bluuebunny/crossref_metadata_2025 huggingface dataset:
6. Exemption clauses and unfair contract terms
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. A clause which seeks either to exclude a party’s liability for breach or to limit that liability to a specified amount is known as an exemption clause. It is also possible for exemption clauses to seek to exclude or limit the remedies which would otherwise be available for breach or seek to deny that any breach of contract or breach of a duty of care has occurred. Although such clauses can allocate risks between the parties and prevent duplicate insurance cover, both the courts and the Parliament in the UK have sought to control their use. An exemption clause is enforceable if the clause in question is incorporated as a term, covers the loss that has occurred in the circumstances in which it arose, and is not rendered unenforceable by either the Unfair Contract Terms Act 1977 (B2B contracts) or Part 2 of the Consumer Rights Act 2015 (B2C contracts). This chapter examines the construction of exemption clauses as well as the legislative regulation of exemption clauses and, in the consumer context, unfair terms.
8. Mistake
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. This chapter focuses on the legal treatment of ‘mistake’. It considers mistakes that prevent agreement (mutual or cross-purposes mistakes and unilateral mistake as to terms, particularly identity mistakes). It also examines the remedy of rectification when the contract does not accurately reflect what the parties agreed. It also considers the defence of non est factum. It then considers mistakes that are presumed to nullify consent if both parties entered into the contract under the same fundamental mistake. The doctrine of common mistake in English law is designed to protect the interests of third parties and to ensure certainty in transactions. A fundamental common mistake arises in cases where there is true impossibility or failure of consideration; the contract is automatically void and any money or property involved has to be returned. Distinctions can arise depending upon whether the impossibility is initial (common mistake) or subsequent (frustration doctrine). Categories of common mistake at common law include mistake as to subject matter (res extincta) and mistake as to ownership (res sua). A mistake as to quality will rarely be sufficiently fundamental to render the contract void. This chapter also discusses Lord Denning’s attempts to introduce an equitable jurisdiction to set aside on terms in cases of mistakes as to quality. These were rejected in Great Peace Shipping Ltd v Tsavliris (International) Ltd meaning that there is no remedial flexibility in such instances.
9. Misrepresentation
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. False statements of fact that induce a contract are known as actionable misrepresentations. In case of a misrepresentation, there are different legal remedies for breaches of contract. A misrepresentation renders the contract voidable (liable to be set aside using the remedy of rescission) so that the contract will be treated as if it had never been made, whereas a breach of contract will have no effect on the existence of the contract (in the absence of a repudiatory breach that will terminate the contract when future contractual obligations will be discharged). The chapter identifies actionable misrepresentations and, in particular, loss in instances where there is a duty of disclosure in English law. There are three types of actionable misrepresentations, dependent upon the state of mind of the one who makes the false statement: fraudulent, negligent, and innocent. This chapter looks at the legal remedies for actionable misrepresentations such as rescission, the availability of damages for different types of misrepresentations, and the provisions of the Misrepresentation Act 1967. It also examines the effect of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) as amended on this area of law, the criminal offences, and civil remedies for consumers, as well as the relationship of misrepresentation to other areas of law. Finally, it looks at clauses that seek to exclude or limit liability for misrepresentation or to deny any actionable misrepresentation, e.g. ‘non-reliance clauses’.
11. Illegality
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
12. Discharge by frustration: subsequent impossibility
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. In general terms, non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply, and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.
13. Breach of contract
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. Where there is breach of contract, the aggrieved party is entitled to the remedy of damages as of right. Contractual damages aim to compensate the claimant for losses suffered, rather than punish the defendant. To achieve compensation the claimant is put in the position he would have been in if the contract had been properly performed and the breach had not occurred. In other words, the aim is to protect the expectation of performance (known as the ‘expectation interest’ or the ‘performance interest’). This may involve any difference in value between the promised and the actual performance, loss of profits, or reimbursing the claimant for any expenditure that had been wasted due to the breach. A claimant may not be fully compensated for his losses as a result of the remoteness rule, which limits recovery of losses and/or the duty to mitigate (minimize) loss. Damages may also be apportioned, in some circumstances, for the claimant’s own contributory negligence in contributing to his own loss. In general, non-pecuniary losses are not recoverable in a claim for breach of contract, but there are cases where a modest sum may be awarded for the disappointment resulting from not receiving the promised performance. The parties may include an agreed damages clause in their contract but in the event of breach only a liquidated damages clause will be enforceable; a penalty clause will not be enforceable beyond the claimant’s actual loss.
2. Union Legislation
Authors: Schütze Robert
Published: August 2023

This chapter examines how the European Union institutions cooperate in the creation of European legislation. Unlike some national legal orders, the EU Treaties expressly distinguish two types of legislative procedures: an ordinary legislative procedure and special legislative procedures. According to the ordinary legislative procedure, the European Parliament and the Council act as co-legislators with symmetric procedural rights. European legislation is here seen as the product of a ‘joint adoption’ by both institutions. By contrast, the defining characteristic of the special legislative procedures is that they abandon the institutional equality between the Parliament and the Council. The chapter subsequently looks at the principle of subsidiarity—an EU constitutional principle that was designed to prevent the EU legislator from exercising its competences where the Member States would be able to achieve the desirable social aim themselves. Finally, it also considers the procedure for the conclusion of EU international agreements.
8. European Actions
Authors: Schütze Robert
Published: August 2023

This chapter describes the direct enforcement of European law before the Court of Justice of the European Union. The judicial competences of the European Court are enumerated in the section of the Treaty on the Functioning of the European Union (TFEU) dealing with the Court of Justice of the European Union. The chapter discusses three classes of judicial actions. The first class is typically labelled an ‘enforcement’ or ‘infringement’ action in the strict sense of the term. This action is set out in Articles 258–60 TFEU and concerns the failure of a Member State to act in accordance with European law. This legal action has been complemented by the political action in Article 7 TEU. The two remaining direct legal actions ‘enforce’ the European Treaties against the EU itself. These actions include judicial review and the action for a failure to act.
9. Internal Market: Goods
Authors: Schütze Robert
Published: August 2023

This chapter explores the European Union’s market integration tools in the context of the free movement of goods. In order to create an internal market in goods, the EU insists that illegal barriers to intra-Union trade must be removed. This form of negative integration will be looked at through the lens of two prohibitions. The first is the prohibition on customs duties and concerns tariff barriers. The second type of prohibition relates to regulatory barriers to trade. The chapter then investigates the legality of and possible justifications for regulatory restrictions to trade in goods. A final section studies the constitutional principles and limits governing positive integration in the context of the free movement of goods. It analyses the scope and nature of the general internal market competence: Articles 114 TFEU.
11. Competition Law: Cartels
Authors: Schütze Robert
Published: August 2023

This chapter provides an overview of EU competition law through the lens of Article 101 TFEU. Article 101 outlaws anti-competitive collusions between undertakings; that is, ‘cartels’. Historically, this form of illegal behaviour has been the most dangerous anti-competitive practice. The European Union has thus given a wide jurisdictional scope to Article 101, and EU competition law generally. Article 101 thereby prohibits anti-competitive agreements, concerted practices, and cartels specifically. Yet it also tries to find an appropriate balance between pro- and anti-competitive considerations for every agreement. Due to the EU’s historic task of creating an internal market, vertical agreements have been of particular importance to EU.
12. Union Policies: Overview
Authors: Schütze Robert
Published: August 2023

This chapter offers an overview of the main internal and external policies of the Union. The internal policies of the Union can today be found in Part III of the TFEU entitled ‘Internal Policies and Internal Actions’. The external policies of the Union are generally placed into Part V of the TFEU entitled ‘The Union’s External Action’. This chapter discusses two internal and two external policies. It provides an introduction to the Union’s Economic and Monetary Union (EMU). Section 2 moves to EU Social Policy. This is an important internal policy for a continent that prides itself as being the ‘social continent’. The two external policies discussed are the Common Commercial Policy and the Union’s ‘special’ Common Foreign and Security Policy.
Brexit: Past, Present, Future
Authors: Schütze Robert
Published: August 2023

This epilogue discusses the past, present, and future of the British exit (‘Brexit’) from the European Union. It begins by offering a brief historical overview of the past tensions between the United Kingdom and the European Union in an attempt to better explain the ‘special’ unease with which the United Kingdom viewed European integration. The chapter then explores the withdrawal process under Article 50 TEU and the ‘Withdrawal Agreement’ in particular. It then moves to discuss the status of European Union law in post-Brexit Britain. It finally contrasts three possible EU–UK trade relationship options before analysing the EU–UK Trade and Cooperation Agreement.
1. The world of bits
Authors: Murray Andrew
Published: August 2023

The question ‘what can we control?’ underpins both the information society and the knowledge economy, and represents the maturity of information technology. Most importantly, it signals a transition from a world that saw economic value in terms of atoms to a world which values information in bits. This chapter examines this transition and the role of bits in the information society. It first provides an overview of bits and their place in the digitization process. The chapter then looks at the advent of digital music and other digital goods such as digital video and electronic books. It also considers the shift from rivalrous goods to nonrivalrous goods before concluding with a discussion of the legal challenge of the information society.
9. Software
Authors: Murray Andrew
Published: August 2023

This chapter examines whether software should be protected by patent law or by the law of copyright, or through a sui generis form of protection. It first provides a historical background on software and copyright protection, before discussing the scope of software copyright protection and copyright infringement. The chapter then looks at several forms of copyright infringement such as offline, online, and employee piracy, and also explains the look and feel infringement by citing three cases: Navitaire v easyJet, Nova Productions v Mazooma Games, and SAS Institute v World Programming Ltd. In addition, it considers permissible acts under the UK’s Copyright, Designs and Patents Act 1988 without infringing the rights of the copyright holder. Finally, the chapter analyses cases relating to patent protection for computer software, including software patents under the European Patent Convention and the decision in Aerotel v Telco & Macrossan.
10. Digital creativity and copyright law
Authors: Murray Andrew
Published: August 2023

This chapter examines the sometimes fraught relationship between authors, publishers and distributors, and fans. While copyright law protects authors and creators, and while publishers and distributors benefit from either assigned copyright or specific copyright protection of distribution and transmission of content, fans are sometimes ‘shut out’. A flourishing online community of fan creators who produce written fanfiction, remixed music, and fan videos sometimes feel copyright law is designed to keep them at a distance from the creators and characters they love. This chapter examines where the balance should be drawn between copyright protection for original content and the interests of fans and other users in creating non-commercial derivative works. It concludes with an expanded discussion of AI generated works as a form of original creation and AI infringement.
12. Copyright infringement in the digital environment
Authors: Murray Andrew
Published: August 2023

This chapter analyses cases of copyright infringement in the online environment. It begins by analysing some early cases regarding file-sharing technologies, including A&M Records, Inc. v Napster, Inc., MGM Studios, Inc. v Grokster, Ltd, and Sweden v Neij et al. (The Pirate Bay case). It assesses new techniques for fighting illegal file-sharing, such as blocking access to websites offering file-sharing technology or indexes with a focus on the operation of s.97A website blocking orders. It examines the Supreme Court decision in Cartier International v British Sky Broadcasting and its application in the Nintendo cases Nintendo Co Ltd v Sky UK Ltd and Nintendo Co Ltd v British Telecommunications Plc. Finally, it describes the slightly controversial process known as speculative invoicing and examines the recent case of Mircom International v Virgin Media.
14. Branding, trade marks, and domain names
Authors: Murray Andrew
Published: August 2023

This chapter examines the role of trade marks in the creation of brand portfolios online, including internet addresses or domain names. It first provides an overview of branding and trade marks in the global business environment, trade mark characteristics, and the distinction between registered and unregistered trade marks, and then looks at domain names as address tools and brand identifiers. The chapter also considers early disputes over rightful ownership of trade marks and domain names, examining the development of cybersquatting case law before the UK and US courts. It discusses the allocation of new generic top-level domains under the New gTLD procedure and examines the legal safeguards for trade mark holders under the procedure. The primary focus of the chapter is the Internet Corporation for Assigned Names and Numbers (ICANN) Uniform Domain Name Dispute Resolution Policy and its domestic counterpart in the UK, the Nominet Dispute Resolution Service.
17. Payments, cryptocurrency, and cryptoassets
Authors: Murray Andrew
Published: August 2023

This chapter examines payments, cryptocurrency, and cryptoassets. It first provides an overview of token payments before looking at alternative electronic payment systems including debt substitution, payment by credit cards, and fund transfer. The chapter reviews the failure of the European Commission’s Electronic Money Directive 2000 and examines whether the current law, found in the 2009 Electronic Money Directive, and the second Payment Services Directive provide a better legal environment for electronic money to flourish. It spends considerable time looking at the development of cryptocurrencies including Bitcoin and how blockchain is used to establish trust in cryptocurrency transactions before analysing the current legal position of cryptocurrencies. It concludes by looking at the new class of cryptoassets, including NFTs, and asks what legally are such cryptoassets by examining the UK Jurisdiction Taskforce report and the Law Commission consultation paper.
18. Consumer protection
Authors: Murray Andrew
Published: August 2023

This chapter examines how consumers are protected when they go online. It examines the extensive protections offered by the Consumer Rights Directive to distance agreements (including online agreements). The rules on jurisdiction, choice of law, and enforcement are examined alongside what rights the consumer has to receive information and to cancel contracts agreed at a distance. In addition, this chapter examines the suite of rights created by the Consumer Rights Act 2015 and in particular the new provisions therein which digital content (including software, apps, and in-game content among others). The chapter continues with a discussion of the regulation of unsolicited commercial communications or spam including a discussion of the Directive on Privacy and Electronic Communications, GDPR, and the proposed ePrivacy Regulation. The chapter accounts for changes in the legal framework caused by Brexit.
20. Obscenity in the information society
Authors: Murray Andrew
Published: August 2023

This chapter, which examines pornography and obscenity on the internet, first provides an overview of the UK common law standard known as the Hicklin principle and the Obscene Publications Acts. It then discusses the UK standard and US statutory interventions on pornography, the impact of the case ACLU v Reno on the regulation of sexually explicit content on the internet, pseudo-images and images depicting child abuse as the most extreme form of pornographic image, and the policing of pseudo-images in the UK and internationally. The chapter also considers the law on non-photographic pornographic images of children, non-consensual disclosure of private sexual images (revenge porn) along with private regulation of pornographic imagery and proposals for Age Verification.
23. Data protection: rights and obligations
Authors: Murray Andrew
Published: August 2023

This chapter examines the rights of data subjects under GDPR (and UK GDPR) and the role of the state in supervising data controllers. It examines data subject rights including the subject access right and the right to correct and manage personal data. It deals with the development of the so-called right to be forgotten in the Mario Costeja González case and its application in cases such as NT1 & NT2 v Google. It examines the current supervisory regime including the role of the Information Commissioner’s Office and the enforcement rights of data subjects. Key cases, including Durant v The Financial Services Authority, Edem v IC & Financial Services Authority, Dawson-Damer v Taylor Wessing, and Ittihadieh v 5-11 Cheyne Gardens are discussed, and the chapter concludes by examining the enhanced enforcement rights awarded to the Information Commisioner’s Office by the General Data Protection Regulation in 2018.
24. The international trade in personal data
Authors: Murray Andrew
Published: August 2023

This chapter examines how data flows are managed by GDPR and UK GDPR. Strict rules of adequacy manage transfers between EEA and non-EEA states (including the UK) and recent challenges to agreed data equivalency rulings, in particular in the case of Maximillian Schrems v Data Protection Commissioner decision have proven challenging for regulators. This chapter will examine these challenges and what GDPR and UK GDPR says is permissible and what is not in relation to transfers to third countries. In addition, to the Schrems I decision the chapter also examines the more recent Digital Rights Ireland Ltd v European Commission and Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems (Schrems II) challenges to both adequacy rulings and standard contractual clauses. The chapter also examines the current state of UK adequacy and what challenges it might face.
25. State surveillance and data retention
Authors: Murray Andrew
Published: August 2023

This chapter examines the purpose and impacts of state surveillance in the digital environment. It considers the effects of the revelations brought to light by Edward Snowden and outlines the current legal framework for the interception of communications in the UK. The programmes of state surveillance, including by the NSA, GCHQ, and Prism are outlined. The retention and use of personal digital data is also discussed and its relation to the Investigatory Powers Act 2016 examined in detail. The chapter discusses the challenges to data interception in Liberty & Privacy International v GCHQ, Centrum För Rättvisa v Sweden, and Big Brother Watch v UK and against data retention in Tele2 Sverige.
8. Jurisdiction Over Fact and Law
Authors: Wade Sir William , Forsyth Christopher , Ghosh Julian
Published: August 2023

This chapter discusses the objective boundaries of discretionary powers and the way in which the courts police them. Inherent in all discretionary power is the power to decide freely, whether rightly or wrongly, without liability to correction, within the area of discretion allowed by the law. Until fairly recently this liberty to make mistakes within jurisdiction extended to significant mistakes both of law and of fact. The extent to which both these classes of error have been brought within the scope of judicial review is explained.
15. Ordinary Remedies
Authors: Wade Sir William , Forsyth Christopher , Ghosh Julian
Published: August 2023

This chapter is concerned with the remedies of private law which play a part in public law. First come the remedies related to powers (actions for damages, injunctions, declarations and relator actions). A final section contains such remedies as private law supplies for the enforcement of duties.
21. Crown Proceedings
Authors: Wade Sir William , Forsyth Christopher , Ghosh Julian
Published: August 2023

This chapter discusses the liability of the Crown itself. ‘The Crown’ refers to the sovereign acting in a public or official capacity. The passage of the Crown Proceedings Act 1947 placed the Crown, in principle, in the position of an ordinary employer and of an ordinary litigant. The law as it now stands under the Act may be divided under four headings: tort, contract, remedies and procedure and statutes affecting the Crown.
22. Delegated Legislation
Authors: Wade Sir William , Forsyth Christopher , Ghosh Julian
Published: August 2023

This chapter is concerned with the special features of the administrative power to legislate. The discussions cover the necessity of delegated legislation; the scope of administrative legislation; legal forms and characteristics; judicial review; publication; preliminary consultation; and parliamentary supervision.
24. Statutory and Other Inquiries
Authors: Wade Sir William , Forsyth Christopher , Ghosh Julian
Published: August 2023

This chapter begins with a discussion of statutory inquiry, which is the standard technique for giving a fair hearing to objectors before the final decision is made on some question of government policy affecting citizens’ rights or interests. It then turns to complaints and reforms; law and practice today in statutory inquiries; and other inquiry procedures.
4. The Execution of the Court’s Judgments
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

The Committee of Ministers of the Council of Europe (Committee of Ministers) is tasked with the execution and enforcement of the judgments of the Court. The process is based essentially on peer pressure and political persuasion exercised within a forum where there is a genuine commitment to effective enforcement of judgments, but also on a commonality of political interest and often a self-interested tolerance of the practical problems associated with execution. This chapter discusses the role of the Committee of Ministers, its procedures and common features, and recent developments in the execution process.
5. Article 2: The Right to Life
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

This chapter discusses Article 2 of the European Convention on Human Rights, which guarantees the right to life. Topics that are covered include the obligation to protect the right to life by law; the obligation to take preventive action; the procedural obligation to investigate; the protection of the unborn child; and the prohibition of the taking of life by the use of force. The limitation on sentences of capital punishment in Article 2(1) has been interpreted by the Court as prohibiting them entirely. Article 2 prohibits deportation or extradition to face the risk of the loss of life abroad.
7. Article 4: Freedom from Slavery, Servitude, or Forced or Compulsory Labour
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

This chapter discusses Article 4 of the European Convention on Human Rights. Article 4 prohibits slavery, servitude, and forced or compulsory labour. The Court has extended the scope of Article 4 to cover ‘domestic slavery’ and human trafficking. In particular, states have positive obligations to act against conduct by private employers or persons involved in trafficking. Whereas the prohibitions of slavery and servitude are absolute, certain forms of forced or compulsory labour are permitted, for example in fulfilment of a civic duty and work by a convicted prisoner.
8. Article 5: The Right to Liberty and Security of the Person
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

This chapter discusses Article 5 of the European Convention on Human Rights, which protects the ‘right to liberty and security of person’. The notion of ‘liberty’ here covers the physical liberty of the person, which the Court views alongside Articles 2, 3, and 4 as ‘in the first rank of the fundamental rights that protect the physical security of an individual’. All kinds of detention by the state are controlled by Article 5, including detention in the criminal process, detention of the mentally disabled, and detention prior to extradition or deportation.
10. Article 7: Freedom from Retroactive Criminal Offences and Punishment
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

This chapter discusses Article 7 of the European Convention on Human Rights, which incorporates the principle of legality, by which, in the context of criminal law, a person should only be convicted and punished on a basis of law. Article 7 prohibits the retroactive application of criminal offences and of sentences imposed for them. The guarantee in Article 7 is an essential element of the rule of law, and has as its object and purpose the provision of effective safeguards against arbitrary conviction and punishment. An exception is allowed for offences that were contrary to general principles of law recognized by civilized nations.
13. Article 10: Freedom of Expression
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

This chapter discusses Article 10 of the European Convention on Human Rights, which guarantees freedom of expression. It first delineates the boundaries of protection of Article 10. It then turns to different categories of expression; specific issues relating to the press and media licensing; the standard ‘prescribed by law’; legitimate aims; the notion of ‘duties and responsibilities’ of the bearers of expression rights; and some distinct methodologies advanced by the Court to deal with defamation cases. The chapter considers the restrictions on expression permitted by Article 10.
16. Article 13: The Right to an Effective National Remedy
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

This chapter discusses Article 13 of the European Convention on Human Rights, which requires the provision of effective national remedies for the breach of a Convention right. Together with Article 35 (addressing, inter alia, exhaustion of domestic remedies), this article is central to the cooperative relationship between the Convention and national legal systems.
18. Article 15: Derogation in Time of War or Other Public Emergency Threatening the Life of The Nation
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

This chapter discusses Article 15 of the European Convention on Human Rights, which enables a state to unilaterally derogate from some of its substantive Convention obligations in public emergencies threatening the life of the nation. The provision is therefore of great importance to the Convention’s general integrity and to the protection of human rights in situations where individuals may be especially vulnerable to the actions of the state in response to a public emergency.
19. Articles 16–18: Other Restrictions upon the Rights Protected
Authors: Harris David , O’boyle Michael , Bates Ed , Buckley Carla M. , Kamber KreŠimir , Bryanston-Cross ZoË , Cumper Peter , Green Heather
Published: August 2023

This chapter discusses Articles 16–18 of the European Convention on Human Rights. Article 16 allows potentially wide-ranging interference with the political rights of aliens. Article 17 aims to prevent totalitarian or extremist groups from justifying their activities by relying on the Convention. Article 18 concerns misuse of powers or breaches of the principle of good faith, and must be applied in conjunction with another Convention’s Article(s).
4. Interaction of actus reus and mens rea
Authors: Ormerod David , Child John
Published: August 2023

This chapter focuses on the interaction between actus reus and mens rea in proving criminal liability. It first considers how actus reus and mens rea relate to one another within the structure of an offence before discussing the issues that also emerge when applying offence requirements to a set of facts. As an example, it explains how every element (conduct, circumstance, and result) of an offence includes an actus reus requirement and a potential corresponding mens rea requirement. It also examines the correspondence principle and the doctrine of transferred malice, along with the coincidence principle. Finally, it outlines potential options for legal reform and a structure for analysing the actus reus and mens rea of an offence when applying the law in problem-type questions. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
6. Manslaughter
Authors: Ormerod David , Child John
Published: August 2023

This chapter focuses on manslaughter, a common law homicide offence with an actus reus of unlawful conduct causing death. The chapter considers two categories of manslaughter: voluntary manslaughter and involuntary manslaughter. Voluntary manslaughter arises where D commits murder, but meets the criteria for one of the partial defences: loss of self-control, diminished responsibility, or suicide pact. Involuntary manslaughter arises where D does not commit murder, but commits a relevant manslaughter offence: unlawful act manslaughter, gross negligence manslaughter, or reckless manslaughter. The chapter explains statutory offences of unlawful killing (corporate manslaughter, driving causing death, infanticide, killing of a foetus) and concludes by outlining options for legal reform concerning voluntary manslaughter, involuntary manslaughter, and the structure of manslaughter offences. Relevant cases are highlighted with a summary of the main facts and judgments.
8. Rape and other sexual offences
Authors: Ormerod David , Child John
Published: August 2023

This chapter deals with sexual offences which criminalise the accused’s invasion of the victim’s sexual—as opposed to simply physical—autonomy. Sexual offences are almost entirely codified within a single statute, the Sexual Offences Act 2003 (SOA 2003). The chapter first considers the relevant provisions of the SOA 2003 with respect to rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent. It then turns to sexual offences against children under 13 and children under 16, as well as status-based and relationship-based sexual offences. The final sections of the chapter outline potential options for legal reform and the application of the offences within the SOA 2003 to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
10. Fraud
Authors: Ormerod David , Child John
Published: August 2023

This chapter deals with fraud, an offence under section 1 of the Fraud Act 2006 (FA 2006). It first discusses the central fraud offence, which can be committed by false representation, failure to disclose information, and/or abuse of position. The chapter then moves to consider related offences of obtaining services dishonestly and possession of articles for use in frauds, along with other fraud and deception offences. Finally, the chapter outlines potential options for legal reform concerning the drafting of FA 2006, fraud and the irrelevance of results, and distinguishing theft and fraud; as well as the potential application of fraud offences within a problem question. Relevant cases are highlighted throughout, with brief summaries of the main facts and judgments.
11. General inchoate offences
Authors: Ormerod David , Child John
Published: August 2023

This chapter deals with general inchoate offences. A person’s conduct may be inchoate (‘just begun’, ‘undeveloped’), but also deserving of criminalisation. The chapter is structured around the three general inchoate offences, namely: attempt, conspiracy, and assisting or encouraging. It explains the actus reus and mens rea of each of these offences, along with specific defences. It also looks at double inchoate liability, substantive offences in an inchoate form, and potential options for legal reform concerning the actus reus of attempts, the mens rea of attempts and conspiracy, and assisting and encouraging. Finally, the chapter discusses the application of general inchoate offences within problem questions. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
13. Denials of an offence
Authors: Ormerod David , Child John
Published: August 2023

This chapter deals with the rules on denials of an offence, a denial of one or more actus reus or mens rea elements. In particular, it considers three sets of rules relating to the denial of an offence: intoxication, sane automatism, and insanity. As well as discussing how each of these rules can be used by D to avoid liability, the chapter also focuses on how circumstances of ‘prior fault’ can be used by the prosecution to substitute for missing mens rea elements so as to construct liability. It also outlines potential options for legal reform concerning intoxication, sane automatism, and insanity, and concludes by considering how denials of offending based on intoxication, automatism, and insanity should be applied to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
14. General defences
Authors: Ormerod David , Child John
Published: August 2023

This chapter deals with general complete defences that the accused can use to avoid liability. The focus is on defences that can apply (with one exception) to offences throughout the criminal law and will result in the accused’s acquittal. Five kinds of general complete defences are examined: insanity (as a defence), duress by threats, duress by circumstances, the public and private defence (also known as self-defence), and necessity. The chapter first considers the categorical division between excuses and justifications, before explaining the elements of each of the defences in turn. It then outlines potential options for legal reform concerning individual defences and concludes by discussing the application of the general defences to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
4. Articles of association
Authors: French Derek
Published: August 2023

This chapter deals with articles of association, the principal element of a company’s constitution, under the Companies Act 2006. It describes the content of the articles, model articles of association which can be adopted by limited companies (either in whole or in part) on registration, and the function of articles as a contract between the company and its members and between the members themselves. It also considers provisions of articles that may be incorporated in other contracts and the right of members of a company to amend its articles. The chapter discusses a number of particularly significant court cases, including Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 and Quin and Axtens Ltd v Salmon [1909] AC 442.
14. Members
Authors: French Derek
Published: August 2023

This chapter focuses on the members or shareholders of a company and the way in which they take decisions on the company’s affairs. It begins by considering the rules which determine who is a member of a company and the information on the members which a company must record. It then describes the mandatory rules of company law that allow members to participate in decision-making with regard to a company’s affairs, members’ class rights and the alteration of such rights. Relevant provisions of the Companies Act 2006 governing written resolutions of private companies, meetings and annual general meetings, voting, adjournment of meetings and authorisation of political donations by companies are discussed. The chapter analyses a number of particularly significant cases.
15. Directors
Authors: French Derek
Published: August 2023

This chapter explores the role of directors in corporate governance. Rules on appointment and removal of a company’s directors are considered, followed by public disclosure of the names of directors and their work as a board, their remuneration and their powers of management. The chapter also considers the legal categorisation of directors, whether as fiduciaries, agents or trustees; the relationship between directors and shareholders of public companies; transparency; and general legal principles regarding the board of directors. Relevant legislation such as the Companies Act 2006 and the UK Corporate Governance Code, as well as particularly significant court cases, are mentioned.
17. Company officers, secretary and auditor
Authors: French Derek
Published: August 2023

This chapter focuses on company officers (secretaries, auditors and managers), with emphasis on their responsibilities and liabilities under the Companies Act 2006 (CA 2006) and the appropriate sanctions for breach of its requirements. It first considers who, in general terms, is an ‘officer’ or ‘manager’ of a company for the purposes of criminal or fiduciary liability. Then it deals with the appointment and qualifications of secretaries and the appointment and reappointment of auditors. There is discussion of auditors’ remuneration, integrity and independence, the required contents of an auditor’s report and an auditor’s investigative powers. There is analysis of an auditor’s liability in contract and tort for negligence in carrying out the audit and negligent misstatement in an auditor’s report. The chapter cites relevant legislation, including CA 2006 and UK Corporate Governance Code, and considers two particularly significant cases: Caparo Industries plc v Dickman [1990] 2 AC 605 and Stone and Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] AC 1391.
20. Company insolvency and liquidation
Authors: French Derek
Published: August 2023

This chapter deals with procedures and legislation governing the insolvency and liquidation of a company and who are qualified as insolvency practitioners. It discusses insolvency procedures such as administration, voluntary arrangement, creditors’ voluntary winding up, winding up by the court and the appointment of a provisional liquidator. It considers the effect of insolvency and liquidation procedures on floating charges, court control of insolvency and liquidation procedures, and liability for fraudulent trading and wrongful trading. The legal principles underlying disqualification orders against a company’s directors, the use of an insolvent company’s name, the order of the application of assets in liquidation and the dissolution of a company are also examined.
2. Incorporation
Authors: Roach Lee
Published: August 2023

This chapter discusses the process of incorporation and the advantages and disadvantages of conducting business through a company. The three principal methods by which a company can be incorporated are: incorporation by Act of Parliament, incorporation by Royal Charter, and incorporation by registration. The advantages of incorporation include perpetual succession, asset ownership, and the ability to commence legal proceedings. The disadvantages of incorporation include increased formality, regulation, publicity, and civil liability.
3. The constitution of the company
Authors: Roach Lee
Published: August 2023

This chapter discusses the company constitution. A company’s constitution consists primarily of the articles of association and agreements and resolutions affecting the company’s constitution. The constitution forms a statutory contract between the company and its members, and between the members themselves, but only those provisions relating to membership rights will constitute terms of the statutory contract. A company can alter its articles by passing a special resolution, although statute and the common law restrict a company’s ability to alter its articles.
4. Directors
Authors: Roach Lee
Published: August 2023

This chapter focuses on company directors. Every private company must have at least one director, while every public company must have at least two. Directorsʼ duties are now found in the Companies Act 2006, which provides for seven general duties that directors owe to the company. A director’s term of office can terminate in several ways including resignation, retirement, or removal. The courts can also disqualify a person from acting as director.
7. Capital and capital maintenance
Authors: Roach Lee
Published: August 2023

This chapter discusses the two principal types of capital that companies acquire: share capital (capital obtained by selling shares) and debt capital (capital borrowed from others). Having obtained share capital through the selling of shares, the law requires that the company ‘maintain’ that capital by not distributing it in unauthorized ways, notably by prohibiting companies from returning capital to the shareholders prior to liquidation.
4. International Sources of Law
Authors: Gillespie Alisdair , Weare Siobhan
Published: August 2023

This chapter discusses international sources of law. Conventions and treaties are the primary sources of international law. International law also relies on custom; that is to say, informal rules that have been commonly agreed over a period of time. Resolving disputes in international law is very different to resolving domestic disputes, including the fact that in some instances there is no court that can hear a challenge. The United Nations, particularly its Security Council, has the primary role in upholding international law, meaning that it is often political rather than judicial resolution. In 1972, the United Kingdom joined the (then) European Economic Community (EEC). As part of that process, it agreed to shared sovereignty, meaning that in some areas European law would take precedence. The United Kingdom has now left the European Union but, as will be seen, its laws will remain an important source of English law for some time.