examines the law of Equity and Trusts in its contemporary context, offering a critical and insightful commentary on the law, its application, and development. The text communicates both Equity and trust doctrine and also theory and reflects the modern understanding of the subject, as propounded both by the judiciary and commentators in England and other Common Law jurisdictions, notably Australia, Canada, New Zealand, and Singapore. The book consists of nine parts. Part I considers the history and contemporary relevance of Equity. Part II is about the express trust. Part III considers purpose trusts. Part IV then examines implied trusts. Part V is about beneficiaries. Part VI examines trustees’ powers and duties. Part VII examines variations of trusts. Part VIII is about breach of trust and fiduciary duty and the personal and proprietary remedies available for such breach. The final part examines other equitable remedies.
2. The characteristics of equity
Authors: Virgo Graham
Published: August 2018

This chapter analyses the essential characteristics of Equity. It identifies fourteen maxims that are useful and relevant today as guidelines for the operation of the equitable jurisdiction. The most important of the maxims are examined in some detail, namely that Equity is discretionary and is triggered by unconscionability. The meaning of discretion and the contemporary relevance of conscience and unconscionability are examined. Other maxims include that Equity will treat as done that which ought to be done and Equity responds to cynical conduct. This chapter explains the principles underlying these maxims and suggests that they are often subject to exceptions and sometimes it may even be necessary to redefine them to ensure that they are fit for purpose today.
11. Beneficiaries
Authors: Virgo Graham
Published: August 2018

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.
19. Proprietary Claims and Remedies
Authors: Virgo Graham
Published: August 2018

This chapter examines the proprietary claims and remedies relevant to a breach of trust or fiduciary duty by a trustee or fiduciary. It explains that a proprietary claim in Equity requires the claimant to show that the defendant has received an asset in which the claimant has an equitable proprietary interest while a proprietary remedy enables the claimant to assert proprietary rights against property that is in the defendant's possession. This chapter also proposes a framework for understanding the law relating to proprietary claims and describes different types of remedy that are available with respect to equitable proprietary claims, specifically the recognition that property is held on constructive trust, the equitable lien, and the remedy of subrogation.
3. Human rights law
Authors: Endicott Timothy
Published: August 2018

The European Convention on Human Rights not only guaranteed certain rights, but also created an international Court. The Human Rights Act gives English judges dramatic but limited techniques for vindicating the Convention rights. This chapter explains what the judges in Strasbourg and in England have done with the techniques for control of administration that result from the Convention and the Human Rights Act. The chapter addresses the content and the structure of the Convention rights, the ways in which those rights are protected in English administrative law, particularly through the Human Rights Act 1998, and the tests of proportionality required by the Convention.
12. Tribunals
Authors: Endicott Timothy
Published: August 2018

Panels, committees, tribunals, referees, adjudicators, commissioners, and other public authorities decide many thousands of disputes each year over (for example) entitlement to benefits, or tax liability, or political asylum, or the detention of a patient in a secure hospital. The massive array of agencies reflects the great variety of benefits and burdens that twenty-first-century government assigns to people. The array had no overall organization until 2007, when Parliament transformed it into a complex system. This chapter explains the benefits of integrating these decision-making agencies in the new system. The law needs to tailor their structure, processes, and decision-making techniques to the variety of purposes they serve. And the law needs to achieve proportionate process, by reconciling competing interests in legalism and informality in tribunal processes.
14. Torts
Authors: Endicott Timothy
Published: August 2018

A claim for damages for loss caused by a public authority gives a court the opportunity to do justice for the claimant, and also to impose the rule of law on the administration. The challenge is to do both without interfering in the administrative pursuit of public goods, and without creating public compensation funds that only a legislature can legitimately create. It is an important constitutional principle that liabilities in the law of tort apply to public authorities, just as to private parties. But there is no general liability to compensate for public action that was unlawful; the impugned conduct must meet the standard requirements of the tort liability of private parties, with the exception of the one public tort: misfeasance in a public office. This chapter discusses trespass to property, statutory liabilities, negligence, misfeasance in public office, and damages under the Human Rights Act 1998 and under European Union law.
2. Historical background
Authors: Smith Rhona K. M.
Published: August 2018

This chapter provides an historical sketch of international human rights. It considers the divergent views as to the origins of human rights, and suggests that human rights represent the modern interpretation and an expansion of the traditional concept of the rule of law. The chapter discusses the law of aliens; diplomatic laws; the laws of war; slavery; minority rights; the establishment of the International Labour Organization; and human rights protection after World War II.
4. The International Bill of Human Rights
Authors: Smith Rhona K. M.
Published: August 2018

This chapter analyses the history and principles of the International Bill of Human Rights, which is the ethical and legal basis for all the human rights work of the United Nations. The Bill consists of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, two Optional Protocols annexed thereto, and the International Covenant on Economic, Social, and Cultural Rights and Protocol. The chapter also assesses whether the Bill of Human Rights has lived up to the expectations of the original proponents.
6. Regional protection of human rights
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the rationale behind developing regional protection of human rights. It discusses the advantages of regional systems then overviews the three principal regional systems that promote human rights: the Organisation of American States, the Council of Europe, and the African Union, before outlining other regional initiatives.
7. Europe
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the regional organizations with jurisdiction over human rights in Europe, focusing on the Council of Europe, and describes relevant work of the European Union and the Organization for Security and Cooperation in Europe. It highlights the success of the Council of Europe in developing a system which ensures the protection of basic human rights through a judicial mechanism, and concludes that the European Convention on Human Rights has matured into the most sophisticated and effective human rights treaty in the world.
12. Equality and non-discrimination
Authors: Smith Rhona K. M.
Published: August 2018

Course-focused and comprehensive, the ‘Textbook on’ series provides an accessible overview of the key areas on the law curriculum. This chapter examines equality and non-discrimination in international human rights law. It discusses the provisions of human rights laws, conventions, and declarations designed to address problems related to sex, race, and religious discrimination. The chapter suggests a link between the concept of equality and that of non-discrimination, and that the rule of non-discrimination is basically the negative restatement of the principle of equality.
13. The right to life
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines African, American, European, and international jurisprudence on the right to life. It discusses the positive obligation incumbent on States to protect life; the permissible deprivation of life (the death penalty, death caused by national security forces, and death during armed conflict); and the issue of genocide. The chapter concludes that the right to life is of paramount importance in international human rights law. International law covers not only the straightforward human rights aspects, but also extends to the prevention and punishment of the crime of genocide.
14. Freedom from torture; cruel, inhuman, and degrading treatment or punishment
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the prohibition of torture and similar forms of punishment by international human rights law. Regional and international human rights bodies have developed specific instruments and monitoring systems designed to combat such practices. The chapter argues that exhaustive definitions of the components of the prohibition on torture would not help in abolishing the practice; there is a real risk that such a list would encourage ever more innovative and horrific examples of inhumanity.
16. Equality before the law—the right to a fair trial
Authors: Smith Rhona K. M.
Published: August 2018

This chapter discusses the right to be recognized as a person before the law; the equality of persons before the law; the prohibition on retroactive penal legislation; the position of courts under the law; the presumption of innocence; and those rights that accrue primarily to accused persons. It argues that the right to equality before the law is one of the major embodiments of the freedom from discrimination advocated by the United Nations. The right to a fair trial and the equality of arms of parties to a legal dispute are fundamental to the operation of the rule of law.
19. The right to work
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the right to work in international human rights law. It discusses the right to just and favourable conditions of work and remuneration; and the right to equal pay for equal work. The chapter highlights the role of the International Labour Organization in setting the standard for worker protection, and the contributions of the Social Charters of the Council of Europe in providing evidence of the change in such standards over the years.
Tort Law Directions
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

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. This book covers all the core areas of tort law, combining an engaging approach with plenty of learning features. It provides a detailed introduction to the key principles of tort law, and illustrates the points of law through discussions of important court cases. Key cases are discussed to illustrate the main principles of tort law; they help to bring the subject to life, allowing students to see how the law operates in practice. This new edition of the text includes increased focus on the influence of human rights on tort law. It is fully updated with recent case law highlighting how quickly tort law is developing particularly.
2. Trespass to the person and to land
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

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. Tort law is designed to address the consequences of loss. This is accomplished mainly through compensation and deterrence. A third aim of tort law is corrective justice. This chapter discusses the compensation aim of tort law, focusing on personal injury caused by accidents. It examines whether this aim has been successfully accomplished and considers the relative merits of other forms of compensation. After providing a historical overview of the tort system of compensation, the chapter looks at the function of tort as a form of compensation for loss and places tort in the context of other forms of compensation. It also analyses insurance, no-fault liability, and alternative compensation schemes before ending with a discussion of current debates concerning possible high levels of personal injury litigation.
10. Vicarious liability
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

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. Employment contracts implicitly require an employer to take all reasonable care to ensure the health and safety of his or her employees. An employee who suffers an injury due to the tort of another employee may make the employer vicariously liable. In addition, the employer has a personal non-delegable duty of care to ensure that his employees are safe in the workplace. This chapter looks at the various sources of employers’ liability for workplace accidents and discusses the distinction between vicarious liability and personal liability. It also examines the non-delegable nature of the employer’s duty and considers developments in employer’s liability for occupational stress.
8. Historical and anthropological jurisprudence
Authors: Wacks Raymond
Published: August 2018

This chapter, which discusses the development of historical and anthropological jurisprudence, first identifies the characteristics that distinguish the Western legal tradition from other systems. It then discusses the German Romantic Movement, which found its most powerful spokesman in the jurist, Friedrich Karl von Savigny; its foremost champion in England was Sir Henry Maine. Maine exercised a significant influence over what has come to be called anthropological jurisprudence or legal anthropology, an approach to law that developed in the twentieth century and which was recognized as essential to an understanding of law by the American realist judge Oliver Wendell Holmes Jr.
13. Critical legal theory
Authors: Wacks Raymond
Published: August 2018

All critical legal theorists share a deep cynicism about many of the important questions of legal theory. Fundamentally they reject many of the assumptions of both the legal and political order: for example, the free market, ‘meta-narratives’, and male or racial domination. This chapter first discusses the development of critical legal studies and then turns to postmodern legal theory, considering the views of Jacques Lacan, Jacques Derrida, Michel Foucault, and Jürgen Habermas. It then goes on to outlines the principal claims of critical race theory (CRT). It also considers the relationships between CRT and feminist theory and CRT and postmodernism.
3. Registration
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter consists of an introduction to one of the core parts of modern land law: land registration. It examines some of the key aims of the Land Registration Act 2002, and considers in particular the means by which the Act protects registered parties.