Smith and Keenan's English Law

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“The latest edition of Smith and Keenan’s English Law cannot fail to impress once again. This comprehensive introductory law text is a dependable companion for every non-law student and layman alike. The new authors are to be commended for successfully carrying on the tradition upon which the book's excellent reputation was built.” Andrea Cerevkova, Senior Lecturer in Law, Edge Hill University.    “Smith and Keenan's English Law is the most comprehensive text on English law available on the market. Suitable for students at all levels.” Lachmi Singh, University of the West of England    Have you ever wondered what exactly constitutes an unwritten constitution? What your rights are as an employee? When a contractual agreement is binding?   Well-known for its uniquely comprehensive coverage of the legal system and the main, substantive areas of English law, Smith and Keenan’s English Law is the definitive introduction to the law of the land and an all-purpose reference guide for students and professionals alike.    Cover Contents Preface The book at a glance Law Report abbreviations Table of cases Table of statutes Part 1 THE ENGLISH LEGAL SYSTEM Chapter 1 The nature and development of English law Classification of English law The study of law The development and sources of English law – generally The common law Equity Relationship of common law and equity Legislation Delegated legislation Custom Canon law Legal treatises Chapter 2 The unwritten constitution Key events in the development of the constitution Fundamental principles underpinning the constitution Chapter 3 The law-making process: legislation and case law The United Kingdom Delegated legislation Interpretation of statutes by the judiciary Case law or judicial precedent Chapter 4 The courts of law The Senior Court of Judicature (formerly the Supreme Court of Judicature) The courts today Magistrates’ Courts Youth courts The County Court The Crown Court The Central Criminal Court The High Court – generally The Commercial Court The Companies’ Court The Bankruptcy Court The Court of Protection The Technology and Construction Court Restrictive practices The Court of Appeal – generally Appeals up to the Civil Division The Criminal Division Assistance for transaction of judicial business in the Supreme Court The Judicial Committee of the Privy Council The Court of Justice of the European Communities The role of the European Court at Luxembourg The International Criminal Court The European Court of Human Rights Chapter 5 Tribunals and judicial review Administrative tribunals Employment tribunals Alternative dispute resolution (ADR) Administrative inquiries Advantages of tribunals The Tribunals and Inquiries Acts Domestic tribunals Judicial control over inferior courts and tribunals Other controls on decision making Chapter 6 Alternative dispute resolution When is ADR appropriate? Types of ADR Written offers Negotiation Mediation Conciliation Arbitration Chapter 7 The main legal professions Background Barristers Solicitors Lawyers’ practising certificates Disciplining the legal profession Legal executives Notary public Law centres The Judicial Appointments Commission Removal and retirement of judges Other important judicial offices Chapter 8 Legal services Legal Services Board Alternative business structures Reserved legal activities Rights of audience Overriding duties of advocates and litigators Rights of audience and employees of the Crown Prosecution Service Conveyancing services Probate services Administration of oaths and the taking of affidavits Payment for legal services Chapter 9 Civil procedure Initial considerations Funding the claim – generally Conditional fee agreements (CFAs) Alternatives to a claim in court The commencement of proceedings The defendant’s response to the claim Reply to the defence Requests for further information Case management and allocation of cases Court enforcement of timetables The trial Appeals Enforcing a judgment Chapter 10 Criminal procedure Criminal procedure – generally The prosecutor Getting the accused into court Procedure at the police station The trial of criminal proceedings Commencing the prosecution Funding the defence – legal aid Financial eligibility Bail Criminal trials and the Human Rights Act 1998 Summary trial before magistrates (other than in a youth court) Proceedings in the youth court Trial on indictment in the Crown Court What is an indictment? Reporting Alibi Place and time of trial The offence and indictment Arraignment Jury trial Committal to the Crown Court for sentence Appeal in criminal cases Contempt of Court Act 1981 Sentencing Custodial sentences – generally Community orders Prison sentences of less than 12 months Suspended sentences Deferred sentences Release of offenders from custody Fines Absolute discharge Conditional discharge Binding over to keep the peace Binding over of a parent or guardian Travel restriction orders Compensation orders Anti-social behaviour orders Youth crime and disorder: sentencing Youth community orders Restitution of property in criminal cases Rehabilitation of Offenders Act 1974 – non-disclosure of sentence Chapter 11 The Human Rights Act The scope of the Convention The European Court of Human Rights Impact of the Human Rights Act 1998 The European Court of Justice and Human Rights Chapter 12 Persons and the Crown Natural persons Juristic persons Unincorporated associations Limited liability partnerships (LLPs) The Crown Part 2 EUROPEAN UNION LAW Chapter 13 The legislative organs of the European Union The European Union The Treaty on European Union 1992 (Maastricht Treaty) The Treaty of Amsterdam 1997 The Treaty of Nice 2001 The Treaty of Lisbon 2007 (The European Reform Treaty) Subsidiarity and its application The institutions of the European Union Chapter 14 Sources of European Union law Introduction Sources of European Union law Direct effect in the United Kingdom Vertical and horizontal effect of EU law National courts and the European Court of Justice Chapter 15 Jurisdiction in personam: the Brussels regime The meaning of jurisdiction The liberality and simplicity of the common law of jurisdiction The development of the Brussels regime Actions in personam where the defendant is ‘domiciled’ in the EU The interpretation of the Regulation The scope of the Brussels I Regulation The concept of ‘domicile’ under the Brussels regime The central jurisdictional rules under the Regulation Exclusive jurisdiction Prorogation of jurisdiction Special jurisdiction Contract: Article 5(1) Tort: Article 5(3) Insurance contracts: Articles 8–14 Consumer contracts: Articles 15–17 Employment contracts: Articles 18–21 Part 3 THE LAW OF CONTRACT Chapter 16 Making the contract I: offer and acceptance Overview of contract law Freedom of contract The essentials of a valid contract Classification of contracts The formation of a contract Agreement Offer and invitation to treat Acceptance – generally Termination of offer Trading electronically Chapter 17 Making the contract II: consideration and estoppel Consideration Consideration in relation to formation of a contract – generally Consideration viewed in relation to the discharge or variation of a contract Common law – the rule of accord and satisfaction Equity – the rule of promissory estoppel Discharge of contract by performance – relevance of theHigh Trees case Equitable estoppel – other applications Intention to create legal relations Chapter 18 Making the contract III: formalities and capacity Formalities Capacity to contract Minors Consequences of the defective contracts of minors Mental disorder and drunkenness Corporations Chapter 19 Reality of consent: mistake, misrepresentation and duress Introduction Mistake Unilateral mistake Non-identical bilateral (or mutual) mistake Bilateral identical (or common) mistake Documents mistakenly signed Rectification Misrepresentation Meaning of representation Types of actionable misrepresentation and remedies in general Remedy of rescission Damages Duress Chapter 20 Contractual terms Inducements and terms – generally Inducements and terms distinguished Conditions and warranties Innominate or intermediate terms Implied terms – generally Implied terms in consumer law – sale of goods Title Sales by description Implied conditions as to fitness Satisfactory quality Fitness and satisfactory quality Sale by sample Implied terms in consumer law – the supply of goods and services Supply of goods other than by sale Contracts for the transfer of property in goods Contracts for work and materials The terms implied Remedies Exchange and barter Contracts for the hire of goods The terms implied Exclusion clauses – supply of goods The supply of services Exclusion clauses – supply of services The Sale and Supply of Goods to Consumers Regulations Chapter 21 Exclusion clauses and other unfair terms Exclusion clauses – the issue of communication Construction of exclusion clauses The doctrine of fundamental breach The approach of Parliament to exclusion clauses Exclusion clauses applicable if reasonable Reasonableness Provisions against evasion of liability Unfair contract terms regulations Chapter 22 Illegality, public policy and competition law Introduction Public policy – the contribution of the judiciary: illegal contracts Consequences Public policy and the judiciary – void contracts Contracts in restraint of trade – generally Voluntary contractual restraints of trade on employees generally Contractual restraints on employees through the period of notice Non-contractual restraints on employees: confidential information Employee restraints arising from agreements between manufacturers and traders Restraints imposed on the vendor of a business Restrictions on shareholder-employees Restrictions accepted by distributors of merchandise Involuntary restraints of trade Consequences where the contract is contrary to public policy:severance Public policy: the contribution of Parliament Wagering contracts: insurance and dealing in differences Competition law The European Community approach to restrictive practices Chapter 23 Discharge of contract Discharge by performance Construction of the contract as entire Substantial performance Acceptance of partial performance Full performance prevented by the promisee Time of performance Tender Appropriation of payments Discharge by agreement Discharge by frustration Contracts for personal service Government interference Destruction of the subject matter of the contract Non-occurrence of an event Illegal Commercial purpose defeated Situations in which the doctrine does not apply Consequences of frustration The Law Reform (Frustrated Contracts) Act 1943 Discharge by breach Anticipatory breach and supervening events Effect of breach on a contract Other matters relevant to breach Affirming or discharging the contract Chapter 24 Remedies and limitation of actions Common-law remedies Equitable remedies Remedies agreed by the parties Part 4 THE LAW OF TORTS Chapter 25 The law of torts: general principles The nature of a tort Damage and liability Parties in the law of torts Vicarious liability Who is an employee? Rights of non-employees Nature of vicarious liability Liability for torts of independent contractors Chapter 26 Tort of negligence Negligence – generally The duty of care – generally Economic loss Product liability Consumer Protection Act 1987 Occupiers’ liability Highway authorities Defective Premises Act 1972 Employer’s liability Nervous shock Professional liability Chapter 27 Torts relating to property Trespass to land Nuisance Public nuisance Private nuisance The Rule in Rylands v Fletcher Wrongful interference with goods Chapter 28 Miscellaneous torts Trespass to the person Arrest and the tort of trespass to the person Remedies available against false imprisonment Defamation Publication Remedies for defamation Passing off Chapter 29 Defences and remedies in tort Contributory negligence Volenti non fit injuria Remedies Damages – generally Damage after successive accidents Cessation of liability Part 5 THE LAW OF PROPERTY Chapter 30 The law of property The nature of property Ownership Possession Bailment Land law Equitable interests Co-ownership A leasehold or a term of years Privity of contract Tenants’ rights to acquire the freehold of houses and blocks of flats Servitudes Restrictive covenants The transfer of land Personal property Mortgages of land Registration of land charges Mortgages of personal chattels Mortgages of choses in action Other forms of security Lien Assignments of choses in action Part 6 CRIMINAL LAW Chapter 31 Criminal law: general principles Crime and civil wrongs distinguished Terminology and outcome of criminal and civil proceedings Nulla poena sine lege – no punishment unless by law Constituent elements of a criminal offence The actus reus Omissions or failure to act The mens rea – generally Mens rea in statutory offences The mental element – corporations Chapter 32 Specific offences Homicide Murder Manslaughter Voluntary manslaughter Involuntary manslaughter Causing death by dangerous or careless driving Violent offences which are not fatal Assault and battery Statutory offences against the person The Fraud Act 2006 The Computer Misuse Act 1990 Chapter 33 Age and responsibility: general defences Liability of minors Insanity Automatism Drunkenness and drugs Duress Necessity Mistake Consent Self-defence Preventing crime Genuine religious belief Part 7 EMPLOYMENT LAW Chapter 34 The contract of employment Employee Worker Self-employed What constitutes an employment relationship? Specific occupations with special status Contractual terms of employment Chapter 35 Workplace discrimination Statutory controls on contract Recruitment and selection of employees Protection during employment The contract of employment Pay Equal treatment in terms and conditions of employment as between men and women in the same employment Part-time workers Workers on fixed-term contracts Discrimination once in employment Guarantee payments Suspension from work on medical grounds Family-friendly provisions Flexible working Time off Insolvency of employer Health and safety at work Health and safety in the office Trade union membership and activities Chapter 36 Termination of contract of employment Unfair dismissal – generally Discriminatory dismissal Redundancy Written statement of reasons for dismissal The employment contract and shop workers Taking a dispute to the Employment Tribunal after 6 April 2009 Part 8 Cases and materials Chapter 1 The nature and development of English law Chapter 3 The law-making process: legislation and case law Chapter 4 The courts of law Chapter 5 Tribunals and judicial review Chapter 7 The main legal professions Chapter 10 Criminal procedure Chapter 12 Persons and the Crown Chapter 14 Sources of European Union law Chapter 15 Jurisdiction in personam: the Brussels regime Chapter 16 Making the contract I: offer and acceptance Chapter 17 Making the contract II: consideration and estoppel Chapter 18 Making the contract III: formalities and capacity Chapter 19 Reality of consent: mistake, representation and duress Chapter 20 Contractual terms Chapter 21 Exclusion clauses and otherunfair terms Chapter 22 Illegality, public policy and competition law Chapter 23 Discharge of contract Chapter 24 Remedies and limitation of actions Chapter 25 Law of torts: general principles Chapter 26 Tort of negligence Chapter 27 Torts relating to property Chapter 28 Miscellaneous torts Chapter 29 Defences and remedies in tort Chapter 30 The law of property Chapter 31 Criminal law: general principles Chapter 32 Specific offences Chapter 33 Age and responsibility: general defences Chapter 35 Workplace discrimination Chapter 36 Termination of contract of employment Glossary of commonly used legal words and phrases Index