bluuebunny/crossref_metadata_2025 huggingface dataset:
12. Boilerplate Clauses
Authors: McKendrick Ewan
Published: September 2022

This chapter examines some standard clauses found in commercial contracts today (often known as ‘boilerplate clauses’). The focus is on commercial contracts and terms that will, in all probability, have been drafted by lawyers. After first setting out some general considerations that relate to the structure of modern contracts, the discussion moves on to examine some standard form clauses to be found in such contracts. These include general clauses, retention of title clauses, price escalation clauses, clauses making provision for the payment of interest, force majeure clauses, choice of law clauses, arbitration clauses, jurisdiction clauses, hardship clauses, entire agreement clauses, no oral modification clauses, termination clauses, assignment, and, albeit briefly, exclusion and limitation clauses.
13. Exclusion Clauses
Authors: McKendrick Ewan
Published: September 2022

This chapter discusses one particular type of boilerplate clause, namely the exclusion or limitation clause. The chapter examines the role and function of exclusion and limitation clauses in modern commercial contracts. In order to perform its function an exclusion or limitation clause must (i) be validly incorporated into the contract, (ii) cover the loss that has been suffered, and (iii) survive scrutiny under the Unfair Contract Terms Act 1977. Difficult interpretative issues can arise where one party seeks to exclude liability in respect of its own negligence or exclude liability for fundamental breach. The Unfair Contract Terms Act 1977 applies a reasonableness test to a number of exclusion or limitation clauses. The 1977 Act is also examined, with particular reference to the types of clause that fall within its scope.
15. Good Faith
Authors: McKendrick Ewan
Published: September 2022

This chapter discusses the role of good faith in contract law, first analysing the decision in Walford v. Miles [1992] 2 AC 128, where it was held that an obligation to negotiate in good faith is not valid. It then examines the reasons that led to the decision and also explores its limits. Next, the chapter considers the arguments that have been advanced in support of the refusal of English law to recognize the validity of a doctrine of good faith and then turns to the arguments that have been advanced by those who support the recognition of a doctrine of good faith. It concludes by examining the development of a doctrine of good faith in the performance of contracts.
22. Breach of Contract and Termination
Authors: McKendrick Ewan
Published: September 2022

This chapter begins with a definition of ‘breach of contract’ and then outlines the circumstances in which a breach of contract gives to the innocent party a right to terminate further performance of the contract. These include breach of a condition and breach of an intermediate term where the consequences of the breach are sufficiently serious. The chapter also considers the problems that can arise in deciding the status of a term which has not been classified by the parties as a condition, a warranty, or an intermediate term. It examines termination clauses and the significance attached to the good faith of the party who is alleged to have repudiated the contract. The chapter includes a brief comparison of English law with the Vienna Convention on Contracts for the International Sale of Goods and with the Principles of European Contract Law, and also addresses the question of whether an innocent party is obligated to exercise its right to terminate further performance of the contract, and considers the loss of the right to terminate. It concludes with a discussion of the law of anticipatory breach of contract.
24. Specific Performance
Authors: McKendrick Ewan
Published: September 2022

Specific performance is a remedy which orders the defendant to perform his obligations under the contract. It is an equitable remedy which is available in the discretion of the court. This chapter examines the circumstances in which the courts will make a specific performance order. Particular attention is given to the decision of the House of Lords in Co-operative Insurance Society Ltd v. Argyll Stores (Holdings) Ltd [1998] AC 1. It also considers the question whether English law should develop a more liberal approach to the availability of specific performance and recognize the existence of a general right to specific performance.
6. Privity
Authors: O'Sullivan Janet
Published: September 2022

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 privity in the law of contract. The doctrine of privity dictates that a person who is not a party to the contract cannot be granted contractual rights by the contract or be placed under contractual obligations by it. It explores the rationale of the principle, discusses the authorities that established it, and explores the various common law exceptions to the rule that a third party cannot acquire rights under a contract. This chapter also explores in detail the statutory exception to privity provided in the Contracts (Rights of Third Parties) Act 1999.
1. The meaning of a constitution
Authors: Parpworth Neil
Published: September 2022

This chapter begins with a discussion of the meaning of the term ‘constitution’. It distinguishes between a written and an unwritten constitution and outlines the special procedures for amending written constitutions. Constitutions are frequently classified according to their characteristics, and several of the more common classifications are explained in this chapter. The chapter also considers: the value of written constitutions, the unwritten nature of the UK constitution, whether the UK has a constitution, sources of the UK constitution, and the changing nature of the UK constitution. It concludes by addressing the question of whether the UK should have a written constitution.
6. The European Union
Authors: Parpworth Neil
Published: September 2022

The aims of this chapter are threefold. It first briefly considers the events that have led to the creation of the European Community (EC) and the European Union (EU). Secondly, it introduces the reader to the principal institutions of the Union: the European Council, the Council of Ministers, the European Commission, the European Parliament, and the Court of Justice of the EU and General Court. The nature and functions of each of these bodies is considered. Thirdly, the chapter indicates, where appropriate, the nature of the institutional reforms which have occurred following the ratification of the Lisbon Treaty by the member states.
17. Freedoms and liberties in the United Kingdom
Authors: Parpworth Neil
Published: September 2022

This chapter is concerned with how freedoms and liberties might be protected in the UK. It begins with an attempt to distinguish between human rights and civil liberties, whilst recognizing that this is by no means a straightforward task. It then covers political and social or economic rights, the traditional means of protecting civil liberties in the UK, the European Convention on Human Rights, the incorporation of the Convention into English law, and judicial deference/discretionary areas of judgment. The Human Rights Act 1998 is reviewed from a protection of rights perspective. Finally, the question of a Bill of Rights for the UK is considered, along with reform intentions relating to the 1998 Act.
4. Adverse Possession
Authors: Bevan Chris
Published: September 2022

This chapter explores the law of adverse possession which exists as an exception to position that interests in land can only be created when formality requirements are met. A claim to adverse possession is a claim brought by a trespasser or squatter who has been in possession of another’s land for a long period of time. If successful, the trespasser or squatter may become the legal owner of that land. The chapter discusses the justifications for adverse possession, the requirements that must be satisfied to establish a claim to adverse possession, and the effect of adverse possession on the original landowner.
9. Leases
Authors: Bevan Chris
Published: September 2022

This chapter examines the lease and its importance and place in modern land law. Leases embrace a multiplicity of contexts from the residential to the commercial to the agricultural. This chapter considers the essential nature and ingredients of a lease, focusing on the central distinguishing of leases: exclusive possession. The chapter also considers the different types of leases that exists as well as how leases are created and can be brought to an end. The key distinguishing feature of a lease as opposed to a licence is its ability to bind third parties as a proprietary right. It is this proprietary status that gives the lease its potency.
2. The institutions of government and the separation of powers
Authors: Stanton John , Prescott Craig
Published: September 2022

This chapter explores the key institutions—the legislature, the executive, and the judiciary—and considers the relevance of the principle of the separation of powers in respect of the UK Constitution. It begins with a discussion of the functions fulfilled by these institutions, including an examination of their structure and key roles, allowing fuller exploration of the separation of powers doctrine in the UK Constitution. The chapter identifies a common distinction drawn between what is known as the pure and partial separation of powers: The former favours total separation, while the latter allows a degree of overlap to the point of ensuring a system of checks and balances. Application of this distinction enables broader exploration of the UK’s application of the separation of powers doctrine.
4. Parliamentary sovereignty: an overview
Authors: Stanton John , Prescott Craig
Published: September 2022

This chapter explores the principle of parliamentary sovereignty. It defines the theory in orthodox terms set out by Dicey and explains the manner in which it has developed out of the Bill of Rights and on the back of the unsettled constitutional times that prevailed during the seventeenth century. It then sets out the legal basis for sovereignty, calling on the authority of Wade, Jennings, and Goldsworthy to explain the importance of the courts’ role in determining and providing the foundation for Parliament’s authority. Next, it explores the fundamental aspects of the orthodox theory, explaining how that operates in practice and discussing the various challenges and limitations that have arisen since the late nineteenth century. The chapter concludes by considering the position of parliamentary sovereignty today, analysing the extent to which orthodox Diceyan theory can be said still to be relevant.
14. Judicial review: procedural impropriety
Authors: Stanton John , Prescott Craig
Published: September 2022

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.
12. Derogations and Justifications
Authors: Barnard Catherine
Published: September 2022

This chapter examines the express powers given to the Member States by Union law to prevent or restrict migrants from enjoying in full the rights enjoyed by workers, the self-employed, providers/receivers of services, and of citizens in the host state. The express derogations laid down by the Treaty fall into two categories: general derogations (public policy, public security, and public health); and specific derogations (employment in the public service). It also examines the exceptions found in the Citizens’ Rights Directive 2004/38.
1. The Institutions of Employment Law
Authors: Emir Astra
Published: September 2022

This chapter explains the organisation and functions of the following institutions of employment law: the Employment Tribunal and Employment Appeal Tribunal; the Supreme Court, the Advisory, Conciliation and Arbitration Service (ACAS); the Certification Office; the Central Arbitration Committee (CAC); Director of Labour Market Enforcement; the Equality and Human Rights Commission; the Health and Safety Executive; the Health and Work Advisory and Assessment Service; and the Low Pay Commission. It also discusses the effect of the European Union (Withdrawal) Act 2018 and Brexit on UK employment law and the implications of the Human Rights Act 1998 in this area.
15. Rights in Notice
Authors: Emir Astra
Published: September 2022

One of the features which distinguish a contract of employment from other contractual situations is that a contract of employment is one of continuous obligation with, generally speaking, no specified time for its ending. If either the employer or employee wishes to terminate the contract, notice of such termination must be given. This chapter explores the rights and duties of both the parties to give and receive lawful notice in the event of a termination, ie if there is a dismissal or resignation. It also considers the taxation of payments, pay in lieu of notice, rights during the notice period, ‘garden leave’, notice pay on insolvency, and time limits.
21. Individual Trade Union Rights
Authors: Emir Astra
Published: September 2022

This chapter considers the rights of an individual in respect of his trade union membership and/or non-membership and remedies for breach of those rights. These rights exist vis-à-vis a trade union or against an actual or potential employer. They include the right not to be excluded from a union; the right not to be unjustifiably disciplined; the right to resign; the right not to be expelled; the right to have a ballot before industrial action; and the right to take time off work for trade union duties. The relevant statutory provisions are contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), which has been amended by subsequent legislation, and reference will also be made to a number of legal decisions.
23. Law Relating to Industrial Relations
Authors: Emir Astra
Published: September 2022

This chapter begins with a discussion of trade union recognition, covering voluntary recognition, statutory recognition, and employers’ training policies. It then turns to collective bargaining; statutory protections, including the definitions of ‘trade dispute’, ‘in contemplation of’, and ‘in furtherance of’ industrial action; strikes; statutory protection and loss of immunities; limits to the amount of damages which may be awarded if a trade union is sued successfully in tort; injunctions and interdicts; legal effect of collective agreements; peaceful picketing; and the European Works Councils, including time off work and protection from detriment and dismissal.
2. An overview of the English legal system
Authors: Rutherford Helen , Kotecha Birju , MacFarlane Angela
Published: September 2022

This chapter provides an introduction to some of the key concepts, themes, and institutions of the English legal system. It offers an overview that highlights fundamental concepts and principles such as parliamentary supremacy, the rule of law, legislation, the common law, and equity. There is a focus on ensuring you have a firm grasp of terminology and know the differences between the criminal law and civil law. The relationship between the English legal system and the European Union (EU) and the European Convention on Human Rights (ECHR) is also distinguished and explained. In the latter part of the chapter, a summary of the courts, their composition, and their jurisdiction, as well as other legal bodies and personnel in the English legal system, is provided.
5. The doctrine of judicial precedent
Authors: Rutherford Helen , Kotecha Birju , MacFarlane Angela
Published: September 2022

This chapter considers an essential source of law in the English legal system: judicial precedent (or ‘case law’). The rules and principles of the doctrine of judicial precedent are explored, including how precedents are created, developed, and followed. The chapter analyses the rule that forms the precedent—the ratio decidendi, or the reason for the decision—as well as the importance of other judicial statements that do not form part of those reasons—the obiter dicta. The principle of binding precedent is captured by the expression ‘stare decisis’ (stand by what is decided) and binding precedent relies on a hierarchy of courts. The hierarchy can help to establish whether a particular ratio decidendi binds a particular court and whether an appellate court is bound by its own previous precedents. The chapter is packed with case law examples and highlights the role of non-binding precedent which may still be deemed persuasive for a particular court. The relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights (ECtHR) is considered. Finally, the chapter considers how a court may avoid following a particular precedent by the process of overruling, distinguishing, or reversing.
10. Access to justice
Authors: Rutherford Helen , Kotecha Birju , MacFarlane Angela
Published: September 2022

This chapter addresses the issues and arguments surrounding access to justice. The chapter considers changes and proposed changes to legal aid provision. There is an outline of the basic principles relating to public funding in both civil and criminal cases. Different methods of funding civil legal representation are discussed including CFAs and DBAs. Organizations involved in giving legal advice, including Citizens Advice and law centres, are also included in the discussion about the availability of legal advice.
11. The criminal process: The suspect and the police
Authors: Rutherford Helen , Kotecha Birju , MacFarlane Angela
Published: September 2022

This chapter is concerned with the powers given to the police in order to investigate offences effectively, the limits to those powers, and the circumstances in which they may be exercised. It is concerned in particular with police powers to search, arrest, detain, and question suspects. The chapter also looks at the consequences that may follow when the police misuse their powers or break the rules. In relation to police interviews, it considers both the rules that protect suspects and the extent to which the right to silence has been eroded. Finally, the chapter examines who decides whether to bring a prosecution against a particular suspect and the criteria that are taken into account in making that decision.
13. The jury
Authors: Rutherford Helen , Kotecha Birju , MacFarlane Angela
Published: September 2022

A 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 chapter explains the rules on eligibility for, and disqualification or excusal from jury service. It considers 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, 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.
14. Sentencing
Authors: Rutherford Helen , Kotecha Birju , MacFarlane Angela
Published: September 2022

This chapter explains the aims of sentencing and discusses the types of sentence that may be imposed upon a convicted offender. The main sentencing options available to a court when an adult is convicted of a criminal offence include: absolute and conditional discharges, fines, community orders, and imprisonment. Custodial sentences include extended determinate sentences, the new sentence for offenders of particular concern, and life sentences. A custodial sentence has punishment as its primary purpose, whereas a community order focuses on reform and rehabilitation. The chapter outlines the key types of sentence that can be imposed upon youth offenders and discusses restorative justice initiatives. It explores the factors to which the judge or magistrates must have regard when passing sentence, including maximum/minimum sentences, the nature and seriousness of the offence, sentencing guidelines and pre-sentence reports.
17. Tribunals
Authors: Rutherford Helen , Kotecha Birju , MacFarlane Angela
Published: September 2022

Tribunals have operated for over 200 years. They are 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. 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. It explains the ways in which tribunal decisions may be challenged, either by an appeal to another tribunal or to the courts, or through judicial review. The chapter examines the advantages of tribunals over courts and considers whether tribunals are becoming too much like the mainstream courts.
18. Criminal and civil appeals
Authors: Rutherford Helen , Kotecha Birju , MacFarlane Angela
Published: September 2022

As seen in previous chapters, the appeal court system in England and Wales is hierarchical. This chapter is concerned with the various mechanisms by which the decisions of courts may be appealed or reviewed. It explores the grounds for appeals in criminal cases, including the concepts of ‘fresh evidence’ and ‘lurking doubt’. 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.
19. Parties and Joinder
Authors: Sime Stuart
Published: September 2022

This chapter first looks at the rules relating to different classes of party and then considers the rules governing multi-party litigation. Topics discussed include description of parties; particular classes of party; vexatious litigants; joinder; representative proceedings; representation of unascertained persons; intervention; consolidation; stakeholder claims; assignment; and group litigation.
22. Amendment
Authors: Sime Stuart
Published: September 2022

Changes in the parties’ knowledge of a case as it progresses and straightforward drafting errors make it necessary on occasion to make amendments to the statements of case. This chapter discusses amendment by consent; amendment without permission; principles governing permission to amend; amendment after the expiry of the limitation period; and procedure on amending.
27. Small Claims Track
Authors: Sime Stuart
Published: September 2022

The Civil Procedure Rules 1998 (CPR) provide for the allocation of claims with a limited financial value to what is known as the small claims track. This is intended to provide a streamlined procedure with limited pre-trial preparation, with very restricted rules on the recovery of costs from the losing party, and without the strict rules of evidence. It is appropriate for the most straightforward types of cases, such as consumer disputes, accident claims where the injuries suffered are not very serious, disputes about the ownership of goods, and landlord and tenant cases other than claims for possession. This chapter discusses provisions of the CPR that do not apply; standard and special directions of the court; determination without a hearing; final hearings in small claims track cases; cost restrictions for claims allocated to the small claims track; and rehearings.
29. Multi-Track
Authors: Sime Stuart
Published: September 2022

The multi-track deals with a vast range of cases, from simple contractual disputes involving little more than £25,000, to complex commercial cases involving difficult issues of fact and law with values of several million pounds, to cases where perhaps no money is at stake but which raise points of real public importance. Cases on the multi-track will generally be dealt with either in the Royal Courts of Justice or other civil trial centre. This chapter discusses agreed directions; case management conferences; fixing the date for trial; pre-trial checklists; listing hearings; pre-trial review; directions given at other hearings; and variation of case management timetable.
31. Disclosure
Authors: Sime Stuart
Published: September 2022

The Civil Procedure Rules 1998 (CPR) require the parties to give advance notice to their opponents of all the material documentation in their control. This is done in two stages. At the first stage the parties send each other lists of documents, a process called ‘disclosure’. The second stage is ‘inspection’, which is the process by which the other side can request copies of documents appearing in the list of documents, typically with photocopies being provided by the disclosing party. This chapter discusses these processes. It covers lawyers’ and clients’ responsibilities; the stage when disclosure takes place; disclosure orders; standard disclosure; menu option disclosure; duty to search; list of documents; privilege; inspection; orders in support of disclosure; documents referred to in statements of case, etc.; admission of authenticity; and collateral use.
38. Listing and Pre-Trial Reviews
Authors: Sime Stuart
Published: September 2022

Claims that are not compromised and which do not end through striking out or summary or default judgment, have to be determined by the court at trial. Listing is the process whereby the court gives a date for the trial. This chapter discusses listing for trial; pre-trial reviews; listing in the Royal Courts of Justice; and adjournments.
43. Freezing Injunctions
Authors: Sime Stuart
Published: September 2022

This chapter discusses the rules on freezing injunctions. A freezing injunction is an interim order restraining a party from removing assets located within the jurisdiction out of the country, or from dealing with assets whether they are located within the jurisdiction or not. The order is usually restricted to assets not exceeding the value of the claim. The main purpose of a freezing injunction is to prevent the injustice of a defendant’s assets being salted away so as to deprive the claimant of the fruits of any judgment that may be obtained.
46. Costs
Authors: Sime Stuart
Published: September 2022

This chapter focuses on legal costs. It discusses the two main principles for deciding which party should pay the costs of an application or of the whole proceedings; the rule that costs follow the event; range of possible costs orders; interim costs orders; indemnity principle; basis of quantification; proportionality; summary and detailed assessments; fast track fixed costs; fixed and scale costs; costs and track allocation; publicly funded litigants; pro bono costs orders; costs against non-parties; and wasted costs orders.
47. Qualified One-Way Costs Shifting
Authors: Sime Stuart
Published: September 2022

Qualified one-way costs shifting (QOCS) provides costs protection to claimants in personal injuries claims. If the claimant wins, the defendant should be ordered to pay the claimant’s costs in the usual way. However, if the claimant loses, under QOCS, while the claimant remains liable to pay its own lawyers’ costs, and may be ordered to pay the successful defendant’s costs, the claimant will be protected against actually having to pay those costs to the defendant. This chapter discusses cases where QOCS applies; the effects of QOCS; and loss of QOCS protection.
2. Corporate personality and limited liability
Authors: Dignam Alan , Lowry John
Published: September 2022

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 deals with corporate personality and limited liability, two concepts that form the core of company law. It begins with a short historical background on how the process of corporatisation through charters evolved over time, including the emergence of the use of trust as an instrument to confer many of the privileges of incorporation. It then considers the case Salomon v Salomon & Co (1897) which decided on the legitimacy of small businesses with a corporate form, and offers some other good examples of the consequence of separate personality. The chapter also discusses the rights of members and shareholders with respect to ownership of the corporation, focusing on dispersed shareholdings and close companies.
3. Lifting the veil
Authors: Dignam Alan , Lowry John
Published: September 2022

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 discusses ‘lifting the veil’, a phrase that refers to situations where the judiciary or the legislature have decided that the separation of corporate personality from the members must not be maintained. In this case, the veil of incorporation is said to be lifted. ‘Lifting’ is also known as ‘peeping’, ‘penetrating’, ‘piercing’, or ‘parting’. The chapter presents statutory examples of veil lifting, many of which involve corporate group structures and others involve straightforward shareholder limitation of liability issues. It also considers cases of veil lifting by the courts as well as classical veil lifting during the periods of 1897 to 1966, 1966 to 1989, and 1989 to the present. Four cases are highlighted: Adams v Cape Industries (1990), Chandler v Cape Plc (2012), Prest v Petrodel Industries Ltd (2013), and Hurstwood Properties (A) Ltd and others v Rossendale Borough Council and another (2021) as well as important recent case development. The chapter also examines claims of tortious liability, the liability of a parent company for personal injury, and commercial tort. Finally, it looks at the costs and benefits of limited liability.
5. Raising capital: equity and its consequences
Authors: Dignam Alan , Lowry John
Published: September 2022

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 focuses on raising equity from the general public and its consequences for the operation of the company. It begins by outlining the basics of raising equity before turning to the consequences of operating in a public market, with emphasis on areas such as takeovers and insider dealing. It then considers the distinction between public and private companies in terms of capital raising, how such companies are regulated, and how public companies differ from listed companies. It also discusses various methods of raising money from the public, the role of the Financial Conduct Authority and the London Stock Exchange in ensuring the proper functioning of the listed market in the UK, and the regulation of listed companies as well as takeovers and other public offers.
7. Share capital
Authors: Dignam Alan , Lowry John
Published: September 2022

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 how company law governs maintenance of a company’s share capital, with emphasis on the distinction between private and public companies. It also discusses various ways in which shareholders might legally receive funds (‘distributions’) from the company, including issuance of shares and payment of shares in kind (that is, goods, property, or services rather than in cash). The relevance of the nominal value of shares issued to shareholders, the issue of paying dividends to shareholders, and disguised return of capital to shareholders are considered as well. The chapter also examines two other means of returning funds to shareholders, reduction of share capital and redemption or purchase by a company of its own shares, before concluding with an assessment of the prohibition and the exceptions concerning the issue of financial assistance for the acquisition of shares in a public company.
10. Derivative claims
Authors: Dignam Alan , Lowry John
Published: September 2022

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 derivative action as a means of safeguarding minority shareholders against abuses of power and its implications for the principle of majority rule. It begins by analysing the rule in Foss v Harbottle (1843), which translates the doctrine of separate legal personality, the statutory contract, the ‘internal management principle’, and the principle of majority rule into a rule of procedure governing locus standi (that is, who has standing to sue), as well as the exceptions to that rule. It then considers various types of shareholder actions, including personal claims, representative actions (group litigation), and derivative claims. It also discusses derivative claims under the Companies Act 2006, with emphasis on the two-stage process of the application for permission to continue a derivative claim. The chapter concludes by assessing bars to a derivative action, together with liability insurance and qualifying third party indemnity provisions.
11. Statutory shareholder remedies
Authors: Dignam Alan , Lowry John
Published: September 2022

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 deals with statutory remedies available to aggrieved minority shareholders, particularly their right to seek relief through a winding-up order on the just and equitable ground. It first considers the classic case of Ebrahimi v Westbourne Galleries Ltd (1973), which addressed the scope of the court’s jurisdiction under the just and equitable ground, and presents illustrations of the grounds which will support a petition under s 122(1)(g) of the Insolvency Act 1986. It also examines the issue of whether the principles promulgated in Ebrahimi extend beyond the statutory context of just and equitable winding-up. In addition, the chapter discusses the elements of unfair prejudice; explains locus standi and procedural aspects of s 994 of the Companies Act 2006 together with the remedies contained in s 996; it also considers other specific statutory rights available to aggrieved minority shareholders. Finally, it explains the Law Commission’s proposed reforms for the unfair prejudice provision.
4. Constitution
Authors: McDonald Iain , Street Anne
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. When a person transfers legal title to another, the legal title is said to vest in the other person. This chapter considers the rules for the transfer of title (ownership) in property in relation to different types of property. The general principle is that unless the property has been transferred by the correct legal rules then the transfer fails; it is said to be imperfect. The chapter begins by briefly considering the legal rules in relation to validly transferring property to another person. It then deals with equitable rules which have developed to overcome the strict application of the legal rules of vesting.
10. Variation of trusts
Authors: McDonald Iain , Street Anne
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the circumstances in which the courts may approve the variation of a trust. A trust may be varied: by a power within the trust itself; by the collective consent of the beneficiaries; by the court, through its inherent jurisdiction; or by statute. The power of the courts to intervene will depend on whether the variation relates to administrative or managerial matters or a reorganization of the beneficial interests. The Variation of Trusts Act 1958 gives the courts a wide jurisdiction to vary a trust for the benefit of those beneficiaries unable to consent.
11. Trustees’ duties and powers
Authors: McDonald Iain , Street Anne
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the main duties and powers of trustees. Rather than rigidly separating duties and powers, it presents the duties and powers of trustees in a way which reflects how they might arise during the operation of a trust. It first addresses the initial questions of the appointment, removal, and payment of trustees. It then examines issues arising on appointment to the trust and the fiduciary nature of trustees’ duties. Finally, it examines issues likely to arise during the administration of the trust, including the trustees’ powers of investment, beneficiaries’ right to information about the trust, and trustees’ powers of maintenance and advancement.
4. Strict liability
Authors: Herring Jonathan
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the crime of strict liability. A strict liability offence is one which does not require mens rea in respect of at least one element of the actus reus. Strict liability is often referred to as no-fault liability. Strict liability is very rare at common law. Where a statute is silent as to mens rea, the judge must interpret the provision to decide if the offence has mens rea (the starting point) or is one of strict liability. There is a debate about whether the imposition of criminal liability in the absence of proof of fault can be justified.
12. Fraud
Authors: Herring Jonathan
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the crime of fraud. The offence of fraud is governed by the Fraud Act 2006. There is only one offence of fraud (s 1 Fraud Act 2006) with three ways of committing it, under ss 2–4. These are: by false representation, by failing to disclose information, and by abuse of position.
14. Defences I
Authors: Herring Jonathan
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter examines the defences of age, insanity, automatism, intoxication, and mistake. If D is under the age of ten, he is deemed incapable of criminal liability. Insanity is where D proves he had a disease of mind which caused a defect of reason so that D did not know the nature and quality of his act or that it was wrong. Non-insane automatism is an assertion by D that the prosecution cannot prove the actus reus of the offence because D was not in control of his muscular movements. Intoxication rarely succeeds as a defence. Involuntary intoxication is a defence if D does not form mens rea. Voluntary intoxication is a defence only if D is charged with a specific intent crime and D did not form mens rea. Mistake is a defence provided the mistake prevents D forming mens rea.
15. Defences II
Authors: Herring Jonathan
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter examines the defences of consent, self-defence (which includes using reasonable force in the defence of oneself, defence of others, of property, and the prevention of crime), and duress (which consists of being compelled to commit a crime to avoid death or serious harm in a situation of immediacy where there is no route of escape). Duress is an excusatory defence; consent and self-defence are justificatory defences. If the defence of necessity does exist separately to the defence of duress, it is a justificatory defence.
2. Negligence I: Duty of Care
Authors: Dyer Dr Karen , Balan Dr Anil
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses negligence in terms of duty of care. In order to answer questions on this topic, students need to have the following: a general understanding of the tort of negligence; an understanding of the development of duty of care in negligence, in particular the key cases of Donoghue v Stevenson [1932] AC 562; Anns v Merton LBC [1978] AC 728; Caparo plc v Dickman [1990] 2 AC 605; an understanding of the development of duty of care in specialized aspects of negligence; and understanding of liability for omissions and of public authorities.
4. Negligence III: Causation and Remoteness of Damage
Authors: Dyer Dr Karen , Balan Dr Anil
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses negligence in terms of causation and remoteness of damage. To answer questions on this topic, students need to understand the following: the concept of causation in negligence; causation in fact: the standard ‘but for’ test; variations of the ‘but for’ test: unknown causes, consecutive causes, and cumulative causes; causation in law: the test for ‘remoteness of damage’; the ‘eggshell-skull’ rule; and novus actus interveniens (new intervening acts): the act of the claimant, the act of third parties, and natural events.
7. Occupiers’ Liability
Authors: Dyer Dr Karen , Balan Dr Anil
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the issue of occupiers’ liability. In order to answer questions on this topic, students need to understand the following: the Occupiers’ Liability Act 1957; the Occupiers’ Liability Act 1984; the ‘control test’—how ‘occupiers’ have been identified by the courts; the difference between a ‘visitor’ and a ‘non-visitor’, and the legal differences that arise; how the courts have interpreted ‘reasonable care’; the concept of ‘breach of duty’ and ‘causation’ in negligence; excluding or restricting negligence liability under s. 65 Consumer Rights Act 2015; and general defences in tort law.
13. Mixed-topic Questions
Authors: Dyer Dr Karen , Balan Dr Anil
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter presents mixed-topic questions on tort law. In order to answer them fully, students are required to blend their knowledge of the law of tort. They will be able to assess their knowledge on: the purpose of the law of tort; negligence—duty of care, breach, causation, economic loss; remedies; and vicarious liability. Each question is accompanied by a diagram answer plan and suggested answers. Tips for getting extra marks and online resources are also provided.
14. Skills for Success in Coursework Assessments
Authors: Dyer Dr Karen , Balan Dr Anil
Published: September 2022

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses how students can structure their answers to coursework questions, and exposes common errors that students make when undertaking coursework. The starting point for obtaining a good grade in an exam is to answer the question set. It is even more important to do so for coursework questions, as students are usually given plenty of time to plan and prepare their answers, and to ask for additional support if needed. Whether answering a problem question or an essay question, students are required to produce a convincing argument using ‘evidence’ from case law, statutory provisions, and academic literature.
3. Preliminary rulings
Authors: Homewood Matthew J. , Smith Clare
Published: September 2022

This chapter discusses Article 267 of the Treaty on the Functioning of the European Union (TFEU). Article 267 TFEU gives the Court of Justice jurisdiction to deliver preliminary rulings on the validity and interpretation of EU law. The primary purpose of Article 267 is to ensure that EU law has the same meaning and effect in all the Member States. Where it considers a decision on a question of EU law is necessary to enable it to give judgment, any court may refer that question to the Court of Justice (the discretion to refer). Where a question of EU law is raised before a national court of last resort, that court must refer it to the Court of Justice (the obligation to refer).
6. Free movement of persons
Authors: Homewood Matthew J. , Smith Clare
Published: September 2022

This chapter discusses the law on the free movement of persons in the EU. Free movement of persons is one of the four ‘freedoms’ of the internal market. Original EC Treaty provisions granted free movement rights to the economically active: workers, persons exercising the right of establishment, and persons providing services in another Member State. The Treaty also set out the general principle of non-discrimination on grounds of nationality, ‘within the scope of application of the Treaty’. All these provisions are now contained in the Treaty on the Functioning of the European Union (TFEU). Early secondary legislation granted rights to family members, students, retired persons, and persons of independent means. The Citizenship Directive 2004/38 consolidated this legislation.