bluuebunny/crossref_metadata_2025 huggingface dataset:
11. Financial Orders following divorce or dissolution
Authors: Sendall Jane
Published: August 2018

This chapter discusses the factors that a court will take into account when deciding on the division of money and property following a divorce or dissolution of a civil partnership. It introduces the main concepts in proceedings for financial orders under the Matrimonial Causes Act 1973; examines the factors considered by the court when deciding on financial orders; and discusses the principal case law arising from proceedings for financial orders.
15. Variation, Collection, and Enforcement of Financial Orders
Authors: Sendall Jane
Published: August 2018

Gaining a financial order is sometimes not the end of proceedings. A disgruntled spouse or civil partner may refuse to comply with the terms of an order, even a consent order, and so a family law solicitor must be able to use enforcement mechanisms to enforce the court order. This chapter discusses the circumstances in which a financial order can be varied, the collection of monies due under financial orders, and the enforcement of financial orders.
17. Separation and Maintenance Agreements
Authors: Sendall Jane
Published: August 2018

This chapter discusses the use of separation and maintenance agreements, the essential features of both types of agreements, and the advantages and disadvantages of separation and maintenance agreements. A separation or maintenance agreement can help parties avoid expensive, drawn-out litigation. Separation agreements essentially record that the parties wish to live apart and can include terms about children, property, and maintenance. Maintenance agreements deal with the payment of maintenance to or for the benefit of spouses, civil partners, or children, but do not deal with the separation of the parties.
18. Child Support
Authors: Sendall Jane
Published: August 2018

The Child Support Act 1991 introduced a mechanism to recover maintenance from absent parents for their children. It created the Child Support Agency (CSA) as the organization responsible for collecting child support maintenance. This chapter discusses the framework of child support; when a client may be required to pay child support; what a client can do if they do not receive child support; and the future of child support. It examines the CSA scheme, which commenced in 2003, and the Child Maintenance Service, which opened its doors on 29 July 2013.
26. Private Children Law
Authors: Sendall Jane
Published: August 2018

Private children law concerns disputes between family members about children. It deals with whom a child shall live, with whom they should have contact, and what steps a parent can take in their exercise of parental responsibility. The Children Act 1989 has orders that the court can make to help to resolve these disputes. This chapter examines the orders available in private children proceedings, who can apply for them, and the individual considerations of each order. These include residence orders, contact orders, specific issuer orders, prohibited steps orders, and special guardianship orders.
27. Private Children Law Procedure
Authors: Sendall Jane
Published: August 2018

This chapter covers the basic procedure for a s8 Children Act 1989 (CA 1989) order. It discusses who is eligible to apply for an order under s8 CA 1989; public funding available for proceedings under the CA 1989; and the procedure for obtaining an order under the CA 1989 in private law proceedings.
37. Protection from Harassment
Authors: Sendall Jane
Published: August 2018

Family lawyers may be consulted by those who are being harassed or stalked by someone who is not an associated person. This chapter discusses the law on harassment and the remedies available to clients not protected by the Family Law Act 1996. It details the Protection from Harassment Act 1997, which was enacted to assist those suffering harassment through stalking, antisocial behaviour, or racial harassment.
2. Principles of Registered Land
Authors: Bevan Chris
Published: August 2018

This chapter presents an overview of the Land Registration Act 2002 (LRA 2002), which governs land registration today, its objectives, mechanics, as well as exploring when land can and must be registered. The LRA 2002 (which came into force in October 2003) is the primary source for the title registration system and provides the statutory framework for the modern law, supplemented by Land Registration Rules which add flesh to the bones of the Act. Registration has, however, been around for far longer. Today's system is the product of a series of incremental developments in statute from the Acts of 1862, 1875, and 18979 to the Land Registration Acts of 1925 and 1997.
5. Co-ownership
Authors: Bevan Chris
Published: August 2018

This chapter discusses the law of co-ownership. Co-ownership is the name given to the situation where two or more people own land at the same time. This land may be freehold or it may be leasehold. The chapter considers questions such as how does the law deal with disputes over the family home when spouses face relationship breakdown, often with one partner wishing to remain in the home, perhaps with children? Whose interest prevails, the individual or the bank, when a co-owner finds herself in serious debt? The law of co-ownership represents an amalgam of common law rules and statutory provisions, most notably under the provisions of the Law of Property Act 1925 and the Trusts of Land and Appointment of Trustees Act 1996.
8. Leases
Authors: Bevan Chris
Published: August 2018

Leases embrace a multiplicity of contexts from the residential to the commercial to the agricultural. Whether a lease is residential, commercial, or agricultural gives rise to quite distinct consequences as to how the lease operates. This chapter considers the lease whose central distinguishing feature from the licence is its ability to bind third parties as a proprietary right. It begins by reflecting on the importance and place of the lease both in modern land law and for everyone as citizens It then discusses the nature of leases; the essential elements of leases; types of leases; creation of leases; termination of leases; and leasehold covenants.
10. Covenants in Freehold Land
Authors: Bevan Chris
Published: August 2018

This chapter considers covenants in freehold land — also known as ‘freehold covenants’. As the name suggests, these are promises made between freehold owners of land. For example, imagine that Anna owns a plot of land which adjoins another parcel of land belonging to Ben. Anna may covenant (i.e. promise) to ensure the frontage of her house is painted annually to maintain the amenity of the area. Ben may also covenant not to run a commercial enterprise on his property. These promises are freehold covenants. The chapter discusses the nature of covenants in freehold land; enforcing freehold covenants; enforcing positive freehold covenants; discharge and modification of freehold covenants; and reform of freehold covenants.
5. Soft Law in International Law-Making
Authors: Boyle Alan
Published: August 2018

From a law-making perspective the term ’soft lawʼ is in most cases simply a convenient description for a variety of non-legally binding instruments used in contemporary international relations by States and international organizations. Soft law in this sense can be contrasted with hard law, which is always binding. Non-binding soft law instruments are not law per se, but may be evidence of existing law, or formative of the opinio juris or State practice that generates new customary law. They may additionally acquire binding legal character as elements of a treaty-based regulatory regime, or constitute a subsequent agreement between the parties regarding interpretation of a treaty or application of its provisions. Other non-binding soft-law instruments are significant mainly because they are the first step in a process eventually leading to conclusion of a multilateral treaty, or because they provide the detailed rules and technical standards required for the implementation of a treaty. An alternative view of soft law focuses on the contrast between ’rulesʼ, involving clear and reasonably specific commitments which are in this sense hard law, and ’normsʼ or ’principlesʼ, which, being more open-textured or general in their content and wording, can thus be seen as soft even when contained in a binding treaty. It is a fallacy to dismiss soft law because it does not readily fit a theory of what is ‘law’: properly understood, it can and does contribute to the corpus of international law-making.
11. International Law and Restraints on the Exercise of Jurisdiction by National Courts of States
Authors: Webb Philippa
Published: August 2018

This chapter examines the methods by which States prevent their national courts from deciding disputes that relate to the internal affairs of another State. It considers three main ‘avoidance techniques’: State immunity, act of State, and non-justiciability. It discusses the arguments for and against the current prohibition on the determination of one State’s disputes in the national courts of another State, and identifies the challenges presented by the rule of law, an individual’s right of access to court, and the implementation of jus cogens norms to the maintenance of these avoidance techniques. It concludes with the observation that the pendulum continues to swing between prioritizing sovereignty by protecting the activities of States from judicial scrutiny and calling for greater accountability and remedies for violations of international law.
15. Issues of Admissibility and the Law on International Responsibility
Authors: Okowa Phoebe
Published: August 2018

This chapter examines the legal regime governing the admissibility of claims in international adjudication. Particular attention is paid to the modalities of establishing legal interest in respect of claims brought by States in their own right and on behalf of their nationals. The role of nationality is examined and the problems posed by competing claims in relation to multiple nationalities are explored. The unique nature of the problems raised in extending diplomatic protection to corporations and shareholding interests is considered in light of the jurisprudence of international tribunals. The final section considers the ambit of the rule on exhaustion of local remedies and its effect on the admissibility of claims. The parameters of the rule are explored and circumstances when, as a matter of policy, it ought to be regarded as inapplicable are discussed.
16. The Responsibility to Protect
Authors: Zifcak Spencer
Published: August 2018

This chapter discusses the responsibility to protect, which has become the primary conceptual framework within which to consider international intervention to prevent crimes against humanity; it provides the background to the new doctrine’s appearance with a survey of the existing law and practice with respect to humanitarian intervention. It traces the doctrine’s intellectual and political development both before and after the adoption of the World Summit resolutions that embodied it. Debate about the doctrine has been characterized by significant differences of opinion and interpretation between nations of the North and the South. In that context, the chapter concludes with a detailed consideration of the contemporary standing of the doctrine in international law.
18. The Means of Dispute Settlement
Authors: Merrills John
Published: August 2018

This chapter discusses the various methods available for the peaceful settlement of international disputes. These include diplomatic methods (negotiation, mediation, inquiry, and conciliation), and legal methods (arbitration, the International Court of Justice, other courts and tribunals, and the place of legal methods). The role of the United Nations and regional organizations is also considered.

Discussion covers the role of international law and its place in international relations, and dispute settlement generally. The text is illustrated with analysis of current and past disputes in which the various methods have been used—either successfully or unsuccessfully. The historical record shows first, that over the last two hundred years huge progress has been made in developing and refining the methods for handling international disputes, and secondly, that despite, or perhaps because of, differences between the various methods, their interaction and use in combination are often important factors in determining their effectiveness in practice.
19. The International Court of Justice
Authors: Thirlway Hugh
Published: August 2018

The International Court of Justice (ICJ), which is defined in the UN Charter as the ‘principal judicial organ’ of the United Nations, is a standing mechanism for the peaceful settlement of disputes between States. It may also give advisory opinions on the law, at the request of the Security Council and General Assembly, or of other UN organs and specialized agencies that are so authorized by the General Assembly. No dispute can be the subject of a decision of the Court unless the States parties to it have consented to the Court’s jurisdiction over that specific dispute. This chapter discusses the history, structure, and composition of the Court, the ways in which jurisdiction is conferred upon it, its procedure, and the nature and effect of decisions (judgments and advisory opinions) of the ICJ.
25. International Human Rights Law
Authors: Rodley Nigel
Published: August 2018

This chapter considers the background to, and current developments concerning the manner in which international law has engaged with the protection of human rights, including both civil and political rights and economic, social, and cultural rights. It looks at historical, philosophical, and political factors which have shaped our understanding of human rights and the current systems of international protection. It focuses on the systems of protection developed by and through the United Nations through the ‘International Bill of Rights’, including the Universal Declaration of Human Rights, the UN human rights treaties and treaty bodies, and the UN Special Procedures as well as the work of the Human Rights Council. It also looks at the systems of regional human rights protection which have been established.
26. International Refugee and Migration Law
Authors: Gilbert Geoff , Rüsch Anna Magdalena
Published: August 2018

This chapter explores the definition of refugee status in international law, its scope and limitations and consequent protection gaps for those forcibly displaced, including internally displaced persons (IDPs), who have crossed no international border. There is no equivalent definition for migrants, but like refugees, asylum-seekers, and IDPs, international human rights law provides a framework for their protection. The chapter explains the difference between refugee status and asylum, focusing on non-refoulement in international law. It discusses the rights that are guaranteed during displacement, particularly those pertaining to detention and humanitarian relief. Given that refugee status is intended to be temporary, the final section looks at cessation and durable solutions, either following voluntary return, through local integration, or resettlement in some third State.
27. The Law of Armed Conflict (International Humanitarian Law)
Authors: Turns David
Published: August 2018

The international law of armed conflict (also known as international humanitarian law or the law of war) regulates the conduct of hostilities—including the use of weaponry—and the protection of victims in situations of both international and non-international armed conflict. Rooted in customary law, often of very great antiquity, since the late nineteenth century it has become one of the most intensively codified areas of international law. This chapter outlines the scope of application of the law; issues of personal status (combatants and civilians); the conduct of hostilities (methods and means of warfare, including choice of weapons and targeting operations); the protection of victims (sick, wounded, shipwrecked, prisoners of war, and civilians); and various ways of securing the law’s implementation and enforcement.
2. Constitutional Organisations, Institutions, and Roles
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 describes the UK’s main constitutional bodies or offices and their roles. The state’s institutions and offices are linked to the three main powers at work within it: executive power, legislative power, and judicial power. The Queen is the head of state for the United Kingdom of Great Britain and Northern Ireland, and heads the three branches of the state, although she is a constitutional monarch and her power is subject to constitutional limits. The executive is an umbrella term that describes two different entities: the political executive and the wider machinery of the government. The political executive contains the Prime Minister and government ministers. The wider machinery of government involves the collection of people who keep the country running, which includes the civil service, the police, the armed forces, members of executive agencies such as the Prison Service and the welfare benefits system. Parliament is the body tasked with law-making, the scrutiny of Bills, and holding the executive accountable. The courts oversee the operation of the rule of law by reviewing actions, omissions, and decisions taken by the executive to ensure that they are legal, rational, and procedurally proper, and comply with the terms of the Human Rights Act 1998. The chapter concludes with a discussion of elections to the Westminster Parliament—the mechanism through which MPs are elected and other ways in which those elections could be run.
6. The Crown and Royal Prerogative
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 royal prerogative is a special form of common law that may be exercised by the Crown, either through the Queen as monarch (her personal prerogative) or through the executive as Her Majesty’s government (the political prerogative). This chapter begins by tracing the history and development of the royal prerogative, and the role of the Crown in the exercise of these powers, and then addresses the division between prerogative powers that are personally exercised by the Queen and those that are exercised on her behalf by the political executive. Next, it turns to the respective roles of Parliament and the courts in the operation and development of prerogative powers, considering the relevance of those powers today and proposals for reform, in part, in the context of the case study on the use of the Royal prerogative to trigger article 50 and take the UK closer to leaving the EU.
8. Membership of the European Union
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 provides an overview of the relationship between the European Union and the UK, and the impact of this relationship on Parliament’s legislative supremacy, begins by considering the nature of the EU and the sources of EU law. It then examines how EU membership affects the UK legal order, and its implications for parliamentary supremacy, and also discusses what the reform of the EU means for parliamentary supremacy. It considers, briefly, the impact of different Brexit options on the UK’s constitutional framework.
11. Executive Power and Accountability
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 examines the nature and extent of executive power, begins by defining executive power, and by explaining where it is derived and who may exercise it. It then discusses the mechanisms by which an executive can be called to account for its exercise of power; the extent to which Parliament may hold the government accountable; and the extent that courts may hold the government accountable.
18. Procedural Impropriety
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. A public authority must have the legal power to act; if that power is conferred by statute, it may also specify the procedure that must be used prior to an action or a decision being taken. This is what is known as a ‘statutory procedure’, because it is specified in a statute. The statute may, for example, require the authority to give notice of its intention to take action in a certain way, to consult interested groups, or to tell individuals that they have the right to appeal from an adverse decision. If the authority does not comply, then this is a breach of the statutory procedure and may be reviewed as a procedural impropriety. This chapter discusses the judicial review of procedural impropriety. It covers the rules of natural justice; the right to be heard; legitimate expectation; the detailed requirements of natural justice; the rule against bias; and Article 6 of the European Convention on Human Rights.
4. Strict, vicarious and corporate liability
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter examines the concept of strict, vicarious and corporate liability in the context of criminal law. It discusses the implications of strict liability for actus reus and mens rea, evaluates arguments for and against strict liability, and considers the treatment of strict liability under the European Convention on Human Rights (ECHR). The chapter explains the principle of corporate liability, highlights the problems in prosecuting a corporation for a serious crime and explains the key provisions of the Corporate Manslaughter and Corporate Homicide Act (CMCHA) 2007 in Great Britain. It also provides several examples of relevant cases and analyses the bases of court decision in each of them.
7. Homicide 2: voluntary and involuntary manslaughter
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter examines the provisions of criminal law for voluntary and involuntary manslaughter in Great Britain, explaining that voluntary manslaughter refers to intentional killings while involuntary manslaughter may be caused by recklessness, gross negligence, or dangerous and unlawful acts. Voluntary manslaughter must have the actus reus and mens rea for murder but must also have a partial defence. This chapter discusses the concept of partial defences of loss of control and diminished responsibility aswell as that of suicide pact under the Homicide Act 1957. The chapter also considers other homicide-related offences such as infanticide and causing death by dangerous, careless, or inconsiderate driving, and analyses court decisions in several relevant cases.
15. Inchoate offences: attempt, conspiracy and assisting and encouraging under the Serious Crime Act 2007
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter examines different types of inchoate offences in Great Britain, which include attempt, conspiracy, and encouraging or assisting. It explains the conditions of liability for these offences, discusses the relevant provisions of the Serious Crime Act 2007, clarifies the general principles of these offences, and identifies their actus reus and mens rea elements. It also explores and clarifies the difference between these offences. The chapter discusses the three offences that replace the common law offence of incitement which apply to one who ‘facilitates’ another’s offence. Examples of relevant cases and analyses of court decisions in each of them are also provided.
10. Local Government
Authors: Loveland Ian
Published: August 2018

This chapter examines the institution of local government. The discussions cover localism, tradition, and the ‘modernisation’ of local government; local government’s constitutional status in the early-twentieth century; the fiscal autonomy of local government; the role of the judiciary; council housing; grant penalties and ratecapping; collective politics and individual rights; the abolition of the Greater London Council and metropolitan counties; privatising local government; and the Blair government’s reforms.
14. Procedural Grounds of Judicial Review
Authors: Loveland Ian
Published: August 2018

This chapter examines the procedural grounds of judicial review. It discusses how the courts have used the procedural fairness doctrine by reviewing a number of leading cases to identify the values that appear to be shaping the content of the law. The analysis focuses on case law drawn from the ‘modern’ (ie post-1960) era, but several seminal decisions from earlier periods are also considered. The concept of procedural fairness has generated a vast body of case law in the modern era and will continue to do so in future. But the law on this point, even when seen in conjunction with the law relating to the traditional substantive grounds on which government action can be held unlawful, offers only a partial picture of the way in which administrative law fits into the broader constitutional principles of the rule of law and the sovereignty of Parliament.
15. Challenging Governmental Decisions: The Process
Authors: Loveland Ian
Published: August 2018

This chapter examines the legal procedures an applicant must follow when challenging a government decision. It starts by examining the historical duality with English administrative law of the mechanism through which citizens might question the lawfulness of government action. The chapter then continues to cover the case of Barnard v National Dock Labour Board; the Order 53 reforms; the case of O’Reilly v Mackman (1982); the post-O’Reilly case law; the case of Roy v Kensington and Chelsea and Westminster Family Practitioner Committee; and public law principle as a defence in criminal proceedings.
22. Human Rights VI: Governmental Powers of Arrest and Detention
Authors: Loveland Ian
Published: August 2018

This chapter examines government powers of arrest and detention. Section I provides a three-part analysis of police powers to restrict an individual’s physical liberty. The first part considers powers of ‘arrest’, the second addresses powers of detention that arise consequent upon arrest but before the detained person is charged with any offence, and the third considers situations in which a person can lawfully be detained without actually being arrested. Section II discusses the deprivation of liberty for ‘terrorist’ offences, specifically powers of arrest and detention from 1945 to 1977, and in the post-1977 era.
23. A Revolution by Due Process of Law? Leaving the European Union
Authors: Loveland Ian
Published: August 2018

This chapter analyses the conduct and constitutional implications of the United Kingdom’s proposed withdrawal from the European Union. The chapter begins by examining the legal basis, conduct, and result of the withdrawal referendum. The chapter then assesses the High Court and Supreme Court judgments in the Miller litigation. It continues with a discussion on the extreme positions of ‘hard brexit’ and ‘soft brexit’ and the unexpected 2017 general election. It concludes by discussing the initial parliamentary stages of the European Union Withdrawal Bill.
4. Effective disposition of benefit: constitution of trusts
Authors: Watt Gary
Published: August 2018

This chapter explains the reasons why a trust must be completely constituted in order to be valid and discusses the steps that must be taken in order to constitute a trust. Constitution matters because the beneficiaries of an incompletely constituted trust are ‘mere volunteers’ and therefore will not be assisted by equity. In other words, they do not have any rights in the trust property and thus cannot enforce the trust in court. Following the law, equity ‘will not assist a volunteer’ and ‘will not perfect an imperfected gift’. In order to have a ‘perfect’ gift, the donor must actually complete the disposition of the subject matter in favour of the intended donee or execute a formal ‘deed of gift’. The chapter also considers various modes of constitution of trusts, the court ruling in Strong v. Bird, and gifts made in contemplation of death.
6. Formality, perpetuity, and illegality: trust creation and public policy I
Authors: Watt Gary
Published: August 2018

Trust property apparently belongs to the person who is not the true owner despite having all the forms and powers of ownership. Thus, a trust creates an illusion of ownership that may prejudice trade creditors when the trustee becomes insolvent and deceive the state's tax collection agencies. However, there are a number of safeguards designed to prevent the undesirable creation and operation of trusts. For example, the disposition of equitable interests under trusts must be made in writing and the creation of trusts of land must be evidenced in writing. This chapter discusses the ways in which the creation of trusts is influenced by special considerations of public policy, focusing on formality, perpetuity, and illegality. It also considers rules against perpetuities—the rule against remoteness of vesting, the rule against inalienability of capital, and the rule against accumulation of income—and finally, looks at the Perpetuities and Accumulations Act 2009.
7. Charity: trust creation and public policy II
Authors: Watt Gary
Published: August 2018

This chapter explores how the creation of trusts is influenced by special considerations of public policy, focusing on charity that is beneficial to the public as opposed to illegality. Charity will render a purpose trust valid that the law of trusts would otherwise consider to be void. In contrast, illegality will sometimes render an interest or transaction void or unenforceable that the law of trusts and gifts would generally consider to be valid. After considering the creation of charitable trusts, the chapter also discusses charitable purposes and the public benefit as well as the administration of charitable trusts, before concluding by analysing their variation in accordance with the ‘cy-près’ doctrine.
9. Flexibility of benefit
Authors: Watt Gary
Published: August 2018

According to the so-called ‘rule in Saunders v. Vautier’, the beneficiaries of an expressly created private trust may terminate the trust if they are in unanimous agreement and are all competent adults, and are, between them, absolutely entitled to the trust property. This chapter examines the issue of ‘flexibility of benefit’, the extent to which beneficiaries may be able to take benefits under a trust despite limitations on their beneficial ownership, as well as the extent to which limitations on their beneficial ownership may be varied or entirely removed. It shows that under the Trustee Act 1925, trustees have a discretionary power—known as ‘the power of maintenance’—to apply income for the benefit of infant beneficiaries and a similar discretionary power, termed ‘the power of advancement’, to apply capital for the benefit of a beneficiary (infant or adult) out of his/her anticipated entitlement to the trust fund.
11. Fulfilling and filling the office of trustee
Authors: Watt Gary
Published: August 2018

As the legal owners of trust property, trustees enjoy all the legal powers of an absolute owner, including the power to sell, lease, mortgage, and otherwise manage and invest trust assets. However, trusteeship involves not only holding property belonging to another, but also the responsibility of managing trust property in accordance with the terms of the trust instrument and the general law. This chapter examines the duty of care and the duty to exercise a sound discretion in the context of trustee investment, arguing that the office of trustee must be filled if it is to be fulfilled. It also discusses the many different ways in which the law maintains a fine balance between the strict enforcement of trust duties and the need to attract persons to accept trust office. Furthermore, the chapter describes the duty to act fairly and the duty of personal service.
12. Trustee investment
Authors: Watt Gary
Published: August 2018

Trustees must invest in a manner that is prudent and fair, and failure to do so may make them personally liable to compensate for any loss. However, it is difficult to prove a breach of trust, and to prove and quantify the loss suffered by the fund. Even if the trustees admit that they invested imprudently and that the trust fund suffered a loss, there seems to be no effective remedy for improper trustee investment. This chapter deals with trustee investment and shows that the modern trend in trustee investment is towards liberalization, freedom of choice, and the free participation of trust funds in investment markets. After discussing the nature of trustee investment, it considers the goals of trustee investment and the trustees' investment powers. The chapter also analyses types of investment, the trustees' investment duties, liability for improper investment by trustees, and ethical investment.
13. Breach of trust: the personal liability of trustees
Authors: Watt Gary
Published: August 2018

The powers enjoyed by trustees are incidents of their legal ownership of the trust property, whereas their duties are incidents of their personal office. The beneficiary of any trust, even if it is a discretionary trust, has locus standi (which means ‘a place to stand’, used to describe a claimant's right to be heard in a court of law) to bring an action against trustees for breach of trust. Common law concepts such as causation are increasingly being introduced to limit trustees' liability for breaches of bare trusts in commercial contexts. This chapter examines the nature and potential extent of trustees' liability for breach of their duties, along with the remedies that are available against trustees when they breach their trust. It also looks at defences that may be available to trustees in breach and, in the absence of defences, whether trustees may be relieved of personal liability.
15. The equitable personal liability of strangers to the trust
Authors: Watt Gary
Published: August 2018

Even if a trust beneficiary successfully traces misappropriated trust property, he will only be entitled to a proprietary remedy against a stranger, who retains possession or control of the trust property. The beneficiary's proprietary claim will fail if the stranger received the trust property, but has not retained it. However, the beneficiary (or the trustee) may be able to bring a claim against the stranger personally if the receipt was wrongful. This chapter analyses the circumstances in which a stranger may be personally liable in equity for analogous wrongs. After providing an overview of who strangers are, it examines a number of policy considerations and practical measures designed to give strangers some degree of protection. The chapter also looks at trusteeship de son tort, personal liability in equity for receipt, and equitable liability for assistance in a breach of trust.
16. Equitable maxims, doctrines, and remedies
Authors: Watt Gary
Published: August 2018

In general, the leading court cases on equitable doctrines and remedies are very old. The fact that they still have the power to determine modern cases proves that equity is inherently adaptable. Originally developed by the old Court of Chancery in constructive competition with the common law courts, equity is now applied (since the Judicature Acts 1873–1875) by the unified Supreme Court of England and Wales. In addition, equity, as a dimension of law, has retained its special function of restraining or restricting the exercise of legal rights and powers in certain cases. This chapter considers particular principles (including maxims), doctrines (including conversion, satisfaction, performance, and election), and remedies that have been developed over time to help predict the way in which equity will operate in various types of cases.
1. An introduction to equity
Authors: Virgo Graham
Published: August 2018

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.
3. An introduction to the trust
Authors: Virgo Graham
Published: August 2018

This chapter introduces the concept of the trust in England. It explains that the trust is a core element of Equity and its nature and function has developed over time. It discusses the fundamental principles relating to the trust, the classification of different types of trust, and identifies the rights and interests associated with them. This chapter suggests that, while many of the essential components of the modern commercial trust can be traced back to the medieval use, the context in which the trust arises today is completely different, and this has had a significant impact on the development of the contemporary law of trusts.
5. Formalities
Authors: Virgo Graham
Published: August 2018

This chapter examines the processes for creating an express trust, which involves two processes. The first involves possible formality requirements relating to the creation of the trust itself, particularly involving trusts of land and testamentary trusts. It also considers how a trust may be valid despite failure to satisfy these requirements, notably where a statute is being used as an instrument of fraud or where a secret trust is recognized. The second process involves the formality requirements which need to be satisfied to ensure that title to property is vested in the trustees, so that the trust is constituted. Constitution of the trust is considered where a settlor declares themself as a trustee and where another party is declared as a trustee. The chapter also examines when Equity may intervene where a trust has not been properly constituted or where a gift has not been validly transferred to a donee.
7. Non-Charitable purpose trusts
Authors: Virgo Graham
Published: August 2018

This chapter examines the concept of the non-charitable purpose trust. It explains that non-charitable purpose trusts are generally considered void by virtue of failing to comply with the beneficiary principle. It describes exceptional conditions under which non-charitable purpose trusts are considered valid, such as trusts of an imperfect obligation, and discusses mechanisms for the implementation of non-charitable purposes. This chapter also considers the peculiar problems arising where property is transferred for the benefit of unincorporated associations and how Equity has provided solutions for property-holding by such associations and why the nature of property-holding for unincorporated associations has proved to be significant where the association is dissolved.
13. The administration of trusts
Authors: Virgo Graham
Published: August 2018

This chapter examines the natures of trustees’ duties and power related to the administration of trusts. It considers the sources of these duties and powers, the function of the trust instrument in the interpretation of these duties and powers, and the issue of breach of trust. It describes the trustees’ power to compound liabilities, to settle claims and accumulate income. This chapter also discusses some of the main duties of trustees which include the duty of care, the duty to safeguard the trust property, and the duty to maintain a fair balance between the beneficiaries. The duty to invest property is considered in some detail, with particular reference to the need to manage risk through a diverse portfolio and consideration of whether ethical considerations can be taken into account when selecting investments.
16. The variation of trusts
Authors: Virgo Graham
Published: August 2018

This chapter considers issues concerning the process of changing the terms of a trust. It explains that a trustee cannot make any changes in the terms of a trust but the court can confer on the trustees a statutory power to vary the terms of the trust upon application of the trustee or a person beneficially entitled under the trust. This statutory power may not be used to alter any of the beneficial interests under the trust. This chapter also discusses the provisions of the Variation of Trusts Act 1958 which gives the court the power to approve by order any arrangement that revokes or varies a trust or enlarges the powers of the trustees to manage or administer the trust property.
20. Personal Liability of Third Parties
Authors: Virgo Graham
Published: August 2018

This chapter examines the personal liability of third parties when there is a breach of trust or breach of fiduciary duty. It explains that there are two types of personal liability of third parties. One is receipt-based liability when a third party has received property in which the beneficiary or principal has an equitable proprietary interest and the other is accessorial liability when the third party has encouraged or assisted a breach of a trust or fiduciary duty. The elements of different causes of action relevant to receipt-based liability and accessorial liability are examined, notably the action for unconscionable receipt and the action of dishonest assistance. The controversial question of whether liability should be strict or fault-based is considered and, if the latter, the nature of the fault requirement.
1. Administration and the principles of the constitution
Authors: Endicott Timothy
Published: August 2018

Administrative law includes a complex variety of processes and doctrines that confer and control public power. This chapter outlines the underlying principles of administrative law. Topics discussed include arbitrary government and the core of administrative law, administration, the principle of relativity, the principles of the constitution, system principles, accountability, and Europe and the principles of the constitution.
2. The rule of law and the rule of judges
Authors: Endicott Timothy
Published: August 2018

At common law, the judges will hold administrative conduct to be unlawful on any of three grounds: error of law, lack of due process, or the improper exercise of discretionary power. This chapter discusses how (and to what extent) the three grounds of judicial review are supported by constitutional principle. Each ground must be controlled by the principle of comity. The principle of comity requires judges to defer to administrative authorities on some issues, to some extent; the chapter explains the limits of deference, and the difference—and the connections—between the rule of law and the rule of judges.
7. Discretion and deference
Authors: Endicott Timothy
Published: August 2018

This chapter discusses how judges can defer in appropriate ways to administrative authorities on some issues, while still opposing abuses of power. The chapter explains why the courts defer massively to administrative authorities on some issues involving foreign affairs and national security, public expenditure, planning, and legal and political processes. The mere fact that the law has allocated the power to an administrative body gives rise to a presumption that a court should not interfere unless there is a ground for review other than that the court would have reached a decision; the extent to which a court ought to defer is determined by the three reasons for allocating power to an administrative body: the body’s expertise, its political responsibility, and/or its decision-making processes.
8. Substantive fairness
Authors: Endicott Timothy
Published: August 2018

This chapter shows that judges must substitute their own judgment for that of an administrative authority on some issues, in order to give effect to the principle of legality. When there is reason for non-deferential judicial review, deference would mean abandoning the rule of law. The more interventionist grounds on which judges will control the substance of some decisions—relevance, proportionality, and legitimate expectations—may involve little deference, depending on the type of decision and the context in which it is made. Each of the interventionist doctrines gives the judges the opportunity to do justice for a claimant and to improve public administration. For the very same reasons, each doctrine poses a danger that the judges will make themselves into surrogate administrators by overextending the grounds of judicial review
3. The United Nations
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the work of the United Nations (UN) in the area of human rights. It discusses the evolution of human rights under the auspices of the UN as well as some of the early influences on human rights. The influence of the Nuremberg trials, the abolition of slavery, and the protection of vulnerable groups on the development of human rights protection law is discussed.
5. The United Nations—organizational structure
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the organizational structure of the United Nations, focusing on the principal entities impacting on, monitoring, and enforcing international human rights. These include the Security Council, the General Assembly, the International Court of Justice, the Economic and Social Council, the Human Rights Council, and the High Commissioner for Human Rights. The chapter explains the functions and responsibilities of these bodies, and highlights the financial and personnel constraints that negatively affect the performance of their duties. The UN treaty bodies will also be introduced.
8. The Americas
Authors: Smith Rhona K. M.
Published: August 2018

This chapter traces the development of human rights protection in the Americas. It discusses the declarations, conventions, and the institutional framework of the Organisation of American States tasked with ensuring the compliance of States with the provisions of the American Convention.
9. Africa
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the role of the African Union, formerly the Organization of African Unity (OAU), in the development of African jurisprudence on human rights. It provides a brief historical background on the African Union and the Charter provisions. The chapter traces the development of human rights protection in Africa; describes the monitoring and enforcement of human rights law; highlights the impact of the African Commission on Human and Peoples’ Rights on human rights in Africa; and explains how States may be held accountable for infringements of rights and freedoms.
11. Substantive rights—general comments
Authors: Smith Rhona K. M.
Published: August 2018

This chapter discusses the reality of human rights protection within States. It addresses the limitations of various rights and the extent to which States can deviate from responsibility in terms of international human rights law. It covers issues such as State discretion in selecting and applying rights, particularly through derogations, reservations, declarations, and denunciations. These are issues which impact on almost all human rights and almost all States in some way.