bluuebunny/crossref_metadata_2025 huggingface dataset:
7. Central government
Authors: Stanton John , Prescott Craig
Published: August 2018

This chapter examines the structure and role of central government, with the latter part focusing on the key constitutional requirement that the government is accountable to the people through Parliament, reflecting the democratic nature of the constitution. The phrase ‘central government’ refers to the Prime Minister, Cabinet, ministers, government departments, and civil servants. Informally, these parts of central government are often referred to as ‘Whitehall’, reflecting how most government departments and the Prime Minister are based around that area of central London close to Westminster. A more constitutionally appropriate phrase is the ‘executive’. However, this term can also be taken to mean other elements which include the governments of Scotland, Northern Ireland, and Wales, as well as local government and organisations such as the police.
11. The evolution of rights in the family home
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter shows how the laws governing the interests in the family home have developed. It first discusses the deserted wife’s equity, which was one of the first attempts to provide an answer to a dispute about the family home. Next, the chapter considers cases regarding proprietary interests in the home, some of which later built up to the present law. It also returns to the topic of resulting trusts, showing how limitations in resulting trust analysis led to the use of common intention constructive trust principles when dealing with ownership of the family home. This form of constructive trust has the advantage of greater flexibility than resulting trusts with the ability to resolve issues about ownership both at the time of acquisition of the family home and later.
16. Charitable trusts
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter delves further into the legal definitions and provisions for charitable trusts. Charities must follow purposes recognized as such in law, and are required to demonstrate that they carry out their activities to the benefit of the public at large. Similarly, an organization that carries out charitable purposes must be ‘exclusively charitable’, which, in practice, means if it pursues non-charitable activities, they must be ancillary to the main charitable purposes. Charities have no named beneficiaries, so the law is enforced by the Attorney-General and the Charity Commission on behalf of the public. Organizations which nonetheless do good, and may exist for reasons other than private profit are referred to as (non-charitable) voluntary organizations.
21. Powers of appointment
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter focuses on the powers of appointment. Powers of appointment confer on a person who does not own property the authority to choose who shall become the owner. The key feature of a power of appointment is that it is discretionary in character. The donee of a power is under no enforceable obligation to make any appointments of the fund at all. Even if the donee were never to make any appointments at all, they would not be in breach of a duty owed either to the donor or to the potential objects of the power. The court will not step in to compel the exercise of the power, but it will exercise a supervisory jurisdiction to ensure that, if the donee does decide to exercise the power, they do so properly.
23. Powers of maintenance and advancement
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter discusses the trustees’ powers of maintenance and advancement. The powers of trustees can be divided into two categories: management powers and distributive powers. Management powers are those which relate to looking after the trust property, for instance, investing a fund or insuring a property. Distributive powers are those which relate to deciding who benefits. Generally the decision as to benefit will have been made by the settlor, by creating a fixed trust, by giving the decision to trustees through a discretionary trust, or by conferring a power of appointment on the trustees or a third party. In addition to this, however, there are some instances where trustees can make a decision as to who benefits from a trust fund, even where not expressly provided for by the settlor.
26. Investment
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter explores the powers and duties of trustees in relation to investment. It is in the context of investment that the concept of the trust fund is at its most apparent. The beneficiaries are entitled to share in the wealth which the trust assets represent. The component parts of that wealth are very much less important to the beneficiaries than its aggregate value. Thus, the issues which have to be addressed in the context of investment are first, when trustees are permitted to dispose of existing trust assets in order to substitute new assets; second, what assets may be substituted for the original ones; and third, the principles upon which those investments must be chosen. Over these issues, the chapter addresses a fundamental question on what the purpose of investment is.
32. Tracing
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter considers the process of tracing. Tracing describes the process by which the law allows the original owner of property to identify and claim as his or her assets in the hands of a third party. Since tracing and following are proprietary concepts, they can only be used if there was initially, and there remains (in its original or any substituted form), an asset or a property to which claim can be made. Tracing is resorted to most frequently when the trustee is insolvent, so that a personal claim is of limited value. It is easy to forget that in most, if not all, cases of tracing or following, the trustee will have acted in breach of trust and will personally be liable.
33. Rescission, rectification, and account
Authors: Pearce Robert , Barr Warren
Published: August 2018

This chapter looks at equitable remedies-specifically, the remedies of rescission, rectification, and account. These remedies have a general application. Equitable remedies apply in all fields of law, from disputes over property or entitlement in contract and intellectual property, to preventing harm, or to the proceeds of wrongdoing being dissipated before a claim can be made against them. Equity evolved these remedies in the Court of Chancery to ameliorate the common law. Sometimes the remedies (like rescission) modified the harshness of the common law rules. Sometimes the remedies (like specific performance and injunction) provide alternative relief to the common law remedy of damages.
5. Property Division on the Breakdown of Non-Matrimonial Relationships
Authors: Barr Warren
Published: August 2018

The family home is the key property asset that most family members will own in their lifetimes. However, many people living together in a home do not give any real thought to whether the property is owned between them, or what would happen if they separated. This chapter explores the reasons why cohabitants do not often think through their entitlements to the property, and why the law has been slow to provide redress to them. It considers the rules applicable to the application of trusts and proprietary estoppel to aid cohabitants, as well as critiques them. It also examines the practical impact of the remedies provided by outlining what happens when property is to be sold. Finally, it considers the many attempts at law reform and why they have, to date, failed to reach the statute books.
7. Domestic Violence and Abuse
Authors: Carline Anna , Dehaghani Roxanna
Published: August 2018

The chapter examines how, historically, domestic violence was considered to be a private matter that was none of the law's concern. While domestic violence is now recognised to be an important social issue, the historical acceptance of such abuse provides a context to understand some of the difficulties that victims face today. A key focus of the chapter is the family law remedies available for domestic abuse victims. Three key remedies are examined: non-molestation orders, occupation orders, and forced marriage protection orders. The chapter also explores some of the wider factors pertaining to the family justice system's response to domestic violence. It is important to recognise the impact of the changes to legal aid as introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and the extent to which victims of domestic violence may feel threatened during family law proceedings, particularly in cases involving the arrangements for children after separation.
9. Private Child Law
Authors: Newnham Annika
Published: August 2018

This chapter looks at the law used to resolve disputes about where children should live, who they should have contact with, and other aspects of parental responsibility. The majority of such disputes are between two parents, but they can also involve grandparents, other relatives, or even people like friends and neighbours. The Children Act 1989 is the main piece of legislation for the regulation of disputes between parents. This Act was an ambitious and largely successful attempt to modernise, simplify, and improve the law. As part of this reform, the old orders of custody and access were scrapped, and the Act introduced parental responsibility to regulate parents' legal status, and a set of orders which were designed to only affect practical arrangement. The chapter concludes with a brief outline of the High Court's inherent jurisdiction.
11. Public Law Protection
Authors: Russell Penelope
Published: August 2018

Public law protection of children challenges one of the fundamental principles of England and Wales that children are best brought up by their parents. Unlimited state intervention in the family is not permitted and the courts have to strike a balance between maintaining stability for children within their family, and protecting them from harm. This chapter considers the statutory duties of the local authority towards children as well as emergency action to protect a child. It examines what has to be proven to obtain a care order and the evidential difficulties connected with this; in particular, the difficulties posed for the courts where harm is caused to a child by an unknown perpetrator. The chapter ends by exploring the options available to the court at the welfare assessment once the threshold criteria have been met.
13. Human Rights, Children’s Rights, and Family Law
Authors: Stalford Helen , Byrne Seamus
Published: August 2018

This chapter explores children's rights in the context of family law and family life. It aims to look at family law through the lens of the human rights of children and the associated theoretical, doctrinal, and empirical scholarship. It begins with a brief overview of the international children's rights framework underpinning this area, including the UN Convention on the Rights of the Child and the European Convention on Human Rights. It then points to some of the cultural, legal, and practical obstacles to the protection of children's rights in the context of family law. It also discusses the issue of corporal punishment.
15. Family Law in Practice
Authors: Nicholls Patrick
Published: August 2018

This chapter examines how families use and access the legal system, and the recent changes in family justice. The procedural aspects of family law claims and the funding of litigation has seen extensive changes in recent years that have heavily influenced the use of the courts by families and the development of the law. The chapter identifies the source of the legal procedures, and explains the underlying policies and rules which must be followed for persons to obtain what orders the family law courts can make. It also examines the impact of cuts to legal aid on the family justice system. The cuts in legal aid have resulted in many more persons acting for themselves before the court as ‘litigants in person’. This has resulted in significant delays which some argue have put the family justice system in crisis and pitched the judiciary against their political counterparts.
5. Promissory estoppel
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter explores the doctrine of promissory estoppel and the case of Central London Property Trust Ltd v High Trees House Ltd. Denning J’s judgment in that case envisioned its application in the part payment of a debt situation, to provide a means of preventing the promisor reneging on his or her promise not to seek the whole of the debt. It looks at English Law’s restriction of promissory estoppel to preventing promisors going back on promises not to enforce rights, rather than creating new obligations. The considerable uncertainty surrounding the doctrine is explored (e.g. in relation to the extent to which it extinguishes rights, rather than merely suspending them, and what is required to trigger the estoppel (detrimental reliance on the promise or it being inequitable to go back on it).
6. Intention to create legal relations
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter considers the final element of the formation of the contract: the intention to create legal relations. There is generally no difficulty in finding this requirement is fulfilled in commercial cases, but such intention is generally assumed to be absent in domestic or social agreements. The parties’ intentions may usually reflect these assumptions, but the issue of underlying policy is addressed. In commercial situations, issues of ‘intention to create legal relations’ are more likely to arise in relation to a clause which it is claimed is intended to show that there was no such intention in relation to the particular agreement.
14. Duress and undue influence
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter looks at the effect of duress or undue influence on the making of a contract. The difficulty is identified of distinguishing hard bargaining from economic duress, when the ‘threat’ is to the economic interest of the party ‘threatened’. This raises the question of what amounts to an illegitimate threat; whether a threat which is not otherwise legally labelled as wrongful will suffice, and whether all threatened breaches of contract do so. The question also arises as to a test of a ‘reasonable’, or ‘practical’, alternative to agreeing. Undue influence is concerned with the surrender of decision making because of the relationship of the parties whether through domination or trust. The presumptions that arise in relation to undue influence, and when they arise, are examined. Consideration is given to the treatment of aggressive and misleading trade practices under the Consumer Protection from Unfair Trading Regulations (as amended by the Consumer Protection (Amendment) Regulations 2014).
15. Illegality
Authors: Macdonald Elizabeth , Atkins Ruth , Krebs Jens
Published: August 2018

This chapter explores the illegality of contracts. Contracts which may fall within the scope of the restraint of trade doctrine are considered, including the Court of Appeal’s approach in Proactive Sports Management Ltd v Rooney. The chapter also looks at other reasons why a contract may be declared illegal or void at common law, such as grounds of public policy. Policy factors and the illegality defence are explored in light of recent case law and the Law Commission Final Report ‘The Illegality Defence’. Useful case law illustrations demonstrate how the courts have dealt with the issues surrounding illegality in a range of contexts, such as contracts to commit an unlawful act, contracts promoting sexual immorality, contracts prejudicial to the interests of the state, contracts prejudicial to the administration of justice and contracts promoting corruption in public life. The consequences and effects of impropriety and illegality are also looked at. The landmark case of Patel v Mirza [2016] UKSC 42, and its impact on the law, is also explored in this chapter.
Business Law
Authors: Marson James , Ferris Katy
Published: August 2018

Business Law provides an introduction to the subject. Packed with up-to-date and relevant examples, it demonstrates the real applicability of the law to the business world. The book contains a number of parts. After an introduction about studying the law, the first part covers the English legal system, the constitution, EU law, and human rights. This comprises important issues including statutory interpretation and the legislative process, and court structures. The next part considers contractual obligations. Here terms, contractual capacity, mistake, misrepresentation, duress, contractual terms, regulations, and remedies for breach are included. It continues with tortious liability and describes issues of negligence, nuisance, economic loss, psychiatric injury, and statutory duties. This is followed by an examination of company law. The part that comes next is about employment. Finally, intellectual property issues are considered.
3. Sources of Law, Statutory Interpretation, and the Legislative Process
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter discusses the administration of the legal system and introduces its essential elements. It begins by identifying the various sources of law in England and Wales and continues with an examination of the roles played by the judiciary in interpreting and applying legislation. It demonstrates the active and important role adopted by judges in giving the full effect of the law. It considers the law-making process, along with the workings of the parliamentary system and the use of delegated legislation. It also considers the sources of the law to identify where laws may derive, and delineates the ‘hierarchy’ of laws in England. The chapter concludes by identifying and critiquing the ability of Parliament to delegate the responsibility of passing legislation.
14. Trading Structures and Forming the Business Enterprise
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter studies the various forms of business organization that are available to those who trade. It focuses on the types of trading structures available, how they are established, and provides an overview of the implications of each form of business organization. It should be noted that there is no one model that will suit every individual or every business model. It is very much the decision of the individual—having assessed the business, what they wish to do with it, and how they see it continuing in the future—to determine the form of enterprise chosen. Being aware of the consequences for the business organization is crucial in making this decision.
21. Unfair Dismissal and Constructive Dismissal
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter considers the termination of employment, and how it is governed by statutory measures—in cases of unfair dismissal—and the common law—in cases of wrongful dismissal. Each of these provisions outlines important factors when the contract is to be ended. Being aware of the procedures involved in each of these areas of law will ensure terminations can take effect without unnecessary recourse to court or tribunal action, saving time and money. In dismissing an employee, the law provides for the correct procedure to be adopted, the potentially fair reasons that justify a dismissal, along with automatically unfair reasons to dismiss an employee. Disregarding these may lead to claims for unfair dismissal, the defence of which can be expensive for employers.
22. Equality in the Workplace and Parental Rights
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter discusses the Equality Act (EA) 2010. There have been many changes adopted following the enactment of this legislation. The Act is relevant for businesses as it imposes obligations to provide a safe system of work, including regulating the activities of management, colleagues, and third parties. This is an area of law that will evolve over the forthcoming years, and whilst much of the previous case law is applicable to this new Act, new judgments will likely expand and clarify the extent of equality law. An employer who is not aware of the provisions of EA 2010 runs the risk of facing very expensive claims, poor industrial relations, and potential damage to his or her reputation as an employer.
23. Regulation of the Conditions of Employment
Authors: Marson James , Ferris Katy
Published: August 2018

This chapter continues from the discussion of the obligations on employers to adhere to the Equality Act (EA) 2010 and protect their workers from discrimination and harassment, to a wider consideration of the regulation of conditions of employment. Legislation places many obligations on employers, and they are increasingly subject to statutory controls that provide for a minimum wage to be paid to workers, for regulation as to the maximum number of hours workers may be required to work, and for the protection of workers’ health and safety. In the event of an employer’s insolvency, the rights of employees are identified, and finally, the mechanisms for employers to protect their business interests in the contract of employment are considered.
24. Intellectual Property
Authors: Marson James , Ferris Katy
Published: August 2018

The final chapter in the book examines matters relating to the intellectual property created and/or owned by a business. Given the value of the outputs from the intellectual creativity of persons (software programs, books, music recordings etc.), this chapter outlines the rights available to protect them and the consequences for infringement. It first identifies the law surrounding creative ideas and work (copyright) before a product’s appearance (design rights) is considered. The chapter continues by assessing the protection of a brand name and image (trademarks) and finishes the substantive issues through examination of inventive ideas and works (patents). Confusion of the public through the unlawful use of an existing business’ name or product can result in the tortious liability of ‘passing-off.’ The chapter concludes with an assessment of the intellectual property produced by employees and the consequences of employment status for the rights to exploit the property.
5. Nature of obligations
Authors: Mégret Frédéric
Published: August 2018

This chapter first introduces the relationship of international human rights law to public international law, which is crucial to understanding the ‘special character’ of international human rights obligations. It then introduces the basic idea of what it means for a legal obligation to be described as ‘special’ in nature in international law, and discusses several key consequences that can be said to flow from this character in terms of reservations, implementing human rights obligations, limitations and derogations, enforcement, and withdrawal.
9. Integrity of the person
Authors: Rodley Nigel S
Published: August 2018

This chapter examines rights at the core of the concept of integrity of the person. Specifically, it considers the right to be free from torture and cruel, inhuman, or degrading treatment or punishment and the right to life. The chapter addresses complex definitional issues of what constitutes torture, and addresses other ill-treatment, mainly in the light of treaty definitions and case law of courts and other bodies charged with applying relevant treaties. The same approach is taken with respect to the right to life, where the central issues of the limits international law places on the death penalty and on the use of force by security forces and law enforcement officials are considered. Both rights are considered to be rules of customary international law and probably peremptory norms of international law (jus cogens).
14. Cultural rights
Authors: Ringelheim Julie
Published: August 2018

This chapter examines the sources of cultural rights in international human rights law, describes their evolution, and highlights the major debates regarding their interpretation. Specifically, it discusses the content and meaning of the right to take part in cultural life, the right to enjoy the benefits of scientific progress and its applications, and the rights of authors and inventors to the protection of their moral and material interests.
17. Children’s rights
Authors: Van Bueren Geraldine
Published: August 2018

This chapter considers the protections afforded to children by international human rights law. It begins with a consideration of the international legal definition of the ‘child’. Focusing on the UN Convention on the Rights of the Child, the chapter considers the basic principles underlying the rights of the child: non-discrimination, the best interests of the child, the right to life, survival and development, the right to be heard, and the evolving capacity of the child. The chapter then considers the 4Ps that reflect the diversity of protection afforded by international law to the rights of the child: prevention, provision, protection, and participation. Finally, the chapter examines the protection of children’s rights at the regional level.
26. International criminal law
Authors: Cryer Robert
Published: August 2018

This chapter first discusses the overlaps between human rights and international criminal law, focusing on four international crimes: genocide, crimes against humanity, war crimes, and aggression. It then considers prosecutions and non-prosecutorial options, concluding with an analysis of the pros and cons of using international criminal law to protect human rights.
6. Nature of the rights
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter is about the rights conferred by the law on copyright owners, and the scope of what determines the types of activity that amounts to copyright infringement. It begins by considering the right to copy the work, focusing on the issue of reproduction with respect to literary, dramatic, musical, and artistic works as well as films, sound recordings, broadcasts, and typographical arrangements. It then looks at other rights granted to copyright owners, including distribution right; the right to rent and lend copies of the work; the right to perform the work in public; and the right to make an adaptation of the work.
8. Infringement
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter considers the question of what amounts to copyright infringement, first by discussing ‘primary’ infringement and ‘secondary’ infringement. It then explains the three criteria used to determine whether copyright in a work has been infringed: whether the defendant carried out one of the activities that falls within the copyright owner’s rights; whether there is a causal link between the work used (that is, reproduced, issued, rented, performed, communicated, or adapted) by the defendant and the copyright work; and whether the restricted act has been committed in relation to the work or a substantial part thereof. It also looks at the European approach to finding infringement in relation to authorial works and compares it with the British approach before concluding with a description of non-literal copying of such works.
9. Defences
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter deals with the exceptions that a person may invoke in defence when sued for copyright infringement. Most of these exceptions are referred to as ‘permitted acts’ in Chapter III of Part 1 of the Copyright, Designs and Patents Act 1988 (CDPA 1988). The chapter begins by introducing six concepts that feature in many of the exceptions set out in the CDPA 1988: fair dealing, non-commercial use and not-for-profit users, lawful use, sufficient acknowledgment, relationship with contract, and dealings with copies made under exceptions. It then cites exceptions relating to personal copying for private use; non-commercial research or private study; text and data analysis; criticism or review; disclosure in the public interest; uses of works for people with disabilities; public administration; databases, computer programs, and electronic programs; and artistic works and broadcasts. A section on miscellaneous defences concludes the chapter.
12. Limits on exploitation
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter is concerned with the restrictions placed on the copyright owners’ ability to exploit and use their work. It first considers the various mechanisms that are used to regulate contracts between authors and entrepreneurs and then assesses the impact of competition law in the UK and Europe on the ability of copyright owners to exploit their works. It also looks at the ways in which copyright contracts are regulated with respect to users of copyright, along with the issue of orphan works. The chapter concludes by outlining the different controls that are imposed on collecting societies.
24. Rights related to patents
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter is concerned with two areas of law that are related to, but not traditionally part of, patent law: the system of plant variety that gives protection to the breeders of new plant varieties, and supplementary protection certificates that extend the length of patent protection in the UK and are meant to compensate owners for time lost while awaiting regulatory approval to market their patented products. The procedure to be followed when applying for plant variety rights is also discussed, along with issues of ownership, duration, and patent infringement. The chapter concludes by considering exceptions and compulsory licences relating to the plant variety system.
27. Grounds for invalidity: novelty, individual character, and relative grounds
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter explores the criteria that are applied to determine the validity of a design —whether a registered design in the UK and the European Union or an unregistered Community design: the design must be ‘new’; the design must have ‘individual character’; the applicant or the right holder must be entitled to the protected design; and the design must not conflict with earlier relevant rights (including earlier design applications, copyright, trade mark rights, and rights relating to certain types of emblem). The factors to take into account to determine the novelty of a design, such as prior art, are also considered. The chapter concludes by looking at relative grounds for design invalidity.
28. Ownership, exploitation, and infringement: UK registered designs, registered community designs, and unregistered community designs
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter focuses on who is entitled to apply for a design registration as well as the rules relating to ownership and exploitation with respect to registered designs in the UK and the registered and unregistered Community designs. It also discusses infringement and exceptions in the three harmonized systems. It begins by considering the question of who is initially entitled to a design, citing entitlement under the UK Registered Designs Act 1949 and EU provisions. It then turns to assignment and licensing, the optimal period of protection for a design, and the British and EU approach to infringement. Finally, the chapter examines exceptions and defences that are available when dealing with design protection.
29. Copyright protection for designs
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter deals with the conditions under which copyright law might protect designs as well as the limitations on the term of design protection. It first considers the subsistence of copyright in designs via two routes: either directly, by protecting the form and decoration of articles as artistic works (particularly sculptures, engravings, or works of artistic craftsmanship), or indirectly, by protecting the author of a preliminary document on which a design is based. It then discusses section 52 of the UK Copyright, Designs and Patents Act 1988, which limited the term of protection of copyright for mass-produced designs to twenty-five years, and its demise.
32. Passing off
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter focuses on the tort of passing off as a legal regime for the protection of trade marks. It considers three elements that are required in order to succeed in an action for passing off: the claimant has ‘goodwill’; the defendant made a ‘misrepresentation’ that is likely to deceive the public; and the misrepresentation damages the goodwill of the claimant. It also surveys the law in relation to goodwill. This chapter discusses manifestations of goodwill and describes goodwill associated with packaging, get-up, and trade dress as well as advertising style. It concludes by analysing the scope and ownership of goodwill, together with goodwill as a form of property.
33. Misrepresentation
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter considers one element of the action of passing off with respect to trade marks: the requirement that there be a misrepresentation. It first describes the type of conduct that amounts to misrepresentation and the consequences that flow from that conduct, as well as the types of suggestion that are actionable. It then discusses the requirement that a statement must be likely to cause confusion in order to qualify as a misrepresentation. In addition, the chapter explains how passing off action can be brought not only against a person who carries out the misrepresentation, but also against anyone who provides the means for the misrepresentation to occur (such as by providing instruments of deception).
36. Subject matter
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter discusses three requirements that a sign must satisfy to be validly registered or, if it is already registered, to ensure that it is not subsequently declared invalid: there is a sign; the sign can be represented graphically, or otherwise represented adequately; and the sign must be capable of distinguishing the goods or services of one undertaking from those of other undertakings. The chapter also considers specific policy-based limits on the registration of shapes, in the form of three ‘functionality’ exclusions.
40. Infringement
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter deals with trade mark infringement, as set out in sections 10(1)-(3) of the Trade Marks Act 1994 and Article 9 of the European Union Trade Marks Regulation (EUTMR). It first outlines a non-exhaustive list of the situations in which a person uses a sign, such as affixing the sign to the goods or to the packaging; importing or exporting goods under the sign; or using the sign on business papers or in advertising. It then discusses how the claimant’s and defendant’s marks may be identified for comparison purposes, and the range of situations in which an infringement claim is viable, including import or export and use on the Internet. Finally, it examines the functions of a trade mark, commencing with the ‘origin’ function. It concludes by considering secondary or accessory liability for trade mark infringement, especially relevant for Internet platforms.
44. Is the information capable of being protected?
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter looks at the type of information that is capable of being protected by the action for breach of confidence. More specifically, it examines four limitations placed on the type of information that may be protected under the action: where the information is trivial, immoral, vague, or in the public domain. It also considers the notion of ‘relative secrecy’ around which the breach of confidence, along with encrypted information and the so-called ‘springboard’ doctrine.
49. Civil and criminal remedies
Authors: Bently L. , Sherman B. , Gangjee D. , Johnson P.
Published: August 2018

This chapter deals with civil and criminal remedies that are available where intellectual property rights are violated. It first considers the civil relief available before a trial takes place, namely: interim injunctions and prevention of imports. It then outlines the civil remedies available at full trial: final injunction, delivery up or destruction, the awarding of damages, the account of profits, and publicity orders. Finally, it examines the various criminal remedies that intellectual property right holders may avail.
4. The execution of the Court’s judgments
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

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.
6. Article 3: Freedom from torture or inhuman or degrading treatment or punishment
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

This chapter discusses Article 3 of the European Convention on Human Rights. Article 3 prohibits torture and inhuman or degrading treatment or punishment. It imposes a negative obligation on states not to engage in such treatment or punishment and a positive to act to prevent private persons from doing so. There is also a procedural obligation to investigate allegations of ill-treatment. Article 3 applies to treatment in all life contexts, including treatment in prisons. Unlike most Convention articles, Article 3 is expressed in unqualified terms so that proscribed ill-treatment is never permitted, even for the highest reasons of public interest.
8. Article 5: The right to liberty and security of the person
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

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.
14. Article 11: Freedom of assembly and association
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

Article 11 of the ECHR guarantees the two connected rights of freedom of peaceful assembly and freedom of association. The first includes the freedom to form and join trade unions. Both are essential to the effective working of democracy. Article 11 imposes negative obligations on states not to interfere with these rights unless the interference is prescribed by national law and is necessary in a democratic society to achieve at least one of the aims specified in the Article. Restrictions on striking by the armed forces, police, and administration of the state are permitted under Article 11(2). Positive obligations on states to take reasonable measures to protect the two freedoms have been read into Article 11, including to undertake effective investigations into complaints of interference by private persons. States have a positive obligation to secure the rights of individuals and trade unions against employers and to protect the individual against union power.
16. Article 13: The right to an effective national remedy
Authors: Harris David , O’Boyle Michael , Bates Ed , Buckley Carla
Published: August 2018

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. So, 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
Published: August 2018

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.
3. Trusts and powers and the three certainties
Authors: Clements Richard , Abass Ademola
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter on trusts and powers discusses the following: the different types of trust and powers; power (mere or bare or personal); fiduciary power; trust power (trust in default of appointment); discretionary trust (sometimes called a trust power or power in the form of a trust); the certainty of intention, certainty of subject matter, and certainty of objects; administrative unworkability; certainty of objects in conditional gifts; and the effects of absence of the three certainties.
11. Maintenance and advancement and protective trusts
Authors: Clements Richard , Abass Ademola
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the following: express powers of maintenance; exclusion of maintenance; the statutory power of maintenance; power to maintain infant beneficiaries, duty to maintain an adult beneficiary; accumulations; trust income; contingent pecuniary legacies; the power of the courts to award maintenance; the meaning of advancement; the statutory power of advancement; express powers of advancement; trustees discretion in granting maintenance and advancement; the courts’ power to authorize advancements; the exercise of discretion; and protective trusts and determining events.
12. The appointment of trustees
Authors: Clements Richard , Abass Ademola
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the following: the different types of trustee; the number of trustees required; the general duties of trustees; trustee decision making; disclaiming trusteeship; who is eligible to be a trustee; who has power to appoint trustees, express and statutory powers; the appointment of trustees by the beneficiaries; the appointment of trustees by the court; the vesting of the legal estate in the trustees; the retirement of trustees; and the removal of trustees; protection of beneficiaries.
14. Breach of trust
Authors: Clements Richard , Abass Ademola
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter on breach of trust discusses the following: the trustees’ duty of care; the fiduciary nature of trusteeship; the nature of equitable compensation; reasonable care and skill the liability of individual trustees; the criminal liability of trustees; the protection of trustees; trustee exemption clauses; section 61 Trustee Act 1925 and the court’s power to excuse the liability of trustees for breach of trust; when the statutory period of limitation applies; and the equitable doctrine of laches.
16. Tracing
Authors: Clements Richard , Abass Ademola
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. Tracing is a powerful means of locating and then recovering trust property. Property may change hands, change into another form of property, be mixed with other property and even increase in value, and yet it can still be recovered, as long it is still identifiable. This chapter discusses the definition of tracing; common law tracing; equitable tracing; tracing against volunteers and bona fide purchasers for value; tracing into a mixed fund including bank accounts; and the principle that the wrongdoer spends his own money first.
2. Funding
Authors: Sendall Jane
Published: August 2018

This chapter discusses the changes made to public funding in family cases; the availability of public funding for family law proceedings; the levels of funding available to the client; the tests to determine whether a client is eligible for public funding; and the recovery of public funding through the statutory charge.
3. Alternative Dispute Resolution in Family Law
Authors: Sendall Jane
Published: August 2018

This chapter first discusses the methods by which a family lawyer may resolve family law disputes, including Alternative Dispute Resolution (ADR). It then reviews the various forms of negotiation that a family lawyer may undertake. These include settlement between clients, negotiation through correspondence, meeting between counsel, and at-court negotiation. Next, the chapter discusses mediation and collaborative law as different forms of ADR used in family law. It also briefly considers a recent development in family ADR: arbitration.
4. The Single Family Court
Authors: Sendall Jane
Published: August 2018

This chapter provides an overview of the Single Family Court created in April 2014. It summarizes the effects of the Single Family Court and outlines who is involved in the judicial process within the new structure. It discusses how the allocation of cases within the Single Family Court are done by ‘gatekeepers’ and the new points of entry for cases.
6. Divorce
Authors: Sendall Jane
Published: August 2018

This chapter discusses the grounds for divorce under the Matrimonial Causes Act 1973. These include adultery, unreasonable behaviour, desertion, two years’ separation plus consent, and five years’ separation. The chapter explores each of the five possible facts that prove the ground for divorce and explains the relevance of continued cohabitation between the parties.
9. Procedure for a Matrimonial Order
Authors: Sendall Jane
Published: August 2018

This chapter discusses the procedure for obtaining a divorce or dissolving a civil partnership, which is governed by the Family Procedure Rules 2010. It outlines the steps a solicitor should take before issuing divorce proceedings and explores the complete procedure for obtaining an undefended divorce.
10. Civil Partnership Act 2004
Authors: Sendall Jane
Published: August 2018

This chapter discusses the scope of the Civil Partnership Act 2004 (CPA 2004) and the formation of civil partnerships. It also explains the differences between civil partnership and marriage. The CPA 2004 enables same-sex couples to form legally recognized civil partnerships. Once a partnership has been formed, civil partners assume many legal rights and responsibilities for each other, third parties, and the State.